Rivera v. Smith

Boomer and Moule, JJ. (dissenting).

In our view there are no special circumstances to except this case from the general rule that all inmates, even those with religious objections, are subject to frisk searches by correction officers of the opposite sex (see Madyun v Franzen, 704 F2d 954). The mere presence of a male correction officer during the random pat search of petitioner does not render this otherwise lawful search repugnant to either section 610 of the Correction Law or section 3 of article I of the New York Constitution. The lawfulness of such a search should not depend upon whether the officer has reasonable cause to believe that the inmate possesses contraband or that emergency circumstances justify the search. “The state has a substantial interest in having its women guards perform frisk searches on male inmates. Clearly frisk searches are an integral part of prison security and an important part of a prison guard’s duties” (Madyun v Franzen, 704 F2d 954, 960, supra; cf., also, Matter of Brown v McGinnis, 10 NY2d 531). (Appeal from judgment of Supreme Court, Wyoming County, Conable, J. — art 78.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ. [118 Misc 2d 921.]