Vol. 18, No. 3 : Summer 2008 Published by Prisoners' Legal Services of New York

Governor Signs PRS Legislation
On June 30, 2008, Governor Paterson signed
legislation amending the Correction and Penal
Laws. The new law clarifies (makes clear) that
the courts must impose Post-Release Supervision
(PRS) whenever they impose a determinate (flat)
sentence, explains the steps DOCS must take when
it believes that a court has imposed an “erroneous”
sentence,
and provides a framework for
resentencing defendants with respect to whom the
courts had imposed determinate sentences but had
failed to impose post-release supervision (PRS).
The law was effective the date it was signed.
Some of the amendments apply to people who will
be sentenced after the effective date; others apply
to people who were sentenced before the effective
date.

must either transmit a superseding (takes the
place of the original) commitment order
reflecting that PRS was in fact imposed at
sentencing,
or convene a re-sentencing
process. If the court convenes a re-sentencing
process, the law requires it to be completed
within 40 days of the court’s receipt of the
notice from DOCS. During the re-sentencing
process, where the district attorney consents,
the court may re-impose the original
determinate sentence without any term of
post- release supervision.
. . . . article continues on Page 3

Also Inside . . .

PRS Provisions

Post-Release Supervision
Summary . . . . . . . . . . . . . .Page 6

Defendants Sentenced Between September 1,
1998 and June 30, 2008

Defendants Sanctioned in
§1983 . . . . . . . . . . . . . . . . .Page 18

With respect to defendants sentenced between
September 1, 1998 and June 30, 2008, where a
inmate’s commitment shows that the court
imposed a determinate sentence, but does not
show that the court imposed post-release
supervision, the law requires DOCS to notify the
sentencing court. Once the court is notified, it

State Rights and State
Courts . . . . . . . . . . . . . . . .Page 19
Subscribe to Pro Se, see page 5 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. 3 Summer 2008

A Message From the Executive Director
Karen L. Murtagh-Monks
According to Amnesty International, at least twenty-three state departments of correction,
and the U.S. Bureau of Prisons, have policies that expressly allow the use of some form of restraints
on female prisoners while they are in labor. Recently, in Nelson v. Correctional Medical Services,
F.3d
, 2008 WL 27774230 (8th Cir. July 18, 2008), a three-judge panel, sitting for the 8th
Circuit Court of Appeals, held that such conduct did not violate the 8th amendment to our
Constitution which prohibits cruel and usual punishment.
In Shawana Nelson’s case, while she was in labor at the hospital, she was “(1) initially
handcuffed and shackled, (2) later shackled by, at least, one ankle to the bed railing until shortly
before she actually gave birth, and (3) placed in leg restraints after giving birth.” Nelson, who
weighed a little over 100 pounds, gave birth to a 9½ pound baby. In her complaint, she alleges that
the experience of giving birth without anesthesia, and while largely immobilized, left her with
permanent back pain and damage to her sciatic nerve. Circuit Judges William Riley, Raymond
Gruender, and Bobby Shepherd held that where there was nothing in the record to demonstrate that
the defendants “deliberately disregarded” Ms. Nelson’s medical needs, this conduct was not cruel or
inhuman.
Admittedly, our Constitution “does not mandate comfortable prisons,” Rhodes v. Chapman,
452 U.S. 337, 346 (1981), “but neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S.
825, 832 (1994). During our evolution as a country, our courts have given us ways to analyze
whether certain conduct violates the 8th amendment. They have told us that the scope of the cruel and
unusual punishment clause of the Constitution acquires meaning “as public opinion becomes
enlightened by a humane justice,” [Weems v. U.S., 217 U.S. 349, 378 (1910 ), citations omitted], that
we must be “guided by the evolving standards of decency that mark the progress of a maturing
society,” [Trop v. Dulles, 356 U.S. 86, 101 (1958)], that the 8th Amendment embodies “broad and
idealistic concepts of dignity, civilized standards, humanity, and decency,” [Jackson v. Bishop, 404
F.2d 571, 579 (8th Cir. 1968)], and that the “[l]egal prohibition of cruel and unusual punishment is
an important aspect of humanity’s search for civilization,” Cunningham v. Jones, 567 F.2d 653, 655
(6th Cir. 1977).
According to Amnesty International, use of mechanical restraints on a pregnant inmate
constitutes a cruel and inhumane form of punishment and poses a serious risk to both the mother and
her unborn child. The United Nations standard for the Treatment of all Prisoners, Rule 33, states that
shackles should not be used on inmates unless they are a danger to themselves, others or property or
have a history of absconding. Like most incarcerated women, Ms. Nelson was in prison for a nonviolent crime—identity fraud and writing bad checks. Thus, based on evolving standards of decency,
one might ask, how it is possible that, in this day and age, a court could find that handcuffing and
shackling Ms. Nelson to a hospital bed during her labor did not violate the 8th amendment?
Presently only three states have officially banned the practice of shackling pregnant women
in labor: California, Illinois and Vermont. In the past, New York introduced legislation to ban the
practice, but the legislation never moved forward. [See Assembly Bill A04105, Senate Bill S2115,
sponsored by Assemblyman N. Nick Perry and Senator Velmanette Montgomery, respectively]. The
proposed legislation allows the use of handcuffs if it is determined by prison personnel that the
prisoner poses a substantial escape risk. Legislation such as this is humane, necessary, appropriate
and overdue. I urge DOCS to join with PLS in supporting the passage of similar legislation during
the upcoming 2009-2010 legislative session.
Note: Because the practice of shackling pregnant women during labor is draconian, PLS has
joined with a number of other organizations as amicus in support of a request for a rehearing en
banc. This means that we are asking the court to look at this case again where all the judges on the
court, there are 11 of them, will re-hear the case.

Vol. 18 No. 3 Summer 2008

The review and resentencing provisions of
the PRS law do not impact on an inmate’s rights
to bring an Article 78 or habeas action to remedy
DOCS’ imposition of post-release supervision.
The review and re-sentencing provisions
of the law apply only to people sentenced to
determinate sentences between September 1,
1998 and June 30, 2008. A summary of the
most significant aspects of the legislation is set
forth on pages 6-7.
Clarification of Existing Law
The law clarifies that when a court imposes
a determinate sentence, it must also impose a
period of post-release supervision and requires
courts to transmit the certificate of conviction
and a certified copy of the sentencing minutes to
DOCS within 30 days of sentencing.
The legislation also requires DOCS to
identify illegal sentences and, when DOCS
discovers an illegal sentence, to notify the district
attorney (DA) of the county where the sentence
was imposed. If the DA agrees that the sentence
is legally improper, the DA must so inform
DOCS, whereupon DOCS is required to notify
the sheriff of the county – or the commissioner
of the city or county department of correction –
from which such person was committed, who
must take the person to court for re-sentencing.

DOCS Adopts Comprehensive
Court Notification Plan
In response to the PRS Legislation, DOCS,
Parole and the Office of Court Administration
(OCA) have adopted a schedule for completing
the review process required by the law. The plan
takes the form of a Memorandum of
Understanding (MOU). The MOU applies to
individuals who, between September 1, 1998
and June 30, 2008, were sentenced to
determinate sentences, whose commitment
orders do not reflect the imposition of PRS
and whose sentencing minutes, assuming that
they are in DOCS custody, do not show that

Page 3

the court imposed PRS. The MOU refers to
these individuals as Designated Persons (DP).
To avoid confusion, we will use the same term.
Only if you are a DP does one of the following
deadlines apply to you.
The purpose of the MOU is to organize the
sentence review process mandated by the
legislation. The MOU is structured so that those
individuals whose actually imposed sentences
have expired and who are in DOCS or local
custody based on violations of DOCS-imposed
PRS will be returned to the sentencing courts
this summer. The MOU is a voluntary
arrangement. It represents goals that the
signatories have set for themselves. It remains to
be seen whether each signatory will be able to
meet the goals set by the MOU.

The Goals Set Forth In The MOU
Designated Persons Whom DOCS Or Parole
Plan to Refer to the Courts by July 31,
2008
! Individuals who are in DOCS custody due to
violations of PRS that was not judicially
imposed. The MOU estimates that there are
about 400 people in this group.
! Individuals who are either in DOCS custody
solely on the basis of PRS violation warrants
(e.g., for violations occurring at Willard
D.T.C.) or in the custody of local jails solely
on the basis of either technical violations of
PRS or PRS violation warrants.
Designated Persons Whom Parole Plans To
Refer to the Courts by October 1, 2008
! Individuals who are currently under PRS
supervision in the community and who were
first released to PRS between July 15, 2004
and July 15, 2007. Of this group, no more
than 500 people will be referred to the
courts prior to September 1, 2008.

Page 4

Designated Persons Whom Parole Plans to
Refer to the Courts by November 1, 2008
! Individuals who are currently under PRS
supervision in the community and who were
first released to PRS between July 16, 2007
and July 15, 2008.
! Individuals who are first released to PRS
between July 15, 2008 and September 1,
2008.
Designated Persons Whom Parole Plans To
Refer to the Courts By December 1, 2008
! Individuals who were released to PRS before
July 15, 2004.
! Individuals who are on PRS in the
community and who have not reached the
maximum expiration dates of their judicially
imposed sentences.
Designated Persons Whom DOCS Plans To
Refer to the Courts 45 Days Before They Are
Released to PRS for the First Time
! Individuals who will be released to PRS after
September 1, 2008 but before October 1,
2008.
Designated Persons Whom DOCS Plans To
Refer to the Courts 60 Days Before They Are
Released to PRS for the First Time
! Individuals who will be released to PRS after
October 1, 2008. The MOU estimates that
will be 70 to 80 such releases a month.
Individuals Whom Parole or DOCS Plans To
Refer to the Courts Within 30 Days Of Their
Re-incarceration
! Individuals whose commitment orders do not
reflect the judicial imposition of PRS, and
who were not referred to the sentencing

Vol. 18 No. 3 Summer 2008

courts
prior to
their subsequent
incarceration in a local jail on a PRS
violation warrant.
! Individuals whose commitment orders do not
reflect the judicial imposition of PRS who
were released from, and then returned to,
DOCS custody due to a revocation of PRS
and who have not previously been referred to
the sentencing court.
The MOU provides that if the flow of cases
into any particular Judicial District creates or is
predicted to create workloads beyond the
capacity of the District to provide fair and
expeditious (speedy and efficient) review, and
the flow of DPs into the District should therefore
be modified, the deadlines may be modified in
that District by agreement, subject to OCA
approval, between the Administrative Judge,
DOCS and Parole.

Court Finds PRS Revocation
To Be Null and Void
In People ex rel. Benton v. Warden, 2008
WL 2132803 (Sup. Ct. Bronx Co., May 21,
2008), the court addressed the issue of whether
a parolee could be given a time assessment for a
violation of PRS, where the violation occurred
before a court had imposed PRS. The facts
presented to the court were that Mr. Benton was
sentenced to a five year determinate sentence,
but the court, although having told him at his
plea that PRS would be imposed, at sentencing
did not mention it.
DOCS however,
administratively imposed 5 years PRS. After Mr.
Benton was released to parole supervision, a
parole violation warrant was issued, his parole
was revoked and a time assessment of 24 months
was imposed. A year later, Mr. Benton brought
a motion before the sentencing court, which,
citing the plea minutes, imposed 5 years PRS,
nunc pro tunc (as though it had been imposed at
the same time as the original sentence). Mr.
Benton

Vol. 18 No. 3 Summer 2008

then filed a petition for a writ of habeas corpus
arguing that he could not have violated the terms
of PRS, as at the time of the alleged violation, he
had not been sentenced to PRS.
The court ruled in Mr. Benton’s favor. It
reasoned that in Matter of Garner v. New York
State Correctional Services, 859 N.Y.S.2d 590
(2008), the Court of Appeals stated
unequivocally (without any ifs, ands, or buts)
that the combined command of CPL §§ 380.20
and 380.40 is that the sentencing judge, and only
the sentencing judge, is authorized to pronounce
the PRS component (part) of a defendant’s
sentence, and that prison officials are bound by
the content of an inmate’s commitment papers.
Thus, the Benton court found, DOCS’
imposition of PRS, where a judge failed to
impose PRS at sentencing is “a nullity.”
Further, the court held, the court’s
imposition of PRS after the date that Mr. Benton
allegedly had violated PRS did not change the
fact that Mr. Benton could not violate a term of
his sentence that was not imposed until after the
date of the violation. Because the Mr. Benton
was not subject to any conditions of release when
he was violated, the court granted the writ of
habeas corpus and ordered Mr. Benton’s release.
Based on the court’s order, Mr. Benton was
released to serve the period of PRS imposed by
the judge at the re-sentencing procedure.

Court of Appeals To Review
People ex rel. Gill v. Greene
Overruling 25 years of precedent, in People
ex rel. Gill v. Greene, 852 N.Y.S.2d 457 (3d
Dep’t 2008), the Third Department ruled that
where a sentencing court is silent as to whether a
newly imposed sentence runs concurrently with
or consecutively to, a previously imposed and
undischarged sentence, DOCS must compute an
inmate’s legal dates as though the court had
ordered the new sentence to run concurrently
with the old. See, Pro Se, Volume 18, No. 2,
Spring 2008. Following this decision, DOCS
made a motion to re-argue the case, or in the
alternative, for leave to appeal to the Court of

Page 5

Appeals. On June 26, 2008, the Third
Department denied the motion to reargue and
granted the motion for leave to appeal to the
Court of Appeals.
While the case is pending before the Court of
Appeals, Gill v. Greene remains good law in the
courts located in counties that fall within the
Third Department. The Court of Appeals could
affirm the Third Department’s decision in Gill, in
which case its holding will apply state-wide. Or
the Court could reverse the Third Department, in
which case the law statewide will be that when
the court imposes a sentence on a defendant
whom it has found to be a predicate felony
offender, the sentence must run consecutively to
previously imposed and undischarged sentences.

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Page 6

Vol. 18 No. 3 Summer 2008

Post-Release Supervision
On June 30, 2008, new laws pertaining to determinate sentences and post-release supervision
(PRS) became effective. Among the new provisions are the following:

Determinate Sentences Imposed Between September 1, 1998 and June 30, 2008:
Correction Law § 601-D*
Ž

When an inmate’s commitment order does not show that PRS was imposed, and DOCS either
does not have the inmate’s sentencing minutes, or the sentencing minutes show that PRS was
not imposed, DOCS must notify the sentencing court.

Ž

After receiving notice, where the court reviews the sentencing minutes and determines that
PRS was imposed at sentencing, the court must issue a superceding commitment order.
Where a superceding commitment order is not issued:
Within 10 days of receiving notice from DOCS, the court must appoint counsel and
calendar a court appearance to be held no more than 20 days after receipt of the notice;
At the appearance, the court must set a date for a re-sentencing procedure. The
procedure must be scheduled no more than 30 days after the date upon which the court
received the notice;
No later than 40 days after receiving notice, the court must issue a written order
resolving the sentencing issue and provide to DOCS and to the inmate a copy of the
current order of commitment.

M

The inmate may consent to extend the time periods that the law imposes on the court.

Ž

Within 30 days, and based on extraordinary circumstances that prevent final resolution of the
question of whether the inmate will be re-sentenced, the District Attorney may ask the court
for a 10 day extension.

Ž

Where the District Attorney consents, the sentencing court may re-impose the
originally imposed determinate sentence of imprisonment without any term of postrelease supervision, which then shall be deemed a lawful sentence. Penal Law § 70.85

* These provisions only apply to determinate sentences that were imposed
between September 1, 1998 and June 30, 2008.

Vol. 18 No. 3 Summer 2008

Page 7

RELATED PROVISIONS

Determinate Sentences and Post-Release Supervision: Penal Law § 70.45(1)
When a court imposes a determinate sentence, it must state not only the term of imprisonment, but
also a period of post-release supervision as determined by Article 70 of the Penal Law.

Documents Relating to Sentences: Criminal Procedure Law § 380.70
Within 30 days of sentencing, the court must deliver to DOCS a certified copy of the sentencing
minutes and a certificate of conviction and a copy of any order of protection issued against the
defendant.

Correction of Illegal Sentences: Correction Law § 601-a
Whenever it appears to DOCS that a person in its custody has been erroneously sentenced, DOCS
must notify the district attorney (DA) of the county in which the person was convicted. If after
investigation, the DA agrees that the person has been erroneously sentenced, the DA must notify
DOCS, and DOCS will then notify the sheriff of the county, or the commissioner of the city or county
department of correction, from which such person was committed, who must take the person to court
for re-sentencing.

Impact of Correction Law § 601-D on a Defendant’s Right to Other Forms of
Relief
The provisions of C.L. § 601-D do not impair an inmate’s right to bring a 440 motion, an Article 78
or a state habeas petition, or any other authorized proceeding.

Right to Counsel: County Law § 722(4)
When, pursuant to C.L. § 601-D, a case is calendared for consideration of re-sentencing, or
when a court is otherwise asked to consider whether a proper term of PRS was imposed as part of
a determinate sentence, the court must assign counsel for the defendant.

Page 8

Vol. 18 No. 3 Summer 2008

State Cases

Former Inmate Is Entitled
to Damages for Wrongful
Confinement
In 1993, Isaac Hudson pled guilty to felony
charges, and, although he owed approximately 5
years on a prior felony sentence, when the court
imposed the sentence of 10 to 20 years, it neither
found that Mr. Hudson was a predicate felony
offender, nor sentenced him as predicate felon.
Nonetheless, when Mr. Hudson went into DOCS
custody, DOCS ran the new sentence
consecutive to the undischarged sentence. Mr.
Hudson gave notice to DOCS that it had made
an error, but only when PLS got involved did
DOCS realize its mistake and release Mr.
Hudson from prison.
Mr. Hudson then filed a claim in the Court of
Claims, seeking damages for 19 months of
unlawful confinement. The State moved to
dismiss the claim, citing a number of reasons. In
Hudson v. State, Claim No. 114628, Decision
No. 2008-04-020, April 17, 2008, the court
denied the motion. The claimant alleged that the
State negligently calculated his release date and
that as a result, he was held beyond his
statutorily mandated conditional release date.
The court found that claims of unlawful
confinement based on incarceration beyond
conditional release date are recognized in New
York.
Practice Pointer: Had DOCS not released the
claimant after correcting its error in computing
his sentence, it is unlikely that, unless he had
been held past his maximum expiration date,
he would have had a claim for damages. An
inmate must prove actual harm resulted from

the erroneous sentence computation, i.e., that
he or she was held beyond a release date upon
which he would have been released.

Court Dismisses Claim For
Negligent Infliction of Emotional
Distress
In Tatta v. State, 857 N.Y.S.2d 815 (3d
Dep’t 2008), the court considered the issue of
whether the revelation of medical information
could be the basis of a claim for damages where
the information is revealed in the course of
deciding a grievance pertaining to (about)
medical treatment. Claimant Tatta filed a
grievance protesting the medical department’s
failure to give him his medication. The
investigation resulted in a report that indirectly
referred to the plaintiff’s underlying medical
condition. Plaintiff filed suit, alleging that
confidential medical information had been
wrongfully disclosed in retaliation for his prior
grievances about medical care. He alleged
negligent infliction of emotional distress, and
claimed that his injury was ostracism (exclusion
and rejection) by other inmates. The court
rejected the claim, holding: “Under the particular
facts of this case, claimant placed his medical
condition in issue when he filed the initial
grievance, and in so doing waived his right to
confidentiality within the limited context of the
grievance process.” Further, the court found, the
claimant failed to establish that anyone outside
the grievance program learned about his medical
condition. Inmate grievance representatives are
bound by a code of ethics, and claimant failed to
establish that his confidential medical information
was given to anyone other than those involved in
the grievance process.

Vol. 18 No. 3 Summer 2008

Disciplinary Hearings

Issue Raised for First Time In
Article 78 Was Not Preserved
Inmate Pulliam was charged with obstructing
visibility into cell and refusing a direct order
when he refused to take down a sheet that he had
draped in front of his cell, after being ordered to
do so. In his Article 78, Mr. Pulliam advanced
the claim that the obstructing rule is in conflict
with Penal Law § 245.11, which prohibits the
public display of offensive sexual material. (The
defense may have referred to paintings, drawings
or photographs that Mr. Pulliam had hung in his
cell). The court, in Matter of Pulliam v. Waite,
778 N.Y.S.2d 323 (3d Dep’t 2008), refused to
rule on this issue because he had not raised it in
the administrative proceeding. In addition, the
court noted, such a challenge to the rule would
have to be raised through the grievance process.

Insufficient Factual Basis for
Handwriting Comparison
After investigating an anonymous (the
author did not give his name) letter detailing a
planned prison escape, the inspector general
charged petitioner with conduct detrimental to
the order of the facility and making false
statements. At the hearing, the hearing officer
concluded that the petitioner’s handwriting and
the handwriting in the letter were the same. The
petitioner challenged the determination of guilt.
In Matter of DeVivo v. Selsky, 52 A.D.3d 1009
(3d Dep’t 2008), the Third Department held that
because the hearing officer’s conclusion was
based on a comparison of a letter written in
cursive (script) and the sample of petitioner’s
handwriting was printed, the hearing officer’s

Page 9

determination that the same person wrote both
letters was not supported by substantial
evidence.

Hearing Officer Qualified to
Compare Writing Samples
After a letter allegedly authored by petitioner
was found in another inmate’s cell, petitioner
was found guilty of distributing unauthorized
organizational materials. In an Article 78
challenge, the petitioner claimed that the
determination was not supported by substantial
evidence. In Matter of Sweat v. Fischer, 2008
WL 2521357 (3d Dep’t June 26, 2008), the
court found that the hearing officer was qualified
to compare the petitioner’s handwriting with
handwriting on the gang related letter, and that
his conclusion that the two were written by the
same person, in combination with the letter and
the testimony of officer trained in identification
of gang related materials, constituted substantial
evidence of the charge.

Proof Insufficient to Defeat
Presumption
In Matter of Liakis v. Selsky, 857 N.Y.S.2d
751 (3d Dep’t 2008), the Third Department
again looked at the issue of the proof necessary
to show that a failure to urinate within three
hours is the result of a medical condition. In
Liakis, where the petitioner was unable to
provide a urine sample within the allotted period
of time, he defended a charge of refusing to do
so by producing evidence that one of the side
effects of the medication that he takes is
difficulty urinating. In upholding the hearing
officer’s determination of guilt, the court found
that there was substantial evidence because there
were no entries in petitioner’s medical records
showing that he experienced that side effect.

Page 10

Court Rejects Challenge to the
Review Officer’s Rank
In Magin v. LeClaire, Jr., 853 N.Y.S.2d 742
(3d Dep’t 2008), the petitioner argued that his
Tier III hearing should be reversed because the
review officer was a lower ranking officer than is
permitted by 7 N.Y.C.R.R. § 251-2.1. Section
251-2.1 states that review officers shall be staff
members of the rank of lieutenant or above, but
that if sufficient reason exists, the superintendent
may designate “some other employee to serve as
the review officer.” The court found that the
issue was not preserved as the petitioner did not,
at the hearing, make an objection to the review
officer’s rank. The court went on to say that, in
any event, there was no impropriety, because the
regulation permits the superintendent, “if
sufficient reason exists,” to appoint “some other
employee” as a review officer.

Court Dismisses Civil Service
Challenge to Change in Job
Duties
In Matter of Criscolo v. Vagianelis, 856
N.Y.S.2d 265 (3d Dep’t 2008), DOCS education
supervisors, plant superintendents, and assistant
industrial superintendents brought an Article 78
challenging the decision to reclassify their civil
service job titles to include the duty to conduct
tier III disciplinary hearings. Finding that the
reclassification was not wholly arbitrary and
capricious, the court dismissed the petition.
Raising a related issue, in Matter of
Kirshstein v. Fischer, 2007 N.Y. Slip Op.
33808(U) [unpublished] (Supreme Court,
Clinton County Oct. 23, 2007), the petitioner
argued that his right to due process of law was
violated by having a senior correction counselor
serve as the hearing officer, because 1) Seven
N.Y.C.R.R. §254.1 states that hearing officers
will be either the superintendent, a deputy
superintendent, captain, or commissioner’s
hearing officer, and 2) Civil Service Law

Vol. 18 No. 3 Summer 2008

§61(2) provides that except upon assignment
by proper authority during the continuance of a
temporary emergency situation, no person shall
be assigned to perform the duties of any position
unless he has been duly appointed to such
position. As it did in Matter of Magin v.
Leclaire, see discussion above, the court found
that because the issue was not raised at the
hearing, the petitioner had waived it.
Nonetheless, the court went on to say that if the
issue had been preserved, it would not be a basis
for reversing the hearing for two reasons. First,
the regulation permits the superintendent, at his
discretion, to designate some other employee to
conduct the hearing. Second, even if the civil
service regulations did provide a basis for a
senior correction officer to claim that s/he was
wrongfully required to perform work outside
his/her job description, such an assignment
would not violate the petitioner’s right to due
process of law at his hearing.

Court Rules Substantial Evidence
Supports Ad Seg Hearing
In Matter of Dumpson v. Fischer, 856
N.Y.S.2d 733 (3d Dep’t 2008), the petitioner
was placed in administrative segregation based
on the determination that he posed a threat to the
safety and security of the staff and inmates. The
petitioner challenged this result, arguing that his
recent improved behavior while in disciplinary
special housing, and his receipt of a time cut
relating to his disciplinary penalty, should, in
making the determination of whether he is
presently a threat to staff and inmates, outweigh
his past misconduct. The court ruled that the
more recent conduct, occurring as it did in a
setting designed to reduce the opportunity to
engage in misconduct – Disciplinary SHU –
cannot be taken as probative evidence of
rehabilitation, and confirmed the hearing
determination.
The petitioner was represented by Prisoners’
Legal Services of New York.

Vol. 18 No. 3 Summer 2008

Ad Seg Placement Partially
Based On Pre-Prison Conduct Is
Upheld
Prison officials convened an administrative
segregation hearing based on confidential
information that Inmate Sutton had put a
contract hit on staff at Erie County Sheriff
Department and evidence that while Mr. Sutton
was in a county jail, hack saw blades were mailed
to him. In Matter of Sutton v. Selsky, 860
N.Y.S.2d 311 (3d Dep’t 2008), the Third
Department held that the determination made at
petitioner’s hearing was supported by substantial
evidence that petitioner’s presence in general
population would pose a threat to safety and
security of prison.

Court Finds Evidence of
Harassment to Be Speculative at
Best
In Matter of Perkins v. Kirkpatrick, Index
No. I-2007-12402 (Sup. Ct. Erie County
4/2/2008), the petitioner challenged a hearing at
which he was found guilty of harassment (but not
of threats), based on 1) a misbehavior report
alleging that he threatened to stab an officer
when he, the petitioner, was released from SHU
and 2) a videotape with no audio. The videotape
showed the officer turning his head in the
direction of petitioner’s cell after he had picked
up the petitioner’s feed up tray. The petitioner’s
defense was that the misbehavior report was
written in retaliation for the grievances that
petitioner filed alleging that the officer had
engaged in misconduct and his letters about the
same to the district attorney.
The petitioner complained to the hearing
officer that his employee assistant had not
produced documents he had requested. The
hearing officer said that he would get them if

Page 11

they were relevant. The petitioner objected that
it was his assistant’s job to have done so, and
refused to cooperate with the hearing officer’s
questions regarding the employee assistant.
Based on this refusal, the hearing officer
excluded the petitioner from the hearing.
Petitioner requested copies of the complaints
that he had filed with the district attorney (DA)
and requested four inmate witnesses, two of
whom agreed to testify, and two of whom the
hearing officer said refused to testify, however
nothing in the record documented the refusals.
The hearing officer stated that the testimony of
four other witnesses, who would have testified
about the complaints that petitioner had
submitted against the author of the misbehavior
report, were irrelevant. The hearing officer
refused to produce the complaints filed with the
DA because they were irrelevant.
Based on the videotape, which the hearing
officer concluded showed that the petitioner had
distracted the officer from his duties by saying
something, the hearing officer found petitioner
guilty of harassment.
The court found that the petitioner’s right to
assistance was violated because his employee
assistant failed to produce documents related to
his retaliation defense. As to the hearing officer’s
efforts, the court stated that it was evident that
the petitioner’s demand for evidence that was
relevant to the accuser’s credibility was
summarily dismissed as pertaining only to an
attack on character.
The court also found that the petitioner’s
refusal to engage with the hearing officer on the
issue of the evidence relating to his employee
assistant did not support the hearing officer’s
determination that petitioner was disruptive.
Further, the court held that under the
circumstances of this case, i.e., the petitioner had
not been disruptive to the hearing process and
since the hearing took place over an extended
period of time, “it would not have been
inappropriate” to allow the petitioner to attend
subsequent sessions of the hearing to view the
videotape and pose questions for his witnesses.

Page 12

Finally, finding that the evidence supporting the
determination that petitioner had harassed the
officer consisted of an inconclusive videotape,
the misbehavior report and two witnesses who
contradicted the substance of the report, and
commenting that there may have been other
evidence, rejected by the hearing officer that
would have been relevant to the officer’s
credibility, the court held that the evidence
presented at the hearing was, “at best
speculative” and ordered the hearing reversed
and the charges expunged.

Vol. 18 No. 3 Summer 2008

Prisoner Defeats Charges of
Unauthorized Legal Assistance
Based on his possession of another inmate’s
legal papers, the petitioner in Matter of
McCallister v. Fischer, 858 N.Y.S.2d 803 (3d
Dep’t 2008) was found guilty of violating the
rule against providing unauthorized legal
assistance.
The court found that merely
possessing another inmate’s legal work is not
sufficient evidence to support a determination that
an inmate gave unauthorized legal assistance.
The court ordered the hearing reversed.

Court Finds Absence of
Authorization for Mail Watch to Can Top Used for Food Prep
Be Harmless Error
May Also Be Considered A
In Matter of Davis v. Fischer, 858 N.Y.S.2d Weapon
468 (3d Dep’t 2008), based on testimony from
the author of the misbehavior report, taped
telephone conversations and in-coming mail, the
court found that substantial evidence supported
the determination that petitioner was guilty of
conspiring to introduce drugs into prison and of
soliciting others to smuggle drugs into the
prison. The court found that in the absence of
evidence that the superintendent had given
authorization for a mail watch, the hearing
officer had erroneously entered into evidence –
and relied upon – an out-going letter from
petitioner. Nonetheless, the court confirmed the
determination of guilt, because, although the
hearing officer should not have considered the
outgoing letter, the remaining evidence was
sufficient to support the determination. Thus,
the court concluded, the hearing officer’s error
was harmless. Presumably, had the out-going
letter been the only, or the primary evidence
against the petitioner, the court would have
reached a different result.

When an officer saw an inmate using a bent
over can top to cut onions, the officer ticketed
him for possession of an altered item and an item
that may be classified as a weapon by description,
use or appearance. At his hearing, the inmate
argued that the item was not intended for use as
a weapon and that he had only used it for benign
(harmless or innocent) purposes. Nonetheless,
the inmate was found guilty of the charges. On
appeal, in Matter of Tinnirello v. Selsky, 858
N.Y.S.2d 806 (3d Dep’t 2008), the court held
that the inmate’s intent did not control the
outcome; because the item could be classified as
a weapon by description, use or appearance, the
hearing officer’s determination was supported by
substantial evidence.

Vol. 18 No. 3 Summer 2008

Parole

Board’s Denial of Parole Was
Not So Irrational As to Border
on Impropriety
In Matter of Nunez v. Dennison, 857
N.Y.S.2d 810 (3d Dep’t 2008), the court
reviewed the issue of whether the Parole Board
could consider facts related to crimes for which
an inmate was not convicted. Here, petitioner
Nunez had been convicted of robbery. At his
parole eligibility hearing, the Board noted that
during one of the robberies, a victim was shot
and died. Petitioner complained that because he
had not been convicted of murder, the Board had
wrongfully concluded that he was responsible for
the death. The court disagreed, noting that the
Board had accurately stated that during one
robbery, a victim was killed by petitioner’s codefendant. The court stated that the Board is
permitted to consider all of the circumstances of
the instant offenses, which may include conduct
for which the petitioner was not convicted, so
long as some evidence of such conduct exists in
the record and it is not the sole basis for the
Board’s determination. Here the Board also
considered the relevant statutory factors,
including the seriousness of the instant offenses
and petitioner’s lengthy criminal history and
history of drug addiction as well as his positive
institutional programming, lack of any recent
disciplinary infractions and his plans for release.
The court held that the Board’s determination
was therefore not so irrational (unreasonable
and illogical) as to border on impropriety
(legally improper).

Page 13

Board’s Denial of Parole
Irrational to the Point of
Impropriety
In Matter of South v. N.Y.S. Division of
Parole, Index No. 113811/07, Supreme Court,
New York County, April 8, 2008, the court
granted a petition alleging that the Parole Board’s
denial of the petitioner’s application for parole
was irrational, bordering on impropriety.
Petitioner had been imprisoned for close to 19
years on a sentence of 8 to Life. He was 58 years
old, and an honorably discharged military veteran.
He was a model prisoner, and suffers from a
serious illness. The Parole Board denied him
release based on what the court stated was an
“unexplored conclusion” that there was a
reasonable probability that if released, he would
not live and remain at liberty without again
violating the law. The court found that there
was “no probing” beyond the conclusory
statement that the defendant, whose crimes were
admittedly serious, could not be and should not
be allowed to live in the community after 19 years
of incarceration.
In reversing the hearing, the court noted that
the sentencing judge had not sentenced the
petitioner to the maximum sentence that he could
have lawfully imposed, and had run sentences for
other crimes concurrent to the most serious
crime. This, the court stated, was an indication
that the sentencing judge did not intend that the
maximum term of life be used as a basis for
confining the petitioner for 2½ times the eight
years imposed.
As a final basis for finding that the
proceeding was fatally flawed, the court found
that because the Board failed to set forth its
reasoning in denying parole (which can not be
based on offenses alone), the Board failed to meet
the minimum standards for a parole hearing.

Page 14

Finally, the petitioner argued that the Parole
Board’s admission in the Article 78 that the
hearing should be reversed was rooted in its
intention to hold a hearing at a location that
would preclude (stop) petitioner from
challenging in New York County the results of
the re-hearing. The court found that the Article
78 was appropriately filed in New York County
because the hearing was done via
teleconferencing, with the Board in New York
City and the petitioner in Elmira. With respect to
this issue, the court stated that it would expect
that “in good faith,” and unless petitioner’s
claims of forum shopping were true, the Board
would again meet in New York and that
petitioner would participate electronically,
thereby allowing him, should he again be denied
release, to file his Article 78 challenge in New
York County.

Parole Board’s Failure to
Consider Statutory Factors
Leads to Reversal and
Rehearing
In Matter of Borcsok v. New York State
Board of Parole, Index No. 1119-08, (Sup. Ct.
Albany County, April 25, 2008), the petitioner
challenged a parole denial, arguing that the
Board failed to consider and apply the requisite
(required) statutory factors and based its decision
on the severity of petitioner’s offense. The court
found that in denying the petitioner parole, the
Board did not adequately demonstrate that there
was a reasonable probability that the petitioner,
if released, would not live and remain at liberty
without violating the law, that his release was not
incompatible with the welfare of society, or that
his release would so deprecate (belittle or
detract from) the seriousness of his crime as to
undermine respect for the law. In reaching this

Vol. 18 No. 3 Summer 2008

result, the court noted that the Board’s decision
to deny parole focused primarily on the
petitioner’s crime, which he had committed over
25 years before. The court stated that §259-I
(2)(c)(A) of the Executive Law requires that the
Board consider:
1.
The applicant’s prison record,
including pro gram go als and
acco mplishment s, academic
achievements, vocational education,
training or work assignments, therapy,
and interpersonal relationships with staff
and inmates;
2. Performance on temporary release;
3. Release plans, including community
resources, employment, education and
training and support services available to
the inmate;
4. The existence of a deportation order;
and
5. Statements made by the crime victim
or crime victim’s representative.
In the absence of any analysis of the
statutory criteria, it was impossible for the court
to determine whether the Board, in reaching its
conclusion, had considered the pertinent factors.
As an alternative ground for reversal, the
court cited the Board’s failure to review the
sentencing minutes which were not included in
the record.

Presumptive Release Not The
Equivalent of Parole
In 2004, Mr. Jenkins, who was serving
a sentence of 4½ to 9 years for criminal
sale of a controlled substance, was released

Vol. 18 No. 3 Summer 2008

on presumptive release. More than two years
after his release, Mr. Jenkins was charged with
violating the conditions of release by operating a
motor vehicle without written permission.
Incarcerated on a violation warrant, Mr. Jenkins
filed a petition for a writ of habeas corpus,
alleging that pursuant to Executive Law
259-j(3-a), because he had completed two years
of supervision without a violation, the Division
of Parole was required to discharge him from
supervision.
Section 259-j(3-a) requires
termination of certain sentences after 2 years of
unrevoked parole. The issue before the court
was whether this section of the law applied to
individuals on presumptive release. After
winning release in the supreme court, Wayne
County, in People ex rel. Jenkins v. Piscotti, 860
N.Y.S.2d 358 (4th Dep’t 2008), the Appellate
Division reversed the decision, holding that
Section 259-j(3-a) only applies to people on
parole, and did not apply to people on
presumptive release.
The Fourth Department agreed with the
petitioner that to distinguish between those
individuals released via parole rather than by
presumptive release “is a technical distinction
without a substantive basis.” Nonetheless, the
court held that because Section 259-j(3-a) only
refers to “unrevoked parole” as opposed to
unrevoked parole and presumptive release, the
rules of statutory construction require the court
to construe clear and unambiguous statutes as
enacted and prohibit the court from using
“interpretative contrivances” to broaden the
scope and application of the statutes. Further,
the court noted, Executive Law § 259-j had been
amended several times in the last decade, thus
leading to the conclusion that if the legislature
had wanted to include presumptive releasees in
the coverage of §259-j(a-3), it would have done
so.

Page 15

Applying the same reasoning, the Third
Department in Matter of Sweeney v. Dennison,
858 N.Y.S.2d 845 (3d Dep’t 2008), reached the
same result.
Practice Pointer: In June 2008, the legislature
amended Executive Law 259-j(3-a) to include
in the law’s coverage people on presumptive
release as well as people on parole.

Miscellaneous State Court
Decisions

Challenge to Recommendation
That Petitioner Enter ASAT Fails
Petitioner, who had abstained from drinking
alcohol for over ten years, filed a grievance when
DOCS recommended that he participate in the
ASAT program. His grievance was denied, and
he filed an Article 78 to challenge the decision. In
Matter of Rodriguez v. Goord, 855 N.Y.S.2d 309
(3d Dep’t 2008), the court rejected the
petitioner’s argument, holding that the current
DOCS policy is to recommend ASAT for all
inmates with a history of drug or alcohol abuse,
and the policy is based on evidence that
individuals with such a history can readily relapse
even after many years of abstinence (not
drinking or using drugs). Thus, the court found,
the recommendation was not arbitrary and
capricious (not rational and not based on the
application of standards).

Page 16

Challenge to Security
Classification Fails
In Matter of Mohsin v. Fischer, 858
N.Y.S.2d 452 (3d Dep’t 2008), the petitioner
challenged the decision to classify him as a
security risk for arson. He argued that he had
neither been charged nor convicted of arson, and
that therefore the classification was not
warranted. The petitioner admitted that his
crime involved dousing his girlfriend with
gasoline and setting her on fire, but argued that
the definition of arson does not include burning
a human being. Noting that DOCS has broad
discretion in matters of institutional security, the
court found that there was a rational basis for the
determination that petitioner’s criminal conduct
involved “arson-like” behavior.

Poor Performance in
Sex Offender Program Leads
to Loss of Good Time
In Matter of Given v. Goord, 859 N.Y.S.2d
263 (3d Dep’t 2008), the petitioner alleged that
he had been wrongfully deprived of good time.
The court held that the petitioner’s repeated
failure to participate in and finish a sex offender
program was a rational basis for depriving the
petitioner of good time credits. The court noted
that the decision to take away good time is a
discretionary decision ( a decision that involves
the use of judgment) and is based on a review of
the inmate’s entire institutional record.

Vol. 18 No. 3 Summer 2008

Court Denies Re-sentencing to
Inmate Convicted of A-II Drug
Felony
Defendant Flores was convicted of an A-II
drug felony, and sentenced to a life sentence. He
moved to be re-sentenced pursuant to the Drug
Law Reform Act of 2005. The trial court denied
his motion, and on appeal, the Third Department,
in People v. Flores, 856 N.Y.S.2d 668 (2d Dep’t
2008), affirmed the decision. The Third
Department noted that the defendant is a second
felony offender whose criminal history dates back
to 1994 and included a violent felony conviction.
Further, despite his positive achievements
while in prison, he had what the court
characterized (labeled) as a poor disciplinary
history – a small number of relatively minor rule
violations. The court found that these facts
supported the trial court’s decision to deny the
motion to re-sentence.

Court Orders Production of
Pre-Sentence Report
According to Criminal Procedure Law
§390.50(1), a pre-sentence report is confidential
and is not to be made available to any person “
. . . except where specifically required or
permitted by statute or upon specific
authorization of the court.” Where no statutory
authority is cited, a petitioner may be entitled to
disclosure of the report upon a proper factual
showing for the need thereof. In Matter of Davis
v. People of the State of New York,860 N.Y.S.2d
644 (3d Dep’t 2008), the court held that where
petitioner had notice of an impending hearing
before the Board of Parole, and his pre-sentence
report was one of the factors to be considered
by the Board in determining his application
for release (see Executive Law § 259-i[1][a];
[2][c]), petitioner had made a proper factual
showing entitling him to a copy of the report.

Vol. 18 No. 3 Summer 2008

Inmate Liaison Committee
Lacks Capacity to Sue

Page 17

Co. May 30, 2008), the court, ruling in the
petitioner’s favor, held that DOCS is required to
implement the sentence that is set forth on an
inmate’s sentence and commitment papers.
Nonetheless, the court noted, the sentencing
order only requires that DOCS place the
petitioner in phase 1 of ASAT. DOCS exercises
discretion over which inmates participate in phase
2 and work release. Further, the court ordered,
DOCS must place the petitioner into phase 1 of
ASAT forthwith (without delay).

The Inmate Liaison Committee (ILC) at
Elmira C.F. filed an Article 78 proceeding
challenging DOCS decisions regarding what the
ILC said was inadequate television reception and
the lack of Spanish language programing. In
Matter of The Inmate Liaison Committee of
Elmira C.F. v. Fischer, 2008 W.L. 2497021 (3d
Dep’t June 23, 2008), the court dismissed the
petition after concluding that the ILC did not
have the capacity to sue. The court noted that
Directive 4002 limits the ILC’s authority to
Federal Cases
discussing, and advising prison officials on,
matters concerning the general welfare of the
inmate population. The court was not swayed by
the petitioner’s references to Directive 4556 –
which gives the ILC authority to contract for Hearing Officer’s Civil Service
premium television channels – or to Directive Classification Not Grounds For
2771 – which gives the ILC authority to disburse
Reversal
funds for the payment of premium television
channels – concluding that the organization is an
advisory body from which a capacity to sue
In McEachin v. Goord, 2008 W.L. 1788440
cannot be derived.
(NDNY April 17, 2008), the plaintiff argued that
his due process rights were violated by DOCS’
policy of allowing Superintendents to appoint, as
Court Orders DOCS to Admit hearing officers, staff whose civil service job
descriptions did not include serving as hearing
Inmate to CASAT
officers. The policy is set forth in 7 N.Y.C.R.R.
Petitioner Ferreri went into DOCS custody § 253.1. The plaintiff argued that this policy
in March 2007 for a conviction of Criminal violates the New York State Civil Service Law
Possession of a Forged Instrument in the First and the contract between New York State and the
Degree (CPFI1). Pursuant to Penal Law §60.04, Public Employees Federation (NYS PEF), both of
the court that sentenced him had imposed which prohibit out of t it le wo rk.
The court held that the plaintiff did not have
CASAT as part of his sentence. Because a
defendant convicted of CPFI1 is not eligible for standing to sue for the claimed violation of the
CASAT, DOCS refused to let the petitioner in contract as he was not a party to the contract. In
the program. Petitioner Ferreri then filed an order to have standing, the person who brings the
Article 78 seeking an order requiring that DOCS suit must be the intended beneficiary of the law or
place him in ASAT. In Matter of Ferreri v. contract which is the basis of his or her lawsuit.
Fischer, 2008 W.L. 2401211 (Sup. Ct. Franklin

Page 18

Here, the court ruled, as an inmate, the
petitioner did not have a stake in either the NYS
PEF contract or the Civil Service Law.
The court also ruled that the claimed
violation of the state civil service law could
not be raised in a §1983 action, as it was a
state claim, not a federal claim. Finally, with
respect to the claim that the regulation
violated the plaintiff’s right to due process of
law, the court ruled that a prisoner does not
have federal due process right to a hearing
officer with a specific job title; due process
requires only that the hearing officer be
impartial and not pre-judge the evidence.

Right to Wear Atheist Pendant
In Diaz v. Goord, 2008 W.L. 24049522
(W.D.N.Y. June 11, 2008), the plaintiff
challenged DOCS’ decision not to allow the
plaintiff to wear an atheist pendant that he had
worn for four years at two different prisons.
When the plaintiff arrived at Attica, security staff
told him he could not wear the pendant because
it could be used as a weapon. In his letter brief
opposing the defendants’ motion to dismiss, the
plaintiff argued that the pendant is a core
affirmation and expression of his adherence to
the tenants of science and logic, as well as to the
philosophy of materialism, just as wearing a
cross reminds a Christian of his faith in a divine
creator. He argued that since the pendant had
been approved by security at two other prisons,
Attica’s refusal to let him wear the pendant could
not possibly further a legitimate penological
interest. Construing the argument as raising an
equal protection claim – and asking rhetorically
why a pendant is considered a weapon but a

Vol. 18 No. 3 Summer 2008

cross is considered to be a harmless religious
symbol – the court denied the defendants’ motion
to dismiss.

Court Sanctions Defendants In
1983 Action Filed Pro Se
Inmate Messa filed a 1983 action against the
officers who allegedly assaulted him. He also sued
the superintendent of Upstate C.F., alleging that
the superintendent had supported and condoned
the use of force and supported false statements
made by officers.
Mr. Messa served
interrogatories and a request for production of
documents. When the defendants did not
respond, he filed a motion to compel. In its
decision on the plaintiff’s motion, the court, in
Messa v. Woods, 2008 WL 243701 (N.D.N.Y.
June 12, 2008), made the following observations.
First, actions alleging violations of §1983 require
especially generous discovery. Second, when a
party objects to a discovery demand, it must set
forth the specifics of the objection and explain
how the objection relates to the requested
documents.
The plaintiff requested policies in effect on
the day of the incident for escorting inmates for
urinalysis testing and for uses of force. The
defendants said that they would produce those
policies to which inmates are permitted access,
but did not give a reason for withholding policies
to which inmates do not normally have access,
and did not produce any documents. Noting that
the objection to the production of these records
was insufficiently detailed, the court ordered the
documents produced within 30 days.
In response to the plaintiff’s request for
reports on the use of force involving the
defendants who admitted to using force on the
plaintiff and for grievances pertaining to excessive
use of force by these same defendants, the
court ordered that the reports and grievances

Vol. 18 No. 3 Summer 2008

be produced for two years preceding the date of
the incident. The court issued the same type of
order with respect to grievances filed in the two
years preceding the incident, against two
defendants whom the plaintiff alleged had failed
to provide him with medical care.
Finally, the court noted that several of the
defendants failed to timely respond to the
plaintiff’s interrogatories and that the defendants
had not asked the court for extensions for
responding to the discovery demands.
As a result of the defendants’ delayed and
incomplete responses to the plaintiff’s discovery
demands, the court found that the defendants’
counsel had not complied with his obligation to
seek an extension from the court and offered no
explanation for failing to do so. Further, the
court found, counsel’s actions had frustrated
discovery and caused unnecessary delay and
court intervention. For these reasons, the court
ordered that all of the documents that the court
had ordered the defendants to produce would be
produced without expense to the plaintiff and
within 30 days.

Pro Se Practice

Legal Basics: State Rights
and State Courts
This is an introduction to rights that
prisoners in New York State are accorded
(granted, given) by the constitution, statutes,
regulations of the State of New York. The
article also describes the state courts that hear
claims for violations of the state law and the
remedies that the state courts can give to
prisoners when their state rights are violated. As

Page 19

part of our commitment to teaching prisoners
new to the study of law some of the legal basics,
instructions for reading state court case citations
are provided.

State Sources of Prisoners’ Rights
The New York State Constitution
The New York State constitution confers
(gives) prisoners many of the rights that are also
guaranteed by the federal constitution. The state
constitution is divided into 20 articles. Article 1
is known as the bill of rights, and incorporates
those rights that are most well known, such as the
rights to free exercise of religion and freedom of
speech. Article 1 is broken down into sections;
each section describes a particular right or group
of rights. The state constitution is published in
McKinney’s Laws of New York. In McKinney’s
Laws of New York Annotated, following each
section (the symbol for section is “§” and the
symbol for sections is “§§”) is a set of
annotations (notes). The annotations set forth
summaries of the case decisions interpreting
(discussing and analyzing) the rights set forth in
the section. To find cases interpreting the various
rights, you would ask the prison law library for
a copy of the section dealing with the right that
you are researching, and its annotations. For
instance, if you were interested in cases
discussing the state constitutional right to free
exercise of religion, you would ask the law
library for a copy of Article 1, Section 3 of the
New York State constitution, and the annotations
thereto.
Many of the rights guaranteed by the State
constitution are also guaranteed by the federal
constitution. The following is a list of rights
included in the state bill of rights and their federal
counterparts (the same federal right):

Page 20

The right to freedom of religion – protected
by the 1st Amendment to the U.S. Constitution
– is protected by Article 1, §3 of the N.Y.
Constitution;
The right to be free from cruel and unusual
punishment – protected by the 8th Amendment
to the U.S. Constitution – is protected by
Article 1, § 5 of the N.Y. Constitution;
The right not to be deprived of liberty,
property or life without due process of law –
protected by the 14th Amendment to the U.S.
Constitution – is protected by Article 1, §7 of
the N.Y. Constitution;
The right to freedom of speech – protected
by the 1st Amendment to the U.S. Constitution
– is protected by Article 1, §8 of the N.Y.
Constitution.
The right to petition the government –
protected by the 1st Amendment to the U.S.
Constitution – is protected by Article 1, §9 of
the N.Y. Constitution.

Vol. 18 No. 3 Summer 2008

comparable federal rights. This means, for
example, that an inmate must produce evidence of
deliberate indifference to a serious medical need
whether s/he is trying to establish an 8th
Amendment violation or an Article 1, §5
violation. See Thomas v. State, 814 N.Y.S.2d
564 (Ct. of Claims 2005). See also, Matter of
Bunny v. Coughlin, 593 N.Y.S.2d 354 (3d Dep’t
1993) (holding that state standard for review of
policies that restrict religious rights is the same as
the federal standard); Matter of Lucas v. Scully,
526 N.Y.S.2d 927 (1988) (holding that state
standard for deciding whether a DOCS policy
violates an inmate’s right to freedom of speech
under the state constitution is the same as the
standard used to make the decision under the
federal constitution).

State Laws Conferring and Affecting
Prisoners’ Rights

The primary bodies of law that impact on
prisoners are the Correction Law, the Executive
Law – Article 12-B of the Executive Law sets
forth the provisions pertaining to the Division of
The rights to equal protection, and to be
Parole – the Criminal Procedure Law, the Penal
free from discrimination based on race,
Law, the Civil Practice Law and Rules, 7
religion, or beliefs – protected by the 14th
N.Y.C.R.R. (New York Code Rules and
Amendment to the U.S. Constitution – are
Regulations), Chapters I through XXII (the
protected by Article 1, §11 of the N.Y.
regulations enacted by DOCS), and 9 N.Y.C.R.R.
Constitution.
Subtitle CC (the regulations of the Division of
Parole). Here, in order to discuss the structure of
state law, we focus on the Correction Law and
Ideally, prisoners’ rights advocates would the DOCS regulations.
like the courts to interpret the requirements of
the state constitution in a manner that is more
protective of prisoners’ rights than the federal The Correction Law
courts’ interpretation of the comparable federal
The Correction Law is a compilation
constitutional right. Unfortunately, case law (collection) of laws that control the operation of
interpreting the New York State Bill of Rights – the Department of Correctional Services. The
while sometimes using language that is different Correction Law, also known as Chapter 43 of the
from the language used to interpret the laws of New York, is arranged by subject matter.
comparable federal constitutional rights – has Each subject matter grouping is called an article.
concluded that, in the area of prisoners’ rights, The articles are further divided into sections, and
the state constitutional guarantees have the same
limitations as the courts have given to the

Vol. 18 No. 3 Summer 2008

the sections into subsections. For instance,
Article 26 of the Correction Law is titled
(called) Temporary Release Programs for State
Correctional Facilities. This article consists of 11
sections, numbered from §851 through §861.
Article 26-A is the article in the Correction Law
pertaining to Shock Incarceration. It consists of
three sections, §§865 – 867.
The Correction Law, like all of the laws in
New York State, is published in McKinney’s
Consolidated Laws of New York (McKinney’s).
Following each section of the law in the
annotated (with notes) version of McKinney’s
are short summaries of the case decisions
interpreting the preceding section. Many of the
sections (and sometimes Articles) are also
followed by a “Practice Commentary,” a
summary of the section (or Article), its purposes
and the issues raised by the language of section
or by conflicts with other sections of law. If you
want to see the case law interpreting a particular
section of the Correction Law, or the practice
commentary, you can ask the law library for the
annotations and/or the practice commentary to
the section that is of interest to you.

Page 21

unconstitutional in a lawsuit that is
currently pending before the United
States Supreme Court.
§§100 - 109 Interstate Corrections
Compact: These sections, found in
Article 5-A, permit a state that is a
member of the compact to transfer
inmates to any other state that is a
member of the compact. (New York is
a member of the compact).
§113

Funeral and Deathbed Visits: This
section authorizes DOCS to allow
inmates to attend funerals and make
deathbed visits in New York, at DOCS’
expense, if necessary, where the deceased
or ill individual is an immediate family
member or an inmate’s guardian.

§116

Inmates’ Funds: This section requires
that on a weekly basis, DOCS deposit the
inmate funds received over the preceding
week in a bank, and authorizes DOCS to
use the interest earned on these accounts
“for welfare work among the inmates.”
It also requires the Commissioner to
notify the State Crime Victim’s Board if
any inmate has more than $10,000.00 in
his/her account.

§125

Inmate’s Money, Clothing and Other
Property: This section imposes a duty
on the Commissioner to put any money
that an inmate has with him/her when
s/he comes into custody into an account
and to return the money when s/he leaves
DOCS custody.
The section also
requires that DOCS provide each inmate,
upon discharge from DOCS custody,
with clothing having a value of $40.00 or
less, transportation to the county from
which s/he was committed to DOCS
custody, and at least $40.00 in cash.

Among the provisions of the Correction
Law that might be of interest are:
§ 23

§24

Transfer of Inmates from One
Correctional Facility to Another: This
section gives the Commissioner the
power to confine an inmate in any prison
that the Commissioner deems
appropriate.
Civil Actions Against DOCS
Personnel: This section provides that
DOCS employees cannot be sued for
money damages in the state courts. It is
not a bar to prisoner law suits in the
Court of Claims, where the defendant
is the State of New York,
as
opposed to a particular individual.
The section is being challenged as

Page 22

§136

§137

Vol. 18 No. 3 Summer 2008

Correctional Education: This section
requires that DOCS provide each inmate
with the educational program which
seems most likely to further the inmate’s
p r o cess of socializat io n and
rehabilitation.
Program of Treatment Control and
Discipline: Pursuant to this section,
DOCS is:
1. required to establish program and
classification procedures designed to
assure the assessment of each inmate
2. required to assign each inmate to a
program that is most likely to assist him
to refrain from violating the law in the
future.
3. required to provide each inmate with
a sufficient quantity of wholesome and
nutritious food and clothing suited to the
season and weather.
4. required, whenever possible, to house
each inmate in a single cell or in a
dormitory.
5. required to refrain from subjecting
inmates to degrading treatment, and not
to allow any officer to strike an inmate
except in self defense or to suppress a
revolt.
6. allowed to use all suitable means to
defend its employees, to maintain order,
to enforce discipline and to prevent
escape when inmates act violently
toward other people, injure or attempt
to injure property, attempt to escape or
fail to obey a direct order.
7. allowed to house an inmate separate
from other inmates who are participating
in programs, for such period as may be
necessary to maintain order and
discipline.
Inmates in segregated
housing
must be provided with
adequate nutritious food, sanitary living

conditions to the extent required to
preserve healt h, and daily medical
monitoring.
§138

Institutional Rules and Regulations:
This section requires the Commissioner
to publish and post in every prison, in
English and Spanish, all rules and
regulations that define and prohibit
conduct by inmates. It also requires that
the Commissioner give each inmate a
copy of the rules and regulations. The
rules must be specific and give inmates
actual notice of the conduct that is
prohibited and the range of disciplinary
sanctions that can be imposed for
violation of each rule. The law permits
inmates to be punished only for violations
of published and posted rules. The law
does not permit DOCS to punish inmates
for advocating for changes in DOCS’s
policies, conditions, rules, or regulations
of laws affecting prison conditions.

§139

Grievance Procedures: This section of
the law requires that the Commissioner
establish grievance resolution committees
at each prison and that he establish a
grievance procedure.

§146

Persons Allowed to Visit Correctional
Facilities: Other than a number of
people, who by virtue of their
professional status are permitted to visit
prisons, only those persons who the
Commissioner authorizes to visit, by
means of regulations, will be allowed to
enter correctional facilities.

Vol. 18 No. 3 Summer 2008

§147

§170

Alien Inmates: Within 3 months of
receiving custody of an inmate who is
not authorized to be in the United
States, the Commissioner is required to
notify U.S. Immigration and make a
recommendation as to whether the
inmate should be deported.
[Inmate Labor] Contract Prohibited:
This section prohibits the state from
entering into contracts which would use
inmates as workers, except to produce
goods for and provide services to, the
State of New York.

§171

Inmate Employment: This section
allows the Commissioner to require
inmates to work up to 8 hours a day, six
days a week, except that no inmate may
be required to work on Sundays or
public holidays.

§187

Inmate Earnings: This section requires
the Commissioner to set up a system of
pay grades, based on the value of the
work, according to which inmates will
be paid.
It also requires
the
Commissioner to set up an inmate
account system.

§401

§402

Establishment of Programs for
Mentally Ill Inmates: This section
authorizes the Commissioner of DOCS
and the Commissioner of Mental Health,
to establish programs in correctional
facilities for the treatment of mentally ill
inmates who do not need to be
hospitalized.
Commitment of Mentally Ill Inmates:
This section outlines the procedures for
emergency and no n-emergency
hospitalization of mentally ill inmates.

Page 23

§610

Freedom of Worship: This section
guarantees inmates the right of free
exercise of religion.

§611

Birth and Care of Infants: This section
states that when a woman is about to
give birth, she must be taken out of the
prison for medical care. It also provides
that after giving birth, a mother may keep
her child with her in prison for up to a
year, unless the woman is physically
unable to care for the baby.

§803

Good Behavior Allowances (Good
Time): This section permits prisoners
serving indeterminate sentences to earn
up to 1/3 of their maximum term of
imprisonment as good time, and those
serving determinate sentences to earn up
to 1/7 of the determinate sentence as
good time, and thereby reduce the
maximum (or determinate) term by 1/3
(or 1/7). The section also establishes a
merit time sentence reduction.

§ 805 Earned Eligibility Program: This
section sets forth the Commissioner’s
duty to review the prison records of
eligible inmates to determine whether
they should be issued certificates of
earned eligibility.
§§851 - 861 Temporary Release Programs:
The sections in this article define who is
eligible to participate in temporary
release programs, the various
temporary release programs – ranging
from funeral visits to work release
programs – procedures for applying for
temporary release programs, and
consequences (results) of violating the
conditions of temporary release.

Page 24

DOCS Regulations
Based on the responsibilities imposed by the
Correction Law, the DOCS Commissioner has
adopted regulations.
The regulations are
published in Title 7 of the Codes, Rules
and Regulations of the State of New York.
The regulations are divided into chapters by
subject matter. Chapter V, Procedures for
Implementing Standards of Inmate Behavior
and for Granting Good Behavior Time
Allowances, is divided into four subchapters:
A) Procedures for Implementing Standards for
Inmate Behavior, B) Procedures for Granting
Good Behavior Allowances, C) Standards for
Inmate Behavior and D) Merit Time. The
chapters and subchapters are further divided into
parts. At the end of Title 7 is a section called
Annotations: Case Notes and Administrative
Notes. The Annotations Section is arranged
numerically by Part Number. Under each Part
number, is a summary of the case decisions
interpreting the regulation. For example, Part
305.3 is entitled “Use of restraints, generally.”
In the annotations section of Title 7, under the
heading Part 305.3, is a summary of the court’s
holding in Malik v. Wilhem, 552 N.Y.S.2d 59
(3d Dep’t 1990). The summary states that in
Malik v. Wilhelm, the court held that the
restraint order imposed pursuant to 7
N.Y.C.R.R. §305.3(a) was appropriate and
constitutional as it was rationally related to
legitimate penalogical interests, where the
petitioner became belligerent in the special
housing unit and threatened to assault a guard,
and where the petitioner had a long history of
threats and assaultive behavior toward staff.
If you think that your rights under the
regulations may have been violated, you can
research this issue by giving the law library the
part or chapter number of the regulation at issue,
and asking for a copy of the regulation and its
annotations.
Regulations that are of particular interest to
prisoners include:

Vol. 18 No. 3 Summer 2008

Part 130 Transfer of Foreign Nationals:
This regulation establishes the procedures for
determining whether inmates who are foreign
nationals can be voluntarily transferred to their
home countries.
Chap. IV Visitation:
These regulations establish who can visit an
inmate and the procedures for arranging and
conducting visits, entering the prison, and for
terminating, suspending and revoking visits.
Chap. V Standards of Inmate Behavior and
Good Behavior Allowances:
This Chapter sets forth the inmate rules,
procedures for conducting disciplinary and
superintendent’s hearings, procedures for making
good time allowances, and procedures for making
merit time decisions.
Chap. VI Special Housing Units:
This chapter discusses admission to various
special housing units – including disciplinary,
detention, protective custody and administrative
segregation – and the permissible conditions of
confinement in those units.
Chap. VIII Institutional Programs:
This chapter sets forth the rules governing the
following programs: inmate grievances, marriages
during incarceration, media review, education,
inmate correspondence, inmate telephone calls,
and packages.
Chap. IX Institutional Security:
This chapter sets forth the rules governing the
“Central Monitoring Case [CMC] designation
process,” the procedures to be used when
contraband drugs are found, and the urinalysis
testing program.
Chap. X Facility Administration:
This chapter sets forth the rules governing
personal property claims, double-celling and the
minimum provisions for health and morale.

Vol. 18 No. 3 Summer 2008

Page 25

The Structure of the State Courts
Chap XI Shock Incarceration:
Responsible for Deciding Lawsuits
This chapter sets forth the regulations that Filed by Prisoners
control participation in and removal from the
There are three levels of state courts: the trial
Shock Incarceration Program.
courts, the appellate divisions, and the Court of
Appeals. Cases begin in the trial courts with the
Chap. XII Temporary Release:
filing of a complaint, a claim, or a petition. After
This chapter describes the various short and the trial court issues its final decision, most cases
long term temporary release programs, eligibility can be appealed as of right (the losing party does
requirements and procedures for removal from not have to get permission to appeal) to the
the programs.
appellate division that covers the county in which
the case began. There are four appellate
Chap. XXI Earned Eligibility:
divisions, each covering the trial level courts in a
This chapter describes the Earned Eligibility specific geographic area. There is a right of
Program and its procedures.
appeal from an appellate division decision in four
situations. The two most often used are either
where two or more justices dissent from the
Chap. XXII Presumptive Release:
This chapter describes the Presumptive majority opinion or where the validity of a statute
Release Program and the procedures governing is challenged under the state or federal
constitution. Otherwise, if the losing party wants
the program.
to appeal, he or she must ask permission to do so.
Permission may be requested of either the
Use of the State Constitution, Statutes
appellate division or the Court of Appeals. If a
and Regulations
federal constitutional issue is decided by the
To get relief from the state courts, when you Court of Appeals, the losing party may petition
sue, you must identify the right that has been (ask) the United States Supreme Court to
violated and the individual whose conduct led to consider the constitutional issue. PLS publishes
the violation. The rights that you have through an address packet that gives the address of each
state law are derived (come from) the state of the appellate divisions and the Court of
constitution, statutes, and regulations. For Appeals and describes the geographic area from
example, if you are not allowed to practice which each appellate division accepts, cases.
certain aspects of your religion – such as wearing
an atheist pendant – and you want a court to
order DOCS to allow you to wear it, you could The Process of Litigating a Case in the
bring a case in state supreme court alleging that State Courts
Generally speaking, prisoners bring legal
DOCS’ policy of not allowing you to wear that
pendant violates your rights under the state actions in one of two state courts. The two
constitution, Article 1, §3, and § 601 of the courts that hear most prisoner cases are the state
Correction Law. To research this issue, you supreme courts, which are located in every
could request the annotations to these statutes. county, and the Court of Claims, which is located
in Albany, but has judges in a number of locations
throughout the state. These judges are assigned
cases based on the county in which the claim
arose.

Page 26

Court of Claims
The Court of Claims has jurisdiction
(authority) to hear cases for damages resulting
from the conduct of state employees who were
acting within the scope of their employment at
the time that the claim arose. The state
employee must owe a duty of care to you that he
or she violated either accidentally (negligently) or
intentionally. The failure to live up to a duty of
care is called a tort. Torts that commonly serve
as the basis for prisoner claims are workplace
accidents, slip and fall, the destruction or loss of
property, failure to protect an inmate from
another inmate, negligent medical treatment and
assaults by staff. Filing a claim in the Court of
Claims commences a plenary proceeding. This
means that there will be pre-trial discovery and a
trial. The Court of Claims has its owns rules and
procedures that you can obtain from the court.
Matters not expressly covered by the Court of
Claims rules are governed by the Civil
Practice Law and Rules (CPLR). If you are
interested in learning more about the kinds of
claims that you can bring in the Court of Claims
and the procedures for doing so, you can write
PLS and request our form materials on the Court
of Claims. The PLS address package has the
address of the Court of Claims in Albany.
State Supreme Court
The state supreme courts have jurisdiction
(authority) over actions brought by prisoners for
declaratory and injunctive relief. At present,
Section 24 of the Correction Law prohibits suits
for money damages against DOCS employees.
(As noted above, there is a case that is now
pending before the United States Supreme Court
seeking to have Section 24 declared
unconstitutional). This means that you can only
sue a DOCS employee, such as a correction
officer or a doctor employed by DOCS, for a
decision declaring that a DOCS employee’s
conduct violated your rights (known as
declaratory relief), and ordering the defendant to

Vol. 18 No. 3 Summer 2008

take an action that the court decides is the
appropriate action to remedy the violation of your
rights (known as injunctive relief). Presently, the
state supreme court cannot, however, award you
money to compensate you for the harm caused by
the wrongful conduct.
The two types of legal actions that prisoners
typically pursue in the state supreme courts are
the Article 78 Petition and the Article 70 Petition
(for habeas corpus relief). Article 70 and 78
actions are known as summary actions; typically
the court grants or denies such petitions based on
the papers, accompanying documents and
records, and the memoranda of law (briefs)
submitted by the parties (the petitioner and the
respondent). The rules of procedure that apply to
actions in the supreme court are set forth in the
Civil Practice Law and Rules (CPLR). If you are
interested in learning more about Article 70 and
78 actions, you can write PLS and request our
form materials on these two procedures.

Reading State Case Citations
Court decisions are published in bound
volumes called reporters. In New York there are
official reporters and unofficial reporters. Each
official reporter publishes the decisions of a
specific level of court. For example, the official
reporter for decisions issued by the New York
Court of Appeals is called the New York Reports
(abbreviated as N.Y.), the official reporter for trial
court decisions is known as the Miscellaneous
Reports (abbreviated Misc.), and the official
reporter for Appellate Division decisions is called
the Appellate Division Reports (abbreviated as
A.D.). The unofficial reporter is call the New
York Supplement (abbreviated as N.Y.S.).
There are 999 volumes in each series of
reporters. Decisions are published in the order
that they are issued. Thus, a decision published in
volume 1 of a reporter was issued earlier than a
decision published in volume 50. The volume
number is the first number in a case cite.
Following the volume number is the abbreviation
of the Reporter, which is followed by the page
number of the volume.

Vol. 18 No. 3 Summer 2008

Here is a break down of one of the most
commonly used state citation formats: Matter of
Fitzpatrick v. Goord, 269 A.D.2d 642, 704
N.Y.S.2d 173 (3d Dep’t 2000). The first two
words of the underlined portion of the citation –
Matter of -- tells you that the this is a decision in
an Article 78 proceeding. (If it was a decision in
a habeas corpus action, the citation would be:
People ex rel. Fitzpatrick v. Goord). The first
name in the citation is the petitioner (in a habeas
action the first person listed is called the relator);
the second is the respondent. The decision was
issued by the Third Department in 2000. The
decision was published in volume 269 of the
second series of the Appellate Division Reports
and begins on page 642. That is the cite to the
official reporter.
The decision was also
published in the unofficial reports on page 173 of
volume 704 of the second series of the New
York Supplement.
Until you know whether the law library to
which you are sending your request for a copy of
a case decision has the official or the unofficial

Page 27

reporters, if you know both citations, you should
send both. If you only know one, send the one
you have. Law librarians know how to convert
the official citation into the unofficial citation, and
vice versa.
A case citation gives you valuable
information about the decision to which it refers.
You can determine the court that issued the
decision, when the decision was issued, the names
of the parties, and whether the decision is from a
trial court or an appellate court. In addition,
using the case citation, you can find out whether
other decisions, issued in the years since the case
was issued, have cited to the decision. When you
write briefs and memoranda of law, you use case
citations to direct the court to decisions that you
think would be helpful to the court in deciding
your case.
We hope that this introduction to your rights
under the laws of New York State, the state
courts and state case citations will be helpful to
you in researching the law, reading cases, reading
Pro Se, and, should you ever need to do so,
representing yourself in court.

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

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