New York State Court of Claims

New York State Court of Claims

HUGHES v. THE STATE OF NEW YORK, #2006-030-013, Claim No. 107397


Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
June 29, 2006
White Plains

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See also (multicaptioned case)

Jerry Hughes alleges in Claim number 107397 that Defendant’s agents negligently or intentionally destroyed his property while he was an inmate at Green Haven Correctional Faciltiy (hereafter Green Haven). Trial of the matter was held at Green Haven on April 21, 2006.
Claimant testified that on October 27, 2002 he was in the B-Block yard at Green Haven when he learned that his cell partner, Carlos Delgado, had “been playing [Claimant’s] radio loud without . . . [his] permission” so it was confiscated by personnel.
Claimant explained his understanding of the facility policy regarding loud radios, saying that generally they would take the radio away, but would return it eventually, letting the inmate know he should use headphones or keep the sound down.
Claimant indicated that pursuant to New York State Department of Correctional Services (DOCS) Directive #4910 - specifically the sections concerning the definitions of contraband and the handling of items so designated - personnel did not handle his property correctly. [See Exhibit 1, pages 13-14]. A contraband receipt issued to Claimant, “form 2077”, is dated October 27, 2002 and confirms that a radio was taken from the cell “because Inmate was playing to (sic) loud” and indicates that the “Disposition Of Items Listed [is] Contraband locker.” [Exhibit 2]. The item confiscated is described as “1 Clear Radio” found “in cell.” [id.].
Claimant said that when this receipt was issued to him, he explained to the officer that he himself was not in the cell playing the radio too loud, but rather his cellmate was without his permission. Rather than simply “admit they were wrong”, personnel then issued an unfounded misbehavior report against him.
The misbehavior report, written by Correction Officer Currier, indicates that the officer found Claimant in his cell playing his radio without earphones. [Exhibit 7]. The correction officer further writes that when he removed the radio from the cell, he issued Claimant a contraband receipt. [id.]. “. . . Upon inspection of said radio it was found to have been opened and repaired. Inmate Hughes (sic) radio was then taken to the contraband locker and secured.” [id.].
Mr. Hughes said that his cellmate offered an affidavit to the effect that it was he - not Claimant - who was playing the radio in the cell when, during a later disciplinary hearing relative to the “false misbehavior report,” Claimant challenged the seizure. Claimant said that the charges were dismissed [see Exhibit 8], but when the radio was returned it was “damaged”.
Claimant noted that the “Form #2077, Contraband Receipt” shows that the radio was not damaged when it was seized, since officers are obligated to “write down any damage” and none is indicated. [See Exhibit 2].
He furnished a receipt referencing an Etron AM/FM stereo cassette player costing $29.75, that may be dated July 1, 2002 or July 16, 2002 - it is not clear from the document. [Exhibit 3].
Claimant sought commencement of “disciplinary proceedings against each of the officers”, he said, that triggered the issuance of the misbehavior report against him and the hearing based upon it.
In further support of his contention that he was “in the yard” and not in his cell when the radio was confiscated, he submitted a “go around slip”, which shows the whereabouts by cell number of the inmates. [Exhibit 4]. The form was not otherwise explained to show exactly what time period is covered therein, the locations within the facility, or the inmate to whom the numbers refer. [See id.].
On cross-examination, Claimant confirmed that it was Lieutenant Russett who took his radio “and directed Officer Currier to write a misbehavior report”, and who then presided over the Tier II disciplinary hearing, which he said was “not right.” Notably, Lieutenant Russett dismissed the charges against Claimant, saying he was doing so “. . . because of the lack of timeliness. On 11/19/02 the hearing was to be re-assigned and re-started and completed on 11/21/02. It was not completed by the required date.” [See Exhibit 8].
Claimant then acknowledged receiving a copy of a memorandum from Lieutenant Russett to Correction Officer Pursino, Claims Officer, dated December 5, 2002 apparently regarding Claimant’s facility claim for the return or replacement of his radio. [Exhibit A]. In the memorandum, Lieutenant Russett states:
“...On November 25, 2002 I dismissed a Tier II Misbehavior Report on inmate Hughes . . . The charges were related to playing his radio too loud without headphones and having an altered radio. The report was dismissed because of timeliness - it was not completed within the time limits. When I told inmate Hughes that I was dismissing the charges against him, I told him that his radio was obviously altered and he would not be getting it back. I gave him a choice of sending it home or having it destroyed. I made out an Authorization of Disposal of Personal Property (Form #2068) and requested that he sign the form. He refused to do anything, insisting that the radio was not altered. I had the radio brought from the Contraband Room. I pointed out to inmate Hughes that the body of the radio had been forced apart and an attempt had been made, unsuccessfully, to glue it back together. A wire was sticking out of the inside of the radio and the knob was barely attached to the radio. He still refused to make out the form, insisting that there was nothing wrong with it.

I sent inmate Hughes out of the room and made out the form to have the radio destroyed.

This inmate has no right to a claim on his radio. Enclosed is a copy of the form #2068.” [id.].
At trial, Claimant sought reimbursement for the alleged value of the radio in the amount of $29.75.
No other witnesses testified and no other evidence was submitted.
This claim is essentially one alleging negligence by the alleged bailee in a bailment created between Defendant and Claimant by delivery of Claimant’s personal property into the custody of Defendant’s employees. See generally Claflin et al v Meyer, 75 NY 260 (1878). The State has a duty to secure an inmate’s personal property. Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). A delivery of property to the bailee, and the latter’s failure to return it, satisfies Claimant’s burden of establishing a prima facie case of negligence. The bailee is then required to come forward with evidence to “overcome the presumption.” Weinberg v D-M Rest. Corp., 60 AD2d 550 (1st Dept 1977). “Where a bailment is created, a showing that the . . . [property was] delivered to the bailee and returned in a damaged condition establishes a prima facie case of negligence and the burden shifts to the bailee to demonstrate that it exercised ordinary care . . .” Board of Educ. of Ellenville Cent. School v Herb’s Dodge Sales & Serv., 79 AD2d 1049, 1050 (3d Dept 1981) (citation omitted).
With respect to value, Claimant must satisfy the Court of the fair market value of the items in question. Phillips v Catania, 155 AD2d 866 (4th Dept 1989); Schaffner v Pierce, 75 Misc 2d 21 (New York Dist. Ct. 1973). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable.
DOCS directive #4910, entitled Control of & Search for Contraband, provides in pertinent part that the “Form #2077, Contraband Receipt [be used] . . . in instances when a Misbehavior Report is not issued, the inmate shall be given a receipt for the articles, including information as to their whereabouts . . . ” [Exhibit 1]. There is no indication that the receipt must contain a description of the condition of the items seized. There is also no indication that there is something wrong with writing up a misbehavior report after issuing a contraband receipt.
After carefully considering the evidence presented, including the testimony of Claimant and observing his demeanor as he did so, the Court finds Claimant’s testimony was on the whole not credible. He has not established all the elements of his claim by a preponderance of the credible evidence. None of the documents admitted mention his version of events. Instead, they confirm that he was found in his cell playing his radio too loud, it was seized and examined, at which point it was discovered to have been altered, in violation of facility policy. In this case, while Claimant may have shown that a radio was surrendered to State custody and control, Claimant has failed to establish the condition it was in, or its value, by a preponderance of the credible evidence, or that the property seized was not disposed of in accordance with facility rules for the disposition of contraband. Accordingly, Claim Number 107397 is dismissed in its entirety.
Let Judgment be entered accordingly.

June 29, 2006
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.