Vol. 16 Number 2: Spring 2006 Published by Prisoners’ Legal Services of New York

Appellate Division Affirms
Civil Commitment of Sex Offenders
The Appellate Division, First Department, has
upheld the Governor’s authority to civilly commit
sex offenders under provisions of the Mental
Hygiene Law, reversing a lower court which had
held that the Governor had no such authority. State
of New York ex rel Harkavy v. Consilvio 812
N.Y.S.2d 496 (1st Dep’t 2006).
The lower court ruling held that the Governor
could not order civil commitments of inmates under
the provisions of Article 9 of the Mental Hygiene
Law. Instead, the court ruled, any such
commitments must proceed under Correction Law
§ 402, which provides greater protections to
inmates, including the right to contest the
commitment in court before it happens. The court
also suggested that proceedings under the Mental
Health Law might violate the due process clause
and it ordered several inmates released from civil
commitment.
The Governor appealed that decision, however,
and obtained a stay before it could be effectuated. In
the new decision, the Appellate Division overruled
the lower court’s decision, and held that the
Governor is fully authorized to seek the civil
commitment of a person about to be released from
prison, who allegedly suffers from a mental illness
and is believed to be a danger to himself or others
under the procedures laid out in Article 9 of the
Mental Hygiene Law. The Court also found no due

process problems with the procedures authorized by
that statute.
In light of the new decision from the Appellate
Division, the Governor appears to have a “green
light” to continue his policy of civilly committing
sex offenders after their terms of incarceration have
expired.
article continued on page 3…

Also Inside…
Drug Law Reform Provisions Stymied?
A-II Re-Sentencing, CASAT Orders,
at Issue . . . . . . . . . . . . . . . . . . . . . . . . . page

3

New Parole Cases . . . . . . . . . . . . . . . . . page 17
Pro Se Practice: Consecutive Sentences
and People V. Richardson; and the
Constitutionality of New York’s
Persistent Felony Offender Law . . . . . page 22
Commentary: Politics, Not Policy, is
Driving Civil Commitment Push . . . . . page 26

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This project is supported in part by grants from the New York State Division of Criminal Justice Services, the New York State
Bar Foundation, and the Tompkins County Bar Association. Points of view in this document are those of the author and do
not represent the official position or policies of the grantors.

Page 2

Pro Se Vol. 16 No. 2 Spring 2006

A MESSAGE
from
SUSAN JOHNSON, EXECUTIVE DIRECTOR

The Need for External Prison Oversight
Recently, I attended a three-day conference in
Austin, Texas, entitled, “Opening Up a Closed
World: What Constitutes Effective Prison
Oversight?” The conference brought together a
distinguished group of prison advocates, prison
officials, and political and academic professionals
from all over the world. We discussed the need for
external scrutiny as well as various forms of prison
oversight.
Oversight is not a goal in and of itself; it is one
means of achieving the goals of transparency and
accountability. There are many separate functions
of oversight and each needs to be strong and
specific. Regulation, audit, accreditation,
investigation, reporting, inspection, and monitoring
are all ways of implementing oversight in our
prisons. Litigation is another way in which we
achieve the goals of transparency and
accountability. Oversight can be both internal and
external. No one entity can serve each function of
oversight, but a combination of many different
agencies that are able to fulfill separate functions
results in helping to create a prison system that is
transparent and accountable.
In New York State, we have the Correctional
Association, a watchdog agency that was created in
1846, and has a special legislative privilege that
allows it to inspect prisons and to report its findings
and recommendations for improvements to policy
makers and the public. Because of its unique
authority to enter prisons, the Correctional
Association is able to “shine a spotlight in the dark
corners of the prison system, counter debilitating
conditions and promote effective prison programs.”
http://www.correctionalassociation.org. The
Correctional Association often publishes reports on

various aspects of prison life that result in pressure
being put on DOCS to improve conditions.
However, the Correctional Association has no
enforcement authority. There is also the
Commission on Correction that, among other
things, promulgates minimum standards for the
management of correctional facilities, and
evaluates, investigates, and oversees correctional
facilities. However, the Commission on Correction
also has no enforcement authority.
If the Correctional Association or the
Commission on Correction finds problems in a
correctional facility, they can report on them and
make recommendations as to how to fix those
problems, but it cannot force DOCS to fix those
problems. This is why organizations such as
Prisoners’ Legal Services and Prisoners Rights
Project are so important. Without organizations
such as these, there would be no way to hold DOCS
accountable when it fails to comply with minimum
standards or when it violates the constitutional
rights of prisoners.
External oversight of prisons is essential.
Although New York has made some inroads in
terms of promoting external oversight of our
prisons, we have a long way to go. Many of the
articles in this issue of Pro Se emphasize the need
for more complete and in-depth external prison
oversight. Dostoevsky said that the degree of
civilization in a society is measured by the way it
treats its prisoners. It is important for all of us to be
constantly vigilant in our support of and demand for
external oversight of our prisons in order to ensure
that we, as a society, become more, not less
civilized.

Pro Se Vol. 16 No. 2 Spring 2006

article continued from page 1…

In the last issue of Pro Se (Winter 2006), we
gave extensive coverage to Governor’s Pataki’s
efforts to civilly commit sex offenders after their
terms of incarceration had expired and to the legal
issues raised by those efforts. Inmates interested in
learning more about this issue, and about their
rights if confronted with a civil commitment
recommendation, should consult that issue.
Additional issues are available upon request to
Prisoners’ Legal Services of New York,
114 Prospect Street, Ithaca, NY 14850. Inmates
concerned that they may be subject to a civil
commitment, particularly inmates convicted of a
sex offense who are nearing the end of their term,
should contact the office of Mental Hygiene Legal
Services closest to them: 60 Madison Ave., 2nd
floor, New York, NY 10010; 170 Old Country Rd.,
Mineola, NY 11501; 40 Steuben St., Suite 501,
Albany, NY 12207; or 50 East Ave., Suite 402,
Rochester, NY 14604.
Rockefeller Reform Provisions Stymied?
CASAT Orders and A-II Re-Sentencing Affected
Two important provisions of last year’s
Rockefeller Drug Law Reform Act (the “DLRA”)
have become tangled in confusion--and litigation-over their eligibility requirements. The two
provisions are those allowing A-II drug offenders to
be re-sentenced and permitting sentencing courts to
order DOCS to enroll certain drug offenders in
CASAT, the Comprehensive Alcohol and
Substance Abuse Treatment Program. As a result of
the confusion, the benefits of those provisions may
not be reaching many of the inmates they were
intended to benefit.
A-II Drug Offender Re-Sentencing
The first provision of the DLRA to become
ensnarled in confusion over its eligibility
requirements is that concerning re-sentencing of
certain A-II drug offenders.

Page 3

The DLRA reformed the Rockefeller-era drug
laws by creating a new, determinate sentencing
scheme for drug offenses which reduced the
sentences for most drug offenses. It also allowed
anyone convicted of an A-I drug offense prior to the
sentence reduction to petition their sentencing court
for one of the new, lesser sentences.
Last August, the Legislature passed an
extension of the DLRA allowing certain A-II drug
offenders to also petition their sentencing courts for
re-sentencing. The A-II provisions, however--unlike
the provisions for A-I offenders--did not allow all
A-II offenders to petition their sentencing courts.
Instead, it contained certain eligibility requirements.
Among them was a requirement that the offender be
“more than 12 months” from being an “‘eligible
inmate’ as that term is defined in Correction Law
§ 851(2)” to apply to be re-sentenced.
Correction Law § 851(2), in turn, defines an
“eligible inmate” as a person “who is eligible for
release on parole or who will become eligible for
release on parole or conditional release within two
years.”
Therefore, to be eligible for re-sentencing, the
A-II offender must be “more than twelve months”
from “eligible for release on parole” or becoming
“eligible for release on parole or conditional release
within two years.”
But what exactly does this mean?
Inmates have argued that it means that A-II drug
offender need only be more than one year from their
parole eligibility date to be eligible for resentencing (i.e., “more than twelve months” from
being “eligible for release on parole”).
Many District Attorneys, however, as well as
DOCS, have interpreted the statutory language to
mean that an A-II drug offender must be more than
three years from a parole eligibility date to be
eligible for re-sentencing (i.e., “more than 12
months” from being “within two years” of parole
eligibility).
Under that interpretation, many fewer A-II drug
offenders--by some calculations as many as 500
fewer--will be eligible for re-sentencing.

Page 4

Unfortunately, litigation over the issue has thus
far favored the DOCS and District Attorneys’
interpretation of the law. Although at least one
lower court ruled in favor of the “one year”
interpretation (See, e.g., People v. Perez, Ind.
No. 6848/04 [Sup Ct., N.Y.Co., Jan. 24, 2006]
[Soloff, J.]), the Appellate Division, First
Department, recently held firmly in favor of the
“three year” interpretation.“These statutes,” the
Court wrote, “although not a model of clarity, when
read together, require that, in order to be eligible for
re-sentencing, an A-II offender may not be eligible
for parole within three years.” People v. Bautista,
809 N.Y.S.2d 62 (1st Dep’t 2006).
Because the Bautista decision is an appellate
level decision, it is binding on all cases that arise in
the First Department (which includes Manhattan
and the Bronx). It also effectively overrules lower
court decisions from those boroughs (including
Perez) that held in favor of the one-year
interpretation.
The good news is that the Court of Appeals has
accepted leave to review Bautista. Prisoners’ Legal
Services has submitted a “friend of the court” brief
arguing in favor of the “one year” interpretation of
the statute. A decision can be expected sometime
over the summer.
Practice Pointer: If you were convicted of an
A-I or A-II drug offense and have an indeterminate
sentence, you may be eligible for re-sentencing to a
lesser, determinate sentence under the provisions of
the Rockefeller Drug Law Reform Act. You should
contact the Public Defender or Legal Aid Society in
the county in which you were convicted. A complete
list of Public Defenders and Legal Aid Societies is
available from Prisoners’ Legal Services of New
York, 114 Prospect St., Ithaca, NY 14850.
Court Ordered CASAT
The second provision of the DLRA to become
ensnarled in litigation concerns CASAT orders.
The DLRA added a new subsection (6) to Penal
Law § 60.04 to allow sentencing courts to order
DOCS to enroll certain drug offenders in CASAT.

Pro Se Vol. 16 No. 2 Spring 2006

The new statute, however, makes such orders
conditional upon the inmate meeting the “statutory
eligibility criteria” for CASAT.
But what are the statutory eligibility
requirements for CASAT? This turns out to be a
difficult question.
DOCS’ regulations describe CASAT as a “three
phase program.” Phase One consists of intensive
drug therapy “provided…in an alcohol and
substance abuse treatment correctional annex.”
Phase Two consists of “a transitional
period…[which] would include transfer to a work
release facility for employment and placement in
appropriate community-based programs…or
participation in a residential treatment facility day
reporting center program, or other employment and
program arrangements recommended by the
community-based treatment provider.” Phase Three
consists of “an aftercare component in the
community under parole supervision…” See,
7 N.Y.C.R.R. § § 1950.2.
DOCS has historically treated CASAT as if it
were a temporary release program. It has required
inmates interested in CASAT to meet the statutory
eligibility requirements for work-release. The
statutes governing temporary release programs
grant DOCS virtually complete discretion to
determine who is admitted to such programs. (See,
for example, Correction Law § 855.) As a result,
when, over the past year, DOCS was confronted
with court orders that they admit inmates into
CASAT, provided they met the “statutory eligibility
criteria” for the program, it took the position that
the “statutory eligibility criteria” amounted to its
discretion. It has argued that it retains final
discretion to decide who is and is not admitted to
CASAT regardless of whether a court has ordered
the inmate enrolled.
Inmates have countered that regardless how
DOCS has historically treated CASAT, it is not a
temporary release program. They have pointed out
that Correction Law § 851(9), which defines
temporary release programs, does not include
CASAT. They have argued that the broad statutory

Pro Se Vol. 16 No. 2 Spring 2006

discretion that DOCS has over admission to the
temporary release programs does not apply to
CASAT. Rather, inmates have argued, the“statutory
eligibility criteria” for CASAT should be limited to
those that govern admission to an “alcohol and
substance abuse treatment annex” under Correction
Law § § 2(18) and 851(2). These statutes state that
an inmate who has been convicted of a drug offense
is eligible for placement in a correctional annex if
he or she is within 30 months of a parole eligibility
date.
Therefore, inmates have argued, if a court has
ordered that he or she be admitted to CASAT and
the inmate meets the statutory eligibility
requirements for transfer to a correctional annex,
DOCS should have no further discretion to refuse to
comply with the court order.
Litigation over this issue has so far produced
mixed results. In the only reported decision, Matter
of Bailey v. Joy, 810 N.Y.S.2d 644 (Sup. Ct. West.
Co. March 1, 2006) (Loehr, J.), the court upheld the
inmates’ arguments. The Court held that “to accept
DOCS’ position would be to return the ultimate
decision making concerning CASAT enrollment to
DOCS thereby effectively repealing” the new
statute.
Other unreported cases, however, have rejected
Bailey’s reasoning. In Hines v. Goord, Index
# 2006-0273 (Sup. Ct. Onondaga Co. March 16,
2006) (Brunetti, J.), for example, a court refused to
enforce a CASAT order over DOCS’ objections,
despite the fact that the inmate met the eligibility
criteria for transfer to a correctional annex--and
despite the fact that the case was heard by the same
judge who had issued the order in the first place.
Since no appellate level decisions on this issue
have yet been issued on this question, inmates with
court-ordered CASAT, who are denied CASAT by
DOCS and who believe that their court order
entitles them to CASAT, will continue to have to
litigate this issue on a case-by-case basis.
Practice pointer: Prisoners Legal Services has
heard from a number of inmates who state that they
were granted a CASAT order as part of their plea
bargain only to be denied CASAT when they got to

Page 5

DOCS. In some cases, we have heard that inmates
in these circumstances have been able to re-open
their plea negotiations and obtain a lesser sentence,
on the ground that the CASAT order is
unenforceable. Since the law regarding the
enforceability of a judicial CASAT order remains
undecided, inmates who obtained a CASAT order as
part of plea bargain and who have been denied
CASAT by DOCS may wish to consider contacting
their public defender or sentencing court to
determine whether they can re-open their plea.
Trial Begins in Case Challenging Treatment of
Mentally Ill Inmates
On April 3, 2006, trial began in the case of
Disability Advocates, Inc. v. New York State Office
of Mental Health, et al. in the Southern District of
New York. This statewide action seeks declaratory
and injunctive relief on behalf of all prisoners with
mental illness in DOCS’ custody. The Plaintiff is
Disability Advocates of New York, which has
statutory authority to pursue lawsuits to ensure the
protection of individuals with mental illness who
are receiving care and treatment in New York State,
including prisoners housed in DOCS’ custody.
The suit alleges that both DOCS and the Office
of Mental Health (“OMH”) inflict cruel and unusual
punishment on prisoners with mental illness, act
with deliberate indifference to their serious medical
needs, and discriminate against them on the basis of
their disability by frequently confining them in
isolated settings, including Special Housing Units
(SHU) and keeplock confinement, and denying
them proper mental health treatment and housing.
The suit alleges that this treatment violates the
Eighth Amendment to the United States
Constitution, Title II of the Americans with
Disabilities Act, and § 504 of the Rehabilitation
Act.
The case was filed in May 2002. Extensive
document discovery, prison inspections, and inmate
interviews have taken place since that date.
Furthermore, numerous state officials and inmate
witnesses have had their depositions taken.

Page 6

Pro Se Vol. 16 No. 2 Spring 2006

During the first phase of the trial, the Plaintiff
presented a portion of its case. Testimony was taken
from the Executive Director of Disability
Advocates, Inc., psychiatric experts, a security
expert, the Correctional Association of New York,
and several inmate witnesses. Additionally, the
court conducted inspections of three maximum
security prisons and one medium security prison
with the Plaintiff’s and Defendants’ counsel and
officials from DOCS and OMH in attendance.
Trial was adjourned and will reconvene in the
fall.
The Plaintiff is represented by Prisoners’ Legal
Services of New York, the Prisoners’ Rights Project
of the Legal Aid Society, Disability Advocates,
Inc., and the law firm of Davis Polk & Wardwell,
which is assisting the non-profit organizations on a
pro bono basis.
FEDERAL CASES

Inmate’s Allegation of Sexually Suggestive PatFrisk Is Sufficient, if True, to Establish Eighth
Amendment Violation
Rodriguez v. McClenning, 399 F.Supp.2d 228
(S.D.N.Y. 2005)
Inmates often complain that they have been patfrisked in an abusive or offensive manner by
guards. But when do pat-frisks give rise to an
Eighth Amendment claim? In the case below, the
district court identifies a fact pattern that, it finds,
supports an allegation that the pat-frisk violates the
Eighth Amendment.
The facts, as alleged in the complaint, were
these: Plaintiff Rodriguez, an inmate, complained
that on November 10, 2001, he was selected for a
pat-frisk by Defendant McClenning, a Correction
Officer. McLenning told Rodriguez that he was
being frisked because McClenning had received
information that Rodriguez brought contraband into
the yard the previous day. According to Rodriguez,
McClenning directed him to assume a pat-frisk

position against the wall. He then put on
unauthorized black leather gloves (instead of the
latex gloves usually used for pat-frisks) and started
punching his fists together in an intimidating
manner. He then told Rodriguez to keep his arms
and legs stretched out and if Rodriguez felt
“[McClenning's] hands in [Rodriguez's] ass…don't
think about screaming because no one is going to
help.” McClenning then conducted the pat-frisk in
an inappropriate manner that included caressing
Rodriguez's chest and repeatedly groping his
genitals and buttocks. Rodriguez told McClenning
that the pat-frisk was being conducted in an
inappropriate manner and that he would agree to a
strip search if McClenning thought that he was
hiding contraband. McClenning responded that he
“prefer[red] it this way, it's more fun.”
The question at issue in the case was whether
McClenning’s alleged conduct, if true, amounted to
a violation of the Eighth Amendment. (The Eight
Amendment to the U.S. Constitution prohibits the
infliction of “cruel and unusual” punishment.)
Eight years ago, in Boddie v. Schnieder 105
F.3d 857 (2nd Cir. 1997), the Second Circuit
addressed a case in which a female Correction
Officer allegedly made a pass at an inmate.
According to the inmate, she squeezed his hand,
touched his genitals, and said, “You know you’re
[sic] sexy black devil, I like you.” Two weeks later,
she allegedly ordered him to take off his sweatshirt
and then pushed herself up against him in a
hallway, “bumping into [his] chest with both her
breasts.” The Boddie Court found, “[t]here can be
no doubt that severe or repetitive sexual abuse of an
inmate by a prison officer…constitute[s] an Eighth
Amendment violation.” The Court held, however,
that the abuse alleged in that case was insufficiently
serious to give rise to a constitutional claim.
The Rodriguez Court found inmate Rodriguez’s
claims very similar to the allegations in Boddie.
But, the Court held, the law has changed since
Boddie was decided. In 1998, for instance, at the
time Boddie was decided, 15 states did not prohibit
sexual contact between prison employees and
inmates. Since then, 11 of these 15 states have

Pro Se Vol. 16 No. 2 Spring 2006

Page 7

outlawed such contact and only four states fail to
outlaw such behavior. According to the Court, this
change “demonstrates a national consensus that any
sexual assault of a prisoner by a prison employee
constitutes cruel and unusual punishment.” Given
the evolving societal standards illustrated by the
change in the legal landscape, the Court continued,
Officer McClenning’s alleged conduct would, if
true, constitute a violation of inmate Rodriguez’s
Eighth Amendment rights. Therefore, the Court
held, the suit should proceed.
Practice Pointer: This case, like many federal
cases, was decided on a summary judgment motion.
In a summary judgment motion, the defendant
argues that even if all the facts alleged by the
plaintiff were true, they would not establish a
violation of federal law and therefore the case
should be summarily dismissed. The question in a
summary judgement motion is always a
hypothetical one: Would the facts, if true, establish
a violation of the law? Winning a summary
judgment motion is not the same as winning the
case. The plaintiff must still show, by a
preponderance of the evidence, that the facts he or
she has alleged are true.

4444

4444

Drug Possession: Drugs Found in Inmate’s Cell
Belong to Inmate; Inmate Waived Other Defense
by Failing to Raise Them at the Hearing
Matter of Diaz v. Goord 807 N.Y.S.2d 730
(3rd Dep’t 2006)
After the Petitioner was found unconscious in
his cell and transported to a local hospital, a search
of his cell revealed 22 packets containing a
powdery substance which later tested positive for
heroin. The Petitioner was found guilty of drug
possession in a Tier III hearing. On appeal, the
Court held that the Misbehavior Report, together
with the testimony of its author, provided
substantial evidence of the Petitioner’s guilt. The
Petitioner’s assertion that anyone could have
thrown the drugs into his cell presented a credibility
problem for the Hearing Officer to resolve against
him. His claims, i.e., that he was not provided with
certain documentary evidence and that there was an
inadequate chain of custody for the drug test, were
not presented at the hearing and were, therefore,
waived.
Drug Smuggling: Transcript of Telephone Call
Supported Smuggling Charge

44

STATE CASES

Disciplinary Cases
There were an unusual number of drug-related
cases reported this quarter, many involving inmates
charged with smuggling or attempting to smuggle
drugs into their correctional facilities. The inmates
in these cases found little sympathy in the courts.

Matter of Hayes v. Goord, 807 N.Y.S.2d 309
(3rd Dep’t 2006)
The Petitioner in this case was charged with
conspiring to introduce drugs into the facility,
smuggling, and making a third-party telephone call
after he was heard in a monitored telephone
conversation instructing his wife to bring drugs into
the facility. When his wife was confronted by
Correction Officers on her visit, she surrendered
two balloons that she had concealed in her genitals,
the contents of which later tested positive for
marijuana and cocaine. The Petitioner appealed,
after being found guilty in a Tier III hearing. On
appeal, the Court found that the Misbehavior
Report, the transcript of the telephone conversation,

Page 8

and other documentary evidence fully supported the
charges. The Petitioner’s objection to the Deputy
Superintendent being the Hearing Officer, on the
grounds that he was involved in the investigation,
was rejected. The Deputy Superintendent explained
that he was not involved in the investigation and
that his only knowledge of the incident was that a
visitor had been arrested. There was no evidence
that his determination flowed from any alleged bias.
Drug Testing: Failure to Properly Admit Drug
Test Results Held Harmless Error, Where Other
Evidence Supported Hearing Officer’s Finding of
Guilt on Drug Possession Charge
Matter of Dumpson v. Goord, 807 N.Y.S.2d 723
(3rd Dep’t 2006)
A Correction Officer alleged that he observed
the Petitioner, an inmate, attempting to place
something down his pants during a visit. He
recovered four purple balloons containing a
substance which lab tests later showed to be
marijuana. The Petitioner was charged with
refusing a direct order, violating visiting room
procedures, and possession of a controlled
substance. After being found guilty in a Tier III
hearing, he filed an Article 78 proceeding. The
Court found that lab test results should not have
been entered in evidence because the record
reflected that the Petitioner did not receive all the
necessary documents regarding the testing (See, 7
N.Y.C.R.R. 1010.5). But, the Court continued, the
hearing was supported by substantial evidence
nonetheless: The Petitioner's visitor, called by the
Petitioner as a witness, testified that she brought the
marijuana to him during the visit. This testimony,
coupled with the videotape of the visit and the
testimony of other witnesses, was sufficient to
support the charge even without the drug test
results.

Pro Se Vol. 16 No. 2 Spring 2006

Drug Testing: Test Results Were Irrelevant to
Smuggling and Conspiracy Charges
Matter of Lovett v. Goord 807 N.Y.S.2d 728
(3rd Dep’t 2006)
Correction Officers discovered a plan by the
Petitioner and his girlfriend to smuggle drugs into
the facility. They confronted the girlfriend in the
visitor processing room, where she surrendered a
condom containing what officials later identified to
be heroin. After a Tier III hearing, the Petitioner
was found guilty of smuggling and conspiracy to
introduce narcotics into the facility. He appealed.
The Court found his claim, i.e., that the test results
should not have been admitted because the proper
test forms had not been submitted, unpersuasive
because the Petitioner was charged only with
smuggling and conspiracy to introduce drugs into
the facility, not with the actual possession of drugs
(compare with Dumpson v. Goord, above). The
Court further found that the Misbehavior Report,
the testimony of its author, and the documentary
evidence which included an incriminating statement
from the Petitioner’s girlfriend, constituted
sufficient evidence of guilt. The Court also rejected
the Petitioner’s claim that he was denied adequate
employee assistance. Any deficiencies in the
assistance provided were remedied by the Hearing
Officer, who obtained certain documents requested
by the Petitioner and adjourned the hearing to allow
him time to review them.
Drug Use: Defenses of Contamination and
Inadequate Employee Assistance Fail
Matter of Hayes v. Goord, 807 N.Y.S.2d 739
(3rd Dep’t 2006)
The Petitioner’s urine tested positive for cocaine
and opiates. His defense, that the sample was

Pro Se Vol. 16 No. 2 Spring 2006

contaminated because the cup fell in the toilet
before he filled it, was contradicted by testimony
from a Correction Officer. It thus created a
credibility issue which the Hearing Officer was free
to resolve against him. His claim that the employee
assistant was inadequate because he failed to
explain the charges and the drug testing procedures
was also found unavailing: First, the record
revealed that he fully understood the charges.
Second, he obtained favorable testimony from
material witnesses and the relevant drug testing
documents that he requested. Accordingly, the
Court held, he failed to show that he was prejudiced
by the assistant's alleged inadequacies.
Practice Pointer: In order to sustain a claim
that the employee assistance was inadequate, you
must be able to show that your ability to defend
yourself was prejudiced by the alleged inadequacy.
Very few cases alleging inadequate employee
assistance are successful.

Page 9

contains the administrative regulations of all state
agencies. Regulations are a source of law one step
below statutes and one step above agency
directives. They are promulgated by the agencies
themselves pursuant to authority granted by statutes
and, once promulgated, are supposed to be binding
on the agency. Title Seven of the N.Y.C.R.R.
contains DOCS’ regulations. It should be found in
most prison law libraries. (DOCS’ Directives are
often repetitions of what is contained in the
regulations, although there are also some
variations , and the Directives cover a broader
range of topics.)
Seven N.Y.C.R.R. Part 251-4.1 states:
“(a) An inmate [in a Tier III hearing] shall have
the opportunity to pick an employee from an
established list of persons who shall assist
the inmate when a Misbehavior Report has
been issued against the inmate if:

Employee Assistance: Inmate Who Was Neither
Illiterate, Non-English Speaking, nor Sensorially
Disabled Was Not Entitled to an Employee
Assistant.

(1)

the inmate is either illiterate or
non-English speaking; or

(2)

the inmate is sensorially disabled (in
which case the inmate will be provided
reasonable accommodations including,
but not limited to, the provision of a
qualified sign language interpreter for
a deaf and hard of hearing inmate who
uses sign language to communicate);
or

(3)

the inmate is charged with drug use as
a result of a urinalysis test; or

(4)

the inmate is confined pending a
superintendent's hearing to be
conducted pursuant to Part 254 of this
Title.

Matter of Alston v. Goord, 807 N.Y.S.2d 202
(3rd Dep’t 2006)
An inmate who allegedly wrote a letter to his
brother in which he threatened to kill another
inmate was charged in a Misbehavior Report with
“threats” after the letter was intercepted by DOCS.
After being found guilty in a Tier III hearing, he
appealed, arguing that he had not been provided
with an employee assistant. The Court held that
g
i
v
e
n
t
h
a
t
the Petitioner was not illiterate, non-English
speaking, sensorially disabled, charged with drug
use, or confined pending the hearing, he was not
entitled to an employee assistant pursuant to Title 7
N.Y.C.R.R. 251-4.1(a).
Practice Pointer: The “N.Y.C.R.R.” stands for
“New York Code, Rules and Regulations.” It

(b)

In other cases where a Misbehavior Report
has been issued, the Review Officer or

Page 10

Hearing Officer, in his absolute discretion,
may offer an inmate the opportunity to pick
an inmate assistant where such assistance
would enable the inmate to adequately
comprehend the case in order to respond to
the charges.”
Remedies: Expungement v. New Hearing
Matter of Alvarez v. Goord, 813 N.Y.S.2d 564
(3rd Dep’t 2006)
The Petitioner was charged with drug
possession and smuggling after he engaged in a
phone conversation with two individuals during
which he allegedly made plans to have drugs
smuggled into the facility. At his Tier III hearing,
Petitioner Alvarez requested the testimony of a
woman that had been caught smuggling drugs into
the facility where he was incarcerated. Although the
Hearing Officer had a variety of means with which
to contact the requested witness directly, he failed
to make a meaningful effort to obtain her testimony.
Mr. Alvarez was found guilty of the charges and
after an unsuccessful administrative appeal, filed an
Article 78 requesting expungement for the denial of
his due process and regulatory rights to call
witnesses.
The Supreme Court in Albany County agreed
that the Hearing Officer did not make reasonable
efforts to contact the witness directly but
determined that a rehearing, not expungement, was
the appropriate remedy. On appeal, Mr. Alvarez
challenged solely the appropriate remedy for the
denial of his requested witness, arguing that the
violation required expunction. In similar situations
across the state, some courts have found this
violation to be one of a constitutional dimension
requiring ordered expungement, while others have
found only a regulatory violation requiring a
rehearing, and still others have found some varying
combination of the two, adding to the confusion
surrounding this issue. This case clarified the

Pro Se Vol. 16 No. 2 Spring 2006

confusing, and often contradictory, area of law on
the appropriate remedies for a witness denial.
While the Third Department affirmed the lower
court’s decision, it also used this case as an
opportunity to attempt to “clarify the parameters of
constitutional violations requiring expungement.”
Accordingly, the Court held that expungement is
required only in those situations where a “clear
constitutional violation” has occurred. The court
then gave two examples of what type of facts would
constitute a “clear constitutional violation.” First,
the court held, it is a “clear constitutional violation”
if a Hearing Officer engages in an actual outright
denial of a witness “without a stated good-faith
reason, or lack of any effort to obtain a requested
witness’s testimony.” Second, if “an inmate witness
initially agreed to testify and later refuses without a
reason, a Hearing Officer must personally attempt
to ascertain the reason for the inmate’s
unwillingness to testify…” A “Hearing Officer’s
failure to make [such] a personal inquiry,” held the
court, “constitutes a regulatory violation tantamount
to a constitutional violation.”[Citing inter alia,
Matter of Hill v. Selsky, 19 A.D.3d 64 (2005)] (but
See, Matter of Higgins v. Selsky, reported below.)
In both of these situations, expungement is
required. The Court then held that, as in the case of
Mr. Alvarez, “most other situations constituted
regulatory violations, requiring annulment of the
determination but not mandating expungement.”
Petitioner Alvarez was represented by PLS
Matter of Higgins v. Selsky, 811 N.Y.S.2d 470
(3rd Dep’t 2006)
The Petitioner, an inmate, was charged with
assault, making threats, and refusing a direct order.
The Petitioner was found guilty and the
determination was upheld on administrative appeal.
The Petitioner, however, then asked for
reconsideration, noting that the Hearing Officer had
failed to adequately inquire into witnesses’ alleged
refusals to testify. In response, Defendant Selsky

Pro Se Vol. 16 No. 2 Spring 2006

reversed the disposition and ordered a new hearing.
At the new hearing, the Petitioner was again found
guilty. After exhausting his administrative
remedies, the Petitioner filed an Article 78 in
Supreme Court, arguing that expungement of the
original charges, not a rehearing, should have been
ordered. The supreme court dismissed the petition
and he appealed.
Relying on the Court of Appeals case, Matter of
Dawes v. Coughlin, 612 N.Y.S.2d 337 (1994), the
Appellate Division held that, “[b]y seeking
reconsideration and being granted a rehearing,
petitioner was afforded a full and fair opportunity to
present his case. Inasmuch as the administrative
determination was not final when reconsideration
was granted, even errors of constitutional
magnitude may be addressed and corrected at the
rehearing.”
Substantial Evidence: Hearsay Held Admissible to
Show Temporary Release Violation
Matter of Johnson v. Goord, 810 N.Y.S.2d 255
(3rd Dep’t 2006)
A co-worker’s allegation that the Petitioner,
who was participating in a temporary release
program, possessed a gun while at work, resulted in
a Misbehavior Report and a Tier III disciplinary
hearing in which the Petitioner was found guilty of
violating temporary release regulations. The
Petitioner challenged the hearing in an Article 78
proceeding. The Court found that the Misbehavior
Report and the hearing testimony constituted
sufficient evidence to support the charge and that no
procedural errors had been committed. Although
the name of the co-worker who reported the
incident was not revealed to the Petitioner, the
Parole Officer who investigated the allegation
testified. This testimony, although hearsay, included
specifics as to the date, time, and location of the
incident. This detailed information, as well as other
testimony at the hearing corroborating the sequence

Page 11

of the events reported by the Parole Officer,
provided the Hearing Officer sufficient basis to
assess the reliability and credibility of the hearsay.
Practice Pointer: “Hearsay” is “secondhand
information.” It occurs when a person relays
information NOT about something he personally
saw or heard, but about something someone else
told him or said they saw. For example, Joey tells
you that Junior said he saw Jerry go through a red
light. The statement that Jerry went through the red
light is hearsay, because it is merely Joey’s account
of what Junior told him he saw, rather than
Junior’s personal account of what he saw.
Hearsay has historically been considered
unreliable in most legal proceedings, in part,
because the person against whom it is admitted
(Jerry, in the above example) has no opportunity to
cross-examine the person who made the statement
(Junior).
Courts have long held that hearsay statements
are admissible in prison disciplinary hearings,
however, so long as the Hearing Officer has some
basis upon which to assess the reliability of the
statement. In this case, the co-worker’s allegation
that the Petitioner brought a gun to work was
hearsay--because it was presented by the Parole
Officer, not the co-worker himself. The Court found,
however, that both the degree of detail in the Parole
Officer’s statement about what the co-worker said
he saw, along with additional information in the
record which corroborated the statement, provided
sufficient basis upon which the Hearing Officer
could find the statement reliable.
Substantial Evidence: Weapons Charge Not
Supported by Evidence
Matter of Green v. Goord 807 N.Y.S.2d 729
(3rd Dep’t 2006)
The Petitioner, an inmate, was charged with
assaulting his cellmate and with possession of a
weapon after he threw hot water on him, causing

Page 12

burns to his face and neck. A search of the cell also
revealed an altered hot pot and a pair of nail
clippers in a sock. On appeal, the Court found that
the weapons charge was not supported by
substantial evidence: hot water is not a “weapon.”
The remaining charges, however, were supported
by the Misbehavior Report, the documentary
evidence, and testimony at the hearing.
Nevertheless, because a loss of good time was
imposed and the weapons charge was dismissed, the
hearing was remitted to DOCS for a
redetermination of the penalty.
Substantial Evidence: “Solicitation” Charge
Dismissed for Lack of Evidence
Matter of Keesh v. Goord 807 N.Y.S.2d 733
(3rd Dep’t 2006)
The Petitioner’s cell was searched when he was
suspected of possessing gang-related materials.
Various documents were recovered, including a
photocopy of the cover of a book entitled the “Holy
Blackness,” authored by the Petitioner, as well as a
blank order form. As a result of the search, the
Petitioner was charged with engaging in
unauthorized organizational activities, practicing
martial arts, disorderly conduct, and solicitation. He
was found guilty of all charges except for disorderly
conduct. On administrative appeal, two of the
remaining charges were dismissed, leaving only the
charge of solicitation.
The prison disciplinary rule prohibiting
solicitation states: “Inmates shall not request or
solicit goods or services from business or any
person other than immediate family members
without the consent and approval of the facility
superintendent or designee.” See, 7 N.Y.C.R.R.
270.2(B)(4)(ii).
According to the Misbehavior Report in this
case, the solicitation charge was premised upon
correspondence to and from a printing company
indicating a transaction for the printing of the book

Pro Se Vol. 16 No. 2 Spring 2006

“Holy Blackness.” The transaction had not been
authorized by the Superintendent. The
correspondence, however, was not included in the
record of the hearing. Although the Correction
Officer who prepared the Misbehavior Report
testified that the photocopy of the book cover and
blank order form were the documents he used to
support the charge, those documents, standing
alone, did not establish that the Petitioner was in
contact with a printing company for the purpose of
either having the book printed or ordering copies of
it, and there simply was nothing else in the record
to substantiate this charge. Consequently, the
hearing was dismissed.
Substantial Evidence: Charges of Altering an Item
and Stealing a Television Were Not Supported by
the Misbehavior Report
Matter of Hemphill v. Selsky 808 N.Y.S. 2d 503
(3rd Dep’t 2006)
The Petitioner was searched after a Correction
Officer received a confidential tip that he might
have a weapon. After he initially resisted the frisk,
a one-and-a-half-inch razor was found in his pocket
and a Misbehavior Report was written. A later
search of his cell resulted in additional charges that
he possessed an altered heating element, along with
a television that belonged to another inmate, and a
small stone which could be used to sharpen a
weapon. The two Misbehavior Reports were
considered in a single hearing and the Petitioner
was found guilty of all charges.
On appeal, the Court held that the first
Misbehavior Report was supported by sufficient
evidence in the form of the Report itself, the
supporting memoranda, and the testimony at the
hearing. The Petitioner’s contention that the
Hearing Officer failed to assess the reliability of the
confidential informant was irrelevant: There was no
need for the Hearing Officer to do so, since the

Pro Se Vol. 16 No. 2 Spring 2006

Page 13

determination of guilt resulted from the discovery
of the weapon, not from the confidential tip.
The second Misbehavior Report, however, was
unsupported by substantial evidence. Although the
Report gave the Petitioner adequate notice of the
charges, the Court found that it was not sufficiently
detailed “to constitute the type of relevant proof that
a reasonable mind would accept as adequate to
support the determination at issue.” It consisted of
nothing more than a conclusory statement that the
altered heating element and the television had been
found in the Petitioner’s cell and the Petitioner's
denial of the charges. There was no evidence or
testimony to substantiate how the heating element
was altered, or if the television was stolen.
Consequently, the Court returned the hearing to
DOCS for reconsideration of the penalty.

the Unusual Incident Reports to determine the
source of the victim’s injury was unavailing, as the
Report supported the determination by reflecting
the size of the laceration and that, following the
slashing, 12 stitches were required to close the
victim’s wound. The Petitioner’s further claim that
his employee assistant was inadequate was also
rejected. Although the employee assistant was
unable to provide the Petitioner with either the
videotape of the incident or the unusual incident
report, the Hearing Officer obtained these items and
allowed the Petitioner to review them during the
hearing. In addition, the Hearing Officer located the
inmate in the cell in which the weapon was thrown
and he testified in the Petitioner's favor. Thus, any
alleged deficiency in the assistant’s inability to
procure the witness was resolved at the hearing.

Substantial Evidence: Inmate Guilty of Assault,
Notwithstanding Testimony of Victim to the
Contrary

Substantial Evidence: Inmate Guilty of “Falsely
Reporting An Emergency”

Matter of Vassell v. Goord 807 N.Y.S.2d 737
(3rd Dep’t 2006)
The Petitioner was charged with slashing
another inmate with a razor blade and then running
from the scene and throwing his weapon in another
inmate’s cell with instructions to flush it down the
toilet. After being found guilty in a Tier III hearing,
he filed an Article 78 proceeding. The Court held
that the hearing was supported by substantial
evidence in the form of the Misbehavior Report, the
testimony from a Correction Officer who witnessed
the incident, and documentary evidence. The
victim’s testimony, that the Petitioner was not his
assailant, was contradicted by the testimony of the
Correction Officer, who said he saw the Petitioner
“clear as day.” The conflicting testimony therefore
presented a credibility issue which the Hearing
Officer was free to resolve against the Petitioner.
The Petitioner's claim that the Hearing Officer erred
by failing to consider the medical report portion of

Matter of Winbush v.McGinnis 811 N.Y.S.2d 149
(3rd Dep’t 2006)
The Petitioner, an inmate, reported that he fell
out of bed and was experiencing chest pain. He told
the nurse who responded that he was dehydrated
because his water had been turned off. The nurse,
however, found no signs of dehydration or chest
pain. She therefore wrote a Misbehavior Report
charging the Petitioner with “falsely reporting an
emergency.” The Petitioner was found guilty of
these charges at a Tier II hearing. On appeal, the
Court found that the nurse’s Misbehavior Report
and testimony constituted sufficient evidence to
support the charge.

u

Page 14

Substantial Evidence: Weapon Found in Inmate’s
Cell Not Necessarily His
Matter of Fernandez v. Goord, 809 N.Y.S.2d 685
(3rd Dep’t 2006)
When Correction Officers searched the
Petitioner’s cell, acting on information received
from a confidential informant, they recovered a
sharpened plastic object concealed in his mattress.
Then, as the Petitioner was exiting the cell, he
allegedly attempted to strike one of the officers. As
a result, he was charged in a Misbehavior Report
with assault and possessing a weapon. He was
found guilty of both charges following a Tier III
hearing. On appeal, however, the Court dismissed
the weapons charge due to the “brief period of time
that the Petitioner was in control of his cell.”
Practice Pointer: This is an unusual result.
Typically, if contraband is found in an area which
you control, i.e., your cell, your locker, or your
cube, that will be considered sufficient evidence to
support a finding in a disciplinary hearing that the
contraband belonged to you. Here, however, the
Court emphasizes the “brief period” in which the
inmate occupied the cell. (Compare this case with
Diaz v. Goord, reported above, page 7, or See,
Ameen v. Selsky 807 N.Y.S.2d 318 [3rd Dep’t 2006]
also reported this quarter, in which the Court held
that the fact that a six-inch nail, taped at one end,
was found in the Petitioner’s locker, reasonably
supported an inference that it belonged to the
Petitioner.)
Timeliness of Hearing: An Untimely Extension
Doesn’t Invalidate This Hearing
Matter of Brooks v. Goord, 807 N.Y.S.2d 721
(3rd Dep’t 2006)
The Petitioner, an inmate, was found guilty in a
Tier III hearing of assaulting another inmate. He
challenged the hearing on the ground that it was not

Pro Se Vol. 16 No. 2 Spring 2006

concluded within 14 days. The Court rejected his
claim. Although the Hearing Officer’s request for
the extension was late, this was simply due to the
unavailability of clerical staff. In addition, the
hearing had been adjourned numerous times to
accommodate the Petitioner’s request for many
witnesses, and he did not object to the late
extension until all of his witnesses had testified and
the hearing was complete. Finally, the time
requirements within which to conclude a prison
disciplinary hearing are directory, not mandatory,
and the Petitioner was not prejudiced by the late
extension. There was, therefore, no basis for
disturbing the determination.
Witnesses: Recantation Merely Raises Issue of
Credibility
Matter of Vizcaino v. Selsky 808 N.Y.S.2d 825
(3rd Dep’t 2006)
By monitoring inmate telephone calls,
investigators with DOCS’ Inspector General’s
(“IG’s”) office learned that the Petitioner, an
inmate, was ordering narcotics from his brother to
supply to others in his correctional facility.
According to the IG, the inmate would tell his
brother to drop off a certain quantity of heroin
packaged in a particular manner to a person who
would then smuggle it into the facility. A
Misbehavior Report was premised on this
information, as well as on the fact that a woman
who had been caught smuggling heroin into the
facility admitted that she had obtained the heroin
from the Petitioner’s brother. At a Tier III hearing,
however, the woman recanted her testimony. The
Petitioner was nevertheless found guilty of
conspiring to introduce narcotics into the facility.
He subsequently challenged the hearing an Article
78 proceeding. Held: The Misbehavior Report,
together with the testimony of its author--the IG’s
investigator, and the confidential information
obtained directly by the Hearing Officer from

Pro Se Vol. 16 No. 2 Spring 2006

Page 15

another investigator, provided substantial evidence
of the Petitioner’s guilt. The fact that the woman
recanted her testimony at the hearing and testified
that she did not know either the Petitioner or his
brother merely created a question of credibility for
the Hearing Officer to resolve. The Hearing Officer
did not need to take additional steps to assess the
reliability of the confidential testimony, inasmuch
as he spoke directly to the investigator who had
personally monitored the Petitioner's conversations
with his brother. Finally, the Petitioner was not
denied the right to call witnesses: The Hearing
Officer obtained the testimony of all witnesses
requested by the Petitioner except that of the
Petitioner's brother. The Hearing Officer made
reasonable and substantial efforts to obtain the
testimony of the brother by making numerous,
unsuccessful attempts to contact him by telephone.

poor persons documents and fee. (See, CPLR
§ 1101[f]). He re-filed correctly on March 11, 2005.
The lower court dismissed his petition as untimely.
The Appellate Division affirmed. Because the
March 3, 2005 petition did not include the
mandated supporting documents and filing fee, it
was not filed on that date in a “valid form.” The
new filing, on March 11, was late, and had to be
dismissed.
Practice Pointer: If you are filing an Article 78
proceeding, try to file well in advance of the fourmonth deadline to avoid just the kinds of problems
that derailed this case. If you are unsure about the
procedure or what documents are required, request
Prisoners’ Legal Services handout, “How to File an
Article 78 Proceeding.”

Other State Cases

Jewish Inmate’s Request to Worship in an Area
Free of Other Religious Icons Mooted By Transfer

First Amendment; Religious Expression

Article 78 Proceedings: Statute of Limitations
Matter of Loper v. Selsky 810 N.Y.S.2d 525
(3rd Dep’t 2006)
An Article 78 proceeding must be commenced
within four months from the date the Petitioner
receives notice of the final administrative decision
on the action he is challenging. See, N.Y. Civil
Practice Law and Rules (“CPLR”) § 217. An
inmate’s petition is considered “commenced” on the
date the county clerk receives the petition “in valid
form”--not upon mailing the petition. See, Grant v.
Senkowski, 95 N.Y.2d 605 (2001).
In this case, the Petitioner, an inmate, received
notice of denial of his administrative appeal of a
disciplinary hearing on November 5, 2005. He filed
an Article 78 petition on March 3, 2005. However,
the petition was rejected by the Washington County
Clerk due to his failure to include the necessary

Matter of Parilla v. Donelli 807 N.Y.S.2d 488
(3rd Dep’t 2006)
The Petitioner filed a grievance requesting that
Jewish inmates be provided a place to worship
separate from inmates of other religions so as not to
be subjected to the symbols of other religions. The
grievance was granted in part, in that officials
agreed to cover Christian religious symbols during
Jewish ceremonies, but it was otherwise denied, in
that DOCS refused permission to hold services in
another room. The Petitioner then commenced an
Article 78 proceeding. The Court held that the
proceeding was made moot, however, by the
Petitioner’s transfer to a different facility where he
is able to attend Jewish services in a generalpurpose room that contains no permanent religious
icons.

Page 16

Inmate Receives no “Special Accommodations” to
Practice “Tulukeesh”
Matter of Allah (a/k/a Tyheem Yefya Keesh) v.
Goord 810 N.Y.S.2d 235 (3rd Dep’t 2006)
The Petitioner, an inmate, filed a grievance
seeking special accommodations to practice
“Tulukeesh,” a religion which he created. His
grievance was denied, except to the extent that he
was allowed to practice his religion in the privacy
of his own cell within established facility
operational procedures. On the Petitioner’s appeal,
the court affirmed DOCS’ decision. A review of the
record demonstrated that DOCS carefully
considered the Petitioner's requests for special
accommodations and responded in a reasonable and
appropriate manner. DOCS took no position in
acknowledging any particular religion, but advised
the Petitioner that, in accordance with facility
directives, his requests for a special dietary menu,
observance of self-created religious holidays, and
opportunities to hold congregational services and
other classes would be considered upon direction
from an approved outside cleric or spiritual adviser.
In the interim, the Petitioner was permitted to
practice his religion within his cell. The Court
found that this was neither arbitrary nor capricious.
Freedom of Information Law
Matter of Argentieri v. Goord, 807 N.Y.S.2d 445
(3rd Dep’t 2006)
Matter of John H. V. Goord 809 N.Y.S.2d 682
(3rd Dep’t 2006)
A pair of unfavorable Freedom of Information
Law (“FOIL”) decisions were decided this quarter,
both restricting the rights of inmates to obtain
information concerning investigations conducted by
the IG’s office of DOCS. The cases are
disappointing because they appear to limit a 2003
decision, Beyah v. Goord (766 N.Y.S.2d 222)

Pro Se Vol. 16 No. 2 Spring 2006

which seemed to expand those rights. In Beyah, the
Court held that various records associated with an
IG investigation, including employee accident
reports, employee interviews, the report of
complaint progress, index sheets, and receipt of
complaint documents, were disclosable under FOIL,
as were employee training records and a prison
directive pertaining to the maintenance of log
books.
In Argentieri v. Goord, an inmate’s mother had
filed a complaint with the IG’s office concerning a
Misbehavior Report received by the inmate. The
inmate’s mother alleged that the Misbehavior
Report was retaliatory. When the IG later found her
complaint unfounded, she sought the records of the
investigation. The Court rejected her request. It
followed the 1988 Court of Appeals decision in
Prisoners’ Legal Services v. DOCS, 73 N.Y.2d 26,
and held that the records sought were “personnel
records” under Civil Rights Law § 50-a(1), and
therefore exempt from disclosure. “Since practically
all of the documents sought by the Petitioner were
generated as a result of his mother’s complaint of
misconduct against Correction Officers,
Respondents properly denied access to certain
portions of the contents of the Inspector General’s
investigative file.” The Court distinguished Beyah
on the grounds that “that case involved employee
interviews relating to a prison inmate’s injury,”
whereas this case involved complaints of employee
misconduct, “the very types of documents that Civil
Rights Law § 50-a(1) was designed to protect.”
In Matter of John H., the Petitioner submitted a
FOIL request in November 2003, seeking
investigative reports, interviews, and related
documents generated in response to his allegation
that he was sexually assaulted by a Correction
Officer while incarcerated at Green Haven. DOCS
denied his request, as well as his administrative
appeal of that denial. He then commenced an CPLR
Article 78 proceeding challenging DOCS’
determination. The lower court granted the petition
and directed DOCS to disclose the relevant

Pro Se Vol. 16 No. 2 Spring 2006

documents, subject to redaction of any reference to
Correction Officers' home addresses, phone
numbers, Social Security numbers, dates of birth, or
other identifying information. The Appellate
Division, however, reversed. On reviewing the
documents in camera (in secret), the Court found
that their disclosure could “endanger the life or
safety of a person” and were therefore subject to
one of the exemptions from the disclosure
requirements of FOIL
Practice Pointer: New York’s Freedom of
Information Law can be found in the Public
Officer’s Law, at Section 87. It generally requires
all State agencies to make available for either
copying or inspection all records within the
agency’s possession unless the record falls into one
of several categories of exemptions. The four most
common exemptions are those which exempt from
disclosure documents which, if disclosed:
•

•

Page 17

•

i

statistical or factual tabulations or data;

ii. instructions to staff that affect the public; or
iii. final agency policy or determinations.
The statute also prohibits disclosure of
documents whose disclosure is specifically
prohibited by some other state or federal statute.
Civil Rights Law § 50-a(1) protects the
confidentiality of employee personnel records. In
Prisoners Legal Services v. DOCS, 73 N.Y.2d 26
(1988), the Court of Appeals held that complaints
made against Correction Officers by inmates were
personnel records under the Civil Rights Law, and
therefore were exempt from disclosure under FOIL.

would constitute an unwarranted invasion of
personal privacy;

Parole/Conditional Release

are compiled for law enforcement purposes and
which would:

Parole Board Reversed for Failing to Consider
Sentencing Court’s Recommendation

i. interfere with law enforcement
investigations or judicial proceedings;

McLaurin v. State Board of Parole, 812 N.Y.S.2d
122 (2d Dep’t 2006)

ii. deprive a person of a right to a fair trial or
impartial adjudication;

Executive Law § 259-i(2)(c)(A) requires the
Division of Parole to consider several specific
factors when determining whether to grant or deny
parole. Specifically, the statute states that the Board
of Parole must consider:

iii. identify a confidential source or disclose
confidential information relating to a
criminal investigation; or

(i)
iv. reveal criminal investigative techniques or
procedures, except routine techniques and
procedures”;
•

are inter-agency or intra-agency materials
[e.g., internal policy memos or discussions]
which are not:

could endanger the life or safety of any person;
or

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

Page 18

(ii)

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

(iii) release plans including community resources,
employment, education and training, and
support services available to the inmate;
(iv) any deportation order issued by the federal
government against the inmate while in the
custody of the Department of Correctional
Services and any recommendation regarding
deportation made by the commissioner of the
Department of Correctional Services pursuant
to § 147 of the Correction Law; and
(v)

any statement made to the board by the crime
victim or the victim's representative, where
the crime victim is deceased or is mentally or
physically incapacitated. It also requires that,
in most cases, the Board consider additional
factors listed in Executive Law § 259-i (1)(a).
These include the seriousness of the offense
with due consideration to the type of sentence,
length of sentence, and any recommendation
of the sentencing court.

Criminal Procedure Law § 380.70 provides that,
“in any case where a person receives an
indeterminate or determinate sentence of
imprisonment, a certified copy of the stenographic
minutes of the sentencing proceeding...must be
delivered to the person in charge of the institution
to which the defendant has been delivered.”
In McLaurin v. State Board of Parole, the Court
found that the Parole Board had failed to consider
the recommendations of the sentencing court. The
Board argued that minutes of the sentencing court
were unavailable at the time of the hearing, but the
Court found that this was no excuse, given the
requirements of Criminal Procedure Law § 380.70.
The Board argued that, even if it had erred in failing
to obtain the sentencing minutes, the case was now
moot because, since the hearing at issue in this case,

Pro Se Vol. 16 No. 2 Spring 2006

the Petitioner had received another hearing. But, the
Court found, “[S]ince it is [clear] from the
statements at oral argument that the Board still does
not have the [minutes of the sentencing hearing]
and thus has not considered them, this matter
presents an exception to the mootness doctrine
because the substantial issue presented is likely to
recur.” Therefore, the Court reversed the Board
decision and ordered that a new hearing, with the
sentencing minutes, be held within 30 days.
Parole Board Reversed for Failing to Consider
Statutory Criteria
Matter of Prout v. Dennison, 809 N.Y.S.2d 261
(3rd Dep’t, 2006)
The Petitioner in this case is serving a term of
15 years to life in prison after pleading guilty to
murder in the 2nd degree. In November 2003, after
25 years of incarceration, he made his sixth
appearance for release on parole. After a hearing,
the Board of Parole denied his request and ordered
him held for an additional 24 months.
As noted in the case reported above, Executive
Law § 259-i(2)(c)(A) contains several specific
criteria that the Board must consider in determining
whether to grant parole. It also states, more broadly:
“Discretionary release on parole shall not be
granted merely as a reward for good conduct or
efficient performance of duties while confined but
after considering if there is a reasonable probability
that, if such inmate is released, he will live and
remain at liberty without violating the law, and that
his release is not incompatible with the welfare of
society and will not so deprecate the seriousness of
his crime as to undermine respect for the law.”
In this case, the Board’s decision stated that
“discretionary release is contrary to the best interest
of the community ” and “is not appropriate, as this
deprived [ sic ] indifference to life is not consistent
with community standards and interests, and release
would not serve society ” At issue was whether this

Pro Se Vol. 16 No. 2 Spring 2006

“nonstatutory, conclusory” language reflected
adequate consideration of the statutory criteria.
The Court held that it did not. “The Board's
terse decision,” wrote the Court, “lacking any
analysis of statutory and regulatory criteria makes
it impossible for this Court to give meaning to the
language used by the Board.” Because the Board’s
decision contained no explanation of how or
whether it was related to the statutory factors, the
Court was “left to speculate as to whether the Board
imposed a higher standard for release--to wit, that
the Petitioner had some burden to demonstrate that
his release would somehow enhance society.”
Consequently, the Court reversed the decision.
One judge dissented. He noted that, “[t]here is
no requirement that the Board discuss all of the
statutory factors in its written determination, as long
the ‘appropriate factors [are] discussed and
considered’ at the parole hearing” and that “the
Board [is not] required to give each statutory factor
equal weight.” Moreover, the dissent wrote, “in
reviewing challenges to a Board determination,
courts are not limited solely to its decision, but can
consider as well the transcript of the entire hearing
to determine whether the proper statutory factors
were considered.”
In this case, the dissent found, “the Board made
a proper inquiry into the Petitioner's institutional
record and release plans, as well as the heinous
nature of the crime” and “the language employed by
the Board reasonably comports with the standards
governing parole release.” “[T]he Board is not
required to literally conform its decision to the
language outlined in the statute.”
Imposition of ‘Special Conditions’ Prevents
Inmate’s Conditional Release
Matter of Breeden v. Donnelli, 808 N.Y.S.2d 839
(3rd Dep’t 2006)
The Petitioner, who is incarcerated for a sex
offense, was not released on his conditional release

Page 19

date due to his failure to fulfill a ‘special condition’
of the Parole Board that he secure a “suitable
residence.” The Court here rejected his claim that
he has a right to be conditionally released. The
Board is authorized to impose special conditions
which must be satisfied prior to an inmate’s release
from prison, the Court notes, citing Executive Law
§ § 259-c9(2), 259-g, and Matter of Wright v.
Travis, 746 N.Y.S.2d 850. The only question that
may be addressed by the Court is whether the
conditions imposed by the Board are rational.
Where, as here, the Court held, the inmate has a
history of multiple sex offenses and has previously
violated parole, a condition requiring that he secure
an approved residence prior to his release is
rational.
Programs
Assignment to Sex Offender Counseling Was Not
‘Arbitrary and Capricious’
Matter of Matos v. Goord, 811 N.Y.S.2d 480
(3rd Dep’t 2006)
The Petitioner in this case pled guilty to robbery
in the first degree in satisfaction of a multi-count
indictment and was sentenced to 15 years in prison.
As part of his incarceration, it was recommended
that he participate in the Sex Offender Counseling
Program (hereinafter, “SOCP”). The Petitioner
questioned the recommendation on the ground that
he was not convicted of a sex offense. The Deputy
Commissioner of Programs informed him that the
recommendation was appropriate based upon the
circumstances of his offense and the facts contained
in the pre-sentence investigation report. The
Petitioner filed a grievance in connection with the
matter, which was ultimately denied by the CORC.
He then commenced an Article 78 proceeding to
challenge the determination. The Court upheld the
recommendation. “In order to prevail,” the Court
wrote, “the Petitioner [would have to] demonstrate

Page 20

that the administrative determinations at issue are
arbitrary and capricious or are without a rational
basis.” DOCS’ regulations state that persons who
are not convicted of sex offenses may be eligible to
participate in SOCP if “there is evidence that a sex
crime or the attempt to commit a sex crime did
occur in the course of the instant offense and as
documented in the Pre-Sentence Report or other
related documents.” In this case, the Petitioner’s
Pre-Sentence Report indicated that he had displayed
a razor while committing the robbery and forced the
female victim into her car where he fondled her
breasts and demanded that she perform oral sex on
him. Consequently, the Court held, the referral to
the SOCP was rational. The Court did note that “the
Petitioner cannot be compelled to attend the
program,” however his refusal “may have
potentially adverse effects on such matters as his
eligibility for parole and participation in the family
reunion program.
Good Time Withheld For Failure to Complete Sex
Offender Program
Matter of Edwards v. Goord 808 N.Y.S.2d 841
(3rd Dep’t 2006)
The Petitioner, an inmate serving a sentence for
several sex offenses, initially saw a Time
Allowance Committee at Attica, which
recommended no loss of good time. He was then
transferred to Gowanda, which conducted an
independent review of the Petitioner’s record and
recommended that five years and eight months of
good time be withheld based upon the Petitioner’s
“persistent refusal to participate in a sex offender
program.” Upon the Petitioner’s appeal, the Court
affirmed this decision.“It is well established that
‘[g]ood behavior allowances are in the nature of a
privilege…and no inmate has the right to demand or
to require that any good behavior allowance be
granted to him [or her],’” wrote the Court, citing 7
N.Y.C.R.R. 260.2. “The determination to withhold

Pro Se Vol. 16 No. 2 Spring 2006

a good time allowance is discretionary in nature
and, as long as it is made in accordance with the
law, it will not be subject to judicial review. Here,
the record evidence demonstrates that the
Petitioner, on more than one occasion, refused to
participate in a recommended sex offender program.
Such refusals provided a rational basis for the
withholding of the Petitioner's good time
allowance.”
Visitation
Lack of Standing to Challenge Visitation Denial
Matter of Grigger v. Goord, 811 N.Y.S.2d 161
(3rd Dep’t 2006)
When the Petitioner’s mother went to visit the
Petitioner, an inmate, she was denied entry to the
correctional facility after she tested positive for
contact with cocaine on an ion scanner used to
screen visitors. The Petitioner filed a grievance as
a result, which was ultimately denied by DOCS’
CORC. He then commenced an Article 78
proceeding, but the Court held that he lacked
standing--that is, he lacked grounds to sue on his
mother’s behalf. The Court explained: Prison
inmates do not have a right to visitation that is
protected by the federal or state constitution (citing,
Matter of Encarnacion v. Goord, 778 N.Y.S.2d 562
[2004] which in turn cites the Supreme Court case
Kentucky v. Thompson 490 U.S. 454 [1989]). The
“privilege” of visitation, the Court stated, is
afforded only by DOCS regulations and can be
restricted as described in 7 N.Y.C.R.R Part 200.5.
Both visitors and inmates have the right to
administrative and judicial review of a restriction to
ensure that it complies with their regulatory rights,
but the basis for standing to seek judicial review of
such a restriction is an injury “in fact” caused by the
action or policy in question.
The Court held that the Petitioner could not
claim standing based upon his loss of visitation

Pro Se Vol. 16 No. 2 Spring 2006

privileges with his mother because it was her ability
to visit, rather than his privilege of receiving her as
a visitor, that was restricted after the ion scanner
found traces of cocaine on her person Although, the
Court held, he was “indirectly” affected by that
incident, he cited “no actual or reasonably probable
occasion when use of the scanner has or will
deprive him of his own visitation privileges.” In the
absence of a qualifying injury, he had failed to
establish his standing to challenge the use of the ion
scanner.
Practice Pointer: The Court arguably goes too
far in asserting that inmates have no right to
visitation that is protected by the federal
constitution. The case it cites for this proposition-Matter of Encarnacion v. Goord, 778 N.Y.S.2d 562
(2004)--contains no discussion of the issue, but
merely cites the 1989 Supreme Court case,
Kentucky v. Thompson (490 U.S. 454). In Kentucky,
the Court held that the constitution did not provide
a right to “unfettered” visitation and it held that
certain regulations of the Kentucky Department of
Corrections did not create a federally enforceable
right, but it did not hold that inmates had no
constitutional right to visitation. In Overton v.
Bazetta, 539 U.S. 126 (2003), the Supreme Court’s
most recent examination of inmate’s visitation
rights, the Court specifically noted that the
Constitution protects “certain kinds of highly
personal relationships” and that “outside the
prison context, there is some discussion in our
cases of a right to maintain certain familial
relationships, including association among
members of an immediate family and association
between grandchildren and grandparents.”
Although the Court went on to note that “freedom
of association is among the rights least compatible
with incarceration” and that “some curtailment of
that freedom must be expected in the prison
context”--and, it ultimately upheld the highly
restrictive visitation regulations at issue in that
case--it also stated: “We do not hold, and we do not
imply, that any right to intimate association is

Page 21

altogether terminated by incarceration or is always
irrelevant to claims made by prisoners.”
Court of Claims
DOCS’ Refusal to Place Inmate in Protective
Custody Insufficient to Show DOCS’ At Fault
When Inmate Was Later Assaulted
Matter of DiDonato v. State of New York, 807
N.Y.S.2d 456 (3rd Dep’t 2006)
The Claimant, an inmate, sought protective
custody at Elmira. DOCS denied his request after
officials determined that his concerns related to an
incident at Sing Sing (allegedly concerning a debt
the claimant owed to other inmates for narcotics).
DOCS concluded that there was no basis for his
assertion that he was at any heightened risk of being
assaulted at Elmira. Over a year later, while still
incarcerated at Elmira, the Claimant was assaulted-his face was cut--by another inmate who was never
identified. He then sued DOCS in the Court of
Claims, claiming that DOCS’ had failed in its duty
to protect him. The case went to trial.
At trial, there was testimony showing that gangs
had a significant presence at Elmira and that cutting
someone in the manner which the Claimant was cut
was an initiation ritual used by the particular gang
from which the Claimant had sought protection. On
the other hand, there was also testimony suggesting
that assaults like the one perpetrated on the
Claimant occur for a variety of non-gang-related
reasons too. There was no evidence, however,
linking the Claimant’s unknown assailant to any
gang and there was no evidence to support the
Claimant’s contention that he was at special risk for
an attack by a member of a gang at Elmira--beyond
what the Court describes as his “unsupported claim
that the 1996 Sing Sing incident was gang-related.”
Under the circumstances, the Court finds, and
“affording due deference to the credibility
determinations made by the Court of Claims, we

Page 22

Pro Se Vol. 16 No. 2 Spring 2006

agree…that this evidence is insufficient to sustain
Claimant's contention that the assault was the
foreseeable result of any breach of duty on
[DOCS’] part.”
Practice Pointer: The bar for winning a claim
that DOCS’ failed in its duty to protect you against
an assault by another inmate is set quite high.
Although“the State owes a duty of care to
safeguard inmates, even from attacks by fellow
inmates,” that duty does not “render the State an
insurer of inmate safety.” Rather, the State's duty is
merely to protect inmates from risks of harm that
are “reasonably foreseeable.” The mere
occurrence of an inmate assault, without credible
evidence that the assault was reasonably
foreseeable by DOCS, cannot establish negligence.
See, Sanchez v. State of New York, 754 N.Y.S.2d
621. In practice, this standard has often meant that
an inmate/victim must present proof that either:
1) DOCS had notice that an assault was likely to
occur and failed to act;
2) DOCS had notice that the assailant was
particularly likely to perpetrate an assault and
failed to take precautionary measures; or
3) that the victim was known to be at a heightened
risk and DOCS failed to provide reasonable
protections.
PRO SE PRACTICE

Consecutive Sentences and People v. Richardson
Many inmates write to Prisoners’ Legal
Services with questions about the way DOCS has
calculated their sentence. One of the most common
questions concerns consecutive sentences and,
specifically, whether their new sentence should be
running consecutively to time owed on a previous
sentence. The 2003 Court of Appeals decision in

People v. Richardson, 100 N.Y.2d 847, has been a
particular source of confusion. This article attempts
to address some of the common questions and
misconceptions about consecutive sentences, and
clarify some of the confusion caused by People v.
Richardson.
The place to start is with Penal Law § 70.25.
That statute contains the basic rules which
determine whether a sentence shall run concurrently
or consecutively to a previously-imposed sentence.
Penal Law § 70.25(1) states that when a
sentencing court imposes a new sentence on a
person still subject to a previously-imposed
sentence, the sentencing court has the choice to run
the new sentence either concurrently or
consecutively. The statute then goes on to say that
if the sentencing court fails to specify how the
sentences should run, “they shall run concurrently.”
Many inmates have read this language and
argued that, because their sentencing judge failed to
specify how their new sentence should run with
respect to some previously imposed sentence, the
sentences must be run concurrently and DOCS, in
running them consecutively, is violating the law.
In most such cases, however, the inmate is
mistaken.
That is because Penal Law § 70.25(2-a) contains
a broad exception to the rule in Penal Law
§ 70.25(1) for persons convicted as predicate
felons. That statute states that when a sentence is
imposed pursuant to one of several statutes
concerning second or persistent felony offenders-specifically, Penal Law § § 70.04, 70.06, 70.08,
70.10, 70.70[3] and [4], and 70.71[3] and [4]--the
court must impose a consecutive sentence.
The courts have interpreted this to mean that if
you were sentenced as a second or persistent felony
offender under one of the specified statutes, DOCS
must calculate your new sentence or sentences as
running consecutively to any previously imposed
sentence--even if the sentencing court failed to
specify that it was imposing a consecutive sentence.

Pro Se Vol. 16 No. 2 Spring 2006

For example, in Matter of El Aziz v. Goord, 811
N.Y.S.2d 181 (3rd Dep’t 2006) an inmate,
convicted in 1968 of numerous felonies, was
convicted of several more felonies while on parole
in 1985 and was sentenced to a term of 25 to 50
years. He argued that his 1985 sentence should run
concurrently with the time left on his 1968
sentences because the sentencing court had failed to
specify how they should run. The Court held,
however, that since the Petitioner was sentenced in
1985 as a second felony offender under Penal Law
§ 70.06, Penal Law § 70.25(2-a) required that the
1985 sentence run consecutively to the unexpired
portion of his 1968 sentence, regardless of the fact
that the sentencing court had failed to specify as
much.
So what happened in People v. Richardson?
Why has that case caused such confusion?
In Richardson, the Defendant was on parole for
a 1979 conviction of murder in the 2nd degree
when, in 1995, he was convicted of several more
counts of murder in the 2nd degree. The sentencing
court imposed a number of sentences for the 1995
charges but it failed to specify how the new
sentences should run with respect to the 1979
sentence. When he was returned to DOCS, DOCS
calculated the new sentences as if they were
concurrent to, not consecutive to, the 1979
sentence. When the sentencing court learned of
DOCS’ calculation, it issued a new commitment
order, specifying that it had intended that the new
sentences run consecutively to the time owed on the
1979 sentences, not concurrently. On appeal, the
Court of Appeals held that the sentencing court’s
action amounted to re-sentencing the Defendant, in
violation of Criminal Procedure Law § 430.10 and
that, because the court failed to specify how the
new sentences were to run with respect to the 1979
sentence they must, under Penal Law § 70.25(1),
run concurrently.
Since Richardson, many inmates have argued
that their sentences, like Richardson’s too, must run
concurrently with their prior sentences, because

Page 23

their sentencing judge, like Richardson’s, failed to
specify how the sentences should run. In essence,
these inmates argue, Richardson overrules the many
decisions, such as El-Aziz, that hold that second or
predicate felony sentences are automatically
consecutive to any previous sentence.
What this argument overlooks is that there is an
important distinction between Richardson and cases
such as El-Aiziz. Specifically, the Defendant in
Richardson was convicted of an “A-1” felony. Class
A-1 felony sentences are imposed pursuant to Penal
Law § 70.00, and are not subject to the predicate
felony provisions of §§ 70.04, 70.06, 70.08, or
70.10. Therefore, the “mandatory consecutive”
provisions of Penal Law § 70.25(2-a) do not apply
to A-I sentences. Penal Law § 70.25(1) does apply.
If the sentencing court fails to specify how A-I
sentences shall run, they must run concurrently.
Richardson, in other words, avoided the
automatic imposition of a consecutive sentence
because he was convicted of an A-1 felony. The
large majority of inmates with predicate
convictions, however, are not convicted of A-1
felonies. In those cases, the general rule remains;
Penal Law § 70.25(2-a) applies. The sentences must
run consecutively as a matter of law--whether or not
the sentencing court specified as much.
New York’s Discretionary Persistent Felony
Offender Law: Still Constitutional
In the Winter 2005 issue of Pro Se, we wrote
that the New York State Court of Appeals had
granted leave applications in several criminal
appeals challenging the constitutionality of the
state’s discretionary persistent felony offender law,
Penal Law § 70.10, and that several district courts
had recently ruled that the New York Court of
Appeals’ 2001 decision in People v. Rosen, holding
that the law was constitutional, was an unreasonable
application of a clearly established Supreme Court
precedent. We promised to update our readers when
the decisions were issued in the cases that were then

Page 24

pending before the New York Court of Appeals. In
this article, we review the history of challenges to
the constitutionality of the discretionary persistent
felony offender law and report on recent
developments in this area of the law.
Penal Law § 70.10 defines a “persistent felony
offender” as a person who stands convicted of a
felony after having been previously convicted of
two or more felonies. It states that such persons
may be sentenced as an A-1 felony offender “if the
court is of the opinion that the history and character
of the defendant, and the nature and circumstances
of his criminal conduct indicate that extended
incarceration and life time supervision will best
serve the public interest.” It thus allows the court to
impose a life sentence on a defendant if the
defendant has been convicted of two prior nonviolent felonies (or one non-violent and one violent
felony conviction). For example, under the statute,
the court could impose a life sentence on a
defendant who has been convicted of a class E
felony and has two prior class E felony convictions,
even though the statutory maximum for a class E
non-violent crime would otherwise be in the range
of three to five years. See, P.L. § 70.06(3)(e).
In 2000, the United States Supreme Court
reviewed a New Jersey statute requiring a judge to
impose a longer sentence if the judge found, by a
preponderance of the evidence, that the defendant
had committed a hate crime. The Court held that the
statute violated the defendant’s due process rights
because it allowed the Court, rather than the jury, to
decide whether certain facts existed--in that case,
whether the crime was a hate crime--and because it
permitted the prosecution to prove those facts by
only a preponderance of the evidence, rather than
“beyond reasonable doubt.” Apprendi v. New
Jersey, 530 U.S. 466, 469 (2000).
Defendants in New York quickly began to
challenge New York’s persistent felony offender
statute under Apprendi, arguing that, just like the
New Jersey statute at issue in Apprendi, the
persistent felony offender statute allowed the court,

Pro Se Vol. 16 No. 2 Spring 2006

rather than a jury, to decide critical facts-specifically, whether the defendants’ “history and
character” warranted a life sentence--which could
result in a greater sentence.
The first “Apprendi” challenge to New York’s
discretionary persistent felony offender statute to
reach the Court of Appeals resulted in a finding that
the statute was constitutional. People v. Rosen, 96
N.Y.2d 329 (2001). Under the Court’s reading of
the statute, the only fact that a judge was required to
find prior to sentencing a defendant as a persistent
felony offender was whether the defendant had
previously been convicted of two felonies. The
Court distinguished the statute at issue in Apprendi
from New York’s discretionary persistent statute by
saying that the New Jersey statute required specific
fact finding, i.e., whether the crime was racially
motivated, while the New York statute only
requires a finding that is in keeping with the
sentencing functions of the court, i.e., whether an
extended period of incarceration and lifetime
supervision are in the public interest. Thus, the
Court reasoned, PL § 70.10 was not among the
statutes that the Supreme Court had found to be
unconstitutional in Apprendi.
Subsequently, however, two federal district
courts held that the Court of Appeals had
unreasonably applied Supreme Court precedent, and
ruled that application of the law established by
Apprendi v. New Jersey to PL § 70.10 must result
in a finding that the statute is unconstitutional. See,
Brown v. Greiner, 258 F.Supp.2d 68 (E.D.N.Y.
2003); Rosen v. Walsh, 02 CIV 7782 (S.D.N.Y.
7/17/03). Then, in 2004, three years after it had
issued its decision in People v. Rosen, the New
York Court of Appeals granted leave petitions in
several cases challenging the constitutionality of the
statute, suggesting an interest in re-examining its
decision in Rosen.
Since the publication of our earlier article, both
the Second Circuit Court of Appeals [Second
Circuit] and the New York State Court of Appeals
[Court of Appeals] have issued additional decisions

Pro Se Vol. 16 No. 2 Spring 2006

in response to defense challenges to the
constitutionality of New York’s discretionary
persistent felony offender law. In the Court of
Appeals case, People v. Rivera, 5 N.Y.3d 61, 800
N.Y.S.2d 51 (2005), the Court held that PL § 70.10
bases sentencing solely on the fact that the
defendant has a least two prior felony convictions-a matter of record--and thus does not involve the
kind of judicial fact-finding that the Supreme Court
found to be unconstitutional in Apprendi. Two
judges, Judith Kaye and Carmen Ciparick,
dissented. Judges Kaye and Ciparick found that the
statute requires the sentencing court to find more
than prior convictions before it imposes an
enhanced sentence. Judge Ciparick wrote, “Where
a statute, like ours, considers facts beyond
recidivism that were neither proven to the jury
beyond a reasonable doubt nor admitted by a
defendant for the purpose of enhancing a sentence
beyond the statutory maximum, then that statute
runs counter to the United States Supreme Court’s
current interpretation of the Sixth Amendment.”
Judge Ciparick’s analysis was not accepted by a
majority on the Court.
The Second Circuit, meanwhile, in Brown v.
Greiner and Rosen v. Walsh, overruled the prior
decisions of the district courts and held that the
New York Court of Appeals had not erred in People

Page 25

v. Rosen, when it held that the persistent felony
offender law was not unconstitutional under
Apprendi. The Court found that it was not
unreasonable for the New York Court to have
concluded that the persistent felony offender
statute, which requires the sentencing judge to
determine whether enhanced sentencing would best
serve the public interest in addition to conviction of
two prior felonies, involves fact finding that is not
similar to the fact finding required by the statute at
issue in Apprendi, in which the judge had to
determine whether the defendant’s crime was
racially motivated.
The net result of all this litigation is that New
York’s persistent felony offender law is still
constitutional. That is not necessarily the end of the
matter, however. Since the Court of Appeals’
decision in People v. Rosen, the U.S. Supreme
Court has issued several other decisions interpreting
and refining its Apprendi decision. See, for
example, United States v. Booker, 125 S.Ct. 738
(2005); Blakely v. Washington, 124 S.Ct. 2531
(2004); Ring v. Arizona, 536 U.S. 584 (2002).
There are presently several habeas cases in the
district courts challenging whether the New York
State decisions that were issued after the Supreme
Court handed down Booker, Blakely, and Ring
were contrary to these new decisions.

Page 26

Pro Se Vol. 16 No. 2 Spring 2006

COMMENTARY
On Sex Offender Hysteria
by
Jonathan E. Gradess, Executive Director
New York State Defenders’ Association
Politics, Not Policy-Making, is Driving Civil Commitment
In the last year the Legislature passed a bill that forbids certain sex offenders from being
present within 1000 feet of a school. The effect of this bill is to make thousands of men pariahs
in their own communities. It will force them into the gray outskirts of metropolitan areas where,
further marginalized, they will be forced underground, unable to travel freely. Then, but a few
months ago, yielding to the political attractiveness of the idea, the Legislature made all level
2 and 3 sex offenders register for life on the Sex Offender Registry. We can tell the politicians
are polling on this issue because they are not looking for strategies that make sense or are
effective and reformative. Sex offenders are the new lepers; the Legislature is dithering over
civil commitment in the same way Hawaii dithered over making Molokai a prison for lepers 150
years ago.
Sexual abuse treatment providers, advocates opposing sexual assault, mental health
providers, the families of the mentally ill, families of sex offenders, and the legal and civil
liberties communities all believe civil commitment of dangerous sex offenders is a misguided
policy. Why then have both houses of the State Legislature passed competing draconian civil
commitment bills? Answer: November 7, 2006—Election Day. It is election-year polling on the
electoral problem of sex offenders, not policy making about the problem of sex offenders,
driving this ill-founded idea in Albany.
Civil Commitment Erodes Rather Than Promotes Safety
Sexual abuse treatment professionals believe that the best way to treat sex offenders is to
prevent their behavior, closely monitor them in the community, and provide meaningful,
ongoing treatment. Up against this common sense proposition are the politicians. They like to
say sex offenders have high recidivism rates, can’t be treated, and must be locked up to protect
the public. The truth is the majority of sex offenses involve people who know or are related to
each other and the offenders are never even arrested. Many sex offenses occur between family
members; in such cases the threat of civil commitment may actually run the risk of causing
victims not to report crimes for fear of the lifetime civil commitment of those family members.

Pro Se Vol. 16 No. 2 Spring 2006

Proposals Based on Myths, Overreaching, and Fiscal Irresponsibility
It is a myth that sex offenders cannot be rehabilitated. Sex offenders represent a wide range
of behaviors, many of which are successfully treated. Contrary to popular mythology, the reoffense rates for sex offenders are substantially lower than the rates for many other offenders,
lower than that of persons convicted of robbery, burglary, car theft, and weapons offenses, and
among the lowest recidivism rates of criminal offendersgenerally. Success has been demonstrated
with intensive community treatment in those states that have a multidisciplinary, aggressive
system of monitoring, supervision and treatment.
The majority of American states--8 percent--do not have civil commitment laws. Yet touting
the “national move toward these laws” (i.e., a minority of 16 states, 2 of which are retreating
from the idea already), New York’s Governor and Legislature have proposed the broadest and
most expensive civil commitment law in the country. The Assembly and Senate bills are both
so broad they encompass statutory rape, youthful sexual experimentation, and behaviors that are
not likely to be repeated. Unless these bills are more carefully limited, they potentially threaten
the lifetime incarceration of thousands of people.
The incarceration of sex offenders in a specialized facility, where treatment, according to the
Governor, will cost $200,000 per year per offender, is a waste of money. People who have
sexually offended should be monitored and treated along a continuum of care that includes
treatment in the community, treatment in prison, and treatment on parole in the community. Sex
offender experts say that the group most talked about--“dangerous sexual predators”--is the least
amenable to treatment. Yet in the six Conference Committee hearings held so far to “resolve
differences between the Assembly and Senate bills,” the proponents of lifetime commitment for
“dangerous sexual predators” will have none of this truth. Each house outdoes itself urging how
little their members know about treating sex offenders and how much each should be willing to
spend on this rogue idea, how critical this bill is, and how important—in an election year—public
safety is to each of them.
With only eight months left to election, both houses would do well to recognize that even
people who want civil commitment and the enhanced treatment of sex offenders find these bills
conceptually defective. While the Assembly bill moves toward treatment goals, neither bill
assures professionalism in treatment decisions. In the Governor’s bill the decision to seek
commitment is left exclusively in the hands of law enforcement, while in the Assembly bill law
enforcement can override the medical decision recommending against civil commitment. Why
the Legislature fears leaving the decision in the hands of professionals can be explained by the
power of the tabloids and the banner they carry for this unwise legislation. Far broader than their
rhetoric, these bills which pretend to cover only a “small handful of dangerous offenders”
actually cover every felony sex offense in the Penal Law.
Even if the bill worked right it would be wrong. Isolating a small handful of generally
untreatable people in an expensive facility where they will be held for life on the theory they
must be treated skews precious, limited resources that should otherwise be available for treatment
of a broader category of sex offenders.

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Pro Se Vol. 16 No. 2 Spring 2006

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EDITORS: JOEL LANDAU; KAREN MURTAGH-MONKS
COPY EDITING: FRANCES GOLDBERG
CONTRIBUTORS: SUSAN JOHNSON; STACY GRACZYK;
BETSY HUTCHINGS; JONATHAN GRADDESS
PRODUCTION: FRANCES GOLDBERG
DISTRIBUTION: BETH HARDESTY
EXECUTIVE DIRECTOR: SUSAN JOHNSON

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