| People v McKanney |
| 2008 NY Slip Op 09297 [56 AD3d 1049] |
| November 26, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MalikMcKanney, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered August 24, 2007, convicting defendant upon his plea of guilty of the crime of attemptedpromoting prison contraband in the first degree.
Defendant contends that it was reversible error not to conduct a hearing regarding his motionchallenging, as an illegal search, an X ray of his pelvis at the maximum security prison where hewas incarcerated. Based upon anonymous tips from an inmate informant indicating thatdefendant had secreted a weapon in his rectal cavity, facility personnel conducted a strip searchand metal detector search of defendant. When these searches yielded no contraband, the DeputySuperintendent ordered an X-ray examination of defendant's pelvis, which confirmed thepresence of a metal object. Defendant was placed on a one-on-one contraband watch pursuant toDepartment of Correctional Services (hereinafter DOCS) Directive No. 4910, during which hisdefecation revealed a sharpened metal blade wrapped in electrical tape.
Defendant was indicted on one count of promoting prison contraband in the first degree. Hemoved to suppress the sharpened metal blade claiming that it was the result of an illegal search.County Court declined to schedule a requested Mapp hearing, but directed aDarden hearing. However, the Darden hearing did not go forward because DOCSwould not produce the confidential inmate informant. After requesting and considering briefsfrom the parties regarding [*2]the legal issue, County Courtdenied defendant's motion to suppress, holding that facility personnel had acted appropriately intaking the X ray that revealed the metal object, and there was a sufficient ground for theone-on-one watch. Defendant then pleaded guilty to attempted promoting prison contraband inthe first degree. He received a prison term of 1½ to 3 years, consecutive to the term he wasserving. Defendant now appeals and we affirm.
While an inmate does not forfeit all constitutional rights at the prison door, many of thoserights—including 4th Amendment protections—are tempered by the fact ofincarceration and the importance of maintaining the security and safety of the facility (seeHudson v Palmer, 468 US 517, 527-530 [1984]; Bell v Wolfish, 441 US 520,559-560 [1979]; People v Mendoza,50 AD3d 478, 479 [2008]; People v Frye, 144 AD2d 714, 714 [1988], lvdenied 73 NY2d 891 [1989]). For example, 4th Amendment protections apply to strip andbody cavity searches in prison, but the test as to such searches is one of "reasonableness" inwhich the need for the search is balanced against the invasion of personal rights by "'consider[ing] the scope of the particular intrusion, the manner in which it is conducted, thejustification for initiating it, and the place in which it is conducted' " (People v Pagan,304 AD2d 980, 981 [2003], lv denied 100 NY2d 564 [2003], quoting Bell vWolfish, 441 US at 559). Similarly, the test of reasonableness applies to X-ray searches ofinmates and "[a] reasonable suspicion that an inmate is secreting contraband supports aninvoluntary x-ray search" (Sanchez v Pereira-Castillo, 573 F Supp 2d 474, 485 [D PR2008]; see People v Pifer, 216 Cal App 3d 956, 961-962, 265 Cal Rptr 237, 240 [1989],cert denied 498 US 938 [1990]).
Here, defendant is serving a sentence for murder and was incarcerated at a maximum securityprison comprised primarily of special housing units for inmates serving disciplinary dispositions(see DOCS Directive No. 0088). The acute security dangers implicated, including the "alltoo common" practice of inmates concealing weapons in body cavities, are readily apparent(Bell v Wolfish, 441 US at 559). Two tips were received from another inmate at thefacility, with the second tip reportedly being more specific, providing information that defendanthad concealed a weapon in his rectal cavity. There was no indication that defendant had beensubjected to repeated X rays (see People v Pifer, 216 Cal App 3d at 961-962, 265 CalRptr at 240). In light of all the circumstances, the X ray did not violate the reasonableness testand, moreover, to the extent that defendant is separately asserting the one-on-one contrabandwatch constituted an unlawful search, we need only observe that the X-ray result afforded amplereasonable suspicion for such watch. We are unpersuaded that County Court erred in denyingdefendant's suppression motion without a hearing (see CPL 710.60 [3]; People v Long, 36 AD3d 132, 133[2006], affd 8 NY3d 1014 [2007]; People v Pagan, 304 AD2d at 980).
Cardona, P.J., Mercure, Kane and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.