Vol. 17, No. 4; Fall 2007 Published by Prisoners’ Legal Services of New York

SENTENCE REFORM COMMISSION CALLS FOR
DETERMINATE SENTENCES;
PUTS OFF FURTHER DRUG LAW REFORM DISCUSSION
In a preliminary report issued in October, the
New York State Commission on Sentencing Reform
called for determinate sentencing, increased
educational opportunities in prison, and increased
use of “graduated sanctions” for parole violators.
The Commission, which was charged with making
recommendations for reform of New York’s
complex sentencing laws, failed, however, to
recommend further reform the harsh Rockefeller era
drug laws, as it was widely expected to do. It said it
was still studying the matter.
The principal recommendations of the
preliminary report included:
‹ Abandoning indeterminate sentences, with
limited exceptions, and moving to an alldeterminate sentencing system. Currently, New
York uses both indeterminate and determinate
sentences. Under this “hybrid” sentencing
structure, the Commission found, defendants,
crime victims, and even judges often leave the
courtroom with only a general understanding of
how long an offender will actually spend behind
bars. A determinate sentencing structure, it
found, would bring greater fairness and
uniformity to sentences.

‹ Modifying New York’s sentencing statutes to
permit a court to sentence certain non-violent,
drug-addi c t e d felony offenders to
community-based treatment, in lieu of state
prison, when the judge, prosecutor, and
defendant all agree that this is a just outcome.
Under current law, a prison term is required for
many drug felonies.
…article continued on Page 3

Also Inside…
Deferring Payment of
Mandatory Fees . . . . . . . . . . . . page 18
Second Circuit Offers Primer
on Deliberate Indifference . . . page 19
Maximizing Chances For Early
Release: The Earned Eligibility
Certificate and Related
Programs . . . . . . . . . . . . . . . . . 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. 4; Fall 2007

Cut Programs to Meet a Fiscal Crunch? No. Expand Them.
A Letter from Susan Johnson, Executive Director
New York is, again, facing a fiscal crisis.
Historically, when states are faced with fiscal
problems, their first reaction is to ask state
agencies to cut programs. This has been the
pattern in New York. Commissioners are told
that they must cut their budgets to help balance
the budget, and they do. Furthermore, if history
is a guide, when DOCS is asked to cut its
budget, the first thing to go will be programs.
Why? Because if you don’t cut programs, you
are going to have to cut something else and that
something else is usually security. Most believe
that cutting security costs is a controversial, and
possibly dangerous, choice to make. But is it?
The Correctional Association of New York,
in its State of the Prisons: 2002-2003 Report,
found that “superintendents, correction officers,
and inmates cite program cuts and idleness as
the leading problems in their facilities.” Thus,
cutting programs may actually hinder DOCS
from achieving its primary goal, security. So,
let’s step back for a minute and think about
what could happen if we changed the paradigm.
As counterintuitive as it may seem, maybe the
response to a state’s fiscal crisis is not to cut but
to add programs.
Currently, in New York State, the
Sentencing Reform Commission is working on
recommendations to improve our criminal
justice system. In its Preliminary Report, the
Commission notes that alternatives to
incarceration (“ATIs”) are “critical to the
diversion of offenders from prison and the
avoidance of re-incarceration after a parole rule
violation.” The Report focuses on the need to
support for those programs that are found to be
effective.

Imagine that, in its final report, the
Commission acknowledges the success of our
current Adult Drug Courts and Mental Health
Courts, which divert certain low level offenders
with drug and mental health problems from
DOCS, and recommends that these programs
and other innovative ATIs be expanded.
Imagine that, in response, funding for such
programs is appropriated by the Legislature and
approved by the Governor, and a sufficient
number of alternative treatment courts and other
ATIs are opened across the state. What would
the budget implications be?
A study done in 2006 by the Washington
State Institute for Public Policy is informative.
The Institute was directed by the State
Legislature to report on whether evidence-based
and cost-beneficial program options existed to
reduce the need for future prison beds, save
money, and reduce recidivism. The Institute
exhaustively reviewed all research evidence that
it could locate in searching for what works, if
anything, to reduce crime. In analyzing 57
evaluations of the effectiveness of adult drug
courts across the nation, the study found that
average adult drug court programs reduce the
recidivism rate of participants by 8.0 percent. A
similar cost-benefit analysis of adult drug
programs found that the use of adult drug courts
typically results in an economic benefit of
almost $5,000.00 per participant.
Currently, in New York State, we have 171
drug courts and another 25 in the planning
stages. We also have 10 mental health courts
with two additional courts scheduled to open
soon. In 2006, there were 16,799 new
commitments to New York State’s prisons and

Vol. 17, No. 4; Fall 2007

Page 3

over 6,000 of those were for drug offenses.
Eleven percent of current state prisoners are on
the mental health caseload and at least 3,500
inmates are classified as having major mental
disorders.
If we had the ability to divert some or most
of these individuals to drug or mental health
courts, the State would save millions. It is quite
possible that the result would be that
Commissioner Fisher would not only not have
to cut his agency’s budget but, due to the
decrease in the prison population, there would
be more in-prison programming opportunities
for those who are incarcerated.
A similar argument could be made with
respect to education. In 1995, the New York
Legislature voted to change the existing laws
and prohibit prisoners from receiving New York

State Tuition Assistance Program (“TAP”)
grants. At the same time, the Federal government
similarly prohibited Federal Pell Grants to
prisoners. The combined result of these changes
effectively terminated all college programs in
DOCS. And yet, historically, studies had shown
that, in New York, only 26.4% of the inmates
who earned a degree returned to prison,
compared to 44.6% of those who participated in
the college program but did not complete a
degree. Studies conducted by states across the
U.S. have shown the recidivism rate of prisoners
to be inversely proportional to their level of
education.
PLS is working hard to ensure that, at least
with respect to funding for in-prison programs,
history does not repeat itself.

§§§§§§§§§§§§§§§
…article continued from Page 1

‹ Using valid evidence-based practices to
guide decision making and programming.
The Commission noted that over 30 years of
research exists that identifies crucial
components of effective and successful
correctional and community interventions
and programs. Theses studies are commonly
referred to as “evidence-based practices.”
The Commission recommended that New
York review this body of research and
develop our institutional and community
programming based upon “scientifically
validated, evidence-based practices.”

‹ Using “graduated sanctions,” such as
curfews, home confinement, electronic
monitoring, and re-entry courts, to help end
the “revolving door” of incarceration for
certain offenders under parole supervision
who violate one or more conditions of
parole but commit no new crime. The
committee found that, currently, a large
number of parolees are returned to state
prison on technical parole violations and
that, in many cases, there were better and
more cost-effective community based
alternatives.

Page 4

‹ Expanding prison-based educational and
vocational training programs and workrelease, enhancing employment and housing
opportunities for ex-convicts, and
“utiliz[ing] other cost-effective measures
designed to reduce recidivism and increase
public safety.”
‹ Establishing a permanent sentencing
commission in New York to serve as an
advisory board to both the Legislative and
Executive branches.
As noted, however, the Commission failed
to address further reform of the so-called
Rockefeller Drug Laws. According to many
advocates, the limited drug law reforms of 2004
and 2005, which reduced the sentences that
most drug offenders can expect to receive and
provided an opportunity for inmates convicted
of A-1 drug offenses and some inmates
convicted of A-II offenses prior the reform to
apply for a reduced sentence, did not go far
enough. They note that reform has not touched
B drug offenders sentenced before the reform
laws were passed, and that many other aspects
of the Rockefeller era drug laws, including
mandatory prison terms for many first time drug
offenders, as well as mandatory prison for nonviolent second felony offenders, remain in
place. It was widely expected that the
Commission would recommend further reform.
The Commission noted that it had heard
conflicting views on the merits and de-merits of
the Rockefeller era laws. Prosecutors
maintained that they encourage cooperation in
the prosecution of higher ups in drug
organizations and provide a strong incentive for
drug-addicted offenders to participate in DOCS’
treatment programs, such as Willard and
CASAT.
Advocates of further drug reform pointed
out that there were more annual admissions of

Vol. 17, No. 4; Fall 2007

drug offenders into State prison in the past two
years, after the reform, than in the years
immediately preceding the reform. Moreover,
they noted, thousands of persons sentenced
under the former drug laws, including many
A-II drug offenders and all B drug offenders,
remain ineligible to seek re-sentencing.
The Commission report stated that “it will
be challenging to reconcile these competing
views” and stated that it intends to further study
the impact of the 2004 and 2005 reform
measures as well as proposals for additional
sentencing reform before issuing its final report.
With respect to reforming New York
sentencing laws more broadly, as noted above,
the Commission came down strongly in favor of
moving to a determinate sentencing scheme for
almost all offenses. In doing so, the
Commission criticized the uncertainty inherent
in indeterminate sentences, in which the Parole
Board’s subjective judgment is often the
principal factor in determining when an inmate
will be released. Under the current system, the
Commission noted, a person serving an
indeterminate sentence may have up to five
potential release dates: a supplemental merit
eligibility date for most drug offenses; a merit
eligibility date; a parole eligibility date; a
conditional release date; and a maximum
expiration date.
Determinate sentencing, on the other hand,
allows the parties to leave the courtroom
with a greater understanding of the
length of the sentence…and, by
eliminating entirely the subjective
assessments and release decisions of an
intervening parole…reduces the
possibility that like offenders will be
treated differently with regard to time
actually served, thereby promoting
greater fairness.

Vol. 17, No. 4; Fall 2007

“Understandably,” wrote the Commission,
“many defendants reportedly prefer the
certainty of determinate sentences to the
vagaries of the parole process.”
In addition, the Commission stated, the
Parole Board “has achieved only mixed results”
in determining when a person should be
released, citing the following statistic: for nonviolent felony offenders released from DOCS in
2004, the percentage who returned to prison
within 24 months was virtually the same for
those released following their first parole
hearing (38.2%) as those denied initial release
and then released following their second or
subsequent hearing (38.6%).
The Commission recommended retaining
indeterminate sentences only for the most
egregious sentences which now require
maximum terms of life, such as non-drug A-I
and A-II offenses and persistent felony offender
sentences. It identified two reasons for this.
First, the Commission found, there are some
instances in which early release is appropriate
for inmates serving long sentences for very
serious crimes (e.g., where an inmate is serving
a life sentence for a crime committed at a young
age who is determined by the Parole Board to
not longer pose a threat to others). In those
cases, the Commission found, an inmate should
have an opportunity to go before a Parole Board
and present a case for release. Second, the
possibility that an inmate serving a life sentence
may be granted release on parole provides a
strong incentive for good behavior.
The Commission held additional hearings in
November in New York City, Albany, and
Buffalo. PLS testified at the hearing in Buffalo.
The Sentencing Commission is expected to
produce a final report in the Spring.
Copies of the full preliminary report have
been made available to DOCS and should be
available in all prison libraries. The report is
also available online at:

Page 5

http://www.criminaljustice.state.ny.us/legalservices/
sentencingreform.htm.

News and Briefs

Courts Split on Eligibility Requirements for
Re-Sentencing of A-II Drug Offenders
The Drug Law Reform Act of 2005 was
intended to allow certain A-II drug offenders
sentenced under the harsh Rockefeller Drug
Laws apply to be re-sentenced to new, lesser,
determinate sentences. The Act, however,
imposed several stringent eligibility
requirements, among them: in order to be
eligible for re-sentencing, the offender must
meet “the eligibility requirements” for merit
time.
This requirements has raised the question:
What are the eligibility requirements for merit
time?
Merit time is governed by Correction Law
§ 803(1)(d). Nowhere in that statute is the term
“eligibility requirements,” or any similar
expression, used. Instead, subsection (i) of the
statute states that all inmates serving
indeterminate terms (as well as certain inmates
serving determinate terms) may “earn” merit
time. Subsection (ii) states that merit time “shall
not be available” to inmates convicted of certain
specified offenses, including violent offenses.
And subsection (iv) states that merit time “may”
be “granted” when an inmate “successfully
participates” in an assigned “work and treatment
program” and “obtains a general equivalency
diploma, an alcohol and substance abuse
treatment certificate, a vocational trade
certificate...or performs at least four hundred
hours of service as part of a community work
crew” and “shall be withheld for any serious
disciplinary infraction”--or upon a judicial
determination that the defendant, while an

Page 6

inmate, commenced a frivolous lawsuit,
proceeding, or claim against a state agency,
officer, or employee.
In People v. Sanders, 829 N.Y.S.2d 187
(2d Dep’t 2007), the Second Department of the
State Appellate Division held last winter that
the “eligibility requirements” for merit time-and, thus, for re-sentencing--included only those
requirements outlined in subsections (i) and (ii)
of Correction Law § 803(1)(d).
In other words, the court held, an inmate
who is serving an indeterminate sentence, and
who has not been convicted of one of the
offenses specified in subsection (ii) of the
statute, is “eligible” for merit time. Whether
DOCS has actually granted or “withheld” the
time, under the criteria listed in subsection (iv),
is irrelevant as to whether the inmate is
“eligible” in the first place. The contrary
argument, the court found, would allow DOCS,
rather than the courts, to decide which A-II
offenders were eligible for re-sentencing,
simply by deciding who did and did not receive
merit time.
Nonsense, held the First Department of the
Appellate Division this Summer, in People v.
Paniagua, 841 N.Y.S.2d 506 (1st Dep’t 2007).
Subsection (iv) of Correction Law § 803(1)(d)
specifically provides that to obtain a merit time
allowance, an inmate must not have committed
a “serious disciplinary infraction.” Not having
a serious disciplinary infraction may, therefore,
“fairly be concluded [an] eligibility
requirement” for obtaining merit time.
The argument in Sanders that this
interpretation grants DOCS the authority to
decide which A-II offenders will be eligible for
re-sentencing, the Paniagua court continued,
overlooks the fact that the
Legislature...could have reasonably
decided to deny re-sentencing to
individuals who had not met the

Vol. 17, No. 4; Fall 2007

requirements for being granted merit
time. An inmate’s failure to meet those
requirements and, in particular, his
repeated commission of serious acts of
insubordination while incarcerated, can
only be viewed adversely in considering
his likelihood of re-adjusting to life
outside of prison.
Practice pointers: The Paniagua decision
means that there is now a split between the First
and Second Departments over which A-II drug
offenders will be eligible for re-sentencing. In
the First Department (which covers courts in
Manhattan and the Bronx), offenders who have
either been convicted of a “serious”
disciplinary infraction or have not completed
the program requirements for merit time are
ineligible for re-sentencing. In the Second
Department (which covers courts in Brooklyn,
Queens, Long Island, and Southern New York),
such offenders are eligible for re-sentencing (so
long as they also meet the additional eligibility
criteria in the Drug Law Reform Act of 2005.)
The additional eligibility criteria for resentencing under the Act are: that the offender
be committed prior to October 29, 2005; that he
be sentenced to a minimum term of at least
three years; and that he be more than three
years from a parole eligibility date.
DOCS considers a “serious” disciplinary
infraction to be any misbehavior which results
in “60 or more days of SHU and/or keeplock
time” or “receipt of any recommended loss of
good time as a disciplinary sanction.”
See 7 NYCRR § 280.2(b).

Vol. 17, No. 4; Fall 2007

Federal Cases

Court Rejects Brutality Claim; Finds Inmate
Failed to Exhaust Administrative Remedies
Wilkinson v. Banks, 2007 WL 2693636,
W.D.N.Y., September 10, 2007 (NO.
02-CV-361) (Unreported Decision)
The Prison Litigation Reform Act (“PLRA”)
of 1995 requires inmates to exhaust their
administrative remedies before filing a claim
involving prison conditions in federal court. In
Woodford v. Ngo, __ U.S. __ 126 S.Ct. 2378
(2006), the Supreme Court held that exhaustion
under the PLRA means “proper exhaustion”,
which, in turn, means using all the grievance
steps a prison administration holds out “and
doing so properly.” In that case, the court found
that a prisoner who had filed a late grievance
had not exhausted his administrative remedies,
even though he properly appealed the prison
system’s decision that the grievance was late.
Woodford did not, however, overrule a 2004
decision from the Second Circuit Court of
Appeals which established some exceptions to
the exhaustion rule. In Hemphill v. New York,
380 F.3d 680 (2d Cir 2004), the court held the
failure to properly exhaust may be excused if
the grievance process was not “available” to the
prisoner, or if the Defendant’s own actions-such as threatening retaliation--inhibited or
prevented the inmate from using it, or if other
“special circumstances” could plausibly justify
the prisoner’s “failure to comply with [the]
administrative procedural requirements.”
In this case, the Plaintiff, Darrell Wilkinson,
alleged that he was assaulted by several
Correction Officers in an exercise pen at
Southport in May of 1999. He did not file a
grievance about the assault until July of 2001,
after he had been transferred out of Southport.

Page 7

On July 17, the Superintendent of the facility
where he filed the grievance (Elmira) rejected it
on the grounds that it was untimely. The form
on which the Superintendent rejected the
grievance contained a pre-printed notice at the
bottom entitled “Appeal Statement,” which
advised Wilkinson that if he wished to “refer”
the Superintendent’s decision, he must sign the
document and return it to the Inmate Grievance
Clerk. It further advised that he must file his
appeal within four working days from receipt of
“this notice.”
On July 30, 2001, Wilkinson sent his appeal
directly to the Central Office Review
Committee (“CORC”). On August 9, 2001,
Thomas Eagen, Director of the Inmate
Grievance Program, wrote to Wilkinson,
returning his appeal. The letter explained,
“[DOCS's] policy, Directive # 4040, Inmate
Grievance Program (“IGP”), provides inmates
with an orderly, fair and simple method of
resolving grievances pursuant to the Correction
Law. The directive makes no provision for an
inmate to refer grievances directly to [CORC].”
Wilkinson filed his lawsuit one year later, on
May 16, 2002.
Under these facts, the court concluded that
Wilkinson had failed to exhaust his
administrative remedies.
As an initial matter, the court found that the
two-year delay in filing the grievance did not
make it untimely. This is because, during much
of that period, the law in Second Circuit did not
require exhaustion of administrative remedies
for prisoner claims of assault or excessive force,
on the grounds that such claims did not involve
prison “conditions.” It was not until May of
2001 that the Supreme Court decided, in Booth
v. Churner, 532 U.S. 731, that the exhaustion
requirement applied to excessive force claims.
Under the circumstances, the court agreed with
Wilkinson that his grievance, filed within four
weeks of Booth, should be considered timely.

Page 8

The court also found that it could not
conclude that his appeal to CORC was
untimely. Although the appeal was not
submitted until July 30, 2001--13 days after the
Superintendent denied the grievance--the record
did not establish when Wilkinson received the
denial. It was thus impossible to determine
whether his appeal was untimely.
The court, nevertheless, found that
Wilkinson’s decision to send his appeal directly
to CORC, rather than to file it with the Inmate
Grievance Clerk, was a procedural error.
Wilkinson argued that, if so, the error
should be excused, because the instructions that
he received regarding appealing were unclear
and confusing. Specifically, he argued, they
seemed to indicate he had two options available:
first, to “refer” the Superintendent’s decision by
returning the form to the Inmate Grievance
Clerk; and second, to appeal to CORC within
four days of the receipt of the form. As to the
second option, he argued, the instructions did
not obligate him to file his appeal with the
Clerk, rather than to forward it directly to
CORC, as he did.
The court disagreed. In Hemphill, the court
noted, the Second Circuit held that one of the
“special circumstances” that may excuse a
failure to properly exhaust administrative
remedies is a prisoner’s reliance on a
reasonable, if ultimately incorrect, interpretation
of prison grievance regulations. Here, however,
the court found that Wilkinson’s belief that he
could file his appeal directly with CORC was
not a reasonable interpretation of the rules.
First, the court held, “the belief that DOCS
rules afforded a prisoner dissatisfied with a
Superintendent’s grievance decision two
separate avenues of review is belied by the
heading placed directly above the instructions”
that Wilkinson received. That heading stated
“Appeal Statement,” and provided room for
Wilkinson to write a response to the decision. It

Vol. 17, No. 4; Fall 2007

did not, according to the court, suggest two
options, i.e., appeal or referral.
Moreover, the court continued, Wilkinson’s
interpretation “makes little sense.” “Only by
taking the instructions as a whole,” the court
wrote, “and reading them to refer to a prisoner’s
right to appeal to CORC, do they make sense.”
Read together in this manner, the
instructions identify the body by whom
review may be sought (CORC), the
manner in which review may be sought
(by forwarding the form to the Inmate
Grievance Clerk) and the deadline by
which review may be sought (four days
from receipt of the Superintendent's
decision).
Since Wilkinson had failed to “properly’
exhaust his grievance, and since he had no
“reasonable” excuse for his failure, the court
dismissed his claim.
Practice pointer: This case turns on what
appears to be a minor technicality: Wilkinson
sent his appeal directly to CORC, rather than
filing it with the IGRC clerk. However, that was
enough for the court to conclude that he had
failed to exhaust his administrative remedies-and bar him from court. Cases such as this
should serve as a reminder to inmate-litigants
of the importance not only of exhausting
administrative remedies, but of doing so
“properly.”
The Plaintiff in this case was represented by
Prisoners’ Legal Services.

Vol. 17, No. 4; Fall 2007

Page 9

State Cases

Disciplinary Cases
Inmate Found Not Guilty of Refusing To
Double Bunk, Guilty of Refusing to Obey
Direct Order
Matter of Amaker v Selsky,838 N.Y.S.2d 921
(3d Dep’t 2007)
The Petitioner in this case refused to comply
with a Correction Officer’s order to move to a
double-bunk cell. As a result, he was charged in
a Misbehavior Report with refusing a direct
order and refusing a double-bunk assignment.
At the Tier III disciplinary hearing, the Hearing
Officer reviewed certain paperwork and agreed
that the Petitioner was not supposed to be
housed in a double-bunk cell. Consequently, he
was found not guilty of refusing a double-bunk
assignment, but guilty of refusing a direct order.
After the determination was affirmed on
administrative appeal, the Petitioner
commenced an Article 78 proceeding.
The court sustained the hearing, noting: the
“Petitioner was not entitled to refuse to obey the
order even if he felt that it was not authorized…
His recourse was to file a grievance.”

Minor Gaps in Hearing Transcript Did Not
Preclude Review
Matter of Berry v. Goord, 837 N.Y.S.2d 880
(3d Dep’t 2007)
The Petitioner was charged with creating a
disturbance, harassment, assaulting staff,
engaging in violent conduct, refusing a direct
order, and interfering with an employee after
allegedly becoming disruptive in his cell.
Following a Tier III hearing, he was found
guilty of all charges. After the determination
was affirmed on administrative appeal, he
commenced an Article 78 proceeding. He
argued that the hearing transcript contained gaps
which precluded meaningful review, and
required that the hearing be reversed.
The court, after reviewing the hearing,
disagreed. It found that the hearing transcript
did not preclude meaningful judicial review.
After reviewing the remainder of the
Petitioner’s claims, the court affirmed the
hearing result.
Practice
pointer:
Seven
N.Y.C.R.R.254.6(a)(2) provides that the entirety
of a Tier III hearing must be electronically
recorded. Courts are reluctant to reverse
disciplinary hearings, however, solely because
certain portions of the hearing transcript may
be unintelligible, so long as the deficiencies
“are minor and sporadic and do not impede
resolution of the other issues raised.” Wilson v.
Coombe,655 N.Y.S.2d 192 (3d Dep’t 1997).
In Matter of Berrios v. Kuhlmann, 532
N.Y.S.2d 593 (3d Dep’t 1988), the Hearing
Officer held a two-minute, off-the-record
conversation with an inmate regarding the
unavailability of an employee witness and some
confusion over the dates a urine sample had
been taken. The inmate argued that the hearing
had to be reversed because the conversation
violated the rule that hearings must be
recorded. The court disagreed, writing:

Page 10

The purpose of [a] hearing record is to
allow review by a higher authority.
Since there was no dispute as to the
content of the conversation, the issue of
whether it was on the record is
academic and the failure to record it at
the time cannot be said to constitute
reversible error. Furthermore, there
was sufficient documentary evidence
and testimony in the record which
established the dates which the
specimen was taken and the testing
conducted. Thus, no prejudicial error
occurred in this regard.
Courts will only reverse a disciplinary
hearing on these grounds when the deficiencies
in the transcript make it impossible to review
the adequacy of the hearing or the issues raised
in the appeal. For example, in Scott v.
Coughlin, 615 N.Y.S.2d 828 (Supreme Court,
Dutchess Co., 1994), the Hearing Officer relied
on confidential testimony from inmate Fosse to
convict inmate Scott of assault. The tape of
Fosse’s testimony, however, was cut off after
just two minutes. Since the evidence relied upon
by the Hearing Officer was unavailable for
judicial review, the court found that the hearing
had to be reversed and expunged.
Hearing Reversed Where DOCS Lacked
Authority to Open Inmate’s Mail
Matter of Tevault v. Goord, Index # 6658-06
(Supreme Court, Albany Co., May 3, 2007)
(Unreported Decision)
The Petitioner, an inmate then at Upstate
Correctional Facility, mailed a letter to his
father in Brooklyn. When the letter arrived in
the facility mail room, there was no postage on
the envelope. The mail clerk opened the
envelope. Inside, she found two letters which

Vol. 17, No. 4; Fall 2007

she forwarded to security. Upon inspecting the
correspondence, it was determined that one of
the letters was written to the Petitioner’s father
and contained a request that he mail the other
letter to a fellow inmate. The Petitioner was
thereafter charged with a violation of
correspondence procedures and solicitation.
Both charges were affirmed and the Petitioner
commenced an Article 78 proceeding.
In his Article 78 proceeding, the Petitioner
argued that the hearing had to be reversed
because the mail clerk had no authority to open
his mail. At the hearing, the clerk had testified
that when she received the correspondence
without postage, she assumed that it would be
treated as privileged. However, she found that
the addressee was not listed in the New York
State Lawyer’s Diary and, therefore, she could
not treat the correspondence as privileged. She
decided to treat it as regular correspondence-which, she testified, she had the authority to
open.
The rules regarding outgoing mail are
contained in 7 NYCRR § 720.3. Subsection (e)
of that rule provides that “[o]utgoing
correspondence shall not be opened, inspected,
or read without express written authorization
from the facility superintendent.” Subsection (q)
states that outgoing correspondence that does
not comply with other provisions of the
outgoing mail regulations “will be opened and
returned to the inmate.”
Here, the court held that returning the
correspondence to the inmate may have been an
“appropriate procedure…not at odds with the
regulations.” However, the court went on,
“given the explicitly prohibition against
opening, inspecting or reading outgoing
correspondence without express written
authorization from the facility superintendent,
and in the absence of some [other] violation of
the regulation, the clerk had no authority to
open the correspondence.” Since DOCS could

Vol. 17, No. 4; Fall 2007

not show “reasonable compliance” with the
regulations regarding opening inmate
correspondence, the hearing was reversed.

Other Cases
Absent Evidence of Dangerousness,
Possession of Small Amount of Marijuana
Does Not Support Charge of Promoting Prison
Contraband in First Degree
People v. Cole, 842 N.Y.S.2d 636
(4th Dep’t 2007)
People v. Finley, 839 N.Y.S.2d 393
(4th Dep’t 2007)
Penal Law § 205.25 provides that a person
is guilty of promoting prison contraband in the
first degree if he “knowingly and unlawfully
introduces any dangerous contraband into a
detention facility” or “being a person confined
in a detention facility, he knowingly and
unlawfully makes, obtains or possesses any
dangerous contraband.”
“Dangerous Contraband” is defined in Penal
Law § 205.00(4) as “contraband which is
capable of such use as may endanger the safety
or security of a detention facility or any person
therein.”
In People v. Cole, the Defendant was
indicted for promoting prison contraband in the
first degree after being found by Correction
Officers with what the court described as “a
small quantity” of marijuana. He moved to
dismiss the indictment, arguing that a small
amount of marijuana did not constitute

Page 11

“dangerous” contraband and that, therefore, he
could not be found guilty under this section.
The court, citing past precedent, agreed.
Absent specific evidence that the small quantity
of marijuana possessed by the Defendant
endangered the safety of the facility, the court
held, the Defendant could not be indicted under
that count.
In People v. Finley, the Defendant was
convicted of promoting prison contraband in the
first degree, where the evidence showed that,
upon being asked for his identification card by
a Correction Officer, he threw a wad of toilet
paper containing three marijuana cigarettes to
the grounds. In his appeal, he argued that the
jury erred in convicting him of this count
because the small amount of marijuana at issue
did not endanger the safety or security of the
facility.
The Finley court disagreed. It pointed to
evidence provided by a Deputy Inspector
General for the Department of Corrections who
testified that the Defendant’s possession of
marijuana endangered the safety of the
correctional facility because, by throwing the
marijuana on the ground, he “created a
heightened risk that another inmate would
attempt to grab the marijuana and that the
Correction Officer would then have to chase
after the other inmate.” In addition, “the
Correction Officer had to turn his back and walk
away from defendant in order to retrieve the
marihuana that was thrown on the ground, thus
creating a heightened risk of injury to the
officer” and, by focusing his attention on the
Defendant and the marijuana, “the officer was
no longer able to supervise the inmates on his
block.”
This testimony, held the court, constituted
sufficient evidence of dangerousness to uphold
the conviction.
Practice pointer: The court upheld
Defendant Cole’s indictment under the lesser
charge of promoting prison contraband in the

Page 12

second degree, which requires only that the
defendant “knowingly and unlawfully make[],
obtain[] or possesses any contraband.” See,
Penal Law § 205.20
In People v. Camarena, 839 N.Y.S.2d 635
(3d Dep’t 2007), the court held that evidence
that the Defendant possessed a “sharpened,
6½-inch metal rod” was plainly sufficient for a
conviction under promoting prison contraband
in the first degree.
Court Upholds DOCS Ban on Smokeless
Tobacco
Matter of O’Keefe v. Goord, 843 N.Y.S.2d 193
(3d Dep’t 2007)
The Petitioner, an inmate in SHU,
challenged the denial of his grievance
requesting smokeless tobacco and the DOCS
policy which does not permit its possession and
use by SHU inmates. In his petition, he
contended that the policy violated SHU
inmates’ constitutional rights. The court noted,
however, that in Matter of Malik v. Coughlin,
550 N.Y.S.2d 219 (3d Dep’t 1990), it had
previously upheld the constitutionality of the
regulations that the Petitioner challenged with
respect to the denial of such items such as a
watch, a hairbrush, and personal photographs to
SHU inmates.
In Malik, the court wrote: “Conditions of
confinement are not within the proscription of
the Eighth Amendment unless they ‘deprive
inmates of the minimal civilized measure of
life's necessities’” or, stated another way, are
“‘barbarous’ or ‘shocking to the conscience.’”
The denial of a watch, a hairbrush and personal
photographs, the court continued, “are the usual
incidents of confinement in maximum
security… [P]etitioner is not physically injured
by [the denial]” and, accordingly, “has failed to
establish cruel and unusual conditions and the

Vol. 17, No. 4; Fall 2007

directives at issue clearly satisfy the
requirements of the Eighth Amendment.”
Here, the court found, without elaboration,
that “smokeless tobacco does not warrant a
different result.”
The Petitioner also argued that DOCS’
policy prohibiting smokeless tobacco was
arbitrary and capricious. To that end, he
attempted to link the prohibition against the use
of smokeless tobacco by SHU inmates to the
1999 DOCS policy banning indoor smoking in
an effort to improve indoor air quality. The
Petitioner argued that it was arbitrary and
capricious for DOCS to also ban smokeless
tobacco, as smokeless tobacco has no effect on
indoor air quality.
The court noted, however, that smokeless
tobacco was not a permitted item for SHU
inmates prior to the implementation of the
indoor smoking ban. Consequently, it found his
argument “unavailing.”
Court Upholds Constitutionality of Rule
Requiring Parole Time Assessment Equal to
Minimum Term for Shock Violators
Smith v. Vann, 16 Misc.3d 1132(A) (Supreme
Court, Clinton County, Aug. 15, 2007)
(Unreported Decision)
DOCS’ Shock Incarceration Program,
created in 1987, allows inmates who are
accepted into the program to undergo a
six-month regimen of “rigorous physical
activity, intensive regimentation and discipline
and rehabilitation therapy and programming.”
Upon successful completion of the program, the
inmate becomes eligible to receive a certificate
of earned eligibility which, in turn, entitles him
or her to apply for parole prior to the expiration
of the minimum term.
Under rules established by the Division of
Parole, an inmate who has been granted early

Vol. 17, No. 4; Fall 2007

parole after completing Shock, who thereafter
violates parole and who is not restored to
parole, must be given a “time assessment”--i.e.,
returned to prison--for a period “equal to the
minimum period of imprisonment imposed by
the court.” 9 NYCRR § 8010.3(a). Moreover, in
calculating the length of the time assessment,
the six-month period of shock
incarceration shall not be deemed to be
a part of the minimum period of
imprisonment, and the violator shall
therefore not receive credit for that time
in calculating the minimum period of reincarceration. However, the minimum
period of re-incarceration shall be
reduced by the violator’s
pre-commitment jail time and any time
spent incarcerated in a State correctional
facility other than a shock incarceration
facility.
9 NYCRR § 8010.3(b)
The Petitioner in this case commenced his
2- to 6-year sentence on September 30, 2004.
He was credited with 29 days of jail time credit.
He entered the Shock program on March 14,
2005 and, after completing the program, was
paroled on September 15, 2005.
On September 26, 2006, he was declared
delinquent and, in accordance with the above
rule, the Division of Parole imposed a 2-year
time assessment. Pursuant to the rule, the time
assessment was credited with the Petitioner’s
pre-incarceration jail time, as well as the time
he spent in prison outside the Shock
Incarceration Program, but it was not credited
with the six months he spent in Shock.
The Petitioner sued, arguing that since the
time assessment required that he stay in prison
beyond his original parole eligibility date
without seeing a Parole Board, it was
unconstitutional.

Page 13

The court disagreed, writing:
[T]he petitioner has confused the
concept of a minimum period of
incarceration of an indeterminate
sentence...with [the] delinquent time
assessment imposed upon the revocation
of parole.
The minimum period of an
indeterminate sentence of imprisonment
must be imposed by a sentencing court
pursuant to Penal Law § 70.00(1) and
(3). For most inmates the expiration of
the minimum period of imprisonment
marks the point at which he or she
becomes eligible for release from DOCS
custody to parole supervision... For
inmates like the petitioner, however,
who successfully complete the DOCS
shock incarceration program, initial
parole eligibility is not necessarily based
upon the expiration of his or her
minimum period of imprisonment...
Thus, following completion of the shock
incarceration program, the petitioner
was released to parole supervision on
September 15, 2005--almost one year
earlier than he would have been eligible
for parole had he not participated in the
program.
[W]hen an inmate is...returned to
DOCS custody as a parole violator, the
timing of his or her eligibility for
re-release to parole supervision
is...based upon the expiration of the
delinquent time assessment imposed by
the Administrative Law Judge upon
conclusion of the final parole revocation
hearing…In [this] case...petitioner’s
delinquent time assessment was
imposed
by the ALJ…in accordance with
the…provisions of 9 NYCRR § 8010.3.

Page 14

Under these facts, the court continued,
[there is] no basis to conclude that the
minimum period of incarceration
imposed by the sentencing judge...has
been unconstitutionally extended by [the
Division of Parole]. Petitioner's
minimum period of incarceration has
always been two years and it is not
disputed that the petitioner has, in fact,
completed the minimum period of his
incarceration. As a reincarcerated parole
violator, however, the petitioner’s
eligibility for re-release to parole
supervision is now contingent on the
expiration of the delinquent time
assessment imposed by the ALJ at his
final hearing.
The court thus found no merit to the Petitioner’s
position that,
even after his early parole release,
following completion of the shock
incarceration program, and subsequent
return to DOCS custody as a parole
violator, the expiration of his minimum
period of imprisonment still triggers
eligibility for parole release regardless
of the delinquent time assessment.
It therefore dismissed his case.
TAC May Not Withhold Good Time Where
DOCS Was Unable to Provide Recommended
Programing
Matter of Ferrer v. Goord, Index # 1630-07
(Sup Ct., Albany Co., September 11, 2007)
(Unreported Decision)
Good Time, as they say, “is in the nature of
a privilege…and no inmate as the right to
demand or to require that any good behavior

Vol. 17, No. 4; Fall 2007

allowance be granted to him.” 7 NYCRR 260.2.
The determination to withhold Good Time “is
discretionary in nature and, as long as it is made
in accordance with the law, it will not be subject
to judicial review. Correction Law § 803.
In this case, a Time Allowance Committee
recommended that all of the Petitioner’s Good
Time be withheld “for completion of required
ASAT program.”“Need [for ASAT] was clearly
established,” the TAC continued, “ in August of
2005…Inmate may reapply to TAC for
reconsideration upon successful completion of
program.” After the recommendation was
confirmed by the superintendent, the inmate
challenged the decision in an Article 78
proceeding.
The court found that things were not as clear
as the TAC implied.
The Petitioner’s August 2005 quarterly
interview showed that substance abuse
treatment was recommended, but it also
indicated that the Petitioner had not refused to
accept any recommended program. In a memo
dated August 17, 2005, his Correction
Counselor said only that “a final determination
for substance abuse needs will be made” after
the Petitioner’s evaluation by an Alcohol and
Substance Abuse Counselor.
Quarterly interview records over the next
year showed the same thing: substance abuse
treatment was being recommended and the
Petitioner was not refusing to participate in any
recommended programming. The record of the
February 2006 hearing interview showed that
the Petitioner ‘disputed’ the recommended need
for substance abuse programming, and that for
May 2006 stated that he ‘questioned’ the need
and, in both instances, the Correction Counselor
indicated that he would speak to the Alcohol
and Substance Abuse Counselor--although the
record contained no evidence that he ever did.
In the record of the Petitioner’s August 2006
interview, the Correction Counselor wrote:
“Acceptable attitude at interview--Still says he

Vol. 17, No. 4; Fall 2007

doesn’t need ASAT.” The interview form
continued to show, however, that the Petitioner
was not refusing any programming.
In January of 2006, the Petitioner wrote a
note to his counselor following their interview
in which he said: “As per our discussion; in
regards to my program needs you told me you
didn’t see why ASAT would be a requirement
for me. I agree, however if I got to take ASAT
refer me to the ASAT people have me
interviewed etc. all this way I could knock this
program out. If I don’t need it let me know. We
discussed this at length. So please stay on top of
the ball for me.”
Under the circumstances, the court found
that the record did not support the TAC’s
conclusion that the need for ASAT was clearly
established or that the Petitioner had refused to
take it. Thus, the court found, “the question is
whether the Department of Correctional
Services’ failure to timely provide
recommended programming is consistent with
the statutory purpose and thereby provides a
rational basis for withholding good time.”
Correction Law § 803(1)(a) provides:
Every person confined in an institution
of the department or a facility in the
department of mental hygiene serving an
indeterminate or determinate sentence of
imprisonment, except a person serving a
sentence with a maximum term of life
imprisonment, may receive time
allowance against the term or maximum
term of his sentence imposed by the
court. Such allowances may be granted
for good behavior and efficient and
willing performance of duties assigned
or progress and achievement in an
assigned treatment program, and may be
withheld, forfeited or canceled in whole
or in part for bad behavior, violation of
institutional rules or failure to perform

Page 15

properly in the duties or program
assigned.
In withholding the Petitioner’s Good Time,
the TAC did not rely on the Petitioner’s bad
behavior or a violation of institutional rules.
And, although a refusal to participate in a
recommended program has been consistently
treated as a failure to perform an assigned
program, nothing in the statute provides that
Good Time may be withheld based on the
failure of DOCS to timely arrange for
recommended programming.
The court stated that it was “aware of the
benefits of providing certain inmates with
relevant therapeutic programming prior to
release as well as the budgetary constraints that
may impact DOCS’ ability to timely meet that
need.” However, the court went on, “the statute
does not authorize respondents to withhold good
time on the basis that an inmate has not, for
unexplained reasons, completed a recommended
program.” Such a rule, stated the court
would open the door to wholly arbitrary
conduct in that an inmate’s ability to be
awarded good time could be subject to
the whim of those who make program
assignments. In the absence of any
reasoned explanation as to why a
recommended program has not been
provided, the determination withhold
good time on the basis that
recommended program has not been
completed is not in accord with the law
and must be set aside.
The court ordered the TAC to reconsider the
Petitioner’s case under the appropriate statutory
guidelines.

q

Page 16

Inmate Fails to Prove That Inadequate
Security Led to Assault
Vazquez v. State, (NY Court of Claims, July 5,
2007) (Unreported Decision)
The Claimant, an inmate, was assaulted on
March 9, 2002 by an unidentified inmate at
Elmira Correctional facility. He sued the State,
alleging that the assault was due to inadequate
staffing and negligent supervision at Elmira
Correctional Facility.
The facts were as follows:
The Claimant had been housed at Elmira for
approximately 12 days before the incident,
although he had previously been incarcerated at
Elmira for approximately 12 years during the
course of his sentence. When he was admitted to
Elmira, he advised facility officers that he had
no known enemies.
At the time of the assault, he was seated in
the bleachers near the televisions at the
basketball court located in Elmira’s gym. An
allegedly unknown assailant with two
accomplices crossed the gym, went up the stairs
into the bleachers, and slashed his face with a
razor blade.
According to testimony and evidence at
trial, ten officers would routinely be assigned to
the gym area: One officer would be assigned to
the COs’ office; one to the observation booth,
which overlooks both the gym and the gym
yard; two to a desk in the shower/telephone
area; four officers would normally be assigned
to posts outside in the gym yard; and two would
be in “roving posts” on the gym floor.
There were 157 inmates in the gym area at
the time of the incident but it was unclear how
many were in the gym and how many were
outside, in the gym yard.
CO Cardinale testified that he was on duty
in the shower area at the time of the incident.
He became aware that there was a problem
when an inmate caught his attention and

Vol. 17, No. 4; Fall 2007

gestured toward the bathroom. He went into the
bathroom and found the Claimant kneeling on
the floor in front of a toilet, apparently washing
his face in the toilet. Cardinale told him to get
up. When the Claimant complied, he held a
piece of cloth to his face and turned his head
away from Cardinale. When Cardinale told him
to remove it, he saw that the Claimant was
injured and took him to the medical area of the
facility. He testified that he believed eight to ten
officers were assigned to the gym area that day.
He said he did not know how many of those
officers were actually in the gym at the time of
the assault, nor did he know how many inmates
were in the gym.
A videotape of the gym at the time of the
assault did not show the actual assault (which
occurred out of the field of view of the camera),
but it did show three individuals walking across
the gym floor toward the stairs where the
Claimant was seated in the bleachers. The time
stamp on the tape indicates that this occurred at
1:59:17 p.m.. At 1:59:42 p.m., a Correction
Sergeant is seen on the tape exiting the COs’
office and walking out the gym door to the gym
yard. At 2:00:09 p.m., the tape shows the
Claimant exiting the staircase to the bleachers
holding something to his face as he walked into
the bathroom area. The Claimant testified that
he looked around the gym area for a CO after he
was attacked, but did not see one, so he went
into the bathroom to clean the blood off his
face. While individuals appearing to be COs
entered and exited the security office during the
course of the video, it was impossible to
determine from the video whether any officers
were on the floor of the gym outside the range
of the camera.
Robert DeRosa, a former Warden of the
Anna M. Kross Detention Center for Men at
Rikers Island, testified as a corrections expert
on behalf of the Claimant.
DeRosa testified that, in his opinion, DOCS’
operation of the gym area at Elmira was not

Vol. 17, No. 4; Fall 2007

consistent with the general principles of
penology. In his view, because the officers
assigned to the gym floor were not assigned to
specific locations, but instead to a “roving
patrol,” it was impossible for them to fulfill
their duties regarding the care, custody, and
control of the inmates, and it was further
impossible for the officers to respond
effectively in an emergency situation. He said
that at one point on the videotape (at
approximately 1:15 p.m., nearly 45 minutes
prior to the assault), it appeared that there were
11 Correction Officers located in the security
office. In his opinion, that continuous flow of
officers into the office indicated that security
was not being effectively provided, and he
believed that rather than being on a “roving
patrol,” the officers should have been located at
designated posts in the gym. He further stated
that his review of the videotape indicated that
the Supervising Officer was not making regular
rounds to observe and enforce the levels of
supervision designated for those officers at any
particular time. He also testified that DOCS’
records show that recreation areas constitute the
second most frequent location for
inmate-on-inmate assault (the first being the cell
blocks), and that Elmira had a relatively high
incidence of such assaults among the State’s
maximum security facilities. Further, in his
opinion, a CO should have been stationed in the
bleachers.
Superintendent John Burge, Sr., the current
Superintendent at Elmira, testified as an expert
in the field of penology on behalf of the
Defendant. Burge stated that DOCS’ central
office in Albany establishes guidelines
regarding staffing, and that the facility is given
a “plot plan” that specifies staffing by shifts. In
his opinion, there was adequate staffing in the
gym on the day and time the Claimant was
assaulted, but he conceded on
cross-examination that he had no personal

Page 17

knowledge of whether the various posts were
staffed according to the directives.
Under these facts, the court found that the
Claimant had failed to establish that there was
inadequate security in the gym. Although he
tried to prove that there were no guards on the
gym floor at the time of the incident, that
assertion was supported only by the facts that
the videotape showed no COs on the floor of the
gym and by the Claimant's own testimony. The
videotape, however, did not show the whole
gym floor and the court rejected the Claimant’s
testimony as self-serving and not credible, given
that he had apparently tried to conceal his injury
from prison officials immediately after the
assault. “Because claimant's testimony was the
only basis (given the limited view of the gym
floor provided by the camera) for a potential
finding that there were no officers on the gym
floor, claimant's theory-that defendant had
constructive notice that an attack would be
reasonably foreseeable, given the lack of
supervision-must fail.”
Practice Pointer: Courts have held that the
State must provide inmates with “reasonable
protection against foreseeable risks of attack by
other inmates.” Blake v. State of New York, 259
A.D.2d 878 (1999). However, courts have
continued to hold that the State is not the
insurer of inmates’ safety and the mere fact that
an assault occurs does not mean that it was
foreseeable or give rise to the inference that the
State has been negligent. Sebastiano v. State of
New York, 112 A.D.2d 562 (1985). In order to
establish that the State is liable for an assault,
an inmate must prove that the State knew or
should have known that there was a risk of
harm to the Claimant which was reasonably
foreseeable and which the State could have
prevented. Sanchez v. State of New York, 99
N.Y.2d 247, 253 (2002).
In practice, this rule has meant that the
State has been held liable for an inmate assault
in only three circumstances: when, 1) the State

Page 18

Vol. 17, No. 4; Fall 2007

knew the victim was at risk of assault and failed
to take reasonable steps to protect him; 2) the
State knew the assailant was dangerous, but
failed to protect other inmates from him; or
3) the State had notice that an assault was likely
to occur and an opportunity to intervene to
protect the victim, but failed to do so. Courts
have consistently rejected claims alleging that
a mere absence of supervision made an assault
foreseeable. See e.g., Colon v. State of New
York, 620 N.Y.S.2d 1015 (3d Dep’t 1994).
In Sanchez, supra, the Court of Appeals
appeared to open the door to lawsuits based on
a lack of supervision. In that case, as here, there
was no evidence that DOCS was on notice that
an assault was likely to occur, or that the
assailant was particularly dangerous, or that
the Claimant was particularly at risk. The
Claimant, however, presented evidence, similar
to the evidence presented in this case, that
DOCS should have known that the limited
supervision provided in the area where the
assault occurred would lead to an increased
risk of assault and that the assault was therefore
foreseeable. The Court returned the case to the
lower court for further consideration of this
argument.
Since Sanchez, however, no court--including
the court that reconsidered the Sanchez case-has held DOCS liable for an inmate assault on
the grounds of lack of supervision.
Furthermore, as this case demonstrates, it
appears that the bar to doing so remains a
formidable one.

Pro Se Practice

Deferring Payment of Mandatory Fees
A felony conviction can be costly. New
York State law provides that all felony
convictions be accompanied by a $250

mandatory surcharge and a $20 Crime Victim
Assistance Fee. Many convicts are also charged
a $50 DNA Databank Fee. Sex offenders may
have to pay a $50 Sex Offender Registration
Fee and a $1,000 “Supplemental Sex Offender
Victim Fee.” In 1995, the Legislature amended
the Criminal Procedure Law to eliminate the
authority of the sentencing court to waive the
fees. Furthermore, under Penal Law § 60.35, the
superintendent of a correctional facility is
authorized to collect unpaid fees directly from
your inmate account.
Such fees can be a particularly onerous
burden for indigent inmates earning only prison
wages. In some cases, however, it may be
possible to defer the payment of the fees until
after incarceration.
Under Criminal Procedure Law § 420.40, a
court may defer a fee or surcharge upon a
finding that its immediate imposition would
work “an unreasonable hardship on the
[defendant] or his or her immediate family.”
The statute goes on to provide a procedure
pursuant to which the court can hold a hearing
to determine whether the fees should be
deferred.
Until recently, there was a dispute over
whether this provision applied to inmates. This
is because the statute states that a court cannot
issue a summons for a hearing to “[any] person
who is being sentenced to a term of
confinement…in the department of correctional
services.” Several courts had interpreted that
language to mean that fee deferral was
unavailable to DOCS inmates.
There is an emerging consensus, however,
that the statute does apply to inmates. This is
because, although it prohibits the court from
issuing a summons to an inmate, it also states
that inmates’ fees “shall be governed by
Criminal Procedure Law § 60.30.”
Criminal Procedure Law § 60.30, in turn,
contains no limits on a court’s discretion to
issue an order deferring fees.

Vol. 17, No. 4; Fall 2007

Thus, in People v. Kistner, 736 N.Y.S.2d
924 (4th Dep’t 2002), a case involving a
Defendant serving a two-year state prison
sentence, the Fourth Department of the
Appellate Division concluded that a lower court
had “erred in determining that it lacked
authority pursuant to CPL 420.40(2) to defer the
mandatory surcharge.”
In People v. Camacho, 771 N.Y.S.2d 481
(4th Dep’t 2004), lv. den. 2 NY3d 761 (2004),
a case involving an inmate serving a 1½- to 3year sentence, the court reaffirmed its view that
“a [sentencing] court has the authority to defer
the mandatory surcharge.”
Also, People v. Huggins, 685 N.Y.S.2d 881
(Sup. Ct., Greene Co., Jan. 20, 1999), the court
held that fee deferral is “within the court's
discretionary authority provided by Criminal
Procedure Law § 60.30.”
To apply for a fee deferral, you direct a
motion to your sentencing court and serve it on
the District Attorney. You should include an
affidavit stating why you believe the immediate
imposition of the fees is “work[ing] an
unreasonable hardship [on you] over and above
the ordinary hardship suffered by other indigent
inmates” (People v. Kistner, supra), and you
should ask that the fee be deferred until some
reasonable period after your incarceration has
been completed.
If granted, the motion should prevent DOCS
from collecting your fee from your inmate
account during incarceration. See Huggins,
supra (“Where there has been entered, even
retrospectively, a discretionary deferral pursuant
to Penal Law § 60.30…prison officials have no
authority thereafter to seize an inmate’s funds in
derogation of the sentencing court’s order.”).
Second Circuit Offers Primer on Deliberate
Indifference
Among the most frequent types of lawsuits
brought by inmates in federal court are those

Page 19

concerning claims of inadequate medical care.
They are also among the most difficult and the
most misunderstood. This is in part because, in
order to rise to the level of a federal claim, it is
not enough that DOCS’ medical care be
inadequate, or even that it constitute
malpractice. It must, instead, be “deliberately
indifferent.”
Many inmates are familiar with the phrase
“deliberate indifference,” and many of them,
dissatisfied with the medical care they are
receiving from DOCS, are certain that their care
rises to the “deliberate indifference” standard.
Few, however, can state with precision just
what it means to be “deliberately indifferent.”
This is by no means the inmates’ fault. In
fact, Federal courts have wrestled for years with
exactly what it means to be “deliberately
indifferent” to inmates’ medical needs. The
answer they have arrived at is neither brief nor
easy to summarize.
In Salahuddin v. Goord, 467 F.3d 263
(2d Cir. 2006), the Second Circuit Court of
Appeals, the federal appeals court with
jurisdiction over New York, found that not even
the lawyers arguing the case were describing the
deliberate indifference standard correctly. The
Court tried to boil it down to just a few
paragraphs:
The Cruel and Unusual Punishments
Clause of the Eighth Amendment
imposes a duty upon prison officials to
ensure that inmates receive adequate
medical care. Yet not every lapse in
medical care is a constitutional wrong.
Rather, “a prison official violates the
Eighth Amendment only when two
requirements are met.”
The first requirement is objective:
the alleged deprivation of adequate
medical care must be “‘sufficiently
serious.’” Only “deprivations of medical
care which deny the minimal civilized

Page 20

measure of life’s necessities are
sufficiently grave to form the basis of an
Eighth Amendment violation.”
Determining whether a deprivation
meets the objective standard entails two
inquiries. The first is whether the
prisoner was actually deprived of
adequate medical care. A prison official
is only required to provide reasonable
care. Thus, prison officials who act
reasonably in response to an
inmate-health risk cannot be found
liable under the Cruel and Unusual
Punishments Clause. However, failing
“to take reasonable measures” in
response to a medical condition can lead
to liability.
The second inquiry asks whether the
inadequacy in medical care is
sufficiently serious. This inquiry
requires the court to examine how the
offending conduct is inadequate and
what harm, if any, the inadequacy has
caused or will likely cause the prisoner
For example, if the unreasonable
medical care is a failure to provide any
treatment for an inmate’s medical
condition, courts examine whether the
inmate’s medical condition is
sufficiently serious. Factors relevant to
the seriousness of a medical condition
include whether “a reasonable doctor or
patient would find [it] important and
worthy of comment,” whether the
condition “significantly affects an
individual’s daily activities,” and
whether the condition causes “chronic
and substantial pain.” In cases where the
inadequacy is in the medical treatment
given, the seriousness inquiry is
narrower. For example, if the prisoner is
receiving on-going treatment and the
offending conduct is an unreasonable
delay or interruption in that treatment,

Vol. 17, No. 4; Fall 2007

the seriousness inquiry “focus[es] on the
challenged delay or interruption in
treatment rather than the prisoner’s
underlying medical condition alone.”
The second requirement for an
Eighth Amendment violation is
subjective: the charged official must act
with a sufficiently culpable state of
mind. The Supreme Court has held that
“some mental element must be
attributed to the inflicting officer”
before the harm inflicted can qualify as
“punishment” under the Eighth
Amendment. In medical treatment cases
not arising from emergency situations,
the official’s state of mind need not
reach the level of knowing and
purposeful infliction of harm; it suffices
if the plaintiff proves that the official
acted with deliberate indifference to
inmate health. Deliberate indifference is
a mental state equivalent to
recklessness, as the term is used in
criminal law. This mental state requires
that the charged official act or fail to act
while actually aware of a substantial risk
that serious inmate harm will result.
Although less blameworthy than
harmful action taken intentionally and
knowingly, action taken with reckless
indifference is no less actionable. The
reckless official need not desire to cause
such harm or be aware that such harm
will surely or almost certainly result.
Rather, proof of awareness of a
substantial risk of the harm suffices. But
recklessness entails more than mere
negligence; the risk of harm must be
substantial and the official’s actions
more than merely negligent.
Clear? In case not, the editors of Pro Se
attempt their own summary of the court’s
summary below:

Vol. 17, No. 4; Fall 2007

$ Deliberate indifference has two elements.
< The first element is an “objective” element.
< Under the “objective” element, courts ask
two questions:
1. Were you deprived of adequate medical
care? That is, was your medical care
“reasonable” or “unreasonable”? Only
care that is “unreasonable” will meet the
deliberate indifference standard.
2. Was the condition for which you
received inadequate treatment
“sufficiently serious”? That is, was it
“important”? Would a reasonable doctor
have found it “worthy of comment”?
Did it significantly affect your daily
activities? Did it cause you “chronic and
substantial pain”?

" The second element is a “subjective”
element.
" Under the subjective element, courts ask

whether the defendant was “aware” that the
treatment he was providing, or failing to
provide, carried a substantial risk of harm.
Only an official who acted “recklessly”-that is, who knew or should have know that
the care he/she was providing was
unreasonable, can be held liable under the
deliberate indifference standard.
" Only if you can meet both the objective and

subjective prongs of the deliberate
indifference standard do you have a case
that you can bring to federal court.
In Salahuddin, the court applied this
standard to a set of facts which typify many of

Page 21

the kinds of problems inmates encounter with
DOCS’ medical system.
The Plaintiff in Salahuddin was diagnosed
with Hepatitis C in the Fall of 2000, while in
custody at Woodbourne. At year’s end, a doctor
at Woodbourne informed him that he would
have to undergo a liver biopsy for the medical
staff to determine the correct course of
treatment. The biopsy was delayed for several
months, due to a series of events. First, the
Plaintiff was in SHU; he was then transferred to
Eastern Correctional Facility, then to Downstate
Correctional Facility, then to Auburn, and
finally to Lakeview. Then, sometime in
February or March 2001, a physician at
Lakeview canceled the biopsy because
Salahuddin was eligible for parole within the
next twelve months. The physician believed this
decision was mandated by the then-existent
[since modified] DOCS Hepatitis C Primary
Care Practice Guideline, a DOCS-wide policy
promulgated by Dr. Lester Wright, the DOCS
Chief Medical Officer.
On the day before Salahuddin’s July 2001
parole hearing, Dr. Wright intervened and
approved Salahuddin for a liver biopsy. After
being denied parole, Salahuddin received the
liver biopsy in or around December 2001. After
spending several months on a national waiting
list for a new medication, a physician at Attica
canceled his medication because Salahuddin
then had less than twelve months remaining
until his next Parole Board hearing. In
December 2002, Dr. Wright intervened again
and ordered expedited delivery of the medicine,
which Salahuddin began receiving in January
2003.
During the more than two years between his
diagnosis and his eventual receipt of
medication, Salahuddin complained to various
prison officials and medical personnel about
stomach pain, digestive problems, fever, chronic
diarrhea, fatigue, and other maladies.

Page 22

Salahuddin sued, among others, Dr. Piazza,
for cancelling his liver biopsy. The question
before the court: Could Dr. Piazza be held liable
under the deliberate indifference standard?
The court first addressed Dr. Piazza’s
cancellation of the liver biopsy.
Applying the first prong of the deliberate
indifference test, the court found that it was
“objectively unreasonable” for Dr. Piazza to
have cancelled the biopsy. First, the court held
that it could not, as a matter of law, “find it
reasonable for a prison official to postpone for
five months a course of treatment for an
inmate’s Hepatitis C because of the possibility
of parole” without at least some individualized
assessment of the likelihood that the inmate
would be denied parole. Second, because
Salahuddin claimed that the delay in his biopsy
caused him to suffer serious pain between the
time the biopsy was cancelled by the Dr. Piazza
and the time it was re-instated by Dr. Wright,
and because the Defendant did not rebut that
claim, the court found that the unreasonable
conduct was “sufficiently serious” to support
deliberate indifference.
Addressing the second prong of the
deliberate indifference standard, however, the
court found no evidence upon which to base a
conclusion that Dr. Piazza had acted
“recklessly” or that he knew or should have
known that his conduct created a serious risk to
Salahuddin. On
the contrary, the record contained a letter from
Dr. Piazza to the facility Superintendent, written
in response to a grievance filed by Salahuddin,
in which Dr. Piazza stated his belief that
because Hepatitis C leads to liver damage only
over 20 to 30 years, Salahuddin was “in no
immediate danger” and that “f[ro]m a medical
standpoint, there is no urgency for [the liver
biopsy].”
The court found: “This may have been an
unsound conclusion…but, as we have
discussed, the mental-state inquiry does not

Vol. 17, No. 4; Fall 2007

include an objective-reasonableness test.
Piazza's letter is direct evidence that he was not
aware of a substantial risk that postponing the
liver biopsy would cause serious harm.”
As a result, Dr. Piazza could not be found
liable under the deliberate indifference standard
and Salahuddin’s case was dismissed.
Practice pointer: Dr. Piazza’s actions might
have been negligent; however, mere negligence
does not rise to a federal claim under the
deliberate indifference standard. “A
[prisoner's] complaint that a physician has
been negligent in diagnosing or treating a
medical condition does not state a valid claim of
medical mistreatment under the Eighth
Amendment. Medical malpractice does not
become a constitutional violation merely
because the victim is a prisoner.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). Likewise, an
inmate’s mere disagreement over the proper
treatment does not create a constitutional claim.
“So long as the treatment given is adequate, the
fact that a prisoner might prefer a different
treatment does not give rise to an Eighth
Amendment violation.” Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir.1998).
Do these rules mean that inmates are
entirely without remedy if DOCS’ medical
treatment is negligent, or constitutes
malpractice, but still does not rise to the level of
deliberate indifference? No. It simply means
that you do not have a federal claim and
therefore can not sue in federal court. You
could still sue the State in the State Court of
Claims.
Maximizing Chances for Early Release: The
Earned Eligibility Certificate and Related
Programs
Inmates often want to know what they can
do to minimize their time in custody. This
article provides an overview of the Earned
Eligibility Program and its counterparts, the

Vol. 17, No. 4; Fall 2007

Presumptive Release, Merit Time Release, and
Additional Merit Time Release programs, all of
which provide keys to early release.
What Is the Earned Eligibility Program?
The Earned Eligibility Program (“EEP”) is
the process by which DOCS assigns inmates to
treatment and/or work programs and then
determines if inmates have complied with
assigned programs. Those who successfully
complete assigned programs are awarded an
Earned Eligibility Program certificate (“EEP
certificate”). In conjunction with the following
programs, the EEP certificate can help you
reduce the amount of time you spend in DOCS
custody:
1) Parole:
If you have a minimum sentence of not more
than 8 years, you can use an EEP certificate to
significantly increase your chances of being
paroled. Under Corrections Law § 805, the
Parole Board applies a more relaxed standard
when determining parole applications for such
inmates, and will grant the application “unless
the board determines that there is a reasonable
probability that, if the inmate is released, he will
not live and remain at liberty without violating
the law and that his release is not compatible
with the welfare of society.” As discussed more
below, parole is granted far more often under
this relaxed standard.
2) Presumptive Release:
As described in Corrections Law § 806 and
DOCS Directive 4791, Presumptive Release
allows inmates convicted of certain non-violent
felonies to be released by the Commissioner of
DOCS at their Merit Time or parole eligibility
dates without having to appear before the Parole
Board for a parole release hearing. DOCS

Page 23

makes decisions about Presumptive Release, not
the Parole Board. If DOCS grants you
Presumptive Release, you are released without
appearing before the Parole Board for a hearing;
you appear only to sign the conditions of
release. If denied, you must appear before the
Parole Board to be considered for release. In
general, inmates are not eligible for
Presumptive Release if they have committed
certain felonies (listed in Directive 4971,
Section III, B) or if they have been found guilty
of a serious disciplinary infraction (as defined in
Directive 4971, Section III, C). In addition,
inmates must successfully participate in
assigned programs and be awarded an EEP
certificate to be eligible for presumptive release.
You should carefully read Directive 4791 to
determine if you meet the eligibility
requirements.
3) Merit Time Release:
As described in Corrections Law §§ 803,
806 and Directive 4790, Merit Time Release
allows inmates convicted of certain non-violent
felonies to be eligible for parole before their
regular parole or Conditional Release dates. In
general, to obtain Merit Time Release: you
cannot have been convicted of certain felonies
(listed in Directive 4790, Section II, A); you
cannot have been found guilty of a serious
disciplinary infraction (as defined in
Directive 4790, Section II, B); and you must
successfully perform your recommended
program requirements. In addition, you must
accomplish at least one of the following:
i) get a GED;
ii) get an alcohol and substance abuse
treatment certificate;
iii) get a vocational trade certificate
following at least 6 months of
programming; or

Page 24

iv) perform at least 400 hours of
community service as part of a
community work crew.
DOCS determines whether you will be eligible
for Merit Time Release; if so, you get to appear
before the Parole Board for your merit release
before your regular parole release date. (But see
above: if you also qualify for Presumptive
Release, you could be released without having
to appear before the Parole Board).
The benefits of Merit Time can be
significant for both indeterminate and
determinate sentences, as described below:
Merit Release for Indeterminate Sentences:
Unlike Good Time, which reduces your
maximum sentence, Merit Time reduces your
minimum sentence. If you are serving an
indeterminate sentence and have earned Merit
Time, you will be eligible for release after
serving only 5/6ths of your minimum sentence;
if you are convicted of a class A-I violent drug
offense, you will be eligible for release after
serving only b of your minimum sentence. So,
for example, an inmate serving an indeterminate
sentence of 15 years to life for Criminal Sale of
a Controlled Substance in the First Degree (an
A-I felony) is eligible for Merit Time Release
after serving 10 years; he is never eligible for
Conditional Release. An inmate serving an
indeterminate 6- to 12-year sentence for Forgery
in the First Degree is eligible for Merit Time
Release after 5 years (5/6 of 6), and Conditional
Release after 8 years (b of 12).
Merit Release for Determinate Sentences:
For determinate sentences, you will be
eligible for Merit Time release after serving
only 5/7 of your sentence (as compared to
Conditional Release, which is not granted until
you have served 6/7 of your determinate

Vol. 17, No. 4; Fall 2007

sentence). By way of example, an inmate
serving a determinate term of 14 years for First
Degree Criminal Possession of a Controlled
Substance is eligible for Merit Release after
serving 10 years (5/7 of 14), while he must
serve at least 12 years (6/7 of 14) to be eligible
for Conditional Release.
4) Supplemental Merit Time:
As part of the 2004 Drug Law Reform, the
Legislature provided for additional Merit Time
for certain drug offenders, which DOCS calls
“supplemental” Merit Time. Supplemental
Merit Time is only applicable to indeterminate
drug offense sentences and does not apply to
A-I drug offense sentences. Found in § 30(1) of
Chapter 738 of the Laws of 2004, this provision,
which has not been codified (meaning that you
cannot find it in any statute), provides as
follows:
Notwithstanding any contrary provision
of law, any person convicted of a felony
defined in Article 200 or 221 of the
penal law, other than a Class A-I felony
offense defined in Article-220 of the
penal law, which was committed prior to
the effective date of this section, and
sentenced thereon to an indeterminate
term of imprisonment pursuant to
provisions of the law in effect prior to
the effective date of this section and
who meets the eligibility requirements
of paragraph (d) of Subdivision 1 of §
803 of the correction law as it exists on
the effective date of this section, may
receive an additional merit time
allowance not to exceed one-sixth of the
minimum term or period imposed by the
court provided the inmate either:
(i) successfully participates or has
participated in two or more of the four
program objectives set forth in

Vol. 17, No. 4; Fall 2007

Paragraph (d) of Subdivision 1 of § 803
of the correction law, or (ii) successfully
participants in one of the program
objectives set forth in Paragraph (d) of
Subdivision 1 of § 803 of the correction
law and successfully maintains
employment while in a work release
program for a period of not less than
three months.
Put simply, eligible inmates can earn
supplemental Merit Time by successfully
participating in assigned work and treatment
programs pursuant to Correctional Law § 805,
and either 1) successfully completing two or
more of the four programs required for Merit
Time, or 2) successfully completing one of the
programs required for Merit Time and
successfully maintaining employment in a work
release program or any other continuous
temporary release program for at least 3 months.
See Directive 4790, Section III, A, 2, and
Directive 4791, Section IV, B for these criteria.
Again, the benefits are significant. With
supplemental Merit Time, the minimum term is
reduced by 1/6--in addition to the 1/6 reduction
for merit time--thus providing for a total
reduction of 1/3 (2/6) of the minimum. For
example, an inmate serving a 12- to 24-year
sentence for Criminal Possession of a
Controlled Substance in the Third Degree who
has earned additional merit time is eligible for
discretionary parole release at his Supplemental
Merit Board after serving 8 years (1/3 off of 12)
and to Merit Time release after serving 10 years
(1/6 off of 12). Another way of saying this is
that a person who earns additional Merit Time
goes to his Supplemental Merit Board after
serving 2/3 of the his minimum. A person
earning only merit time goes to his Merit Board
after serving 5/6 of his minimum. In
comparison, without any Merit Time, he must
serve 12 years for parole eligibility and 16 years
for Conditional Release eligibility.

Page 25

Does Getting an EEP Certificate Really
Make a Difference?
There is no question: Getting an EEP
certificate can make a significant difference in
the amount of time you spend in DOCS custody.
This works in two possible ways. First, getting
an EEP certificate may allow you to be released
at your merit eligibility date or supplemental
merit eligibility date through Presumptive
Release--without having to appear before the
Parole Board (except to sign conditions of
release).
However, the EEP certificate will help you
even if you do not meet the requirements for the
Presumptive Release and must appear before the
Board. According to data collected by DOCS,
having an EEP certificate significantly increases
the chances of getting parole. Between
October 2005 and March 2006, the Parole
Board issued decisions for 7,310 inmates. Of
these, 5,582 had earned their EEP certificates,
1,125 had been denied, and 663 were
considered “non-certifiable.” (The reasons for
this “non-certifiable” status are explained
below.) The Board granted parole to 54%--well
over half--of those inmates who had EEP
certificates. In contrast, the Board granted
parole to only 24%--less than a quarter--of those
inmates who had been denied EEP certificates.
The non-certifiable group fared slightly better
than the denied group: 35% of this group were
granted parole.
What Are Common Reasons Inmates Fail to
Earn EEP Certificates?
Since getting an EEP certificate can make
such a significant difference in your chance of
being released, it is important that you
understand the obstacles you may face. As
stated above, between October 2005 and
March 2006, DOCS denied EEP certificates to
1,125 inmates. Most of these inmates (63%)

Page 26

were denied because their poor disciplinary
record interfered with their programming. An
additional 46% of the inmates were denied
either because they had poor program
participation and progress, or because their
program attendance was unacceptable. Finally,
8% were denied EEP certificates because of
their outright refusal to participate in
recommended programs.
What is the standard by which “poor
institutional behavior as it has impacted on your
progress and participation and/or that of other
inmates in programs” is measured? Clearly, it is
a subjective standard and it is in your best
interest to avoid receiving a misbehavior report.
DOCS does, however, apply a working
standard. One thing to be aware of is that, in
applying this standard, DOCS looks at your
institutional behavior during you entire period
of confinement, not just between Parole Board
appearances. A rule of thumb that will likely
lead to a denial of an EEP certificate is if poor
institutional behavior has taken you out of
prison programming for over 25% of the time
you have been incarcerated. Frequent keeplocks
and SHU time early in your incarceration can
cause difficulties in obtaining an EEP certificate
later on, even though you have been ticket-free
in recent years. When you first arrive in DOCS
and release seems so far away, critical thinking
about your disciplinary record is important.
A minority of inmates are neither granted
nor denied EEP certificates; instead, DOCS
deems these inmates to be “non-certifiable.”
Most of the time, this is because these inmates
have not been in a program long enough for
DOCS to measure their level of participation.
Inmates still in reception are also considered
“non-certifiable.” Other reasons for “noncertifiable” status include time out of the facility
for court appearances, time spent in the hospital
or infirmary, and time spent in protective
custody.

Vol. 17, No. 4; Fall 2007

How Might the Above Information Impact
Your Decision-Making?
You should certainly consider the above
information in making decisions about behavior
that could result in a disciplinary infraction (or
even spending time with other inmates who are
prone to getting disciplinary tickets). As the
above reveals, a poor disciplinary record is the
reason cited most often in denying EEP
certificates.
The above information should play a role in
other decision-making. For example, you might
be thinking about asking for placement in
Protective Custody (PC). If so, you should
remember that while placement in PC might
address your security concerns, it might also
result in you getting a “non-certifiable” status,
which in turns prevents you from getting an
EEP certificate.
Conclusion
A thorough understanding of the Earned
Eligibility Program, Presumptive Release, Merit
Time, and Supplemental Merit Time Release
may help you make important decisions about
the goals you can realistically achieve and the
steps you must take to achieve these goals.
Being aware of these programs may result in
you significantly reducing the amount of time
you spend in custody. To help you understand
these programs you should read Corrections
Law §§ 803, 805, and 806, as well as
Directives 4790 and 4791.

Vol. 17, No. 4; Fall 2007

Page 27

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EDITORS: JOEL LANDAU, ESQ.; KAREN MURTAGH-MONKS, ESQ.
COPY EDITING: FRANCES GOLDBERG
CONTRIBUTORS: PATRICIA WARTH, ESQ.;
ALAN ROSENTHAL, ESQ.
PRODUCTION: FRANCES GOLDBERG
DISTRIBUTION: BETH HARDESTY

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