Failure to Allow Inmate to Observe Search of Cell Required Annulment​

In annulling a disciplinary determination because petitioner was not allowed to observe the search of his cell, the Third Department wrote:

Department of Corrections and  Community Supervision Directive No. 4910 [V] [C] [1] provides, as relevant here, that “[i]f the inmate is removed  from quarters prior 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 security staff member, the inmate presents a danger to the safety and security of the facility, the inmate shall be  removed  from the area and  not allowed to observe the search.” At the disciplinary hearing, petitioner raised his objection that he  was  improperly removed  from the area of his cell despite his request to observe the search. Absent  any  indication that a  supervisory staff member determined  that petitioner posed  a  danger  to the security of the facility, we  cannot  conclude  that the Department  of Corrections and Community Supervision complied with Directive No. 4910.  Matter of Mingo v Chappius, 514655, 3rd Dept, 5-2-13