Vol. 15 Number 2: Spring 2005 Published by Prisoners' Legal Services of New York

STATE AND NEW YORK CITY AGREE TO SETTLE
CLASS ACTION LITIGA.TION CHA.LLENGING
UNDER-REPORTING OF JAIL TIME
In a landmark settlement, New York City
and State agencies have agreed to more
accurately credit prisoners for time spent in
custody prior to going to trial. Jusl over a year
ago, two attorneys from the Legal Aid Society's
Special Litigation Unit (SLU), William Gibney
and Michele Maxian, filed the class action case
of Billips v. Hom, 04-CV-1086, in an eftbrt to
address problems faced by mentally ill
defendants and those who are hospitalized
during and after arrest due to health problems.
The case was part of an effort to forr,c New
York City and the State to more accurately
record and certrty jail time. It highlighted the
gross under-reporting of jail time in cases of
mentally ill prisoners who spent time in the
custody of the State Office of Mental Health
(OMH), and those prisoners who were injured
during the course of an arrest and spent time in
the custody ofthe New York Police Department
(NYPD). "The biggest problem is that mentally
ill defendants were being held for examination
and the time they were in custody was being
missed because there really wasn't a system for
the state to talk to the city," said Michele
Maxian ofthe Legal Aid Society's SLU "This is
a particularly vulnerable population because they
are either unable to complain about it or might
not realize that they should be credited for that
time," she added.

Defendants in the case include state
defendants: OMH and the Office of Mental
article continued on page 2...

Also Inside...
Parole Bow Decision:
U.S. Supreme Court Allows
§1983 Challenge. . . . . . . . . . . .. . ..... page 8

Fimt Amendment:
Seizure of New Afrikan Political
Literature May Violate

Inmate's 1"1. Amendment.
More PLRA bsues:
District C,ourt Decisions , . . ,

page 10

. . . page 14

Parole Reheanng Ordered:
Board Fails to C.onsider
Statutory Factors .. " , ,

page 24

Reform of the Rockefeller DIlIg Laws:
Do TIle Reforms Affect You?
page 27
PL~ Say. Goodbye To
Executive Dire(~tor, Tom Tenizzi ... page 34

Subocrihe to Pro

~'kl

.like J,;u:k PNm For details

Thu projm is supported by a grant atlminiatel'ed by the New York Slilte Divisioo qfCriminal JustU~e Servkn. Poinla a/riew in thiN document
ttt'e tltDU! olthe autIuw muJ. do nM n«.aaarily Yepre!lmt the o.ffU"hd position orpolkies ofdut Division ofCrimimd JJI!ltice Sevices.

Pro Se VoL 15 No.2 Spring 2005

Page 2

... article eontinlledfrom page 1

•

accurately record jail time;

Ret.ardat.ion and Developmental Disabilities
(OMRDD), and city defendants: New York City
Department of Correction (DOC), and the
NYPD. Judge Bacr, the Southern District Judge
assigned to the Billips litigation, has approved
t.he settlement., which requires all of the
defendants t.o make concerted efforts t.o
calculat.e and cettifY applicable jail time.

•

certify data daily to DOC regarding custody;

•

on short sentences, provide DOC
immediately infonnat.ion about the arrest
date; and

•

cooperate with requests for an invest.igation
about missing time credit.

THE DEFENDANTS

New York Ci~y DOC

State Defeluiants

For aU individuals in t.heir custody, DOC
agrees to:

For criminal detimdants who have been
found incompetent under CPL Art.icle 730 and
who enter stat.e custody, both OMH and
OMRDD have agreed t.o:
•

provide to any correct.ion staff removing a
defendant from their custody a document
which certifies the number of days that t.he
defendant has spent in their cnstody;

•

provide adequate stafling, equipment, and
t.raining;

•

promptly ent.er OMH/OMRDD custody
infonnat.ion;

•

investigate any gaps in OMH/OMRDD
certification;

•

cooperate with any request for further
infonnat.ion about. custody;

•

make NYPD jail time data available for
access to clerks at Rikers within one day;

•

explain any gaps in the state cust.ody period,
e.g., escape, etc.; and

•

expand its jail time database to include other
jurisdictions by September 30, 2005;

•

review files for any person tbnnerly in their
custody who may have lost jail time under
past practices.

•

investigate ail proper periods ofjail t.ime;

•

have case processors certifY t.hey have
followed all recommended procedures;

•

a courthouse review tor possible release for
all definite sentences;

•

compute state sent.ences wit.hin 2 days of
imposition;

NYI'D
For criminal defendant.s held in NVPD
custody either at a precinct or in a hospital under
police custody during pre arraigrnnent, the
NYPD agrees to:

Pro So VoL 15 No. 2 Spring 2005

•

establish a centralized jail time complaint
person for those no longer in its custody;
and

•

identify everyone who went to
OMHIOMRDD in the past 12 years and
deliver this information to the Legal Aid
Society for an investigation ofjail time.

Page 3

Jail Time Coordinator
New York City Department of Correction
Custody Management & Special Operations
Bureau
17-17 Hazen Street
East Elmhurst, NY 11370
If you do not receive a response after three
weeks, then you should write to:

mE MONITORING PERIOD
The settlement also includes a monitoring
period ofbetween one and two years, which will
be conducted by Legal Aid against the City,
beginning on September 30, 2005, the same date
the City must establish a computer link between
DOC and the NYI'D. The defendants have
agreed to provide relevant documents to the
plaintiffs to assist them with this monitoring. The
length of the monitoring period depends on the
degree to which the defendants comply with the
settlement agreement. Therefore, Legal Aid is
interested in receiving notice of any case
where Ii defendant/inmate is being denied jail
time to which he/she is entitled.
As part of the settlement, Legal Aid will
receive some funds to help defray the costs of
monitoring. Legal Aid is obligated to submit
quarterly reports to the court, which will assess
the accuracy of the City system based on cases
reviewed during the monitoring period.

HOW DOES THIS AFFECT YOU?
This agreement, however, is not retroactive,
in that it does not force the City to search for jail
time that was spent in NYPD custody. Thus, if
you believe that you are entitled to jail time
because of time you spent in NYPD custody,
you should initially send your inquiry to:

William Gibney, Esq.
Legal Aid Society
Special Litigation Unit
199 Water Street
New Yorle, NY 10038

UPDATE
Pm Se appreciates comments from our
readers and encour:u>es readers to contact
us with corrections or" updated infonnation
on cases. To that end, we have received
letters concerning the Persistent Felony
Offender Law article publi..,hed in our last
issue, Volume 15 No. 1. One reader,
Mr. Oliver West, noted that he is the
defendant in the case featured in that
article, People v. West, 783 N.Y.S.2d 473
(1 st Dep't 2(04), and advised us that on
December 27, 2004, the Court of Appeals
granted his leave application. In addition,
another reader contacted uS conceming the
Brown and Rosen cases which were also
discussed in the article, and advised us that
those cases were consolidated and argued
before the Second Circuit in September
2004, but to date, a decision has not been
issued.

Page 4

Pro Se Vol. 15 No.2 Spring 2005

A Message/rom Tom Terrizzi,
Former Executive Director ofPLS

PLS Welcomes New Executive
Director

In this issue of Pro Se, there are an
impressive numher of successful cases litigated
pro se in state courts challenging disciplinary
hearings. The plaintiffs in those cases, either
representing themselves or getting help from
jailhouse lawyers, have often expanded the law
ofTier III hearings, making it possible tor others
to bring successful challenges to improper
hearings or unconscionably long box sentences.
Learning when and how to raise an objection in
a time ofconstantly changing legal requirements
requires very practical CLE [Continuing Lcgal
Education] efforts.
To its credit, DOCS has continued to fund
law libraries in its institutions, allowing those it
holds to take a more active part in tbe appeals of
tbeir criminal convictions. DOCS also permits
those with problem sentence calculations, those
facing long solitary sentences, and those
challenging abuse by staff to be heard in a
meaningful way. When PLS started Pro Se in
1984, we hoped our efforts would supplement
the regular law libraries in a way which would
bring some sense to the rapidly changing face of
prison law. Over the past 20 years, I have heard
from many of you expressing gratitude for our
attempt to help educate. I, in tum, applaud you
for your efforts.
I am leaving PLS after 29 years, but don't
expect to wander far from the ongoing effort to
minimize the use of incarceration and to make
prison conditions more humane. Of the many
things I have been involved with at PLS, starting
and working on Pro Se will always be for me
one of our best efforts to advance the cause of
justice.

PLS would like to welcome our New
Executive Director, Jerry Wein. Jerry comes to
us with extensive management and legal
experience and a strong dedication to legal
services. He began his career as a VISTA
attorney for Bronx Legal Services. He then
developed expertise in administrative and
poverty law and becanle a law professor at
Antioch School of Law. Jerry returned to New
York to work with the Greater Upstate Law
Project as director of training and later as
associate director. More recently Jerry has been
involved in significant training and development
programs for legal services organizations
providing consultation and technical assistance
as well as teaching seminars on advocacy,
supervision and communication skills. We are
very excited about the skills that Jerry brings to
this program and we look f(lrward to working
with him while we continue to build a stronger
and more effective PLS.

News ami Briefs

Jury Verdict of $1.25 Million For Food
Withheld From Prisoner at Supermax
Facility
On December 1, 2004, a federal jury issued
a $1.25 million verdict against defendants at the
Wisconsin Supennax prison, Boscobel, for
witWlOlding food from an inmate. The
defendants had denied food to the inmate,

-

Pm 50 Vol. IS No.2 Spring 2005

Berrell Freeman, for up to nine days for refusing
to comply with prison regulations, including
wearing trousers in his cell, keeping a cell light
on, and standing in sight of the cell door
window.
Boscobel prison was opened in 1999, and
was designed to house what govemment officials
referred to as the "worst of the worst," inmates
who had conduct problems at other institutions.
Mr. Freeman was among the first inmates
assigned to the Supemlax. At trial, guards
testified that when bringing Mr. Freeman his
meals, they would frequently find him wearing
shorts or a stocking tied around his head as a
sweatband, in violation of regulations. In
response, Mr. Freeman was denied his food. He
lost about 40 of his 180 pounds between April
23 and Oct. 12,2003. During one month, he was
served only breakfast.
At the two-day trial, a physician expert,
Linda Farley, testified that the practice of
withholding food from inmates is inhumane. The
jury found that withholding food as punishment
subjected Mr. Freeman to a serious disruption of
a basic human need and demonstrated deliberate
indifference to an inhumane condition of
confinement. Jurors awarded $50,000 in
compensatory damages and $1.2 million in
punitive damages. In light of the jury verdict,
Mr. Freeman's attomey requested an injunction
to prohibit the state prison system from
withholding food to punish prisoners. The court
granted the request, enjoining the defendants
"from withholding meals from plaintiff Berrell
Freeman as a response to any rule violation that
does not constitute an imtninent security risk"
Freeman v. Berge, 2004 WL 3006937
(Deeember 21,2004).

PageS

7'h Circuit Upbolds $56 Million Dollar
Damage Award for Deatb of Inmate
Estate of Moreland v. Dieter, 395 F.3d 747
(7th Cir. 2005)
In a § 1983 action alleging depravation of
civil rights arising from the death ofan inmate in
an Indianajail, a jury recently awarded the estate
of Christopher Moreland a total of $56 million.
The jury found that the defendants, Erich Dieter
and Michael Sawdon, sheriff deputies at the
time, caused the death of Christopher Moreland
by using unnecessary and excessive force. The
award consisted of$29 million in compensatory
damages and $27.5 million in punitive damages.
The defendants appealeAl, asserting evidentiary
and instmctional errors and challenged the
pnnitive damage award as unconstitutionally
excessive. The plaintiffs cross-appealed the
distIict court's summary judgment ruling which
dismissed a cause of action against the sheriff:
alleging official policy or custom in the jail. The
7'" Circuit upheld both the damage award and
the district court's decision granting summary
judgment to the sheriff
The facts of the case are disturbing: Mr.
Moreland was arrested for driving under the
influence and eventually brought to 5t. Joseph
COllnty Jail. He was placed in the drunk tauk
and soon provoked a confrontation. A Sergeant
responded and sprayed Mr. Moreland with
pepper spray. The other inmates in the drunk
tank took cover to avoid the spray but stated
that they heard what they would describe as "the
sound of a basket-ball bouncing off concrete,"
and that it sounded like "a melon popping, like
dropping a watermelon." Although they didn't
see what happened, they guessed that it was the

Page 6

sound of Mr. Moreland's head hitting the
concrete floor. Mr. Moreland was then removed
from the cell and taken to a shower. Defendants
Dieter and Sawdon assisted in getting Mr.
Moreland in the shower. Witnesses said that
"Dieter pushed Moreland into the shower with
such force that [he] hit his head against the far
wall. Mr. Moreland was then sprayed with hot
water, "which exacerbates the pain of pepper
spray." Defendant Sawdon then said to other
officers, "'Hey guys, do you want to see
something funny?, and then he threw a fivegallon hucket ofcold water over Moreland." Mr.
Moreland was then handcuffed and shackled in
a restraint chair. He was cursing and yelling at
the defendants "asking them why they were
doing this to him." He was told to shut up by the
defendants, and then, while Mr. Moreland was
still strapped in the chair, defendant Sawdon
sprayed him with pepper spray again.
The defendants forcibly put Mr. Moreland
into the shower again and then back into the
restraint chair. Some time after, the defendants
moved him to an "attomey's room," where a
medication aide arrived to examine him. "[S]he
described [him] as slouched back in the restraint
chair, moaning, and unresponsive. She saw that
[he] had a cut above his left eyebrow that had
bled profusely." The defendants apparently told
her that Mr. Moreland had slipped and fallen.
The aide indicated that she wanted to transfer
Mr. Moreland to the hospital but the defendants
did not want to because that "would require
them to remain at work." Mr. Moreland was left
in the restraint chair until two day shi.ft officers,
who were passing by the room shortly after 7:00
a.m., found him unconscious in the attomey's
room. One of the officers took Mr. Moreland,
while he was still unconscious, changed his
clothes, and put him back in the drunk tank. The
aide saw Moreland at 9:40 a.m. "coughing and

Pro So VoL 15 No.2 Spring 2005

unresponsive." "At 1I:00 a.m., when she
checked on him again, [he] had not moved. The
next time she checked, Mr. Moreland was blue,
clod and lifeless." He was pronounced dead at
1:23 p.m., the cause of death being noted as an
"acute subdural hematoma that could only have
occurred during the period of time Mr.
Moreland was confined in the St. Joseph County
Jail."
The defendants challenged the jury verdict
alleging, among other things, that videotapes of
interviews by the Special Crimes Unit with the
defendants done after Mr. Moreland's death
should have been excluded under Federal Civil
Procedure Rule 403 because they were unduly
prejudicial. Although the 7'" Circuit determined
that there was no question that the videotaped
interviews of the defendants were prejudicial, it
declined to find that the district court erred in its
decision to allow the tapes into evidence. "The
damage of unfair prejudice was not so extreme
here that the district court's decision to admit
the videotaped interviews is called into question.
As a record of the defendants' respective
versions of the events leading up to
Mr. Moreland's death, the tapes are highly
probative of their actions, state of mind, and
credibility."
With respect to the defendants' challenge
that the punitive damage award was
unconstitutionally excessive, the court noted
that, in reviewing punitive damage awards, three
lactors must be considered:
1. the degree of reprehensibility of the
defendants' misconduct;
2. the disparity between the actual or potential
harm sutfered by the plaintiff and the
punitive damage award; and

Pro Se Vol. 15 No.2 Spring 2005

3. the difference between the punitive damages
awarded by the jury and the civil penalties
authorized or imposed in comparable cases.
The court noted that the first factor is the most
significant. The court found that the
"defendants' conduct in this case qualifies as
truly reprehensible... To throw a man's head
against concrete when he is handcuffed and
presents no threat is clearly excessive and
malicious. To discharge a canister of pepper
spray into the face of a fully restrained,
incapacitated individual is vicious and
unconscionable." The court went on to note that
the "defendants' assault on Mr. Moreland was
sustained rather than momentary, and involved a
series of wrongfhl acts, not just a single
blow; ... all this exacerbates the reprehensibility
oftheir behavior." The court also found that the
ratio between the compensatory and punitive
damage award was within the range of what is
deemed acceptable and that, in light of the
injuries suffered by Mr. Moreland, the punitive
damage award was constitutional.

There are more than 4.7 million Americans
who are denied the right to vote because oftheir
criminal records. There is no evidence that these
laws serve any correctional purpose. To the
contraly, they may actually contribute to
recidivism by keeping ex-offenders disinterested
and disengaged from societal concerns. Indeed,
there are studies which have shown that former
offenders who vote are less likely to return to
jail. There are democracies abroad that realize
the importance of insuring that all citizens have
a vested interest in their communities and in
their county, so much so that they take ballot
boxes right to the prisons.
Several states are now reconsidering laws
barring convicted felons from voting. In
Maryland, for instance, the legislature is
considering a bill that would eliminate the
lifetime ban that remains in place for some
offenders. The Maryland bill should pass, and
other states may very well follow suit.

Federal Cases
Disenfranchisement Laws Criticized by
American Correctional Association
As the debate over whether convicted felons
should be allowed to vote continues, the
American Correctional Association (ACA) has
issued a welcome statement inviting all states to
end the practice of withholding voting rights
from parolees and people who have completed
their prison terms. The ACA, which represents
correctional ofllcials, encouraged states to
revamp their eonfusing disenfranchisement laws
and clearly explain to inmates what to do to
regain their voting rights after eompleting their
sentences, noting that people are expected to
become responsible members of society once
they are released from prison.

1J.S, Supreme Court Continues To
Narrow The Class of People Eligible for
Capital Pamishment
Roper v. SinilllOns, 125 S.Ct. 1183 (2005)
In a 5-4 decision, the United States Supreme
Court has once again narrowed the class of
people eligible for execution by abolishing
capital punishment for juvenile otlenders for
crimes committed when they are younger than
18. In deciding Roper, the Supreme Court did
something it rarely does: It reversed a decision
it made only 16 years earlier. In 1989, in

PageS

Stanford v. Kenhlcky, 492 U.S. 361, a divided
Court rejected the proposition that the
Constitntion bars capital punishment for juvenile
offenders in this age group. However, the Court
appeared to be swayed by society's
reconsideration of eapital punishment, noting
that 30 states, including the 12 states that have
no capital punishment, forbid the death penalty
for offenders younger than 18. The Court
concluded that the death penalty for minors is
cruel and unusual pnnishment, finding that there
is a "national consensus" against such a practice.
Significantly, strong international opposition to
the practice of putting juvenile offenders to
death also influenced the Court's decision. "It is
proper that we acknowledge the overwhelming
weight of international opinion against the
juvenile death penalty, resting in large part on
the understanding that the instability and
emotional imbalance ofyonng people may often
be a factor in the crime," wrote Justice Kennedy.
As to how the Court decided on what should be
the cut otYage, the Court held: "The age of 18 is
the point where society draws the line for many
purposes between childhood and adulthood. It
is, we conclude, the age at which the line for
death eligibility ought to rest," wrote Kennedy.
Although the Court reinstated the death
penalty in 1976 (see: Gregg v. Georgia, 428
U. S. 153), it began limiting its application twelve
years later when, in 1988, the Court outlawed
executions for those 15 and younger (~:
Thompson v. Oklahoma, 487 U.S. 815), and
then, more recently, in Atkins v. Virginia, 536
U.S. 304 (2002), it bauned the execution of
those deemed to be moderately mentally
retarded. The Roper decision will overturn the
present death sentences of about 70 juveniles
and will bar all states from seeking to execute
minors for future crimes. The largest impact of
the ruling will most probably be felt by Texas,
where there are 29 juvenile offenders awaiting

Pro Se Vol. 15 No.2 Spring 2005

execution, and Alabama, where there are 14.
There have been 22 executions ofjuveniles since
1975, 13 of them in Texas.

1.1.S. Supreme Court Allows §1983
Challenge to Parole Board Decision
Wilkinson v. Dotson, et aI., -U.S.- ,2005
WL 516415 (Sup. Ct.) (March 7, 2005)
The U.S. Supreme Court recently held in an
8-1 decision that state prisoners are not limited
to using the federal habeas corpus statute to
seek reliefregarding parole issues, but may bring
§ 1983 actions for declaratory and injunctive
relief to challenge the constitutionality of state
parole procedures. The Court rejected the
arguments by the state of Ohio, which asserted
that the inmates, Dotson and Johnson, were
trying to challenge the duration of their
confinement, a challenge that the Court has held
cannot be brought by way of a §1983 action.
The history of this confusing area of law
began with the case ofPreiser v. Rodriguez, 411
U.S. 475 (1973), where state prisoners filed
§1983 civil lights aetions challenging the
constitutionality of the prison's disciplinary
proceedings that, in tum, led to their loss of
good-time credits. The Court addressed the
issue of whether a §1983 action was the proper
vehicle to use to bring such a challenge.
Although the Court admitted that the claims of
the inmate's fell within the parameters of the
§1983 statute, the Court noted that: the claims
also fell within the parameters of the habeas
corpus statute; the habeas corpus language was
more specific; the habeas corpus statute "has
been accepted as the specific instrument to
obtain release from [unlawful] confinement;"
and habeas corpus actions require exhaustion of
state remedies while § 1983 actions do not.
"These considerations of linguistic specificity,

Pro & Vol. 15 No. 2 Spring 2005

history and comity led thc Court to find an
implicil exception from §1983's otherwise broad
scope for actions that lie 'within the core of
habeas corpus. '" Wilkinson, citing Preiser, 411
U.S. at 487.
One year later, in Wolffv. McDonnell, 418
US. 539 (1974), the Supreme Court expanded
on the definition of the "core" of habeas corpus
actions. In Wolff, state inmates filed a § 1983
action alleging that the prison disciplinaty
process, which resulted in revocation of goodtime credits, was unconstitutional. The Court, in
Wolff, held that an inmate could use a § 1983
action to obtain a declaratory judgment that the
prison disciplinary process was unconstitutional
and an injunction on the "prospective
enforcement of invalid prison reb'lllations" (418
US. at 555) but could not use a §1983 action to
request restoration of good time. The Court
reasoned that since the declaratory and
injunctive reliefregarding the regulations would
not effect the inmate's term of incarceration,
such relief did not lie at the core of habeas
corpus actions.
In 1994 Heck v. Hnmphrey, 512 US. 477
was decided. In Heck, the inmate sued for
damages, claiming that the state had improperly
investigated his crime and destroyed evidence
and thus, unconstitutionally, caused his
conviction. The Court held that "unless... the
conviction or sentence has already been
invalidated," 512 at 487, a § 1983 action does
not lie because "establishing the basis for the
damages claim necessarily demonstrates the
invalidity of the conviction." 512 U.S. at 481482. After Heck, lower federal courts debated
what it meant to "invalidate" a prior conviction
or sentence, and in what context and to what
extent this decision should bar an inmate's
§1983 claim. Then, in Edwards v. Balisock, 520
US. 641, (1997), an inmate sued for damages

Page 9

and declaratory relief: claiming that the
procedures used by the state to deprive him of
good-time credits violated due process. The
inmate also sued for injunctive relief barring the
state from engaging in future unconstitutional
procedures. The Court found that in that case, if
the prisoner prevailed on his claim for money
damages and request for declaratory reliet: it
would "necessarily imply the invalidity of the
punishment imposed," and thus could only be
challenged through a habeas corpus action.
However, with respect to his claim for injunctive
relief, the Court found that it did not fall within
the exclusive domain of a habeas corpus aetion
because "[0]rdinarily, a prayer for such
prospective reliefwill not 'necessarily imply' the
invalidity of a previous loss of good-time
credits." 520 U.S. at 646.
This year in Wilkinson, the Court was asked
to address the issue of whether that habeas
corpus bar applies to prisoners' claims
challenging state parole board procedures.
Wilkinson involved two inmates alleging that the
state procedures used to deny parole eligibility
(Dotson) and parole suitability (Johnson) were
unconstitutional because they violated the ex
post facto and due process clauses of the
Constitution. The Court rejected the state's
argument that because a state prisoner cannot
use a §1983 action to challenge "the fact or
duration ofhis confinement," the inmates' claims
could only be brought via a federal habcas
corpus action or a similar state proceeding.
Justice Breyer wrote: "The problem with Ohio's
argument lies in its jump from a true
premise... to a faulty conclusion." In holding that
the inmates' claims are allowed under § 1983, the
Court noted, that "[b]ecause neither prisoner's
claim would necessarily spell speedier release,
neither lies at 'the core of habeas corpus. '"

Pag.to

U.S. Supreme Court Grants Certiorari in
Case Challenging Arbitrary Placement in
Ohio Supermax
Wilkinson v. Austin, 372 F.R.3d 346 (2003)
cert. granted 125 S.Ct. 686 (2004)
On December 10, 2004, the United States
Supreme Court granted certiorari in the case of
Wilkinson v. Austin. In October 2003, the 6th
Circuit Court of Appeals in Cincinnati ruled that
prisoners cannot be placed or indefinitely
detained in solitary confinement at an Ohio
Supermax prison (aSP) without due process.
The question presented by the Ohio Attorney
General office's petition is: When state prison
officials decide to place a prisoner in a "supermaximum security" facility based on a predictive
assessment of the security risk the prisoner
presents, but prison regulations create a liberty
interest for the prisoner in avoiding such
placement, do procedures meeting the
requirements specified in Hewitt v. Helms, 459
U.S. 460 (1983), satisfy the prisoner's due
process rights?
The Sixth Circuit held that they do not, and
that the balancing test of Matthews v. Eldridge,
424 U.S. 3 I9 (1976), applies instead. The ruling
of the Sixth Circuit, if left standing, will effect
more than 400 prisoners in Ohio and potentially
tens of thousands of inmates across the country
by allowing prisoners to contest their detention
at a Supermax prison with a hearing. The Center
for Constitutional Rights and the Ohio ACLU
orii,Jinally filed the class-action lawsuit in January
of200 I against otIicials ofthe Ohio Department
ofRehabilitations and Corrections, charging that
the treatment of the inmates at asp constitutes
cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments to the U. S.
Constitution. Inmates in Supermax prisons are
confined to their cells for 23 hours a day and

Pro So VoL t5 No.2 Spring 2005

subject to harsher conditions than inmates at
other prisons.
In Wilkinson v. Austin, a complex piece of
litigation, the lack of clear policies governing
placement in the OSP became the major issue at
trial and the only issue on appeal, but placement
was one of only three issues central to the case.
Major concerns also included the conditions of
confinement at the prison, the lack of adequate
medical care, and the serious lack ofappropriate
psychological resources. The complaint alleged
that over the years, the State of Ohio
indiscriminately assigned inmates to the aSP.
Although the asp was built to house the
"worst" criminals in the state, when that
population dwindled, the State apparently began
to arbitrarily assign inmates to the Penitentiary.
The lawsuit alleged that the State did so using
extremely limited guidelines for determining
whether an inmate should be sent to the OSP.
The Supreme Court of the United States has
agreed to hear Wilkinson v. Austin on the
question of whether this sort of lack of
procedure is a gross violation ofprisoners' right
to due process. The case is scheduled to be
argued on March 30, 2005. Pro Se will report
on the decision fTOm the Supreme Court when it
is issued.

Second Circuit

Seizure of New Afrikan Political
Literature May Violate Inmate's First
Amendment Rights
Shakur v. Selskv, 391 F.3d 106 (2d Cir. 2004)
The Second Circuit issued another favorable
decision for inmates at the end oflast year when,
in December 2004, it decided the case ofShah.'Ur
v. Selsky, and held that the seizure of plaintiff

Pagel!

Pro SC VoL 15 No.2 Spring 2005

Shabaka Shakur's wntmgs about an Afiican
liberation group could be challenged as a
violation of his First Amendment rights.
Reversing the district court's decision, the
Second Circuit held that the confiscation ofMe
Shakur's New Afrikan political literature could
be challenged, since such confiscation may not
be related to the "legitimate penological
interests" of DOCS.

The Fads
The facts ofthe case are as follows: Between
1999 and 2002, DOCS' officials confiscated
New Afiikan political literature from Me
Shakur's cell on at least three occasions, and
each time he was charged with violating Rule
105.2, possessing unauthorized "organizational
insignia or materials." DOCS has a regulation
which states that an unauthorized group is "any
gang or any organization which has not been
approved by the deputy commissioner for
program services."
At his first hearing, Me Shakur initially
requested that the material simply be given to the
Facility Media Review Committee (FMRC) for
review. DOCS' regulation 7 NYCRR §712.2712.3 establishes the FMRC and states that "[i]t
is departmental policy to encourage inmates to
read publications from varied sources," but that
"[w]hen there is a good faith belief that a
publication... in [the] possession of an inmate
violates one or more of the media review
/:,'llidelines, said publication shall be confiscated
and refened to the FMRC for review and
decision." Me Shakur's request was denied. He
then defended his possession of the material,
arguing that it was political in nature and not
related to gangs. The Hearing Officer disagreed
and sentenced Me Shakurto 18 months in SHU
At his second hearing, Me Shadur again

requested that the material that was confiscated
be given to the FMRC. His request was again
denied, and he was found guilty and given a
penalty of thirty days in keeplock He appealed
the decision all the way through to filing an
Article 78, challenging that DOCS had en'ed in
failing to send the materials to the FMRC, that
Rule 105.12 was inapplicable to his literature,
and that Rule 105.2 was unconstitutionally
vague. His arguments were ultimately rejected
by the Appellate Division 4th Department in a
six-word decision: "Determination aftirmed and
amended petition dismissed." Matter of Shakur
v. Goord, 306 AD.2d 958 (4th Dep't 2003).
At the third hearing, Me Shakur once again
requested that the material be given to the
FMRC. Instead, the hearing ofticer adjourned
the hearing, reviewed the materials himself and,
upon reconvening, found Me ShaJ..<lr guilty of
violating Rule 105.12 and imposed a penalty of
60 days keeplock
Oddly, a month after the third hearing, Me
Shakur's cell was searched again, and again
"New Afi'ikan literature" was confiscated from
his cell, but this time his request that the FMRC
review the material was honored. The FMRC
reviewed the material, found that three pages
would "incite disobedience and violence," but
approved the remainder of the material.
In November 2002, Me Shakur sued
alleging, among othcr things, due process and
equal protection claims and a violation of his
First Amendment right to freedom of speech.
The disttict court dismissed ML Shakur's
complaint with prejudice and he appealed.

The Decision
The Second Circuit U. S Court of Appeals
aftirmed the district court's dismissal of the due
process and equal protection claims but reversed

Page 12

the district court's finding with respect to
Mr. Shak'Ur's First Amendment claim. The
Second Circuit held that Mr. Shakur stated a
legally sufficient claim by alleging in his
complaint that Rule 105.12 is unconstitutional;
and that, in the alternative, the defendants were
not authorized to confiscate his property under
Rule 105. 12, and that "such confiscations were
improperly made for reasons of personal
prejudice as opposed to legitimate penological
interests."

The Complaint Stated A Claim With
Respect to The Constitutionality of Rule
105.12
Writing for a unanimous court, Judge
Wesley noted that "an across-the-board
exclusion of materials of 'unauthorized
organizations' may not be rationally related to
any governmental obje~1ive." 391 F.3d at 115.
He continued: "Assuming that Rule 105.12 is
targeted at the legitimate goal of secming
prisons, we are not sure how a complete ban on
the materials of 'unauthorized organizations' is
rationally related to that goal. The district court
articulated no such relationship, and none
appears to us on the face of the regulation."
In analyzing a First Amendment claim
asserted by a prison inmate, the court applies a
reasonableness test. Turner v. Safley, 482 U.S.
78, 89 (1987). Turner requires the court to
address three questions:
I. "whether the governmental objective
underlying the regulations at issue is
legitimate and neutral, and [whether] the
regulations are rationally related to that
objective;"
2. "whether there are alternative means of

Pro Sc VoL 15 No.2 Spring 2005

exercising the right that remam open to
prison inmates;" and
3. "the impact that accommodation of the
asserted constitutional right will have on
others (guards and inmates) in the prison."
Id. at 417-418.
In answering the first question, the Second
Circuit looked to the Supreme Court case of
Thornburgh v. Abbot, 490 U.S.401 (1989). In
Thornburgh. the Supreme Court was faced with
a challenge to prison regulations that permitted
the warden to reject certain publications based
upon an "articulated standard." It was the fact
that there was such an "articulated standard"
that allowed the Court to uphold the regulations.
Judge Wesley noted that the Court "was
'comforted by the individualized nature of the
determinations required by the regulation,' and
that the regulations 'expressly reject[ed] certain
shortcuts that would lead to needless
exclusions. ,,, 391 F.3d at 115 citing.
Thornburgh, 490 U.S. at 416-417. Judge
Wesley, relying on Thornburgh, found that:
"Rule 105.12, by contrast, does not provide any
standard against which DOCS officials will
conduet an individualized review of the
publication in question. Indeed, the 'needless
exclusions' apparently made possible by Rule
105.12 exceed even the exclusions that the
Supreme Court suggested would be
unconstitutional in 17lOmburgh."
With respect to the second Turner factor, the
Court was concerned with the fact that there
was no evidence in the record of any alternative
avenues by which Mr. Shakur "might exercise
his right to free expression." 490 U.S. at f 16.
Finally, with regard to the third Turner factor,
the Court noted that with each prison having a
media review committee, there was "an obvious
alternative" to outright confiscation. 490 U.S. at

Pro Se VoL 15 No.2 Spring 2005

116. The Court concluded: "Thus, with regard
to the constitutionality of Rule 105.12, the
present complaint cannot be dismissed on its
face because none of the Turner factors facially
favor DOCS." 391 F. 3d at 116.

The Complaint Stated A Claim That The
Confiscation of New Afrikan Literature
Was Unconstitutional
Again applying the Turner factors, the court
noted that the first Turner factor requires a
"neutral" objective. "[T]he Supreme Court has
distinguished actions pursuant to neutral
objectives from actions pursuant to 'personal
prejudices.''' 391 F.3d at 116, citing,
Thornburgh, 490 U.S. at 416 n. 14.
Noting that "a failure to abide by established
procedure or standards can evince an improper
objective," Judge Wesley found that the failure
of the defendants to follow their established
procedure of referring questionable material to
the existing FMRC "suggest[s] that their
confiscations were not made pursuant to
legitimate and neutral penological objectives."
Judge Wesley went on: "This conclusion is
buttressed by the fact than an eventual FMRC
review of Shakur's materials-in the single
instance where FMRC review occurred-ended in
approval ofthe vast majority ofthose materials."
The court therefore concluded that "if Rule
105.12 did not authorize defendants'
confiscations, Shakur's complaint states a legally
sufficient claim of unconstitutional infringement
ofhis First Amendment right to free expression."
391 F. 3d at 117.
The court also reinstated a claim based on
Mr. Shakur's right to freely exercise his religion
as a Muslim and his rights under the Religious

Page 13

Land Use and Institutionalized Persons Act of
2002, claims based on his allegedly having been
denied permission to attend a Muslim holiday
feast in the prison.

DOCS Abandons Argument of Failure to
Exhaust to DOJ in ADA Cases
Rosario v. Goord, -F.3d-, 2005 WL 477847
(2d Cir.) (March 2, 2005)
The plaintiff: an inmate in NYS DOCS, filed
an action alleging violations of both Title II of
the Americans With Disabilities Act (ADA), 42
U.S.C. §§12101 et seq., and Section 504 of the
Rehabilitation Act, 29 U.S.C.§794 The
defendants asserted that the plaintiff's action
should be dismissed for failure to exhaust
because, although he had complied with DOCS
internal grievance process, he had failed to lodge
a complaint with the Department of Justice
(DOl), which has a complaint procedure for
people who believe they have an ADA claim.
The district cOlJli dismissed the plaintiff's
action on failure to exhaust l,'founds and the
plaintiff appealed. However, after the case was
briefed, the defendants moved to vacate the
district court's decision and represented to the
court that they would withdraw the DOJ
exhaustion defense in this action. "They further
represented that the defense will be withdrawn in
any pending litigation in which liability against
DOCS and its agents is asserted under the ADA
and that DOCS does not now intend to assert
the defense in any such future litigation." The
plaintiff consented to this motion and, in
response, the Second Circuit granted the
defendant's motion and remanded the case to
the district court.

Pro Se Vol. IS No.2 Spring 2005

Page 14

Prisoner Articnlates First Amendment
Retaliation Claim Sufficient to Survive
Dismissal Motion
Gill v. Pidlvpchak, 389 F.3d 379 (2d Cir. 2004)
The plaintiff, an inmate, filed a pro se action
alleging, among other things, that the defendants
retaliated against him Ibr filing numerous
grievances. He asserted that one of the ways in
which the defendants retaliated was by filing
false misbehavior reports against him that
resulted in his being placed in keeplock. The
district court dismissed the entire action finding,
with respect to the First Amendment retaliation
claim, that "[Mr.] Gill had commenced at least
lour additional lawsuits and at least thirty-live
institutional grievances against the Department
of Correctional Services... since the asserted
retaliation," ... and therefore "the alleged adverse
action did not have an actnal deterrent effect on
his exercise of First Amendment rights." Id. at
380. Mr. Gill appealed.
In its decision, the Second Circuit explored
the history of retaliation cases, noting that "to
sustain a First Amendment retaliation claim, a
prisoner must demonstrate the following: '(I)
that the speech or conduct at issue was
protected, (2) that the defendant took adverse
action against the plaintiff, and (3) that there
was a causal connection between the protected
speech and the adverse action. '" Id. at 380,
citing, Dawes v. Walker, 239 F.3d 489, 492 (2d
Cir. 2001) The court noted that there was little
dispute that Mr. Gill had met the first and third
prongs of the Dawes test. "The basic question
we face here is whether the defendant's action
was meaningfully' adverse' although it did not
ultimately dissuade the plaintiff from exercising
his rights under the First Amendment." Id. at
380-381.

The term "adverse action" has been defined
by the court as "retaliatory conduct 'that would
deter a similarly situated individual of ordinary
firmness from exercising... constitutional
rights. '" Id. at 381, citing. Davis v. Goonl, 320
F.3d 346, 353 (2d Cir. 2003).The court noted
that although Plaintiff Gill may have continued
to file grievances after the alleged retaliation, the
t:'lct of the matter is that he should not be
penalized by responding "to retaliation with
greater than 'ordinary firnmess'" Id. at 384. The
court found that Mr. Gill alleged: I) a protected
aL'tivity: using the grievance system; 2) adverse
action that would have deterred a prisoner of
ordinary firmness from coming forward:
defimdants filed false misbehavior reports which
resulted in his placement in keeplock, and; 3) "a
causal connection between the protected activity
and the adverse action" Id. at 384. In deciding
a case on a motion to dismiss, the court need
only decide whether the "complaint itself is
legally sufficient." Id. 384, citing. Goldman v.
Belden, 754 F.2d 1059, 1067 (2d rir. 1985)
Since Mr. Gill's complaint included all the
elements necessary to state a First Amendment
claim for retaliation, the Court vacated that part
of the judgment which dismissed plaintiff Gill's
First Amendment claim and remanded the case
to the district court.

District Court

District Courts Address More PLRA
Issues
Although the Second Circuit issued
decisions on various aspects of the
exhaustion defense in August 2004 (reported
in ProSeVo. 14No. 3), which, tosomeCXl'Cm,
clarified its application, DOCS continues to
failure to exhaust as a defeuse and district

Pro Se Vol. IS No.2 SpJing 2005

continue their attempts to ferret out the
applications of, and exceptions to, the PLRA
exhaustion requirement.
Borges v. Piatkowski, 337 F. Supp. 2d 424
(W.D.NY 2004)
In Borges v. Piatkowski, district court Judge
Larimer was faced with the issue of how to
determine whether an administrative remedy was
actually "available" to the plaintiff inmate. The
lacts of the case are as follows: In August 1996,
Plaintiff Borges, while an inmate at Southport
Correctional Facility, had a wisdom tooth (#32)
pulled by a dentist, Dr. Lax. Apparently, during
the procedure, "a dental drill burr broke off and
was left in the tooth socket without plaintift's
knowledge" 337 F. Supp. 2d at 425.
Subsequently, the plaintiff began experiencing
pain in the area of his mouth where the tooth
was pulled. He repeatedly advised th{~ defendant,
Dr. Piatkowski, a dentist at the dinic, ofthe pain
he was experiencing. The defendant repeatedly
told the plaintiff that the cause of his pain was
his wisdom teeth. Finally, in Apti11998, almost
twenty months later, Defendant Piatkowski
referred the plaintiff to an outside hospital for
evaluation, but he was not actually seen at the
hospital until August 1998. In the meantime, in
May 1998, the defendant removed a "flap of
tissue" at tooth # 16 but continued to fail to
address area #32. When the plaintiff was
eventually seen at the outside hospital, an x-ray
was taken and it was determined that there was
a foreign object and a "reactive lesion" in the
area where the plaintiff was experiencing pain.
Oddly, the plaintiff was never told of the
existt~nce of the foreign object, but rather was
advised that he had a "cyst" where the wisdom
tooth had been and that he would be called back
to the hospital for treatment. The defendant was

Page IS

advised ofthe "reactive lesion," but there was a
question as to whether defendant was also
advised of the foreign object that was found
during the x-ray. Regardless, it was undisputed
that the defendant never advised the plaintiff of
the "reactive lesion," did nothing to "remove the
foreign object or otherwise treat the reactive
lesion," ... "never called [the] plaintiff out for an
examination or for another x-ray" and never
treated the plaintiff again. Id. at 425-426.
In October 1988, the plaintift'was transferred
to Attica, where he was subsequently seen by
Dr. Heinzerling who performed an x-ray, filUnd
the foreign object, and advised the plaintiff of
the foreign ol:>ject and the reactive lesion
Finally, "[o]n September 30, 1999, the object
was surgically removed from plaintift's mouth."
Id. at 426.
The plaintiff thereafter sued, alleging
deliberate indilTerence to his medical needs. The
delendants asserted the defense of failure to
exhaust under the PLRA. There was no dispute
that the plaintiff did not file a grievance against
the defendant. The plaintift'defended his failure
to exhaust, alleging that no administrative
remedies were "actually 'available' to him
because he dId not learn of the foreign object
and reactive lesion until November 1998," far
beyond the 14-day time limit for filing a
grievance. Id. at 426. The defendant argued that
the plaintiff knew he had a "cyst," that the
defendant did not test him for the "cyst," and
that the plaintiff had two months to file a
grievance before he was transferred out of
Southport. The court agreed with the plaintiff.
The court noted that there was no evidence
that the plaintiff knew that the defendant
"received and reviewed the consultation report."
ld. at 427. In ternlS of the plaintifl's failure to
complain while at Southport, the court noted,
"[g]iven that it took plaintitIalmost four months
after he was referred to Strong to be examined

Page 16

there, it is not surprising that plaintiff did not
complain about the fact that his condition was
not being treated in the two months he remained
at Southport," Id, at 427, By the time the
plaintiff learned about the foreign object in his
mouth and of the possibility that the defendant
may have known about it, the fourteen-day time
limit for filing a grievance had passed, "Thus
there was no further 'possibility of some relief
for plaintiff, ,Therefore, plaintiff had no
available remedy to exhaust, as there was no
mechanism in which to file a grievance about Dr,
Piatkowski's alleged deliberate indifference to
his medical needs" Id. at 427,
Brownell v, Krom, -F. Supp, 2d -,2004 WL
2516610 (S,D,N.Y.)(Nov, 8, 2004)
In Brownell v. Krom, PlaintitJ Brownell, an
inmate, made a request under the Freedom of
Infornmtion Law ("FOIL") for all documents
pertaining to his 1976 tlial and conviction. He
received these documents and upon reviewing
one of the enclosed transcripts, believed he had
grounds to challenge his conviction. In 1999, he
filed a state court motion to vacate his
conviction. It was denied in September 1999. He
then began to work on a federal habeas corpus
petition based on the same exculpatory evidence.
On June 9, 2000, the plaintiffwas transferred
from Woodbourne to Eastern Correctional
Facility and at the time of his transfer, he had
fourteen bags of personal property, which
included voluminous legal papers he intended to
file in connection with a federal habeas corpus
petition. Subsequently, Mr. Brownell was
advised that only three of his fourteen bags of
property were present, and he began to make
inquilies to locate the remaining eleven bags of
personal property. Ultimately, he was advised by
the Inmate Grievance Program Supervisor that
the proper procedure would be for him to file a

Pro Sc Vol. IS No. 2 Spring 2005

glievance regarding the loss of his property. He
filed a grievance, noting that most of his
personal property had been lost, and that "this
includes all of my legal work amounting to
thousands ofpages. I was in the process offiling
a federal habeas corpus petition." The action
requested was: "To find my property via a
thorough investigation."
The plaintiff pursued his grievance through
each of the three levels of the New York State
Department of Correctional Services' Inmate
Grievance Program, and ultimately received a
final decision from the Central Office Review
Committee (CORe), the highest level of the
Inmate Grievance Program, which noted that
Mr. Brownell had filed a claim tor
reimbursement for lost property, that the claim
had been denied, and that he had the opportunity
to appeal the denial of the property claim.
At the time he filed his grievance,
Mr. Brownell did not know who was responsible
tor losing his property or how it was lost. After
his grievance was denied, Mr. Brownell looked
for the property on his own and, although he did
not locate the property, he did find out the
names of some of the ofticers who were
apparently responsible for transporting his
property.
Plaintiff Brownell then sued, daiming in his
§1983 action "that the loss of his legal materials
prevented him from filing a habeas petition based
on prosecutorial misconduct; effectively denying
his right ofaccess to the courts" The defendants
made a motion for summary judgment on the
grounds that Plaintiff Brownell had not
exhausted his administrative remedies becanse,
although he filed a gIievance, he "never alleged
a deliberate or malicious disposition of the
property or named the individual defendants... "
The district court dismissed the plaintiff's action,
noting that although Mr. Brownell utilized all
three levels ofthe Inmate Grievance program, he

Pro s., VoL IS No.2 Spring 2005

did not satisfY the PLRA exhaustion requirement
because his grievance did not name the oflicers
subsequently identified as defendants, nor did it
"assert the denial of his right of access to the
courts." The court noted: "After discovering the
identities of some of those responsible, his
failure to name defendants or raise the denial of
right of access to the courts issue in the Inmate
Grievance Process means that he failed to
exhaust his administrative remedies with respect
to that claim against those officers." Noting,
however, that it was definitely reasonable for
"[Mr.] Brownell to sunnise that his property
grievance, by implication, exhausted the
remedies necessary to bring the current claims
against the defendants," the court ordered that
the dismissal be without prejudice.
Mr. Brownell has filed a Notice of Appeal
and his case is presently pending before the
Second Circuit U.S. Court of Appeals.
The plaintiff is being represented by

Prisoners' Legal Services and the Legal Aid
Society, Prisoners' Rights Project.

State Cases

Criminal Procedure
People v. Cooper, 787 NYS.2d 861 (St. Law.
Co., Jan. 21, 2005) (Rogers, J)
Alleging pre-indictment delay in prosecution,
the defendant, an inmate, moved to dismiss an
indictment charging him with promoting prison
contraband. While at Gouverneur Correctional
Facility, the defendant was indicted for

Page 17

possessing contraband, to wit: a 6Y2-inch
sharpened metal rod.
The court, in determining whether the
indictment should be dismissed because of an
unwarranted delay, addressed the following
questions:
1. the extent of the delay;

2. the reason for the delay;
3. the nature of the underlying charge;
4. whether there has been an extended period
of pretrial incarceration; and
5. whether there is any indication that the
defense has been impaired by the delay.
As to the extent of the delay and the reason
for the delay, the court found that there was a
delay of more than fifteen months between the
date of the incident and the date of the
indictment. Of that time, the court found that
approximately one year was chargeable to the
people, since there was no explanation for a
seven-month delay in beginning a state police
investigation of the incident; nor was there any
explanation for an almost five-month delay in
presenting the case to the grand jury after the
investigation had begun.
With respect to the nature of the underlying
charge, the court noted that it was serious. The
court also noted that there had been an extended
period ofpretrial incarceration, as the defendant
had been incarcerated both wltile still serving his
original sentence and solely on the charge. The
court also found that the defense had been
impaired by the delay, since the defendant could
no long name any possible witnesses. The court
disntissed the indictment, holding that "[0]ne
year ofdelay, coupled with no explauation other

Page 18

Ihan for a few days' lime to obtain and file
repmis, coupled with impairment ofthe defense,
aud with significant incarceration due solely to
the new charge, is unreasonable." In cautioning
prison officials regarding the prosecution of
inmates on criminal charges while in prison, the
court noted: "If prison officials want to pnrsue
criminal prosecution tor alleged offenses
occurring within the prison, in addition to the
significant disciplinary remedies available to
them internally, it is important to make a greater
effort to process the referral to police agencies
on a timely basis, and for those agencies to
complete their investigation and report to the
district attorney promptly."

Disciplinary
Civil Procedure: Court Gmtinues to Reject
'Mailbox Rule'
Matter of Blanche v. Selsky, 786 N.Y.S.2d 589
(3d Dep't 2004)
After the petitioner, an inmate, was found
guilty at a Tier III disciplinary hearing and his
guilty determination was upheld on
administrative appeal, he filed an Article 78. The
respondent, in turn, filed a motion to dismiss,
alleging that the proceeding was barred by the
statute oflimitations. The statute of limitations
for tiling an Article 78 is four months. See,
CPLR §217. The pelitioner received the decision
on his administrative appeal on January 22,
2003. His petition and supporting papers were
not received in the County Clerk's office until
June 9, 2003. Since his papers were received
heyond the four-month statutory period, the
Appellate Division held that the Supreme Court
was correct in dismissing his petition.
The petitioner attempted to argue that his
action should have been deemed timely

Pro Se Vol. 15 No.2 Spring 2005

commenced because he deposited his papers in
the prison mail system, together with the
necessary disbursement tt)fms, on May 16, 2003,
six days before the expiration of the statute of
limitations. The petitioner also argued that ifthe
action was deemed to be untimely, the
untimeliness was attributable to prison officials
who delayed mailing his papers out. Relying on
James v. Goord, 722 N.YS.2d 609 (3d Dep't
2001) and Grant v. Senkowski, 721 N.YS.2d
597 (200 I), the court rejected these arguments.
"'[W]e have declined to adopt a 'mailbox rule'
even when the verified petition, accompanied [by
the necessary papers], was placed in the prison
mailing system prior to the expiration of the
limitations period. ", The court then noted that it
simply found no merit to the petitioner's
argument that the delay was caused by prison
officials.

Drug Testing: Chain of Custody in Emit
Test Upheld
Malter of Saif'ul'bait v. Goord, 788 N.Y.S.2d
712 (2005)
The petitioner was charged with and found
guilty of unauthorized use of a controlled
substance after a urinalysis test proved positive
tor opiates. The determination was upheld on
appeal, but reversed by the Supreme Court after
petitioner filed an Article 78 on the grounds that
there was an inadequate toundation for the
admission of the test results. The respondent
appealed.
The Appellate Division reversed. In
reviewing the record, the court noted that,
"[c]ontrary to Supreme Court's finding,
petitioner was duly served with all [necessary]
documentation and they were both part of the
official hearing record and freely available for
[the] petitioner's inspection." Notably, the court

Pro So Vol. IS No.2 Spring 2005

found that it was from reading those very
documents that the petitioner raised his
objection concerning the chain of custody
problem. Apparently, there was a two-hour lapse
between the collection of the specimen and its
testing. However, the offker who collected and
tested the sample was called as a witness by the
hearing officer, and he testified that "he had kept
the sample secured and in his immediate
presence for the two hours in question before
conduL'1ing the test and destroying the
specimen." This testimony, the court found, was
sufficient to satisfY any question concerning a
chain of custody.

Mitigating Circumstances: Court Finds
Hearing Officer Considered Reason Why
Inmate Was Out of Place and Sl4ffidently
Mitigated the Penalty Imposed
Matter of Wooley v. Miller, 786 N.Y.S.2d 591
(3d Dep't 2004)
The petitioner, an inmate at Eastern
Correctional Facility, concerned about the
welfare of a fellow inmate, "barged into the
correction officers' station in an agitated
manner" and advised the officers that there was
an inmate on the cell block that needed medical
assistance. He was then given a direct order to
leave the office, with which he complied.
However, he continued to complain that his
fellow inmate needed medical help.
As a result ofthis incident, the petitioner was
given a misbehavior report charging him with
being out of place. He was found guilty at his
hearing, the determination being upheld on
administrative appeal. He thereafter filed an
Article 78 proceeding challenging the
determination. The Supreme Court granted the
respondent's motion to dismiss and petitioner

Pngel9

appealed. The Court affirmed. "To the extent
that petitioner maintains that the reason for his
being out of place (that he was procuring
medical help for a fellow inmate) should have
mitigated his conduct, the record reflects that
such £'1ctor was considered in the imposition of
the penalty," held the Court.

Notice: inaccuracies in Misbehavior
Report /)0 Not Render it ineffective
Matter of Moore v. Senkowski, 785 N.Y.S.2d
605 (3d Dep't 2005)
The petitioner, an inmate, was involved in an
argument with a female training supervisor,
during which he allegedly refilsed her order to
return to work and made a threatening comment.
He was thereafter given a misbehavior report.
The description set forth in the report referred to
a rule violation concerning lying and gave the
wrong rule violation number for refusing to obey
a direct order. Regardless, the petitioner was
found guilty at his hearing and this decision was
upheld on administrative appeal. The petitioner
appealed.
The court rejected the petitioner's ari')ument
that the inaccuracies in the misbehavior report
resulted in him not being given proper notice of
the charges. The court stated: "[A]lthough the
description set forth in the misbehavior report
erroneously referred to the rule prohibiting lying
and inaccurately referenced the rule number
corresponding to refusing a direct order, this did
not render the misbehavior report defective as
the three rules that petitioner was charged with
violating were clearly set forth in the rule
violation portion ofthe report, together with the
date, place and time of the incident, so as to
provide him with sufficient notice."

Page 20

Seven Day Rule: Only Applies to Initial
Hearings not Rehearings
Matter of Spaulding v. Goord, 789 N.Y.S.2d
758 (3d Dep't 2005)
The petitioner, an inmate, tiled an Article 78
proceeding after he was subjected to a rehearing
on disciplinary charges, challenging the rehealing
on timeliness grounds. The petitioner alleged
that his rehearing was not commenced within thc
"seven days of the Superintendent's receipt of
notice that a rehearing had been ordered by the
courl...as required by 7 NYCRR 251-5. 1(a)."
The Supreme Court granted the petition and the
respondent appealed.
7 NYCRR 251-5.1(a) states in pertinent
part: "Where an inmate is confined pending a
superintendent's hearing, the hearing must be
commenced as soon as is reasonable practicable
following the inmate's initial confinement. .. but,
in no event may it be commenced beyond seven
days of said confinement ... " In relying upon the
"express language" of? NYCRR25 1-5. I (a), the
Third Department held that the regulation only
applies to hearings, not "rehearings." The court
also noted that DOCS has a 1984 memo which
addresses the specific circumstances which
occurred in this case. The memo, trom Director
of Special Housing Donald Selsky to all
Superintendents, provides that rehearings
"should be conducted in accordance with the
timeliness requirements stated on the court-order
or Departmental Review Board order, " and that
7 NCYRR 251-5.1 only applies if there are no
time limits set forth in those documents. In this
case, a memo from Mr. Selsky's office was sent
on September 5, 2004 ordering that a rehearing
had to be commcnced within seven days of
receipt ofthat memo. The petitioner's rehearing
commenced on September 11, "well within this
time period," held the court.

Pro Se Vol. t5 No.2 Spring 2005

Substantial Evidence: Absence of
Tattooing Paraphernalia Does Not
Invalidate Charge of Tattooing Fellow
Inmate
Matter ofVasguezv. Goord, 787 N.Y.S.2d 909
(3d Dep't 2005)
The petitioner, an imnate, was charged with
and found guilty of tattooing another inmate.
The petitioner challenged the finding on the
grounds that there was no evidence of any
tattooing paraphernalia in his cell. The Third
Department, Appellate Division, was
unpersuaded. "Despite the absence of any
tattooing paraphernalia found in the petitioner's
cell, the misbehavior report, hearing testimony
and confidential information provide substantial
evidence to support the determination of
petitioner's guilt," held the court.

Substantial Evidence: Fact That Petitioner
Never Actual(v Received Money For Legal
Service.~ Does Not Predude a Finding of
auilt on Charges ofSoliciting
Matter of Karlin v. Goord, 785 N.Y.S.2d 595
(3d Dep't 2004)
The petitioner, an inmate, was the subject of
a Superintendent-ordered mail watch because
the petitioner had received arson information
through the mail. During the watch, correction
statr found letters indicating, anlong other
things, that the petitioner was charging inmates
for legal services and that his girlfriend had set
up a post office box and a checking account.
The petitioner was subsequently charged with,
and found guilty of, soliciting, smuggling,
violating tacility correspondence procedures, and
providing unauthorized legal assistance. His

Pro Se Vol. 15 No.2 Spring 2005

administrative appeal was unsuccessful and his
court challenge ensued.
The court was not swayed by the argument
that the charges were unwarranted because the
petitioner never received any money. "The fact
that petitioner never actually receivcd any money
for legal services rendered does not preclude the
finding of guilt as the evidence established that
petitioner's objective was to receive
compensation," the court held.

Substantial Evidence: illSujficient
Evidence to Support Charges of
interference with Employee, Creating a
Disturbance and Destruction (~f State
Property
Ramirez v. Schultz, 787 N.Y. S.2d 57 (2d Dep't
2004)
The petitioner, au inmate, was charged with
and found guilty of intmterence with an
employee, creating a disturbance, and
destruction of state property. The charges
stemmed from an incident during which the
petitioner, acting as a negotiating representative
for an inmate committee, tore up a requisition
fonn and put it in a trash can. The torm was for
a monetary donation from the committee for an
upcoming family-day picnic.
At the outset, the respondcnt conceded that
the charge of creating a disturbance was not
supportcd by substantial evidence, but defended
the finding of guilt on the remaining charges.
The court, however, found that, since there was
no allegation that the petitioner had any physical
contact with any employee nor did he engage in
any behavior that interfered with the employee
performing his duties, there was also no support
for the "interference with an employee" charge.
Additionally, the tearing up of the requisition
form was found by the court to be

Page 21

inconsequential, as the petitIOner had the
authority of his committee to withdraw the
donation, and thus, the form that it was written
on was no longer of any value. "Under the
circumstances, the tearing up of this useless
paper, followed by the petitioner depositing it in
a trash can, is not equivalent to the destruction
of valuable state property," wrote the court.

Substantial Evidence: Nonspecific Nature
of Alleged Threatening Language
insufficient to Support Charge
Matter ofAllen v. Goord, 788 N.Y.S.2d 511 (3d
Dep't 200S)
While a correction officer was handing out
razors to inmates in their cells, Petitioner Allen,
who was double~celled with an inmate, advised
the otlker that his cellmate needed to be
immediately moved trom his celL There was a
discrepancy in the stories of the correction
officer and the petitioner regarding whether the
petitioner said that there would be "serious
bloodshed" or whether he said there would be
serious "problems" if the inmate was not
removed, but there was no dispute that the
petitioner wanted his cellmate moved. The
petitioner asserted that his request must have
been misinterpreted by the correction oftlcer,
and that his plea was tor assistance not an
indication that he intended to cause anyone
harm.
At his subsequent disciplinary hearing on
charges ofmaking threats, the petitioner elicited
testimony from two facility employees verifYing
that he [petitioner1had previously notified staff
of his cellmate's intimidating nature and had
requested to be transferred out of his cell. The
petitioner also requested that the author of the
misbehavior report be called as a witness, but the
Hearing Officer indicated that he felt that the

Pro Sc Vol. 15 No.2 Spring 2005

Pag.22

pelltlOner had presented "two very good
witnesses," that they were "very clear," and
testimony of the reporting otlicer might be
redundant, although he was the only eyewitness
to the event. The petitioner then agreed that the
reporting otlicer's testimony was not required.
The court noted that, even though a
misbehavior report alone can constitute
substantial evidence, "here, the nonspecific
statement made by petitioner and the conclusory
determination of what the rcporting correction
officer 'must have thought' were insufficient to
provide substantial evidence to support the
determination of guilt." Moreover, no evidence
was presented at the hearing to refute the
petitioner's defense that "his statement was not
intended as a threat." In fact, the only testimony
that was given supported the petitioner's
defense. The court also commented on the
petitioner's apparent waiver of his right to call
witnesses, noting that "given the questionable
comments by the Hearing Of1icer, we cannot say
that [the] petitioner's waiver of his right to call
a witness was knowingly and intelligently made."

Substantial Evidence: P£.>fitioner 'sDefense
ofMisidentification Merely Presents issue
ofCredibility
Matter of Ratliff v. Goord, 785 N.Y.S.2d 614
(3d Dep't 2004)
A correction officer wrote a misbehavior
report against Petitioner Ratliff, alleging that he
observed Mr. Ratlitl' throwing punches at an
unknown correctional employee during a
disturbance in the yard. Mr. Ratliffalso allegedly
refused direct orders to stop. The report charged
Mr. Ratliffwith "assault, refusing a direct order
and engaging in violent conduct."
Mr. Ratliff was found guilty at his hearing

and the determination was atlirmed on appeal.
Mr. Ratliffthen filed an Article 78, asserting that
the hearing officer's disposition was not
supported by substantial evidence. Mr. Ratliff
claimed that it was a case of mistaken identity,
and the fact that the author of the misbehavior
report was unable to describe what Mr. Ratliff
looked like during a telephonic interview
demonstrated tbat the otl1cer did not know who
Mr. Ratliff was. The court was not swayed.
Holding that the case merely presented an issue
of credibility, the court noted: "Although the
of1icer was initially unable to describe petitioner
during his telephonic testimony at the
disciplinary hearing, he later appeared at the
hearing and positively identified petitioner as the
individual he saw throwing punches at the staff
member." The court failed to note, however,
that when the officer appeared at the hearing to
identity Mr. Ratliff, the Hearing Officer had each
person identity himself, and then addressed
Mr. Ratlitl' by name before eliciting testimony
from the officer.
The petitioner filed a motion for leave to
appeal to the Court of Appeals. In his motion,
the petitioner argued: the officer's statement that
he identified Mr. Ratliff eould not constitute
substantial evidence because the alleged
identification was inconsistent with other
statements made by the same ofticer; the
Hearing Otlicer had a duty to engage in fiIrther
inquiry because the officer's identitication of an
inmate was disputed; the means by which the
officer allegedly identified the inmate was not
described in the rccord; and the officer's inperson identification of Mr. Ratliff was so
unduly suggestive that it could not constitute
substantial evidence. The motion for leave was
denied.
The petitionerwas represented by Prisoners'

Legal Service."'.

Pro Se Vol. 15 No. 2

Sprin~

2005

Substantial Evidence: Smuggling and
Possession ChargesAnnulledl)ue To Lack
ofProofPetitioner Was IntendedRecipient
of Contraband
Matter ofSantiago v. Goord, 785 NY S.2d 597
(3d Dep't 2004)
A correction officcr observed and retrieved
an envelope attached to a drag line on the floor
in a hallway where an inmate, Mr. Santiago, was
being housed. The contents of the envelope
tested positive tor marijuana. The drag line was
apparently in plain view of the petitioner's cell
and the petitioner was thercafter charged with
various rule violations, including smuggling and
possessing a controlled substance. He was
subsequently fonnd guilty of those charges,
which was upheld on appeal.
The petitioner filed an Article 78, arguing
that the record lacked substantial evidence to
support the charges. The report that was served
on the petitioner did not allege that the author
saw the petitioner smuggle the controlled
substance, nor did it allege that the controlled
substance was ever in petitioner's possession.
Instead, it simply stated that the author observed
the envelope attached to the drag line and that
"upon reviewing a videotape of the area, he
concluded that the envelope was attempting to
be passed to the cell in which petitioner was
housed" The author of the misbehavior report
did not testilY at the hearing, but the hearing
officer also reviewed the videotape and
concluded that "it depicted a drag line being
maneuvered between petitioner's cell and that of
another inmate at least three times... "
When the case went before the Appellate
Division, the court also reviewed the videotape,
but it came to a different conclusion. The court
noted: "Based upon our in camera review ofthe
videotape, however, we find that it is

P.~.23

inconclusive. Absent proof that petitioner was
the intended recipient of the envelope,
substantial evidence does not support ... the
determination... " The court annulled the
determination and ordered that all references to
the smuggling and possession of a controlled
substance charges be expunged from the
petitioner's record.

Vagueness of Rule: Court Holds 1)OCS
Disciplinary Rule Regarding WorkStoppages Provides Adequate Notice
Matter of Garrett v. Goord, 788 NYS.2d 461
(3d Dep't 2005)
The petitioner, an inmate, was charged with
violating the prison Disciplinary Rule 104.12,
which prohibits imnates from "leading,
organizing, participating in or urging other
inmates to participate in a work-stoppage, sit-in,
lock-in or other action which might be
detrimental to the order of the facility" Title 7
NYCRR 270.2[B][5][iii]. The facts that gave
rise to this charge are as tollows: The petitioner,
while an inmate at Gowanda Correctional
Facility, went with 95 other inmates to a
scheduled prayer service at the tacility's mosque.
When they all arrived, it was noted that only 81
ofthe 96 inmates had obtained prior pennission
to attend the service. The IS inmates who did
not have prior permission were taken to a nearby
room and told that unless they could obtain
immediate permission to attend, they would be
returned to their housing unit. Upon hearing of
this situation, the petitioner allegedly stood
inside the Mosque and said "if [they] ... are not
going to be allowed to participate in the
services, then we are all going to leave... " The
15 inmates were not able to obtain permission
and thereafter all the inmates left. Mr. Garrett
was then charged with violating Disciplinary

Poge24

Rule 104.12.
At his subsequent disciplinary hearing, the
petitioner was found guilty and filed an
unsuccessful administrative appeal. He then filed
an Article 78 proceeding, challenging the Tier III
disposition and asserting, among other things,
that the mle violation with which he was
charged was impermissibly vague. The Supreme
Court dismissed his petition and he appealed.
The respondent initially argued that the
petitioner had waived his challenge to the
vagueness of the rule violation by failing to raise
it at the hearing. The lower court rejected this
aq,,'ument, finding that "he [petitioner]
complained at every stage of this proceeding,
that he had no notice that he was engaging in
prohibited conduct." However, the court went
on to find that '''[a] disciplinary mle [will be
found to] meet [] due process... requirements if
it gives inmates adequate notice of prohibited
conduct tending to threaten the security and
order of a correctional facility. ", The court then
concluded that the mle in question "meets this
test. "

Witness Refusal to TestifY: Notation on
Employee Assistant Report Held
Insufficient
Matter ofMartinez v. Goord, 780 N. Y.s.2d 337
(3d Dep't 2005)
The petitioner, an inmate, was charged with
various mle violations. Following a disciplinary
hearing and unsuccessful administrative appeal,
the petitioner filed an Article 78 challenge,
alleging that he was denied his right to call
witnesses. The petitioner had requested that
various witnesses be interviewed by his
employee assistant, but apparently two of those
witnesses advised the employee assistant that
they refused to testify. With respect to at least

Pro 50 VoL 15 No.2 Spring 2005

one of the witnesses, the petitioner objected at
the hearing to the \vitness's refhsal to testifY,
noting that the witness's testimony was cmcial
to proving his innocence. The hearing officer
responded by advising the petitioner that
"because the employee assistant fOllll indicated
the witness's unwillingness to testifY, t1lere was
nothing he could do to procure the witness's
testimony. "
The court reversed the hearing officer,
noting that "[i]t is well settled that '[t]he hearsay
report of a correction officer that a witness
reJhses to testifY unaccompanied by any reason
fi'om the witness proffered to the hearing officer
for such refusal is not a sufficient basis upon
which an inmate's conditional right to call
witnesses can be summarily denied.'" (Citations
omitted.) However, the comt remanded the case
f()r a new hearing because the petitioner did not
dispute that there was sufficient evidence in the
record to support the disposition.

Parole/Conditional Release
Parole: Rehearing OrderedJ)ue to Failure
(if Parole Board to Consider All Relevant
Statutory Factors
Cappiello v. New York State Board ofParole, 6
Misc. 3d 101O(A), 2004 WI... 3112629 (NY
Co., Nov. 30,2004) (Wetzel, 1.) {Unpublished
Decision}
The petitioner, an inmate, sued the
respondent, the Board of Parole, alleging that
the respondent's decision to deny him parole
was arbitrary and capricious and requesting,
among other things, that the court require the
Parole Board to conduct a new hearing in
accordance with the factors set forth in
Executive Law §259-I.
The petitioner is serving a sentence of 15

Pro Se VoL IS No.2 Spring 2005

years to life on a felony murder charge, together
with a lesser concurrent term on other related
charges. At the time of his conviction in 1977,
the petitioner was only eighteen (18) years old
and had no prior criminal record. After being in
prison for over seventeen years, the petitioner
was placed in a Work Release Program at
Queensboro Correctional Facility. As part ofthe
program, he spent five days a week living at
home with his wife and working and two days a
week at the correctional facility. He progressed
in his job as a Youth Outreach Worker tor the
Safe City Cafe Street Program, ultimately
becoming the director of the program which
'"serviced the largest number of youth in the
New York City area. ", His status on work
release remained and remains unchanged: he still
lives at home with his wife, works five days a
week, and reports to the facility two nights a
week.
The Petitioner appeared before the Parole
Board seven times, each time being summarily
denied parole. In the first four appearances he
was given a 24-month hold, and in the six and
seventh appearances he was given an I8-month
hold. Most recently, he appeared in September
2003 and the Board "inexplicably imposed a 24month hold once again. " At that hearing,
substantive testimony, ten pages in length, was
given: eight pages dealing with his 1976 crime,
and two pages addressing other "relevant
statutory factors," such as "his performance on
Work Release, his gainful employment while on
Work Release, his residence at his wife's home
in Staten Island, his plans for the future, and the
fact that he had no disciplinary infractions in the
program since his last Board appearance" Near
the end of the hearing, the Board asked the
petitioner whether there is "'anything else... that
you think is important for us to take into
consideration as we look at your case today, ",

Page2S

and the petitioner then directed the Board's
attention to "the voluminous written material
submitted in connection with his interview" The
Board failed to ask the petitioner anything about
the written materials and denied parole based
upon the circumstances surrounding his instant
offense. After filing an unsuccessful
administrative appeal, the petitioner brought an
Article 78 proceeding.
In his petition, the petitioner argued that
because the Board failed to apply the relevant
statutory factors and instead focused solely on
his criminal offense, the Board's decision was
arbitrary and capricious. The petitioner also
argued that the 24-month Board hold was
excessive. The court agreed with the petitioner,
vacated the Board's decision, and ordered the
Board to provide the petitioner with an
immediate new hearing, during which the Board
would comply will all the statutory requirements.
The court acknowledged that there is no
"inherent constitutional right to parole," but in
New York State we do have a statutory scheme
which "creates a legitimate expectation of early
release from prison" and which, in tum, creates
a "liberty interest which is entitled to
constitutional protection." The court noted that
Executive Law §259-i(2)(c)(A) sets forth three
standards that place limits on the otherwise
broad discretion that the Board has in making
parole detemlinations. The Executive Law
mandates that a denial of parole "must be
reasonably predicated on one or more of these
three qualitative standards:
I . whether, if released, the inmate will live and
remain at liberty without violating the law;

2. whether the inmate's release will be
incompatible with the welfare ofsociety; and

Page 26

3, whether release will not so deprecate the
seriousness of the crime so as to undermine
respect for law,"
Executive Law §259-i(2)(c)(A) also
mandates that the Board consider certain factors
in determining whether to grant parole release in
accordance with the standards, Those factors
include:
I,

the institutional record including program
goals and accomplishments, academic
achievements, vocational education,
training or work assignments, therapy, and
interpersonal relationships with staff and
inmates;

2,

performance, if any, as a participant in a
temporary release program; and

3,

release plans including community
resources, employment, education and
training, and support services availahle to
the inmate,"

Although the Parole Board does not have to
specifically refer to each of these factors or give
each factor equal weight, it must, at the very
least, consider each factor.
In this case, the court found that "it does not
appear that respondent made any attempt to
detemline whether parole was appropriate
acwrding to any of the three statutorily
acceptable standards," The court noted that the
petitioner was given a sentence by a judge after
hearing and weighing all of the evidence, which
should have resulted in the petitioner being
eligible for parole after serving 15 years in
prison, However, "[i]n 2003, after serving 27
years in prison, [the] petitioner was denied
parole based solely on the severity of the crime
for which he was originally convicted. The

Pro So Vol. 15 No.2 Spring 2005

Parole Board's failure to qualitatively determine
whether petitioner presented a current danger to
society, based on all of the relevant statutory
factors, was a clear abdication of its statutory
duty," held the court,
The court's frustration with what it saw as a
cursory rejection of the petitioner's application
for parole was apparent when the judge not only
ordered a new parole hearing but also required
the Board to state on the record whether its
members had read all of the submitted
documents, "Apparently, it is respondent's
position that it is not responsible for reading and
incorporating submissions as part of its
deliberative process," wrote Justice Wetzel.
"Therefore, it is the direction ofthis court that at
the de novo hearing, [the] petitioner shall inquire
on the record ()fthe Parole Board whether they
have read all of the materials submitted by [the]
petitioner, and [the] petitioner shall ask that the
Parole Board acknowledge or deny reading
those materials on the record,"

Conditional Release: Invalid Omditional
Release,Y Revoked by Court; Former
Inmates Ordered to Surrender Themselves
In re Velella v, New York City Local
Conditional Release Commission, et ai" 788
NYS,2d 8 (I" Dep't2004)
Five petitioners, fonner inmates, ftled Article
78 challenges to the determinations of the
respondent, the Conditional Release
Commission, which advised the petitioners that
their conditional releases were invalid and which
directed the petitioners to surrender themselves
to state custody. For three of the petitioners, it
was detemlined that their applications for
conditional release were incorrectly considered
prior to the required statutory expiration of 30
days of incarceration, The other two petitioners

Pro Se Vol 15 No.2 Spring 2005

Page 27

were released on m·applieations for release,
whieh were subsequently detennined to be
invalid beeause they had reapplied less than 60
days after their first applications were submitted.
The Supreme Court, New York County
(Wilkins, 1.) dismissed all of the petitions and
directed the petitioners to surrender themselves
to custody. They appealed. The Appellate
Division, First Department affinned the lower
court's decision, finding that "statutory
mandates were not followed [and thus] the
orders granting conditional releases were
illegaL" The court noted: "While a government

agency cannot reopen an application and change
a valid, final order absent statutory authority, an
agency has the power to set aside a
detennination on the ground of a signifieant
irregularity" (Citations omitted). The court also
noted that because the respondents'
interpretation of the Correction Law was a
reasonable one, it warranted deference. In
addition, the court pointed out that the
"[p]etitioners did not have a substantive due
process right to the protection of conditional
release orders that were illegal."

Pro Se Practice
Tile Reform ofthe Rockefeller Drug Laws
On December 14, 2004, Governor Pataki
signed into law the Rockefeller Drug Law
refonn bill commonly referred to as the Drug
Reform Act (DRA). This new law altered the
punishments for most narcotics crimes, in most
cases reducing the punishment, but in some
cases increasing it. Under the new law, the 15to-life to 25-to-life sentences required under the
1973 laws for the highest level, Class A-I drug
crimes, were cut to 8 to 20 years. It is estimated
that over 400 inmates who are now in prison for
Class A drug otfenses are eligible under the
DRA to petition to be resentenced. Many
advocates for reform of the Rockefeller drug
laws complain that the DRA does not go far
enough.
We have received numerous questions
concerning the DRA, including what types of
cases are affected by the DRA and whether the

recently enacted changes will be applied
retroactively to defendants who were not
sentenced prior to the effective date of the
statute. This article is meant to otler answers to
some of the most frequently asked questions
regarding the DRA, and to provide you with an
update on the status ofthe law when interpreting
whether tht~ new law should be applied
retroactively.

Does the DRA Revised Sentencing Scheme
Apply to All Drug Offenses?
The DRA calls for determinate sentences for
all drug offenses. The sentencing section applies
to all offenses committed on or after January 13,
2005, and perhaps crimes committed prior to
that date (see last section below).

Pro 50 Vol. 15 No.2 Spring 2005

Page2S

Class A felony convictions will be punishable as follows:
Class A-I Drng Offenses
First Felony Offense
Second Felony (prior non-violent)
Second Felony (prior violent)

Determinate Sentence Range
Between 8 and 20 years
Between 12 and 24 years
Between 15 and 30 years

Plus 5 years post-release supervision (all cases)
Class A-ll Drug Offenses

Determinate Sentence Range
Between 3 and 10 years
Between 6 and 14 years
Between 8 and 17 years

First Felony Offense
Second Felony (plior non-violent)
Second Felony (prior violent)

Plus 5 years post-release supervision (all cases)

Class B through E level dnlg and marijuana (?tfenses:
First Felony Offender
Class B
ClassB
ClassC
Class 0
Class E

Determinate Sentence Range
Between I and 9 years
Between 2 and 9 years
Between I and 5 Y:, years
Between I and 2 Y:, years
Between I and I Y:, years

(sale in or near school grounds)
(imprisonment not mandatory)
(imprisonment not mandatory)
(imprisonment not mandatory)
Plus post-release supervision
Class B or C - Between I and 2 years
Class D or E - I year

Second Felony Offender (prior nOli-violent)
Class B
Class C
ClassD
Class E

Determinate Sentence Range

Between 3 Yz and 12 years
Between 2 and 8 years
Between I Y:, and 4 years
Between I Y:, and 2 years
Plus post-release supervision
Class B or C - Between I Y:, and 3 years
Class D or E - Between I and 2 years

Pro Sc VoL 15 NO.2 Spring 2005

Second Felony Offender (prior violent)
ClassB
Class C
ClassD
Class E

Page 29

Determinate Sentence Range
Between 6 and 15 years
Between 3'12 and 9 years
Between 2\1;, and 4\1;, years
Between 2 and 2'h years

Plus post-release supervision
Class B or C - Between I \I;, and 3 years
Class D or E - Between 1 and 2 years

Can I File a Petition for Resentencing?
If you are currently serving A-I felony
sentences for a drug offense, you may petition
for resentencing under the new determinate
scheme beginning January 13, 2005. The law
requires that you be in the custody of the
Department of Correctional Services; those on
parole are not eligible tor resentencing. The law
grants you the right to assigned counsel to
prepare the resentencing application and to
advocate for a determinate sentence under the
new scheme. Counsel fees for such
representation will be a county charge.
Whenever possible, your application will be
assigned to your original sentencing judge.
Otherwise, it will be randomly assigned to a new
judge
The court "may consider any facts or
circumstances relevant to the imposition of a
new sentence," including your institutional
record. Because the bill provides that no new
pre-sentence report be ordered, it will fall to
your defense counsel to independently
investigate and present facts supporting
resentencing. The court must offer you the
opportunity for a hearing and allow you to be
presenl. The court may also conduct a hearing to
"determine any controverted issue of fact
relevant to the issue of sentencing." Unless

"substantial justice dictates" that the application
be denied, the court must ofter you a
determinate sentence as an alternative to the 15to-25-years to life sentence you are now serving.
You have the option of accepting or rejecting
the new determinate sentence. But in either case,
you have the right to appeal from a detenninate
sentence offered or imposed on the ground that
it is harsh and excessive.

What Do I Do If I Believe I Can Be
Resentenced Under the DRA?
If you have becn convicted of a Class A-I
drug crime under the old Rocketeller Drug
Laws, and believe that, based upon the
infOlmation set forth in this memo, the reforms
may benefit you, you should do the following:

.I Ifyour convic;tion was outside ofNew York
City, contact the Chief Defender's office in
the county in which you were convicted.
.I If your conviction was in New York City,
contact William Gibney, Special Litigation
Unit, Legal Aid Society 199 Waters Street,
NY, NY 10038.
.I If your case is on appeal, contact your
criminal appeals attorney.

Page 30

Have any changes been made regarding
the weight threshold for Class A Drug
Offenses?
The bill doubles the weight thresbold for the
Class A-I felony of criminal possession of a
controlled substance in the first degree (Penal
Law § 220.21) from four to eight ounces, and
for the Class A-ll felony of criminal possession
of a controlled substance in the second degree
(Penal Law § 220.18) from two to four ounces.
But the weight thresholds for sale offenses
remain the same. These changes were effective
as of the date the bill was signed into law and
thus should apply to any case that was pending
as of December 14, 2004. If the weight is less
than the newly-prescribed amounts, pending A-I
and A-II possession indictments should be
reduced accordingly.

Does the DRA Affect My Good Time or
Merit Time?
Detenninate Sentences - All drug offenders
serving the new determinate sentences will be
eligible for a standard 1/7'" reduction ofthe temt
as good time. They will also be eligible for an
additional 117"' reduction as merit time. To earn
merit time, dmg otlenders will be required to
participate in assigned work and treatment
programs, and obtain (a) a GED, or (b) an
alcohol and substance abuse certificate, or © a
vocational trade certificate, or (d) perform 400
hours in a community work crew.
Indeterminate Sentences - Class A-I drug
otTenders serving indeterminate sentences may
continue to earn up to 1/3 off their minimum
terms as met;t time, and Class A-ll through E
drug offenders may continue to eam up to 1/6'"
off their minimum temts. The bill includes a
bonus 1/6"' merit time allowance tor Class A-ll
through E felony offenders, i.e., all drug

Pro So VoL 15 No.2 !It'ring 2005

offenders who are not convicted of an A-I
felony, who committed the otlense prior to
January 13,2005, and received an indeterminate
temt. As of December 27, 2004, if you are a
drug offender who is incarcerated and serving an
indeterminate sentence and who has not yet
reached the minimum terrfL you are eligible for
this additi01ul! credit of 1/6 otf of the minimum
as possible merit time ifyou participate in two or
more of the above-listed programs. When you
first arrived in the Depal1ment of Correctional
Services, you were given a computation which
showed a possible merit time parole board
appe,arance that was computed at 1/6 offofyour
minimum term. Under the new law, you are
eligible for an additional 116 offthe minimum of
any drug conviction tor a total of 113 off the
minimum before the scheduling of a possible
parole board appearance. For example, if you
have a 3-year minimum term, yon would now be
eligible for merit release at 2 y",aTs.
The merit time change only helps people
now in custody serving a sentence and who are
still within the time during which early eligibility
for possible parole release would be helpful. If
you have already served your minimum
sentence, it is too late for this provision to help
you. Even for those who are potentially eligible,
the requirements of merit time are also often
difficult to achieve. You must complete your
program assignment and not have a serious
disciplinary infraction (60 days or more in SHU).
Ifyou have questions about these requirements,
you should speak with your prison counselor.

Does the DRA Affect Parole on An
Indeterminate Sentence'?
Effective February 12, 2005, people serving
A-I and A-II felony sentences under the old law
must have their parole ended after three years of
unrevoked supervision. All other drug offenders

Pro Se Vol. 15 No.2 Spring 21M15

must have their parole ended after two years of
unrevoked supervision. These provisions should
offer some help, for example, to those serving
life sentences for A-II felony crimes and for
those serving B felony offenses with long
maximum terms, provided they are able to
remain problem free and not get their parole
revoked within the required time limit. If you
have questions about the requirements for
termination of your parole supervision, you
shonld discuss them with your supervising parole
officer.
Does the DRA Affect CASAT or Judicial
Placements?
Under the current law, certain non-violent
inmates are eligible for the Comprehensive
Alcohol and Snbstance Abuse Treatment
program (CASAT) when they are within two
years of initial parole eligibility or conditional
release (indeterminate and determinate
sentences). After six months of prison-based
treatment, they are eligible for work release and
cOll1ll1unity-based treatment fbr an additional 18
months. The Department of COlTectional
Services selects inmates for participation in the
CASAT program.
For drug offenses, the DRA now allows
inmates to be eligible for CASAT when they are
within 2 years and 6 months oftheir anticipated
parole or conditional release date (giving
advance credit for available good time and merit
time credits). Second felony Class B drug
offenders serving determinate sentences,
however, must serve a minimum of 18 months
Gail time and prison time) before transfer to a
residential treatment program. The law also
authorizes judges to select defendants at the time
of sentencing for filture participation in the
CASAT program.

Poge31

Does the DR.A Affect SHOCK or the
Willard Drug Treatment Program?
No real substantive changes were made to
the eligibility criteria for SHOCK. The statute
(ColTection Law § 865) has been amended to
accommodate the new determinate sentencing
scheme. Drug offenders with detenninate
sentenc,cs who are under 40, have never been
previously committed to DOCS, and who will
become eligible for conditional release within
three
years may participate in SHOCK.
However, second felony Class B drug offenders
are ineligible for the program, even if they are
within the three-year time fi·ame at the time of
DOC S reception. (The new minimum
deternlinate sentence in this category is 3'12
years.)
Under the new deternJinate sentencing
scheme, the Willard program will continue to be
available to individuals who are convicted of
Class E felony drug offenses and, with the
consent of the district attorney, Class D felony
drug offenses. The law has been clarified to
eliminate the confusing restriction on Willard
eligibility fbr those defendants who are "subject
to an undischarged telTll ofimprisonment." This
language was never intended to mean defendants
who were on parole at the time of the instant
offense. The amended statute makes clear that
only those defendants who are ill state prison or
"awaiting delivery" to DOCS for another offense
are ineligible for Willard placement. These
changes became effective January 13, 2005 and
apply to offenses committed on or after that
date.
What are the effective dates of the New
Sentencing Scheme Under the DRA?
The language and structure ofthe DRA have
been interpreted by most judges to mean that

Page 32

determinate sentences are available only for
offcnses committed on or after the effective date
of the new sentencing provisions, January 13,
2005. This is because the language of the bill
regarding determinate sentencing states that it
"shall apply to crimes committed on or after the
effective date thereof" Moreover, the bill
includes other provisions that appear specifically
designed to benefit defendants whose crimes
were committed prior to that date and who
receive indetenuinate tenus. For example, all
Class A-I offenders were automatically eligible
for resentcncing as of January 13, 2005. All
other dmgoffenders will be eligible to earn merit
time equal to % oftheir minimum indeterminate
terms, as well as early termination of parole,
after two or three years of um'evoked
supervision.
On the other hand, there have been at least
two reported cases where judges have
interpreted the ORA to apply to defendants
whose crimes were committed before the
refonns went into effect but who were not
sentenced yet. People v. Luis Estela, (N.Y. Co.
Sup. Ct.) (Jan. 2005) (Wetzel, 1.), involved a
non-violent predicate felon who appeared before
Judge Wetzel on two indictments, charging him
with one count of Criminal Sale of a Controlled
Substance in the 3,d Degree and Criminal
Possession of a Controlled Substance in the 3'd
Degree. Defcndant Estela indicated that he was
prepared to plead .b'uilty, but requested that he be
sentenced pursuant to the revised Rockefeller
drug laws. Sentencing under the ORA could
result in a determinate sentence range of 3Y2 to
12 years, as opposed to being sentenced under
the old Rockefeller drug laws which would have
resulted in an indeterminate range of 4Y2 to 9
years, up to 12Y2 to 25 years.
The issue before the court was whether the
revised sentence stmcture was applicable to
Mr. Estrela, who committed the offenses for

Pro Se Vol. IS No.2 Spring 2005

which he was charged before January 13, 2005,
the effective date of the ORA. Judge Wetzel
relied on the Court ofAppeals case ofPeople v.
Behlog, 74 N.Y.2d 237 (1989), as his authority
for applying the new scheme to offenses
committed priorto January 13, 2005. In Behlog,
the Court of Appeals held that 1985
amendments increasing the dollar amounts ofthe
larceny statutes were "ameliorative" and could
be applied to offenses committed prior to the
eft'ective date of the legislation. "The rationale
for this exception is that by mitigating the
punishment the Legislature is necessarily
presumed--absent some evidence to the
contrary--to have detennined that the lesser
penalty suft1ciently serves the legitimate
demands ofthe criminal law. Imposing a harsher
penalty in such circumstances would serve no
valid penological purpose" BeWog, 74 N.Y.2d at
240. Judge Wetzel found the logic of Behlog
compelling. "It would be illogical to find that the
legislative intent was that this defendant should
serve a longer period oftime than someone who
committed exactly the same crime a month or a
day later. The compelling rationale of this
legislation is that the sentence for this particular
crime was excessive and should be reduced, and
it is consistent with this legislative intent that this
court now apply the well-established principle
stated in Behlog. Had the legislature intended
otherwise, it is reasonable to assume that they
would have used ... explicitly restrictive
language."
People v. Hasson Denton, et. aI., (Kings Co.
Sup. Ct.) (Feb. 2005)(Gerges, J), also presented
the issue of "whether the ameliorative portions
of the recently enacted changes to the
Rockefeller drug laws (Drug Reform Act-ORA)
are to be retroactively applied to the defendants
who have note been sentenced prior to the
effective date of the new statute." In an
interesting twist, the People initially consented

Page 33

Pro Se Vol. 15 No.2 Spring 2005

to the defendants' request to withdraw their not
guilty pleas and plead /,'Uilty to particular
narcotics crimes with the promise of being
sentenced under the DRA. But, approximately
three weeks later, the People flied an application
to withdraw the agreement they had made and
permit the defendants to withdraw their guilty
pleas or, in the alternative, "sentence the
defendants in accordance with the law applicable
at the time of the commission of the crimes."
Judge Gerges undertook a thorough analysis
of the history of the casc law on the issue of
applying "remedial statutes to a person who
committed a crime before the ameliorative law
was enacted," and concluded that "[iJt is clear
that the legislature intended to equalize prisoners
sentenced under the old law with those
sentenced under the new law. It would [beJ
anomalous ifthe court were required to sentence
the defendants to a harsher sentence only to have
the Department of Corrections mitigate the
harshness of the sentence by applying the new
provisions ofthe law... Therefore, this court will
not interpret the new law to 'waste valuable tax
dollars,' to impose an 'inordinately harsh'
sentence and to impose a disproportionate
sentence of an 'antiquated' law. The legislature
has shown that it wished to treat old law
offenders equally with new law offenders."
Based upon the language of the DRA, and
even considering the opinions of Judge Wetzel
and Judge Gerges, it is unlikely that the DRA

would be found to apply to defendants who
were sentenced before the reforms went into
effect.

Conclusion
Drug reform advocates argue that even
under the new law, the sentences for first-time
Class A offenders are still too long, judges still
do not have discretion in sentencing, addicted
offenders still do not have the option of being
diverted to treatment rather than incarcerated,
and there is no funding provided to expand drug
rehabilitation programs. Additionally, there has
been criticism that the DRA does little to benefit
woman prisoners. It is estimated that, at most,
one percent ofthe female drug-crime population
will benefit fTom the DRA, which would result
in, at most, 10 female inmates being released due
to re-sentencing. A range of factors explains
why so few women will benefit from the DRA,
including limits to the revisions in the law, the
makeup ofthe prison population, the governor's
clemency program, and the complexity of some
ofthe women's cases. Many women will benefit,
however, from the section of the DRA that
increases the amount of time that can be
deducted from sentences for participation in
education, drug treatment, and similar programs.
For all ofits drawbacks, the DRA is a step in the
right direction.

Pro Se Vol. 15 No.2 Spring 2005

Page 34

Good Luck and Best Wishes
To
Tom Terrizzi
It is with a deep sense ofgratitude that many ofus at Prisoners' Legal Services
say good bye to our long-time friend, colleague, advocate, and leader, Tom Terrizzi.
Tom has served Prisoners' Legal Services for over twenty-nine years. He has dedicated
his life to representing indigent people and fighting for justice and civil rights. Tom
began working for Prisoners' Legal Services in the late 1970's as a staffattorney in the
Ithaca office. He thereafter became Managing Attorney of that office. In the early
1990's, he became Associate Director ofPLS, and in 1999, Executive Director.
In his early years as a staff attorney, Tom fought many court battles for New
York State inmates, including securing their release from solitary confinement,
obtaining jail time credit owed to tbem, and insuring that their dignity was protected.
Tom was instrumental in the case of Hurley. et al. v Coughlin, et aI., 549 F.Supp 174
(1982), a case that challenged DOCS' policies and practices regarding strip and body
cavity searches. Following a month-long trial in 1982, the Court found DOCS'
practices were excessive, degrading, unreasonable, and unjustified in violation of
plaintiffs' rights to substantive due process. After trial, a consent decree was entered,
and Tom was involved in the filing ofvarious contempt motions concerning violations
ofthat decree. One contempt motion, in 1995, sought changes in procedures regarding
videotaping admission strip frisks in the SID; at Albion, a woman's prison. A
settlement agreement was reached on approximately 78 claims of improper video
taping of strip frisks, which included money damages for those women whose rights
had been violated. Another contempt motion regarding strip frisk violations inFishkill's
SffiJ resulted in the installation of a fixed video system covering the entire SffiJ.
Tom has been involved in numerous other impact cases that have resulted in
improvements to conditions ofconfinement for inmates in New York State prisons. He
worked on Eng, et al. v. Coughlin, et aL 80-CV-385 (W.D.N.Y.) (Skretny, 1.), a
§1983 class action involving living conditions and treatment of prisoners in Attica's
Tlihute Continues on N"'1 Page...

Pm Se VoL IS No.2 Spring 2005

... Tribute C,mtinuedfrom PrttiouJ Page

SHU, Anderson, et aI. v. Coughlin, et at. N. D. N. Y, 87-CV-141 (MeCum, J.), a
§1983 class action alleging that incarcerating mentally ill people in SHU, punishing
them for conduct which is a product of their mental illness, and holding disciplinary
hearings when people are not capable ofrepresenting themselves violate the 8th and 14th
Amendments, and Hughes, et at. v. Goord, et at. 97-CV-643, W.D.N. Y. (Siragusa, 1.),
a §1983 class action alleging 1" Amendment violations by DOCS' for refusing to permit
traditional Native Americans from practicing their religion. Each ofthese cases resulted
in raising the awareness of society to the importance of protecting the constitutional
and human rights of all people, and ensuring that all individuals, regardless of their
circumstances, retain their dignity.
Tom's leadership and dedication have been an inspiration to those ofus at PLS.
PLS began operations with 27 attorneys in 1976, a time when the state prison
population in New York was approximately 17,000. Twenty years later, with a prison
population approaching 70,000, PLS had six offices around the state but only 30
attorneys. This was due to years of budget stagnation and cuts. In 1998, PLS was
vetoed out of the budget by Governor George Pataki, and was forced to close its
doors. However, due to Tom's fortitude, optimism, and his unrelenting beliefthat PLS
needed to exist, Tom, together with our then-Executive Director David Leven, was
able to secure a partial restoration offunding in the Fall of 1999. However, the closure
and resulting interruption ofservices to our clients rocked the foundation ofPLS and
dimmed the spirit of many prisoners. Rebuilding our program, one which had
developed over twenty years into a highly effective prisoner rights organization, due
to the collective and extensive experience of attorneys, paralegals, and support staff,
was at times overwhelming. Nevertheless, Tom never faltered. The result is that six
years later, PLS is alive and well, providing legal advice and representation to
thousands of inmates every year.
So, to Tom we say, "Thank you. Thank you for your time and your talents.
Thank you for your spirit, your perseverance, and your unrelenting dedication to the
causes ofjustice and human rights. You will be greatly missed."

Page3S

Pro Se VoL 15 No. 2 Spring 2005

Page 36

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EDITOR: KAREN MURTAGH-MONKS, ESQ.
CONTRmUToRS: TOM TERRlZZI, ESQ., KAREN MURTAGH-MONKS, ESQ.
COpy EDITOR: FRANCES GOLDBERG PRODUCTION: FRANCES GOLDBERG
EDITORIAL BOARD: JERRY WEIN, ESQ., BETSY STERLING, ESQ. KAREN MURTAGH-MONKS, ESQ.

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