| Matter of Frejomil v Fischer |
| 2009 NY Slip Op 01051 [59 AD3d 790] |
| February 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of Richard Frejomil, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), enteredFebruary 1, 2008 in Albany County, which dismissed petitioner's application, in a proceedingpursuant to CPLR article 78, to review a determination of the Central Office Review Committeedenying petitioner's grievance.
Petitioner, an inmate at Great Meadow Correctional Facility in Washington County, wasdenied a package of halva, a middle eastern confection, that was packaged in a two-pound plasticcontainer. Petitioner filed a grievance that was denied by the facility superintendent. Uponreview, the Central Office Review Committee (hereinafter CORC) upheld that determination.Supreme Court dismissed petitioner's application to annul CORC's determination, prompting thisappeal.
We affirm. There can be no doubt but that correction facility officials must be accorded widelatitude in their efforts to ensure the safety and security of correctional facilities under theirsupervision and, in that regard, have the right, albeit, the obligation, to control what property ispermitted to be introduced into these facilities (see Matter of Marcelin v Coughlin, 193AD2d 981, 982 [1993]; Matter of Blades v Twomey, 159 AD2d 868, 869 [1990]). Adetermination regarding the confiscation of impermissible items, if rationally based, is entitled todeference and [*2]should not be disturbed unless there has been ashowing that it was arbitrary and capricious (see Matter of Sultan v Goord, 8 AD3d 842, 843 [2004]; Matterof Abdul-Matiyn v Commissioner of State of N.Y. Dept. of Correctional Servs., 252 AD2d754, 755 [1998]).
Here, a sergeant at Great Meadow Correctional Facility confiscated the two-pound plasticcontainer sent to petitioner because the contents appeared to "be a paste," which he considered tobe "a condiment like a spread." The sergeant noted that Department of Correctional ServicesDirective No. 4911 specifically provides that a food item in this type of container could not beadmitted into correction facilities if it weighed more than 16 ounces and, for that reason,confiscated the item. Petitioner claims that the paste-like substance in the plastic container was,in fact, halva—a candy—and that the regulation establishing the 16-ounce weightlimitation did not apply to candy.[FN1]However, the container did not identify the paste as a candy—its label only listed itsingredients which simply served to confirm that it contained a food product for humanconsumption.[FN2]The facts as presented to the sergeant who confiscated the container established that the decisionto do so was rationally based; the container he was presented with, beyond listing its ingredients,did not identify its contents, weighed more than 16 ounces and contained a paste which was afood stuff. These facts, taken together, establish that the decision to confiscate this package, aswell as CORC's determination denying petitioner's grievance, were both based upon a rationalinterpretation of Directive No. 4911 (see Matter of Vidal v Goord, 48 AD3d 860, 860 [2008]; Matterof Sultan v Goord, 8 AD3d at 843).
CORC, by its determination, has not, as petitioner contends, impermissibly added arequirement to its regulations that "candy items be labeled with the word 'candy' " for such itemsto be admitted into a facility. Rather, CORC found that the food item at issue here, whenexamined by the sergeant, failed to contain any information on the face of the containeridentifying its contents as a candy. CORC was merely emphasizing that when confiscated, theitem did not appear to be a candy and was not labeled as such. Where a legitimate question existsas to identification of the contents of such a container—as it clearly did here—theDepartment of Correctional Services must be allowed to make an appropriate assessment of thesituation and take what steps it reasonably believes are necessary to ensure the continuedsecurity of the facility under its charge (see Matter of Encarnacion v Goord, 24 AD3d 992, 992 [2005];Matter of Sultan v Goord, 8 AD3d at 843; Matter of Abdul-Matiyn v Commissionerof State of N.Y. Dept. of Correctional Servs., 252 AD2d at 755).
Insofar as CORC's determination may be read as denying the admission of halva in any sizecontainer, we would find such determination to be without any basis in the relevant regulationsand, therefore, arbitrary. Nevertheless, since CORC affirmed the facility superintendent'sdetermination that halva was a food item in an impermissibly large container, we affirm SupremeCourt's judgment.[*3]
Peters, J.P., Lahtinen and Kane, JJ., concur. Ordered thatthe judgment is affirmed, without costs.
Footnote 1: While all agree that the paste isa food product, they do not agree that it is a candy. Also, the regulations do not define when afood product is a candy.
Footnote 2: It has been assumed that thecontainer listed the ingredients since no claim has been made that it did not comply with that partof the directive that required that all food items must list their ingredients.