| Matter of Mingo v Chappius |
| 2013 NY Slip Op 03143 [106 AD3d 1160] |
| May 2, 2013 |
| Appellate Division, Third Department |
| In the Matter of Gregory Mingo, Appellant, v PaulChappius, as Superintendent of Elmira Correctional Facility,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel),for respondent.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Hayden, J.), enteredMay 15, 2012 in Chemung County, which dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of respondent findingpetitioner guilty of violating certain prison disciplinary rules.
Petitioner challenges a determination finding him guilty, after a tier II disciplinaryhearing, of possessing contraband and excess clothing. Petitioner argues that he wasimproperly denied the right to be present during the search of his cell. He commencedthis proceeding following the rejection of his administrative appeal, and now appealsfrom Supreme Court's dismissal of the petition.
We reverse. Department of Corrections and Community Supervision Directive No.4910 [V] [C] [1] provides, as relevant here, that "[i]f the inmate is removed from quartersprior to [a] search, he or she shall be placed outside the immediate area to be searched,but allowed to observe the search. However, if, in the opinion of a supervisory securitystaff member, the inmate presents a danger to the safety and security of the facility, theinmate shall be removed from the area and not allowed to observe the search." At thedisciplinary hearing, petitioner [*2]raised his objectionthat he was improperly removed from the area of his cell despite his request to observethe search. He stated that he was told by a correction officer that he had to "go in theshower" while his cell was searched. After petitioner indicated that he had not raised hisconcern with the housing sergeant, the Hearing Officer concluded the matter withoutmaking further inquiry into whether petitioner had been denied the opportunity toobserve the search and, if so, whether a legitimate reason supported the denial (cf. Matter of Gomez v Fischer,101 AD3d 1195, 1196 [2012]; Matter of Cody v Fischer, 84 AD3d 1651, 1651[2011]).[FN*]
Absent any indication that a supervisory staff member determined that petitionerposed a danger to the security of the facility, we cannot conclude that the Department ofCorrections and Community Supervision complied with Directive No. 4910. We rejectrespondent's argument that, inasmuch as petitioner was attending a program when his cellwas first searched, he had no right to observe the search of his cell for a second time,which was performed after he returned from the program. While cell searches mayproperly be conducted in an inmate's absence (see e.g. Matter of Mitchell v Fischer, 81 AD3d 1013, 1014[2011]; Matter of Lopez v Selsky, 300 AD2d 975, 975 [2002], lv denied100 NY2d 509 [2003]), petitioner had returned to his cell and requested to observe thesecond portion of the search, but was directed to go to the shower instead, evidentlywithout any determination of a security risk having been made. Accordingly, since it iswell settled that the Department of Corrections and Community Supervision must adhereto its own regulations, "the determination must be annulled and the matter expungedfrom petitioner's disciplinary records" (Matter of Johnson v Goord, 288 AD2d525, 526 [2001]; see Matter ofMorales v Fischer, 89 AD3d 1346, 1347 [2011]; Matter of Holloway vLacy, 263 AD2d 740, 741-742 [1999]; Matter of Gonzalez v Wronski, 247AD2d 767, 767-768 [1998]; Matter of Patterson v Coughlin, 198 AD2d 899, 900[1993]).
Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment is reversed, onthe law, without costs, petition granted, determination annulled and the Commissioner ofCorrections and Community Supervision is directed to expunge all references theretofrom petitioner's institutional record and to reimburse the mandatory surcharge topetitioner.
Footnote *: Petitioner's failure torequest witnesses at the hearing is not dispositive inasmuch as the Hearing Officer hadnotice of his objection but nevertheless failed to further investigate the matter todetermine whether proper procedures were followed (see Matter of Crook v Fischer, 91 AD3d 1076, 1077[2012]; see also Matter of Garcia v LeFevre, 64 NY2d 1001, 1003 [1985];Matter of Holloway v Lacy, 263 AD2d 740, 741 [1999]; Matter of Pattersonv Coughlin, 198 AD2d 899, 900 [1993]).