Vol. 13 Number 2: Marcb 2003 Publisbed by Prisoners' Legal Services of New York

NEW YORK HIGH COURT EXPANDS DOCS' LIABILITY FOR
INMATE ASSAULTS
In a rare victory for inmates, New York State's
highest court, the Court of Appeals, held that the
State may be liable when one inmate assaults
another if it failed to provide adequate supervision
at the time of the assault. In previous cases, courts
have held that the State could be liahle in such
cases only if it had specific knowledge that an
assault was likely to occur. The new case thus
expands the circumstances under which the State
nlay be liable in "inrnate-an-inmate" assault cases.
The case, Sanchez v. State of New York,
99N.Y.2d. 247(2002) arose from an incident that
occurred in 1995 at Elmira Correctional Facility.
Inmate Sanchez was working as a teacher in the
btcility program building when he was assaulted
by two unidentified inmates. When the assault
occurred there was only one oHicer stationed on
the floor to supervise approximately 100 inmates
and he was busy assisting inmates retuming video
equipment and was unable to see the area where
the assault occurred. Sanchez sued the State,
alleging that the oHiccr's negligent supervision
had contributed to the assault.

Wben is an assault foreseeable?
The question at issue in Sanchez "\vas
whether the assault had been foreseeable. Under
traditional principles of tort law, the law of
negligence, a defendant GUl only be held liable for

an accident if the accident was "foreseeable" that is, if the defendant knew or should have
known that circumstances under his control
created an unreasonable risk that the accident
would occur.
Prior to Sanchez New York State courts
had generally held that there were only tJlree
circumstances in which the state could have
"foreseen" and inrnatc-ol1 inrnate assault:
(Col1tinlled 011 page 2)

Also Inside ...
Mixed Messages - A letter from the
Executive Director.....
..".....page 3
News and Briefs - New cases that may
affect your rights
page 4
PLS Settles Mental Health Claims
on Behalf of Inmates
page 16
Understanding the New
'Son of Sam' Law
Post-Release Supervision.

page 18
..page 21

ThiJpnyed it'dS .l'lppotted t:J agn:mt ad!J1iltiftered fry rheNew York .ftate Dilisiol1 o/Cilmina!]ustice Smiccs. Point! Ofl'7Clli in this
document are thOJ8 qf the author (Itd do not netessmify repreJellt the t!fJidalpositioti orpolicies fI! tbe Dizision 0/ Ctiminal ]uJtice Senias.

Pro Sc Vol. 13 No.2 Page 2

if, 1) the State knew the victim was at risk and failed
to take reasonable steps to protect him or her; 2)
the State knew the assailant was dangerous, but
failed to protect othet inmates from him or her; or,
3) the State had both notice that an assault was
likely to oecur and an opportunity to intervene to
protect the victim, but failed to do so. The courts
had consistently rejected claims alleging that mere
absence of supervision made an assanlt foreseeable .
.lee, e./;-, Colon v. State of New York, 620 N.Y.S.2d
1015 (3rd Dep't 1994).
Inmate Sanchez had testified at trial that he
was completely surprised by the assault. He knew
of no enemies at Elmira and had no reason to
believe hewas going to be attacked. Consequently,
both the lower court and the appellate court
dismissed his claim. Since there was no evidence in
the record to show tJut the State either knew that
an assault on Sanchez was likely to occur, that he
was at a heightened risk of attack, or that his
assailants were particularly dangerous, the appellate
court held. there was no basis for holding the State
liable for failing to take additional measures to
prevent the assault. Sanchez v. State, 732 N.Y.S.2d
471 (3rd Dep't ZOOI).

Pro Se is printed and distributed free to
people incarcerated in New York State
prisons and to New York State prison law
libraries, through a generous grant from the
New York State Bar Foundation.

ll7hat the State Should Have Known

The Court of Appeals reversed the appellate
court decision. The Court of Appeals held that the
appellatc court's focus on what the State tldJltllly
knell/was too narrow; it prevented consideration of
another factor important to the question of
foreseeability - that is, what the State shoJild hal~
kIJOIJJII, based both on its expertise and prior
experience in nJllning p1'ison5 and its own policies
and practices designed to address the risks of

inmate assaults.
The Court noted that Sanchez had
presented evidence at trial which suggested the
State knew that the type of supervision provided
by the correction officer at the time of the.
attack would increase the risks of inmate
assaults. For instance, Sanchez had presented
the correction officer's Individual Security Post
Description, which required that the offIcer
"ren1ain alert and monitor intnates' behavior... to
prevent or stop assaults...on inmates." He also
presented thc State Commission of Corrections
Minimum Standards for County Jails, which
state that staff must maintain "active
supervision"of prisoners outside of their
housing area and define "active supervision" as
"the uninterrnptcd ability to communicate orally
with and respond to each pI~soner... [and] the
ability... to immediately respond to emergency
situations." 9 NYCRR 7003.2, 7003.4.
Sanchez had also presented the testimony
of an expert in prison management. The expert
testified that the assault occurted during "goback," a tirne notorious for inmate assaults and
argued that the physical layout of the area where
the assault occurred made it impossible for one
offIcer to maintain either the "active
supervision" called for in the Commission on
Corrections Standan.ls or the kind of active
visual monitoring of inmates called for in
DOCS' Security Post Description. He also
testifIed that when the assault occurred, the
correction ofticer \vas 60 feet away froln
Sanchcz, in the storeroorn, \vhere he was unablc
to see the "5sault occur, much less prevent it.
The Court found that these betors raised a
lcgitin1ate question as to \vhethcr it was
foreseeable that bx superviSIOn by the
correction created a heightened risk that
Sanchez would be assaulted, despite the absence
of information indicating the presence of a
specific threat. The Court noted that the State
had written standards of supervision which
required the presence of an offIcer who could
h"laintain constant contact with inlnates, l11onitor
their behavior and provide "active supervision."

Pm Se Vol. 13 No.2 Page ;J,

Since the very purpose of those standards was to
prevent inmate assaults, the Court concluded, the
State could not arb'lle that when those standards
\vere not met, an assault was unforeseeable.

W1Jat Does Sanchez Mean?
The S,Ulchez decision does not change the
underlying law of negligence. 'ro win a claim
against the State in an inmate assault case you must
still present evidence to show that the assault was
foreseeable.
In addition, the S'Ulchez Court
emphasized that its holding did not mean that the
State must provide "unremitting surveilLUlce in all
circunlstanccs," nor did it rnake the State an insurer
of inmate safety: "When persons with dangerous
criminal propensities are held in close quarters" the
Court noted, "inevitably there will be some risk of
unpreventlble ass-/lult." 'The nlcre occurrence of an
assault does not itself establish that the State was
negligent. However, Sanchez does break the rig1d
view of foreseeability that has prevailed in the lower
courts and opens the door to claims that the State
can be E)und negligent based upon its failure to
provide adequate supervision. Since such claims had
been all but ruled out under prior law, Sanchez
represents a broad expansion of the law.

MIXED MESSAGES: COMMENTS FROM
THE PLS EXECUTIVE DIRECTOR
Buried in Governor Pataki's proposed budget
is a parole initiative which has been received with
mostly positive reviews by prison advocates. The
Governor proposes to accelerate the release dates
of 1,300 people serving time for non~violcnt
felonies. He would do this through the expanded
nse of the earned eligibility and merit time
prograrns.
This is a welcome initiative by the Governor,
which seems to reverse the trend of the past decade
which focused on lengthening sentences, even for
those serving non~violent felonies. But it's too early
to suggest that New York will t"lIow the trends in
other states to reexamine all sentencing policies
with an eye toward a more rational, individnaliyed
approach to sentencing and parole release.

Many of the same people who might be
released early by the Governor's plan, and many
others, would also benefit from repeal of the
second felony offender law. Although often
lumped in with the debate on the Rockefeller
DnIg laws, the second felony otfender laws
force judges to give prison sentences to those
who would be better served by alternatives to
prison, such as cornnlUnity based drug treatrnent
programs. The Governor, so f,lf, has not
supported a roll back of mandatory sentencing
which would gives judges the authority to set
sen tences based on the record and
circumstances of the person before them.
The Governor has also called t()[ the total
elimination of parole, even for non~violent
felony offenses. This would eliminate any
individualized review of a persons rehabilitative
efforts by the Parole Board.
There is another message regarding prison
sentences not rncntioned in Governor' Patakils
budget. This agenda has been carried out by the
Division of Parole over the past eight years.
People serving time for violent felonies are
finding it harder and harder to gct parole,
despite service of long sentences and proof of
their rehabilitation.
Of the nearly 67,000 inmates now in New
York's prisons, 12,611 are facing a maximum
sentence of life. Eighty~nine are serving life
without parole. FOl- those convicted of violent
felonies, the odds of getting Ollt at a tlrst Board
appearance, despite an excellent institutional
record, continues to drop.
Of 162 violent oft"nders up for parole in
1991~92, 39 were granted release. Of the 232
considered in 2001~02, only 10 were released,
according to the Division of Parole. "That's a
sibrniticant drop" according to Torn (;rcen\ (I
Division spokesman. "The parole board [is]
looking at people who commit violent felonies
with a more jaundiced eye."
Even those people who have served the
maximum term of their detenninate sentence
may not get released under a questionable
interpretation of the Penal Law supported by
DOCS and Parole. Those agencies argued

Pro Se Vol. 13 No.2 Pllge 4

unsuccesstiJlly recently that DOCS has the
authority to hold someone past the maximum term
of their detcL'111inate sentence, without a violation
of the terms of post-release supervision. This has
led the Advisory Committees of the Courts, the
criminal defense bar and other prison advocates to
back an amendment to the Penal Law which says
no one can be held beyond the maximum term of
a determinate sentence without a finding of a
vi()lation.
These arc contradictory messages from the
Governor, the courts and criminal justice agencies.
The message is that differences between individual
people is less important, particularly at initial Board
appearances. Individual accomplishments and
efTorts will not be recognized
It's tirne agam for a cornprehensive
examination ofthe sentencing policies and practices
in this state. A cornrn()11 sense approach will save
the state money, redirect lives and free up resources
to support cost effective drug treatment programs
and proven alternatives to incarceration. hwill also
restore money to the state education budget,
mistakenly siphoned off to support prison
expansIon.
Tom Teniz'I! I,. Exemti,'e Dimtor of PliSil/teI:f'
Le,gal Smices ofNeill YOlk.

NEWS AND BRIEFS
Federal Court
First Amendment: Inspection ofInmate Mail
Duamutef v. Hollins, 297 F.3d 108 (2nd Cir. 2002)
The plaintift~ an inmate, had a disciplinary
history involving prohibited org,,-nizational activities
including charges that he had printed unauthorized
fliers for inmates and organized inmate
demonstrations. In 1995, [)()CS .offtcials opened
his general, non-privileged correspondence and
found a publication containing the phrase, "Blood
in the Streets" in the title. Concerned that the

publication had a "provocative tone," the
officials authorized a 30-day watch of plaintiffs
It was later determined that the
mail.
publication was an economics book entitled
"Blood in the Streets: Investment Profits in a
World Gone Mad."
Plaintiff sued, arguing that the watch on his
mail was in retaliation tor an earlier grievance he
had filed. The District Court dismissed his suit.
On appeal, the Second Circuit Court of Appeals
held that a liberal reading of his complaint
suggested that the plaintiff was making a First
Amendment complaint for censorship of his
On :malysis, however, the Court
mail.
concluded there was no violaticln of the First
Amendment under these facts. The Court
noted that the Supreme C:ourt has upheld broad
restrictions on inmates' rights to correspond
with prisoners in other institutions Crurner v.
Safely, 482 U.S. 78 [1987]) as well as regulations
prohibiting inmates from receiving publications
deemed detrimental to pnson security.
Thornburgh v. Abbott, 490 U.S. 401 (1989).
Likewise, the Second Circuit has held that "a
valid, rational connection between the decision
to impose a watch on [a prisoner'sl mail and the
desire to ensure the good of the prison and the
rehabilitation of the prisoners" will generally be
sufficient to uphold the validity of a watch on
rnail.
The Court concluded that, in this case, the
oftlcials' actions were rationally related to
legitimate penological interests. Despite IDe fact
that the book turned out to be a harmless
economics text, its intlammatory title, combined
with plaintiffs prior disciplinary history of
prohibited org,,-nizational activities, was enough
reason to impose tllemail watch. The Court
held: "[I]t is generally sufficient for a prison
official to base a security decision on the title
alone. Considering the limited resources of
prison systems and the intense pressure to
prevent security problems, we cannot expect
more of con·ections personnel in most
circlHTIstances."

Pro Se Vol. 13 No.2 piJj1t: 5

Eighth Amendment: Restricted Diet
Phelps v. Kapnolas, 308 F.3d ISO (2nd Cir. 2(02)
Plaintiff Phelps was an inmate at Southport
Correctional Facility when he was placed on a
restricted diet for fourteen days. The restricted dict
consisted of raw cabbage and "loat" - a bread like
substance containing ground vegetables. Phelps
filed a lawsuit in federal court alleging that tlie diet
"did not contain sufficient calories, vitamins, or
nutrients to maintain his physical or ment'al health
and tbat, as a result of the diet, he "lost over thirty
pounds, sufTered severe abdominal pain, and severe
emotional distress." He alleged that prison officials'
actions in putting him on the diet violated his right
under the Eighth Amendment to be free from
"cruel and unusual" punishment.
To state a claim under the Ei(~hth
o
Amendment, a prisoner's complaint must plead
both an objecth·e element - that the prison officials'
transgressions were "suHlcicntly serious" to "violat.e
contemporary standards of decency," - and a
JlIbjutil/e element - that the officials acted, or failed
to act with a "sufficiently culpable state of mind."
(i.e., that they "knew or should have known" that
the conditions posed an unreasonable risk of harm
to the inmate, and that they acted with "deliberate
indifference" to the inmate's health or safety.
Farmer v. Brennan, 511 U.S. at 834,114 S.Ct. 1970
(1994)
Here, the lower court held that the plaintiffs
allegations, even if true, did not state a claim under
the Eighth Amendment. The lower court found
that the plaintiffs complaint contained "no
allegation that any defendant, through the
imposition of the restricted diet for fourteen days,
acting with deliberate indifference, placed Phelps at
substantial risk of serious harm [the subjective
element] or that Phelps's weight loss or abdominal
pains constihlted serious harm rising to the level of
an Eighth Amendment violation Ithe objective
element]."
The Court of Appeals reversed. Regarding the
subjective element of the claim, the Court noted
that thecomplaint specifically alleged that the

defendants "knew or recklessly disregarded that
the restricted diet . . . was nutritionally
inadequate" and knew their actions "were likely
to intlict pain and suffering and extreme
emotional distress." The Court held that,
regmdless of the trutll of these allegations, the
complaint had sufficiently pleaded them to
allow the plaintiff to go to trial. Consequently,
the Court f,mnd the lower court erred in
dismissing the elaim.

Eightll Amendment: Second Ha.nd Smoke
Exposure
Davis v. State of New York 316 F.3d 93 (2nd
Cir.2(02)
In 1993, the Supreme Court held that an

inmate may state a claim for an Eiehth
"
Amendment violation based on prison oHicials'
deliberate indifference to his exposure to second
hand smoke. Helling v. McKinney, 509 U.S. 25,
113 S.Ct. 2475 (1993) The Court held that in
order to prevail in such a claim, the inmate
must show that he is likely to suffer seriolts
harm as a result of unreasonably high levels of
smoke and that prison o Hicials acted with
deliberate indifference to his health.
Plaintiff Davis was an inmate at Attica
Correctional Facility. He tiled a federal lawsuit
against prison ofticials claiming that he had been
exposed to unreasonably high levels of second
h,md smoke and that prison ofticials had been
deliberately indift"rent to his plight. He sought
both dannges and a permanent injunction. The
lower court dismissed his complaint, concluding
that his complaint failed to raise a genuine issue
of t~lct as to whether he had been exposed to
unreasonable levels of second-hand smoke.
The Court of Appeals reversed. The Court
noted that Davis's complaint alleged that since
his arrival at Attica in 1993, he had always been
housed in areas where the majority of inmates
were smokers; that, in the honor block area, he
was surrounded by seven inmates who smoked
so much that "tlle smell of smoke tills the air

Pro Se Vol. 13 No.2 ['>lge 6

and enter[sJ my cell in a manner as though I myself
was smoking"; that the smoke caused dizziness,
diftlculty breathing, coughing, watery eyes,
blackouts and respiratory problems and that it
threatened both his current and hIture health; that
the ventilation in his cell was inadequate; and that
he had been forbidden from opening the windows
to his cell by correction oftlcials who were
indifferent to his plight. The court found that
these allegations were more than suHicient to state
a claim under Helling. and it concluded that the
lower court erred in dismissing plaintiffs suit
without allowing it to go to trial.

Pri..on Litigation Refornl Act: "TlJree Strike.."
Rille

Malik v. t\1cGinnis, 293 F.3d 559 (2nd Cir. 2002)
One of the provisions of the Prisoners'
Litigation Reform Act of 1995 (the "PLRA") states
that an inmate shall not be allowed to bring ;m
action in federal court ill forma pauperis, that is,
without ttrstpaying the f1ling fcc, ifhe has, "on 3 or
more prior occasions, while incarcerated...brought
an action or appeal in a court of the United States
that was dismissed on the grounds that it (was)
frivolous, malicious or Elil(ed) to state a claim upon
which relief may be gGU1ted, unless the prisoner is
under imminent danger of serious physical injury."
28 LJ.S.c. § 1915(g). This has been dubbed the
"three strike nlle."
Plaintiff Malik, while at Attica Correctional
F;lcility, commenccd an action in federal district
court allq~ng that ofttcials at Southport
Correctional Facility had violated his Eighth
Amendment right to be free from cmel and
unusual punishment by restricting his diet for
thirty-ttve days.
He also moved to tile his
complaint ill .forma pauperis. The District Court
found that Malik had had at least four cases
previously dismissed for "three strike" reasons and,
therefore, denied Malik's motion. In addition, the
Court mled, Malik did not fall within the exception
to the three strikes mIl' for inmates in "imminent
danger of serious physical injury" because his

allegation concerned his treatment at Southport,
and the complaint was not brought until Malik
was at Attica. Consequently, the Court held, the
complaint would be dismissed unless Malik
payed the fiJlI tiling fcc. Malik appealed.
On appeal, Malik argued that the
"irnrninent danger" exception to the "three
strikes" rule only required him to show that he
was in danger of serious physical harm at the
time the incident occmred, not at the time the
complaint was tiled. Since the restricted diet had
placed him in "imminent danger of serious
physical harm," at Southport, he argued, the
exception should apply.
The Court of Appeals rejected this
argument. The Court found that although
section 1915(g) allows a prisoner to escape the
"three strikes" rule if he is under "imminent
danger of serious physical injury", Congress's
use of the present tense in the statute implied
that the danger must exist at the time the
complaint is ttled. Further, by using the wotd
"imminent" in the statute, Congress indicated
that it intended to include a safety valve for the
"three strikes rule" to prevent impending harms,
not harms that had already occurred.

State (,ourt: Di..eipJilJaryHearinll"
Confidential Information: Hannie.... Error
Matter of Perez v. Goord, 750 N.Y.S.2d 906
(3rd Dep't 2002)
Petitioner was found guilty of violating
prison disciplinary mil'S prohibiting violent
conduct, possession of a \veapon~ refusing a
direct order and assault on an inmate. The
charges arose from an allegation that he had
used a razor to slash another inmate's face and
refused a correction officer's orders to desist.
\X-'hen he was returned to his cell he was
observed removing an article from his mouth
that appeared similar to the weapon used in the
attack and Hushing it down the toilet. The
charges were afttrmed based on the misbehavior

Pro Se Vol. 13 No.2 Page 7

report, an unusual incident report and certain
confldential information.
Petitioner challenged the hearing on the
grounds that the hearing offlcer failed to notifY him
that confldential infonnation was going to be used
in tbe hearing and for failing to state a reason that
the information should be kept confidential.
Generally, when confidential infotmation is used in
a prison disciplinary hearing, the hearing offlcer
must inform the inmate that it is being used and
state why it cannot be disclosed. Jee,i\latter of
Boyd v. Coughlin, 481 N.Y.S.2d 769 (.lrd Dep't
1984).
Here, however, the court found that the bilure
of the hearing officer to do so was hannless
hecause the evidence produced at the hearing was
sufficient to sustain the charges even without
consideration of the confidential information.
Moreover, the confidential information rclated to
a collateral incident ,md not to the petitioner's guilt
on the charges themselves.
Under these
circumstances, the Court found, there was "no
basis to disturb the determination."

Confidential Information:

Witnes.~es

Matter of Moore v. Miller, 749 N.Y.S.2d 312 (3rd
Dep't 2002)
Petitioner was found guilty of violating prison
disciplinary rules regarding assaults on other
inmates. The misbehavior report stated that three
contldential witnesses had witnessed petitioner
assault another inmate on the basketball courts.
Petitioner appealed, asserting that the Hearing
Officer did not asseSS the reliability of the
contldential inf()rmants. The Court disagreed. The
Court found that the Hearing Officet· had
personally interviewed one of the informants and
conducted a detailed interview with the offlcer who
received the information from the other two
informants. This g,tve him sufficient hasis to
detennine the credibility and reliability of the
The court concluded that the
informants.
confidential inf()rmat1on, 1ll addition to the
misbehavior report and the other testimony,

provided substantial evidence of the petitioner's
guilt.
The Court also rejected petitioner's claim
that he was denied witnesses. The Court found
that one of the witnesses petitioner had called
had refused to attend the hearing because he
claimed not to have seen the incident. The
other witnesses called by the petitioner were
correction officers, and the hearing offIcer had
concluded that their testimony was i'1"elevant to
Under those
the incident in question.
circumstances, the Court held, there was no
reason to conclude that petitioner was
improperly denied witnesses.

DnJg Testing: Urinalysis Testing
l\1atter of Ouinones v. Selsky, 747 N.Y.S.2d 64
(3nl Dep't 2002)
Petitioner was found guilty of refusing to
obey a direct order and violating urinalysis
testing procedures on the grounds that he failed
to provide a urine sample within three hours
after being requested to do so. Petitioner
appealed, arguing that the charges should be
dismissed because he spoke and understood only
Spanish and he was never told, in Spanish, of
the consequences of his failure to provide the
urine s;unple. The Supreme Court rejected this
claim. The Court found that the record
ref1ected that petitioner was provided with an
interpreter from the time he was ordered to
provide the sample up until the time of his
disciplinary hearing and that he repeatedly
aHirmed that he understood the proceedings.
After thc Supreme Court's decision, the
petitioner made a motion to rcopen his case
based upon allegedly newly discovered evidence.
In his motion he argued that his inability to
produce the urine sample was not his fault: it
was caused by a condition known as "social
phobia," one symptom of which can be tbe
inability to urinate when others are present. In
support of this motion he suhmitted medical
records from a psychiatric center documenting

Pro Se Vol. 13 No.2 P!t."'C 8

that he had actually been diagnosed and treated for
social phobia. The Supreme Court nevertheless
denied his motion on procedural gronnds.
The Appellate Division affirmed holding that
a motion to reopen must be based on newly
discovered evidence. The medical documents
submitted by petitioner predated the rehlr11 date of
his Article 78 proceeding.
Thus, the facts
contained in tbose documents were known to him
at the time of his original proceeding and could
have been presented by him at that time. Under
those circumstances, the Court held, a Court
should not rcopen a case that has already been
litigated.

Employee A.~si.~tance : Harmless Error
Matter of Brown v. Goon], 750 N.Y.S.2d 800 (3rd
Dep't 2002)
Petitioner
challenged the results of a
disciplinary hearing in which he was found guilty of
violent conduct, assaulting staffand interferingwith
an employee. Petitioner claimed that he was denied
adequate employee assistance because his assistant
rehlsed to provide him with various documents,
including medical records and photograpbs
describing the injuries he allegedly inflicted upon
the staff. The court rejected his claim. The court
found that the petitioner had failed to establish tbat
he suffered any prejudice from any alleged
deficiencies on the palt of his assistant. The Court
believed both the employee assistant and the
hearing officer were wrong to assert that the
medical records and photographs of the correction
oHicers were irrelevant to the chargcs. The Court
nevettheless concluded that petitioner had snffered
no injury from their error because similar
information regarding the correction officer's
injuries was contained in other documents that
were in the record. Accordingly, the Court
concluded, the hearing officer's error was harmless.
Practice Pointer:
Often, in (balle1(gi1ig a
disdplinaty beating, it ir neeeHaty to JbOt!' b011/ ,my allfcged
prvcedural defect in tbe conduct o/tbe beatitig worked qgainst

'your abili(y to d~jend..YOtmelf OtbmiJiJe, tbe tYitllt meg
find tbat tbe emr Jl'aJ "bamIle,r,r" and iJ notgrrmndsjor
tr/Jeni1(g tbe fwdt.
Exhaustion ofAdmiJlistrative Remedies
MatterofDa~none v.

Goord, 748 N.Y.S.2d 707

(3rd Dep't 2002)
Petitioner was found guilty in a Tier III
hearing of violating a number of disciplinary
rules, including attempted escape. The hearing
was reversed on administrative appeal because
the tape recording was incomplete and only
partly audible. A re-hearing was held and
petitioner was again found guilty. He tlIed a
second administrative appeal. \'Vhile the second
appeal was pending, he filed an Article 78
proceeding arguing that it had been improper
for DOCS to order the second hearing and
asserting that the charges should have been
reversed after his initial appeal. DOCS' moved
to dismiss the case, arguing that the petitioner
had failed to exhaust his administrative remedies.
The court agreed with DOCS. By arguing
that the second hearing had been improperly
brought, the Article 78 proceeding was, in
essence, seeking judicial review of that hearing.
The administrative appeal ofthe hearing was still
pending, however. Consequently, the Article 78
proceeding was commenced prematurely and
was appropriately dismissed.
Practice Pointer:
You must exbaust
admit/istratille frmedieJ j)/ior to btingi1(g aft Artide 78
proceeding.

Notice: Possession ofContraband
Matter of Edwards v. Goord, 748 N.Y.S.2d 707
(3rd Dep't 2(02)
Petitioner was found guilty of violating
prison disciplinary rules regarding the possession
of a weapon after a search of his cell revealed a
metal shank hidden in the binding of a book.

Pro Se Vol. 13 No.2 Pap::; 9

Although he admitted at the hearing that the book
was his, petitioner argued that he did not have
exclusive access to his cell and had no idea that a
weapon was hidden in the binding. Tbe Court held
that these assertions merely created an issue of
credibility; the hearing oftlcer was free to resolve
the issue against the petitioner. The Court noted,
a reasonable inference of possession may arise from
the fact that the weapon was found in an area
within the inmate's control.
Petitioner also argued that the hearing should
he reversed on the ground that the misbehavior
report had failed to provide him with adequate
notice of the charged misbehavior because the
author of the report had failed to sign it or note the
date of its preparation. The Court rejected this
argument too, noting that the missing information
did appear in the body of the report and, the
reporting ofticer testified at the hearing and was
Under those
available for questioning.
circumstances, the Court held, petitioner had failed
to demonstrate any prejudice as a result of the lack
of infonnation in tbe misbehavior report.

Statute ofLimitations
Matter of Lott v. Goord, 745 N.Y.S. 2d 119 (3rd
Dep't 2(02)
Petitioner was found guilty of violating certain
disciplinary rules. The decision was administratively
affirmed on February 9, 2001. The Statute of
Limitations for commencing an Article 78
proceeding is four months from the date on which
you receive notice that the decision you wish to
challenge has been administratively aHirmed. In
this case, the petitioner had until, approximately,
June 11,2001, to file an Article 78 proceeding, i.e.,
four months from February 9, 2001 (June 9, 2001,
fell on a Saturday.) (He may have had a few
additional days, because the statute runs from the
date you receive notice of the aftlrmance, not the
date on which the decision is actually aftirn1ed.)
On May 25, 2001, petitioner attempted to
commence an Article 78 proceeding challenging the
hea.ring. He submitted his papers, including a

proposed order to show cause, a verifled
petition and an application for poor person's
relief, to the Supreme Court in Ulster County.
Approximately 10 days later, on June 4, 2001,
the Court Clerk informed him that his papers
were being returned because he had used an
outdated form for his poor person's application.
When returning all the papers, the Court Clerk
enclosed what was intendecl to be the proper
form. However, when petitioner resubmitted
this fonn with all his other papers, it was
discovered that the Court Clerk had sent him
the same out~ot~date form that be had
submitted with his original papers. On June 20,
2001, the Court Clerk provided him with the
correct form for poor person's relief. By then,
however, the Statute of Limitations had passed.
Petitioner submitted the completed form and
the proceeding was commenced on July 5,2001,
the date on which it was received by the Court
Clerk and ;U1 index number was assigned. The
Supreme Court d,en dismissed the petition on
the ground that the Statute of Limitations had
passed.
The Appellate Division reversed the
decision of the lower court. The Court held:
"Upon review of the particular circumstances of
this case, assuming that the commencement of
this proceeding was untimely, we deem it
appropriate to correct any mistakes that
contributed to the flndingofuntimeliness." The
Court reinstated the petition "in the interest of
justice."
8ub.~tantial Evidence

Matter of Rushing v. Goord, 749 N.Y.S.2d 314
(3rd Dep't 2002)
Petitioner, an inmate, suffered two
fractured ribs and a split lip after an altercation
with a correction ofticer. The correction oHicer
wrote a misbehavior report charging petitioner
According to the
with assault on st:aff.
misbehavior report, petitioner had punched the
oHicer in the face without provocation. At the

Pro Se Vol. 13 No.2 Page 10

disciplinary hearing, petitioner disputed this version
of the events. He testified that the correction
officer had assaulted him because of the nature of
his crime. The hearing oHicer refused to credit
petitioner's version of events and found him guilty.
Petitioner appealed.
The Third Department aHirmed the hearing
"'fhe disparity between
officer's findings:
petitioner's description of the incident and that of
the correction officer's raised an issue of credibility
As
for resolution by the Hearing Officer.
substantial evidence supports the determination
under review, it will not be disturbed."

Practice Pointer: /t is not enO/(gb, in a dltJllel(ge
to a disdplinmy bearil(g, to sboJl) tbat tbe betllil(g offieer did
110t believeyollr side oftbe story. 1'011 mllst sboJl' eitber tbat
tbe bearing officer's conclllrtollJ )nle not sllpjJOIted I?y
"JNbstantial etidence" or tbat tber" Jl'ilS a JeriollsjJIYJCcdllral
envr ill tbe condud oftbe betllil(g Jl'bicb prevcntedyoufTom
bating i1Jilir cbance to pmenlyollr side oftbe stO!Y.
Matter of Whitfield v. Fischer, 739 N.Y.S.2d 720
(2nd Dep't 2(02)
Petitioner was charged with violating a prison
disciplinary rule prohibiting the possession of
stolen property. The charge arose from his failure
to return three books he had borrowed from the
prison library. Upon receiving the misbehavior
report he immediately returned the books. At his
disciplinary hearing he claimed to be unaware that
they were overdue. The hearing officer found that
because he had borrowed books from the library in
the past it conld be "assumed" that he knew the
rules and was therefore guilty of intentionally
keeping the books.
The Appellate Division reversed. The Court
held that there was no evidence presented to
support the hearing officer's assumption that
petitioner had intended to keep the books. The
only evidence presented at the hearing was that
petitioner had unintentionally retained the books
beyond their due date and that he immediately
returned them upon being informed that they were
overdue. That evidence, the Court concluded,

"does not give rise to an inference of any
intentional wrongdoingwith reg<lrd to the books
and can be distinguished from cases in which
inmates intentionally damage library books or
otherwise evidence an intent to prevent their
recovety."

Vagueness ofRules

Matter of Mitchell v. Fischer 752 N.Y.S.2d 97
(2nd Dep't 20(2)
Pelitionerwas found guilty of violating Rule
107.10 (7 NYCRR 270.2IBI18j[i]) after throwing
,vater at a correction officer. Rule 107.10 states
that an inmate shall not physically or verbally
obstruct or interfere with an employee at any
time. Petitioner ar2ued that this rule was
"
unconstitutionally vague and failed to provide
him with adequate notice of precisely what
conduct was prohihitcd. The Court found that
a nIle is not unconstihltionally vague if it
"informs a reasonable person of the nature of
the offense prohibited and what is required of
him or her." The test is whether the stahlte
provides an adequate warning as applied in a
specitic situation. "A vagueness challenge" the
Court held, "must be addressed to the facts
before the court, and a court cannot consider
the possibility that a statute may be vague as
applied in other hypothetical situations."
[n tl1is case, the petitioner supported his
argument with hypothetical facts. The Court
dismissed his hypotheticals and held that a
reasonable person wonkl understand that
throwing water at a correction officer would
violate the rule because it would be likely to
physically interfere with the oHieer's duties. As
;lpplied to these facts, therefore, the Court held
the rule was not unconstitutionally vague: [t
provided petitionerwith adequate notice that the
conduct in which he engaged was prohibited.

Pro ScVol. 13 No.2 Page 11

1\latter of Hughes v. Goord, 750 N.Y.S.2d 798 (3rd
Dep't 20(2)
Petitioner was found guilty of possessing
contraband after officers discovered a list of three
omcers, with their social security numbers, in bis
cell.
He asserted that he had obtained the
information through a Freedom of Information
Law request while serving as a legal assistant
assisting another inmate with an assault claim
against the officers. In court, he argued that the
rule agamst possesston of contraband was
The rule defines
unconstitutionally vague.
"contraband" as "any ;lrticle that is not authorized
by the superintendent."
The Court rejected petitioner's claims. "We
find this language sufficient to have pl;lced
petitioner on notice that he would be in violatjon
by retaining personal infomution reg'trding
correction officers at least two years after he could
have held ;lny reasonahle belief that he was
;luthorized to possess it. Petitioner's professed
ignorance of this rule does not dictate a contrary
result as applied to these facts."
P,unilv COllrt

Termination ofParental Rights
In Re Guardian Ship of Tamara Liz H, 752
N.Y.S.2d 634 (1st Dep't 2(02)
A finding of "pettmment neglect" of a child
may result in the termination of parental rights and
in the child being placed nnder a guardiamhip or
placed for adoption. In this case, a finding of
permanent neglect was supported by the fact that
the respondent-mother, who was incarcerated,
"failed to offer any resource for die child other
than continued foster care for as long as she
rernained in prison.n

The court noted fhat although the
Commissioner of Social Services for the City of
New York had tried to encourage and strengthen
the parental relationship by arranging for the
respondent to visit the child, the respondent was

absent without notice from most of the visits
and was eventually incarcerated at a facility
impractical for the child to visit, due to a medical
condition which made travel difficult. Although
the agency infcmned the respondent of the
child's medical condition and the special
therapies she would require, the respondent was
unable to offer a viable caretaker.
The court held: "The Legislature did not
intend to approve a plan of indefInite foster care
for the child of an incarcerated parent who is
serving a lengthy prison tettll and who cannot
provide the child with an alternative living
arrangetnent.

l
'

Visitation
Matter of Rodenbaugh v. Gillen, 738 N.Y.S.2d
621 (4th Dep't 2(02).
The petitioner, an inmate, sued in Family
Court for visitation with his child at the
correctional facility where he was incarcerated.
Family Court granted his petition, but limited
the visitation to only four days per year during
specified months. Petitioner appealed. The
Appellate Division afilttned the order fe)r
"reasons stated in the decision at Family Couti"
(which it did not repeat). It added that the
Family Court did not abuse its discretion in
t,tiling to specify the duration of each permitted
visit: There was no evidence in the record
conceming the length of each visit. The Court
held, in view of evidence that the child was
uncomfortable in petitioner's presence, it Inay be
appropriate to impose limits on the duration of
the visit. If the parent who had custody of the
child were to act unreasonably in limiting the
duration of the visits, the Court concluded,
petitioner conld seck modittcation of the order
of the Family Court to specify the duration of
each visit.

Pro Se Vol. 13 No.2 Page 12

State Court: Conditional Release. Parole. Post
Release Supervision
Conditional
Requirenlents

Release:

Programming

Matter of Bolster v. Goord 752 N.Y.S.2d 403 (3rd
Dep't 2002)
Petitioner pleaded guilty to one count of
burglary in full satisfaction of an indictment which
charged him with a variety of other offenses,
including several sex offenses.
During his
incarceration he refused to participate in DOCS'
treatment program for sex offenders on the ground
that he had not been convicted of a crime involving
sexual misconduct and had never admitted
committing any of the unlawful sexual acts that had
been alleged in the indictment. When he became
eligible for conditional release the Time Allowance
Committee withheld his good time based on his
refusal to attend the sex offender program.
Petitioner brought suit, seeking to restore his good
time.
The Court affirmed the decision of the Time
Allowance Committee. "Good behavior allowances
are a privilege" held the Court, " 'and no inmate
has the l~ght to demand or to require that any good
behavior allowance be grdtlted.''' (Citil{~ 7 NYCRR
260.2.) So long as the TAC's decision to withhold
good time is made in accordance with law and is
not arhitrary or capricious, it is not subject to
judicial review.
In this case, the Court found the decision to
withhold petitioner's good tifne had a rational basis
in the record based upon the contents of the presentence report. Moreover, the Court found, the
crime for which he was convicted, burglary in the
third degree, had an element of sexual misconduct
underlying it. Based on these facts, the Court
concluded that the decision to withhold petitioner's
good time "had a rational basis in his failure to
participate in a program designed to treat the type
of behavior that led to his conviction and
itnprisonment."

Parole Denial
Torres v. New York State Division of Parole,
750 N.Y.S.2d 759 (1st Dep't 2002)
Petitioner challenged the denial of his
request for parole. His instihJtional record was
extremely positive. He had a record of good
behavior while incarcerated, he had many
accomplishments and a good work record while
in prison, many letters of support were
submitted on his behalf, and his employability,
his involvement in institutional programs and his
plans upon release all weighed heavily in favor of
granting parole. Nevertheless, the Board denied
parole. The Court found that the Board did not
act "arbitrarily and capriciously" in denying him
parole, notwithstanding his positive record. The
Court held that his positive post-conviction
activities, however commendable, remained
overshadowed by the "extraordinary severity" of
his crime.

Parole Violati011s
Matter of Ramos v. New York State Division of
Parole 752 N.Y.S.2d 159 (3rd Dep't 2002)
Petitioner, while on parole, was convicted
of a new ottense in Florida. After serving:
c, his
Florida term he was returned to N L'W York on a
At a parole revocation
parole warrant.
proceeding, he pleaded guilty to one violation
charge. As part of his plea agreement, the
Administrative LawJudge recommended that he
be held for 30 months, with the understanding
that tbe Parole Board would not be bound by
that recommendation. Thereafter, the Board
determined to hold him to his maximum term.
Petitioner brought suit, alleging that his guilty
pica was not "knowing and voluntary" because
he had not understood that tlle Board was not
bound by the ternlS of the plea agreement. The
court disagreed. The record showed that he had
been represented by counsel at the revocation
hearing, he was advised by tlle ALJ that the

Pro Soc Vol. 13 No.2 Paw: 13

Board could decide to hold him heyond the
recommended 30 months, hc was asked whether he
understood the consequences of the plea
agreement and he was told that he could plead "not
guilty." Moreover, he affirmatively stated that he
understood the plea. Under those circumstances,
the court found, he could not argue that he did not
understand the possible consequences of his plea.

Sex Offenders: Sex Offender Registration Act
Matter of Mandel, 742 N.Y.S.2d 321 (2nd Dep't
2002)
New York's Sex Offender Registration Act
(SORA) (Correction Law Art. 6-C) requires that
individuals convicted ofcertain sex offenses register
their residence with the State of New York. SORA
also provides the criteria concerning who must
register in cases in which the offender was
convicted outside the State of New York (.ree
Correction Law § 168-a 121 [b]), as well as
pwcedures to ensure that out-of-state offenders
are registered (see Correction Law § 168-k).
Petitioner was convicted in federal court of
possession of child pornography. He was later
notified that his case had heen referred to the New
York State Board of Examiners of Sex Offenders
for review, and for a determination of whether he
was required to register with the Stedte ofNew York
as a convicted sex offender. His attorney sent a
letter to the Board arguing that registration was not
warranted. The Board nevertheless determined
that registration was required on account of the
federal conviction. It recommended that the
petitioner he assessed a "level 1" risk and (as the
statute requires) referred the matter to County
Court for a hearing.
At the hearing, petitioner asserted that the
Board had incorrectly determined that he must
register. The County Court concluded that it was
without authority to review that claim in a SORA
proceeding and petitioner appealed.
The Appellate Division affirmed tl,e decision
of the County Court. Under SORA, the Board of
Examiners is empowered to determine whether a

person must register. The County Court's
function is limited to determining the duration
of the registration and the level of risk
assessment assigned. Since the court's function
in a SORA proceeding is limited, it was without
autllOrity to review the underlying determination
of the Board that petitioner must register. In
order to challenge that decision, petitioner
would have to bring a separate Article 78
proceeding against the Board.

State Court: Sentence Computations
Concurrent Sentences: DOCS' Authority to
Challenge Sentence
Matter of Murray v. Goord, 747 N.Y.S. 2d(lst
Dep't 2(02)
The facts ofthis sentence computation case
are complicated, hut the ultimate holding is not:
The Court concluded that DOCS h;L'i no
authority to change the terms of an inmate's
sentence, even if it thinks the sentence was
illegal.
The petlnoner in this case was first
sentenced on a drug conviction. Later, in front
of
another judge, he pled guilty to a
nYdUslaughter charge.
The judge in the
manslaugh ter case ordered that the sentence run
consecutively to the sentence previously
imposed in the drug case. The two convictions
were then consolidated for appeal. On appeal,
the Appellate Division reversed the drug
conviction hut affitmed the manslaughter
conviction. The petitioner returned to Supreme
Court on the drug case and accepted a plea
bargain on condition that the sentence imposed
run concurrent with the sentence already
imposed in the manslaughter case. The judge
accepted his plea ,md ordered that tlle new
sentence run concurrent with the manslaughter
sentence.
When petitioner arrived in state custody,
however, DOCS took the position that the
concurrent sentence was illegal. It made several

Pro Se Vol. 13 No.2 page 14

arguments, one of which relied upon Criminal
Procedure Law section 430.10. That section
provides, "[e]xcept as otherwise specitically
authorized by law, when the court has imposed a
sentence of imprisonment ,md such sentence is in
accordance with law, such sentence may not be
changed, suspended or interrupted once the term
or period of the sentence has commenced."
DOCS aroued
that because the manslauQhter
b
sentence bad already commenced, it could not be
changed, under CPL 430.10, by the subsequently
imposed sentence in the drug case.
The Appellate Division disagreed. As an initial
matter, the Court held that DOCS had no
jUl1sdiction to challenge the commitment it had
received in the drug case. "Irrespective of any
opinion [the Department] might entertain towards
the order of commitment [ in the dmg case] they
are not vested with the discretion to ignore its
terms. As the last order of commitment reccived
from the Supreme Court, the order supersedes any
prior order of commitment. Furthennore, by
presuming to determine the court's authority to
issue tlle order, respondents have intruded upon
the prerogative of this Court to decide lany legal
question that may arise concerning the order]."
Moreover, in ~Ulalyzing the commitment itselt~ the
Court concluded that it was entirely legal, despite
DOCS' objections.
~,

Jail Time: DlmJissal/Acqllittal Clallse
Matter of Guido v. Goord, 749 N.Y.S. 2d 915 (3rd
Dep't 2002)
In 1989, petitioner was arrested and charged
with several crimes in Florida. He was eventually
acquitted of some of the charges and, on April 22,
1990, the remaining charges wcre dismissed. The
next day, on April 23, 1990, he was extradited to
New York to face charges in that State. He was
convicted of the New York charges ~md sentenced
to a term of 12 '/2 to 25 years. He then
commenced an Article 78 proceeding arguing that
his New York sentence should he credited with the

411 days of jail time that he had previously
served in Florida.
Penal Law § 70.30(3) addresses jail time.
The so-called "dismissal!acquittal clause" ofthat
statute states: "In any case where a person has
been in custody due to a charge that culminated
in a dismissal or an acquittal, d1C amount of time
that would have heen credited against a scntence
for such charge, had one been imposed, shall be
credited ag;unst any sentence d1at is based on a
charge for which a warran t or commitmen twas
lodged during the pendency of such custody."
Here, the petitioner's Florida clhlrges were
dismissed and the New York State warrant was
lodged against him during the pendency of his
Florida custody. Thus, one would think that the
plain language of the statute requires that the
amount of jail time that would have been
credited to the Florida sentence, had one been
imposed, should be credited to the New York
sentcnce. However, that isn't the casco
Although the dismissal!acquittal clause
would apply if bodl of the charges had arisen in
New York, the New York courts have
"established an entirely different set of rules" for
situations in which aNew York prisoner seeks
credit for jail time spent in a foreign jurisdiction.
Matter of Keffer V. Reid, 47:3 N.Y.S.2d 479 (2nd
Dep't 1984) dting Matter of Peterson v. New
York State DeDt. of Correctional Services, 473
Under those
N.Y.S.2d 473 (1984).
circums tances, the jail time served on the
dismissed charges can only he credited to the
New York sentence if the prisoner can
demonstrate that dIe confinement was filMy the
result of the New York warrant or detainer. In
this case, petitioner's incarceration in Florida
was not due solely to the New York detainer,
but also by the criminal charges that had been
tIled against him in Florida. Therefore, the
Court held, petitjonerwas not entitled to receive
credit against his New York sentence for that
time he had served in Florida.

Pro Se Vol. 13 No.2 Pare 15

State Court: Other
Lag Pay
Matter of Williamson v. Goord, 730 N.Y.S.2d 387
(4th Dep't 2(01)
Petitioner appealed the denial of a grievance in
which he challenged the lag pay provision of
DOCS' Directive 2788. This provision requires the
equivalent of 15 days' wages to be withheld from an
inmate while he or she is incarcerated and returned
upon his or her release frorn incarceration.
Petitioner contended that no wages should bc
withheld from him because he had been sentenced
to life imprisonment without the possibility of
parole.
The Court rejected petitioner's argument.
DOCS, the court held, has broad discretion over
the wages of inmates and may hold them in tmst
until ,Ul inmate is released. Courts will not interfere
with DOCS' exercise of that discretion '\lbsent a
showing of a statntory violation or an abuse of
discretion." Neither of those had been shown in
this case. Herc, the CoUtt noted, the petitioner
could be released from prison for a variety of
reasons, including medical furlough or revers'al of
his judgment of conviction or modification of his
sentence on appeal, at which time the withheld
wages would be returned to him.

Court ofClaims
Late Claims: Medical Malpractice
Matter of Gonzalez v. State of New York 730
N.Y.S.2d 387 (3rd Dep't 2(02)
Plaintiff had a tooth extracted at Sullivan
Correctional Facility in November of 2000, but
continued to experience pain. ]n January of 2001,
an x-ray revealcd the presence of a bone fragment
in the area of the original extraction. The bone
fragment was removed by an oral surgeon.
Approximately four months later, tbe plaintiff
sought permission to file a late "notice of intention

to file a claim" against the State of New York
for medical malpractice. The Court of Claims
denied the application and the Appellate
Division afiirmed.
To bring a lawsuit against the State of New
York in the Court of Claims you must either file
the claim within ninety days of the incident
about which you are suing or serve a "Notice of
Claim" upon the New York St'lte Attorney
General within the same time. If you fail to do
either of these things within ninety days you may
apply to the Court for permission to file a late
claim within the one year statute of limitations.
In determining whether to grant the request
f"r permission to ttle a late claim the Court will
consider whether the delay in filing the claim
waS excusable, whether the state had notice of
the essential tacts constituting the claim,
whether the state had an opportunity to
investigate the circumstances underlying the
claim, whether the claim appears to be
meritorious, whether the failure to file or serve
upon the attorney general a timely claim or to
serve upon the attorney general a notice of
intention resulted in substantial prejudice to the
state; and whether the claimant has any other
availablc remedy. Court of Claims Act § 10(6).
The Notice of Intention should have been
served within ninety days of the January 200],
extraction of the bone fragment. The plaintiff
offered no explanation for the four-month delay
in bringing his action. Additionally, he failed to
provide any medical evidence to support his
allegations of dental malpractice. In light of
tbose facts, and upon con.sideration of the other
factors listed in the Court of Claims Act, the
court found no reason to overturn the lowcr
court's decision.

Practice Pointer: A Notice o[IlItention tofile
a Claim I1J!1st be sewed Ifpon tbe Attomey Gelleral
uitbill 90 daY.' ofthe went abolft whicbyoll u'allt to slfe.
Ifyotl JJJ!lS't rrqtlest permission til file a late dalm, 'y0ll
mlfst tell tbe COlllt w~y'yoll ll'eIE Ifnable tojile tbe claim
on time. To prewll ill a medictJ! l1laipmdice cilse,]<J!I
tJll1stpresent l1lediml etidelJce, ex, ill1 4/irJaliitfivtJJ 11

Pro Se Vol. 13 No.2 Pm 16

doctor, that the car~ ]OU receit,td deliated fivtt! accepted
medical pradit~ ami that J'Nch deviation caused]our ilpury.

PLS SETILES MENTAL HEALTH
CLAIMS ON BEHALF OF INMATES

Res Ipsa Loquitur

PL'; recen tly settled two cases alleging an
Eighth Amendment violation of inadequate
mental health care on the part of DOCS
employees. In Charnock v. Padman, et. al,
PLS sued DOCS otTtcials for failing to
adequately treat an inmate who suffered from
a mental illness. Mr. Charnock, the plaintiff,
suffered from a panic disorder. He had been
taking the anti-psychotic medication Xanax, as
well as other medications, for over 18 months.
He was transferred to Marcy Correctional
Facility on a Friday and upon arrival was told
that the medications he had been taking were
not available at the pharmacy but would be
available the next Monday. On Monday, the
defendant, Dr. Padman, ordered that Mr.
Charnock's medications be discontinued. He
began to suffer severe anxiety attacks ,LS a
result of the withdrawal of the medication and
he eng-aged in bizarre behavior that resulted in
him being charged with misbehavior and
placed in solitary confinement. Five days after
the medication had been discontinued, he
attempted to commit suicide.
PL'; tiled two actions on behalf of Mr.
Charnock. In Charnock v. State, brought in
the Court of Claims, Mr Charnock alleged that
defendant's actions constituted medical
malpractice. In Charnock v. Padman, et. a!',
brought in federal court under §1983, he
alleged that the defendant's actions constituted
deliberate indifference to his serious medical
needs, the constitutional standard.
During discovery in the federal action, the
Assistant Attorney General indicated mat
DOCS was willing to settle hoth claims. On
the Court of Claims case, the State offered to
provide a monetary settlement to Mr.
Charnock. On the federal section 1983 case,
the defendants offered to amend DOCS'
Directives to provide uninterrupted health care
to inmates during and after transfer.

Imhotep v. State of New York, 750 N.Y.S.2d 87
(2nd Dep't 2002)
Claimant, an inmate, sued the State after being
injured when a bulletin board in bis cell fell on him.
A trial was held. Claimant testified that the last
person to handle the bulletin board was the inmate
who occupied his cell previously. There was no
evidence regarding what caused the bulletin board
to fall, nor any that the State had been notified of
the existence of a dangerous condition. Claimant
asserted that he was entitled to a judgment as a
matter of law under the doctrine of res ipsa loquitm:
Res Ipsa Loquituris a Latin phrase meaning "the
thing speaks for itself." In the law of negligence it
is a claim that a particular accident could not have
happened unless the defendant was negligent. If
established, it means that the claimant should win
his suit with no evidence other than the fact that
the accident occurred.
In Imhotep the Court rejected claimant's
assertion that he was entitled to judgment based on
the theory of res ipsa !oquitur; The Court noted that
the doctrine can only be invoked if the claimant
establishes three elements: (1) the accident is of a
kind which ordinarily does not occur absent
someone's negligence, (2) the accident is caused by
an agenL)' or instrumentality in the exclusive
control of the defendant, and (3) the event was not
the result of action on the part of the plaintiff.
Here, however, the evidence at trial showed that
the bulletin board had been affixed to the wall for
at least eight years prior to falling. Thus, it cannot
be said tllatthe accident was of the sort that would
not ordinarily occur absent negligence.
Furthermore, the claimant testified that the last
person to handle the board was the inmate who
occ-upied claimant's cell previously. Where an
instrument is under the control of persons other
than the defendant, res ipsa loquitur does not apply.

Pro Sc Vol. 13 No. 2 PaFl~ 17

As result of this settlement, in September
2002, DOCS issued a new Directive relating to
the transfer of inmates from a Level 1 to another
Level 1 facility. A new Directive for transfers
involving Level 2 and 3 facilities (i.e., those
without OMH staHl was issued in December
2002.
There are three documents that implement
the new polices: 1) DOCS' Division of Health
Services Policy #1.22 dated 10-01-02; 2) a
revision Notice to DOCS directive #4918,
"Inmate Health Care During Transfer," dated
12/01/02; and 3) a DOCS Policy Revision
Notice, revising Health Service Policy Manual
(J ISPM) #3.07, "Pharmacy Services," datcd
12/01/02.
The new policy provides that when an
inmate is transferred from one facility to another,
staff at the sending facility must fax prescriptions
to the receiving facility and to any in-transit
facility, as soon as the staff knows the transfer
date, route, and destination of the inmate. This
should give receiving and intransit facilities more
opportunity to obtain any medications that they
might not have in stock.
The second case, \Vaters v. Andrews. ct aJ.,
(W.D.N.Y., 97-CV-04(7) involved an Albion
inmate who was placed in SHU for mental health
observation in May 1994 after admitting to prison
authorities that she had considered hanning
herself two days earlier. Ms. Waters alleged in her
complaint that, although she was menstmating at
the time of being strip frisked :md placed into
SHU, she was only provided with one paper
gown, one sanitary napkin and no undergam1Cnts
or other me:ms to hold the sanitary napkin in
place during her approximately 2 '/2 days of SHU
confinement.
She was also denied soap,
toothpaste, a toothbmsh, a washcloth or other
towel, denied a shower while under observation
status and was denied any additional paper gowns
or other clothing even after her gown became
ripped and blood stained, exposing her body to
male correctional staff and construction workers

in the unit. Ms. Waters also alleged that she
was denied appropriate mental health
treatment while confined in SHU.
During discovery defendants offered to
settle.
Negotiations led to the plaintiff
agreeing to enter into a settlement agreement
awarding monetary damages.
Practice Pointer: To establish tltI Ezghth
Ametldm8tit daim for inadequate medictll Mtr, a
pnJ'oner mUJt Ptril~ "deliberate illllitJerence to [bis}
Jet;ous medi",lmedJ." Estelle II. Gamble, 429 U.S.
97 (1976). Tbis Jtatldard has both atl objective and
subjective element. The objedive element requim a
prisonev to Jhow that hiJ !tledical cONditil1ll is atl
objectively JeT;OUS Otic. The mbjertil'e element tequim
the prisoner to jJtvve that the priSOti li!J/rials htld actual
ktloJlJ/e4ge of the seriotlSfleJS of the condition.yet a,.ted
Jvith deliberate indifftmlte to it. Btvck Ii. Ii/tight,
315 F3d 158 (2nd Cir: 2(03).
With respect to the object;w element, it haJ been
held that there iJ no exac(guide aJ to JJ'hat cotlStitutes
tI "seriouJ medical need." In Chance II. ArmJttvnf,
143 F,3d 698 (2nd Cit: 1998), the comt setji;rth a
'1I1oli-exhauftiue lift" rjjrJL10TJ to consider, includi!{g,
1) Ii/hether a nlaJonable dodor or patient would
pttceit}e the medical need in queJlion as 'itnpottant and
tl'orthy oj' COJJlIJJent or treatment,' 2) ni/lether tbe
mediral cotlditiotl sigtlifil'rl1lt!y a!Jcrts daily actilit;eJ,
and (3) the exiftence I(/chtrinil' and Jubstatltialpain.
With rrJj>ect to the subjectilie element, comts b(J/}e
held that prisoners JJJtlft be able to show tbat the PllSOti
offidals kn81i/ that the inmate had a Jeriou.r medical
tondition orfaced substantial ri.rk of sellOUS bamJ and
"disre.gmd[ed} tbtlt rifh by failil{g to tahe reClJoltable
meaJlfn,s to ahate it." Falmer II. Blwmatl, 511 u.S'.
825, (1994). However tbe S'upl~me Court has
empbaJized that the E{gbtb Amendment is not a
I'ebiclefor Ill;tlgitlg mediCtiI mtllpractice cfaiflu, 1Ior it is
a Jlfbstitute for state tOit faUI. Estelle I/. Gamble, 429
u.S'. 97 (1976). "INlot IIWIY lapfc in PllSO!1 medittJI
carE Itiill rise to the lellel of a C01lst;tut;onal/iolation. "
Smith v. Catpentet; 316 F3d 178 (2t1d CiJ: 20(3)
"A prisoner fl/tlft demonstrate more thCltl an

Pro Se Vol. 13 No.2 Page 18

inadveltent failure to prollide adequate medical "m by
p,ison officials to successji,lly eJtabliJb EZgbth Amelulment
liallility." lei.

UNDERSTANDING THE NEW
'SON OF SAM' LAW
In the SUlllmer of 2001, New York State
signiticantly broadened the so-called "Son of
Sam" law. The new law requires that whenever a
person convicted of certain crimes receives
money in excess of $10,000.00, notitication must
be given to the victim of the crime. It also
provides a variety of mechanisms to make it
easier for crime victims to sue the person
convicted of the crime of which they were victim.
The net effect of these changes is to make it
more likely that if you receive substantial funds whether as the result of a lawsuit, or as a gift,
inheritance, or investment - the money will
become the object of a lawsuit by the victim of
the crime for whieh you were convicted. Inmates
expecting to receive such funds will be well
advised to become familiar with the details of tbis
new law.
The law defines a category of funds as
"hmds of a convicted person." Funds of a
convictcd person are defined as "all funds and
property received from a!!y SOUIre" by a person
convicted of certain specitied crimes, excluding
child support and earned income. The specified
crimes include all violen t felonies, all firs t degree
felonies, all "D" felonies, gmnd larceny in the
second and fourth degrees, criminal possession of
stolen property in the second degree, and any
offense "for which a merit time allowance may
not be received." Drug offenses under Penal
Law section 220 or 221, as well as the crimes of
welfare t[aud and g"mbling are excluded. (Thus,
if you were convicted of a dmg offense under
Penal Law section 220 or 221, the law does not
apply to you, even if the conviction was for a first
degree felony or a "13" felony.)

The law requires that if you receive
"hmds of a convicted person" in excess of
$10,000.00, the State Crime Victims' Board
(CYB) must be notified. The law contains a
variety of provisions to insure that the
notification occur. For example, it states that
whenever any person or entity agrees to pay
"funds of a convicted person:' 'whose "value,
combined value or aggregate value...excceds...
$10,000.00," that person or entity must notify
the CVB. See Executive Law § 632-a(2).
Another provision states that the Department
of Correctional Services must notify the CYB
whenever an inmate's inrnate account contains

more than $10,000.00. See Correction Law
§ 500-c(7)
The law also requires the CYB to notify
all of the known victims of the crime for
which you were convicted that you have
received "hlllds of a covicted person." A
"crime victim" is defined in the law not just as
tl'e victim of the offense, but also as the
rejJlrsettt(JtitJe of the victim.
Under some
circumstances, the CVB itself is authorized to
act on behalf of the victim.
In addition, the law extends the statute of
limitations within which a crime victim may
bring a lawsuit against you to recover money
damages for injuries suffered as a result of
your crime. Under the new law there are now
three such statutes of limitations. The first
applies to all crime victims. It states that any
crime victim may bring a suit against the
person convicted of the crime in which they
were injured at any time within seven years of
the conviction for the crime. The second
applies only to victims of one of the crimes
covered by the new Son of Sam law. It states
that those victims may bring suit within ten
yearr of the conviction. The third statute of
limitations also applies only to victims of
crimes covered by the Son of Sanl law. It
states that such victims, in addition to being
able to bring a suit against you within 10 years

Pro Se Vol. 13 Ho. 2 Paw 19

of the convictIOn, may also bring a suit against
you at any time within three years after they
(discover>' that you have received "funds of a
convicted person." So, for example, if you have
been convicted of one of the crimes covered by
the Son of Sam law and you receive "funds of a
convicted person," the victim of your crime may
bring a lawsuit against you at any time within
three years of the date that he or she "discovers"
the existence of the funds.
Finally, the law authorizes the CVB to act to
prevent any person covered by Son of Sam from
"wasting" (t:e. spending) any funds he or she may
receive before the cnme victim has an
opportunity to bring a lawsuit. It can do this by
applying to a court to freeze the funds, pending
the litigation. Using this law, the Board has sued
to freeze seveled! inmates' funds. The net effect
of these changes is to make it highly likely that if
you receive a substantial sum of money from any
source, excepting child support payments or
earned income, the victim of your crime will
become aware of the existence of that money,
<UHf will be able to initiate a lawsuit against you to
obtain damages for injuries suffered as a result of
your crune.
Prisoners' Legal Services continues to receive
numerous questions about this new statute.
Some of the most frequently asked questions are
as follows:

•

Is it possible to avoid the effects of the
statute by giving my money to someone
else, or directing that any money owed to
me be payed to someone else?

Probably not. The statute applies both to
convicted persons and their "representatives." A
"representative" is defined as "one who
represents or stands in the place of another
person, including but not limited to <Ul agent, an
assignee, an attorney, a guardian, a committee, a
conselCVator, a partner, a receiver, an

adnlinistrator, an executor or an heir of
another person, or a parent of a minor."
Executive Law § 621. So, if you try to give
your money to another person, or direct that
the money be given to another person, that
person would become your "assignee", or
representative, <Uld all of the provisions of the
stdtute would apply: The eVB would have to
be notified, they would notifY the victirn(s) of
the crime, and victim(s) would be able to bring
suit against both you and your representative.

•

Is there any money that is excluded
from the notice requirement?

Yes. The statute excludes both "earned
income" and child support payments from the
notification requiretnent. ('Earned income?) is
detlned as "income derived from one's own
labor or through active participation in a
business as distinguished from, for example,
dividends or investments." Since both earned
income and child support payments are
excluded from the detlnition of "funds of a
convicted person" they do not have to be
reported to the CVB, even if you receive more
That does not mean,
than $10,000.00.
however, that "earned income" would not be
available to a crime victim if he or she were to
win a judgment against you. It only means
that payment or receipt of such income would
not have to be reported to the CVIl.

•

What if I settle or win a lawsuit
against the State?

Money that you may win in a suit against
the State (or anyone else) is considered "fimds
of a convicted person" (if you have been
convicted of one of the crimes covered by the
Son of Sam law). Consequently, it would have
to be reported to the CVB if the payment
exceeded $10,000.00. Executive Law 632-a.
See alro, Correction Law § 500-c. HOJvet~r, the

Pro Se VoL 13 No.2 page 20

statute provides that if the money you receive as
the result of a judgment in a lawsuit represents
"compensatory damages", then ten pen~nt of that
money is immune to a judgment on behalf of a
crime victim. So, for example, say you win
$20,000.00 in a lawsuit against Department of
Correctional Services staff based on allegations
that they used excessive force ag-ainst you. Later,
the victim of your crime sues you for damages for
injuries caused during the course of your crime.
Then, $2,000.00 of the money you won in your
suit against DOCS would he immune from any
judgment the victim might obtain against you.
This rule only applies to compensatory damages.
It does not apply to punitive damages. So, if you
win $10,000.00 in compensatory damages, but
$50,000.00 in punitive damages, the rule would
only protect 10% of the $10,000.00 awarded tor
compensatory damages.
•

Is there anything else that is immnne to
a judgment on behalf of the crime
victim?

Yes. The law statcs that the first one thO/lSand
dolltm deposited in your inmate account is
immune from any judgment tl1at a crime vict1m
may obtain against you. This sum is in addition to
the 10'Yo compensatOty damages exclusion
discussed above. Thus, if you have $1,000.00 in
your inmate account, and you win $20,000.00 in
compensatory damages in a lawsuit, $2,000.00 of
the latter, plus the $1,000.00 already 1t1 your
account, would be immune from suit.

•

Does the statute continue to apply even
when I have been released from prison?

Yes. "I'he statute applies to persons who arc
serving an undischarged indeterminate,
determinate or ddinite sentence, including
persons on parole or post-release supervision.
The statute also applies for three years after you
have completed your maximum ternl, or have

been discharged from parole. In that case,
however, only funds that are paid to you as a
result of "any interest, right, right of action,
asset share, claim, recovery or benefit of any
kind" that accrued prior to the expiration of
your sentence would have to he reported to
the CVB. So, for example, if you received an
inheritance two years after your maximum
term had expired, that money would not have
to be reported to the CVE because it did not
"accrue» while you were serving your sentence.
If, on the other hand, two years after your
maximum term has expired, you settlc a
lawsuit about sometlling that happened while
you were incarcerated, you would still have to
report that to the CVE, because the right to
sue accnICd while your sentence was still
runnlllg.
In addition, if you receive earn cd income
during a period when you are supposed to be
under parole supervision, but you are not in
compliance with the terms of your parole, (you
are delinquent) that income will becorne
subject to rhe reporting requirements, even
though it would not be otherwise.
•

Where can I read this new law for
myself?

Un fortunately, the new law was passed in
a complicated way. It was passed as a series of
amendments to a large number of different
sections of law. The actual law consists of
atnendn1ents, for instance, to the Executive
Law, the Corrections Law, the Civil Practice
Law, the Surrogate's Court Act and the
Criminal Procedure I/,lw, among others. Thus,
there is no one single place to view the whole
law. The most important parts of the law,
however, those which define "funds of
convicted person" and state the reporting
requirements for such funds, can be found in
New York's Executive Law, Sec. 632-a. You
should be able to find this in your law library.

Pro Se Vol. 13 No.2 P,we 21

Since this is a new law, you will probably need to
cbeck the "pocket part" to see the arnendments
to section 632-a. Your law lihrarian should be
able to help you with this.

POST-RELEASE SUPERVISION
In 1998, the Legislature passed "Jenna's
Law", part of which requires tbat all persons
convicted of violent felonies receive determinate
sentences. A determinate sentence is one which
does not allow for parole or discretionary release
after the minimum period of imprisonment. An
individual with a determinate sentence may earn
good time and qualify for conditional release but
the good time available is limited to one day for
every seven days served (as opposed to one day
for three days served of an indeterminate
sentence). Thus an individual with a determinate
sentence must serve at least six-sevenths of the
term before becoming eligible for conditional
release. Jee Correction Law § 803(1)(c); Penal
Law § 70040(I)(b).
Jenna's Law also requires that all persons
subject to a determinate sentence serve a period
of "post-release supervision" after release from
prison. Jee Penal Law §70.45. The legislative
history behind these new provisions indicates that
the Legislature passed them as a way to provide
greater protection to the publie and to promote
successful inmate reintegration into the
commumty.
Both the determinate sentence and postrelease snpervision sections of ./enna's Law apply
only to violent felony offenses committed on or
after September 1, 1998. See Penal Law § 70045.
Offenses committed prior to September 1, 1998,
are governed by the law in effect at the time the
offense was committed. A determinate sentence
for a violent felony committed on or after
September 1, 1998, is technically incorrect if it
fails to include a period of post-release

supervision. Post-release supervision is similar
in most ways to parole or conditional release.
It is administered by the Board of Parole,
which is "empowered to establish and impose
conditions during the post release period in
the sarne manner as it does for individuals on
parole or conditional release." Penal Law
§ 7004.5(3). People v. Goss, 733 N.Y.S.2d 310
(3rd Dep't 20(1). Jee afro Executive Low
§§ 259-;~ 259-c, 259-e, 259-f, 259-i, 259-j. In
addition to other parole-type conditions, postrelease supervision may include a mandatory
period of up to six months in a residential
treatment facility immediately following release
from prison. A residential treatment facility is
a "correctional facility consisting of a
community based residence in or near a
community where employment, educational
and training opportunities are readily available.
..." See Correction LlW § 2(6).
Post-release supervision is distinct from
both parole and conditional release, however,
in that you may not turn down post-release
supervision the same way you can tum down
parole and simply "max-out." Post-release
supervision is required by law to f()llow a
determinate sentence.
There is presently controversy over
whether post-release supervision is distinct
from parole and conditional release in another
way. It is well settled that both parole and
conditional release arc discretionary. That is,
the Division of Parole is not required to grant
you parole when you become eligible, nor is
DOCS required to grant you conditional
release. It was assumed however, that neither
DOCS nor Parole had the discretion to hold
you in prison beyond the expiration of your
n1axttnutn tenn of incarceration, even if the

term of incarceration was to be followed by a
term of post-release supervision.
Recently, however, several cases have
corne to the attention of Prisoners' Leg,l!

Pro Se Vol. 13 No.2 page 22

Services in which DOCS and the Division of
Parole have refused to release inmates who have
served their maximum terms of incarceration to
post-release supervision. They have relied on the
language of .letma's I,aw which allows the
Division of Parole to set the conditions of postrelease supervision. They have argued that postrelease supervision, like parole or conditional
release, is discretionary, and that if you are
unable to meet the conditions they imposc for
post-release supervision (for example, if you have
not found housing that satisfies the conditions of
the Division of Parole ), they may continue to
hold you in prison even beyond your maximum
term. This has not yet been unequivocally
decided by the courts but it seems clear that the
Legislal1lre intended post-release supervision to
serve as a period of transition to civilian life, and
did not 1ntend that it be served in prison (absent
a violation of its terms). In at least one case, a
Court has ruled that post-release supervision is 1Iot
like parole in this respect, and that DOCS JfftlJl
release you to post-release supervision when yOll
have served the maximum term of the
determinate sentence. See People ex reI. Lasch v.
Berbary, Index No. I 2002-11884 (Sup. Ct. Erie
Co., Dec. 19, 2002). (rhe State may, however,
place you in a residential treatment facility for the
flrst six months of post-release snpervision.) It is
likely that this issue will continue to be the subject
of future litie:ltion.
,
The length of post-release supervision can
range from one and one half years up to five
years, depending on circums tances. Penal Law
§ 70.45(2). Forfint time violent felony offenders,
sentenced under Penal Law § 70.02, the length of
post-release supervision will be as follows: For
Class B or C violent felony the period of post
release supervision is five years, unless the court
specifies a shorter period of not less than two and
one half years; for Class D or E violent felonies,
the period of post-release supervision is three
years, unless the court specifies a shorter period
of not less than one and one half years. For
..)

second or persistent violent felonies,
sentenced under Pen:ll Law § 70.04, the
period of post-release supervision must be flve
yem:s. See People v. Goss, 733 N.Y.s.2d 310,
314 (3rd Dep't 2001).
Release on post-release supervls10n
interrupts any period of imprisonment left to
serve on an aggregate tnaximurn or maxin1um
sentence. The time rem:lining on the sentence
15 "held 111 abeyance" until post-release
supervision is successfully completed or until a
person is returned to the custody of the
Department of Correctional Services because
of a violation of the conditions of post-release
supervision. Penal Law § 70.45(5) (a). If postrele'Lse supervision is successfully completed,
then any confinement time left on the
maximum sentence (time "held in abeyance")
will be eliminated as the post-release time will
be credited against it. Penal Law § 70.45(5)(b).
Like a violation of parole, a violation of
tbe terms of post-release supervision may
result in revocation of supervision.
111e
revocation and bearing procedures are
generally the same as those for parole and
conditional release. See Penal Law § 70.45(4);
Executive Law § 259-i(3)(4). The penalties for
a violation of post-release superv1s10n,
however, are likely to be more severe than
those for a violation of parole or conditional
If a person on post-release
release.
supervision is found delinquent and has their
supervision revoked they must serve at IecHt six
mond1s in prison before re-rele'Lse to postrelease supervision is possible, even if the
remaining time on the post-release supervision
included in the original sentence was less than
six months. Penal Law § 70.45(5) (d) (iv); Penal
Law §§ 70.45(1), (5)(d). If your time remaining
on the post-release supervision included in the
original sentence is more than six months, the
time assessment for a delinquenLl' may be up
to the remaining balance but not more than
five years. But if the time left from your

Pro Sc Vol. 13 No.2 Page 23

a~"egate

maximum ot~ginal prison sentence
allows for a longer period of further
imprisonment, than the six month to ttve year
limits do not always apply. A longer period in
prison is possible because the period of postrelease supervision will be intemJpted while the
original sentence is completed. Penal Law
§§ 70.45(1) , (5) (d), (e), (t). In other words, if
your post-release supervision is revoked it is
possible that you could go back to prison for
more than five years. Moreover, good time is not
awarded during any time assessment period.
A number of inmates have written to
Prisoners' Legal Services to complain tbat,
although they pled guilty to crimes that would
subject them to the requirements of ]ell11a'S Law,
they were never told that a period of post-release
supervision would be included as part of their
sentence. This situation raises complicated legal
issues.

If you pled JlO! guilty and were convicted ,md
sentenced following a trial, tllen there is really no
legal way to challenge the post-release supervision
attached to the sentence after the conttnement.
All detel1ninate sentences for violent felonies
must include a period of post-release supervision
under Penal Law § 70.45.
on the other hand, you pled guilty, the
result may be different. All guilty pleas must be
knowingly, voluntarily and intelligently made.
Under New York law, this means that the person
pleading guilty must be aware of all tllC "direct"
consequences of his or her plea. People v. Ford,
633 N.Y.S.2d 270 (1995). Thus, at the time of
your guilty plea, the trial court should have made
sure you knew about all the consequences of your
plea which would have a "definite, immediate and
largely automatic etTect" on your punishment.
Ford, 86 N.Y.2d at 403. Post-release supervision
has been held to be a direct consequence of a
plea. People v. Goss, 733 N.Y.S.2d 310 (3rd
Dep't 20(1); People v. Catu, 749 N.Y.S.2d 397
(Sup.Ct. New York Co., Oct. 18, 2002).

It:

Therefore, if you agreed to plead guilty you
should have been told about the post-release
supervision you would have to serve after your
confinenlcnt.

What should yOll do if you were not told
that a period of post-release supervision was
included in your sentence? If you find out
about it only after the time for direct appeal
has passed, the only way to challenge the issue
is with a motion under C6minal Procedure
Law (CPL) Article 440. CPL § 440.10 permits
you to ask the court to vacate the sentence and
allow you to wiilidraw your Hawed guilty plea.
Before doing this, however, you will want
to ask yourself if there will really be any benefit
to you in withdrawing your plea. WithdGlwing
your plea has the legal effect of restoring you
to "prepleading status." CPL § 440.10(7).
The State will press new charges against you.
These may be the same charges you faced
previously or they may be more severe. You
will have to choose whether to plead guilty or
go to trial based on whatever new charges arc
presented. One thing that you will not be able
to do, however, is to plead h'Llilty to the same
charges to which you previously pled guilty
and obtain a nc\v sentence that does not
include a period of post-release snpervision,
since such a sentence would be illegal under
Jenna's Law. See e.g., People v. YekeL 733
N.Y.S.2d 643 (3rd Dep't 20(1); People v.
Cooney, 735 N.Y.S.2d 834 (3rd Dep't 2002).
Thus, witlldrawing your pica mayor may
not benefit you.
In addition, if you are
convicted of any of the violent felony offenses
listed above, your sentence will still include
post-release supervision.
Theref()re, you
should weigh your options carefully and,
preferably, discuss them with an attorney
before proceeding.

Pro Se Vol. 13 No.2 page 24

PLRA Exhaustion Update
[n the previous edition of Pro Se, we
reported on the state of the law which requires
exhaustion of administrative remedies before
E1ing a Sec. 1983 action in federal court. A recent
Second Circuit opinion summarizes some of the
issues currently pending.
In Ortiz v. McBride, decided March 21, 2003, the
2nd Circuit stated:
"This court has noted that under the
administrative scheme applicable to New York
prisoners, resolution of an inmate's grievances
through informal channels can satisfy the
exhaustion requirement of 42 USc. 1997e(a).
See Marvin v. Goord, 255 F. 3d 40, 43, n. 3(2nd
Cir. 2001) (per curiam) (citing 7 NY.C.R.R.
701.1). More recently, we have ordered that
counscl be appointed in four pending cases that
address whether inmates who did not fully
comply with the dictates of New York law
nonetheless exhausted their clain1.s in other ways.
Abney v. New York Dep't of Corr. Servs., No.
02_0241 (2nd Cir. Feb. 13, 2003) (order granting
motion to appoint counsel); Johnson IJ. Reno, No.
02_0145 (2nd Cir. Feb. 13, 2003) (same); Hemphill
II. New York, No. 02_0164 (2nd Cir. Oct. 18,
2(02) (same); Giano II. Goonl, No. 02_0105 (2nd
Cir. Aug. 22, 2(J02) (same). "
In Ortiz, the 2nd Circuit has extended the PLRA
issues it will address stating:
"\'Vhile Ortiz's attempts to exhaust his Eighth
Amendment claim may be more limited than
those at issue in these cases, Ortiz has contended
that he flIed written grievances without receiving
a response and that he was deterred from further
pursuing.. administrative remedies by the guards'
.
threat of assault. And that is enough to raise the
issue currently being considered by us in the four
just mentioned cases.

In addition to the question of whether Ortiz
administrati vely exhausted his Eighth
Amendment claim for purposes of the PLRA
this case raises the question of whether the
PLRA requires that a prisoner exhaust feU]
claim raised in order to be able to proceed on
anyone claim. In other words, if Ortiz has not
administratively exhausted his Eighth
Amendment claim, does the PLRA bar
consideration of his Fourteenth Amendment
due process claim, a claim which all agree was
administratively exhausted? District courts in
this circuit are currently split on tlle question
of whether the PLRA requires such "total
exhaustion."
The 2nd Circuit decided that:
"Given the complexity of these and other
issues in this case, we believe it appropriate to
appoint counsel to represent Ortiz in this
appeal, if he so chooses.... In addition to any
other argurnents counsel rnay choose to raise,
the following issues should be addressed: (1)
whether Ortiz's proffered evidence that he
administratively exhausted his Eighth
Amendment claim satisfies the requirements
of Sec. 1997e(a); (2) whether Sec. 1997e(a)
requires "total exhaustion" and, if so, whether
Ortiz may now witl](lraw ,my unexhausted
claims; (3) whether Ortiz's factual allegations
that the conditions of his confinement in SHU
were unusually harsh sufficed to raise the
question of whether that confinement
implicated a constitutionally protected liberty
interest so as to preclude 12(b) dismissal; (4)
whether Ortiz's complaint adequately pled, or
could be amended adequately to plead, that the
defendants are subject to supervisory liability,
under the test described in Wright v. Smith, 21
F 3d 496, 501 (2nd Cir. 1994), for the alleged
Eighth Amendment violations."

EDITORS: JOEL LANDAU, ESQ., KAREN MURTAGH-MONKS, ESC.). CONTRIBUTORS: PATIENCE SCHERMER,
TOM TERRlZZI, ESQ. COPY EDITOR: ALETA ALBERT PRODUCTION: DAVID BOISVERT
EDITORIAL BOARD: TOM TERRIZZI. ESQ., BETSY STERLING, ESQ., KAREN MURTAGH-MONKS, ESQ