August 8, 2006

Sheriff Timothy Howard
Erie County Sheriff’s Office
10 Delaware Avenue
Buffalo, New York 14202
Re: In the Matter of Ralph Phillips
Dear Sheriff Howard:
The Commission conducted an investigation into the April 2, 2006 escape from custody
of Ralph Phillips, an inmate of the Erie County Correctional Facility. Commission staff
conducted an extensive investigation spanning four months, including review of a host of reports,
a large volume of records and all of the written statements relevant to this event. In addition,
Commission staff conducted interviews with Erie County Sheriff’s Office, Jail Management
Division and Erie County Correctional Facility uniformed and civilian personnel. The enclosed
report includes the Commission’s account of the events and conditions in the Erie County
Correctional Facility on April 2, 2006 and its findings in this matter, followed by actions required
by your office and recommendations offered for your consideration.
This represents the Commission’s final report in this matter and as such it is subject to
New York’s Freedom of Information Law. You are required to act immediately to correct the
Minimum Standards violations and violations of law cited herein. The actions which you have
taken and any plan of future action to come into compliance shall be forwarded to the
Commission by September 30, 2006.
If you have any questions regarding this matter, please do not hesitate to contact me.
Sincerely,

Daniel L. Stewart
Chairman
cc:

Superintendent Donald Livingston

NEW YORK STATE COMMISSION OF CORRECTION
Albany, New York

In the Matter of the Escape of Ralph Phillips
an Inmate of
the Erie County Correctional Facility

August 2006
DANIEL L. STEWART
Chairman
FREDERICK C. LAMY
Commissioner
FRANCES T. SULLIVAN
Commissioner

PREFACE
Pursuant to Article 3, Sections 45(2) and 45(3) of the New York State Correction Law,
Commission staff conducted multiple site visits to the Erie County Correctional Facility to
investigate the escape of Ralph Phillips on April 2, 2006.
This report details the investigation conducted by Commission staff members Deane
McGeary and William Benjamin and was compiled and written under the direction of Donald
Nadler, Deputy Director of Operations and James Lawrence, Director of Operations. It recounts
and explains the events of the incident and presents the Commission’s findings, the resulting
required actions and recommendations.

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I.

EXECUTIVE SUMMARY
On April 2, 2006 at approximately 5:00 a.m., 16 inmates arrived at the Erie County

Correctional Facility kitchen from the ‘Kilo’ housing area. Inmate Ralph Phillips was one of the
inmates scheduled for work that morning. Between his arrival in the kitchen at 5:00 a.m. and
approximately 5:14 a.m., Phillips climbed on top of the large storage coolers located within the
front storage room and exited through a breach in the roof that had been previously cut.
Investigators believe that Phillips made the breach in the metal roof over time by splitting a seam
in the roof with a ‘bar-type’ commercial can opener, then tearing the roof open to create a hole
approximately two feet square. Once this was accomplished, a layer of gypsum board roofing
material was broken out and the rubber roof membrane was cut. Phillips then traversed the
facility roof to an area proximal to the pitched skylight above the training Lieutenant’s office and
then, as evidenced by deeply compressed footprints in the ground, climbed down and/or leaped to
the ground. Video surveillance cameras indicate that Phillips then crossed the visitor’s parking
lot and proceeded toward Walden Avenue, bypassing an outdoor security post while the post
officer was on a break but not relieved.

While traversing the facility roof, Phillips triggered a valid, (later verified), roof mounted
motion detection alarm. Based on an independent review of the facility’s digital alarm records,
this alarm was acknowledged and deactivated by facility control room staff without notifying
appropriate personnel. The rooftop microwave motion detection system was in poor repair and
the subject of multiple malfunction complaints by staff, malfunction that were confirmed by the
private electrical contractor following Phillips’ escape but were never addressed by the facility
administration or the Sheriff’s Department. At the time of the escape, it did, however, detect
Phillips on the roof of the facility.

At approximately 5:15 a.m., Civilian Cook Kevin Webster noted that Phillips was not
performing his assigned kitchen duty and began a search of the kitchen area. Following an
extensive search of the kitchen, food service personnel reported Phillips missing from the
kitchen. This report triggered a facility response including an emergency lock-down and
population count at 5:40 a.m., followed by internal and exterior facility searches. Notification to

administrative, Sheriff’s Office Patrol Division , local police department and State Police Troop
‘A’ occurred at 6:12 a.m., one hour after Phillips was discovered missing.

By 7:15 a.m. search teams were dispatched to set up a perimeter that eventually extended
out five miles from the facility. The initial search and apprehension effort continued through the
morning then declined throughout the afternoon. Facility staffing and operations returned to
status quo levels by the beginning of the 3 p.m. to 11 p.m. shift. A multi-state regional law
enforcement alert was not issued until 2:40 p.m., April 2, 2006.

As of this report date, despite efforts by the State Police and multiple local jurisdictions,
Phillips has evaded recapture. Since the escape, Phillips is suspected to have committed several
burglaries and vehicle thefts. He is also the prime suspect in the June 10, 2006 shooting of State
Trooper Sean M. Brown in the town of Veteran in Chemung County.

It is not known for how long Phillips had been planning an escape or working on
breaching the facility roof, but based upon visual evidence, it appears to have been a prodigious
effort. As he had never been incarcerated in the facility before, it is unlikely that he was
previously aware of the physical plant’s vulnerability in this area. More likely is that Phillips’
negligent assignment as a kitchen worker, the obvious lapses in security and supervision in the
kitchen, and the ready availability of contraband tools and tool making materials in that locale
made an escape opportunity obvious.

Commission and sheriff’s investigators concur as to how the facility roof was breached.
This theory is supported by the fact that officers and sheriff’s investigators reported finding a
‘bar-type’ commercial can opener beneath the hole in the roof. Given the can opener consists, in
part, of a 16 to 18 inch long 1" square solid steel bar, it appears plausible that this piece of
equipment would be heavy and durable enough to force between and pry apart the roof seams.

The Erie County Correctional Facility, located on Walden Avenue in Alden, New York
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was constructed in 1985 to replace the County’s former correctional facility which is now owned
by the State of New York and operated as Wende Correctional Facility. The current design
capacity of 798 beds is the result of alterations and an expansion of the main facility, completed
in 2000 to relieve overcrowding conditions at the Holding Center in downtown Buffalo. The
facility was originally utilized for county level offenders sentenced up to one year and for
detaining parole violators, pending revocation proceedings. Since the expansion, the
Commission of Correction has granted variance relief from 9 NYCRR Part 7040 Maximum
Facility Capacity. Specifically, the Commission has incrementally approved the addition of beds
within certain established housing areas and by approving new temporary housing space. The
combined effect of the variance relief was an increase in the total facility capacity to 1,013 beds.
Whereas initially the operating authority of the facility emanated from the Erie County
Executive, Erie County consolidated operation of both facilities under the authority of the Erie
County Sheriff’s Jail Management Division in 2001. Currently, the Correctional Facility
incarcerates offenders including those awaiting trial, those sentenced to one year or less,
including intermittent sentences, alleged parole violators, civil commitments and federal inmates
boarded for revenue received from the U. S. Marshal’s Service.

Since at least August 2005, through the time of Phillips’ escape in April 2006 and
continuing through to the present, the Erie County Correctional facility has been severely and
chronically understaffed, in violation of 9NYCRR , Minimum Standards and Regulations for the
Management of County Jails and Penitentiaries ( hereinafter, Minimum Standards) Part 7041
Staffing Requirements. Due to the extent that such understaffing is aggravated by crowding, the
Sheriff’s Office is willfully operating the facility in an unsafe manner, in violation of NYS
Correction Law§500-c. Staffing shortages in 2005 and 2006 have routinely exceeded 100 staff in
the aggregate at both Erie County facilities, many of these supervisory or managerial positions. A
mandated security post in the kitchen locale at the Erie County Correctional Facility from which
Phillips escaped was vacant on April 2, 2006 due to these violations.

Ralph Phillips is a 44-year old male whose criminal history as an adult dates back to
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December 1978. From then until January 2006, a period of approximately 27 years, Phillips was
convicted of approximately 13 felony charges, seven misdemeanor charges and one violation. It
is estimated that these convictions resulted in Phillips having been periodically incarcerated
within local correctional facilities and Department of Correctional Services’ facilities for a
cumulative period of 24 years. His last prison incarceration began in November 1992 for a
sentence of 10 years to 20 years. Phillips was paroled November 18, 2005. His maximum
release date was August 12, 2012. The Division of Parole executed a warrant for his retaking and
detention on January 6, 2006. Phillips was a dangerous felon and a threat to public safety, which
was or should have been known to the Erie County Sheriff’s Office Jail Management Division.

The Commission investigation into the escape of Ralph Phillips from the Erie County
Correctional Facility revealed serious managerial and executive level operational policy and
procedure breakdowns of proportions which rise to the level of willful negligence and
professional incompetence. These include, but are not limited to, operation of a large jail
complex in an egregiously overcrowded condition without any action to relieve such conditions
of confinement; operation of those same facilities in a dangerously understaffed condition such
that correction officers and deputy sheriff vacancies have risen above 100 on occasion in
2005/2006; intentional abandonment of mandated security posts, particularly in security-sensitive
areas, including the area from which Ralph Phillips escaped; negligent and apparently arbitrary
inmate classification and housing area assignment adverse to the safety and security interests of
the facility, its staff and the public and in violation of state law and regulations; lack of exercise
of security management such that there is virtually no accountability up and down the line of
authority and responsibility for inmate security and supervision and contraband control in
sensitive areas, including the one from which the escape occurred; inadequate and ineffective
maintenance and use of facility alarm systems; multiple breaches of generally accepted security
protocols of inmates in correctional settings, all of these culminating in, and a proximate cause
of, the escape of an inmate the facility administration knew or should have known was a
dangerous felon, a threat to public and law enforcement safety, and who remains at large as the
prime suspect in the shooting of a New York State trooper subsequent to his escape.
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New York State Correction Law §500-b and Minimum Standards Part 7013 require newly
received inmates to be prudently classified as to their public safety and institutional security
threat and as to their service needs when determining where and under what restrictions and
supervision to house them. The total classification score for Phillips failed to reflect his entire
criminal history, a violation of Section 7013.8(c)(1). For the classification instrument item
pertaining to criminal history, Phillips received a score of four points. This would be the same
score that an inmate with one non-violent felony conviction would receive. Entries from his
criminal history indicating he was a career felony offender and misdemeanor offender who had
spent a cumulative total of 24 years in state prison were not acknowledged or scored. Had this
information been considered he would have received a score of 10 for this item alone which
would have resulted in a minimum total score of 18. Subsequently, this score would have
resulted in a maximum level security designation. Nevertheless, on February 3, 2006, Phillips
was transferred to and housed in a low-security dormitory reserved for largely unsupervised
kitchen workers with access to areas of the facility which were unsupervised by trained,
uniformed staff due to staff shortages. There is evidence to the effect that Phillips was afforded
such a transfer without any review or re-application of the regulations governing classification
and housing assignment in return for his withdrawal of grievance complaint(s) regarding
essential services such as food, grievance complaint(s) that likely would be appealed to the
attention of the Commission in Albany.

The kitchen area at Erie County Correctional Facility from which Phillips escaped was
unsupervised and unsecure. Between 15 and 24 inmates are routinely assigned as kitchen
workers depending upon time of day and level of meal preparation activity, which includes
preparation and delivery of 2,700 meals per day including special medical and religious diets.
Inmates regularly worked in a variety of food preparation areas, offices and storerooms with the
permission of civilian food service workers but largely unsupervised. Moreover, inmate workers
exercised unchecked access to such areas without the knowledge of civilian food service workers
and without any supervision for extended periods. One of these areas included a storeroom
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equipped with upright refrigerated units or coolers which extended up to the underside of the
kitchen roof and to which inmate workers had unfettered and unsupervised access. Two prior
incidents involving the unsupervised presence of inmate(s) atop the cooler units were
documented. The first occurred in May 2005 in which inmate(s) were found to be brewing and
consuming alcohol atop the cooler units. The second incident took place in February 2006
involving the same activity. Despite reports up the chain of command to the present Sheriff, no
action was taken to improve security in this area.

The failure of the Sheriff’s Office Jail Management Division to fill the mandated security
post in the kitchen virtually assured that there was no uniformed correction officer supervision
for these inmates. Commission investigators also found that facility policy failed to include
language directing any security staff to routinely tour the kitchen for purposes of assessing and
correcting inmate worker supervision issues and security related deficiencies. It was further
verified that post orders do not exist for line supervisors and watch commanders and neither have
never been tasked with the responsibility of touring the kitchen area. Moreover, the Commission
has verified that requests for filling of the mandated kitchen security post from the CSEA Local
815 have been made as early as February 1999 and as recent as until March 28, 2006 to no avail.
On October 18, 2005, the Commission issued a Directive to Erie County Sheriff Timothy
Howard citing his facilities as unsafe by reason of his failure to comply with state regulations for
minimum staffing and inmate classification. Sheriff Howard was ordered to reduce the
population of both Erie County facilities to bring inmate counts into line with the dangerously
reduced staffing level at the facility and to enable compliance with inmate classification
regulations. On November 21, 2005, Erie County agreed to a compliance plan in satisfaction of
the Commission's Directive for restoration and deployment of staff designed to restore mandated
security/inmate supervision posts which included the mandated post in the Correctional Facility
kitchen. The Sheriff in fact failed to comply with the agreed-upon plan, and only redeployed staff
to the required kitchen post after the escape of Ralph Phillips in April 2006.

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Based upon the findings of the investigation into the escape of Ralph Phillips, the
Commission concludes that the Erie County Correctional Facility, as presently led, organized and
managed by the Erie County Sheriff, is not a safe, secure or stable institution, nor is it sufficiently
capable of fulfilling its role in the public safety establishment of Erie County. The executive
leadership and management of the Erie County Sheriff’s Office negligently and wrongfully
caused a preventable public safety emergency in which an inmate entrusted to their custody
escaped and thereafter became the prime suspect in the shooting of a New York State Trooper.
Timely and compliant attention to the Actions Required as set forth in the Commission’s
investigation report is absolutely essential to public safety and will undoubtedly be the subject of
further Commission action.

II.

METHODOLOGY

This investigation was initiated as a result of the reporting of an escape incident involving
inmate Ralph Phillips by phone to the Commission’s Officer of the Day at approximately 8:00
a.m. on April 2, 2006. The New York State Commission of Correction received reportable
incident forms SCOC-011 and SCOC0-13 on April 2, 2006.

The information included in this report is based on investigative work conducted April 3,
2006 through July 27, 2006 which included a thorough review of:

•

Interviews conducted by Commission staff with the following Erie County
Correctional Facility staff and inmates:
Staff
Superintendent Donald Livingston

Correction Officer Matthew Dils

Chief Ronald Heist

Correction Officer Amy Kosinski

Captain Douglas Bienko

Correction Officer Mark Alderich

Lieutenant Daniel Leary

Correction Officer William Whalen

Lieutenant Charles Martina

Correction Officer David Padilla

Lieutenant Ruth Stroka

Correction Officer Thomas Bollman
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Lieutenant Marcia Dills

Correction Officer H. Bruce Franks

Sergeant Ronald Voll

Correction Officer Edward Harmon

Sergeant Timothy Love

Correction Officer Elizabeth Gilbert

Assistant Food Manager Joel Gregorio

Deputy Richard O’Neil

Cook Kevin Webster

Deputy John Biscotto

Cook Thomas Whalen

Inmates

•

Perry Turner

Mark Buffington

Raymond Keith

Ray Acker

David Valasquez

Gary Lang (post-release)

Facility records including but not limited to: facility policy, incident summary
and investigative documentation, written staff statements, facility logs, security
inspection sheets, classification records, grievance records, staff schedules,
training records, video documentation and alarm system data.

•

Erie County Sheriff’s Patrol Services Division records including but not limited
to: police reports, dispatch records and evidentiary records and photos.

•

Erie County work order and product specification documentation obtained
pursuant to subpoena from O’Connell Electric Company.

•

Alarm data analysis information and technical assistance solicited from Norment
Security Group Inc.

•

Product specification and technical assistance solicited from Southwest
Microwave Inc.

•

Inmate grievance and labor management meeting documentation subject to
subpoena from the Correction Officer’s CSEA Local 815, Erie Correction Unit.

•

Unsolicited correspondence from Sheriff’s Office employees.

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III.

INVESTIGATION

On April 3, 2006, Commission staff members Terrence Moran, William Benjamin and
Deane McGeary responded to the facility for purposes of providing technical assistance and
monitoring the initial apprehension efforts being undertaken by the Jail Management and Patrol
Services Divisions.

Satisfied that a proper response had been initiated by the Sheriff’s Office, Commission
staff turned their focus toward reviewing the measures taken to ensure the facility, specifically
the kitchen, was secure. In doing so, Commission staff viewed the temporary repairs of the roof
breach and toured the kitchen area. During the tour, Commission staff noted an excess of spare
or discarded metal equipment stored in the front storeroom. Much of this equipment, if
accessible to inmates, was capable of providing contraband tools or weapons and/or the material
to fashion tools and weapons, and consumed storage space that could otherwise be used for
routinely used equipment and food storage. This constituted a violation of Correction Law §500c, Custody and Control of Inmates and would later be determined to have facilitated Phillips’
escape. Based on this observation, Commission staff recommended that the facility immediately
remove any unused equipment from the kitchen, begin securing the storage area, close a second
breach in the roof found above the dishwasher, and fence off the area atop the coolers from
where Phillips appeared to have escaped.

By the afternoon of April 3, 2006, Commission staff began investigating the incident
itself. Commission investigators began a review of facility documentation related to the escape
up until that point and began interviewing inmates and facility staff. The investigation
continued over the course of the ensuing four months.

Facility Overview

The Erie County Correctional Facility, located on Walden Avenue in Alden, New York
was constructed in 1985 to replace the County’s former correctional facility which is now owned
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by the State of New York and operated as Wende Correctional Facility. The current design
capacity of 798 beds is the result of alterations and an expansion of the main facility, completed
in 2000 to relieve overcrowding conditions at the Holding Center in downtown Buffalo. The
facility was originally utilized for local offenders sentenced up to one year and for detaining
parole violators pending revocation proceedings. Since the facility expansion, the Commission
of Correction has granted variance relief from 9 NYCRR Part 7040 Maximum Facility Capacity.
Specifically, the Commission has incrementally approved the addition of beds within certain
established housing areas and by approving new temporary housing space. The combined effect
of the variance relief was an increase in the total facility capacity from 798 to 1,013 beds.
Whereas initially the operating authority of the facility emanated from the Erie County
Executive’s office, following the expansion, Erie County consolidated operation of both facilities
under the authority of the Erie County Sheriff’s Jail Management Division. Currently, the
Correctional Facility incarcerates offenders including those awaiting trial, those sentenced to one
year or less, including intermittent sentences, alleged parole violators awaiting parole revocation
proceedings, civil commitments and federal prisoners boarded for the U.S. Marshal’s Service in
order to generate county revenue.

Since at least 2005, through the time of Phillips’ escape in April 2006 and through to the
present, the Erie County Correctional facility has been severely and chronically understaffed in
violation of Minimum Standards Part 7041, Staffing Requirements such that multiple mandated
security posts have been vacated, abandoned or abolished, including the security post in the
kitchen locale from which Phillips escaped.

Phillips’ Criminal Background and Incarceration History

Ralph Phillips is a 44-year old male whose criminal history as an adult dates back to
December 1978. From then until January 2006, a period of approximately 27 years, Phillips was
convicted of approximately 13 felony charges, seven misdemeanor charges and one violation. It
is estimated that these convictions resulted in Phillips having been intermittently incarcerated
within local correctional facilities and Department of Correctional Services’ facilities for a
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combined period of least 24 years. His last prison incarceration began in November 1992 for a
sentence of 10 years to 20 years. Phillips was paroled November 18, 2005. His maximum
release date was August 12, 2012. The Division of Parole executed a warrant for his retaking and
detention on January 6, 2006. Phillips was a dangerous felon and a threat to public safety and
this was known or should have been known by the Erie County Sheriff’s Office.

Phillips’ Admission to the Erie County Correctional Facility

Phillips was not arrested for new charges. Therefore, in accordance with Erie County
Sheriff’s Office Jail Management Division’s practice in early 2006, parole officers were required
to deliver parole violators directly to the Erie County Correctional Facility. Phillip’s admission
to the Erie County Correctional Facility occurred in that manner on January 6, 2006.

During the admission process, an initial screening and risk assessment was completed for
Phillips. This assessment was unremarkable, noting that Phillips need only be assigned to the
Classification Unit (intake segregation) with no restrictions. However, following his admission,
Phillips was not assigned to segregated initial classification, rather placed directly in Delta Unit,
a secure, individual-cell general population housing area. Such a housing assignment was in
violation of Section 7013.8(a) and conflicts with facility policy 05-09-00 which defines
classification housing as special (segregated) housing used for the purpose of initial classification
or reclassification procedures. This routine violation of Minimum Standards was and continues to
be a de facto practice at Erie County Correctional Facility, because the facility is so crowded that
there is no availability of segregated intake housing while trained classification staff study inmate
conditions and backgrounds. Consequently, new inmates are placed in any available housing that
appears to be commensurate with their security risk. Classification assessment and security threat
scoring occurs after housing placement at the Erie facility, not beforehand, as required by state
regulations.

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Classification Procedures and the Classification of Phillips

Commission staff examined classification procedures during interviews of the
Classification Lieutenant and the administrators. The following deficiencies in policy,
procedures and facility staff practices were discovered, all of which constitute violations of
Minimum Standards or state law:

Phillips was classified five days after reception on January 11, 2006 and as a result,
remained in Delta Unit. The classification instrument utilized by the facility is a point scale
model. His total classification score was 12. However based on this score, Commission staff
were unable to determine from this scoring whether Phillips was required to be designated a
minimum or medium security inmate. It was noted that the classification instrument scoring
criteria, (zero to 15 points), was the same for both minimum and medium security designations.
Facility policy fails to provide guidance to classification staff with respect to determining the
security designations within the entire scoring range, a violation of §7013.3(a)(2). The
Classification Lieutenant and the Superintendent claimed that a ‘typographical’ error existed on
the form. However, when questioned as to what scoring range determined the medium level
designation, a definitive answer could not be given. Commission staff were told by managers
and staff that only two security classification designations exist at the facility. However, when
questioned, facility managers gave conflicting accounts regarding which designation other than
‘minimum’ existed. As a practical matter, it appears there are multiple security designations
linked to sentence durations and ad hoc determinations of individual inmate supervision
requirements:

•

Inmates scoring 15 or less, with less than 90 days to serve and with no discipline
record and no detainers are eligible for housing in Yankee Building, a low security
setting;

•

Inmates scoring 15 or less, sentenced to six months or less with no discipline
record and no detainers are eligible for housing in Tango Building, a low security
setting;
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•

Male inmate kitchen workers are assigned to Kilo dorm.

•

Housing pods, A, B, C, D are deemed more secure and are used for housing
inmates including, but not limited to, federal inmates and inmates subject to
disciplinary segregation regardless of classification score.

•

Inmates that demonstrate problems adjusting to dormitory housing are routinely
moved to individual cell podular housing, but not necessarily the more secure A-D
pods.

•

Inmates with medical or mental health special needs and those identified as likely
to be victimized in general population are assigned housing in the Medical
housing area.

As dormitory housing provides inmates with 24 hour access to one another, such housing
is generally reserved for inmates of lower security designation than a facility’s maximum level.
This classification paradigm is viewed by the Commission as a requirement of NYS Correction
Law §500-b and is a generally accepted practice by local correctional facilities statewide. For
this reason, the Commission limits the percentage of dormitory housing areas local jurisdictions
may construct. Such a requirement is not observed by classification and administrative staff at
the Erie County Correctional Facility. With exception to Yankee and Tango buildings, Medical
housing, Disciplinary Segregation housing and Kilo dorm, once admitted to the facility, inmates
are readily assigned to housing areas based primarily on where vacancies exist. Facilities (such
as those in Erie County) that are crowded beyond their capacities to operationally adjust to
variation in inmate population risk, typically resort to determining housing assignments in this
fashion, a consequence that classification law and associated regulations are expressly intended
to prevent. Once this eventuates, facility administrations often violate the intent of their own
policy (and of law) by having to commingle security designations within housing areas. Other
than for inmates that demonstrate problems adjusting to dormitory housing, formal and objective
criteria for classification of inmates according to security management need do not appear to
exist at the Erie County Correctional Facility. Failure to define such classifications and determine
appropriate housing based on formal and objective criteria violates §7013.8(d) and Correction
Law §500b(7)(a). This is directly attributable to the fact that the facility is routinely called upon
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to house more than 200 inmates above its design capacity together with significant cohorts of
inmates held for trial or parole revocation, contrary to its design intent. These conditions played
an important role in the improper classification of Phillips and hence his escape. Phillips’
classification was never definitively established within limitations of various housing settings
and consequently changeable without regard to security management need.

The total classification score for Phillips failed to reflect his criminal history, a violation
of Section 7013.8(c)(1). For the classification instrument item pertaining to criminal history,
Phillips received a score of four points. This would be the same score that an inmate with one
non-violent felony conviction would receive. Entries from his criminal history indicating he was
a career felony offender and misdemeanor offender who had spent a cumulative total of 24 years
in state prison were not acknowledged or scored. Had this information been considered he would
have received a score of 10 for this item alone and which would have resulted in a minimum total
score of 18. Subsequently, this score would have resulted in a maximum level security
designation. Nevertheless, on February 3, 2006, Phillips was transferred to and housed in a lowsecurity dormitory reserved for kitchen workers who had routine access to unsupervised sectors
of the facility when on work assignment.

Commission staff investigated as to whether a classification review took place prior to
Phillips’ February 3, 2006 assignment to Kilo dorm, the housing area reserved for kitchen
workers. Upon reviewing Phillips’ classification record, Commission staff could find no
indication that a classification review was prompted or occurred in accordance with §7013.9.
Section 7013.9 requires a classification review to be conducted when one of the following
conditions occur:

•

The inmate is involved in a serious unusual incident or exhibits adjustment
problems which threaten his/her safety or the safety, security or good order of the
facility.

•

A written request, including justification(s), is made by facility staff to alter or
review the inmate’s classification status based on new information or exhibited
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positive or negative behavior.
•

The facility medical director discloses relevant information about the inmate
pursuant to Section 7013.10 that has not already been considered in determining
the inmates’ classification status.

The only written record that exists is in the housing location history which indicates that
Phillips was transferred from one of the “secure” inner pods, Delta, to Kilo Dorm on February 3,
2006. There is nothing in the record that would invoke a classification review for Phillips, even
though his classification was effectively lowered without such a review on February 3, 2006.
This record does in fact indicate that Phillips was transferred due to “operational requirements.”
The classification lieutenant stated to Commission investigators that he recalled Phillips
submitted a written request to work in the kitchen, citing a “problem with his diet.” A copy of
this request should have been included in the classification record pursuant to §7013.12(b)(8). It
was not. Nevertheless, his request in and of itself should not have resulted in a change in his
classification status given his extensive criminal history combined with a lack of familiarity to
facility staff. Absent an institutional record indicating a history of positive behavior, which
might offset the risk associated with being a career offender, the decision to change the
classification status of an unknown career offender demonstrates poor judgement and
unreasonably poor discretion and, as such, is contrary to the requirements of Correction Law
§500-b(7)(a).

Due to the misapplication of classification theory and practice with consequent violations
of Correction Law and state regulations set forth herein, Commission staff inquired as to the
training that was received by the classification Lieutenant. Commission staff was advised that
the Lieutenant’s training consisted of being issued lesson plans to study and then given the
classification final exam. Chief Ronald Heist reported that he was the instructor and maintained
that this instructional approach was approved by staff formerly employed by the Commission of
Correction. Chief Heist’s anecdotal assertion of Commission approval notwithstanding, the
Commission of Correction routinely disapproves such instructional practices, especially for
courses that are intimately related to population security management within a correctional
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facility. Failure to provide staff with Commission-approved training when their duties include
the administration and implementation of classification procedures is a violation of Section
7013.11.

Section 7013.3(c) requires the Chief Administrative Officer review classification policies
and procedures on an annual basis. Review of facility policy indicates that the current policy has
an effective date of September 14, 1998. While Section 7013.3(d) prescribes a written format for
purposes of documenting annual policy revisions, the policy indicates that it has remained
virtually unchanged since its development in 1993 and further, has not been reviewed by the
Chief Administrative Officer since 2003. Commission staff noted a minimum of two changes
that should have resulted if a genuine review of the facility’s classification policy and procedure
occurred. Such changes include:

•

The policy still references the use of pedigree report form CF-11-86 for
documenting information required by Part 7002 Admissions and Correction Law.
This form was supplanted when the facility implemented the computerized Jail
Management System.

•

The ‘typographical error’ previously noted on the classification instrument should
have been corrected and a score range established for medium level security
designations.

Assignment of Phillips as a Kitchen Worker

During the course of the investigation, multiple facility staff conveyed their impressions
to Commission staff in interviews that the decision to assign Phillips to kitchen worker status
was the outcome of a grievance he submitted relating to food portioning. The significance of a
connection between an inmate grievance and a housing area transfer is rooted in one of the
intended purposes of the grievance program. Specifically, proper implementation and follow up
with facility grievances can help facility administrations identify and subsequently correct policy
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or procedural problems. Pacifying inmates for purposes of convincing them to withdraw or
accept determinations unrelated to the substantive complaint not only serves to disguise the
existence of problems but also can contribute to the facility having to process a greater number of
frivolous or even baseless grievances.

Therefore, Commission staff initiated an inquiry to ascertain whether Phillips did in fact
submit a grievance and whether this grievance resulted in his assignment to kitchen worker
status. The activities and findings resulting from this inquiry include the following:

•

On April 14, 2006, Commission staff requested copies of any and all written
complaints and grievances that may have been submitted.

•

During an interview occurring April 18, 2006, in response to being questioned
whether or not Phillips ever complained about food that he had received, Chief
Ronald Heist stated that Phillips had not done so.

•

On April 19, 2006 Commission staff interviewed Officer Mark Alderich, the
officer reported to have been working Delta Unit the day that the complaint
allegedly originated.

•

Officer Alderich confirmed that Phillips had taken issue with the amount of
cheese he received with one of his meals. Shortly thereafter, Alderich received a
copy of a grievance that was submitted by Phillips and was directed to provide an
explanation as to what had transpired. Within a week of submitting this
grievance, Phillips was on the transfer list to the kitchen. A copy of Officer
Alderich’s response was forwarded to the CSEA Local 815 union office for
archiving.

•

As the Commission had yet to receive a copy of any complaints or grievances
from the administration pursuant to the April 14, 2006 request and since Chief
Heist denied that Phillips had ever complained about food he received,
Commission staff requested a copy of Officer Alderich’s statement from CSEA
Local 815 officials.

•

On April 24, 2006, the Commission received a copy of the grievance submitted by
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Phillips from CSEA Local 815, a memo from Chief Heist to Officer Alderich
requesting a written response to the allegations made in the grievance, and a copy
of Officer Alderich’s written response.
•

On May 3, 2006 while visiting the Correctional Facility, Commission staff
received a copy of the grievance and a memo from Chief Heist to Phillips
advising that he had failed to request an action to be taken and that pursuant to 9
NYCRR §7032.4(f), he had two days to supply sufficient information.
Commission staff were informed that the grievance was temporarily placed
separate from other grievance files into a folder containing grievances that were
returned to the grievant for various filing defects.

•

A written grievance determination was never issued by the grievance coordinator
for this grievance.

It should be noted that, if a grievance is submitted that articulates a complaint to a degree
sufficient for the grievance coordinator to understand, then it must be processed and a written
determination issued. Failure to specify an action requested is not grounds for returning the
grievance unprocessed and is a violation of §7032.4(h). If necessary, such information shall be
obtained through investigation of the grievance pursuant to §7032.4(f). It is likely that since the
evidence in support of Phillips’ grievance was a food tray long since sent for disposal, proper
handling of the grievance would have justified denial.

Moreover, grievances not satisfactorily resolved at the facility level are appealed to the
Commission for appellate decision by the Commission’s Citizens’ Policy and Complaint Review
Council. Due to Erie County’s recent history of financial difficulty and complaints associated
with breakdowns in essential service delivery, food service grievances were a potentially
sensitive issue. Moreover, the Commission has repeatedly cited the Sheriff and the Jail
Management Division to be in continuous violation of Minimum Standards, Part 7032,
Grievance Program, and had summoned Jail Management Division managers to Albany in
December 2005 to a working hearing to redress grievance violations, and had Erie County’s
inmate grievance program under close scrutiny. Superintendent Livingston, Chief Heist and
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Lieutenant Leary maintain that the submission of Philips’ grievance and subsequent assignment
of Phillips to Kilo dorm was ‘coincidental.’ The Commission found that a substantial body of
circumstantial evidence exists that strongly and creditably argues otherwise:

•

Phillips submitted this grievance on January 29, 2006.

•

On February 2, 2006, following some investigation of the grievance, Chief Heist
returned the grievance “unprocessed” citing it as incomplete.

•

On February 3, 2006, Phillips, a career offender relatively unknown to facility
staff, is transferred to Kilo dorm purportedly based upon his written request to
work in the kitchen which cited a “problem with his diet.” Additionally, this
decision occurred absent a facility staff recommendation for a transfer.

•

On June 21, 2006, Commission staff interviewed former inmate Gary Lang, a selfdescribed friend of Phillips who worked in the kitchen with him. Lang was
queried regarding his knowledge of the circumstances that led to Phillips’
assignment to the kitchen. Lang stated to Commission staff that Phillips told him
that he wrote a grievance regarding the short food portions served at the
correctional facility and that Chief Heist called Phillips to his office to offer him a
deal, specifically, if he dropped the grievance he would be assigned to work in the
kitchen.

•

During a June 22, 2006 interview with Superintendent Livingston, Chief Heist
and Lieutenant Leary, Commission staff were advised that while such was not the
case with Phillips, rather than adjusting food service procedures, assignment to
the kitchen has been utilized in the past to resolve food service grievances, e.g.,
inmate Arthur Delaney who complained about difficulty obtaining a religious diet
who was reassigned as a kitchen worker in satisfaction of his grievance.

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Kitchen Layout and Operation

As depicted above, the kitchen is composed of seven distinct areas: two offices, an inmate
bathroom, the front storeroom, the food preparation area, the back storeroom and the dishwasher
room. The dishwasher room and the back storeroom have doors leading to the main hallway.
Each of these doors can be secured to prevent unauthorized access (by inmates) to the kitchen
from the main hallway. However, during prior visits, Commission staff have observed the door
between the dishwasher and the main hallway open during times when it appeared unwarranted.
-20-

Kitchen staff reported that this door was routinely left open when trays were being washed but
secured during down times. Inmates working in the kitchen reported to Commission
investigators that staff would also secure the door if they observed inmates in the dishwasher
room fraternizing with inmates in the hallway. The back storeroom door to the main hallway is
only opened during food tray delivery and for trash removal. The practice of leaving doors open
is contrary to generally accepted good correctional practice and provides opportunities for
inmates to access unauthorized areas and to pass contraband, with attendant breaches of safety
and security, a violation of Correction Law §500-c. The generally negligent and lax approach to
facility security evidenced by these lapses was a causative factor in Phillips’ escape.

Both the front storeroom and the back storeroom can be secured to prevent unauthorized
access by inmates from the food preparation area. Both inmates and staff indicated that the front
storeroom is only opened when a staff member is present to supervise inmates in that area. The
same cannot be said for the back storeroom. Based on the interviews conducted, it is evident that
depending on the individual civilian cooks and number of civilian cooks working the kitchen,
inmates had varying degrees of access to the back storeroom including:

•

Under direct supervision of kitchen staff;

•

With permission from kitchen staff, but not necessarily supervised; and

•

Unchecked, unsupervised access.

Moreover, the array of coolers in the back storeroom clear the ceiling/roof areas breached by
Phillips by about 60" and are used for storage of boxes above, suitable for various arrangements
into blinds.

A staff break room is located between the food preparation and serving area and the main
hallway. The break room has two doors, one to the main hallway and one to the kitchen. The
door between the main hallway and the staff break room is routinely left unsecured. To ensure
that inmates do not access the kitchen from the main hallway via the break room, the door
between these two areas is secured.
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Each day, between the hours of 5:00 a.m. and 7:00 p.m., between 15 and 24 kitchen
workers are present in the kitchen at one time depending on scheduled activities and the type of
meals being prepared. Generally the number of inmates assigned increases as the day progresses
and then decreases following delivery of the evening meal. Monday through Friday, female
kitchen workers are utilized between 5:15 a.m. and 6:30 a.m. to prepare the breakfast meal.
Following the breakfast meal, female kitchen workers are returned to housing and male kitchen
workers begin working in the kitchen until closing. On weekends only male kitchen workers are
utilized. Commission staff were informed during interviews that for the weekend breakfast
meals the individual male kitchen workers were scheduled for early arrival on either Saturday or
Sunday. Generally, if an inmate was not scheduled to work Saturday morning, he was scheduled
for Sunday morning. This scheduling practice was implemented for purposes of letting kitchen
workers share the burden of having to wake up early on weekends. However, this practice also
permitted inmates to predict whether they would be called to work early on any Sunday.

On Sunday, April 2, 2006, 16 kitchen workers were scheduled and arrived in the kitchen
to work at 5:00 a.m.. Inmates are expected to perform a variety of duties centered around the
following functions: 1) food storage; 2) food processing and preparation; 3) food tray preparation
and delivery; 4) food service equipment sanitation; and, 5) kitchen area sanitation and trash
removal. These duties are assigned at the discretion of food service personnel. The criteria used
for selection is a subjective combination of the following factors; inmate skill sets, inmate
seniority working in the kitchen and general cooperation working with individual kitchen staff.
During down times, kitchen workers were generally able to lounge in areas throughout the
kitchen including the back storeroom at times.

The food service civilian workforce consists of five cooks who report to the Assistant
Food Service Manager. For matters regarding food purchases and food preparation, the Assistant
Food Service Manager reports to the Food Service Manager who is located at the Holding
Center. For all other matters, this position reports to the Correctional Facility Captain. The food
service personnel work schedules can result in there being as many as five or six staff scheduled
during the week and three on weekends. However, after factoring in the use of leave time and
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the facility imposed minimum staffing requirement of one cook at all times, the kitchen rarely
operates at this maximum staffing level. The Assistant Food Service Manager has the discretion
to flex work schedules to avoid overtime and maximize staff coverage over the 14 hours per day
that the kitchen is open. Nevertheless, facility documentation indicated that periods ranging from
3 to 12 hours daily existed in which there is only one cook present.

In addition to preparing an average of 2700 meals per day, including special meals,
serving them in approved quantities at the correct temperature and distributing them to housing
areas in a timely manner, facility policy 05-08-00 charges kitchen staff with the responsibility of
maintaining “direct active supervision” of kitchen workers. Facility policy also requires all new
employees to undergo 40 hours of orientation training. As compared to the sixteen classroom
hours of security and supervision training that correction officers receive, food service personnel
receive a total of one to two classroom hours of orientation instruction. Of this time, only a
portion of it is devoted to security and supervision. The balance of orientation training is on the
job training. The kitchen staff interviewed report that a majority of their security and supervision
training was passed down from other food service personnel, either directly or by learning from
their mistakes.

Commission staff found that, from time to time, memos have been issued to food service
personnel relating to security and supervision of the kitchen area. Generally, these would pertain
to securing storeroom doors and ensuring food service personnel supervise inmates when they
are in the storerooms. As a practical matter, these memos and facility policy 05-08-00
(supervision) served no purpose when food service staffing levels were permitted to be reduced
to one cook. Due to the poor sight lines resulting from the kitchen layout, it is physically
impossible for one person to supervise food retrieval from storage areas, while simultaneously
monitoring food preparation, food tray preparation and the activities of idle kitchen workers.
Furthermore, on a daily basis, inmates must be escorted to the rear exterior vehicle sallyport area
to deliver trash to the trash compactor. When only one cook was scheduled, performance of this
task meant securing the kitchen workers in the kitchen under no supervision while escorting
workers to the trash compactor. Providing that adequate security and supervision policy existed
-23-

and that the food service personnel received adequate security and supervision training, it would
be reasonable to fault food service personnel for abandoning supervision of kitchen workers.
However, Commission staff believe that for some food service personnel, the routine of
permitting inmates unsupervised access to various areas within the kitchen was the likely result
of food service personnel having to prioritize where their presence was needed when
simultaneous food service functions were being performed by inmates. The alternative would be
for the food service personnel to disrupt the work flow and jeopardize the timely delivery of
meals to housing areas. For other food service personnel, negligence properly describes their
conduct. Management reported to Commission staff that some cooks have been observed sitting
in the cook’s office, which had windows covered with paper to prevent visibility from the back
storeroom, rather than supervising the kitchen workers. No formal corrective action was taken
rather only episodic verbal prompting. Other than these memos, there was no facility policy
pertaining to kitchen security procedures. The Commission acknowledges that the issuance of
staff memos may be useful for implementing procedural changes or reiterating existing facility
policy. It is not, however, a suitable substitute for facility policy. The lack of suitable policy
regarding proper facility safety security and supervision is a violation of Minimum Standards
§7003.1 and 7003.4.

Commission staff also noted that facility policy failed to include language directing any
security staff to routinely tour the kitchen for purposes of assessing and correcting worker
supervision issues and security related deficiencies. It was further verified that kitchen post
orders do not exist for line supervisors and watch commanders and neither have ever been tasked
with the responsibility of touring the kitchen area. Notwithstanding these findings, the
Commission hesitates to state conclusively that security staff have not shared concern toward
security deficiencies in the kitchen area. The Commission has verified that requests for a kitchen
security post from the CSEA Local 815 have been made as early as February 1999 and as
recently as March 28, 2006. Union officials indicated that these requests have been based on line
staff observations of security and supervision practices occurring within the kitchen.

The Commission of Correction finalized a Position and Staffing Analysis for the
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Correctional Facility in February of 2005. This analysis mandated that a security post be
maintained in the kitchen. Specifically, an allocation was made to ensure security coverage
existed between 4:00 a.m. and 8:00 p.m. This determination was based on the following:

•

The facility capacity is now 1,013 beds with variances resulting in a 250%
increase in work product over its original design capacity of approximately 400
inmates;

•

The incorporation of the front storeroom into the kitchen complex effectively
displaces a staff member to this room whenever inmates are present and reduces
the sight lines within the kitchen;

•

The classification of inmates assigned to kitchen worker positions had changed to
include unsentenced (trial) inmates;

•

The number of kitchen workers assigned to the kitchen had increased to as many
as 24 at one time;

•

The Commission’s experience with incidents statewide is replete with the use of
kitchen equipment and utensils as weapons and as a source of contraband tools
and kitchen workers at the Correctional Facility would have access to just such
equipment and utensils, often without supervision;

•

The fact that the ratio of food service personnel to kitchen workers had been
decreased.

Since implementation of the Position and Staffing Analysis, the facility administration
has failed to deploy staff to the kitchen security post, a violation of Minimum Standards Part
7041 Staffing Requirements. Deployment to this position requires an allocation of 3.62 full time
equivalent staff. It was evident that the administration has been reluctant or was not authorized
to draw from the existing staff resources to fill these positions.

Phillips’ Escape

Between his arrival in the kitchen at 5:00 a.m. and approximately 5:14 a.m., Phillips
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climbed on top of the large storage cooler located within the front storage room and exited
through a breach in the roof that had been previously cut. Investigators believe that Phillips
made the breach in the roof over time by splitting a seam in the roof with a ‘bar-type’
commercial can opener, then tearing the roof open to create a hole approximately two feet square.
Once this was accomplished, a layer of gypsum board roofing material was broken out and the
rubber roof membrane was cut. Phillips then traversed the facility roof to an area proximal to the
skylight above the training Lieutenant’s office and then, as evidenced by deeply compressed
footprints in the ground, climbed down and/or leaped to the ground. Video surveillance cameras
indicate that Phillips then crossed the visitor’s parking lot and proceeded toward Walden
Avenue, bypassing an outdoor security post while the post officer was on a break but not
relieved.

It is not known for how long Phillips had been planning an escape. Based upon visual and
physical evidence, it appears to have been a prodigious effort. A Buffalo News report indicated
that he had talked about the escape with former inmate Gary Lang. When Commission staff
interviewed Lang, he claimed that he had no knowledge of Phillips’ plans. Commission staff are
not inclined to believe that Phillips coordinated an elaborate escape plan beginning with the
manipulation of assignment to a worker position. As he had never been incarcerated in the
facility before, it is unlikely that he was previously aware of the physical plant’s vulnerability in
this area. More likely is that Phillips’ negligent assignment as a kitchen worker, the obvious
lapses in security and supervision in the kitchen, and the ready availability of contraband tools
and tool making materials in that locale made an escape opportunity obvious. In any case,
Phillips developed an inordinate level of trust by the food service personnel. Interviews of
inmates and civilian staff reveal that Phillips was characterized by inmates and facility staff to be
a relatively quiet inmate who was mechanically inclined and very competent in completing tasks
assigned by food service personnel. Phillips was also regularly assigned to a multitude of duties
spanning a wide range of Food Service Department and kitchen functions. He was described as
willing to volunteer and cooperate fully with the food service staff, and was regularly relied upon
to perform tasks differing from his routine duties throughout the kitchen on an as needed basis.
This took him into virtually every area of the kitchen, including areas not routinely accessible to
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other inmates and areas routinely unsupervised by kitchen staff.

Given the trust he had engendered among the civilian staff and the absence of any trained
uniformed supervision or security procedures for the area, Phillips was able to either collect or
make an impressive array of tools preparatory to his escape. He fashioned a metal grappling hook
with homemade rope which was left behind, apparently unneeded. The ‘bar-type’ commercial
can opener Phillips used is constructed in part of a 16 to 18 inch-long 1" square solid steel bar, a
piece of equipment heavy and durable enough to force between and pry apart the roof seams.
Also found was a can lid that was bent 180 degrees at one end to form a rounded edge that was
safe to grip. Several such instruments used in succession could have cut the gypsum material and
the rubber roof membrane. It should be noted that many such can lids were reported found atop
the cooler by facility staff who first responded, but only one lid found its way into the evidence
retained by Sheriff’s Office investigators, calling this aspect of the internal investigation into
question. A single can lid alone would not retain a sufficient cutting edge to cut through the
roofing material.

Lids removed from canned goods have long been recognized as threats to safety and
security in jails and prisons, such that elaborate precautions to keep them out of inmate hands are
routine. Commission investigators were shown an upright mailbox similar to that the United
States Postal Service situates in public for mail collection, located in the kitchen area.
Management referred to this as a ‘secured’ trash container that was intended to be used for staff
to discard trash that could be fashioned into contraband. The food service personnel were aware
of the intended purpose of this container but remarked that the security staff did not empty it
when it was full so alternative procedures had to be developed. Therefore, food service
personnel began a procedure whereby can lids were placed in an empty can and then brought to
the trash compactor. The problem with this procedure was that can lids are not secured or
accounted for pending placement in the compactor. Moreover, the inmate given the task of
disposing of the can lids was none other than Gary Lang, an associate and arguably a confederate
of Ralph Phillips, who had previously escaped from the Steuben County Jail. During site visits,
Commission staff made multiple requests to view the contents of the secured trash container.
-27-

After two weeks, a key was located to open the padlock on the container. Commission
investigators were told that the key was on the second shift sergeant’s key set. Commission staff
were assured that a copy of the key would be made and attached to the kitchen officer’s key set,
(since sergeants rarely, if ever, appear in the kitchen). On June 22, 2006, during a follow-up site
visit, the officer (now) assigned to the kitchen was unable to open this container, citing he did not
have a key. This kind of security incompetence is pernicious and, taking multiple lapses as a
whole, invites calamities such as an escape.

The lack of inmate worker supervision combined with the unwarranted trust bestowed
upon Phillips provided ample opportunity for him to access the top of the coolers during the
many extended visits necessary to breach the roof. He was also readily capable of concealing his
activities because the top of the coolers have been used to store light-bulb boxes, boxed dry
goods, rags, food trays, spare metal parts and kitchen equipment. Many staff interviewed
reported no significant changes in the appearance of the top of the coolers when in fact Phillips
had arranged boxes to form a blind around the area under the roof breach. The well-known
failures of uniformed staff and supervisors to periodically inspect secluded areas of facility
departments accessible to inmates flies in the face of basic, prudent security practice.

Facility staff also found a metal hook-like ‘come-along’ object believed to have been
used to move bread carts in the facility’s old bakery. This hook appeared as though it was
intended to be used as a grappling hook as it was tied to four bed sheets which in turn were tied
together. The fact that Phillips left it behind as apparently unnecessary when he escaped begs the
question of whether he had been on the roof prior to the escape. During interviews with
Commission investigators, facility staff reported that a hand-drawn diagram depicting the front
roof line and other roof features was found in Phillips’ property after the escape and forwarded to
Captain Douglas Bienko. Captian Bienko stated he forwarded it to Patrol Services Division
investigators. Commission staff requested the diagram but were informed via two Patrol
Services Division memoranda it had ‘either’ been misplaced or thrown away. No copy was
apparently ever made, nor was it tagged and bagged as evidence. The Commission was told that,
in any event, the Patrol Services Division investigators determined that the diagram did not
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resemble any part of the facility. In contrast with this determination, it was reported in the
Buffalo News that following Phillips’ associate Gary Lang’s release from custody, the Patrol
Services Division interviewed him and investigators told Lang:

He (Phillips) had this escape going for quite some time - that’s what the sheriffs
told me (Lang), because of the maps he drew, . . . (emphasis added)

Inmate Lang claims he had been told that ‘maps’ drawn by Phillips had been connected to his
escape by the very investigators who claim to have lost them after dismissing their significance.
The idea that hand drawn diagrams thought by facility staff members to represent the facility roof
line from which Phillips descended to the ground would be turned over to Sheriff’s investigators
as evidence, then dismissed as of no consequence and either discarded or lost, calls the credibility
of the Sheriff’s internal investigation in this regard into question.

Facility staff at the escape scene also reported the existence of inmate clothing wrapped
around the sharp metal edges of the roof breach and the presence of civilian clothing beneath the
breach. Commission staff inquired into how extra jail issue and civilian clothing could have
been brought into the kitchen. Facility staff explained that pat frisks of kitchen workers are
routinely performed upon their return to Kilo dorm from the kitchen, but that inmates are not
searched upon arrival at the kitchen from Kilo dorm. Commission staff also found that kitchen
workers have unchecked access to many parts of the facility including laundry and
reception/intake. Both the laundry area and the intake area have inmate workers. Commission
staff observed that staff often leave doors to facility areas unsecured, including the kitchen area,
commissary/laundry and the inmate property room. It was also noted by Commission staff
during investigation of this incident as well as during a prior evaluation in February 2006 , that
intake workers were utilized to issue and retrieve inmate property from the property room
without supervision, a violation of §7002.4(e). Absent appropriate worker supervision and
accountability, the theft of clothing from the laundry or the property room by inmate workers
could be easily accomplished. Furthermore, once any kitchen worker secreted contraband in the
kitchen, detection would be unlikely because food service personnel do not pat search inmates or
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conduct area searches. As noted, this raised the significance of and the risk of failing to fill and
maintain a uniformed security post in the kitchen.

Pre-existing Indicators of a Kitchen Area Security Threat

Less than a year prior to Phillips’ escape, two incidents occurred, which, given an
appropriate response by implementing appropriate staffing, physical plant and procedural
changes, could have prevented the escape from occurring. Both incidents involved the
production of homemade alcohol on top of the coolers:

May 19-20, 2005

At approximately 7:03 p.m. an officer assigned to Kilo dorm noticed that inmate Richard
Coons appeared intoxicated. Investigation of his condition indicated that he had consumed
homemade alcohol while working in the kitchen that day. The following morning, a search of
the kitchen was conducted, supervised by Sergeant Joseph Pyjas. Facility documentation
indicates that on top of the coolers was a “bar area” set up with four chairs, “empty hooch
containers,” cups, sugar, bread and two containers of fermenting homemade alcohol.

Facility documentation indicates that this incident was reported up the chain of command
via two internal reporting mechanisms. Pursuant to facility policy, an incident summary report,
dated May 19, 2005, including a statement from Sergeant Pyjas detailing search findings and a
copy of the Commission’s Reportable Incident Report Form SCOC-011 was generated and
forwarded to the administration for review. A shift summary report, dated May 20, 2005 was
also forwarded to administrative staff including then-First Assistant Superintendent Livingston,
Chief Heist and then-Undersheriff Timothy Howard.

Other than a memo, reportedly reiterating the need for food service personnel to supervise
inmates while in the storerooms, issued to staff, no other corrective action had been taken by the
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administration.

February 13, 2006

Supervisory staff had received a tip that homemade alcohol was being made in the
kitchen. As a result, Lieutenant Ruth Stroka ordered a search of the kitchen area. Facility
documentation indicates that, atop one of the coolers, Officer Amy Kosinski discovered one half
a case of potatoes, and a half filled plastic gallon container with what appeared to be juice, fruit
and bread. Also noted were the existence of “various metal parts from kitchen equipment which
could be used to harm somebody.”

Facility documentation indicates that this incident was also reported up the chain of
command via the same two internal reporting mechanisms. In this case, the incident summary
report, dated February 6, 2006, including a statement from Officer Amy Kosinski detailing
search findings was generated and forwarded to the administration for review. This incident was
not reported to the Commission of Correction pursuant to 9 NYCRR, Part 7022 Reportable
Incidents. A shift summary report, dated February 13, 2006 was also forwarded to administrative
staff including Superintendent Livingston, then-Chief Benson, Chief Heist, Undersheriff
Donovan and Sheriff Howard.

Other than a verbal recommendation from Lieutenant Stroka to Assistant Food Service
Manager Joel Gregorio to remove excess items from the top of the cooler, no other corrective
action had been taken by the administration.

These two incidents demonstrated the capability of inmates to obtain unchecked and
unsupervised access to the top of the coolers, and the negligent response of facility managers and
executives up to and including the Sheriff. Had the facility administrators and executives
addressed either one of these incidents by preventing the storage of the items on top of the
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coolers, and/or restricting all inmate access to the top of the cooler, such measures would likely
have prevented inmate miscreant activities and the escape. Additionally, had the administration
not violated the Commission’s Position and Staffing Analysis by vacating a mandated security
post within the kitchen, but rather deployed and appropriately charged officers assigned to this
post with the responsibility of conducting daily searches of the entire kitchen area and
supervisory staff with the responsibility of making routine inspections, the escape would likely
have been prevented. Since Phillips’ escape, the facility has cordoned off the top of the coolers
by installing fencing above them. Had this installation and staff deployment occurred following
either of the contraband incidents preceding the escape, it would have prevented Phillips
breaching the roof. The failure to do so was grossly negligent and flagrantly incompetent.

Electronic Perimeter Security and Alarm Responses

The Correctional Facility is equipped with an Mx-1000 Perimeter Control System. This
system monitors and manages perimeter alarms in 26 zones. Sixteen zones are protected by a
rooftop microwave detection units. The remaining zones are protected by fence mounted motion
detection sensors. In addition to the Perimeter Control System, there is a minimum of eight
exterior cameras installed in various locations on the facility premises for use by control room
officers to view zone locations.

The rooftop perimeter security employs the use of Southwest Microwave’s Model 300B
outdoor microwave link and Model 375C outdoor microwave transceiver. Operation of each of
these detectors is described as follows in Southwest Microwave’s technical manuals:

Model 300B

“Each Model 300 B consists of one Model 300BT transmitter and one Model 300
BR receiver, each with universal mounting bracket. The transmitter radiates
amplitude modulated X-band energy that travels to the receiver where it is
detected. The received energy is amplified and processed so that it causes an
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alarm relay to be energized. When an intruder approaches the beam, received
energy is changed causing the relay to be de-energized, and an alarm occurs.”

Model 375C

“Model 375C includes both transmitter and receiver in a single enclosure. The
transmitter radiates microwave energy that is reflected back into the receiver by
objects in the detection zone.”

“A microwave transceiver transmits microwave energy into the detection zone,
and objects in the zone reflect energy back to its receiver. Whenever an object is
moving, the Doppler effect shifts the frequency of its reflection and the
transceiver generates an alarm whenever it detects a frequency shift in the
reflected energy.”

When an alarm condition exists, a signal is sent to an alarm controller transponder which
in turn forwards a signal to a device called a Programmable Logic Controller or P.L.C. The
P.L.C. sends a message to two touch screens located in Central Control for operator action. All
input and output activities of both the P.L.C. and the touchscreen are stored as a digital record on
the touchscreen’s computer hard drive. This record may be downloaded daily for review.

Following the escape, Sergeant Timothy Love downloaded the alarm data for April 2,
2006 and conducted a preliminary assessment of the data. Sergeant Love’s analysis resulted in
the finding that a zone 20 alarm occurred at 5:14 a.m. and was responded to by the officer
working at the Touchscreen #2 station. This officer was identified as David Padilla. Due to the
implications of these findings, the Jail Management Division enlisted the services of Norment
Security Group, the security software vendor, for purposes of verifying whether a zone 20 alarm
occurred and what specific actions were taken by the touch screen operators. Upon completion
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of this request, the Commission was provided a copy of the analysis summary generated by
Norment Security Group staff. This summary included the following findings:

•

At 5:14:14, a zone 20 alarm was triggered. Providing the speaker volume
was at an audible level, the data indicates that an audio alarm was sounded
and an alarm message was sent to the touchscreen queue at 5:14:14;

•

At 5:14:23 the touchscreen #2 operator selected the zone 20 icon;

•

At 5:14:25 the touchscreen #2 operator acknowledged the alarm. This
action turned off the alarm sound and removed the alarm from the queue
but did not reset the alarm.

•

At 5:14:26:27 the touchscreen #2 operator reset an intercom switch and
selected a display screen for vestibule 1029. At this time zone 20 was still
in alarm mode.

•

At 6:17:53:55 that the touchscreen #1 operator selected zone 20,
acknowledged and reset the alarm.

While the alarm system indicates that the roof perimeter alarm occurred at 5:14 a.m.,
digital video recordings of the north parking lot shows Phillips crossing the north parking lot at
5:09 a.m. The Commission deems this time differential to be incidental in nature as separate
computers are utilized for the alarm and digital video systems. On April 2 the security computer
was reportedly seven minutes ahead of the video computer.

Zone 20 envelops the north side roof perimeter above the back storeroom and the skylight
which serves as a partial roof for the training, administration and business offices. The zone is
protected by the Model 300B outdoor microwave link. The technical manual for the model 300B
detectors indicates that the detection pattern extends parabolically from each detector. For a span
of 220 feet, the approximate span of zone 20, the detection pattern width ranges from 3 to12 feet
depending on the sensitivity settings.

In an attempt to replicate the responses of the alarm touchscreen operators on the morning
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of April 2, 2006, Captain Beinko and Commission staff performed a controlled alarm test on
June 22, 2006. Captain Bienko attempted to trigger the zone 20 alarm at the approximate point
that it was suspected that Phillips triggered the alarm while Commission staff observed control
room activity. In total, three attempts were made at triggering the alarm at approximately 10:44,
10:45 and 10:46 a.m. Of the three attempts, two were successful. Commission staff noted that an
alarm message queued to both touchscreens simultaneously with an audible alarm tone. The
alarm data for this test was subsequently downloaded and compared to the downloaded data
chronicling the events that occurred on April 2, 2006. Using a point reference code document,
Commission staff were able to decipher the second and third alarm tests. Comparing these codes
to the code analysis conducted by Norment Security Group, Inc. yielded test data observably
similar to the record of responses by the touchscreen operators working the morning of April 2,
2006. Therefore, there is objective data to support that Phillips’ escape triggered an audible alarm
that was acknowledged in the control room and which remained in alarm mode (although
inaudible after acknowledgment) for approximately one hour until reset in the control room.

Control room officers David Padilla and Thomas Bollman were interviewed. Both
officers insisted that no alarms were heard or responded to during the approximate time Phillips
was on the roof. Officer Padilla suggested that the data was altered as part of an on-going
administrative attempt to find a single staff member at whom to direct blame for the escape.
Commission staff received a copy of the data that was forwarded to Norment Security Group.
Review of the file properties associated with the April 2, 2006 touchscreen #2 record indicates
that the file was last modified April 3, 2006 at 12:00:34 a.m. Had the file been altered following
this date and time, such would have been evident by a change in the ‘last modified’ date. Based
on these facts, the Commission is satisfied that the alarm data file received from the facility is
authentic.

However, the Commission’s evaluation of the facility’s security electronics reveals that
the system has been erratically inspected, poorly maintained and that staff complaints of
malfunctions have remained unaddressed. Review of the central control room security inspection
reports submitted prior to the escape indicated that staff responsible for documenting security
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inspections generally failed to do so in a consistent manner. Not only were several inspections
missed over the last three years, a violation of §7003.10, but deficiencies were inconsistently
reported. While it is evident that prior to the escape problems existed with the perimeter security
system, very few staff documented these problems, including, but not limited to, perimeter zone
alarm malfunctions. Since the escape inspecting staff have been relatively consistent in reporting
the same deficiencies week to week. Of significance are the following findings by inspecting
facility staff:

•

While no zone malfunctions were reported following hardware replacement,
beginning June 4, 2003 staff began noting that the touch screens occasionally
locked up, i.e., would not travel to desired intercom location maps. These
findings were found on inspection sheets submitted up to and beyond the date of
the escape.

•

Inspecting staff began noting problems with an inability to reset alarms in
multiple zones including but not limited to zone numbers 8, 16, 22, 25, 26, as
early as July 2004. The last inspection sheet forwarded to the Commission
indicated that as of June 13, 2006, these same alarms would not reset.

•

The perimeter zone map provided to the perimeter officer indicates that zone 11,
surrounding the library atrium and zone 1, (an area on the second floor roof) are
also non-functional. Neither of these two zones were referenced as being
problematic on inspection sheets submitted prior to or after the escape.

•

Since April 2005, exterior cameras #25 and #38 have been reported to be
inoperable. While neither of these cameras are routinely used to observe zone
activity, camera #25 reportedly gives a partial view of zone 20. Commission staff
were unable to confirm this report, as it was inoperable during site visits.

Review of O’Connell Electric’s records and documentation submitted by the facility
indicates that with the exception of sporadic repairs to cameras and an estimate of repairs dated
May 4, 2006 confirming the existence of problems in the above referenced zones, the facility
failed to initiate corrective measures to ensure the integrity and optimum operation of the
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perimeter security system hardware. The Commission did not receive any documentation from
the facility indicating that problems with the touchscreens were addressed.

The findings related to this inquiry indicate that Officer Padilla is accurate in that several
zones and at least two cameras were in fact inoperable for significant periods of time prior to and
following the escape. It is also clear that control room officers have been experiencing problems
with the security touch screens. Whether these experiences are operator errors or actual
problems is unknown by the Commission at this time. The alarm system clearly has not been
fully maintained; this is known to operators and may well color their responses to alarms.
Moreover, the alarm system is not tested regularly, nor are operators provided in-service training
and security drills using the alarm system as part of an integrated security maintenance program.
Notwithstanding Officer Padilla’s assertions, Phillips’ presence on the roof of the Erie County
Correctional Facility did indeed activate a valid alarm in roof security zone 20 on the morning of
April 2, 2006.

Facility policy 06-11-00 concerning perimeter alarms has an effective date of June 1,
1988. Due to its effective date, the policy still references G-line sensors, which have been
inoperable for many years and zone listening capabilities which were replaced in 2000. The
policy also requires the control room officer to scan the effected zone with primary and
secondary cameras. Only after an alarm is “apparently valid,” does the policy direct the control
room officer to notify the watch commander and dispatch “an available” officer. Interviews with
staff reveals that the actual practice has evolved as follows: When a zone alarm is activated, the
control room officer must scan the effected zone with primary and secondary cameras and notify
the perimeter officer of the zone activation. None of this was accomplished. As it was dark at the
time of the escape, had Officer Padilla responded by panning zone 20 with exterior cameras, the
question still remains whether lighting on the roof was adequate to verify the alarm. There is no
alternative procedure for verification of an alarm under nighttime conditions.

Commission investigators reviewed the perimeter activity sheet submitted for the 12:00
a.m. to 8 a.m. shift on April 2, 2006 and interviewed the perimeter officer. While the perimeter
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officer stated that he did not receive a response request from central control, he would not or
could not have responded in any event, because he was inside the facility using the restroom.
The facility administration does not require this post to be relieved for breaks, effectively
allowing post abandonment during meal and restroom breaks. Moreover, the perimeter officer is
tasked daily with delivering food trays to Tango and Yankee buildings. When this is occurring,
according to facility administrators, the perimeter officer’s response could be delayed three to
five minutes, in effect nullifying the perimeter post response altogether. Given the low light
conditions, routine abandonment of the perimeter officer post, low officer confidence in alarm
system performance and the lack of alternate response procedures for darkness, and the absence
of in-service training and drills, the facility administration effectively foreclosed its capability to
prevent Phillips’ escape once he broke out of the building.

Sheriff’s Office Response to the Escape

At approximately 5:15 a.m., Civilian Cook Kevin Webster noted that Phillips was not
performing his assigned kitchen duty and began a search of the kitchen area. At approximately
5:25 a.m., following an extensive search of the kitchen, he called the Kilo housing area to advise
Officers Elizabeth Gilbert and Edward Harmon that Phillips was unaccounted for. Officer
Gilbert then notified line supervisory staff, Sergeant Ronald Voll, who in turn notified Lieutenant
Charles Martina, the Watch Commander. Lieutenant Martina responded to the kitchen and
verified that one inmate was unaccounted for in the kitchen. At approximately 5:40 a.m.,
Lieutenant Martina ordered a general lockdown of the facility, the return of kitchen inmates to
Kilo Unit and a facility-wide population count. Available staff were summoned to the kitchen to
conduct a thorough search of the facility and the kitchen area. After ‘discovering’ a breach in the
kitchen ceiling above the dishwasher, Lieutenant Martina dispatched staff to the facility roof. As
this hole existed for several months prior (due to dishwasher vent repairs), it is evident that
Lieutenant Martina had not been in the kitchen for a significant period of time preceding the
escape. Facility staff dispatched to the roof discovered a large breach located above the kitchen
storage coolers at approximately 6:08 a.m. During interviews of staff deployed to the roof,
Commission staff were advised that an equipment shortage existed, specifically radios and
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flashlights, which necessitated facility staff having to use personal flashlights and personal cell
phones to communicate with command staff via central control. The inability to rapidly issue
basic emergency equipment creates an unsafe facility operating environment and a threat to
public safety. Moreover, correction officers were without firearms or chemical agent
certification. Any correction officer may well have been at a marked disadvantage in any
encounter with Phillips had immediate search and apprehension efforts been effective.

At 6:12 a.m., Erie County Sheriff’s Dispatch was notified that a possible escape occurred.
This notification prompted a succession of actions taken by the Sheriff’s dispatchers for purposes
of apprising the State Police Troop A, Erie County Sheriff’s Office Patrol Services Division,
local police departments and for calling investigative staff to report for duty. Facility policy 0605-00 references multiple phone numbers of local law enforcement agencies. While the
Commission is confident that Sheriff’s dispatchers have up to date phone numbers, some of those
listed in this policy were incorrect.

By 6:15 a.m. efforts began to call facility staff who resided locally in to work for
assistance. Captain Douglas Bienko was also notified and arrived at the facility by 6:35 a.m. to
assume incident command. As the day shift arrived, they were briefed and assigned to search
teams. By 7:15 a.m. search teams comprised of facility supervisory and line staff and law
enforcement personnel were dispatched to search zone perimeters that eventually would extend
out five miles from the facility. Due to a lack of equipment available for deployment, facility
staff, with the exception of a few, were instructed to utilize personal vehicles and cellular phones
to maintain contact with incident command. Facility policy 06-05-00 requires facility staff to
draw one radio, one pair of handcuffs, two batons and two flashlights per detail. With the
exception of handcuffs, facility inventories did not permit this to occur.

Following the initial discovery of the breach in the roof, the area above the coolers was
not secured by facility staff. Command staff failed to ensure that the security and integrity of the
area atop the coolers was maintained. Specifically, Lieutenant Martina failed to assign a security
staff member to this area pending processing and collection of evidence by Sheriff’s Office
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investigators. By 7:30 a.m., the area above the coolers was processed by crime scene
investigators. This investigation resulted in the identification of evidence including: an L-shaped
metal bar and a ‘bar-type’ commercial can opener with metal bar attached. This evidence was
received by Captain Bienko by 9:30 a.m. and forwarded to Superintendent Donald Livingston
and it remained in his office until April 5, 2006. Six other items were identified and confiscated
as evidence at approximately 12:00 p.m. on April 2, 2006. These items included: a metal hook
attached to four bed sheets which were tied together, three articles of civilian clothing, a piece of
gypsum roof material with tar on it and a number 10 can lid. These items were placed in Captain
Bienko’s office, an area accessible to both facility staff and inmate workers, until April 5, 2006.
Phillips’ personal property at his bunk in Kilo dorm was also searched and confiscated including
but not limited to a diagram that staff describe represented the facility’s front roof line. This
property was placed in Superintendent Livingston’s office by investigators.

Superintendent Livingston arrived at the facility by 7:30 a.m. and assumed incident
command. The Commission of Correction was notified of the escape at approximately 8:00 a.m.
The initial search and apprehension effort continued through the morning then declined
throughout the afternoon. A NYSPIN multi-state regional alert was not issued until
approximately 2:40 p.m. This notification was grievously late. As would become obvious in
short order, a timely regional law enforcement response to Phillips’ escape was of paramount
importance.

Conclusion

Based upon the findings of the investigation into the escape of Ralph Phillips the
Commission concludes that the Erie County Correctional Facility as presently led, organized and
managed by the Erie County Sheriff is not a safe, secure or stable institution, nor is it sufficiently
capable of fulfilling its role in the criminal justice and public safety establishment of Erie
County. The executive leadership and management of the Erie County Sheriff’s Office
negligently and wrongfully caused a preventable public safety emergency in which an inmate
entrusted to their custody escaped and thereafter became the prime suspect in the shooting of a
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New York State Trooper. Timely and compliant attention to the Actions Required as set forth in
the Commission’s investigation report is absolutely essential to public safety and will
undoubtedly be the subject of further Commission action.

IV.

FINDINGS

1.

Based on the facts in the case of the escape of Ralph Phillips, the Commission finds that
the Erie County Correctional Facility as presently led, organized and managed by the Erie
County Sheriff is not a safe, secure or stable institution, nor is it sufficiently capable of
fulfilling its role in the public safety establishment of Erie County. Through multiple
violations of state law and state regulations and failure to conform to generally accepted
good correctional practice, executive leadership and management of the Erie County
Sheriff’s Office negligently and wrongfully caused a preventable public safety emergency
in which an inmate entrusted to their custody escaped and thereafter became the prime
suspect in the shooting of a New York State Trooper.

2.

Following the admission of Phillips to the facility, he was not assigned to a housing area
designated for classification purposes. Failure to sequester an inmate in a housing area
designated for classification pending completion of classification procedures is a
violation of Section 7013.8(a).

3.

The classification score as determined by facility staff and assigned to Phillips did not
reflect his criminal history, a violation of Minimum Standards §7013.8(c)(1). Phillips’
classification was never definitively established within defined security limitations of
various housing settings and was consequently changeable without regard to security
management need. Facility policy and the classification instrument used by the facility
fail to equate point score totals to specific classification and sub-classification categories
or to distinguish classification categories across the objective classification scoring range.
This is a violation of §7013.3(a)(4) which requires that written policy exists for
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determining classification assessments made subsequent to initial screening for the
assignment of inmates to appropriate facility housing areas consistent with the
requirements of 9 NYCRR, Part 7013 Classification.

4.

The Erie County Correctional Facility’s practice of assigning inmates to housing areas
based primarily on where vacancies exist effectively nullifies all attempts to classify and
assign inmate housing formally and objectively and therefore violates §7013.8(d). Such a
practice results in the imprudent and injudicious commingling of inmates, a violation of
Correction Law §500b(7)(a).

5.

On February 3, 2006, despite being a career felony offender who had spent a cumulative
total of 24 years in state prison, Phillips was given an arbitrary, de facto change in
classification without documented rationale, whereupon he was transferred to and housed
in a low-security dormitory reserved for kitchen workers who had routine access to
unsupervised sectors of the facility when on work assignment. No classification review
took place in accordance with Minimum Standards §7013.9. Phillips was afforded such a
transfer without any review or re-application of the regulations governing classification
and housing assignment in satisfaction of grievance complaints regarding essential
services such as food, grievance complaints that likely would be appealed to the attention
of the Commission in Albany.

6.

Facility policy fails to specify or provide any guidance as to criteria that was to be used in
determining Phillips’ eligibility for worker status and how to apply such criteria. The
failure to include this information within facility policy results in the reduction of all
worker determinations to a subjective classification process, which violates the
requirements of an objective classification system in violation of Minimum Standards
§7013.1, 7013.3(a)(4) and 7013.8(d).

7.

The manner in which the facility classification lieutenant received classification training,
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i.e., self-study of the Commission’s curriculum followed by the administration of a
subject-related examination, was not a Commission-approved method for this training, a
violation of §7013.11(c). The Commission certification of the classification lieutenant in
charge of the facility classification system who was so trained was based on a
misrepresentation and is consequently invalid.

8.

The last administrative review of the Correctional Facility’s classification policy and
procedures occurred in 2003. Such a lapse in the administrative review of this policy and
procedures is a violation of §7013.3(c) and (d).

9.

The facility grievance coordinator failed to issue a determination for the grievance
submitted by Phillips concerning food portioning, a violation of §7032.4(i).

10.

The facility staff routinely leaves facility doors, e.g. kitchen doors, break room doors,
commissary doors and property room doors unsecured at times that would not warrant
such conditions. This is contrary to generally accepted good correctional practice and
provides opportunities for inmates to access unauthorized areas and to pass contraband
with attendant breaches of safety and security, a violation of Correction Law §500-c. The
generally negligent and lax approach to facility security evidenced by these lapses was a
causative factor in Phillips’ escape.

11.

Facility policy directed food service personnel to maintain ‘direct active supervision’ of
workers working in the kitchen. However, this term has meaning only for trained
uniformed officers. There is no policy or procedures to address supervision dilemmas
such as those posed when only one cook was scheduled to work in the kitchen. In fact,
inmate kitchen workers often are largely unsupervised, a fact known to facility managers
and Sheriff’s Office executives. This is a violation of Minimum Standards §7003.1.

12.

Facility administrators and Sheriff’s Office executives failed to appropriately charge
security line staff, supervisors and managers with the responsibility of touring the kitchen
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for purposes of regularly assessing security and supervision operations and conditions and
directing measures to be taken to address deficiencies, a violation of §7003.1.

13.

Facility administrators and Sheriff’s Office executives failed to provide post orders
(specific duty performance orders) for line supervisors and watch commanders, in
accordance with generally accepted good correctional practice. Absent a reference
document providing information regarding their responsibilities related to assessing and
correcting deficiencies related to the security of the facility and supervision of inmates
and line staff, accountability of line supervisors and command staff who perform these
functions is lost.

14.

The Sheriff, Sheriff’s Office executives and the facility administration failed to deploy
security staff to the mandated kitchen staff post identified in the February 2005 Position
and Staffing Analysis as referenced within the Commission’s August 15, 2005 Notice of
Violation of 9 NYCRR Part 7041 Staffing Requirements and the November 21, 2005
Staffing Compliance Plan. This plan was agreed to by Erie County in satisfaction of the
Commission's October 18, 2005 Directive and provided for restoration and deployment of
staff to restore mandated security/inmate supervision posts which included the required
post in the Correctional Facility kitchen. The Sheriff remained in violation of state
regulations despite agreement to comply, and only redeployed staff to the required
kitchen post after the escape of Ralph Phillips in April 2006. This violation directly
contributed to the escape of Ralph Phillips.

15.

As evidenced by Phillips’ unchecked movements and actions, together with statements
made by food service personnel, an unwarranted level of trust was bestowed on the
facility kitchen workers in general, and on Ralph Phillips in particular, notwithstanding
that violations of classification law and regulations improperly assigned him there.

16.

The facility administration failed to implement procedures requiring accountability and
control of can lids, a major contraband item, pending disposal. Moreover, the area from
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which Phillips escaped was littered with spare metal equipment and spare parts suitable
for use as tools or weapons. The facility administration lapsed into an unsafe condition
which permitted inmates to have unsupervised access to can lids and other equipment that
facilitated the fabrication of tools used for an escape. These failures and lapses are a
violation of Correction Law §500-c, Custody and Control of Inmates.

17.

The facility administration failed to maintain control of facility-issued and civilian
clothing such that Ralph Phillips was in possession of both types of clothing which
directly facilitated his escape. Inmate workers had access to unsupervised and unsecured
areas of the facility, including the laundry room and intake property room, a violation of
§7002.4(e). Food service personnel did not frisk inmates, and there were no uniformed
staff posted to do so, thus providing the opportunity for any contraband obtained from
and secreted in other areas of the facility to be readily transported undetected to the
kitchen. No area searches were made of the kitchen by correction officers or civilian
workers, resulting in the secreting of clothing, tools and other equipment used in Phillips’
escape, together with a hidden breach in the facility roof.

18.

Following notification up the chain of command to Sheriff’s Office executives, including
Sheriff Timothy Howard, previous security breaches and alcohol contraband seizures
which occurred less than one year prior to Phillips’ escape, went unaddressed, despite
having taken place in the secluded area atop the kitchen storeroom coolers, the site of
Phillips’ subsequent escape. The failure to take corrective action constitutes a negligent
dereliction of duty on behalf of the Sheriff, Sheriff’s Office executives and the
Correctional Facility administration which contributed to the escape of Ralph Phillips.

19.

Ralph Phillips’ traverse of the Correctional Facility roof activated an alarm in the
Correctional Facility’s Central Control room. Correction Officer David Padilla
acknowledged and disregarded an alarm activation of zone 20, without notifying the
perimeter officer or other appropriate personnel of the activation. This inaction
constitutes a negligent dereliction of central control room staff duties.
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20.

Notwithstanding the failure to notify the perimeter officer of the roof alarm, the perimeter
officer post had been abandoned without relief at the critical time, a violation of
Minimum Standards, Part 7040 Staffing Requirements, and had been regularly abandoned
for employee breaks and while the officer was assigned to other duties, a direct result of
negligent operation of the Correctional facility in an understaffed condition.

21.

There exists as many as five perimeter zones that are inoperable and in the case of zone
20, at least one zone that has an insufficient motion detection pattern. Five of the zones
have been inoperable since July 2004. Further, two exterior cameras, one reportedly
capable of providing a partial view of zone 20, have been reported inoperable since April
2005. Review of the central control room security inspection reports submitted prior to
the escape indicated that staff responsible for documenting security inspections generally
failed to do so in a consistent manner. Not only were several inspections missed over the
last three years, a violation of §7003.10, deficiencies were also inconsistently reported.
Given that many of the zones consist only of microwave detection equipment, an
effective physical barrier to prevent or deter facility perimeter breaches does not exist. As
the facility roof was and still is an area which is most vulnerable to security breaches,
negligently allowing such equipment to fall into and remain in disrepair threatens the
safety of the public, a violation of Correction Law §500-c and is a negligent dereliction
of duty on behalf of the Sheriff, Sheriff’s Office executives and the Correctional Facility
administration.

22.

Equipment shortages hampered the immediate response to Phillips’ escape and
demonstrated that the facility administration was ill-prepared to properly equip staff for a
large-scale emergency response. Specifically, shortages of radios, flashlights, batons and
vehicles existed. The inability to rapidly issue basic emergency equipment creates an
unsafe facility operating environment and a threat to public safety. Moreover, correction
officers were without firearms or chemical agent certification and therefore could not be
issued those weapons. Any correction officer may well have been at a marked
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disadvantage in any encounter with Phillips had immediate search and apprehension
efforts been effective.

23.

Facility policy 06-05-00 pertaining to emergency responses failed to include accurate
telephone numbers for many of the local law enforcement agencies listed therein.

24.

Following discovery of the breach in the roof, command staff failed to ensure that the
security and integrity of the area atop the coolers was maintained. Specifically,
Lieutenant Martina failed to assign a security staff member to this area pending
processing and collection of evidence by Sheriff’s Office investigators.

25.

Following the identification of items of evidence, Sheriff’s Office investigators and the
facility administration failed to secure such evidence in an area that was inaccessible to
facility staff and inmate workers. Specifically, the metal ‘come-along’ hook attached to
four connected bed sheets, three articles of civilian clothing, a piece of gypsum roof
material with tar on it and a number ten can lid were placed in Captain Bienko’s office,
an area accessible to both facility staff and operations workers, until April 5, 2006.

26.

The issuance of a NYSPIN Multi-State Regional alert nearly nine hours after the escape
failed to forewarn regional local law enforcement agencies in a timely manner, and
represented a threat to the safety of law enforcement officers who may have encountered
Phillips unaware that a dangerous felon had escaped and was at large.

V.

ACTION REQUIRED

1.

That the Sheriff of Erie County shall take immediate action to correct violations of 9
NYCRR Part 7000 et seq., Minimum Standards and Regulations for the Management of
County Jails and Penitentiaries, in particular Classification, Staffing Requirements and
Security and Supervision, and of NYS Correction Law §500-c, Custody and Control of
Inmates, to address issues of executive and managerial negligence and professional
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incompetence, and to otherwise improve the executive level management of the Erie
County Jail Management Division. Dangerously low staffing levels shall be immediately
remedied based upon the Commission’s December 2004 and February 2005 Position and
Staffing Analysis pursuant to Minimum Standards Part 7041, with the understanding that
absent such remediation, the Commission may act to reduce the Maximum Facility
Capacity of the facility(s) in accordance with Minimum Standards Part 7040.

The Jail Management Division shall employ and make available for duty not less that 591
full time uniformed staff, apportioned between the Erie County Holding Center and Erie
County Correctional Facility and among managers, supervisors, and line staff as set forth
in the Commission’s Notice of Violation dated August 15, 2005. The Sheriff shall
prevent intentional abandonment or vacating of mandated security posts for any reason,
including breaks and meals, particularly in security-sensitive areas.

Implementation of a unitary, consistent chain of command such that there is
accountability up and down the line of authority and responsibility is a critical need. The
facility security architecture and procedural framework should be reviewed and security
hazards rectified. A comprehensive review of the state of knowledge of, and direction to,
managers and supervisors staff as to their duty post orders, which shall be reduced to
writing, shall be undertaken and remedied as warranted. Particular attention shall be
directed to oversight of security procedures, performance of line staff, inmate movement
and access, interdiction of illicit and/or unsupervised inmate activity, restriction of inmate
facility access, personal visits to all areas of the facility and keeping of records of
supervisory and managerial activity. Regular meetings between executive administrators
and supervisors at the Erie County Holding Center and Correctional Facility should be
scheduled and held, with proceedings recorded and distributed.

2.

Absent the development and implementation of policy and procedure that causes all new
admissions to the Jail Management Division to take place at the Holding Center, in
accordance with Minimum Standards §7013.8(a), the Correctional Facility administration
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shall designate a minimum of two housing areas for purposes of housing newly received
male and female inmates separate from respective general populations pending
completion of classification procedures, at the Correctional Facility.

3.

In accordance with §7013.1 and §7013.3, the Sheriff shall require the Jail Management
Division and Correctional Facility administration to develop and implement policy and
procedures which provide for the systematic, formal, objective assessment and
classification of inmates in compliance with the requirements of Part 7013 including but
not limited to §7013.3(a)(4). This requires that there be written policy, reflected by actual
practice for determining classification assessments made subsequent to initial screening
for the assignment of inmates to appropriate facility housing areas. Such policy shall
objectively define all sub-classifications utilized and define associated criteria for
assigning housing within corresponding classification designations, without overlap.

4.

The Correctional Facility administration shall discontinue the current practice of
assigning housing based primarily on where housing vacancies exist and shall comply
with the provisions of §7013.8(c) and Correction Law §500-b (7). Inmates shall not be
housed in housing areas not rated for their objective classification scores, nor shall inmate
classification scores be altered without classification review, including complete reclassification in accordance with Part 7013.

5.

In accordance with §7013.3(a)(4) and Correction Law §500-b(7), the Correctional Facility
administration shall establish security designations for each housing area at the facility
and define criteria for assigning housing within each of these areas.

6.

For purposes of complying with Correction Law §500-b, subsections 7(b) and 7(c), and
Minimum Standards §7013.8(c) and (e) and facility policy 09-03-00, the Jail Management
Division shall forward all medical and classification documentation to the Correctional
Facility and vice versa when inmates are transferred between the two facilities.
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7.

In accordance with Correction Law §500-b (7) and Minimum Standards §7013.8 (c) when
inmates are classified and assigned to housing, the Correctional Facility administration
shall require that classification staff consider the entire criminal history of each inmate
and objectively score the respective classification assessment accordingly.

8.

In accordance with Minimum Standards §7013.9, the Correctional Facility administration
shall ensure that all inmate assignments to ‘worker’ status and to ‘worker’ housing from
any other housing classification are preceded by a classification review. Furthermore, the
classification file shall contain written documentation that such a review occurred
pursuant to §7013.12. In accordance with §7013.3(a)(4) and §7013.8(d), the Correctional
Facility administration shall develop and implement a classification policy that defines
formal and objective criteria to be met by inmates for purposes of determining eligibility
for assignment to ‘worker’ status and ‘worker’ housing. In accordance with Correction
Law §500-b(7) and Minimum Standards §7013.8(d), following a classification review
and determination to assign any inmate to worker status, affected inmates shall be
assigned to housing that is designated for inmate workers.

9.

Due to material misrepresentations by the Correctional Facility administration to the
Commission as to the manner of instruction, effective this date, the Commission has
revoked the satisfactory completion certificate of Classification Training of Lieutenant
Daniel Leary and decertified the classification trainer status of Chief Ronald Heist. The
Jail Management Division shall forward the names of all staff that received classification
training via ‘self study’ instructional methods. Furthermore, as is consistent with the
requirements of §7013.11, the Correctional Facility shall only utilize facility staff who
have completed a Commission-approved training program for performing duties related
to the administration and implementation of classification procedures.

10.

Pursuant to §7013.3(c), the Jail Management Division shall conduct annual classification
policy and procedural reviews and make changes as appropriate. Such reviews shall be
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documented in accordance with procedures prescribed by §7013.3(d).

11.

In accordance with §7032.4(i), the Correctional Facility grievance coordinator shall issue
written determinations for all grievances submitted that articulate a complaint with
objective facts and clarity sufficient for the grievance coordinator to understand.

12.

For purposes of complying with Correction Law §500-c, the Correctional Facility
administration shall require that all doors and gates, including but not limited to those
permitting access to the kitchen, laundry commissary, break room, reception/intake unit
and intake property rooms, are secured when inmates and staff are not traversing through
them.

13.

For purposes of complying with §7003.1 and §7003.4(d), the Correctional Facility
administration shall develop and implement policy that adequately defines food service
personnel and kitchen security staff responsibilities relative to security of the kitchen and
supervision of the inmates.

14.

The Correctional Facility administration shall develop and implement a policy that
addresses kitchen tool control and the handling of kitchen waste products, e.g., can lids,
that may readily be used or altered for use for purposes that would jeopardize the safety or
security of the facility or of persons therein.

15.

The Correctional Facility administration shall develop and implement procedures that
require that inmate workers are personally searched by uniformed staff prior to leaving and
upon returning to the kitchen.

16.

For purposes of compliance with §7022.1, following the review, investigation and
assessment of serious or problematic incidents, the Sheriff’s Office, the Jail Management
Division and the Correctional Facility administration shall exercise due diligence by
thoroughly examining the circumstances surrounding and leading to such incidents,
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documenting the findings and, if warranted, improving or reinforcing relevant facility
policies, procedures and actual practices so as to prevent recurrence.

17.

For purposes of complying with Correction Law §500-c, Erie County and the Erie County
Sheriff shall take measures to immediately repair all existing inoperable exterior security
monitoring and alarm systems. Once repaired, Erie County and the Erie County Sheriff
shall diligently maintain these systems through a scheduled maintenance, testing and drill
program.

18.

For purposes of complying with Correction Law §500-c, the Correctional Facility
administration shall regularly test all exterior security monitoring and alarm systems. The
results of such tests shall be documented and included with recorded results of the weekly
security device inspection conducted pursuant to §7003.10.

19.

For purposes of compliance with §7003.5(e), the Correctional Facility administration
shall review and revise all relevant emergency response policy and procedures for
purposes of ensuring that response practices and information including but not limited to,
emergency notification telephone and fax numbers, are current, and that regional law
enforcement notifications, when warranted, are made timely.

VI.

RECOMMENDATIONS

1.

In order to eliminate the need for duplicative activities regarding initial screening and risk
assessment, when inmates are transferred between the Holding Center and the Correctional
Facility, the Jail Management Division should develop and implement procedures that
permit classification and medical staff to utilize existing Erie County classification and
medical information for purposes of conducting a classification review and assignment of
appropriate housing.

2.

In order to efficiently utilize the already seriously depleted pool of security staff resources
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available at the Correctional Facility and the Holding Center, the Jail Management
Division should cease filling and backfilling non-mandated, redundant security posts
located in the Correctional Facility dormitories, Joliet, Kilo, Lima, Nova, Oscar, Papa, and
Romeo.

3.

In order to better prepare civilian staff for recognizing security deficiencies, supervising
inmates and safely interacting with inmates, the Correctional Facility administration
should review and revise the existing civilian orientation training program so that it
emphasizes concepts pertaining to security, supervision and manipulative inmate
behaviors. Following this activity, the Correctional Facility administration should require
that all civilian staff, whose duties require contact with the inmate population, attend the
revised training program.

4.

In order to ensure that facility emergencies such as this incident can be responded to by
sufficiently equipped staff, the Jail Management Division should procure adequate
quantities of emergency response equipment including but not limited to: emergency
vehicles, flashlights and two-way radios.

5.

In order that facility staff are able to defend themselves or third persons when
encountering dangerous or potentially dangerous individuals outside the confines of the
facility, the Jail Management Division should enact measures that would authorize a
sufficient number of facility staff to use chemical agents and firearms during the course of
performing their duties outside the secure confines of the facility. Such measures would
necessarily require firearms training and certification, chemical agents training and
development of a facility-based firearms arsenal. Nevertheless, Erie County correction
officers are nominally peace officers and the county should take positive advantage of that
status.

6.

In order that crime scenes are preserved pending evidentiary processing, the Correctional
Facility administration should reiterate facility policy related to crime scene preservation
to line, supervisory and command level staff.
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7.

In order that evidentiary chains of custody are not compromised, the Correctional facility
administration should revise policy 05-03-04, pertaining to evidence handling, so that it
designates a secure location to store evidence that is too large or voluminous to place in
the facility evidence locker.

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