Vol. 17, No. 2; Spring 2007 Published by Prisoners’ Legal Services of New York

LANDMARK SETTLEMENT DECREASES SHU
TIME, INCREASES TREATMENT OF PRISONERS
WITH SERIOUS MENTAL ILLNESS
After five years of litigation and two weeks of
trial, the Department of Correctional Services
(“DOCS”) and the Office of Mental Health (“OMH”)
have agreed to settle a lawsuit in exchange for major
improvements in psychiatric treatment for New York
State prisoners with mental illness.
The lawsuit, Disability Advocates, Inc. v. New
York State Office of Mental Health and Department
of Correctional Services, alleged that mentally ill
prisoners throughout New York did not get needed
treatment and that many were instead punished with
lengthy stays in Special Housing Units (“SHU”) or
keeplock, where they suffered severe psychiatric
deterioration, including acts of self-mutilation and
even suicide.
The settlement requires that DOCS provide
prisoners with serious mental illness who are confined
in SHU a minimum of two hours per day of out-ofcell treatment and prisoners in the Residential Mental
Health Units (“RMHU”) receive as many as four
hours, in addition to one hour of recreation.
Other provisions call for multiple reviews of the
disciplinary sentences of prisoners with serious mental
illness for the following purposes: removing them
from SHU and other isolated confinement settings;
setting limits on the punishment of prisoners with

mental illness who hurt themselves because of their
illness; setting limits on the use of the “restricted
diet,” (i.e., a loaf made from bread and
…article continued on Page 4

Also Inside…
Persistent Felony Offender
Sentences:
Unconstitutional? . . . . . . . . page 7
Mental Health in
A Disciplinary Hearing . . . . page 20
Post-Release Supervision:
An Update . . . . . . . . . . . . . . page 23
Subscribe to Pro Se! See back page for details

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

Vol. 17, No. 2; Spring 2007

DEATHS IN THE FAMILY
A Letter From Susan Johnson, Executive Director
This issue of Pro Se celebrates the lives, and mourns the passing, of two persons who
were important members of the extended PLS family.
Judy M. worked for PLS for more than thirty years--longer than anyone. Throughout that
time, her commitment to and compassion for the men and women we serve never flagged.
Judy had an enduring sense of justified anger at the indignities and unfairness inmates often
face. Her commitment to our work survived severe budget cuts and even years without
funding. But Judy never gave up. Instead, she was determined to work for PLS for as long
as physically possible. Judy especially valued the small services PLS provides inmates on
a daily basis. While she understood the importance of litigation and class action lawsuits, she
believed that litigation was not the only way to serve our clients. Judy knew better than
anyone that PLS lacks the resources to represent every inmate who requests assistance.
Nonetheless, she tried to provide every inmate who contacted our office a personalized
response geared toward addressing the inmate’s concern; and, if a phone call could solve an
inmate’s problem, Judy would not hesitate to pick up the telephone. Toward that end, Judy
worked hard to nurture relationships with those at DOCS who performed their jobs
professionally and without a bias against inmates. When necessary, Judy would call upon
these people to help her obtain the services to which inmates are entitled.
We will mostly miss Judy for her wry sense of humor and easy-going nature. Her humor
was just as infectious as her commitment to our clients.
Those of us who knew Judy well knew just how deeply she loved her husband and how
devoted she was to her children and grandchildren. There is no question that the joy and love
she gained from her family fueled her energy for the often challenging work of PLS.
Judy felt that Pro Se is one of the most important services PLS provides inmates. Thus,
it was not surprising that in cleaning out Judy’s office after her death, we discovered that she
had saved nearly every edition of Pro Se. She scrutinized each edition after its publication
for new information to send inmates or for better responses to questions that our office
regularly receives from inmates. We felt that it would be appropriate, therefore, to honor
Judy’s memory and her commitment to PLS by publishing this edition of Pro Se in her
honor.

WX

Vol. 17, No. 2; Spring 2007

Page 3

WX
Michele Maxian, a brilliant lawyer with tireless energy who never ceased to fight for her
clients, died in November 2006 of ovarian cancer at the age of 55.
Michele is best known for the litigation bearing her name that resulted in a ruling by the
New York Court of Appeals requiring police to bring suspects before a judge for
arraignment within 24 hours of arrest. The case, People ex rel. Maxian on behalf of
Roundtree v. Brown, illustrated her creative determination to resolve a problem. It resulted
from daily habeas corpus petitions Michele filed on behalf of 9,000 people arrested in New
York City without warrants between January 13 and April 20, 1990. In each case filed, she
asked just one question: “Why haven’t you released these people yet?”
She began her career as an attorney with the Legal Aid Society and rose to become the
Attorney-in-Charge of the Criminal Defense Division. Michele led the Society’s Special
Litigation Unit from 1988 to 1998, and returned to that position in 2002. There, she litigated
a variety of civil rights issues on behalf of criminal defendants, including cases that
guaranteed the privacy of attorney-client interviews for prisoners, and improved the
conditions under which newly-arrested persons were held while awaiting arraignment. In
2004, she successfully challenged the City’s prolonged detention of protestors arrested
during the Republican National Convention.
Michele once described her love for criminal defense work, “the ultimate issue involved-whether someone is in jail or free--is the most important issue that any lawyer can handle.”
Her last client, for whom she won a prison disciplinary issue, wrote in a letter, “I am writing
to say thank you, because you’re the best lawyer I ever had and I wish you had my criminal
case.”
Michele was a woman of creativity, compassion, vision, and ceaseless determination to
correct injustice. Her passion to fight for the freedom of her clients helped many. She is
greatly missed by all of us who knew her and who had the good fortune to work with her.

WXWXWXWX

Page 4

Vol. 17, No. 2; Spring 2007

…article continued from Page 1

cabbage) as a punishment for misconduct by
mentally ill inmates; eliminating isolated
confinement of prisoners with serious mental illness
in cells that have solid steel doors that severely
isolate and restrict communication; and improving
suicide prevention assessments to be required upon
admission to the SHU.
The settlement also requires DOCS and OMH to
provide increased mental health treatment,
including:

T 405 new residential program beds for prisoners
with serious mental illness (in addition to 310
residential mental health programs beds which
the state instituted after the litigation
commenced);
T 215 “Transitional Intermediate Care Program”
beds for prisoners with mental illness in general
population;
T 90 additional Intermediate Care Program beds
for prisoners with mental illness who cannot
tolerate the prison general population;
T A 100-bed RMHU, which will provide four
hours per day of out-of-cell programming for
prisoners with serious mental illness who would
otherwise be in SHU;
T An additional 20 psychiatric hospital beds for
prisoners in need of acute care; and
T Universal and improved mental health screening
of all prisoners at admission to prison.
The settlement’s provisions for the review and
reduction of disciplinary sentences of inmates with
serious mental illness include the following:

¼ A One-Time Review of Previously-Imposed
SHU Time: In order to address the historical
accumulation of large SHU sentences and meet
the goal of reducing the time inmates with
mental illness are housed in restrictive
environments, the settlement requires that all
inmates with serious mental illness have their

SHU sentences reviewed by central office
staff (OMH and DOCS personnel appointed
by the Commissioners) for diversion from
SHU and for SHU time cuts.

¼ Automatic Review of New SHU Sentences: All
disciplinary determinations will automatically
be reviewed by the Superintendent and OMH if
mental health is at issue in a disciplinary
hearing and an inmate receives a SHU sanction
of greater than 60 days or an accumulation of
120 days or longer of SHU or keeplock
confinement.
¼ Time Cuts: At least once every three months,
inmates will have their SHU time reviewed for
possible time cuts by a Case Management
Committee (“CMC”) composed of DOCS and
OMH staff.
¼ Case Management Committees (CMC)
Expansion: These committees currently exist in
Level One OMH facilities for the purpose of
monitoring and making recommendations for
time cuts, privileges, and mental health
treatment for inmates in SHU. Under the
settlement agreement, all OMH Level Two
facilities will now have CMCs. Inmates in
keeplock housing units serving more than 60
days of confinement time will also be subject to
CMC review.
¼ Reviews of SHU Confinement: SHU penalties
will be reviewed at least every 90 days to see if
the penalty is consistent with both mental health
treatment and safety and security requirements.
The settlement agreement states a goal of
moving inmates with serious mental illness
from more restrictive to less restrictive
environments and creating significant
reductions in housing this population in
restrictive environments.

Vol. 17, No. 2; Spring 2007

The reform of DOCS’s disciplinary process
required by the settlement includes:

‘ A presumption against bringing disciplinary
charges for incidents of self-harm, threats of
self-harm, and related issues: The settlement
calls for a presumption against pursuing these
charges and only in rare circumstances can an
inmate receive SHU or keeplock time for selfharming behavior or verbally reporting intent to
self-harm.
‘ Informational Reports: In place of some
Misbehavior Reports, DOCS will use
informational reports that will not result in a
penalty of SHU or keeplock time in various
residential programs. This system is currently in
place in the Behavioral Health Units (“BHUs”).
‘ Refusals of Treatment or Medication:
Misbehavior Reports will not be issued for an
inmate’s refusal of medication or treatment,
although an inmate-patient may be subject to
discipline for refusing to go to a location where
treatment is provided or medication is
dispensed.
‘ Limits on Restricted Diet: The restricted diet
cannot be used as punishment for inmates with
serious mental illness except for specified safety
and security reasons, and even in those cases,
the restricted diet cannot be imposed for more
than seven days.
‘ SHU Mental Health Assessment and Suicide
Prevention Screening: These will take place
within one day of admission into SHU.
The settlement also reforms DOCS’s and
OMH’s use of observation cells. Under the
settlement, inmates can be held no longer than four
days in an observation cell. If an inmate is held
more than seven days, OMH needs to consult with
a clinical director or designee. Constant 24-hour

Page 5

supervision of such cells is mandated, amenities for
inmates in observation are improved, and daily
clinical contact is required.
The new state budget provides money to carry
out the State’s commitments in the settlement
agreement. These funds approximate over $50
million for construction costs, $2 million for
additional OMH staffing for the 2007-2008 year (to
grow to $9 million when construction is complete),
and nearly $2 million for additional DOCS staffing
for the 2007-2008 fiscal year.
According to Betsy Sterling of Prisoners’ Legal
Services: “The settlement provisions require the
commitment of high-level officials in both of the
state agencies to involvement and to oversight of
changes and reforms in the prison mental health
system. We expect this commitment of the
leadership to drive the entire system forward with
long overdue and necessary change.”
There are approximately 8,000 inmates in
DOCS’s custody with mental illness, or twelve to
thirteen percent of the total inmate population.
According to OMH, approximately 21% of those
inmates suffer from schizophrenia and other
psychotic disorders, 23% have mood disorders, and
10% have anxiety disorders. During the course of
the litigation, the Plaintiff’s expert estimated that
60% of all inmates in SHU in OMH Level One
prisons were on the active OMH caseload.
Nina Loewenstein of Disability Advocates, Inc.
stated: “This settlement will greatly enhance the
care and treatment of every prisoner with serious
mental illness in New York prisons and, once the
treatment beds promised in the settlement are
completed, significant numbers of prisoners with
serious mental illness will be diverted from SHU
into programs providing treatment and
programming up to four hours a day.”
Cliff Zucker, Executive Director of Disability
Advocates, said: “This landmark settlement will
ensure that prisoners with serious mental illness
receive needed treatment and are not confined under
inhumane conditions. Moreover, mental health staff,
correctional officers, prisoners, and the public will

Page 6

Vol. 17, No. 2; Spring 2007

benefit from the increased safety and stability
provided by making mental health treatment
available to those in need.”
At a court conference held on April 27, 2007,
Judge Lynch stated: “[h]owever justified the
conditions in SHUs might be as a matter of
discipline and security, they almost were guaranteed
to worsen the mental condition of just about anyone
but certainly those with vulnerable psyches …

greater attention should probably be paid to the
problem of extremely lengthy SHU confinement
even to those who are not mentally ill.”
This case was litigated on behalf of inmates with
mental illnesses case by Disability Advocates, Inc.,
the Prisoners' Rights Project of the Legal Aid
Society, Prisoners' Legal Services of New York, and
the law firm of Davis Polk & Wardwell.

On April 24, 2007, the Albany Times Union published an editorial about the upcoming settlement.
W
e
re
pri
nt
it
be
lo
w:

Justice At Last: Editorial, Albany Times Union, April 24, 2007
Mark the date. This coming Friday is destined already to be long remembered for the
cruelly overdue treatment that now will be extended to the 8,000 or so New Yorkers who must
battle the horrors of severe mental illness in the most inappropriate place of all. That's when
U.S. District Judge Gerard Lynch of New York City plans on signing an agreement expanding
mental health services for inmates of New York's prisons. More staff will be available in the
prisons, which will enable mental health professionals to be ever vigilant about inmates prone
to try to hurt, or even kill, themselves.
Those same inmates, already enduring an all too often dehumanizing existence, will be
spared at last from such sadistic indignities as being stripped naked and placed in
Plexiglas-walled cubicles when they suffer psychotic episodes, or being forced to subsist on
a grotesque diet of bread and cabbage as a form of punishment.
The inmates doing the hardest time of all, 23-hours-a-day solitary confinement in what's
known as The Box, will receive between two and four hours a day of therapy outside their
cells. In a more humane prison system, of course, mentally ill inmates would be spared the
horrors of The Box altogether. That would be the law now, in fact, if Governor George Pataki
hadn't vetoed such legislation in his final months in office.
A daily respite of therapy for these inmates comes only after five years of litigation and
two weeks of a non-jury trial before Judge Lynch. Disability Advocates, a not-for-profit group
in Albany, went to court in an effort to devote more resources to people so desperately in need
of them. The resolution order by Judge Lynch, strikingly enough, was readily accepted by the
state Office of Mental Health, which was a defendant in the lawsuit along with the state
Department of Correctional Services. That, along with Governor Spitzer securing $60 million
more to treat mentally ill inmates, represents an enormous change in state policy from the
Pataki era.
Words like these, from Sarah Kerr, a lawyer for the Prisoners' Rights Project of the Legal
Aid Society in New York City, speak volumes: “We believe there's real commitment now in
the leadership of the state agencies that will result in true reform for mentally ill prisoners.”
How encouraging it is to think that times are changing for some of the most vulnerable
people of all, for whom times bad and good passes at a torturously slow pace.

Vol. 17, No. 2; Spring 2007

NEWS AND BRIEFS

Parole: Making An Effort To Obtain Sentencing
Minutes
In the last issue of Pro Se, we reported the case
of Standley v. New York State Division of Parole,
825 N.Y.S.2d 568 (3d Dep’t 2006). Standley was
one of a number of decisions in recent years to hold
that the Division of Parole was failing to meet its
legal obligation to consider the recommendations of
sentencing courts when deciding whether to grant or
deny parole.
Such recommendations, if they exist, would be
contained in your sentencing minutes, the transcript
of what was said at your sentencing hearing.
Criminal Procedure Law § 380.70 requires
sentencing courts to deliver the sentencing minutes
to DOCS so that they will be available for parole
hearings. Courts, however, often fail to follow that
rule. As a result, DOCS’s files frequently do not
contain the sentencing minutes and thus, Parole
does not consider them.
In light of the recent court decisions, the
Division of Parole has advised PLS that, beginning
last Fall, Parole staff in correctional facilities have
begun requesting the sentencing minutes of inmates
scheduled to appear before the Parole Board so that
the Board may consider the recommendations, if
any, of the sentencing court.
Parole also advises PLS that when an inmate
raises an argument in an administrative appeal or an
Article 78 proceeding regarding his/her sentencing
minutes, Parole staff check to see if the minutes
were available and considered by the Board. If staff
learns they were not available, they obtain copies
from the sentencing court and check to see whether
the court made any recommendation with respect to
sentencing. If so, then the inmate is given a new
Board appearance, at which the Board can properly
consider the recommendation of the court.
Practice pointer: If you believe your sentencing

Page 7

court made a recommendation with respect to the
length of your sentence which should be considered
by the Parole Board, you should check with your
Inmate Records Coordinator and/or your Parole
Officer at your correctional facility to ensure that
your files contain a copy of your sentencing
minutes. If not, you should ask the Division of
Parole to obtain a copy from your sentencing court.
New York’s Persistent Felony Offender Statute:
Unconstitutional?
Seven years ago, in Apprendi v. New Jersey,
530 U.S. 446 (2000), the Supreme Court held that a
sentencing scheme which allows a judge, rather
than a jury, to decide “any fact that increases the
penalty for a crime” is unconstitutional, in violation
of the Sixth Amendment’s right to a trial by jury.
Ever since then, the question has been raised:
Does New York’s persistent felony offender statute,
Penal Law § 70.10, violate the Apprendi rule?
The question arises because Penal Law § 70.10
allows a sentencing court to increase the penalty for
any felony to up to 25 years to life if it finds that the
offender is a “persistent felony offender” (i.e., has
been previously convicted of two or more felonies),
and it is “of the opinion that the history and
character of the [offender] and the nature and
circumstances of his criminal conduct indicate that
extended incarceration and life-time supervision
will best serve the public interest.” Further, New
York’s Criminal Procedure Law § 400.20 specifies
that it is the court--not a jury--that must make these
factual findings.
The first finding the court must make to enhance
a sentence under the persistent felony offender rule-whether the offender has two or more prior felonies
--is permissible under Apprendi. That is because the
Apprendi Court explicitly created an exception for
enhancements based solely on recidivism.
The second finding that the statute requires the
court to make, however--whether the history and
character of the offender and the nature and
circumstances of his criminal conduct merit an

Page 8

enhanced sentence--appears to be exactly the kind
of “fact” which, under Apprendi, must be decided
by a jury, not a judge.
Nevertheless, until recently, both state and
federal courts had upheld the statute against
Apprendi challenges.
For example, in People v. Rosen, 96 N.Y.2d
329, (2001), cert. denied, 534 U.S. 899, the New
York Court of Appeals flatly rejected an Apprendi
challenge to the persistent felony offender statute;
and in Brown v. Greiner, 409 F.3d 523 (2d Cir.
2005), the Second Circuit Court of Appeals
reversed a judgment granting a writ of habeas
corpus to a petitioner sentenced pursuant to the
persistent felony offender statute.
In both of those cases, the courts reasoned that
the type of factual finding that § 70.10 requires
judges to make was different from the type of fact
finding that was at issue in the Apprendi case.
The Brown and Rosen cases, however, were
premised solely on the Supreme Court’s decision in
Apprendi. In the years following Apprendi, the
Supreme Court issued additional decisions
strengthening and clarifying the Apprendi rule.
In Blakely v. Washington, 542 U.S. 296 (2004),
the Supreme Court repeated that a judge may not
enhance a criminal defendant’s sentence based on
any facts that were not included in either the
findings of the jury verdict, or the admissions
contained in a defendant’s guilty plea. Blakely also
made it clear that this rule must be followed even if
the facts at issue do not relate to the charged crime,
but instead, as with the findings required by New
York’s statute, relate solely to generalized
information about the history and character of the
defendant.
Nevertheless, in 2005, New York’s Court of
Appeals rejected renewed challenges to the
persistent felony offender statute in People v.
Rivera, 5 N.Y.3d 61 (2005). In Rivera, the Court
held that the findings required under PL § 70.10
regarding the defendant’s history and character “fall
squarely within the most traditional discretionary
sentencing role of the judge” and were therefore not

Vol. 17, No. 2; Spring 2007

subject to the Apprendi rule. Rivera, 5 N.Y.3d at 69.
Although Rivera seemed at odds with Blakely,
many thought that it sounded the death knell for
further challenges to PL § 70.10.
One more Supreme Court decision, however, is
providing renewed support for continued challenges
to PL § 70.10. In Cunningham v. California, --- U.S.
----, 127 S.Ct. 856 (2007), the Court invalidated
California’s determinate sentencing law, which
authorized an enhanced “upper term” if the
sentencing judge found “circumstances in
aggravation.” 127 S.Ct. at 860. In doing so, the
Court rejected reasoning which was identical to that
used by the New York Court of Appeals in Rivera.
The Cunningham decision, in turn, has moved at
least one New York federal district court to reject
Rivera and conclude that PL § 70.10 can no longer
stand.
In that case, Portalatin v. Graham, 478 F. Supp
2d 385 (E.D.N.Y. 2007), the Defendant, Carlos
Portalatin, was convicted of a July 2002 car jacking
in Williamsburg, Brooklyn. He had previous
convictions for attempted burglary and attempted
criminal sale of a controlled substance. At
Mr. Portalatin’s sentencing in April 2003, the state
judge made several factual findings, including:
Mr. Portalatin had failed to take advantage of drug
treatment opportunities; he was inclined to “prey
upon others”; and he could not control his
problems. Mr. Portalatin received a sentence of 18
years to life in prison.
Upon Mr. Portalatin’s challenge to his sentence
in federal court, Eastern District Court Judge John
Gleeson held that the statute could not comply with
the Sixth Amendment as long as it required judges
to make findings of fact before issuing an enhanced
sentence. “It does not matter what type of fact
finding a judge makes,” Judge Gleeson wrote. “If a
finding is ‘legally essential’ to the enhanced
sentence, the Sixth Amendment is violated unless
that fact is either admitted by the defendant or
found by a jury beyond a reasonable doubt.” In
reaching this decision, Judge Gleeson took pains to
emphasize “the deference federal courts must

Vol. 17, No. 2; Spring 2007

always accord to state courts’ interpretations of
state statutes.” Id at 17. Nevertheless, Judge
Gleeson was compelled to reject the Court of
Appeals’ decision in Rivera. The court granted
Mr. Portalatin’s writ of habeas corpus and ordered
the state Supreme Court to vacate the sentence and
re-sentence the Defendant.
Practice pointer: Question: Does any of this
apply to me? Answer: Maybe. If you are serving an
enhanced sentence as a persistent felony offender,
and your case is still on direct appeal, you can
argue, as Mr. Portalatin did, that the rationale of
Cunningham fatally undermines the Court of
Appeals’ decision in Rivera and that your enhanced
sentence violates your Sixth Amendment rights.
If your direct appeal became final after Blakely
was decided (on June 29, 2004) you may be able to
argue in a federal habeas corpus petition that your
state court decision constituted an unreasonable
application of the Apprendi rule, as interpreted by
Blakely.
If your direct appeal became final before
Blakely was decided, however, it is unlikely that you
will be able to get the same relief as Mr. Portalatin
did in federal court. This is because, under the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a petitioner cannot get federal relief
unless he shows that the state court’s decision was
an unreasonable application of Apprendi. Given the
Court of Appeals’ decision in Rosen, New York
courts that rejected Apprendi challenges to
PL 70.10 prior to Blakely, were probably not acting
unreasonably. Further, the Second Circuit has held
that neither Apprendi nor Blakely’s modification of
Apprendi apply retroactively (i.e., to cases decided
before they were decided). See Coleman v. United
States, 329 F.3d 77 (2d Cir. 2003); Carmona v.
United States, 390 F.3d 200 (2d Cir. 2004).
That said, these questions are complicated and
have not yet been fully resolved by the courts. If you
have been convicted as a persistent felony offender,
you should explore your options with your defense
attorney, regardless of when you were convicted.

Page 9

FEDERAL CASES
Court Finds No Excessive Force In Cell
Extraction
Allaway v. McGinnis, 473 F.Supp.2d 378
(W.D.N.Y. 2007)
Plaintiff Allaway sued a number of correction
officers (“COs”) over an incident that occurred at
Southport on May 28, 1999.
According to the court, there was a videotape of
the incident. The videotape showed that Allaway
was ordered to come out of his outdoor exercise
pen. He refused. An officer asked him several times
to come out “the easy way,” and assured him that
nothing would happen to him if he came out
voluntarily. He did not respond. A six-man
extraction team wearing helmets and body armor
then approached the pen. Allaway was given a last
chance to come out voluntarily, but he again
refused. As an officer began to unlock the door,
Allaway turned to the door and, according to the
court, “appear[d] to tense his body as if preparing
either to defend himself or to charge.” As soon as
the door opened, Allaway lunged toward the
doorway. He was met by the lead officer wearing a
transparent Plexiglas shield on his arm. The officers
then entered the pen, wrestling Allaway to the
ground.
From that point on, the court wrote, Allaway
was surrounded by the officers. He “appear[ed] to
continue to struggle even after he [was] on the
ground.” The officers, meanwhile, tried, “with some
difficulty,” to get his hands behind his back and
handcuff him.
During this struggle, one officer could be seen
cocking his right arm back a short distance and
punching Allaway four times.
Eventually Allaway was subdued, placed on a
gurney, and removed from the pen.
The court held that the force used was not
excessive.

Page 10

According to the court: “Plaintiff's own refusal
to come out of his exercise pen necessitated the use
of some force, and that force was used only after
plaintiff ignored repeated pleas to come out ‘the
easy way.’ When the door to his pen was opened,
plaintiff not only resisted the officers, but charged
toward them in an apparent attempt either to get
past them or simply to attack them, thus adding to
the need to use force to subdue plaintiff.”
Nor did the four punches delivered by the
correction officer amount to excessive force.
According to the court, the officer described them
as “softening blows” administered “for the sole
purpose of getting plaintiff to comply with the
officers’ orders.” These “were not wild, thrashing,
unrestrained blows,” continued the court, “ but were
delivered in a deliberate, methodical manner from
a relatively short distance, while plaintiff was still
struggling and resisting the officers' attempts to
place mechanical restraints on him.” Therefore, the
court concluded, “no rational fact finder could
conclude that these four punches [constituted] an
Eighth Amendment violation.”
The court dismissed the Plaintiff’s case.
Practice pointer: This case was decided on
“summary judgement.” Summary judgment is a
procedural mechanism which allows a judge to
decide a case if the facts are not in dispute and “the
record taken as a whole could not lead a rational
[juror] to find” in favor of the party against whom
summary judgment is sought. See Federal Rule of
Civil Procedure 56(c).
Here, the Defendants moved for summary
judgment. When a motion for summary judgment is
made, the adverse party--in this case, the Plaintiff-“must set forth specific facts showing that there is
a genuine issue for trial.” If the adverse party does
not so respond, the court has to accept the
pleadings and affidavits of the moving party--here,
the Defendants--as true.
The Defendants in this case submitted a sworn
affidavit from the CO who delivered the four
punches, stating that they were merely “softening
blows.” The Plaintiff never responded to the

Vol. 17, No. 2; Spring 2007

Defendants’ motion and, thus, never contested that
assertion. The court, therefore, had to accept the
CO’s characterization as a fact.

STATE CASES

Disciplinary Cases
Substantial Evidence: Inmate Not Guilty of
Forging Grievance Forms/Harassing Staff
Matter of Constantino v. Goord, 831 N.Y.S.2d 719
(2d Dep’t 2007)
The Petitioner was charged in separate
Misbehavior Reports with forging, counterfeiting or
altering official documents, and harassing and
obstructing staff. The first charge was brought
against him after he created a personalized
grievance form which he then sought to have copied
in the facility library because, he said, there was a
shortage of official forms. The second charge came
about after an officer told the Petitioner to move his
dinner tray, and the Petitioner complied. The officer
then asked the Petitioner what the problem was with
the tray. The Petitioner did not immediately answer,
but instead gave the correction officer what he later
described as an “inquisitive look.” The correction
officer then walked away.
The court dismissed both charges. With respect
to the first charge, the court noted that the terms
“forge” and “counterfeit” carry with them an
element of “intent to defraud or deceive” and that
the administrative record contained no evidence that
the Petitioner customized his grievance form with
that intent. Indeed, the court noted, the Hearing
Officer showed that he understood that the
Petitioner did not intend to deceive anyone: he
wrote in his findings that the Petitioner had altered
the form “solely for [his] use in submitting
grievances.” Although the court noted that the word
“alter” could conceivably embrace what the

Vol. 17, No. 2; Spring 2007

Petitioner did--indeed, the court noted by filling out
any form a person is, in a sense, altering it--the
word as it appears in the disciplinary rule the
Petitioner was charged with violating (Rule 116.12)
“has rational meaning only by reference to the
words with which it is associated.” Thus, the word
“alter” in Rule 116.12 carries the same intent to
defraud or deceive as do its companion words
“forge” and “counterfeit.” Since the record lacked
any evidence of any intent on the Petitioner’s part to
defraud or deceive anyone, the charge was not
supported by substantial evidence.
With respect to the second charge, the court
found that the evidence was simply insufficient to
establish that the Petitioner either harassed the
correction officer or obstructed or interfered with
him. At the hearing, the Petitioner testified that he
was merely listening for his cellmate to tell him
what the problem was with the tray. The correction
officer then walked away to resume his duties.
Under the circumstances, the court held, “the
findings that the petitioner’s facial expression and
his momentary non-response harassed, or obstructed
or interfered with the officer were not supported by
substantial evidence.”
Practice pointer: Although the court did not
mention it, DOCS’s grievance regulations
specifically provide that if an official grievance
form is not available, a grievance “may be
submitted on plain paper.” 7 N.Y.C.R.R. 701.5.
Thus, not only was the Petitioner’s behavior in this
case not in violation of any disciplinary rule, it
appears to have been specifically authorized by
DOCS’s grievance rules.

q

Page 11

DOCS’s Regulations Adequately State Range of
Sanctions for Disciplinary Misconduct, Says Court
Matter of Allah v. Selsky, 829 N.Y.S.2d 744
(3d Dep’t 2007)
Correction Law § 138(3) states that “[f]acility
[disciplinary] rules shall state the range of
disciplinary sanctions which can be imposed for
violation of each rule.”
In this case, an inmate was charged with
violating facility correspondence procedures, and
smuggling and possessing contraband, after it was
discovered that he sent a letter to an inmate with
whom he did not have correspondence permission,
by using the inmate’s furlough address. He was
found guilty of two of the three charges in a Tier III
hearing and sentenced to 52 days of keeplock with
a corresponding loss of packages, telephone
privileges, and commissary privileges. He then
commenced an Article 78 proceeding in which he
argued, among other things, that DOCS’s Directive
No. 4422, which outlines the policies and
procedures of the Inmate Correspondence Program,
violated Correction Law § 138(3) by failing to state
a range of disciplinary sanctions that can be
imposed for violating the rule.
The court disagreed. It noted that the Petitioner
was charged with violating Disciplinary Rule
180.11 (7 N.Y.C.R.R. 270.2[B][26][ii]). That rule
requires that inmates follow instructions from staff
regarding correspondence procedures. He was not
charged with violating the rules of the
correspondence program itself. Moreover, the court
noted, the sanctions for violating the disciplinary
rules are set forth in 7 NYCRR 254.7, and the
penalty imposed on the Petitioner was authorized by
that regulation.
With respect to the hearing itself, the court
noted that the Petitioner admitted that he wrote the
letter and sent it to the other inmate at an outside
address without having obtained permission to
correspond with him. This, together with the
Misbehavior Report, and the letter and testimony of

Page 12

the inmate who received the letter, it found,
provided substantial evidence to support the
determination of guilt.
Practice pointer: Seven N.Y.C.R.R. 254.7
provides the following range of potential penalties
in a Tier III hearing:
(i)
counsel and/or reprimand;
(ii)
loss of one or more specified
privileges for a specified period,
including correspondence and/or
visiting privileges with a particular
person, where the inmate has been
involved in improper visiting or
correspondence-related conduct in
connection with that person;
(iii) confinement to a cell or room
continuously or to a Special
Housing Unit continuously or on
certain days during certain hours
for a specified period;
(iv)
a restricted diet;
(v)
restitution for loss or intentional
damage to property;
(vi)
forfeiture of money confiscated as
contraband;
(vii) loss of a specified period of good
time subject to restoration by a Time
Allowance Committee;
(viii) the imposition of one work task per
day other than a regular work
assignment for a maximum of seven
days, excluding Sundays and public
holidays, to be performed on the
inmate’s housing unit or other
designated area; and
(ix)
where applicable, removal from the
elected Inmate Grievance
Resolution Committee (“IGRC”),
and/or loss of the privilege of
participating as a voting member of
the IGRC for a specified period of
time.
The rule also requires that a mandatory fivedollar surcharge be assessed against any inmate
found guilty in a Tier III hearing.

Vol. 17, No. 2; Spring 2007

Inmate Loses Challenge to a Disciplinary Hearing
Based on Denial of Witnesses
Matter of Williams v. Goord, 826 N.Y.S.2d 522
(3d Dep’t 2007)
The Petitioner was charged in a Misbehavior
Report with assault on staff, violent conduct, and
refusing a direct order. Following a Tier III
disciplinary hearing, he was found guilty of the
charges. After the finding was affirmed on
administrative appeal, he brought an Article 78
proceeding.
The court affirmed the charges. The
Misbehavior Report, the testimony of its author and
another correction officer, the Unusual Incident
Report, and the Use of Force Report, the court
found, provided substantial evidence.
The court also rejected the Petitioner’s
contention that he was denied the right to call
relevant witnesses. Although several inmates
refused to testify, the record reflected that each
inmate gave a reason why he did not wish to testify
and wrote his reason on a refusal form. The court
found that that constituted “an adequate explanation
for the witnesses’ refusal” and that, since they had
not previously agreed to testify, the Hearing Officer
was not required to personally interview them. The
court also found no error in the Hearing Officer’s
denial of the Petitioner’s request to call ten
correction officers as witnesses, as the record
indicates that their testimony would have been
irrelevant or redundant to the testimony of the
officers who did testify.
Practice pointer: Inmates have a conditional
right to call witnesses to testify at a
Superintendent’s Hearing. The right is conditioned
on a finding that calling the witness would not
threaten institutional safety or correctional goals
and that the testimony is neither irrelevant nor
redundant. See 7 N.Y.C.R.R. 254.5 (a). What
happens, however, when the witness would neither
threaten institutional security or be irrelevant or
redundant--but simply refuses to testify?

Vol. 17, No. 2; Spring 2007

Inmates have neither the right (nor the ability)
to force a reluctant witness to testify at a
disciplinary hearing.
New York courts have held, however, that due
process requires that when a requested witness
refuses to testify, the Hearing Officer must at least
try to determine: 1) why the witness is refusing to
testify; and 2) that the reasons are genuine.
If the witness previously agreed to testify and
then changes his mind, courts have held that the
Hearing Officer must personally interview the
witness to determine why. Matter of Barnes v
LeFevre, 69 NY2d 649 (1986). If the witness did not
previously agree to testify (as in this case), courts
have held that it is sufficient for the Hearing Officer
to conduct an inquiry regarding the refusal through
a correction officer. Matter of Rossi v Portuondo,
716 N.Y.S.2d 116 (3d Dep’t 2000), lv. denied 96
N.Y.2d 706 (2001). See Matter of Hill v. Selsky, 795
N.Y.S.2d 794 (3d Dep’t 2005) for a thorough review
of the law of these so-called “witness refusal”
cases.

p
Re-Hearing, Not Expungement, Was Proper
Remedy for Failing to Allow Inmate to Comment
on Evidence Against Him
Matter of Cahill v. Goord, 827 N.Y.S.2d 336
(3d Dep’t 2007)
The Petitioner was charged with conspiring to
escape and with issuing threats. The charges
stemmed from certain letters that he allegedly wrote
outlining a planned escape. At his disciplinary
hearing, he requested permission to review the
letters. The Hearing Officer refused, and later found
the Petitioner guilty of the charges. Following an
unsuccessful administrative appeal, the Petitioner

Page 13

commenced an Article 78 proceeding, arguing that
the Hearing Officer erred in denying him access to
the letters.
The lower court found in the Petitioner’s favor
and ordered a re-hearing. The Petitioner appealed,
arguing that the court should have annulled the
hearing and expunged the charges, rather than order
a re-hearing.
The Appellate Division affirmed the lower
court. The court held that although the Hearing
Officer had erred in failing to allow the Petitioner to
review his letters, that error constituted only a
violation of state regulations, not of the Petitioner’s
constitutional rights. Therefore, the court held,
annulment of the charges was not required, and an
order for a re-hearing was not inappropriate.
Practice pointer: New York courts have held
that annulment of a disciplinary hearing and
expungement of the charges--instead of a rehearing--is only required when: (1) the disciplinary
determination is not supported by substantial
evidence; or (2) there has been a violation of one of
the inmate’s “fundamental due process rights” to
which inmates are entitled at a disciplinary hearing,
as spelled out by the Supreme Court in Wolff v.
McDonnell, 418 U.S. 539 (1974). See Hillard v.
Coughlin, 593 N.Y.S.2d 573 (3d Dep’t 1993) lv.
denied 82 N.Y.2d 651.
The “fundamental due process rights” to which
inmates are entitled at a Superintendent’s Hearing
under Wolff include: advance written notice of the
charges; a statement from the Hearing Officer
regarding the evidence relied upon and the reasons
for the disciplinary action; and the right of the
inmate to call witnesses and present documentary
evidence in his defense “when permitting him to do
so will not be unduly hazardous to institutional
safety or correctional goals.”
In this case, the court reasoned that allowing
the Petitioner to review the letters that he was
alleged to have written did not violate his right to
present evidence in his defense, because the
Hearing Officer had already seen the letters.
Instead, the court held, the Hearing Officer’s

Page 14

Vol. 17, No. 2; Spring 2007

actions merely violated the Petitioner’s right to
reply to the evidence against him. That right is
granted to inmates by DOCS’s Regulations--See
7 N.Y.C.R.R. 254(a)(3)--but it is not explicitly
required by Wolff. Since only the Petitioner’s
regulatory rights were violated, not his
constitutional rights, the court reasoned, a rehearing was not inappropriate.
There are some additional circumstances in
which a court should generally annul a hearing
instead of ordering a re-hearing. In Hilliard, for
instance, the court noted that in some cases, basic
fairness may require expungement even when the
error committed was not of constitutional
dimension. As examples, the court cited cases in
which the inmate had already served a substantial
period of his penalty, or in which there had been a
significant lapse of time since the incident and
important witnesses or other evidence were no
longer available.
The inmate in this case was represented by
Prisoners’ Legal Services.

o
Twenty-One-Month Delay in Issuance
Misbehavior Report Voids Charges

of

Matter of Loret v. Goord, 832 N.Y.S.2d 717
(4th Dep’t 2007)
The Petitioner was charged with and found
guilty of conspiring to possess alcohol or
intoxicants, conspiring to possess drugs, and
engaging in inmate telephone abuse. He filed an
Article 78 proceeding, alleging that the hearing in
which he was found guilty was in violation of his

due process rights due to the fact that the
Misbehavior Report was issued 21 months after the
commission of the acts underlying the charges.
The court agreed.
Seven N.Y.C.R.R. 251-3.1(a) provides that
“[e]very incident of inmate misbehavior involving
danger to life, health, security or property must be
reported, in writing, as soon as practicable.”
In this case, a number of significant events
occurred during the 21-month period between the
time of the acts underlying the disciplinary charges
and the date on which the Misbehavior Report was
issued--including the Petitioner’s trial and
conviction for an unrelated crime. Still, the court
noted, there was nevertheless an unexplained
seven-month delay between the date of the
conviction and the issuance of the Misbehavior
Report. The court concluded that annulment, rather
than a re-hearing, was required, “based on the
lengthy and unexplained delay in the issuance of the
Misbehavior Report, in violation of petitioner’s due
process rights.”
Practice pointer: An unjustified delay in filing
a Misbehavior Report will not generally be grounds
for reversal of a disciplinary hearing--unless you
can show that you were “prejudiced” by the delay.
For example, in this case, the court cited the case of
Di Rose v. New York State Dept. of Correctional
Servs., 714 N.Y.S.2d 161 (3d Dep’t 2000) appeal
dismissed 96 N.Y.2d 850. In Di Rose, there was
more than a year’s unexplained delay between
DOCS’s completion of the investigation that led to
the disciplinary charges and the filing of the
Misbehavior Report. The court noted that “due
process is not violated by delay in the absence of
prejudice.” It found, however, that the inmate had
been prejudiced as the result of the unavailability of
various witnesses through death and release on
parole.
“Prejudice,” in this context, means that the
delay has injured the inmate’s ability to defend
himself--by, for example, making important
witnesses or evidence unavailable.

Vol. 17, No. 2; Spring 2007

Page 15

Here, the court does not explicitly state how the
Petitioner was prejudiced by the 21-month delay in
the filing of the report. It may have concluded that
with such a lengthy delay, prejudice could be
assumed.

procedural error--if they conclude that the error
was “harmless,” or did not affect the outcome of
the case.

Inmate Waived Claim That He Was Not Given
Urinalysis Test Result Form; Failed to Show
Prejudice

Court Reverses Parole Denial Based Solely on
Seriousness of Crime

Parole

Matter of Gray v. Selsky, 829 N.Y.S.2d 271
(3d Dep’t 2007)

Matter of Rios v. New York State Division of
Parole, 15 Misc.3d 1107(A) (Unreported
Disposition) (N.Y. Sup Ct., March 12, 2007)

The Petitioner was charged with violating the
urinalysis testing rule. According to the
Misbehavior Report, he was ordered to provide a
urine sample but was unable to do so within three
hours. After being informed that his inability to
provide a sample would be considered a refusal
subject to discipline, the Petitioner still did not
produce a sample. A Hearing Officer found him
guilty and that determination was upheld on
administrative appeal.
In a subsequent Article 78 proceeding, he
argued that he was denied documentary evidence
because he asked for the request for the urinalysis
test form but was never given a copy. Although the
Petitioner did request that document and the
Hearing Officer stated that he would provide it to
him, he never did so. However, the court held, by
his failure to “remind the Hearing Officer before the
close of the evidence, even after being twice asked
if he had any further evidence or documents to be
considered, petitioner waived this objection.” In any
event, the court concluded, the Petitioner has not
established that he was prejudiced as a result of not
receiving a copy of this document.
Practice pointer: Often, as both this case and
the two above suggest, the key to getting a court to
care about a procedural error in a disciplinary
hearing is to show that the error “prejudiced” you-i.e., affected your ability to defend yourself.
Generally, courts are not inclined to reverse
disciplinary cases--even where there was a clear

The Petitioner, a 39-year-old inmate serving a
term of 18 years to life for a murder committed
when he was 19 years old, appeared before the
Parole Board for the second time in 2006.
He had made good use of his twenty years in
prison. He obtained Bachelor’s and Associate’s
degrees in business administration. He had been
heavily involved in volunteer activities in his
facility’s American Legion post--so much so, that a
retired DOCS’s lieutenant submitted a letter on his
behalf, expressing his belief that the Petitioner had
obtained “a new meaning in his life” and would “be
able to carry this with him while leading a
productive life.” Two correctional sergeants
submitted letters attesting to his positive adjustment
and his volunteer work in prison. He had also
worked in a program jointly run by the Department
of Motor Vehicles (“DMV”) and DOCS. His
supervisor in that program wrote that he was
“extremely helpful and knowledgeable” about the
procedures at DMV. According to her, the
Petitioner was a team leader whose responsibilities
included teaching new procedures to his fellow
workers, and he “does so efficiently and
thoroughly” and is “extremely cooperative and
respectful.” Another supervisor had stated that the
Petitioner’s “ability to interact respectively with a
wide range of people and personalities has often
turned difficult situations into positive ones.” She
concluded that the Petitioner’s “excellent customer
service skills and work efforts…will surely [be an

Page 16

asset] in whatever position he might hold.”
At his hearing, he admitted his guilt in the
murder and expressed his remorse, stating:
What I did was a cowardly act. At this point
I don’t try to take that away. I can't express
to you exactly what emotion I was feeling
on that day except for fear, but I know now
it was a cowardly act. It takes [more]
bravery not to use violence than to use
violence.
When asked how he had changed since he had
committed the crime, he stated:
I have thought about that over the years
also, and basically I’d like to think of
myself as more mature. I’m also sadder
inside because I have done something I
can’t take back. I have to live with that, and
some day I'm going to face my Creator, and
I’m going to have to make accounts for
what I did, and that's a day I fear.
The Board nevertheless denied parole. Although
it noted the Petitioner’s accomplishments, it held:
“[W]hen we weigh the fact that you took two lives
against your achievements, we believe release at
this time is not in the public interest.”
The Petitioner appealed. The court reversed.
The court began its analysis by reviewing the
law that applies to Parole Board hearings. It noted
the oft-repeated language that release on parole is a
discretionary function and the Board’s
determination should not be disturbed by a court
unless it is shown that it was irrational “bordering
on impropriety” and thus, arbitrary and capricious.
It also reviewed Executive Law § 259-i with which
decisions of the Parole Board must comply.
Section (2)(c) of that statute states:
Discretionary release on parole shall not be
granted merely as a reward for good
conduct or efficient performance of duties

Vol. 17, No. 2; Spring 2007

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 law.
It then states that the Board must consider the
following factors in determining whether the above
criteria has been met:
(i)

(ii)
(iii)

(iv)
(v)

the institutional record, including
program
goals
and
accomplishments, academic
achievements, vocational education,
training or work assignments,
therapy, and interpersonal
relationships with staff and inmates;
performance, if any, as a participant
in a temporary release program;
release plans, including community
resources, employment, education and
training, and support services available
to the inmate;
any deportation order issued by the
federal government…; and
the written statement of the crime
victim or the victim’s representative,
where the crime victim is deceased
or is mentally or physically
incapacitated.

Additionally, the court noted, Section (1)(a) of
Executive Law § 259-i states that where the
sentencing court has set the minimum period of
incarceration, the Parole Board must also take into
account:
(i) the seriousness of the offense with due
consideration to the type of sentence, length
of sentence, and recommendations of the
sentencing court, the district attorney, the

Vol. 17, No. 2; Spring 2007

attorney for the inmate, and the pre-sentence
probation report, as well as consideration of
any mitigating and aggravating factors, and
activities following arrest and prior to
confinement; and (ii) prior criminal record,
including the nature and pattern of offenses,
adjustment to any previous probation or
parole supervision and institutional
confinement.
The court then noted that “almost all of the
statutory factors to be considered by the Parole
Board in determining whether parole should be
granted weigh in [his] favor.” In light of that, the
court found, “we would expect a rational
explanation by the Parole Board for its decision as
to why parole was nonetheless denied.” Instead, the
court found, “the Parole Board focused almost
exclusively on the serious nature of petitioner’s
crime as a reason for its denial [of] parole” and that
“there is a strong indication that the denial of
petitioner’s application was a foregone conclusion.”
Although the Board made “passing reference” to
the Petitioner’s clean disciplinary record and
positive programmatic efforts, it made clear that
those factors, no matter how impressive, could not
justify his release from prison when weighed
against the seriousness of his crime. “[The] passing
mention in the…decision of petitioner’s
rehabilitative achievements [do not] demonstrate
that the Parole Board weighed or fairly considered
the statutory factors where, as here, it appears that
such achievements were mentioned only to dismiss
them ‘in light of the seriousness of petitioner’s
crime.’”
The court recognized that appellate courts have
held that: “it is not necessary for the Parole
Board…to specifically refer to each and every one
of the statutory factors it considered in its decision
granting or denying parole release.” However, the
court held, “it is unquestionably the duty of the
Parole Board to give fair consideration to each of
the applicable statutory factors as to every person
who comes before it, and where the record

Page 17

convincingly demonstrates that the Parole Board did
in fact fail to consider the proper standards, the
courts must intervene.”
The court continued:
Here, the Parole Board, in essence, revealed
in its decision its belief that the sentence
which petitioner received, which provided
him with the possibility of parole, was
inappropriate. In so doing the Parole Board
exceeded its powers; it is the role of the
legislature to determine the appropriate
sentences for particular crimes, and of the
judiciary to determine the appropriate
sentence for the particular defendant before
the court. Indeed, in focusing exclusively on
the petitioner's crime as a reason for
denying parole the Parole Board was, in
effect, re-sentencing petitioner to a sentence
that excluded any possibility of parole since
petitioner is powerless to change his past
conduct. And, as the Appellate Division has
admonished, under similar circumstances,
such “re-sentencing” by the Parole Board
“reveal [s] a fundamental misunderstanding
of the limitations of administrative power.”
Citing Matter of King, 190 A.D.2d…. In
short, the court concludes that the Parole
Board…abdicated its responsibility to fairly
consider all the relevant statutory factors in
determining whether parole should be
granted to petitioner and its resulting
decision was arbitrary and capricious.
The court ordered the Board to hold a new
hearing before a different panel.



 

Page 18

Vol. 17, No. 2; Spring 2007

Parole Revocation: Failure to Promptly Transfer
Parole Violator to Willard Results in Release
People ex rel. James Woelfle v. Poole, 15 Misc.3d
1101(A) (Unreported case) (Sup. Ct. N.Y.Co.,
March 8, 2007)
The Petitioner plead guilty to various parole
violation charges and was restored to parole on the
condition that he complete 90 days of treatment at
the Willard Drug Treatment Campus. The final
revocation hearing was held on October 17, 2006,
but the Petitioner was not transferred to DOCS until
December 19, 2006, and did not arrive at Willard
until January 10, 2007. On arrival, he refused to
participate in the program, arguing that the threemonth delay in transferring him had violated the
terms of his plea agreement.
The court agreed. Since a parole violator does
not receive credit for time served in local custody
against the 90-day requirement of the Willard
program, he must be transferred to the program
promptly. Otherwise, he can spend far more time in
custody than he bargained for. “Retention for
inordinate amounts of time without exigent
circumstances raises due process concerns,” held
the court in this case. Moreover, the court
continued, it is irrelevant whether the fault lies with
the local facility or with DOCS or--as here--with
both. “The restraint of the parolee’s liberty is the
same.”
Here, there was an 85-day delay between the
final revocation hearing and the Petitioner’s arrival
at Willard. The court held that a delay of more than
40 days between the imposition of the parole
requirement and transfer to Willard was
unacceptable. It ordered the Petitioner be
immediately released to parole supervision.

k

Programs
Court Affirms Revocation of Wife’s Visitation
Privileges
Matter of Sylvester v. Goord, 828 N.Y.S.2d 729
(3d Dep’t 2007)
In 2004, an inmate’s wife allegedly concealed
three cell phones inside of a typewriter and mailed
them to Great Meadow Correctional Facility to be
used by her husband and two other prison inmates.
After an investigation, her visitation privileges were
revoked. She requested a hearing and Commissioner
Goord affirmed the penalty. She then brought an
Article 78 proceeding to challenge the result.
The court upheld the Commissioner. It noted
that the Petitioner admitted that she mailed the cell
phones to the facility and that the record contained
confidential information indicating that the cell
phones were intended to be used in connection with
an escape. This, plus an investigator’s testimony
regarding the threats that cell phones pose to the
safety and security of correctional facilities,
provided sufficient evidence to support the
Commissioner’s determination. Her contrary
testimony that she did not intend to facilitate an
escape attempt but,instead, simply sought to reduce
the cost of her husband’s facility phone bill, the
court held, “is irrelevant.”
The court also rejected her assertion that,
because the incident in question did not occur
during a personal visit, her visitation privileges
could not be revoked. The court noted that DOCS’s
regulations state that visitation privileges may be
revoked when there is “reasonable cause to believe
that such action is necessary to maintain the safety,
security and good order of the facility.” See 7
N.Y.C.R.R. 200.2(b)(2). Moreover, the court found,
the regulations contain no requirement that the
actions which lead to a revocation of visiting
privileges take place during an actual visit.

Vol. 17, No. 2; Spring 2007

Inmate Lacks Standing to Challenge Denial of
Mother’s/Sister’s Visiting Privileges
Matter of Cortoreal v. Goord, 825 N.Y.S.2d 846
(3d Dep’t 2007)
The visitation privileges of the Petitioner’s
mother and sister were revoked as a result of their
involvement in supplying the Petitioner, as in the
case above, with a cell phone. Here, however,
unlike the case above, in which the visitor (the
inmate’s wife) challenged the visitation denial, here
the inmate himself commenced an Article 78
proceeding challenging the revocation.
The court dismissed the case.
It noted that it has repeatedly held that an
inmate does not have standing to challenge a
visitor’s loss of visitation privileges with him
because it is their ability to visit, rather than his
ability to receive visitors, that is restricted.
Practice pointer: “Standing” is the ability of a
party to demonstrate to the court sufficient
connection to and harm from the law or action
challenged to support that party’s participation in
the case. It is a prerequisite to your right to bring a
case.
Appellate Court Finds Revocation of Temporary
Release Appropriate; Reverses Trial Court
In re Marciano v. Goord, 830 N.Y.S.2d 552
(1st Dep’t 2007)
The Petitioner’s participation in the Temporary
Release Program was cancelled and his earned
eligibility and merit release date were revoked after
his wife filed a report with the police that he had
threatened to kill her and he admitted in a
Temporary Release Committee (“TRC”) hearing
that he had argued with her. In a decision that we
reported in the Summer 2006 edition of Pro Se, a
lower court reversed the TRC decision, finding that
it was not supported by substantial evidence and
that its conduct had violated the Petitioner’s right to
due process of law. The court ordered that he be

Page 19

reinstated to Temporary Release and that he be
granted a parole hearing within ten days.
On appeal, the appeals court reversed the lower
court’s finding that the TRC’s action was not
supported by substantial evidence. It found that the
wife’s police complaint, coupled with the
Petitioner’s admissions, constituted sufficient
evidence upon which temporary release could be
revoked.
However, it sustained the lower court’s decision
to annul the TRC on procedural grounds. It noted
that while an inmate does not have a right to be
admitted into a Temporary Release Program, once
admitted, he has a liberty interest in continued
participation, which requires that he be provided
with some due process before being discontinued.
The required due process is afforded in DOCS’s
regulations, which require that an inmate be
provided with at least a 24-hour notice of a hearing
to review his participation in Temporary Release
and an opportunity to reply to the charges, call
witnesses, and produce evidence. See 7 N.Y.C.R.R.
1904.2(h). Here, the court found, the Petitioner was
not given any notice of his TRC hearing. Although
he had previously signed a waiver of notice, that
waiver expressly related to a prior TRC meeting at
which his participation in the Temporary Release
Program was suspended, pending an investigation.
The court also found that the Petitioner was neither
permitted to present witnesses nor was he informed
of his right to do so.
That did not mean, however, that the Petitioner
was entitled to full restoration of his merit time and
parole release dates, which had been automatically
rescinded by the determination to discontinue his
Temporary Release Program participation. Instead,
the court held that the appropriate remedy for the
procedural violations--particularly in light of its
earlier finding that DOCS had produced sufficient
evidence to terminate Temporary Release--was
simply to order that a new hearing be conducted, “in
which petitioner is afforded the procedural rights in
accordance with DOCS’s own regulations.”

Page 20

Vol. 17, No. 2; Spring 2007

…

It was not until the settlement of the PLS class
action lawsuit, Anderson v. Coughlin, however, that
DOCS conceded the need for a new set of
regulations detailing when and how mental illness
and low intellectual capacity would be taken into
account in a Superintendent’s Hearing. The
Anderson regulations, embodied in 7 N.Y.C.R.R.
§§ 254.6, 254.7, establish a much-needed
framework to ensure that, during disciplinary
hearings, hearing officers meaningfully consider the
mentally ill inmates’ mental status.
This article is intended to explain when and
how, under the Anderson regulations, mental illness
or low intellectual capacity may be used as a
defense in a Superintendent’s Hearing.

Pro Se Practice
The Anderson Regulations
WHEN MENTAL ILLNESS IS A FACTOR IN
A SUPERINTENDENT’S HEARING
In this issue of Pro Se, we celebrate the
settlement of DAI v. OMH and DOCS. This
settlement will bring a long-overdue reform to
DOCS’s over-reliance on punitive disciplinary
measures, rather than treatment, to control such
inmates. However, in many cases, inmates with
mental illness will continue to have disproportionate
contact with DOCS’s disciplinary system because
they are simply unable to conform their conduct
with the strict rules and regulations of a prison
setting.
Long before DAI, Prisoners’ Legal Services has
been in the forefront of the fight to ensure that
DOCS take account of mental illness before
punishing inmates with lengthy disciplinary
sentences. That fight resulted in a string of
decisions in the late 1980s in which New York State
courts recognized that mental illness could be a
defense to a disciplinary charge. See, e.g.: People ex
rel. Reed v. Scully, 140 Misc.2d 379 (Sup. Ct.,
Oneida County, 1988); Rosado v. Kuhlmann, 563
N.Y.S.2d 295 (3d Dep’t 1990); and Huggins v.
Coughlin, 76 N.Y.2d 904 (1990).

Broadly, the regulations provide that when an
inmate’s mental condition or intellectual capacity at
the time of an incident is “at issue,” a hearing
officer must consider the inmate’s mental state
before rendering a decision.
An inmate’s mental condition is at issue if one
of seven trigger factors are met. For example, if the
inmate is deemed a “Level One” by OMH, or if the
inmate has been discharged from the Central New
York Psychiatric Center (“CNYPC”) within the past
nine months, then the inmate’s mental condition is
“at issue.” [For a list of the seven trigger factors,
See 7 NYCRR 254.6[b][1]]. In addition, the hearing
officer may deem mental condition to be at issue in
the absence of a specific trigger factor if “it appears
to the hearing officer, based on the inmate’s
testimony, demeanor, the circumstances of the
alleged offense, or any other reason, that the inmate
may have been mentally impaired at the time of the
incident or may be mentally impaired at the time of
the hearing.” 7 N.Y.C.R.R. § 254.6 (b)(1)(viii).
When the hearing officer finds that mental
condition is at issue, then he must ensure that the
inmate understands the charges and the purpose of
the Hearing, ask other witnesses about their

Vol. 17, No. 2; Spring 2007

observations of the inmate’s mental state at the time
of the incident, take confidential testimony from an
OMH clinician, and provide the inmate with a
written disposition stating how the inmate’s mental
state was considered. 7 NYCRR §§ 254.6(c);
254.7(a). According to a June 6, 2006 memo that
DOCS’s counsel’s office circulated to
Superintendents (to give to hearing officers), the
written disposition must reflect how the hearing
officer considered the inmate’s mental health in
determining guilt/innocence, and if found guilty,
how the hearing officer considered the inmate’s
mental condition in assessing the penalty.
In addition to considering evidence about the
inmate’s mental condition, the hearing officer may
be called upon to consider the inmate’s lack of
intellectual capacity. There are only two specific
trigger factors for intellectual capacity set forth in
7 N.Y.C.R.R. 254.6(b)(2), and they are:
‚ the incident occurred while the inmate was
housed at the Special Needs Unit at Wende,
Arthur Kill, or Sullivan; or
‚ the inmate did not score above 69 on an
intelligence test or did not score above the thirdgrade level in a reading test conducted by prison
officials.
As in the case with mental impairment, a
hearing officer may deem intellectual capacity to be
at issue even in the absence of the two specific
trigger factors where the circumstances indicate
“that the inmate may have been intellectually
impaired at the time of the incident or may be
intellectually impaired at the time of the hearing.”
See 7 N.Y.C.R.R. 254.6(b)(2)(iii).
When the hearing officer finds that intellectual
capacity is an issue, he must follow the same steps
required when mental state is at issue. However,
instead of taking testimony from an OMH clinician,
he takes testimony from a correction counselor or
teacher, who will present confidential evidence
about the inmate’s intellectual functioning.
7 N.Y.C.R.R. 254.6(c)(4).

Page 21

Failure to Follow Anderson Regulations Can
Result in Reversal of Your Hearing
Failure to follow the Anderson procedures can
result in a reversal of a disciplinary hearing. That
was the result, for instance, in Pinckney v. LeClaire,
Index. No. 2006-012394 (Erie Co. Sup. Ct., 2007),
one of the first judicial decisions concerning the
Anderson regulations.
Mr. Pinckney’s hearing concerned charges of
assault on staff, violent conduct, failure to follow a
direct order, and possession of a weapon, all
stemming from a May 3, 2006 altercation with
guards at Wende Correctional Facility. Halfway
through the Hearing, the Hearing Officer removed
Mr. Pinckney from the Hearing because he was
disruptive.
After removing Mr. Pinckney, the Hearing
Officer decided, based on statements Mr. Pinckney
made during the Hearing, to take confidential
testimony from an OMH clinician about
Mr. Pinckney’s mental health. However, he failed to
otherwise comply with the Anderson regulations.
He did not ask witnesses about their observations of
Mr. Pinckney’s mental health, he did not ensure that
Mr. Pinckney understood the charges and Hearing
process, and perhaps most importantly, he failed to
provide Mr. Pinckney with a written disposition
stating how he considered Mr. Pinckney’s mental
health in rendering a disposition. He found
Mr. Pinckney guilty of the charged conduct and
imposed a penalty of 18 months SHU time and
recommended loss of good time.
In a subsequent Article 78 proceeding,
Mr. Pinckney argued that these errors required that
the Hearing be reversed and expunged from his
record. The court, in an oral decision, agreed.

N

Page 22

Some Practical Considerations
Mental Status Testimony

Vol. 17, No. 2; Spring 2007

Regarding

In the ordinary case, an inmate will not need to
persuade the hearing officer to request confidential
mental status or intellectual capacity testimony
because DOCS’s paperwork usually correctly
identifies those Hearings in which such testimony is
needed. The hearing officer will ordinarily indicate
to the inmate that confidential mental health or
intellectual capacity testimony will be presented
even though the inmate will not be allowed to be
present during that testimony.
But if the hearing officer indicates that
confidential testimony will not be presented, and
you believe that it should be presented, you should
specifically request it. As noted above, caselaw
establishes that you have a right to present evidence
of your mental status in your defense at a
disciplinary hearing when your mental status is at
issue. If, however, none of the trigger factors
identified in the regulation above are present, the
burden may be on you to convince the hearing
officer that your mental status is “at issue” in the
hearing and should be considered.
Another consideration: The regulation only
requires hearing officers to consider OMH
testimony about your mental health. There is no
reason, however, that you cannot present additional
testimony on this issue--and, often, it might be
advisable to do so. For example, you may benefit
from presenting your own account of your mental
status at the time of the alleged misbehavior. You
have a unique insight into the mental status issues
that may be relevant to the proceedings and your
own testimony may be more important, in the final
analysis, than that of an OMH clinician.
Likewise, you might want to consider calling
other inmates or staff who can testify about your
mental status at the time of the incident. While such
witnesses cannot give testimony about your
diagnosis or treatment, their account of the incident
may provide the hearing officer with facts relevant
to your mental status at or near the time of the
events that gave rise to the disciplinary charges. See

7 N.Y.C.R.R. 254.5[a] (“The inmate may call
witnesses on his behalf provided their testimony is
material, is not redundant, and doing so does not
jeopardize institutional safety or correctional
goals.”).
Evidence of mental illness does not address the
issue of guilt or innocence of the underlying
misconduct. However, Rule 254.6 makes it clear
that evidence of mental illness may be considered as
a “mitigating factor.” A “mitigating factor” is a fact
or circumstance that can justify reduced punishment
or no punishment at all. Under Rule 254.6(f), a
hearing officer is required to consider mental
condition or intellectual capacity in determining the
“appropriate penalty to be imposed” and if, in light
of the inmate’s mental health status, the hearing
officer believes that a penalty “would serve no
useful purpose,” he may dismiss the charge or
charges altogether.
If you offer testimony about your mental status,
it should be truthful and consistent with the official
testimony about mental status. For example, it
would not be useful to testify about a long history of
serious mental illness in prison if OMH testimony
indicates that you have never asked for or received
treatment for mental illness.
Your testimony is most helpful when seen as a
supplement to the official testimony about mental
status. For example, if an OMH witness is called,
he/she might testify about a hospitalization at
CNYPC, but may omit details about the duration of
the hospitalization or the basis for the admission.
Thus, you can present facts to fill in the gaps in the
official testimony. If you were admitted to CNYPC,
you should be sure to inform the hearing officer
about the length of your confinement at CNYPC
and the reasons for that confinement.
Similarly, if OMH prescribed psychiatric
medication, you should testify about the actual
effects of that medication. OMH witnesses will
sometimes testify about medication without
testifying about whether the medication actually
achieved its desired results. This is another example
where you could fill in gaps left by the OMH
witness. If you refused to continue with a prescribed

Vol. 17, No. 2; Spring 2007

medication, you could provide an explanation for
non-compliance to the hearing officer.
If you feel that the charged misconduct was the
product of mental illness, you should give testimony
about the symptoms that led to the misconduct. As
noted above, it would probably be unhelpful for you
to present testimony about symptoms at the time of
the incident if these or similar symptoms were not
mentioned in the OMH testimony.
In sum, the purpose of an inmate’s testimony
about his own mental status is to provide his unique
personal view of the psychiatric or intellectual
impairment that may be relevant to the charged
misconduct. That personal view should supplement
the key events (i.e., diagnosis, OMH classification,
hospitalization, and medication) that are
documented in the official record and presented in
OMH’s or in DOCS’s testimony.
The inmate in Pinckney v. LeClaire was
represented by Prisoners’ Legal Services of New
York.

Pro Se Practice II

RECENT DEVELOPMENTS REGARDING
POST-RELEASE SUPERVISION (“PRS”)
Last summer’s federal appeals court decision in
Earley v. Murray, 451 F.3d 74, r’hg denied 462
F.3d 14 (2d Cir. 2006), in which the court held that
a term of PRS can only be imposed by a sentencing
court, not by DOCS, has thrown the PRS portion of
many determinate sentences in New York into
question.
This article is intended to review the state of the
law on this rapidly-developing subject, at least, as
it stands at the end of April 2007--and to provide
some advice on how to proceed to inmates who
have had PRS administratively added to their
sentence by DOCS.

Page 23

I. Background
Pursuant to Penal Law § 70.45, every
determinate sentence must include a period of PRS.
In some cases, however, sentencing courts have
failed to mention PRS either at the sentencing or in
the commitment order. In those cases, DOCS has
added the period of PRS to the sentence
administratively, after the inmate arrives in state
custody--frequently to the inmate’s surprise and
consternation. Moreover, in those cases in which
the sentencing court had discretion over the amount
of PRS time to impose, and did nothing, DOCS
added the maximum period of PRS permitted by
statute.
Prior to Earley, many inmates had challenged
DOCS’s administrative imposition of PRS. The
argument was that by adding PRS to a sentence,
DOCS was improperly taking on the role of the
sentencing court. State courts, however, had
uniformly upheld DOCS’s authority to add PRS
when the sentencing court failed to mention it. They
found that when DOCS added PRS, it was merely
enforcing a statutorily-required part of a sentence,
and not engaging in a judicial function. See, e.g.,
Deal v. Goord, 778 N.Y.S.2d 319 (3d Dep’t 2004);
People v. Hollenbach, 762 N.Y.S.2d 860 (4th Dep’t
2003), lv. denied, 100 N.Y.2d 642 (2003).
In Earley, however, the court held that since
PRS is part of a sentence, it can only be imposed by
the sentencing court, and thus, DOCS’s
administrative imposition of PRS is a “nullity.” The
court relied on Hill v. United States ex. rel
Wampler, 298 U.S. 460, a 1936 Supreme Court case
in which the Court held that only a judge can
impose a sentence, and, once a sentence has been
imposed, it cannot be administratively modified.
Since Earley is a decision of a federal appeals
court, lower federal courts in New York are bound
by its holding, but state courts are not.
Most litigation over DOCS’s administrative
application of PRS has and will, of necessity, take

Page 24

place in state court. Even those inmates who may
have grounds for challenging the validity of their
PRS sentence in federal court will have to exhaust
their state court remedies first. Thus, how the state
courts--which previously found no problem with
DOCS’s practice--will respond to Earley has been
the critical question.
II. State Court Developments
As of the date this article is being finalized, in
mid-May, 2007--some 10 months after Earley was
decided--it is still too soon to give a definitive
answer to the question of how the state courts will
respond to Earley.
Following Earley, there were numerous
contradictory decisions at the trial court level. Some
courts agreed with Earley and declared DOCS’s
addition of PRS to a sentence to be null and void.
Other courts, however, have rejected Earley, or
concluded that notwithstanding Earley, they are
bound by the pre-Earley state appellate decisions,
such as Deal, 778 N.Y.S.2d 319.
It is only in the last several months that New
York’s four mid-level appeals courts have begun to
address the issues raised by Earley. Those courts’
decisions have not been uniform, however. One
Appellate Department appears to have accepted
Earley with respect to some categories of sentences
and rejected it with respect to others. Another
appears to have accepted Earley whole-heartedly,
while yet a third appears to have rejected it. What
follows is a department-by-department review of
the current status of these “un-imposed PRS” cases.
The First Department has accepted Earley, but
only insofar as it applies to the sentences of drug
offenders who are not convicted of a Class A felony
and first violent felony offenders.
Under Penal Law § 70.45(2), the period of postrelease supervision imposed on a determinate
sentence is generally five years. However,
exceptions apply to persons being sentenced for a

Vol. 17, No. 2; Spring 2007

drug offense that was not a Class A felony or for a
first-time violent offense. In those cases, the statute
gives the sentencing court discretion over the period
of post-release supervision to impose.
In People v. Hill, 830 N,Y.S.2d 33 (1st Dep’t
2007), the First Department--citing Earley--held
that when one of those exceptions apply, and the
sentencing court had discretion over the period of
post-release supervision, there is nothing in the
Penal Law that authorizes DOCS to impose the
maximum period of PRS permitted by statute, or
any other specific period. In short, according to the
First Department, in such a case, if the sentencing
judge fails to impose a period of PRS, there is none.
In a later case, however, People ex rel. Garner v.
Warden, Rikers Island Correctional Facility, 833
N.Y.S.2d 384 (1st Dep’t 2007), the same court
rejected the claim of a second violent offender that
DOCS had no authority to enforce PRS where his
sentencing court had failed to impose it.
The Second Department appears to have
embraced Earley wholeheartedly. In February 2007,
it issued three decisions which, although brief,
appear to unequivocally adopt the Earley holding.
Those decisions are: People v. Smith, 829 N.Y.S.2d
226 (2d Dep’t 2007); People v. Wilson, 829
N.Y.S.2d 917 (2d Dep’t 2007); and People v.
Noble, 831 N.Y.S.2d 198 (2d Dep’t 2007). Each of
these short decisions cite Earley and Wampler and
hold, simply, that if PRS is not mentioned in either
the sentencing minutes or the commitment order, it
is not part of a sentence. Although the decisions do
not explicitly say as much, the citations to Earley
and Wampler strongly suggest that the court has
concluded that if the sentencing court does not
impose PRS as part of the sentence, DOCS does not
have the authority to add it to the sentence,
regardless of whether the offender is a first felony
or second felony offender.
The Third Department recently decided Garner
v. New York State Dept. of Correctional Services,
831 N.Y.S.2d 923 (3rd Dep’t 2007). In that case,

Vol. 17, No. 2; Spring 2007

the court adhered to its own pre-Earley precedent,
in Deal v. Goord, 778 N.Y.S.2d 319 (3rd Dep’t
2004), holding that PRS is automatically part of a
determinate sentence, regardless of whether the
sentencing judge mentions it, because it is required
by statute. Because both Garner and Deal dealt with
the cases of second felony offenders, however, it
remains unclear how that court will address the
issue of a first felony offender or drug offender
(other than an A offender), for whom the length of
the PRS period is discretionary, not mandatory.
The Fourth Department has not yet addressed
the Earley question. Lower courts in that
Department are, therefore, arguably still bound by
pre-Earley caselaw, holding that DOCS may impose
PRS where the sentencing court fails to do so. See
People v. Hollenbach, 762 N.Y.S.2d 860 (4th Dep’t
2003).
In sum, the Appellate Departments are presently
divided over the applicability of Earley. One
Department, the Second, has adopted it. Another,
the First, has adopted it with respect to some
offenders and rejected it with respect to others. Yet
another, the Third, has rejected it with respect to
second felony offenders, while the Fourth has not
yet addressed the issue in a post-Earley case.
Thus, at present, your ability to get PRS
removed from your sentence, if it was not imposed
by your sentencing court, may depend both on in
which Appellate Department you are able to file a
lawsuit and what kind of sentence you are serving.
As discussed below, it may also depend on the kind
of lawsuit you file.
III. What can you do?
What should you do if DOCS has added a
period of PRS that was not mentioned at your
sentencing or in your commitment?
One option is to do nothing. As the above
discussion suggests, the issues of whether DOCS
has authority to add PRS to a sentence in general,
and the narrower issue of whether DOCS has

Page 25

authority to add PRS to a sentence where the length
of the period of PRS is not specifically set by
statute, are currently being litigated in cases across
the state. Because the Appellate Division is
currently divided on the question, the question will,
eventually, have to be resolved by the New York
Court of Appeals. It is likely that within one or two
years, most of the issues discussed above will be
resolved by the courts. Unless you are presently
confined solely as a PRS violator, or you are
scheduled to be released in the near future, there is
no need to take any immediate action.
If you are in prison solely as a PRS violator, and
PRS was not imposed as part of the sentence by the
sentencing court, then you could challenge the
validity of your PRS in a state or federal habeas
corpus proceeding.
A federal habeas corpus proceeding to challenge
PRS should be successful, since Earley v. Murray is
binding on all federal courts in New York State.
The problem is, in order to file a federal habeas
corpus proceeding, you must first exhaust your state
court remedies. A state habeas corpus proceeding is
likely to be successful in any county in the Second
Department, since the Supreme Court would be
bound by the recent Second Department decisions
holding that PRS is not part of a sentence if it was
not imposed by the sentencing court. It would also
be likely to be successful in any county in the First
Department, if the sentencing court had discretion
over the period of post-release supervision to be
imposed, since those courts would be bound by the
First Department’s decision in Hill. In any county in
the Third or Fourth Department, it is likely to be
unsuccessful, unless you are a first felony offender
or a drug offender (other than a Class A offender)-in which case, it is difficult to predict what will
happen.
If you are scheduled to be released shortly, and
wish to try to have your PRS term removed from
your sentence, your best option is to file an
Article 78 proceeding to challenge DOCS’s
decision to add PRS to a sentence. Again, however,

Page 26

your likelihood of success probably depends on
where you file it. An Article 78 challenging
DOCS’s authority to impose PRS should be a strong
case in any county in the Second Department, or in
a case where a sentence was imposed pursuant to
Penal Law §§ 70.02 or 70.70, and the exact period
of PRS was not mandated by the statute. In counties
in the Third or Fourth Department, it will likely be
unsuccessful if a 5-year PRS term was mandatory,
and if not, it is still too early to predict what the
court will do.
If you are successful in your Article 78, the
court will order DOCS to remove PRS from your
sentence. The result would be a determinate
sentence with no period of PRS, which would be an
illegal sentence. As noted at the beginning of this
article, Penal Law § 70.45 requires that every
determinate sentence also have a period of postrelease supervision. Thus, a successful Article 78
would result in an illegal sentence. Although the
issues go beyond the scope of this article, it is likely
that, if a sentencing court becomes aware that it has
imposed an illegal sentence, i.e., a determinate
sentence with no PRS, the sentencing court would
have the authority to correct the illegal sentence on
its own by imposing a new sentence with a period
of PRS.
Many inmates have opted to challenge PRS
through 440 motions, rather than Article 78
proceedings. If your goal is to have PRS removed
from your sentence, we advise you not to use a 440
motion to challenge the administrative imposition of
PRS. To understand why, it is important to
understand the difference between an Article 78 or
habeas corpus proceeding and a 440 motion.
An Article 78 or a habeas corpus proceeding is
a challenge to DOCS’s administrative action--in this
case, adding PRS to your sentence. It argues that
DOCS had no authority to do so and asks the court
to reverse DOCS’s action.
A 440 motion, by contrast, is a challenge to
your sentence. It argues that your sentence is illegal
and asks the court to either change the sentence to

Vol. 17, No. 2; Spring 2007

a legal sentence or allow you to revoke your plea.
As noted, there is no dispute that a determinate
sentence without PRS is an illegal sentence. The
only dispute is whether DOCS has the authority to
correct the error.
The problem with a 440 motion is that it must
be made in the same court that initially imposed the
sentence. Sentencing courts have the inherent
authority to correct an illegal sentence. Therefore,
while results have been inconsistent, a 440 motion
creates a risk that the sentencing court will respond
to the motion by simply re-sentencing you to a
determinate sentence with PRS, in order to correct
the illegal sentence.
IV. Towards a Final Resolution?
Over the past few months, we have seen a
number of decisions that have significantly changed
the legal landscape of PRS. As this article notes, we
believe that, eventually, the New York Court of
Appeals will have to address these issues. Until
then, it remains hard to predict how the law
regarding PRS may change over the next few
months or year(s), and so we will try to provide
periodic updates on this rapidly developing area of
law.
One additional recent development, however,
may point to a possible resolution of this issue.
In Earley, the Court of Appeals directed the
District Court to grant Mr. Earley a writ of habeas
corpus, if it found that his petition had been timely
filed. In a decision issued on May 1, 2007, the
District Court, following the Court of Appeals’s
direction, granted Mr. Earley a writ. But the court
then noted that the result was an illegal sentence
under New York law--i.e., a determinate sentence
without post-release supervision. It therefore stayed
the write for 28 days to allow the sentencing court
an opportunity to correct the sentence--i.e., to
impose a new sentence, with PRS.
Could the District Court’s solution point to the
ultimate resolution of this issue? If so, it would

Vol. 17, No. 2; Spring 2007

imply that you could obtain an order prohibiting
DOCS from imposing PRS if the sentencing court
failed to do so, but that order would be stayed
pending a referral to the sentencing court so that a
legal sentence could be imposed.
At this point, only time we will tell.
Practice pointer: The jurisdiction of the four
Appellate Departments is as follows:

R The First Department (seated in Manhattan
[New York County]) covers only The Bronx
(Bronx County) and Manhattan [New York
County] (known formally in the court system as
Bronx and New York Counties, respectively).

R The Second Department (seated in Brooklyn)
oversees the supreme courts of the remaining
boroughs of New York City--that is, Queens
(Queens County), Brooklyn (Kings County),

Page 27

and Staten Island (Richmond County), as
well as the remainder of Long Island
(Nassau County and Suffolk County) and the
New York City suburbs in Dutchess,
Orange, Putnam, Rockland, and
Westchester Counties.

R The Third Department (seated in Albany)
includes an area extending from the territory of
the Second Department north to New York's
borders with Vermont and Quebec, and includes
the cities of Albany and Binghamton. This
territory extends nearly as far west as Syracuse.

R The Fourth Department (seated in Rochester)
covers the remainder of the state (west of the
Third Department's territory), and includes the
cities of Buffalo, Rochester, and Syracuse.

Page 28

Vol. 17, No. 2; Spring 2007

Subscribe to Pro Se!
Pro Se accepts individual subscription requests. With a subscription,
a copy of Pro Se will be delivered directly to you via the facility
correspondence program. To subscribe, send a subscription request with
your name, DIN number, and facility to Pro Se, 114 Prospect Street, Ithaca,
NY 14850.
Pro Se Wants to Hear From You!
Pro Se wants your opinion. Send your comments, questions, or
suggestions about the contents of Pro Se to Pro Se, 301 South Allen Street,
Albany, NY 12208. Do not send requests for legal representation to Pro Se.
Requests for legal representation and all other problems should be sent to
Central Intake, Prisoners’ Legal Services of New York, 114 Prospect Street,
Ithaca, NY 14850.

EDITORS: JOEL LANDAU, ESQ.; KAREN MURTAGH-MONKS, ESQ.
COPY EDITING: FRANCES GOLDBERG
CONTRIBUTORS: JAMES BOGIN, ESQ.; WILLIAM GIBNEY, ESQ.;
BRAD RUDIN, ESQ.; BETSY STERLING, ESQ.;
PATRICIA WARTH, ESQ.
PRODUCTION: FRANCES GOLDBERG
DISTRIBUTION: BETH HARDESTY

Pro Se is printed and distributed free through grants from the New York State Bar Foundation
and the Tompkins County Bar Association.