Vol. 18, No. 2; Spring 2008 Published by Prisoners’ Legal Services of New York

‘EARLEY’ CASE ROILS SENTENCING WATERS:
Court of Appeals Holds DOCS May Not Impose Post Release Supervision
Where Sentencing Court Silent;
Appellate Court Holds DOCS May Not Run Predicate Sentence Consecutive to
Parole Time Where Sentencing Court Silent
The 2006 decision of the Federal Second Circuit
Court of Appeals in Earley v. Murray, 451 F.3d 71,
75 (2d Cir. 2006), cert. denied --- U.S. ----, 127
S.Ct. 3014, in which the court held that DOCS was
prohibited from imposing a period of Post Release
Supervision (PRS) on a determinate sentence if the
sentencing court failed to do so, continues to upset
previously settled sentencing law in New York.
In the latest development, the New York Court
of Appeals has agreed with the Federal court,
holding that only a sentencing court may impose
PRS and that DOCS has no independent authority to
do so if the sentencing court was silent. But the
court also held that a failure to sentence a defendant
to a term of PRS is a mere “ministerial error” which
may be corrected by vacating the sentence and
producing the defendant in court for re-sentencing.
In another development, a State appeals court,
applying Earley for the first time outside the PRS
context, has held that DOCS lacks the authority to
run the sentences of a predicate offender, i.e., a
second felony offender, a persistent felony offender,
a second violent felony offender, or persistent

violent felony offender, consecutively to the time
owed on his prior sentences if the sentencing court
did not explicitly state that the new sentence would
…article continued on Page 3

Also Inside…
Supplemental Merit Time
to Be Used to Calculate
Temporary Release/
CASAT Eligibility . . . . . . . . . . page

8

Parole Denial Provokes
Dissent . . . . . . . . . . . . . . . . . . . page 14
The State Habeas Corpus
Proceeding . . . . . . . . . . . . . . . . page 23
Subscribe to Pro Se! See page 31 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. 18, No. 2; Spring 2008

A Message From Karen Murtagh-Monks, Executive Director
Greetings.
Spring, a season of new beginnings
and rebirth, has brought with it changes to
PLS. Susan A. Johnson has left PLS after
two years as Executive Director and I
have been offered and accepted the
position as the fifth Executive Director in
PLS’s 32-year history. I have been with
PLS since the summer of 1983, during
which I interned in the Albany PLS office
as a law student. As I look back upon
those years, I see that many changes have
occurred both within PLS and within
DOCS, changes that can move us toward
a more humane criminal justice system.
When I first began at PLS, the prison
population was approximately 31,000.
PLS had five offices and over 40
employees. Throughout the 1980s, the
prison population grew and so did PLS.
By the early 1990s, New York State had
a prison population over of 60,000 and
PLS had a staff of 70. During the 1990s,
however, even though the prison
population continued to rise, PLS suffered
major budget cuts, and in 1998 was forced
to completely close down. In 1999, thanks
to support from the New York State
Legislature, we were funded once again.
Although we have struggled from a fiscal
standpoint, PLS continues to play an
important role in providing high quality,
effective legal representation and
assistance to indigent prisoners, helping
them to secure their civil and human
rights, and advocating for more humane
prisons.
Having dedicated my entire
professional career to prisoners’ rights, I
am very optimistic about the changes in

philosophy and attitude that are taking
place in this country and specifically
within New York State. Commissioner
Fischer should be commended for his
strong commitment to education and his
demonstrated commitment to re-entry
services by spearheading the Orleans
Correctional Facility Re-entry program
and by seeking funding to start up similar
re-entry facilities in at least three other
venues. By funding PLS, our state
government has also demonstrated that it
understands the importance of Prisoners’
Legal Services as a necessary and integral
criminal justice program if New York
State is serious about its commitment to
reducing recidivism and increasing public
safety.
Although there is no question that
there will be times when it will be
necessary for PLS to engage in
adversarial work to protect the rights of
incarcerated individuals in New York
State, I do believe that we are on the
dawn of a new day. We all understand
that, despite the adversarial nature of the
job, there will be times when we are all
on the same page, and that we all will
share one common goal: decreasing our
prison population and ensuring, for those
that are serving prison time, that they are
given the opportunity to receive the
education, programming, and job training
necessary to ensure successful integration
into society.
I look forward to serving you all and
to working with you to make significant
strides in our criminal justice system in
New York State.

Vol. 18, No. 2; Spring 2008

Page 3

…article continued from Page 1

Court of Appeals Weighs In

be consecutive. That decision, in People ex rel
Gill v. Green, 852 N.Y.S.2d 457 (3d Dep’t
2008), reverses many years of caselaw to the
contrary and would--if implemented--reduce the
sentences of thousands of inmates currently
serving predicate offender terms.
This issue of Pro Se takes a closer look at
these two Earley-related developments and what
they might mean for you.

In Garner v. New York State Department of
Correctional Services, 10 N.Y.3d 358 (2008),
the Court of Appeals held that under state law,
too, DOCS is prohibited from imposing a period
of PRS on a sentence if the sentencing court did
not do so. Specifically, the Court wrote:

Background
In Earley, the court considered the question
of whether DOCS has the administrative
authority to add a period of PRS to a sentence
where the sentencing court failed to do so.
The question arose because Penal Law
§ 70.45 mandates that every determinate
sentence include a period of PRS. In many
cases, however, sentencing courts neglected to
either pronounce the term at sentencing or
indicate it in the defendant’s commitment
papers. In those cases, DOCS adopted the
practice of simply adding the term to the
sentence when the defendant arrived in state
custody. DOCS argued that since the statute
mandated that determinate sentences include
PRS, it had no choice but to apply it, even in
those cases in which the sentencing court did
not.
Prior to 2006, state courts agreed with
DOCS’ argument. The courts held that since
PRS was mandatory, it was automatically
included in every determinate sentence,
regardless of whether it was imposed by the
court or added to the sentence later by DOCS.
In Earley, however, the court held that
DOCS’ practice was unconstitutional. “The only
cognizable sentence,” wrote the court, “is the
one imposed by the judge [and] any alteration
to that sentence, unless made by a judge in a
subsequent proceeding, is of no effect.”

DOCS’s imposition of the PRS term
contravenes the...express mandate [of
Criminal Procedure Law §§ 380.20 and
380.40] that sentencing is a judicial
function and, as such, lies beyond
DOCS's limited jurisdiction over
inmates and correctional institutions.
Under Garner, DOCS should remove PRS
from any sentence to which it was previously
added without explicit court authorization.
Specifically, DOCS should remove PRS from
your sentence if there is no indication in your
commitment papers that PRS was imposed by
your sentencing court.
In a footnote in Garner, however, the Court
pointed out that its decision was “without
prejudice to any ability that either the People or
DOCS may have to seek the appropriate resentencing of a defendant in the proper forum.”
Plus, in a related case called People v. Sparber,
__ N.Y.2d___(2008), the Court held that the
failure of a sentencing court to pronounce PRS
at the time of sentencing was a mere
“ministerial error” which can be corrected by
vacating the sentence and producing the
defendant for re-sentencing.
Thus, although DOCS should remove PRS
from your sentence if it was not specifically
added by the sentencing court, it may notify
your sentencing court that PRS was not properly
imposed. The sentencing court may, in turn,
vacate the sentence and impose a new sentence-one that includes PRS.

Page 4

It is unclear, however, whether sentencing
courts will be either willing or able to resentence all of the many defendants to whose
sentences DOCS administratively added PRS.
For one thing, it will be logistically difficult for
courts around the state to vacate so many
sentences and produce all of those defendants
for re-sentencing. For another, the problem in
many cases goes beyond the failure of the
sentencing court to pronounce PRS at
sentencing. In many cases, the problem extends
to the failure of the sentencing court to notify
defendants that PRS would be a part of their
sentence when they entered their pleas. In those
cases, the defendant will be entitled to withdraw
his or her plea prior to being re-sentenced. See
People v. Catu, 4 N.Y.3d 242 (2005). The
consequences of withdrawing the plea are more
complicated than those of merely vacating the
sentence. If the plea is withdrawn, the defendant
is returned to his or her pre-plea status and may
either re-negotiate the sentence and/or demand
a trial. This would impose additional logistical
difficulties on the court.
Given these difficulties, we cannot say
whether sentencing courts will be willing to resentence inmates who had PRS improperly
added to their sentences by DOCS. We can only
say that they do have the authority to do so, and
one of the consequences of trying to have an
administratively imposed period of PRS
removed from your sentence may be that you
are returned to your sentencing court for further
proceedings.
Meanwhile, preliminary indications are that
DOCS is resisting requests that it
administratively remove PRS terms from
sentences to which it was added without court
authorization, notwithstanding Garner. DOCS
appears to be taking the position that the only
remedy for an administratively added PRS term
is that the inmate be returned to the sentencing
court for re-sentencing under Sparber.
The editors of Pro Se believe this position is

Vol. 18, No. 2; Spring 2008

contrary to the holding in Garner that DOCS
lacks authority to impose PRS on a sentence if
the sentencing court did not do so. If DOCS
continues to hold this position in the months to
come, the result will likely be further litigation.
Appellate Court Extends Earley Rule to
Predicate Offender Sentences
In the second significant development
involving Earley, a state appellate court, relying
on Earley, held that DOCS may not run the
sentences of predicate offenders consecutively
to the time owed to a prior undischarged
sentence absent a specific order from the
sentencing court.
The decision, People ex rel Gill v. Green,
852 N.Y.S.2d 457 (3d Dep’t 2008), reverses 25
years of caselaw to the contrary and, if
implemented, would have sweeping
consequences: It would require the recalculation
of the sentences of some eight thousand inmates
currently serving predicate offender sentences.
Some of those inmates would almost certainly
be eligible for immediate release if their
sentences were recalculated under Gill.
As of this writing, however, it is unclear
whether Gill will be implemented. It is likely to
be vigorously challenged by DOCS in the Court
of Appeals. Whether it will survive such a
challenge is unknown.
The issue in Gill concerns the proper
interpretation of Penal Law §§ 70.25(1)(a) and
70.25(2-a).
Penal Law § 70.25(1)(a) states that when a
court sentences a defendant who owes time on
a previously-imposed sentence (i.e., “parole
time”), the court may specify that the new
sentence run either consecutively to or
concurrently to the parole time--and if the court
is silent, the new sentence “shall run
concurrently.”
Penal Law § 70.25(2-a), however, states that
when the court finds that the defendant is a

Vol. 18, No. 2; Spring 2008

predicate offender, it “must impose [the]
sentence to run consecutively” to the parole
time.
For more than 25 years, courts have held
that where a defendant is a predicate offender,
DOCS must run the sentences consecutively,
even though the court did not so specify. For
example, in a decision issued just three weeks
prior to Gill, the Appellate Division, Third
Department held:
Although [petitioner’s] sentencing court
failed to indicate whether [the]
sentences were to run concurrently or
c on se cutively to [the] prior
undischarged sentence, because
petitioner was sentenced as a second
felony offender, by operation of law
they must be consecutive.
People ex rel Batista v. Walsh, 851
N.Y.S.2d 671 (3d Dep’t 2008)
In Gill, however, the court considered for
the first time how the Earley case applied to this
situation.
In Earley, remember, the court rejected
DOCS’ claim that it had the authority to add a
term of PRS to a sentence where the governing
statue mandated it but the sentencing court
neglected to impose it. The court held: “The
only cognizable sentence is the one imposed by
the judge. Any alteration to that sentence, unless
made by a judge in a subsequent proceeding, is
of no effect.”
In Gill, the question was whether DOCS had
the authority to run the sentences of predicate
offenders consecutively to their parole time
where the governing statute mandated it but the
sentencing court neglected to do so.
The petitioner in Gill was sentenced as a
second felony offender and his Commitment
Papers indicated that he was a second felony
offender, but the sentencing court failed to

Page 5

specify that his sentences had to run
consecutively to his parole time. DOCS, citing
Penal Law § 70.25(2-a), calculated the
sentences as running consecutively.
The court, citing Earley, held that DOCS
lacked the authority to do so. “While DOCS has
a role in correcting an unlawful sentence, a
court is the only body authorized to impose a
correct sentence,” the court wrote, continuing:
“We therefore agree with petitioner that DOCS
had no authority to calculate his sentences
consecutively where the court did not do so.”
The court therefore ordered DOCS to
recalculate Gill’s sentences concurrently.
Gill: Implications and a Caution
As noted, Gill could have significant
consequences. DOCS estimates that there are
approximately eight thousand inmates currently
serving predicate offender sentences, whose
sentences would have to be recalculated if Gill
were to be applied statewide. Some of them
would be eligible for immediate release.
But some caution is required: As also noted,
it is too early to say whether Gill will have
lasting consequences. Gill is the first case to
conclude that DOCS cannot run sentences
consecutively under these circumstances, after
many years in which the courts held that it
could. Courts are generally reluctant to reverse
settled practices so suddenly, particularly
where, as here, doing so will have sweeping
consequences. Right now, Gill applies only to
courts in the Third Department and it is unclear
whether it will be upheld by the Court of
Appeals.
In addition, anyone contemplating litigating
a claim under Gill should be aware that there is
caselaw, pre-dating Gill, holding that
sentencing courts have the authority to correct
a sentence in this situation, either by resentencing you or by allowing you to withdraw
your plea. See People v. DeValle, 94 N.Y.2d

Page 6

Vol. 18, No. 2; Spring 2008

870 (2000). Thus, one possible consequence of
making a Gill claim--like that of pursuing a
Garner claim--is that you would be returned to
your sentencing court for re-sentencing.
Given the uncertainties associated with Gill,
the editors of Pro Se believe it too soon to
pursue a legal claim based on the case. If Gill is
reversed by the Court of Appeals, any legal
action that may have been commenced in the
interim would be dismissed. If Gill is affirmed,
it would presumably not be necessary bring a
legal action to reap its benefits.
The one exception to that advice that we
would make would be in those cases in which
recalculation of the sentence so that it is running
concurrently to parole time would make you
immediately eligible for release--i.e., would
mean that you are past the conditional release or
maximum expiration date of your current
sentence. Under those circumstances, it may be
advisable to file a habeas corpus proceeding. If
you believe you are in that situation, write to the
office of Prisoners’ Legal Services serving your
facility for further advice.
NEWS AND BRIEFS

DOCS Proposes Repealing “Unauthorized
Organizational Activities” Disciplinary Rule
and Proposes Rules that Include Expansion of
Authorized Publications
DOCS’ Disciplinary Rule 105.12, which
prohibits inmates from possessing
“unauthorized organizational...materials,” has
been criticized by both prisoners and the courts
for its over inclusive language.
In Shakur v. Selsky, 391 F.3d 106 (2d Cir.
2004), for instance, the court noted that the rule
bans the receipt of literature from any outside
organization, unless the organization has been
approved by the Deputy Commissioner for

Program Services. The court questioned
whether such a broad ban was consistent with
the First Amendment. The court stated that
“Rule 105.12…does not provide any standard
against which DOCS officials will conduct an
individualized review of the publication in
question,” and returned the case to the district
court for further proceedings. (The Shakur case
is still being litigated.)
More recently, in Mitchell v. Goord, 2007
WL 1288750, a district court appointed counsel
to a prisoner seeking to enjoin further
enforcement of the rule also as applied to
publications from “unauthorized organizations.”
DOCS has now proposed rescinding the rule
entirely and replacing it with two new rules
intended to “enhance clarity” regarding what
kinds of organizational conduct is prohibited.
Taken together, the proposed rules liberalize the
range of publications a prisoner is allowed to
possess.
The first of the proposed rules, Rule 105.13,
is limited to “gang” activity. It provides:
An inmate shall not engage in or
encourage others to engage in gang
activities or meetings or display, wear,
possess, distribute or use gang insignia
or materials including, but not limited
to, printed or handwritten gang or gang
related material.
The proposed rule defines a “gang” as
follows:
For purposes of this rule, a gang is a
group of individuals, having a common
identifying name, sign, symbol or
colors, who have individually or
collectively engaged in a pattern of
lawlessness (e.g., violence, property
destruction, threats of harm,
intimidation, extortion, or drug
smuggling) in one or more correctional

Vol. 18, No. 2; Spring 2008

facilities or that are generally
recognized as having engaged in a
pattern of lawlessness in the community
as a whole. For purposes of this rule,
printed or handwritten gang or gang
related material is written material that,
if observed in the inmate’s possession,
could result in an inference being drawn
about the inmate’s gang affiliation, but
excludes published material that the
inmate has obtained through the facility
library or that has been approved for the
inmate to possess through the media
review process.
The second proposed rule, Rule 105.14,
continues the prior Rule 105.12's ban on
“unauthorized” organizational materials, but
with several new limits on its scope.
The new rule provides:
An inmate shall not engage in or
encourage others to engage in
unauthorized organizational activities or
meetings, or possess printed or
handwritten material relating to an
unauthorized organization where such
material advocates either expressly or by
clear implication, violence based upon
race, religion, sex, sexual orientation,
creed, law enforcement status or
violence or acts of disobedience against
department employees or that could
facilitate organizational activity within
the institution by an organization.
Note: For purposes of this rule an
unauthorized organization is any
organization which has not been
approved by the deputy commissioner
for program services. Printed or
handwritten material that could facilitate
organizational activity includes, but is
not limited to, a membership roster,

Page 7

organizational chart, constitution or bylaws. This rule excludes possession of
published material that the inmate has
obtained through the facility library or
that has been approved for the inmate to
possess through the media review
process. During the pendency of an
application to obtain authorization for a
proposed inmate organization, the rule
also excludes specific printed or
handwritten material that the Deputy
Superintendent of Programs or higher
ranking employee has requested in
writing the inmate submits as part of the
application process.
Thus, the new rule permits the possession of
written or printed materials relating to
“unauthorized” organizations so long as it does
not “advocate…violence based upon race,
religion, sex, sexual orientation, creed, law
enforcement status or violence or acts of
disobedience against department employees” or
“facilitate organizational activity.” It also
provides some examples of what written
materials might be considered to “facilitate
organizational activity” including “a
membership roster, organizational chart,
constitution or by-laws.” Finally, it specifically
exempts material “that the inmate has obtained
through the facility library or that has been
approved for the inmate to possess through the
media review process.” Rule 105.12 has
allowed prisoners to be disciplined for
possessing materials even if they were obtained
through the library or the media review process
if the materials are not from an “approved
organization.”
Prisoners’ Legal Services of New York and
The Legal Aid Society Prisoners’ Rights Project
has filed comments to the proposed rule
changes with suggestions for further revisions.
Suggested revisions include exempting
materials obtained in approved prison

Page 8

educational courses from the definition of
“unauthorized organizational” materials, and
adding a note to the regulation that directs that
publications relating to an unauthorized
organization, other than a gang, be forwarded to
the Media Review Committee for review prior
to the use of the disciplinary system.
Supplemental Merit Time to Be Considered
in Calculating Temporary Release/CASAT
Eligibility
DOCS has conceded that it must consider
Supplemental Merit Time in determining when
an inmate becomes eligible to apply for
Temporary Release and CASAT.
The issue arose because eligibility for these
programs is based, in part, on an inmate’s parole
eligibility date: Correction Law § 851(2)
provides that an inmate becomes eligible for
temporary release two years prior to his or her
parole eligibility date, while Correction Law
§ 2(18) states that certain inmates become
eligible for CASAT 30 months prior to their
parole eligibility date.
But the meaning of what exactly a “parole
eligibility date” is has changed over the last
decade.
Prior to 1997, your parole eligibility date
was clear. It was the date on which the
minimum term of an indeterminate sentence
expired.
In that year, however, the State Legislature
created the Merit Time Program, which made
some inmates eligible for parole release prior to
the expiration of their minimum terms.
So the question arose: Should eligibility for
Temporary Release still be calculated based on
the old “parole eligibility date”--i.e., the
expiration of the minimum term? Or should it be
based on the “merit eligibility date”–i.e., the
date on which an inmate would be eligible for
parole if granted merit time?

Vol. 18, No. 2; Spring 2008

It was not until 2003 that DOCS conceded
that the “parole eligibility date” should be
considered the merit eligibility date for
purposes of calculating temporary release
eligibility.
The very next year, however, in 2004, as
part of the Rockefeller Drug Law Reform Act,
the Legislature authorized additional merit
time, called “Supplemental” Merit Time, for
certain drug offenders. The effect of
Supplemental Merit Time was to advance the
parole eligibility date of eligible inmates even
further.
So again the question arose: Should
eligibility for temporary release be calculated
based upon the “supplemental merit eligibility
date”? Or on the merit eligibility date?
Since 2004, DOCS had refused to concede
that eligibility for Temporary Release and
CASAT should be calculated based on the
supplemental merit date. It argued that the
“merit” date was the earliest possible release
date upon which Temporary Release could be
argued.
This made a significant difference to some
inmates. For an inmate serving a 6-year
minimum term, for example, calculating
Temporary Release eligibility based on the
supplemental merit eligibility date would mean
that he or she would be eligible for Temporary
Release after serving two years (and eligible for
CASAT after serving only 1½ years). If, on the
other hand, eligibility for Temporary Release
were calculated solely on the merit eligibility
date, that same inmate would be eligible for
Temporary Release only after serving 3 years
(and for CASAT after 2½ years).
In 2007, three inmates at Eastern
Correctional Facility, Phillip St. Louis, Robert
Gunney, and John Wright, sued DOCS over its
refusal to use the supplemental merit date when
calculating Temporary Release eligibility.
In a decision dated March 3, 2008, the
Supreme Court, Albany County, granted their

Vol. 18, No. 2; Spring 2008

petition. The court held that DOCS had “failed
to…demonstrate a distinction between merit
time and supplemental merit time” in
determining eligibility for participation in the
Temporary Release and CASAT programs.
St. Louis v. Commissioner, Index # 7845-07,
Sup. Ct. Albany County, March 3, 2008
(Ceresia, J.)
Shortly after St. Louis was decided, DOCS
conceded the point and agreed to use the
supplemental merit eligibility date in calculating
Temporary Release and CASAT eligibility. It
has informed Prisoners’ Legal Services that it is
re-programming its computers accordingly.
Thus, if you are eligible for supplemental
merit time, you should now be eligible for
Temporary Release two years prior to your
supplemental merit eligibility date, rather than
your merit eligibility date, and you should be
eligible for CASAT 30 months prior to your
supplemental merit eligibility date.
Petitioners in Gunney & Wright were
represented by Prisoners’ Legal Services of
New York. Deborah Schneer, Esq. represented
petitioner St. Louis.
New York City, in Policy Change, to Permit
Suspension of Child Support Payments While
in Prison
The New York City Department of Social
Services, in a change of policy, will now
consent to the suspension of child support
orders issued in New York City when the
paying parent is incarcerated.
The Court of Appeals, New York’s highest
court, held in Knights v. Knights, 71 N.Y.2d
865 (1988), that financial hardship as a result of
conviction and incarceration did not necessarily
warrant suspension of support payments during
incarceration.
The NYC Department of Social Services’
new policy means that prisoners who petition
the family court for suspension of child support

Page 9

orders due to incarceration may be granted such
suspensions based on financial circumstances.
This policy applies only to child support orders
payable to the NYC Department of Social
Services.
Any modification of a child support order in
this manner will only affect support payments
that come after the date of the modification
order. The NYC Department of Social Services
will not consent to waive child support already
owed by an incarcerated parent. When the
prisoner is released from prison, the Court will
make a decision on resuming child support
payments. The suspension of child support
payments will likely last only for the length of
the prisoner’s sentence.
In order to have child support payments
suspended, prisoners must file a petition with
the Court. The petition which must be filed is
called, “Petition for Modification of an Order of
Support” (Form 4-11). Prisoners may write to
the following address to request the necessary
petition:
New York City Family Court
Child Support Enforcement Team
60 Lafayette Street
New York, NY 10013
Attn: Petitions Division
The petition may be filled in by hand with
the docket number of the prisoner’s current
child support order. If a prisoner does not know
the docket number, the prisoner should send the
Court his/her Social Security number, date of
birth, the name of the custodial parent or
guardian, and the names and birth dates of
his/her children to identify the correct docket
number.
After the petition has been filed and given a
docket number, the Court will mail the prisoner
an Electronic Testimony Application so that the
prisoner may waive a personal appearance due
to incarceration. In place of a personal

Page 10

Vol. 18, No. 2; Spring 2008

appearance, the Court can order an appearance
by telephone, audio-visual means, or another
electronic method.
An order modifying child support will not
erase past due child support payments. If a
prisoner is behind in their support payments and
owes some past due amount, the prisoner will
still have to pay that amount. If the Court grants
a suspension of a prisoner’s payments, however,
the payments due will not continue to accrue.
Prisoners should file petitions as soon as
possible to stop the accrual of child support
payments.

Federal Cases

Plaintiff’s Claims of Denial of Access to the
Courts and Retaliation Claims Dismissed
Smith v, Napoli, 2008 WL 355573 (W.D.N.Y.)
The plaintiff alleged that defendant
correctional officials denied him access to the
courts by denying him the funds necessary to
add exhibits to his complaint and by destroying
his law library request forms. The court
dismissed the claim, noting that an inmate
cannot state a claim for denial of access to the
courts unless he shows that a “nonfrivolous
legal claim had been frustrated or was being
impeded” due to the actions of prison officials.
See Lewis v. Casey, 518 U.S. 343, 351-52
(1996). Although the court had directed the
plaintiff to state what effect the defendants'
actions had on his non-frivolous legal actions,
the plaintiff merely alleged that he “can be
harmed…by the fact that he has not presented a
prima facie case.” The court concluded that this
conclusory assertion was not sufficient to show
that the plaintiff was prejudiced in his ability to
seek redress from the judicial system. Because
the plaintiff has not alleged the existence of an

actual injury traceable to the defendants’
conduct, held the court, he failed to state a claim
upon which relief may be granted.
The plaintiff also alleged that the
destruction of his law library requests was
retaliatory due to their learning that the plaintiff
had filed grievances against other guards.
However, the court noted, a prisoner alleging
retaliation must show that his protected conduct
was “a substantial or motivating factor” behind
the alleged retaliatory conduct. Because
retaliation claims are easily fabricated, the
court, continued, courts must “examine
prisoners’ claims of retaliation with skepticism
and particular care,” and “wholly conclusory
claims of retaliation can be dismissed on the
pleadings alone.” Here, the plaintiff was given
an opportunity to provide specific facts in
support of his retaliation claim but did nothing
more than assert that the defendants had
retaliated against him as a result of his
grievances. The court held that this conclusory
allegation, without more, failed to provide
sufficient facts to allege that the plaintiff's
protected conduct was “a substantial or
motivating factor” behind the alleged retaliatory
conduct.

State Cases

Disciplinary Cases
Inmate’s Depiction of Gang Symbol Results in
Discipline
Matter of Parks v. Smith, 853 N.Y.S.2d 710
(3d Dep’t 2008)
The petitioner was found guilty of
possessing unauthorized organizational
materials, namely, a photograph of himself
depicting a gang symbol. After his

Vol. 18, No. 2; Spring 2008

administrative appeal was denied, he filed an
Article 78 proceeding.
The court affirmed the result, concluding
that the Misbehavior Report, together with the
photograph of the petitioner and the testimony
of a senior counselor trained in identifying
gang-related materials, constituted sufficient
evidence of his guilt. The petitioner's testimony
that the hand gesture at issue constituted a form
of meditation used in the practice of his religion
presented a credibility issue which, the court
held, was for the Hearing Officer--not it--to
resolve.
Court Finds Insufficient Evidence That
Inmate Disobeyed Direct Order
Matter of Jackson v. Brown, 853 N.Y.S.2d 730
(3d Dep’t 2008)
The petitioner in this case challenged a
Tier II disciplinary determination finding him
guilty of disobeying a direct order. The charge
was based on the petitioner’s alleged failure to
respond to the Industry Superintendent when he
twice asked the petitioner why he was standing
by the vocational gate. The court held that since
the Superintendent merely asked the petitioner
a question and never actually gave him any
directive, “we cannot conclude that substantial
evidence supports the finding that petitioner
disobeyed a direct order.”
X-Ray Contradicted Charge That Inmate
Possessed Weapon
Matter of Warren v. Goord, 853 N.Y.S.2d 735
(3d Dep’t 2008)
The petitioner in this case allegedly caused
a metal detector to sound prior to a visit. As a
result, he was strip frisked. When the strip frisk
revealed nothing, DOCS obtained authorization
for an X-ray, which showed a foreign object in

Page 11

the petitioner’s abdomen. According to the
escorting correctional officer, the petitioner
admitted that the object was a razor. As a result,
a Misbehavior Report was issued, charging the
petitioner with smuggling and possession of a
weapon.
At the disciplinary hearing, the Hearing
Officer agreed to disregard the X-ray evidence,
as well as any testimony by the doctors who
interpreted the X-rays, because one doctor was
unavailable to testify as he was no longer
employed by the Department of Correctional
Services. Nevertheless, he found the petitioner
guilty, basing his determination solely on the
Misbehavior Report and the testimony of the
correctional officer who authored it.
However, the record of the hearing revealed
that after the initial X-ray, the petitioner was
isolated in a one-on-one contraband watch cell.
Eventually, a piece of plastic was discovered in
his feces and a subsequent X-ray confirmed that
no other foreign objects remained in the
petitioner's body. Since no razor was ever
recovered and there was no proof that the piece
of plastic was an “item that may be classified as
a weapon or dangerous instrument by
description, use or appearance” (see
Disciplinary Rule 113.10; 7 NYCRR
270.2[B][14][i]), the court concluded that the
determinations finding him guilty of possessing
a weapon and smuggling were not supported by
substantial evidence. Nor was there substantial
evidence to support the smuggling charge.
Evidence Failed to Support Charge That
Petitioner Tampered With Electrical Device
Matter of Fratello v. Farrell, 853 N.Y.S.2d 748
(3d Dep’t 2008)
A search of the petitioner’s prison cell
recovered an altered electrical wire, an AM/FM
radio, and an “off duty permit” card, signed by
a facility deacon, allowing the petitioner to

Page 12

possess the radio. As a result, the petitioner was
charged in a Misbehavior Report with
possession of contraband, unauthorized
exchange, and tampering with an electrical
device. A Tier II disciplinary hearing ensued,
during which the deacon testified that he signed
the permit card authorizing the petitioner to use
the radio. Although the Hearing Officer noted
that the deacon did not have the authority to
issue permission for use of the radio, he
nevertheless found the petitioner not guilty of
possession of contraband and unauthorized
exchange. The petitioner was, however, found
guilty of tampering with an electrical device.
The court reversed the decision. The prison
disciplinary rule of which the petitioner was
found guilty of violating, Rule 118.31, states
that “[a]n inmate shall not alter, rewire, tamper
or attempt to repair electrical outlets or any
electrical device” (7 NYCRR 270.2[B][19][ix]).
Here, however, the hearing transcript failed to
definitively indicate that the source or purpose
of the electrical wire was ever established.
Absent such proof, the court held, it could not
be concluded that the petitioner actually
tampered with an electrical outlet or device in
violation of the rule.

Vol. 18, No. 2; Spring 2008

disciplinary hearing, he was found guilty as
charged and a penalty of 180 days in the Special
Housing Unit and a corresponding loss of
privileges and Good Time were imposed. He
then brought an Article 78 proceeding.
His principal argument on appeal was that
the underlying disciplinary hearing was both
commenced and completed in an untimely
manner. But the court ruled: “Simply put, the
time limits imposed by the relevant regulations
are directory, not mandatory.” Moreover, it
continued, “our review of the record reveals
valid reasons for each of the extensions
granted.”
The petitioner also argued that he was
improperly denied the right to present relevant
documentary evidence in the form of the
correctional officer’s medical records. Here, the
court agreed with the petitioner: “[I]n the
absence of some indication that disclosing the
injured correction officer’s medical records
would jeopardize institutional safety, the
Hearing Officer’s failure to provide petitioner
with such documents was error.” But the court
still refused to reverse the hearing: “[The]
error…is harmless in view of the overwhelming
evidence of petitioner’s guilt and the fact that
these records were not relied upon by the
Hearing Officer in rendering his determination.”

Court Finds That Time Limits on Disciplinary
Hearings Are Not Mandatory and a Failure to
Provide Inmate With CO’s Medical Records
Was a ‘Harmless’ Error

Removal of Inmate From Disciplinary
Hearing Held Appropriate

Matter of Mack v. Goord, 853 N.Y.S.2d 704 (3d
Dep’t 2008)

Matter of Applewhite v. Goord, 853 N.Y.S.2d
444 (3d Dep’t 2008)

The petitioner in this case was charged with
assaulting staff, engaging in violent conduct,
disobeying a direct order, and being out of
place. The charges stemmed from an incident in
which the petitioner, who was out of place,
allegedly refused a correctional officer's order to
stop and then struck the correctional officer in
the face with a closed fist. Following a Tier III

The petitioner was charged in a Misbehavior
Report with engaging in violent conduct and
assaulting staff. A Tier III disciplinary hearing
ensued and, during the course thereof, the
petitioner was expelled for disruptive behavior.
The hearing proceeded in the petitioner's
absence and, ultimately, the petitioner was
found guilty of engaging in violent conduct, but

Vol. 18, No. 2; Spring 2008

Page 13

not guilty of assaulting staff. Following an
unsuccessful administrative appeal, the
petitioner commenced an Article 78 proceeding,
contending that he was improperly removed
from the disciplinary hearing.
The court disagreed. It found that shortly
after the disciplinary hearing commenced, the
petitioner accused the Hearing Officer of
“conspir[ing] to deprive [him] of [his] rights”
and threatened to sue the Hearing Officer if the
charges against him were sustained. The
Hearing Officer responded that he would
entertain appropriate objections, but would not
tolerate such threats. But, the court wrote,
“Petitioner continued to lodge objections,
accused the Hearing Officer of being biased and
claimed that he received inadequate employee
assistance, which the Hearing Officer duly
noted and attempted to address. During this
colloquy, petitioner repeatedly called the
Hearing Officer a liar, and the Hearing Officer,
in turn, repeatedly warned petitioner that if he
continued to make such comments, he would be
removed.” When the petitioner persisted, the
Hearing Officer expelled him from the hearing.
The court held: “Given petitioner’s disruptive,
argumentative and antagonistic behavior we
cannot say that the Hearing Officer erred in
removing him from the remainder of the
hearing.”
DOCS Lacked Evidence
Possessed Weapon

That

classified as a weapon. Following separate
Tier III hearings, he was found guilty of all
charges. After his administrative appeal was
denied, he filed an Article 78 proceeding.
The court held that the determination
finding the petitioner guilty of possession of
contraband that may be classified as a weapon
was not supported by the evidence.
DOCS’ Disciplinary Rule Series 114
prohibits contraband. Subsection 10 states that
an inmate “shall not make, possess, sell or
exchange any item that may be classified as a
weapon or dangerous instrument by description,
use or appearance. A dangerous instrument is
any instrument, article or substance which,
under the circumstances in which it is used,
attempted to be used or threatened to be used, is
readily capable of causing bodily harm.”
Here, notwithstanding how the pen was
used, the court found there was no evidence that
it constituted contraband, i.e., an article not
“specifically authorized by the superintendent
or designee.” DOCS acknowledged that it “was
officially issued by the prison” and no evidence
was presented at the disciplinary hearing to
show that the pen was an unauthorized article.
Accordingly, the court reversed that charge. The
remaining charges were affirmed.
Inmate Disciplined for Possession of
Twenty-Nine “Identification Size” Photos

Inmate

Matter of Avery v. Goord, 854 N.Y.S.2d 558
(3d Dep’t 2008)
The petitioner was involved in a fight with
his cellmate, during the course of which he
allegedly stabbed his cellmate in the cheek with
a pen. As a result, he was charged with
disciplinary rules that prohibit fighting and
assaulting another inmate. He was also charged
with possession of contraband that may be

Matter of Garcia v. Selsky, 852 N.Y.S.2d 420
(3d Dep’t 2008)
After a search of the petitioner’s prison cell
resulted in the discovery of 29 card-size
identification photographs of the petitioner, as
well as his prison identification photograph, he
was charged with violating several prison
disciplinary rules. Following a Tier III hearing,
he was found guilty of possession of
contraband, but not guilty of the other charges.
The determination was affirmed upon

Page 14

Vol. 18, No. 2; Spring 2008

administrative review, and the petitioner
commenced an Article 78 proceeding.
The rule that the petitioner was charged with
violating, Disciplinary Rule 113.12, provides
that all items possessed by inmates, unless they
have been “specifically authorized” by the
superintendent or the local rules of the facility,
constitute contraband. In this case, the petitioner
contended that he was provided with his prison
identification photograph by a DOCS counselor
and, therefore, he was authorized to possess it.
That claim, however, was refuted by the
counselor at the hearing. In any event, the court
noted, regardless of the petitioner’s arguments
concerning his prison identification photograph,
the 29 other photographs in his possession were
determined by the Hearing Officer to be
contraband. Inasmuch as the Misbehavior
Report, hearing testimony, the petitioner's
admission to possessing the photographs, and
the confiscated material provided substantial
evidence to support the finding of guilt, the
court found “no basis to disturb the Hearing
Officer’s determination.”

obscene language or gestures, or writing or
otherwise communicating messages of a
personal nature to an employee or any other
person including a person subject of an order of
protection with the inmate or who is on the
inmate’s negative correspondence list.”
In this case, the officer admitted that she had
had conversations with the petitioner in the past
concerning religion, and the petitioner testified
that, based upon these conversations, he decided
to give her the book as a gift. Although the
officer testified that the petitioner exhibited an
“eerie” smile which she found “very
unnerving,” she did not indicate that he engaged
in any inappropriate or disrespectful behavior
and she confirmed that he had always addressed
her professionally in the past.
The court found that the petitioner’s conduct
“appear[ed] to have been a continuation of a
cordial relationship between the officer and
petitioner.” Under those circumstances, it
continued, “we cannot conclude that it rose to
the level of harassment as contemplated by
[Rule 107.11].”

Inmate Not Guilty of “Harassing” Female
Employee

Parole Cases
Parole Denial Provokes Dissent

Matter of Washington v. Selsky, 850 N.Y.S.2d
720 (3d Dep’t 2008)
The petitioner was charged with solicitation,
stalking, and harassment after asking a female
correctional officer to accompany him to an
office where he gave her a religious book.
Following a Tier III disciplinary hearing, he was
found guilty of the harassment charge. He
contested the finding in an Article 78
proceeding. The court reversed.
DOCS Disciplinary Rule 107.11 provides
that “an inmate shall not harass an employee or
any other person verbally or in writing.” It goes
on to state: “Prohibited conduct includes, but is
not limited to, using insolent, abusive, or

In re Siao Pao v. Dennison, 854 N.Y.S.2d 348
(1st Dep’t 2008)
The petitioner pleaded guilty in 1982 to
murder in the second degree and robbery in the
first degree, and was sentenced to concurrent
prison terms of 18 years to life and 8a to 25
years for his participation in the robbery of two
people, one of whom the petitioner fatally
stabbed in the course of the robbery.
The petitioner sought parole in 1999, 2001,
and 2003, but was denied each time. In 2005, he
appeared before the Parole Board for the fourth
time. He expressed remorse for what he had
done, but nevertheless told the Board that he

Vol. 18, No. 2; Spring 2008

never thought anyone would get hurt during the
robbery and that he had unintentionally stabbed
the victim while trying to prevent his codefendant from beating the man. Since his last
appearance before the Board, the petitioner had
maintained a clean disciplinary record and
worked as a paralegal in the prison law library.
He stated that he hoped to pursue a career as a
tractor trailer driver and obtain housing through
a community program, if placed on parole.
After conferring, the Board rendered its
decision:
After a review of the record and this
interview parole is denied. The instant
offense…oc c u r red during the
commission of a robbery…[and
constituted] an escalation of your antisocial behavior. Your institutional
achievements and positive disciplinary
record are noted and considered. The
Board finds your propensity for violence
and indifference for the law as an
indicator of your unsuitability for
release at this time.
The majority of the court, over a vigorous
dissent, found that this was sufficient grounds
for denying parole.
The majority noted that the law grants the
Board substantial discretion in making parole
determinations, provided that it follow the
standards set forth in the Executive Law.
Pursuant to Executive Law § 259-i(2)(c)(A), the
Board must consider the inmate's institutional
record (“including program goals and
accomplishments, academic achievements,
vocational education, training or work
assignments, therapy and interpersonal
relationships with staff and inmates”), release
plans, performance in work release programs,
victim impact statements, and any deportation
orders. However, the court noted, the statute
also states: “Discretionary release on parole

Page 15

shall not be granted merely as a reward for good
conduct or efficient performance of duties while
confined but after considering if there is a
reasonable probability that, if such inmate is
released, he will live and remain at liberty
without violating the law, and that his release is
not incompatible with the welfare of society and
will not so deprecate the seriousness of his
crime as to undermine respect for law.” In most
cases, the statute also requires the Board to take
into account the seriousness of the offense and
the inmate's prior criminal record. Further,
courts have held that the Board need not
expressly discuss in its determination each of
the guidelines, or give equal weight to each
factor: “[T]he weight to be accorded to each of
the factors,” noted the court, “lies solely within
the discretion of the Parole Board.”
The dissent argued that the Board’s decision
appeared to rely almost exclusively on the
seriousness of the offense, to the exclusion of
the additional considerations required by
Executive Law § 259-i(2)(c)(A) and that there
was virtually no discussion of the additional
statutory factors that must be taken into
c o n s i d e r a t i o n .
The dissent pointed out that:

T the petitioner was 19 years old when he
participated in the robbery;
T he had explained at the time that the victim
was accidentally stabbed when he tried to
i n t e r v e n e ;
T this account was corroborated by the grand
jury testimony of a second victim, and was
not disputed by the prosecutor;
T at the time of his Board appearance, he had
been incarcerated for 23 years and denied
parole on three prior occasions;
T his institutional record during his
incarceration had been favorable and

Page 16

included his assignment as a paralegal in the
facility’s law library;

T the petitioner had expressed remorse for his
conduct and its consequences; and
T his involvement with the criminal justice
system prior to his 1981 criminal activities
was minor and not characterized by acts of
violence.
The dissent agreed that the Board enjoys
“considerable discretion” in determining
whether to grant parole and “need not itemize
each factor it considered, nor give equal weight
to all factors, but it must take the statutory
factors into consideration.” However, the
dissent continued, “some factual basis for the
Board’s conclusions needs to be stated in the
decision.” Here, the Board made no reference to
any of the petitioner's efforts in prison since his
last hearing, thus ignoring any progress he may
have made. “Notwithstanding the Parole
Board’s passing pro forma reference to
petitioner’s institutional achievements and
favorable disciplinary record, the Board did not
set forth any factual basis to support its
conclusion that petitioner has a continuing
propensity for violence and a manifest
indifference to the law.” Because of the lack of
factual specificity in the decision, the dissent
concluded, “we cannot adequately determine if
the Parole Board properly considered and
discussed the statutory factors in arriving at its
determination. Its decision, therefore, cannot be
upheld, and the matter must be remanded for
further proceedings.”
The majority responded by criticizing the
dissent for faulting the Board for failing to
provide explanatory detail and for according too
much weight to the severity of the petitioner's
offenses for which he is currently incarcerated,
despite acknowledging “the well-settled
precedent” permitting it to do just that.

Vol. 18, No. 2; Spring 2008

The majority also criticized the dissent for
“appear[ing] to credit petitioner's assertion that
he only accidently injured the victim… Such
credibility determinations are generally to be
made by the Board” and, considering all the
various factors of the crime, the Board could
have determined that the petitioner was not
being truthful or taking full responsibility for
his actions.
The majority noted that previous courts,
with ten different Justices participating, had
found the petitioner’s two prior denials of
parole--both of which were worded similarly to
the instant denial--to have been proper, and it
criticized the dissent for failing to explain “how
the Board’s interpretation of identical facts has
suddenly become erroneous or its weighings
disproportionate, or why a more detailed
discussion in the determination is now
mandated by the Executive Law.”
In sum, the court supported the Board.
Court Reverses Parole Denial Where Board
Relied on Non-Statutory Factors
Matter of Vaello v. Parole Board, 851 N.Y.S.2d
745 (3d Dep’t 2008)
The petitioner in this parole appeal was
convicted of murder in the second degree as
well as several additional charges, and was
sentenced to concurrent prison terms, the
longest of which was 20 years to life. In 2006,
the Board denied the petitioner’s request for
parole and directed that he be held for an
additional 24 months. After the determination
was affirmed on administrative appeal, the
petitioner commenced an Article 78 proceeding.
The court reversed the Board.
The court noted that although parole release
determinations are discretionary and entitled to
deference, they must satisfy statutory
requirements of Executive Law § 259-i, and a

Vol. 18, No. 2; Spring 2008

decision based on factors not found in that
statute is improper and requires a new hearing.
The first sentence of Executive Law
§ 259-i(2)(c)(A) states that “[d]iscretionary
release on parole shall not be granted merely as
a reward for good conduct…but after
considering if there is a reasonable probability
that, if such inmate is released, he [or she] will
live and remain at liberty without violating the
law, and that his [or her] release is not
incompatible with the welfare of society and
will not so deprecate the seriousness of his [or
her] crime as to undermine respect for [the]
law.” The statute goes on to list criteria for the
Board to consider in making this determination.
(See the discussion in the case above.)
Here, the Board failed to identify any of the
standards set forth in the statute. It simply listed
the crimes for which the petitioner was
convicted, noted one prior conviction, and then
summarily stated that it was denying release
because “[a]ll factors considered…you are a
poor candidate for release to the community.”
The court held that although the Board is not
required to give all statutory factors equal
weight or to articulate each factor considered in
making its decision, it must present some
statutory rationale for its decision. “The use of
‘nonstatutory, conclusory language,’” such as
that here, “impermissibly leaves the reviewing
court to guess at the basis for the Board's
denial.” Here, the court concluded, “the dearth
of any analysis of the statutory or regulatory
criteria” made it “impossible…to give meaning
to the language used by the Board.”
Board Concedes That Parole Hearing Was
“Fatally Flawed”
Matter of South v. N.Y.S. Division of Parole,
NY County, April 8, 2008 (Goodman, J.)
The petitioner in this case was a 58-yearold, honorably discharged veteran of the United

Page 17

States military, who has been imprisoned for
almost 19 years on an 8-years-to-life sentence.
During his imprisonment, he has been a near
“model prisoner,” and has accomplished,
according to the court, “the very things a
‘correctional service’ might encourage if the
goal was rehabilitation and reform.”
Nevertheless, he had been denied parole six
times.
After his sixth parole denial, he filed an
Article 78 proceeding.
At the hearing, the Board denied parole
based on the summary conclusion that there was
a “reasonable probability that [petitioner] would
not live and remain at liberty without again
violating the law.” According to the court: “The
transcript of the abbreviated hearing suggest[ed]
that the decision was a foregone conclusion
before it even took place. The record
demonstrated no probing beyond the conclusory
statements that petitioner could not be and
should not be allowed to live in the community
after 19 years of confinement, notwithstanding
his certificate of earned eligibility for parole,
which creates a presumption in favor of release
[see Correction Law § 805], and his good
institutional record.
The Board failed to set forth any additional
reasoning in denying parole--which, the court
noted, cannot be based on offenses alone. Thus,
“one is left with the impression,” stated the
court, “that the State’s position is that because
of this man’s past crimes, there would, in
essence, never be a time that he would be
suitable for release, no matter what he has
accomplished in 19 years of imprisonment, even
though the lengthy confinement and punishment
are not in accord with cases of similar
seriousness.”
In reply to the petition, the Board conceded
that the hearing was “fatally flawed” and
scheduled a new hearing.
The petitioner opposed this result, arguing
that he should simply be granted parole, a

Page 18

remedy which, the court noted, it was
“powerless to impose.”
The petitioner also suggested that, by
transferring him to another prison for the new
hearing, DOCS and/or the Division of Parole
was/were attempting to hold the hearing in a
jurisdiction which has historically been more
lenient with parole decisions than has New York
County, where the original hearing was held.
The court tried to preclude this, stating that it
“would expect that in good faith, unless
petitioner’s claims of forum shopping are, in
fact true,” that the Board should be able to meet
in New York County and have the petitioner
participate in the hearing electronically. “If the
prison at which petitioner is currently lodged
lacks such capability, whether or not that is
what motivated [his transfer], the Court is
confident that the Department of Correctional
Services or the Division of Parole can make the
necessary arrangements for a video hook-up, or
removal or return of petitioner to a facility so
equipped, such as the one he just left.”
Other Cases
Petitioner Denied “Area of Preference”
Transfer
Matter of Lugo v. Goord, 853 N.Y.S.2d 747
(3d Dep’t 2008)
In May 2006, the petitioner, an inmate at
Wyoming Correctional Facility, requested an
“area of preference” transfer to a correctional
facility closer to his home. After the petitioner
was informed that he was not eligible for such a
transfer because his status code of “REU” for
academic programming indicated that he was
negatively removed from the program due to
unacceptable attendance, participation, or
progress, he filed a grievance. The grievance
was ultimately denied by the Central Office

Vol. 18, No. 2; Spring 2008

Review Committee. The petitioner thereafter
commenced a CPLR Article 78 proceeding.
The court dismissed the case. At Wyoming
Correctional Facility, only inmates who
successfully participate in major programming
and obtain certain status codes during quarterly
reviews are eligible to request “area of
preference” transfers. Since the petitioner did
not obtain one of the acceptable status codes for
his academic programming, the denial of the
petitioner's grievance was not irrational or
arbitrary and capricious. In any event, the court
continued, even if the petitioner were eligible to
request an “area of preference” transfer, “it is
well settled that an inmate has no right to select
the correctional facility in which he or she is
housed” and the Commissioner of Correctional
Services retains broad discretion to coordinate
inmate transfers.
Inmate In Civil Commitment Proceeding Not
Entitled to Less Restrictive Conditions
State v. Cuevas,
(4th Dep’t 2008)

853

N.Y.S.2d

798

New York’s new civil confinement law,
Article 10 of the Mental Hygiene Law, allows
the State to hold sex offenders past their
maximum expiration date while civil
commitment proceedings are pending. DOCS
has typically placed such persons in involuntary
protective custody.
The respondent in this case was a sex
offender who had been held past his maximum
expiration date while his civil commitment
proceedings were ongoing. He sought an order
“requiring Mid-State Correctional Facility to
create the least restrictive setting on [its]
campus to house individuals in similar
circumstances…during the pendency” of civil
commitment proceedings. Specifically, the
petitioner sought the same conditions of

Vol. 18, No. 2; Spring 2008

confinement as inmates in long-term protective
custody.
The court agreed that the petitioner was
entitled to the conditions of confinement
provided for inmates in protective custody as
spelled out in DOCS’ regulations. See
7 NYCRR 330.4. The court disagreed, however,
that the respondent was entitled to anything
more. “Because prison administrators have
broad discretion to determine, based upon
security concerns, whether persons such as
respondent should be afforded the less
restrictive conditions [of inmates in long term
protective custody] we agree with [the State]
that prison administrators have discretion to
place a person eligible for protective custody in
administrative segregation, a more restrictive
placement, where such placement is ‘required
for the security of the facility and the safety of
the [detained person].’”
Placement of Inmate in Administrative
Segregation, Despite Positive Behavior in
SHU, Okay With Court
Matter of Ryan v. Selsky, 852 N.Y.S.2d 490
(3d Dep’t 2008)
The petitioner has been imprisoned since
1978. During his imprisonment, he was
convicted of murder and arson after setting his
codefendant’s cell on fire, two counts of escape
involving separate facilities, and assault on
staff. The petitioner has been confined to a
Special Housing Unit and segregated from the
general prison population for more than a
decade. In April 2006, George Seyfert, Deputy
Inspector General of the Department of
Correctional Services, recommended
administrative segregation of the petitioner.
Following a hearing, administrative segregation
was determined to be warranted on the ground
that the petitioner poses a danger to the staff,
inmates, and the correctional facility in which

Page 19

he is housed. After the determination was
upheld by the respondent on administrative
appeal, the petitioner commenced an Article 78
proceeding. T h e
court
upheld the
determination, noting: “A determination
confining an inmate to administrative
segregation will be upheld if supported by
substantial evidence ‘that the inmate’s presence
in [the] general population would pose a threat
to the safety and security of the facility.’” In
this case, the court found, the petitioner’s
criminal convictions during his imprisonment,
history of escape, and testimony minimizing the
events surrounding his convictions, as well as
the written recommendation and testimony of
the Deputy Inspector General, provided
substantial evidence to support the respondent's
determination. Although the petitioner had
behaved well in special housing, the court found
this factor was not determinative: “[a] denial of
the opportunity to commit a crime,” wrote the
court, “cannot be…taken as probative evidence
of rehabilitation.”
Plaintiff States Claim Against County Jail in
Slip and Fall Case
Havens v. County of Saratoga, 854 N.Y.S.2d
810 (3d Dep’t 2008)
The plaintiff, a 17-year-old inmate at the
Saratoga County Correctional Facility, slipped
and fell as she was cleaning a shower stall. She
had been assigned to wash down the tile stall
using soapy water, a sponge, and a Brillo-type
pad. After soaping the walls and floor of the
stall, she went to the far wall of the stall where
the nozzle was located and turned on the water
so the spray would wash out the soap. She then
immediately turned to run out of the stall to
avoid getting wet. Her feet went out from under
her on the soapy floor and she fell, injuring her
hand. State Supreme Court dismissed her
negligence claim against the County Jail,

Page 20

concluding that her conduct was the sole cause
of the accident.
The Appellate Division reversed. The court
noted that, in general, “an inmate is required to
exercise ordinary care” and that, if he or she
fails to do so “and pursues a dangerous course
of conduct, he or she is required to take some
responsibility for his or her own negligence.”
On the other hand, the court continued,
“[G]overnmental entities ‘owe a duty to provide
inmates engaged in work programs with
reasonably safe equipment’ and training.”
In this case, the court continued, deposition
testimony of the jail administrator established
that all minor inmates were required to perform
certain chores and were subject to disciplinary
action if they refused. This included taking turns
cleaning the shower, for which they were issued
only a bucket of soapy water, a sponge, and a
scrubbing pad, but no special clothing. The
plaintiff testified that at the time of her fall, she
was wearing her facility-issued clothing,
including a pair of slightly large, slip-on men's
canvas shoes with smooth rubber soles. The
court also noted that the layout of the shower
stall at issue all but guaranteed that an inmate
cleaning it would be exposed to a slippery
surface. “In other words,” the court continued,
“defendants have not demonstrated that, unlike
a person cleaning a residential or hotel shower,
an inmate cleaning the subject shower had an
option to avoid the slippery surface. Nor have
they shown that appropriate equipment to
minimize slippage, such as mats or water shoes,
was available.” Finally, while the testimony
indicated that facility personnel never instructed
inmates to run out of the shower, the plaintiff
testified that everyone who washed the shower
ran out after turning on the water to avoid
getting wet; furthermore, the correctional
officers were aware of this practice and did not
stop it.

Vol. 18, No. 2; Spring 2008

On this record, the court found, the
defendants were not entitled to have the action
dismissed prior to trial.
Father, Incarcerated for Domestic Violence,
Prohibited Contact With Child
Morelli v. Tucker,
(3d Dep’t 2008)

851

N.Y.S.2d

696

The petitioner, an incarcerated father,
sought visitation with his children. He and the
children’s mother had separated following
several incidents of domestic violence
perpetrated by the petitioner and the mother had
been awarded sole custody of the child, with the
petitioner allowed parenting time on Fridays
and alternate weekends. Thereafter, the
domestic violence continued to escalate,
culminating in two serious incidents--including
one in which the petitioner allegedly beat the
mother with a crowbar--for which the petitioner
was eventually incarcerated.
While incarcerated, he filed a petition for
visitation with the child, asserting that the
mother’s “bitterness is poisoning [his]
relationship” with the child without “just
cause.” Family Court dismissed the petition and
prohibited all contact between the petitioner and
the child.
On appeal, the Appellate Division held:
“Although the incarceration of a noncustodial
parent [does] not, by itself, preclude visitation
with his or her child, a denial of an application
for visitation is proper where evidence
demonstrates that visitation would not be in the
child's best interest.” Here, although the
petitioner denied that he committed any
domestic violence against the child’s mother
and contended that she was poisoning his
relationship with the child, the court noted that
he nevertheless stands convicted by guilty plea
of brutally assaulting her. Moreover, the court
noted, Family Court had credited the

Vol. 18, No. 2; Spring 2008

respondent’s testimony that the assault occurred
in the presence of the child, who was then 16
months old, and that the child developed a fear
of men as a result. Under these circumstances,
wrote the court, “and in light of both the child’s
young age and [petitioner’s] lengthy prison
sentence,” the Family Court's determination that
visitation or other contact with the petitioner
would not be in the child's best interest “has a
sound and substantial basis in the record.”
Inmate Denied Permission to Send Excess
Stamps Home
Matter of Vidal v. Goord, 850 N.Y.S.2d 720
(3d Dep’t 2008)
The petitioner commenced an Article 78
proceeding to challenge the denial of his
grievance requesting that he be allowed to send
to his family 668 postage stamps that were
confiscated from him by DOCS.
The court affirmed DOCS’ position. It noted
that although Directive No. 4910 § VI(D) sets
forth options for the disposal of contraband,
including allowing inmates to mail certain items
home when appropriate, the options also include
storage or destruction. DOCS had decided that
the petitioner was not allowed to choose
between those options and the court found that
that determination “was not an arbitrary and
capricious interpretation of the directive,”
especially considering that the stamps at issue,
which exceeded $20.00 in value in violation of
prison disciplinary rules, were confiscated from
the petitioner as part of a penalty imposed in a
Tier III disciplinary hearing in which he was
found to have obtained them by means of an
unauthorized exchange.

Page 21

Court Rejects Denial of State Job to Ex-Felon
Hollingshed v. New York, Index No.
0006848/2007 (Supreme Court, Bronx Co.,
January 31, 2008) (Williams, J.)
A job applicant who had been convicted of
a felony 24 years ago was illegally denied
employment working for New York State as a
direct care worker for mentally impaired adults,
a Bronx court ruled.
The employer, the New York State Office of
Mental Retardation and Developmental
Disabilities (OMRDD), failed to consider that
the candidate previously had an “unblemished
work record” with vulnerable populations and
had not been convicted since 1983, wrote the
court in Hollingshed.
The dispute arose after Mr. Hollingshed
applied for a job in August 2006 as a direct care
worker with Episcopal Social Services, an
agency funded by OMRDD. The position paid
$10 an hour and involved aiding mentally
impaired adults with bathing, feeding, and other
activities.
Mr. Hollingshed, then 56, had more than 14
years of experience working with special needs
populations, including homeless adults, disabled
foster children, and individuals with cerebral
palsy and HIV/AIDS.
After a background check confirmed
Mr. Hollingshed’s criminal history, he was
given 30 days to explain why he should not be
denied employment. He wrote a letter to
OMRDD, detailing his criminal history,
indicating that he had worked continuously
since his last conviction in 1983. He also noted
that he had received a Certificate of Good
Conduct in 1992 from the New York State

Page 22

Board of Parole which, the court noted in its
decision, “served to remove all legal bars and
disabilities to employment, license and privilege
except those pertaining to firearms and except
the right to be eligible for public office.”
Mr. Hollingshed wrote: “[M]y life has made
a 360 degree turn around. Don't let my past
criminal history be the determining factor
whether or not my application will be approved.
I try to leave the past in the past but that don't
[sic] always seem to work it always seem to find
away [sic] to resurface.”
After Mr. Hollingshed was denied
employment, he filed an Article 78 petition
challenging the determination.
The court held that the denial of
employment was arbitrary, capricious, and an
abuse of discretionary power. The court rejected
the state’s argument that Mr. Hollingshed’s
prior convictions “established a pattern of
behavior” and “presented an unreasonable
danger” to the social service agency’s
consumers.
Under Correction Law § 752, an employer
may deny an individual employment based on
criminal history only if a “direct relationship”
exists between the prior offenses and the
specific job, or if hiring the person would
present an “unreasonable risk” to property or the
public. In deciding whether to hire a person with
a criminal background, an employer must
consider several factors, including the duties of
the job, when the offense occurred, the
“seriousness” of the crime, information
concerning “rehabilitation and good conduct,”
and the “legitimate interest in protecting
property, and the safety and welfare of specific
individuals or the general public.”
The court noted that since Mr. Hollingshed’s
release in 1988, he had no further arrests and
had been continuously and successfully
employed working with emotionally, mentally,
and physically handicapped children. “It does
not appear,” wrote the court, “that the agency

Vol. 18, No. 2; Spring 2008

fully considered Mr. Hollingshed’s prior work
experience, letters of reference, and Certificate
of Good Conduct” and it could not “reasonably
state that Mr. Hollingshed provided no proof of
his rehabilitation or the fact that he had been
drug free for almost 18 years.”
Judith Whiting, an attorney for the Legal
Action Cent e r , whi c h r epresented
Mr. Hollinshed, said, “The state should
encourage organizations to hire people who
moved on from past mistakes, not stand in the
way,” and added that the court’s decision
confirms the work that her organization, and
others, are doing in the re-entry area.

Pro Se Practice
Bringing a Habeas Corpus Proceeding in
State Court
This memoranda explains when and how to
bring a habeas corpus proceeding in State
Court.
“Habeas corpus” is a Latin term meaning
“produce the body.” A habeas corpus
proceeding refers to the process by which a
person in custody can obtain a court order
directing that he or she be produced in court in
order to conduct an inquiry into the legality of
the custody. More broadly, it is a legal action
claiming that a person is being held in custody
illegally.
Historically, habeas corpus has been used to
obtain further review of a criminal conviction
after all direct appeals have been exhausted.
Federal habeas corpus proceedings are still
frequently used for that purpose. If you have
exhausted your state court remedies and believe
your conviction was tainted by some form of
federal constitutional error, a federal habeas
corpus proceeding is the proper way to proceed.

Vol. 18, No. 2; Spring 2008

In New York, however, the use of habeas
corpus proceedings to obtain further review of
a criminal conviction has been largely
supplanted by Criminal Procedure Law § 440.
That statute specifies both the circumstances
under which and the procedure by which a New
York court will entertain further review of a
criminal conviction once direct appeals have
been exhausted. Thus, most post-appeal
challenges to the legality of a criminal
conviction brought in state court should be
raised in a “440" motion. (To learn more about
federal habeas corpus proceedings and 440
motions, request a copy of PLS’ memo,
“Collateral Attacks on a Criminal Conviction.”)
So, when would you use a state habeas
corpus proceeding?
Habeas corpus in New York is used
primarily to challenge the legality of your
custody for some reason other than your
conviction. In other words, you would use a
New York habeas corpus proceeding when you
believe the State has no right to keep you in
custody, even though you concede that your
conviction was legal.
A typical example would be a claim that
DOCS has miscalculated your sentence
computation and, as a result, has held you in
prison longer than it has a legal right to. Such a
claim does not challenge the legality of your
underlying conviction. It simply asserts that the
legal authority to hold you under that conviction
has expired.
Another example might be one of the
situations discussed in the lead article of this
issue of Pro Se: a challenge to a period of Post
Release Supervision on the ground that the
period of Post Release Supervision had not been
ordered by the sentencing court; or a challenge
to DOCS’ authority to run your sentence
consecutively to your parole time, if the
sentencing court did not order consecutive
sentences. In both of those examples, you are
not challenging your underlying conviction but,

Page 23

instead, DOCS’ (or Parole’s) legal authority to
continue to hold you after the sentence imposed
by the court has expired.
State habeas corpus proceedings are, thus,
like Article 78 proceedings, in that they are
used primarily to challenge the legality or
correctness
of an administrative decision, such as the
calculation of a sentence or the revocation of
parole.
The critical difference is this: You can use
a habeas corpus proceeding, rather than an
Article 78 proceeding, only if winning the
proceeding would establish your entitlement to
immediate release.
So, for example, if you disagree with the
way DOCS has calculated your sentence, you
could challenge the sentence calculation in an
Article 78 proceeding (after exhausting your
administrative remedies). Or you could
challenge it in a habeas corpus proceeding. But
you could only challenge it in a habeas corpus
proceeding if winning would entitle you to be
released--that is, if recalculating the sentence as
you believe that it should be calculated would
show that you are being held beyond your
conditional release or maximum expiration date.
Likewise, you could bring an Article 78
proceeding to challenge DOCS’ decision to
impose a period of Post Release Supervision on
your sentence. Or you could challenge the
decision in a habeas corpus proceeding. But you
could only challenge the decision in a habeas
corpus proceeding if winning would entitle you
to immediate release. In this case, that would
mean that you could bring a habeas corpus
proceeding only if you are being held as a result
of an alleged violation of the period of Post
Release Supervision. If you are still serving the
underlying sentence of imprisonment, winning
would not entitle you to immediate release. You
would have to bring an Article 78 proceeding.
If you can bring a habeas corpus
proceeding, rather than an Article 78

Page 24

proceeding, you should. Habeas corpus has
several advantages over an Article 78. First, in
a habeas corpus proceeding, unlike an
Article 78 proceeding, you
do not need to exhaust your administrative
remedies before filing. You can file the claim as
soon as you feel you have valid grounds.
Second, if you win your habeas corpus
proceeding, you will be entitled to immediate
release. Third, if you win, the respondent is not
entitled to a stay of the lower court’s decision
while he appeals. (In an Article 78 proceeding,
by contrast, the respondent is entitled to a stay
of a lower court’s decision while the decision is
being appealed.)
If you are unsure as to whether you would
be entitled to immediate release should you win
your claim, you may still bring it as a habeas
corpus proceeding instead of an Article 78
proceeding. If the court concludes that you
would not be entitled to immediate release if
you won, it should convert the proceeding to an
Article 78. (It would, however, then be subject
to all the requirements of Article 78
proceedings, including those requiring
exhaustion of administrative remedies.)
How to File a Habeas Corpus Proceeding
Law Governing
Habeas corpus proceedings in New York are
governed by Article 70 of the Civil Practice
Law and Rules (CPLR), §§ 7001 through 7012.
In addition, habeas corpus proceedings, like
Article 78 proceedings, are considered “special
proceedings” under New York law and are thus
also governed by CPLR §§ 401 - 411, which
concern “special proceedings,” generally. It
would be worth your time to obtain and read
these statutes before bringing your claim; you
should be able to find them in your law library.

Vol. 18, No. 2; Spring 2008

Where to File
A habeas corpus proceeding may be brought
in any State Supreme Court in the judicial
district in which you are detained, or even in the
Appellate Division governing the place you are
being held. However, they are always
returnable--that is, answered and heard--in the
County in which you are detained. So, absent
exceptional circumstances, they should
generally be filed in the County in which you
are being detained. Thus, if you are incarcerated
in Clinton Correctional Facility, your habeas
proceeding should be filed in the Supreme
Court of Clinton County.
What to File
A habeas corpus proceeding consists of an
Order to Show Cause and a Verified Petition
or Affidavit in Support.
The title, or caption, of the proceeding is,
generally, “People ex rel [the Petitioner] versus
[warden/superintendent].” This means that the
writ is being issued by “the People” (i.e., the
State) in a matter relating to “the Petitioner”
(usually, you) and that it is addressed to the
person who is holding you in custody and who
will be required to produce you in court (i.e.,
the warden or superintendent of your
correctional facility).
Technically, anybody can petition for a writ
of habeas corpus on behalf of any another
person. Thus, sometimes the petitioner won’t be
you but your attorney or a family member or
friend “on behalf of” (“o/b/o”) you. In that case,
the caption would be “People ex rel
[attorney/family member, etc.] o/b/o [you] vs.
[warden/superintendent].”

Vol. 18, No. 2; Spring 2008

(a) The Order to Show Cause
The Order to Show Cause, or OSC, is the
document that commences the proceeding. It is
an order, signed by a judge, requiring the
respondent--generally, the superintendent of the
correctional facility in which you are being
held--to “show cause” at a particular place and
time why your detention is legal. The OSC will
also typically state the way in which notice of
the proceeding should be served on the
respondent and state the date by which the
respondent must submit answering papers, if
any.
The OSC is generally prepared by you (or
your attorney) for the judge’s signature. The
judge may sign it as you wrote it or may change
it in any number of particulars or may substitute
his or her own. In any event, after it is signed,
the judge will send you a copy of the signed
Order. It will then be your obligation to serve it
in the manner in which the Order prescribes on
the persons named therein. Often, for
simplicity’s sake, the Order will simply require
that the papers be served on the Attorney
General, as the representative of your facility
superintendent, by certified mail.
Choose the dates you put in the proposed
OSC carefully. Remember that a number of
things must happen between the date you put
your papers in the mail to the court and the date
you choose for the hearing.

0 First, the court has to receive and process
the papers.
0 Second, a judge has to review them, sign the
OSC, and return it to you.
0 Third, you will have to serve a copy of the
papers, plus the OSC, on the respondent or
the Attorney General within the time
specified in the OSC.

Page 25

0 Fourth, the Attorney General must have a
reasonable amount of time to investigate the
situation and prepare a reply.
Given all that, a month is often a good
framework within which to work. In that
framework, you would set the hearing date for
a
month from the date on which you are sending
the papers to the court. You would then set the
date by which you must serve the papers on the
Attorney General for a week to ten days from
the date on which you send the papers to the
court, and you would set the date by which the
Attorney General must answer the petition for
ten or so days after service has been completed.
That gives everyone involved--you, the court
and the Attorney General--enough time to get
everything done correctly.
(b) The Verified Petition
The Verified Petition is a petition or
affidavit stating the grounds upon which the
Order to Show Cause should be issued.
Basically, it is your statement about why your
custody is illegal and why you are entitled to be
released on habeas corpus. It should lay out the
facts that give rise to your Petition as clearly as
possible, usually in numbered paragraphs. If
you have any exhibits that prove your facts,
they should be attached to the Petition, each one
clearly marked and numbered.
In addition to the basic facts giving rise to
your petition, Section 7002 of the Civil
Procedure Law and Rules lists several items that
every Petition for a writ of habeas corpus must
state. They are:
~

That the person on whose behalf the petition
is made is detained;

Page 26
~

The name of the person detaining him and
the name of the place of detention (if
known);

~

The cause or pretense of the detention;

~

That a court or judge of the United States
does not have exclusive jurisdiction to order
the petitioner released;

~

Whether any appeal has been taken from
any order by virtue of which the person is
detained, and, if so, the result; and

~

The date, and the court or judge to whom
made, of every previous application for the
writ, the disposition of each such
application and of any appeal taken, and the
new facts, if any, presented in the petition
that were not presented in any previous
application.

The Verification is a statement affirming
that what you have said in the petition is true to
the best of your knowledge. You sign it in front
of a notary and attach it to the back of the
Petition.
In addition to the Order to Show Cause and
the Verified Petition, you will need an Index
Number Application, and 3 “RJIs” (Request for
Judicial Intervention). If you cannot afford the
court filing fee, you may also need a Poor
Person’s Request. These forms--which, for the
most part, are self-explanatory--should be
available through your law library.
Sample Orders to Show Cause and Verified
Petitions, as well as Index Number
Applications, RJIs, and Poor Person’s Requests,
are also available upon request to your local
office of Prisoners’ Legal Services.

Vol. 18, No. 2; Spring 2008

How to File
Once you have drafted your Index Number
Application, RJIs, Poor Person’s Application,
proposed Order to Show Cause, and Petition,
and have signed the Verification in front of a
notary, you should staple the Order to Show
Cause, Petition, Verification, and whatever
exhibits you have together in one document.
You should then put all the papers in one
envelope with a letter addressed to your County
Court Clerk, itemizing all the documents that
you are enclosing:

‚ Order to Show Cause;
‚ Verified Petition for a Writ of Habeas
Corpus;
‚ Poor Person’s
Authorization;

Application

and

‚ Index Number Application; and
‚ Three RJIs.
Your letter should ask the court to:
1. Grant the Petition an index number;
2. Assign the matter to a judge; and
3. Ask the judge to sign the Order to Show
Cause and return both it and the Petition to
you.
Send the entire package to your local
County Court Clerk.
When you get the signed Order to Show
Cause and the Petition back, make two copies.
Follow the instructions in the Order to Show

Vol. 18, No. 2; Spring 2008

Page 27

Cause and serve one copy on your adversary
(typically, the Attorney General). Then draft an
“Affidavit of Service” stating that you served
the papers. Send the Affidavit and one copy of
the OSC and Petition back to the court clerk.
Keep the other for your records.
You should get something back from the
Attorney General by the date on the Order to
Show Cause by which the AG is supposed to
respond. It may be an Answer--i.e., the AG’s

reply to your legal arguments--or it may be
simply a request for an adjournment. In either
case, you can respond, if you like. If the judge
hearing the case feels it necessary to produce
you for a hearing, he or she will issue an Order
for your production. If not, your case will be
decided on the papers.
Good luck!

Human Rights Watch Seeks Information from Inmates
In the next few months, Human Rights
Watch, the largest international human rights
organization based in the United States, will be
looking at the drug treatment and the HIV and
Hepatitis C prevention programs in DOCS.
Founded in 1978, Human Rights Watch is an
independent, non-governmental organization
dedicated to documenting human rights abuses
around the world and working to change these
conditions. Human Rights Watch reports are not
just dry, academic documents. Instead, the
reports try to bring out the human stories
involved. Confidentiality is highly respected at
all times. Real names are not used in the reports
without permission.
Megan McLemore, a lawyer and researcher
with the HIV/AIDS Program at Human Rights
Watch, is seeking information about the New
York State prison system’s drug/substance
abuse treatment and HIV and Hepatitis C
prevention services. Questions include:
1.

What types of drug/substance abuse
treatment programs are offered in your
facility? Are these treatment programs
accessible to you? Are you on a waiting
list? If you are in a program, is it helpful?
What makes it helpful?

2. Are you worried that you will use drugs
when you return to the community? Will
you need help finding a treatment
program in the community once you are
released?
3. If you were a user of heroin, oxycontin, or
other opiates, did you have a difficult
withdrawal experience in jail or in
DOCS? Were you on methadone or
buprenorphine (Suboxyn) before you
entered prison? Do you feel that
methadone or buprenorphine would be
helpful to you in prison? Would it be
helpful to be linked to a medicationtherapy clinic on the outside once you are
released? Have you received education
about the risk of overdose upon release?
4. Are you receiving HIV and Hepatitis C
prevention education? Please describe
these programs and tell us if they are
helpful to you and why.
If you would be willing to share your
experiences and opinions, please write to
Human Rights Watch at the address below.
Megan McLemore, Esq.
HIV/AIDS & Human Rights Program
Human Rights Watch
350 5th Avenue, 34th Floor
New York, NY 10118

Page 28

Vol. 18, No. 2; Spring 2008

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, 41 State Street, Suite M112, Albany,
NY 12207. Do not send requests for legal representation to Pro Se.
Pro Se On-Line
Inmates who have been released, and/or families of inmates, can read Pro
Se on the PLS website at:
www.plsny.org.

EDITORS: JOEL LANDAU, ESQ.; KAREN MURTAGH-MONKS, ESQ.;
BETSY HUTCHINGS, ESQ.
COPY EDITING: FRANCES GOLDBERG; ALETA ALBERT
CONTRIBUTORS: BETSY STERLING, ESQ.
PRODUCTION: FRANCES GOLDBERG
DISTRIBUTION: BETH HARDESTY

Vol. 18, No. 2; Spring 2008

Page 29

PLS OFFICES AND THE FACILITIES SERVED
Requests for legal representation and all other problems should be sent to the local office that covers
the prison in which you are incarcerated. Below is a list identifying the prisons each PLS office serves:
ALBANY
41 State Street, Suite M112, Albany, NY 12207
Prisons served: Arthurkill, Bayview, Beacon, Bedford Hills, Mt. McGregor, Summit Shock, CNYPC,
Coxsackie, Downstate, Eastern, Edgecombe, Fishkill, Fulton, Great Meadow, Greene, Greenhaven,
Hale Creek, Hudson, Lincoln, Marcy, Midstate, Mid-Orange, Mohawk, Oneida, Otisville, Queensboro,
Shawangunk, Sing Sing, Sullivan, Taconic, Ulster, Wallkill, Walsh, Washington, Woodbourne.
BUFFALO
Statler Towers, Suite 1360, 107 Delaware, Avenue, Buffalo, NY 14202
Prisons served: Albion, Attica, Buffalo, Collins, Gowanda, Groveland, Lakeview, Livingston, Orleans,
Rochester, Wende, Wyoming.
ITHACA
102 Prospect Street, Ithaca, NY 14850
Prisons served: Auburn, Butler, Camp Georgetown, Monterey Shock, Camp Pharsalia, Cape Vincent,
Cayuga, Elmira, Five Points, Southport, Watertown, Willard.
PLATTSBURGH
121 Bridge Street, Suite 202, Plattsburgh, NY 12901
Prisons served: Adirondack, Altona, Bare Hill, Camp Gabriels, Chateaugay, Clinton, Franklin,
Gouverneur, Lyon Mountain, Moriah Shock, Ogdensburg, Riverview, Upstate.

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