Vol. tS Number 4: Fall20QS Published by Prisoners' Legal Services of New York

Court Fillds DOCS' Telephone Rates
May Be Unconstitutional
DOCS' practice ofcollecting a large commission
on all phone calls made by prison inmates--and
passing the costs on to their families--may be
unconstitutional, held a New York federal judge
recently. The decision is a victory for inmates and
their family members who have long criticized the
exorbitant costs of inmate telephone calls.
The controversy stems from DOCS' telephone
contract with MCI, the telephone company. Under
the contract, DOCS requires MCr to pay it a 60%
commission, over and above the regular (~osts of a
telephone call, for all calls placed by inmates In
return, MCI receives the right to be the exclusive
provider of telephone service within DOCS'
facilities. Since all inmate calls are collect, the extra
costs required by the contract are passed on to the
calls' recipients, typically inmates' families. This
results in telephone bills to family members far in
excess of what would ordinarily be charged for
similar calls from non-inmates.
DOCS argues that the 60% commission, which
critics call a kickback, is necessary to finance the
security costs associated with a prison telephone
system, including such things as the ability to
monitor calls and to trace the identity of the inmate
placing the call. It also argues that the extra
revenues finance a variety of other programs which

might not othenvise be financed by the State
Legislature, including bus services for visitors and
some aspects of medical care.
Inmates and their families counter that the
commission amounts to a regressive tax on some of
the poorer segments of society, that is, inmates'
article continued on page 2...

Also Inside...
Rockefeller Drug Reform Update:
New Law Permits Re-Sentendng
of A-II Offenders; Dispute re
Eligibility Requirements ... __ . . .. page

4

Second Cireuit Holds Prison
Discipline is Not Double
Jeopardy ...

page

8

Court of Claims Rejeets
Failure to Protect Claim

page 18

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tk'lails

This project is supported in part by grants from the New York State Division 01Criminal JUftice Serl'ice.~. the New York
State Rar Foundation, and the Tompkins CQunty Bar Association. Points of ,.!jew in this documenl are those ofthe author
and do "ot represent the official position

t" plJlicies ofthe grantors.

Pro Se Vol. 15 No.4 Fall 2005

Page 2

article continued,from page 1...

families, and often forces the families to choose
between staying in touch with their incarcerated
loved ones or providing for basic necessities.
The decision came in the ease ofByrd v. Goord,
2005 WL2086321 (S.D.NY) (Aug. 29, 2005), a
class action brought by family memhers of inmates
and other recipients of imnate telephone calls in the
Southern District of New York. In it, the Court held
that the high rates may violate the First Amendment
rights of inmates' family members by preventing
them from communicating with their incareerated
loved ones. It may also violate their tight to equal
protection of the law by treating inmates' family
members differently t1'om members of the general
public, without a rational basis for doing so.
The principal plaintiff in the case was Maty
Byrd, a seventy-nine-year-old woman who suffers
from severe chronic lung disease and is thereftxe
unable to visit her two sons, who have been in prison
since 1983. The only way she can speak with them
is by accepting their collect calls. Because of the
high cost of these calls, however, Ms. Byrd has at
times been unable to pay her telephone bills when
th(~y became due. When the telephone company
received one payment late, it cut oft' her longdistance service. Ms. Byrd now receives calls from
her sons through her sister's account and makes
installment payments on her past bills. She struggles
to pay the $150 per month that she is currently
billed. As a result, Ms. Byrd and her sons have not
been able to keep in close contact.
In the lawsuit, Ms. Byrd and the other plaintiffs
alleged that the DOCS-MCI contract violated her
First and Fourteenth Amendment rights by
"unlawfully burden[ing] their right to familial
association by impeding communication with their
spouses, children and relatives who are DOCS
inmates concerning matters ofhealth care, marriage,
procreation, pregnancy, parenting and other critical

family issues" They also alleged that the
commissions DOCS receives, which they call
"kickbacks," violate their right to equal protection of
the law because there is no rational basis for the
state to distinguish between them as consumers of
telephone services and other consumers who do not
receive inmate telephone calls.
The Court held that "ifPlaintiHs could show that
the costs are so exorbitant that they are unable to
communicate ... then reliefcould be warranted." The
Court noted that several of the cases cited by the
plaintitls might meet that test. For example, the
Court cited the case of Cora W., who is homebound
due to severe arthritis and the chronic effects of a
brain aneurysm and unable to travel to visit her son
in prison. In addition, "[she] often cannot grip a pen
to write to her son." She is only able to
communicate with him by accepting his collect calls.
Her sole source ofincome is the $563 per month she
receives t1'om Social Security and Disability. Ms. W.
is able to keep her phone bills down to $70 to $80
per month, but only by strictly limiting the duration
of her calls from her son.
The Court also cited the case of Ms. Mary M..
Ms. M, like Ms. W., is disabled and subsists on "a
limited disability income through the Social Security
system" of $535. She has two sons who are
incarcerated. Her health problems prevent her trom
visiting her sons and, therefore, she too can only
speak to them by accepting their collect calls. These
average $200 to $250 per month. In 1996, her
grandson, for whom she was caring, fell out of a
window. "He was hospitalized for a long time,
battling for his life. During this crisis, [the boy's
incarcerated father] called home t1·equently. Because
Ms. W. could not pay the additional expense of
these calls, her telephone service was terminated
approximately six times."
With respect to the plaintiffs' equal protection
article continued on page 4...

Pro So Vol.

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No. 4 Fa1l200~

Page 3

PLEASE DEPOSIT ALL YOUR MONEY
{heldlowing is an editorial that recent~y appeared in the New York Times
concerning the Byrd lawsuit.
Faced with high prison costs, the states have been desperately seeking ways to
make sure that people who are released from prison will forge viable lives outside and not end up right back behind bars. Part of the solution is to help former inmates
lind training, jobs and places to live. In this context, the increasingly common
practice ofjacking up the costs ofinmates' telephone calls to bankrupting levels, and
then using the prol1ts to pay for some prison activities, is self-defeating and
inhumane. It also amounts to a hidden tax on prisoners' families, who tend to be
among the poorest in American society.
A vast majority ofthe state prison systems have telephone setups that allow only
collect calls The person who accepts the call pays a premium that is sometimes as
much as six times the going rate. Part of the money goes to the state itself in the
form of a "commission" or, more simply put, a legal kickback.
While such commissions are common throughout the country, the one in New
York is particularly high: the state takes a commission of nearly 60 percent. Faced
with telephone bills of $400 or more a month, the inmates' families must often
choose between paying phone bills or paying the rent. This billing strategy erodes
fragile family ties by discouraging prisoners from keeping in touch with loved ones
-especially small children who often have difliculty visiting because they live
hundreds of miles away. Inmates who lack family ties are less likely to make a
successful transition once released, and more likely to end up back inside.
While most states use collect calls only phone systems for prisons, federal
prisons use a less expensive and less onerous debit-calling system. Federal inmates
are allowed to use money that is accumulated in computer-controlled accounts to
call a limited number of phone numbers. Prison rights groups have long urged the
states to adopt the debit-calling system. Lawsuits pending in several states, including
in New York, could eventually force prison authorities to abandon their policies of
allowing only collect calls. And the New York State Assembly has passed a bill that,
if it becomes law. will put an end to this system.
New York state corrections officials argue that the current system is a good
thing because the money goes to pay for AIDS treatments, cable television for
inmates and other prison programs that benefit the inmates But the inmates' families
already support the prison system through their taxes. Dunning the poor to run the
prisons where so many of the poor wind up may have been acceptable in Dickens's
time, but no longer.

Pro Se Vol. 15 No, 4 FilII 2005

Page 4

article continuedfrom page 2...

NEWS AND BRIEFS
claim, the Court found that DOC S has offered "no
rational basis to justifY placing the burden of
this ... commission solely on the friends and families
of inmates, and those individuals providing
counseling and professional services, thereby
charging them more per call than similarly situated
collect call recipients." For example, the court citcd
the case of "Elizabeth F," the Director and Lead
Counsel for the Attica brothers Legal Defense Fund.
Ms. F. accepts collect calls from her incarcerated
elients in order to effectively communicate with
them. As a result, she is forced to pay the high cost
of the collect calls fTom her incarcerated clients so
that she can represent them as effectively as she does
her non-incarcerated clients.
In view of the evidence, the Court found, it
could not say at this stage of the proceedings that
there was "no set of facts" that the plaintiffs could
prove to support their claims. It consequently denied
DOCS' motion for summaryjudgment. The case will
now presumably go to trial.
Barbara Olshansky, the lead counsel for the
Center for Constitutional Rights, called the decision
"an important victOlY for inmates' families seeking
to maintain ties with their loved ones in prison. It is
also a resounding confirmation by the court of the
principle that inmates do not lose their constitutional
rights when they enter the prison gates, and that no
person may be penalized or taxed for seeking to
maintain their relationship with a loved one in
prison."

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Rockefeller Drug Reform Update: New Law
Permjt~ Re-Sentencing o.fA-II Offenders; Dispute
re Eligibility Ret/uirements
New York's notorious Rockefeller-era drug laws
imposed the stiffest punishments in the nation on
drug offenders, including maximum terms oflife for
both A-I and A-II dmg offenders. Last year's "Dmg
Law Reform Act" (the "DLRA") mitigatcd the
harshpst aspects of those sentences. It replaced the
indetenninate sentences with detem1inate sentences,
reduced the quantity of drugs needed to qualify for
some of the harshest ofIenses, and reduced the
overall length of the sentences. Under the old law,
for instance, a class A-I drug felony was punishable
by an indeterminate term of between IS to 25 years
to life Under the DLRA, a class A-I drug felony is
punishable by a determinate sentence of not more
than 20 years and as little as eight years. (Pro Se
published a fhll ehart of the new DLRA sentences,
along with an article detailing the other rcl(Jf!ns
contained in the DLRA, in our Spring, 2005, issue)
The sentence re!()flTI was cold comfort,
however, to the majority of inmates already serving
sentences for drug oHenses. That is because the new
sentences were not made retroactive. That is, they
were not applied to the estimated 15,000 drug
oHenders already sentenced under the old laws. On
the contrary, the DLRA applied the new sentences
only to crimes committed on or aHer January 13,
2005. It provided only one exception to that rule: it
permitted persons serving a sentence for a class A-]
drug felony to apply to their sentencing courts to
have their sentences reduced to the new levels.
Since then, advocates for further drug law
reform have been arguing that the new sentences
should apply retroactively to other classes of dmg

Pro Se Vol. 15 No.4 Fall 2005

offenses, in addition to A-I offenses. They have
recently scored a modest success.
On August 31, 2005, Governor Pataki signed
into law a bill which will allow some A-II felony
drug om~nders to apply to have their sentences
reduced to the levels established by the DLRA.
Unfortunately, the new law does not make all A-II
drug offenders eligible for re-sentencing. Instead, it
establishes four eligibility requirements. The first
two are straightlorward. You must be: I) convicted
of a class A-II drug felony; and 2) sentenced to an
indetenninate sentence with a minimum term of at
least three years.
The third requirement is that you be eligible to
earn merit time. You need not actually have earned
any merit time, but you must be eligible to earn it.
The criteria for earning merit time are set out in
Correction Law § 803(1)(d). They are also set out in
Title 7 N. Y.c.R.R. § 280.2 and DOCS Directive #
4790. Among other criteria, you cannot be convicted
of celiain crimes, including most violt~nt offenses,
homicide ot1enses, and sex oflenses. So, fllr
example, if you are serving a sentence for an A-II
drug offense and also a sentence for Robbery in the
Second Degree (a violent offense), you would not be
eligible for re-sentencing under the new law, because
persons convicted ofviolent offenses are not eligible
to earn merit time. Nor can you have been convicted
of a "serious" disciplinary infraction since being
incarcerated. Directive # 4790 contains a full list of
the crimes and disciplinary infractions that would
make you ineligible to earn merit time.
The last requirement to be eligible for resentencing is that you be "more than twelve months"
from being eligible for temporary release.
This requirement bas caused some confi.Jsion.
Eligibility for temporary release is defined in
Correction Law § 851 (2). That law states that an
inmate becomes eligible for temporary release when
he or she is "eligible for release on parole" or "will
become eligible for release on parole or conditional

Page 5

release within two years."
So, an inmate should be eligible for resentencing when he or she is "more than twelve
months" from being either "eligible for release on
parole" or "becom[ing] eligible for release on parole
or conditional release within two years."
The editors of Pro Se interpret the language to
mean that you are eligible for re-sentencing if you
are more than twelve months from your PE ("Parole
Eligibility") date (i.e., "more than twelve months"
from being "eligible for release on parole") To pnt
it another way, you would /lot be eligible for resentencing if you are within one year of your PE
date.)
DOCS, however, has interpreted the language to
mean that you must be more than three years from
your Parole Eligibility date to be eligible (i. e., "more
than twelve months" of being "within two years" of
Parole Eligibility). Under DOCS' interpretation, you
would not be eligible fbI' re-sentencing if you were
within three years of your parole eligibility date.
DOCS has circulated some information to inmates
about the new law which incorporates its
interpretation.
The editors of Pro Se believe that DOCS'
interpretation of the law is wrong. We believe that
any A-II drug offender who meets the other
eligibility requirements listed above, and who is
more than o/le year away from their parole eligibility
date, should be eligible to pctition lor re-sentencing.
This is a significant dispute. Under DOCS'
interpretation of the law, only some 500 A-II
olfenders will be eligible for re-sentencing. Under
the interpretation of the law supported by Pro Se,
more that 1000 A-II olfenders are likely to be
eligible for re-sentencing.
Ultimately, this question, as with any question
regarding statutory interpretation, will have to be
resolved by the courts.
For those who are eligible, the benefIts of resentencing could be substantial. Under the

Plige 6

Rockefeller drug laws, a person convicted ofan A-II
drug felony with no aggravating circumstanccs could
receive an indeterminate sentence with a maximum
term of life imprisonment. Under the DLRA, the
maximum sentence that may be imposed for an A-II
drug fclony with no aggravating circumstances is a
determinate term of 10 years, and it may be as little
as three years.

Inmates hm'e a rigllt to assigned counsel to
help them prepare an application for resentencing. If you are an A-II felony llrug
offender, and think you may be eligible for resentencing under the extension of the DLRA, as
described above, you should contact the Chief
Defender's office, Public Defender's ojJice, or
Legal Aid l~ffice in the county in which you were
convictell (A full list of the defenders and legal
aid (~fJices, with a(ldresses, is available by writing
to Central Intake, Prisoners' Legal Sen'ices,
114 Prospect St., Ithaca, NY 14850.)
J~fJ()rts to Extend Retroactil'ity to Other Classes (if
Drug Offefl(lers Falter

While the extension ofDLRA re-sentencing to
some A-ll offenders is a welcome step forward in
the ongoing effort to reform the Rockefeller drug
laws, efforts in the courts to extend re-sentencing to
other categories of drug offenders have faltered.
In People v. Pauly, 799 N.Y.S.2d 841 (3d Dep't
2005), for example, the Court rejected the argument
of a c1ass-B dnlg offender that he should be allowed
to apply for re-sentencing under the DLRA, just as
are A-I and (now) some A-TI olfenders.
Defendant Pauly was serving an indeterminate
sentence of 5 to IS years as a class B drug offender
at the time the DLRA was passed. He argued that
the failure of the DLRA to allow class B drug
offenders to apply for re-sentencing violated his
rights under the equal protection clause of the
Fourteenth Amendment to the Constitution.

Pro Se Vol. 15 No.4 FlIII 2005

The equal protection clause states that no state
shall deny to any person the "equal protection" of
the law. It is generally interpreted to prohibit laws
that distinguish between similarly situated classes of
people without at least a rational basis for doing so.
Pauly argued that the Legislature h!\d no rational
basis for allowing A-I drug felony offenders to apply
tor re-sentencing while not providing the same
opportunity to class B drug felony offenders.
Basically, his argument was that if the Legislature
felt that all of the old sentences for drug oftenders
were unjust and should be reduced, there was no
rational reason that they should allow only some
classes of offenders convicted under the old laws to
apply for re-sentencing and not others.
The Court disagreed. It held "[Tlhere is a
rational basis for distin!,'Uishing between class A-I
and class B felony drug offenders for retroactivity
purposes" It noted that the DLRA did provide some
immediate benefits to other categories of drug
offenders sentenced under the old laws. For
instance, it increased the merit time available to them
and gave them the opportunity to obtain an early
termination of parole. It concluded: "It would be
rational for the Legislature to allow retroactivity [for
A-I offenders] and extend the greatest reliefto those
facing the most stringent sentences, while at the
same time providing different retroactive relief to
class B felony drug offenders by, among other
things, granting eligibility to earn additional merit
time reductions. Given the existence of these and
other factors demonstrating a rational basis for the
disparity in treatment with respect to re-sentencing,
we fInd [Pauly's] constitutional arguments
unpersuasive."

NotAllEligible Offenders GrantedNew Sentences
Moreover, just because an inmate is eligible to
appl.y tor re-sentencing under the DLRA does not
mean the courts will grant the application. This was

Pro Se Vol. 15 No.4 Fall 2005

made clear recently in the case of People v.
Lafontaine, 799 NYS.2d 841 (3d Dept. 2005).
Defendant Lafontaine was convicted in 1989 of
two A-I drug felonies, as well as various additional
drug felonies. He was sentenced to two
indeterminate terms of25 years to life. After passage
of the DLRA, he applied to have his sentence
reduced to a determinate tenn of 12 years, the
lowest sentence available under the DLRA. He had
several prior drug fclony convictions, however, and
a police investigation of his activities in the '80s
showed him to be a large-scale dealer with
employees who assisted him "in regularly
distributing kilograms ofheroin and cocaine into the
streets of New York City" He argued, nevertheless,
that his seventeen years in prison, his health (a heart
bypass surgery in 1998), his age (70 years), his
favorable institutional record (a few insignificant
infractions), as well as his having a daughter and
son-in-law in Florida willing to give him a residence
if released, all justified the Court's re-sentencing him
as requested.
The Court disagreed, writing:
For decades, politicians, the puhlic, and the
press, have denounced the mandatory
sentences required under the so-called
Rockefeller drug laws as harsh and
Draconian. Periodically, the news media
would draw public attention to a tragic story
ofsomeone jailed for up to twenty-five years
to life for participating in a single drug sale
for fiscal or addiction considerations. The
legislators who supported the new statute
identified those deserving of more lenient
treatment as low-level, non-violent drug
offenders, first-time offenders who were
misguided in their youth, mules, addicts
driven to possession or selling drugs because
of a drug habit or others duped or coerced
into a drug transaction by a supposed friend

Page 7

or a domineering spouse. As the Senate
Majmity Leader said when speaking in
support of the new sentencing scheme, the
new statute serves to 'help [the offenders]
get out oftrouble, straighten out their lives,
be productive and construetive citizens.'
The Court continued, however:
[T]he harsh reality is that many defendants
convicted of A-I level drug offenses bear no
resemblance to those depicted as victims of
the Rockefeller drug laws. These defendant
were not addicts, and they did not enter the
drug trade to support a drug habit. They are
not first-time offenders or low-level
offenders who made a mistake or were
misi,'uided in their youth. Nor did they
patiicipate in a drug sale for one easy
payday. For these defendants, peddling and
pushing drugs was their business, their
soberly chosen profession. In making that
choice, they forever forsook the opportunity
to be a productive member of society.
Substantial justice dictates denying the resentence applications ofthese defendants.
The defendant in this case, the Court concluded,
fell into this latter category of offender. Although
the DLRA creates a presumption in favor of resentencing, the Court may deny an application for
re-sentencing if it is convinced that it is not in the
interest of "substantial justice" Under the
circumstances of this case, the Court held,
"[s]ubstantial justice dictates that defendant not
benefit limn the new statute and that his re-sentence
application be denied."
Update: According to an Article in the Bl!fJalo
News. (!{the approximately 450 believed to be
eligible for re-sentencing under the Rocke{eller
drug Law Reform Aet, 88 A-l drug oflenders had

PageS

been releasedfrom prison as (!fSeptember 1, 2005.
(See: 81(/1a10 News - September 1, 2005)
PLS Urges Legislature to Returtl College
Programs to Prison: Says Education Crucial Part
of Reintegration
PLS recently testiHed before thc State
Legislature on behalfoftwo bills sponsored by State
Senator Velmante Montgomery: one to establish the
"New York State Justice Reinvestment Fund"
funding for transitional services for ex-offenders and
their families, and the other to require the State
Board of Parole to notify released felons of their
right to vote. Our testimony focused on the
transitional programs that should be offered within
the prison walls. A significant part of our testimony
centered on the need for hringing college educational
programs back into the plison.
In 1995, the Legislature, responding to "gettough-on-crime" rhetoric, voted to prohibit prisoners
from receiving New York State Tuition Assistance
Program (TAP) grants. At the same time, the federal
government prohibi ted prisoners from receiving
Federal Pell Grants. The combined result of these
cuts effectively terminated all college programs
within the Department ofCorrectional Services. PLS
has long viewed this as a great disservice to the
prison community, as well as misguided public
policy. Studies have shown that, in New York, only
26.4% of the inmates who earned a college degree
in prison returned to prison, compared to 44,6% of
those who did not. David D. Clark "Analysis of
Return Rates of Inmate College Program
Participants," NYS Department of Correctional
Services, August, 1991. Additional studies
conducted by states across the U. S. have shown
similar results: the recidivism rate of prisoners is
almost inversely proportional to the educational
opportunities afforded them. For example, one study
of female ofte nders showed that women who

Pro Se VoL 15 No.4 Fall 20115

participated in college while in prison had a 7.7%
recidivism rate, compared to a 29.9% recidivism rate
for female offenders as a whole, l'lne, M., Torre,
M. E., Boudin, K., BOIven, 1., Clark, .I., Hylton, D.,
Martinez, M., Missy, Roberts, R.A., Smart, P., &
Upegui, D. "Changing Mind~: The Impact <!f
College in a Maximum-S'ecurity Pri,wlJI,"
September, 2001. New York: The Graduate Schoof
and University Ceflter, City University ofNew York.
Funding f(Jr transitional services is plainly
necessary as part of an overall effort to reintegrate
prisoners into society. Legislators should not
overlook the re-institution of educational programs,
specifically college-hased programs, as an important
part ofthe re-integration equation. These programs
have been shown time and again to be an inmate's
best tool for successful re-integration and society's
best defense against recidivism,

Federal Case's II
Secofll! Circuit: Prison Discipline Following
Criminal Conviction I~ Not Double Jeopardy
Porter v. Coughlin, 421 F.2d 141 (2d Cir. 2005)
In 1991, Andre Porter was found guilty of one
count of "promoting prison contraband" as a result
of his participation in a riot at Southport
Correctional Facility, He was sentenced to a term of
three to six years, consecutive to the term he had
been serving at the time of the incident.
Subsequently, DOCS charged him in a misbehavior
report with having violated inmate disciplinary nIle
1. 00 (Penal Law offenses)--for the same conduct
which had already resulted in his criminal sentence.
He was found guilty in a Tier III hearing and
sentenced to three years SHU confInement
The question in Porter v. Coughlin was whether

Pro Se Vol. 15 No.4 Fall 2005

a prison disci plinary sentence, for the same conduct
which has already resulted in a criminal conviction,
violates the "double jeopardy" clause.
The Second Circuit found that it did not.
The double jeopardy clause of the Fifth
Amendment to thc Constitution states: "[N]o pcrson
shall be subject for the same offense to be twice put
in jeopardy oflife oflimb" Case law has interpreted
this to mean that one cannot be punished multiple
times for the same offense. Tn 1997, however, the
Supreme Court limited the meaning of the clause. It
hcld that it "protects only against the imposition of
multiple criminal punishmentsfor the same offense,"
meaning, for example, that a criminal conviction,
followed by a civil fine for the same conduct, would
not constitute double jeopardy.
Consequently, the question before the Porter
Court was whether a prison disciplinary punishment
was primarily "civil" or "criminal" in nature. If the
f(lffiler, Porter's diseiplinary sentenee would not
violate the double jeopardy clause; if the latter, it
would.
The Second Circuit addressed the question by
asking, first, "whether the legislature, in establishing
the [prison disciplinary system], indicated.. a
preference fix one label or the other." It had little
trouble finding that it that did. DOCS' disciplinary
regulations were intended by the legislature to be
civil, not criminaL Their purpose is a "civil remedial
purpose," the Court explained, and it noted that the
New York State Court of Appeals has specifically
interpreted disciplinary rules as being civil in nature.
The second question the Court asked, however,
"whether [the disciplinary rules] are so punitive in
either purpose or effect as to transform what was
clearly intended as a civil remedy into a criminal
penalty," was more difficult.
The Court found that a number of factors
supported Potier's argument that a disciplitlaly
proceeding was more criminal than civil in nature.

Page 9

Among them: a SHU placement, like a prison
sentence, constitutes a physical mstraint ofa person;
the dispositions received at disciplinary proceedings
(loss ofgood time, paekages, commissary and phone
privileges, together with SHU confinement) are
commonly viewed as "punishment" by inmates and
staff alike; the principal purpose of imposing
disciplinary sanctions, i.e., to "deter inmates from
repeating their criminal conduct," "promotes the
traditional aims of punishment"; and finally, the
disciplinary charge in this case was for a Penal Law
offense, meaning that the underlying behavior was
already classified as a crime,
1\evertheless, the Court found several 6tctors
that weighed against labeling a disciplinary
punishment as criminaL First, the Court f()und, there
was an "alternative, non-punitive purpose" to
disciplinary sanctions: prison officials have to be
given the authority to impose disciplinary sanctions
in order to maintain order within the prison walls.
Second, the Court found, the sanction Porter
received, three years in solitary confinement, was
"not at all excessive in light of the events that
prompted it,"
"Punitive interests and remedial interests," the
Court wrote, "are nowhere so tightly intertwined as
in the prison setting, where the government's
remedial interest is to maintain order and to prevent
violent altercations among a population of
criminals ... Thus the fact that remedial concerns
require 'punishing' individuals for violent or other
disruptive conduct docs not mean that the sanctions
imposed constitute "punishment" for double
jeopardy purposes," Consequently: "Rule 1.00
authorizing prison diseiplinaty sanctions fbr the
commission ofPenal Law offense is not 'so punitive
in either purpose or eftect as to transform what was
clearly intended as a civil remedy into a criminal
penalty. '" Since Porter's disciplinary sanction "was
clearly related to a non-punitive interest, and not

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Pro Se Vol. 15 No.4 Fall 2005

excessive in relation to it," the disciplinary hearing in
this case should be considered civil in nature. It
therefore did not violate the Double Jeopardy clause.

State Cases

New fork's High Court llohls Sentencing Courts
Are Required to Inform Defendants When PostRelease Supervision Will Be Consequence ofPlea
People v. Catu, 4 NY3d 242 (2005)
The Court of Appeals, New York's highest
court, recently affirmed what a number of lower
courts had already held: that sentencing courts must
inform defendants when a period of post-release
supervision will he one of the consequences of a
guilty plea. Failure to do so will result in the reversal
of the conviction.
Post-release supervision came into being in 1998
when the Legislature eliminated indeterminate
sentences for violent felonies and replaced them with
determinate (or "tlat") sentences. The Legislature
required that all such sentences be followed by a
period of post-release supervision.
At issue in Catu was what should happen if the
sentencing court neglects to inform a defendant who
is pleading guilty in exchange for a determinate
sentence that the sentence will include a period of
post-release supervision
In general, a sentencing court has no obligation
to explain to defendants who plead guilty all of the
possible "collateral" consequences oftheir plea. The
"collateral consequences" of a plea are those "that
are peculiar to the individual and generally result
from actions taken by agencies the court does not
control." Courts have held, for example, that the
immigration consequences of a criminal conviction

are a "collateral" consequence ofthe conviction and
that sentencing courts are therefore not required to
inform defendants that their plea may result in their
deportation.
On the other hand, courts are required to inform
defendants of the "direct" consequences of their
pleas, i.e., those that have a "definite, immediate and
largely automatic effect on [the] defendant's
punishment."
Post-release supervision, the Comi held, is a
direct consequeuce of a plea, not a collateral
consequence. The Court noted that the obligations
of post-release supervision are signiticant:
Upon release from the underlying term of
imprisonment, a defendant must be furnished
with a written statement setting forth the
conditions of post-release supervision in
sufficient detail to provide for the
defendant's conduct and supervision. In
addition to supervision by and reporting to a
parole officer, post-release supervision may
require compliance with any conditions to
which a parolee may be subject, including,
for example, a curfew, restrictions on travel,
and substance abuse testing and treatment.
Moreover, post-release supervision may
require up to six months of participation in a
residential treatment facility immediately
following release from the underlying term
of imprisonment. A violation of a condition
of post-release supervision can result in
reincarceration for at least six montbs and up
to the balance of the remaining supervision
period, not to exceed five years.
Consequently, "a defendant pleading guilty to a
determinate sentence must be aware of the postrelease supervision component [of the sentence] in
order to knowing, voluntarily and intelligently
choose between alternative courses of action." If

Pro Se Vol. 15 No.4 Fall 2005

such information has not been provided, the plea
must be vacated.

Disciplinary Case~
What follows is a review of this quarter's
disciplin ary cases:

Witnesses: Court (Reluctantly) Reverses Hearing
Where Petitioner was Improperly Denied
'Witnesses
Matter of Reyes v. Goord, 798 NYS.2d 795 (3d
Dep't 2005)
The petitioner in this case was charged with
having used a forged call-out slip and found guilty in
Tier II hearing. During his hearing, he asked to have
the inmate who distlibuted the call-out slips testify.
The Hearing Officer denied the request on the
grounds that the inmate's testimony was irrelevant.
In making the ruling, the Hearing Officer relied on
testimony and other evidence establishing that, on
the date in question, the petitioner's name was not
on the master call out sheet or on the call out sheet
for the religious program he claimed to be attending.
The Court reversed. It held that the inmate's
testimony was relevant because it was the only
credible evidence that the petitioner could have
presented to refllte the inference that he forged the
call out slip. Because his defense was prejudiced by
the absence of the other inmate's testimony, the
court was "constrained to conclude that the
determination must be annulled."

Timeliness: Hearing was Time{v Commenced
Matter of Barnes v. Goord, 797 NYS.2d 324
(3d Dep't 2005)
The petitioner challenged a determination finding

Page 11

him guilty of fighting, violent conduct, and creating
a disturbance on the grounds that the hearing was
not timely commenced. The court found this claim
"unpersuasive," as the petitioner "erroneously
counted the day on which the misbehavior report
was written as one of the seven days within which
the healing was required to be held." Moreover,
held the court, "the record reveals that a one-day
extension of time was validly authorized to allow
petitioner's assistant more time and petitioner did
not establish any prejudice as a result of the delay."
Practice Pointer: 771e "Seven Day Rule" stems
from 7 N.Y.C.R.R. § 251-5.1, which concerns the
time within which a disciplinary hearing /lmst be
started and .finished Sub-section (a) prOVides,
"Where an inmate is confined pending a
disciplinary hearing or superintendent's hearing,
the hearing must be commenced as soon as is
reasonablypracticable.fdlowingthe inmate ~5 initial
cOlifinement pending said disciplinary hearing or
superintendent's hearing, but, in no event /lU{Y it be
commenced beyond seven days ofsaid confinement
without authorization of the commissioner or his
designee. "
71w courts llsually interpret the rule as
excluding the first day (!f cOl!finement. This
intel])retation is based on General Construetion
Law § 20, which states, "A number C!! days
specified as a period from a certain day within
which. ..an act is authorized or required to be done
means such number of calendar days exclusive (~l
the calendar day from which the reckoning is
made. " See, e.g, Malter of Trang v. Goord, 283
A.D.2d 816 (3d Dep't 2001).
Sub-section (b) (~l7 N.Y.C.R.R. § 251-5.1 states
'hat, "771e disciplinary hearing or superintendent's
hearing must be comple'edwithin 14 daysfollowing
the writing C!l the misbehavior report unless
otherwise authorized by 'he commissioner or his
designee. "
The court 's decision in this case apparently

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Pro Se Vol. 15 No.4 Fall 2005

conji/sed subsections (a) and (b) ofthe regulation.
It held that the petitioner "erroneous~y counted the
day on which the misbehavior report was writtcn as
one ()/the seven d(~ys within which the hearing was
required to be held" This would be erroneous as
applied to a counting (!l the f(mrteen d~vs within
which to complete a disciplinmy hearing under
subsection (b), but it is irrelevant to the counting (J/
the seven days within which to commence a hearing
under subsection (a). The relevant consideration
under subsection (aJ is the date the pre-hearing
cOI!finement commenced not the date the
misbehavior report was written.
Wail'er: Guilty Plea

Result.~

in Waiver

Matter of Calhoun v. Goord, 798 N.Y.S.2d 212
(3d Dep't 2005)
A corrections officer responded to a dormitory
after hearing a loud thud and observed the petitioner
in this case standing with a clenched fist over an
unconscious inmate. He charged the petitioner with
assault, engaging in violent conduct, and fighting. At
a Tier III disciplinary hearing, the inmate pleaded
not guilty to the t1rst two charges, but guilty to the
last. He was found guilty of all charges and the
determination ofguilt was aftlrmed on administrative
appeal, but the penalty was subsequently modit1ed.
He tben commenced this CPLR Article 78
proceeding challenging the determination.
The court held that petitioner had waived his
right to challenge the evidentiary basis for the charge
of fighting by pleading guilty to the charge. With
respect to the remaining charges, the court fonnd
that they were supported by the misbehavior report,
the testimony of several correction officers who
investigated the incident, cont1dential testimony, and
the petitioner's own admission that he struck the
inmate.
Practicepointer: You should careful~y consider

a decision to plead guilty in a prison disciplinary
hearing. Doing so will generally result in a waiver
of your ability to challenge the hearing result in
court at a later date and /01' a.finding that even if
the hearing was ai/ected by procedural errors, the
errors were "harmless" and should not result in a
reversal (!f the hearing.
Waiver: Failure to Object to Conduct ofHearing
(~fficer Lea/l~ to Waiver
Matter of Mahon v. Goord, 798 N.Y.S.2d 799
(3d Dep't 2005)
The inmate in this case was charged with
assaulting staff and various other disciplinary
violations when, during a frisk, a corrections oftlcer
discovered a packet ofpaper in the inmate's pocket.
When the corrections oftlcer set it aside, the inmate
lunged for it, knocking thc officer to the gronnd and
causing a struggle.
The court upheld the finding of guilt. The
misbehavior report., together with the testimony of
two ofthe oftlcers involved in the incident, provided
substantial evidence. The inmate's claim that the
otlicers were retaliating against him presented a
question of credibility for the Hearing Officer. His
claims ofimpropriety concerning the Hearing Oft"icer
"were not raised at the hearing and [were] not
preserved for review." (The court did not specify the
nature of his claims of impropriety concerning the
Hearing Oftker)

JVaiver: Inmate who Failed to Object at Hearing
WJlive.~ Oaims
Matter ofChristian v. Goord, 798 N.Y.S.2d 807 (3d
Dep't 2005)
The petitioner in tins case was found guilty of
smuggling after an officer in a watch tower observed

Pro Se Vol. 15 No.4 Fall 2005

an object, later identified as a finger from a latex
glove, being thrown from his cell window. Later
drug testing of the contents of the glove found it to
be marijuana.
On appeal, the inmate claimed that he had been
denied effective employee assistance and denied a
witness because his assistant denied his request to
reveal the name ofthe inmate housed directly above
his cell, whose cell was allegedly searched on the
same day of the incident. The record showed,
however, that the petitioner accepted the Hearing
Otftcer's determination that he was not entitled to
the name of the other inmate, thereby waiving his
claim. He likewise waived his claim that he did not
receive the requisite drug testing forms by failing to
raise it at the hearing; in any event, the hearing
record sheet indicated that he received the test
resnlts.
After dismissing the petitioner's legal claims, the
court went on to find that the misbehavior report,
the test results confirming the substance as
marijuana, and the corroborating testimony of the
corrections otftcers provided substantial evidence to
support the determination.
Practice pointer: Failure to o~ject to a
procedural ruling with which you disagree may
result in a courtjlnding that you hcn'e waived the
claim. General~y, however, you need only object
once to each adverse ruling. While you should make
your objectionfirm~I',you shouldalso do so calm~y.
(PLS has seen cases in which Hearing Officers have
ejected inmates from their hearings in response to
over~y-zealous objections.) You should also be
aware that, even ifyou fail to object at the hearing,
raising it on administrative appeal is general~y
sufficient to presen'e the claim. See, e.g., Matter of
Crowley 1'. 0 'Keefe, 148 A.D.2d 816 (3d Del' 't
1989). Final~v, if the claim is l?f a constitutional
magnitude--that is, if it pertains to a right that
derives from the constitution, such as the right to
call witnesses, or to receive adequate notice of the

Page 13

charges--rather than merely from DOCS'
regulations (vuch as the right at issue in this case,
to have the drug testing forms made part lJ( the
hearing recortl, a right that derives from 7
N.Y.C.R.R. section 1010.5) the burden will be on
DOCS to show not only that youfailed to object but
that you "knowingly and intelligently" waived the
right. That meallS that the record must show that
you understood that you had a right and that you
understood that you were waiVing it. See, e.g.,
Matter of Williams v. Coughlin, 145 A.D.2d 771
(3d Del' 't 1988).
Contraband: Inmate's Possession of Blank
Letterhead of County Court Judge and District
Court Clerk Held Rule Violation
The broad wording ofDisciplinary Rule I 13.23,
which defines "contraband" as "any article that is not
authorized by the superintendent or designee," gives
DOCS great leeway in detetmining what does and
does not constitute contraband within a correctional
facility. Despite its breadth, the constitutionality of
the rule has been consistently upheld hy the courts.
See, e.g., Matter of Hughes v. Goord, 300 A.D.2d
789 (3d Dep't 2003) (holding that the rule was
"sutl1cient to have placed petitioner on notice that he
would be in violation by retaining personal
information regarding correction officers at least
two years after he could have held any reasonable
belief that he was authorized to possess it")
In this case, various items, including blank
letterhead from the chambers of a county judge and
a District Conrt clerk, as well as blank Notice of
Time and Place of Hearing papers which order that
an inmate shall appear in court, were confiscated
from the petitioner's cell during a search. The
petitioner was charged with violating the prison
disc.iplinary I1lles against possessing unauthorized
identification papers, c.onspiracy to impersonate, and
possession of contraband. On administrative appeal,

Pa~c 14

however, the determination was modified by
dismissing all charges except for the possession of
contraband
The Court attlrmed the hearing result. Unless
listed in Rules I 13. 10 throngh 113.22 of the
Standards for Inmate Behavior, all items are
contraband unless the inmate is authorized by the
superintendent to possess them. The petitioner was
not so authorized, so the items seized constituted
contraband, in accordance with Rule 113.23.
Notice: Incorrect Date on lifisbehavior Report Viti
Not Prejudice Inmate's Ability to Defend Him,5e(f

Matter of Werner v. Phillips, 798 NYS.2d 241
(3d Dep't 2005)
The petitioner in this case was charged with
using another inmate's personal identification
number to make a telephone calL After being found
guilty at a disciplinary hearing, he appealed, arguing
that the incorrect date on the misbehavior report
requires annulment of the determination. The court
disagreed. It noted that, during the course of the
hearing, the correction officer who wrote the report
testified that he inadvertently indicated on the
misbehavior report that the incident date was
July 20, 2003, when, in fact, the telephone log
established that the call in question was made on
July 16, 2003. The Hearing Ottlcer offered the
petitioner a two-day adjournment in order to prepare
his defense based upon the corrected date; however,
the petitioner declined the opportunity. Under these
circumstances, the court found, the petitioner had
failed to show how he was prejudiced by the error in
the misbehavior report. and precluded Ii'om preparing
an appropriate defense.

Pro Se Vol. 15 No.4 Fall 2005

Urinalysis Testing: Few Defenses Pre1'ail

Matter of Cooper v. Selsky, 798 N,YS.2d 797
(3d Dep't 2005)
Matter ofInfante v. Selsky. 799 NYS.2d 331 (3d
Dep't 2(05)
Matter of Paige v. Goord, 797 NYS. 2d 180 (3d
Dep't 2005)
Matter of Mohammad v. Goord, 799 N.YS.2d 154
(3d Dep't 20(5)
An inmate confronted with a positive urinalysis
test must overcome a heavy presumption of guilt to
avoid disciplinary sanctions. The Court of Appeals
held almost two decades ago that a positive
urinalysis test, substantiated by a second urinalysis
test, is suttlciently probative to constitute
"substantial evidence" in a prison disciplinary case if
the record shows that proper testing procedures
have been followed. See, Matter of Lahey v. Kelly.
71 NY2d 135 (1987) (citing studies showing that
"EMIT" tests have a greater than 98% reliability
rate). Courts are, perhaps consequently, skeptical of
most defenses. These cases, all from the past
quarter, are typicaL
In Cooper, the petitioner argued that the chain
of custody of his urine sample was not suttlciently
established because the correction ottlcer who
administered the second test did not make the
appropriate notation on the Request for lItinalysis
Test torm. The corrections ottlcer testified,
however, that he never physically handled the
sample. It was placed in the testing machine by the
correction officer who administered the first test. He
merely programmed the machine and then read the
test results. Insofar as the regulations governing
testing procedures only require the person actual(v
handling the sample to make a notation under the
chain of custody (See 7 NY.CR,R,
I020.4[e][ I][iJ), the Court concluded that the chain
of custody was sufficiently established.

Pro Se Vol. 15 No.4 Fall 2005

Tn Paige, the petItIOner argued that the test
results could not be admitted because the specimen
bottle was not properly labeled. The regulations
state that "security or medical staft" shall provide the
inmate with a specimen bottle with his name, DIN
number and the date written on it (See 7 N.YeRR.
10404[d][2]). The testing officer in this case
testified that the procedure in his facility was to have
the inmates write their name and DIN number on the
boltle. The Court concluded that that showed
"reasonable compliance" with the ref,'Ulation.
Moreover, the Court concluded, the inmate had not
shown that he had been prejudiced by the different
procedure.
The petitioner also argued that he was taking
medication which caused a false positive. That
assertion was contradicted by the testimony of a
technician for the manufacturer of the testing
equipment and, hence, merely presented a credibility
issue for the Hearing Officer to rcsolve.
In Mohammed, the inmate's assertion that the
positive test result was caused by medications he
was taking was similarly reluted by the testimony of
the technical assistant employed by the manufacturer
ofthe testing equipment. Furthermore, although the
lieutenant who authorized the test failed to sign the
Request for Urinalysis Form as required (See 7
NY eRR 10204 [b]), he testified at the hearing
that this was an oversight. He remembered
authorizing the test and he signed the form at the
hearing. He thus, according to the Court, "cur[ed]
any defect." In any event, the Court noted, "the
petitioner failed to demonstrate that he was
prejudiced" by the error.
In Infante, the petitioner argued that he had been
unable to provide a urine sample because of a prior
groin injury, compounded by "shy bladder
syndrome." His examining physician, however,
testified that the petitioner's condition would not
have prevented his compliance within the allotted
three-hour time period. His alleged inability to

Pa~e

15

produce the urine sample raised a credibility issue
fix the Hearing Oft1cer to resolve.

Program Participation

Cases (;rlInt DOC<,; Broad Discretion in
Determining Eligibility For Program Participation
Discretionary decisions by DOCS oflicials--that
is, decisions which the law leaves mostly to their
judgment--are reviewed by the courts under a
"rational basis" standard. The question that will be
asked by the court is not whether the decision was
right or wrong, or good or bad. The only question
the court will address is whether there was some
"rational basis" for the decision. In some
circumstances, where the discretion granted by law
to the decision maker is broad, it is not even
suff1cient to show that the decision was "irrationaL"
The person complaining about the decision must
show that the decision was so irrational as to
"border on impropriety." Under either standard, the
bar for inmates challenging such decisions is high.
One area in which the courts grant DOCS this kind
of broad discretion is in deciding who is and is not
eligible to participate in various programs. The
following decisions, all from tillS quarter are
illustrative.

Eligibility for Time Allowance: Conrt Fimls
Ratiollal Basis for Withholding Alll~f Inmate's
Good Time
Matter ofBenjanlln v. New York State Department
of Correctional Services, 796 N. Y.S.2d 747
(3d Dep't 2005)
The petitioner in this case was sentenced as a
second felony offender to six to 12 years in prison.
After a hearing, the Time Allowance Committee
decided to withhold all of his good time based upon

Page 16

his failure to participate in recommended substance
abuse and aggression management programs. The
Couli affirmed the decision. "Good behavior
allowances are a privilege and no inmate has the
right to demand or to require that any good behavior
allowance be granted. Whether to grant or deny a
good time allowauce is discretionary and is not
subject to judicial review so long as it is made in
accordance with law." This Court noted that it has
held in past cases that an inmate's failure to
participate in recommended programs provides a
rational basis for withholding a good time allowance,
"Inasmuch as that was the reason for withholding
petitioner's good time allowance in the case at bar,
and his failure to participate is substantiated by
signed inmate review sheets and other evidence in
the record, there is no basis to disturb the
detemlination at issue,"

Temporary Release: Decisions to Deny Inmates
Temporary Release Found to llal'e RationalBasis
Matter of Abascal v. Maczek, 796 NYS.2d 757
(3d Dep't 2005)
The petitioner in this case was an inmate serving
a sentence of six years to life, He challenged DOCS'
decision to deny him temporary release. The Court,
noting that participation in a temporary release
program is a "privilege, not aright," found that its
review was limited to "consideration ofwhether the
determination violated any positive statutOlY
requirement or denied a constitutional right of the
inmate [or] whether [it] is affected by irrationality
bordering on impropriety," The record showed that
the petitioner's temporary release application was
denied due, in part, to his overall poor disciplinary
record, his recidivist criminal history, his prior parole
revocation, and the nature of his instant offense.
Inasmuch as those were appropriate factors to
consider, the Court concluded, "it cannot be said

Pro Se Vol. 15 No.4 Fall 2005

that the determination was irrational or violated
petitioner's statutory or constitutional rights and,
therefore, it will not be disturbed,"
Matter of Greig v Joy, 799NYS.2d 343 (3d Dep't
2005)
The petitioner in this case also challenged the
denial of his temporary release application. The
grounds for the denial were his "extensive and at
times violent criminal history," Applying the rational
basis test, the Court held, "we cannot say that
[DOCS'] decision to deny temporary release on this
ground was irrational."
The petitioner also challenged DOCS' refusal to
allow him to enter a drug-treatment program. In
order to be eligible for the program in question, an
inmate must have "a documented history of dmg
and/or alcohol abuse," DOCS concluded that this
petitioner had no such history, Again, the COUli
held, its detemlination was "not irrational" "While
petitioner apparently was under the influence of
marijuana at the time of his most recent ofl'tmse and
participatcd in an alcohol and substance abuse
treatment program while incarcerated, such factors,
standing alone, do not demonstrate a history ofdmg
and/or alcohol abuse, Indeed, the pre-sentence
investigation report reflects that petitioner expressly
denied a history of ahuse... Under such
circumstances [his] application was properly
denied,"

Famity Reunion Program: Sufficient (irOllnds
Found for Refusing to Allow Offender to
Participate.
Matter of Correnti v, Baker, 797 NYS.2d 627
(3d Dep't 2005)
The petitioner, a sex offender, was denied
permission to participate in the Family Reunion

Pro Se Vol. 15 No. 4 Fall 2005

program on the grounds that his status "created
security concerns." A lower court reversed the
decision and required DOCS to "more adequately
set forth the reasons for such security concerns as it
related to the petitioner's underlying crimes." On
remittal, DOCS explained that "the presence of
children and the potential for violence by other
inmates and family members created a serious threat
to petitioner's safety and the safety ofthe FRP site"
The Court found this to be a rational basis tor
the decision. "We are satisfied that the FRP in this
case is implemented in a reasonable manner,
consistent with the inmate's status as a prisoner and
the legitimate operation considerations of the
institution."
Family Law

Incarcerated Father Loses Parental Rights
In re Shawn 0,797 NYS.2d 72 (I" Dep't 2005)
Inmates who fail to make affirmative efforts to
maintain a relationship with their children or are
uncooperative with the agencies charged with
supervising their children may be at risk of having
their parental rights terminated, as happened in this
case.
The respondent, an inmate, was appealing from
the decision of the Family Court, Bronx County, to
terminate his parental rights and commit his child's
custody to Children's Services. The Court, however,
upheld the lower court. "Clear and convincing
evidence showed that respondent ... delayed
establishing paternity despite numerous requests by
the agency over a three-year period, rethsed to
appear [in] placement hearings that would have
facilitated direct contact with the agency and
planning for the child's future, and otherwise failed
to cooperate with the agency... Clear and convincing
evidence also shows that [he] failed to contact the

Page 17

child, and that his only plan for the child's future
was inappropriate long-term foster care until his
release from prison." Under the circumstances, the
Court finds, termination of the father's parental
rights and commitment to Children's Services will be
"in the child's best interests."

Court ReI'erses Ortler Suspending Visitation
Matter of Crowell v. Livziey, 798 NYS.2d 279
(4th Dep't 2005)
Inmates who seek to maintain contact with their
minor children while incarcerated retain a right to
visitation, even in circumstances of conflict with the
other parent, as shown in this case.
Here, the petitioner was the mother of a minor
child and the respondent was the child's incarcerated
father. She sought to terminate the child's visits with
her father. The lower court granted her request, but
the Appellate Division reversed. "It is generally
presumed to be in a child's best interests to have
visitation with his or her non-custodial parent,"
wrote the Court, "and the fact that a parent is
incarcerated will not, by itself, tender visitation
inappropriate." In this case, the Court held that the
lower court had not taken enough testimony to
establish, as the child's mother alleged, that the
child's visits with her father in prison were
detrimental to her psychological health. It therefore
reversed the decision and returned it to the lower
court for further hearings.

Palle 18

Court of Claims

Omrt of Claims Curtails E"l:jJansion of State
Utlbility For Inmate Assaults
Sanchez v. State of New York, 8 Misc. 3d
1019(A)(Ct. of CI., June 28, 2005) (Lebous, J)
In 2002, New York State's highest court, the
Court of Appeals, appeared to expand the
circumstances under which the State may be held
liable for failing to protect an inmate from an assault
by another inmate. The case involved an inmate
named Sanchez who, while working as a teacher in
the facility program building, was assaulted by an
unidentified inmate. At the time ofthe assault, there
was only one oUker stationed on the floor to
supervise approximately 100 inmates--and he was
occupied at the time ofthe assault and unable to see
the area where the assault occurred. Sanchez
received over 40 stitches to his head and face,
causing pennanent and visible scarring. He sued the
State, asserting that DOCS' supervision of the
inmates had been negligent, and that but fllr the
negligence, the assault would not have occurred.
Traditionally, a party can be held liable tor
negligence in an accident if the accident was
"foreseeable," that is, if the party knew or should
have known that circumstances under his control
created an unreasonable risk that the accident would
occur. Applying that principle to prisons, New York
State courts had held that an inmate could obtain
damages for an assault by another inmate only if he
or she could show: (I) the inmate was known to be
at risk and the State nonetheless failed to take
reasonable steps to protect him or her; (2) the
assailant was known to be dangerous but the State
failed to protect other inmates from him or her; or
(3) the State had both notice and the opportunity to
intt;rvene for the purpose of protecting the inmate
victim, but failed to do so.

Pro Se VoL 15 No.4 Fall 2005

[n this case, Sanchez testified that he was
completely surprised by the attack: he knew of no
enemies at Elmira and had no reason to believe he
was going to be attacked. The lower coutis held that
since the evidence did not sbow that the State had
any reason to know that either the assault was likely
to occur, that Sanchez was at a heightened risk of
attack, or that Sanchez's assailants were particularly
dangerous, there was no basis for holding the State
liable for failing to take additional measures to
prevent the assault.
The Court of Appeals reversed. It held that the
lower court's focus on what the State actually knew
was too narrow. Such a holding prevented full
consideration ofanother factor traditionally relevant
to the question of foreseeability, that is, what the
State should have known, based on its expertise and
prior experience in nmning prisons, as well as its
own policies and practices designed to address the
risks of inmate assaults. For example, should the
State have known, based on its experience running
prisons, that assigning one guard to supervise one
hundred inmates made an assault by an inmate more
likely? The Court of Appeals sent the case back to
the Court of Claims for a tlial to address these
questions. At the time, the Couli of Appeals'
decision was seen as potentially broadening the
scope of situations in which the State could be held
liable in such cases to include those in which a
shortage of supervision was a significant
contributing factor, even when the State had no
specific knowledge that an attack was likely (Pro Se
reported the Court of Appeals' decision [which is
reported at 99 N.Y.2d. 247] on the front page ofour
March, 2003 edition.).
Regrettably, after the trial ordered by the Court
ofAppeals, Court of Claims Judge Ferris D. Lebous
dismissed Sanchez's case. The Court found that he
had failed to prove by a preponderance of the
evidence that the State could have reasonably
foreseen the attack, even under the broader standard

Pro Sf Vol. 15 No.4 Fall 2005

articulated by the Court of Appeals.
In analyzing whether the State should be found
liable in this case, the court asked two questions: I)
Did the State know, or should it have known, that
Sanchez was at risk of being assaulted and
nevertheless fail to provide reasonable protection? 2)
Did the State know, or have reason to know, that
Sancehz's attacker(s) were prone to engaging in an
assault yet failed to take preventative measures?

Did the State Have Reason to Know Sanchez
Was at Risk?
At the trial, an expert in prison management
testified that the State had constructive notice ofthe
risk of harm to him. The expert testified that the
corrections oflicer on duty on the evening of the
assault engaged in actions which were inconsistent
with the State's duty to protect inmates. The expert
also testified that the "physical layout of the
classroom corridor [where Sanchez was assaulted]
provided the unidentified attacker(s) an opportunity
to assault claimant" in an area which could not be
seen by the correction omcer on duty. The expert
stated that "go-back," when the assault occurred, "is
precisely the time when the correction omcer should
have been positioned so he could see both avenues
of the corridor." The expert also criticized the
ofllcer on duty fbr focusing on retuming items to the
storage area, "rather than observing inmate
movement at such a clUcial time" Sanchez arf,'ued
that, under the analysis set fbrth by the Court of
Appeals, this lax supervision created a heightened
risk that he would be assaulted and was sufftcient to
establish liability.
The COUli, however, focused on the fbllowing
testimony: that Sanchez had been attending classes
in the area where the assault occurred for over two
years without incident; that there hadn't been any
assaults in this area for at least five years; that
participants in the programs were honor inmates

Page 19

with good disciplinary records; and that there were
three other civilian workers present in the classroom
at the time of the assault. The Court also noted
Sanchez's testimony in which he admitted that he
had no known enemies, did not know his attacker(s),
and had no reason to believe that he would be
assaulted.
On cross examination, Sanchez's expert
admitted that there is no standard which requires
constant supervision of inmates in correctional
facilities and that, often, inmates move about
correctional facilities unescolied. It would not be
per se, "inappropriate or negligent," for an offtcer to
become distracted or even leave his post to use the
restroom, he testified, and he conceded that
increasing stafllng or improving the physical layout
would not necessarily prevent all assaults. "When
pressed on cross-examination," the Court noted,
"[the expert] had difftculty explaining how this
particular assault was foreseeable." The Court
concluded that "although [Sanchez] may have
established that there was a general risk present to
all inmates due to the inmate movement and the
physical layout of the corridor .. under these
circumstances the State did not know or have reason
to know of a heightened risk of assault to this
victim"

Did the State Know or Have Reason to Know
That the Attackers Were ]'rone to Engage In an
Assanlt?
Sanchez's theory was that his assailants planned
the attack knowing that the oflicer on duty was far
down the corridor and distracted. According to the
Court, however, the testimony revealed that
Sanchez had no known enemies and the attacker(s)
were unidentified, so there was no way to determine
whether the attack was planned based on the
attacker(s) knowledge ofthe ofllcer's usual routine.
Additionally, because those attending the classes

Page 20

were honor inmates, it was "reasonable to assume
that this group of inmates was less likely to
perpetrate such violent acts" Therefore, the Court
concluded, there was no evidence that the State
knew or had reason to know "that the unidentified
assailants were prone to perpetrating such an
assault. "

Did the State Fail to Timely Intervene to Protect
Claimant?
The Court also asked whether the State failed to
intervene in the assault in a timely fashion. Since the
attack lasted only about 20 seconds and the officer
on duty rcsponded to the incident in less than a
minute, however, the Court found that there was no
negligence on the part of the State in failing to
intervene.

Should the State Have Provided Additional
Supervision?
Finally, the Court addressed the question of
whether additional supelvision should have been
provided. Here, the COllft focused on the fact that
the physical layout of the prison wing in question
would have required the presence of numerous
guards to be able to view all the areas where an
assault might possibly occur. The COllli concluded:
"To require the State to provide such additional
manpower and supervision in this location in light of
the lack of any prior assaults in this area and given
the relatively discipline-tree records of the inmates
attending these programs would improperly render
the State an insurer of inmate safety and require
unremitting supervision of inmates at all times."
Does the decision by the trial judge represent a
retreat from the Comi of Appeals decision? It is
probably too early to tell. It still seems clear that the
Court of Appeals' decision in Sanchez opened up
the possibility that, in some circumstances, the

Pro Se Vol. 15 No.4 .'all 2005

failure to provide adequate supervision in an area
where an assault occurs may be grounds for liability-a possibility that bad been all but foreclosed by
previous cases. It also seems clear, however, that
those cireumstances will be limited to those in which
it can be shown that the State should have known,
based on its experience and expertise managing
prisons, that additional supervision in the area in
question was needed, and that the failure to provide
it significantly raised the likelihood of an assault.

Inmate Awartlel[ Dll11ulges for Unauthorized
J)jsc!osure of Medical Condition, bllt None for
Emotional Distress
Tatta v. State, 799 NYS2d 610 (3d Dep't 20(5)
Claimant Tatta, an inmate, sued the State for
unauthorized and negligent disclosure of his
confidential medical diagnosis after officials at
Eastern Correctional Facility disclosed his medical
diagnosis to his children without his pennission. The
Court, after a hearing, found that the corrections
oftieials' disclosure had, in fact, violated Public
Health Law § 2782. Public Health Law § 2782 limits
the persons to whom certain kinds of medieal
information lllay be disclosed and calls for a penalty
of "up to" $5,000.00 for any violation of its
provisions Here, the Court decided on a penalty of
only $2,500.00. It also refused the claimant's
request to award additional damages for elllotional
distress. The claimant appealed, calling the award
"grossly inadequate."
The Appellate Division affirmed the Court of
Claims. "A court has broad diseretion in choosing
the amount of...a penalty [under section 2783],"
wrote the Court, "so long as the court explains its
choice and [the penalty] is not disproportionate to
the offense." Here, the Court of Claims credited the
testimony of the officer responsible for the
disclosure, which supported the Court's fInding that

Pro Se Vol. 15 No.4 Fall 2005

Page 21

the disclosure had been inadvertent. The Court cited
this lack ofintent as the basis for awarding less than
the maximum statutory penalty, and the Appellate
Division found no abuse of its discretion in doing so.
The Appellate Division also rejected the
claimant's assertion that the lower court had erred in
failing to award additional damages for emotional
distress. The Court held that in order to obtain
damages for emotional distress, the claimant would
have to show that the disclosure "unreasonably
endangered his physical safety." Here, although the
claimant alleged that the unauthorized disclosure
accelerated the progression ofhis illness and resulted
in deterioration of his health, he presented no
competent medical evidence to support the claim.
Absent medical evidence, his own testimony "was
wholly insutTicient to support a claim for the
negligcnt infliction of emotional distress."

one year earlier and that he had previously played on
this particular basketball court.
The Court held that he had not made out a claim
against the State. "It is well settled that landowners
owe a duty to exercise reasonable care in
maintaining their property in a reasonably safe
condition," explained the Court. "To be liable,
however, a landowner must have actual or
constructive knowledge of the defective condition.
To constitute constructive notice, a defect must be
visible and apparent and it must exist for a suftlcient
length of time prior to the accident to permit a
landowner to discover and remedy it."
Here, although the Court crcdited the claimant's
testimony that there was a hole by the access cover
on the edge of the basketball cmIlt, it found "no
evidence that [DOCS] had either actual or
constructive notice of this condition."

DOCS Not Liablefor Inmate's Basketball Injury;
Had No Notice ofDefective Conditions

Although claimant attempts to establish
actual notice by submitting repolts of
injuries from nine other inmates on the same
basketball court, none of the injuries
sustained by these inmates were caused by
this condition. Further, with respect to
constructive notice, there is no evidence that
the condition was present for a sufficient
time so that it should have been discovered
and remedied.

Black v. State, 8 Misc. 3d 1025(A) (Court of
Claims, 2005) (Unpublished Decision)
The claimant, an inmate, was playing basketball
at the Hudson Corrcctional Facility when he fell into
a depression surrounding the access cover to a water
supply valve along the edge ofthc basketball court
and broke his foot. He sued the State, claiming it
had been negligent in maintaining the court.
At trial, he testified that while running during an
intra-ptison game, his foot got caught in a hole
approximately three inches wide and two inches
deep, causing it to twist. On cross examination, he
stated that he had played basketball tor
approximately 23 years and was aware that playing
basketball could result in injury. In fact, he testified,
he had previously broken a bone while playing
basketball. He also admitted that he had played
basketball at Hudson since arriving approximately

The Court also doubted the claimant's assertion
that the hole was the cause of his injury. The
"RepOlt ofTnjury" made at the time of the incident
did not support his version ofwhat happened. In the
report, the claimant stated that "he was chasing the
ball, stopped short and heard a pop in foot area."
Thus, said the Court, "when the incident was the
freshest in his mind, claimant did not refer to the
hole on the basketball court."
Finally, the Court noted, "[a] landowner is
relieved fi'om liability for inherent risks of engaging

Page 22

in a sport ... when a consenting participant is aware
of the risks; has an appreciation of the nature of the
risks; and voluntarily assumes the risks. " "[A] person
who elects to engage in a sport or recreational
activity consents to those commonly appreciated
risks which are inherent in and arise out ofthe nature
of the sport generally and How from such
participation."
In this case, the claimant was, by his own
account, an experienced basketball player. He
admitted that he was aware he could be injured while
playing the game and, indeed, was previously injured
while playing basketball. In the Court's view, a
depression around a water valve along the edge of
an outdoor basketball court is not the type of defect
that is a "dangerous condition over and above the
usual dangers inherent in the activity."
Consequently, the Court found, the claimant had not
established that the State was negligent.

Former Inmate's ClaimfiJr Damages/or Unju.5t
COnJ'iction Dismi5S£~tl on Technicality
Long v. State, 797 NYS.2d 124 (2d Dep't 2005)
Court of Claims Act § 8-b allows persons who
were wrongly convicted of crimes to bring an action
against the State for damages. The conditions for
such a suit, however, are strict. In order to state a
cause of action, the person must have either: I) been
pardoned on the grounds that he was innocent ofthe
crime for which he was convicted; 2) been found not
guilty at a new trial; or 3) had the judgment of
conviction "reversed or vacated, and the accusatory
instrument. .. dismissed" for one of the grounds
specified in § 440.1 0 ofthe Criminal Procedure Law.
Criminal Procedure Law § 440.10, in tum, provides
several grounds upon which a defendant may move
to vacate a judgment. These include, among others,
that the judgment was obtained by "duress,
misrepresentation or fraud on the part of the court

Pro Se Vol. 15 No.4 Fall 2005

or a prosecutor"; that the "evidence adduced at a
trial resulting in the judgment was false"; that there
is newly-discovered evidence which creates a
probability of a verdict morc favorable to the
defendant; that evidence adduced at a trial resulting
in the judgment was procured in violation of the
defendant's rights under the constitution; and that
the defendant was incapable of understanding or
participating in the proceedings by reason of mental
disease or defect. (See CPL § 440.10 for the Iillliist
of grounds upon which a defendant may move to
vacate a judgment.)
In this case, the claimant was convicted in 1995
of rape in the first degree, robbery in the first
degree, and two counts of sexual abuse in the lirst
degree, and was sentenced to a term of
incarceration. In March 01'2000, he moved to vacate
the judgment and have the indictment dismissed
pursuant to several of the grounds outlined in
Criminal Procedure Law § 440.10. On June 23,
2000, the Court granted his motion, stating: "The
defendant's motion to set aside the judgment of
conviction, pursuant to CPL § 440.10 is granted,
and the indictment is dismissed, in the interests of
justice in accordance with CPL § 210.40.
Almost three years later, in MayoI' 2003, tbe
claimant brought a second motion, again asking the
Court to vacate his conviction under CPL § 440. He
argued that although the earlier decision of the
Court indicated that it vacated the conviction in the
interests of justice pursuant to CPL § 210.40, the
Courl did not decide those parts of the motion
raising issues under CPL § 440. The Court granted
the motion, writing that it now "reach[es] the issue
previously reserved and conclude that delendant's
convictions must be vacated pursuant to CPL §
440.10 ... " ft then held, again, that the convictions
were vacated pursuant to CPL § 440. 10 and the
"indictment is dismissed in the interests ollustice
pursuant to CI'L §210.40'" The Claimant then
brought his action for damages under the Court of

Pro Se Vol. 15 No.4 Fall 2005

Page 23

Claims Act in June of2003.
These facts raised two questions. First: Was the
claimant's action commenced in time? The Court of
Claims Act provides that an action for unjust
conviction must be brought "within two years [ofthe
dismissal]" The claimant argued that his indictment
was not dismissed until the May, 2003, decision,
because only then did the Court decide the motion to
vacate under CPL § 440.10. The COUlt disagreed. It
noted that the lower court had specifically held in
2000 that it was granting the claimant's motion
pursuant to CPL § 440.10 even if, in its later
decision, it stated that it had reserved that issue.
Hence, the Court found, the clock had started to run
back in 2000, and the claimant's 2003 action was
untimely.

Second, even ifthat were not the case, the Court
noted, in both the 2000 and 2003 decisions, the
lower court had specified that the indictment was
being dismissed "in the interests ofjustice." Neither
decision indicated that the indictment was being
dismissed in accordance with CPL § 440.10. A claim
for unjust conviction and imprisonment requires that
the "judgment of conviction [be] ... vacated, and the
accusatory instrument dismissed" upon one of the
grounds stated in CPL § 440.10.
"The requirements imposed by Court of Claims
Act 8-b are to be strictly construed," wrote the
Court, and, since the indictment in this case was
only dismissed upon an interests-of-justice basis and
not pursuant to CPL § 440.10, the action had to be
dismissed.

Are you a woman who has done time in a
SHU or "the box" in since 2000'1 Did you
spend more than 60 days in "the box"? Will
you be released in 3 months?
A writer based in New York City would be
grateful for the chance to talk with you about
how you coped with the experience. She is
interviewing women for a book that will be
used to advocate an end to the practice of
extended isolation The bulk of the book will
feature ex-prisoner testimony and the book
will be published by a non-profit organization
specializing in human rights.
Interested? Please write to Joanne Pawlowski,
P.O. Box 30365, New York, NY 10011. Let
her know the dates and length of time you
spent in SHU and how she could meet you in
person.

Page. 24

Pro Se VoL 15 No. 4 Fall 2005

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EDITORS: JOEL LANDAU, ESQ; KAREN MURTAGH-MONKS, ESQ.
COpy EDITING: ALETA ALBERT; FRANCES GOLDBERG
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DISTRIBUTION: MORGAN GARDNER; BETH HARDESTY
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