Vol. 18, No. 4; Fall 2008 Published by Prisoners’ Legal Services of New York

PRS Re-Sentencing Cases Advance, Raise Questions
DOCS and the Division of Parole have begun
the process of returning thousands of prisoners and
parolees to their sentencing courts for re-sentencing,
pursuant to the new law providing for the resentencing of inmates serving determinate terms
who were not also sentenced to a period of postrelease supervision (PRS).
The new law requires DOCS and Parole to
notify the sentencing court whenever they become
aware that the commitment order of a prisoner or
parolee serving a determinate sentence imposed
after September 1, 1998 did not include PRS. The
law requires that the sentencing court then review
its records. If PRS was pronounced at sentencing,
but simply omitted from the commitment papers, it
may issue a new commitment order, with PRS.
If PRS was not pronounced at sentencing, the
court must appoint counsel for the prisoner or
parolee and commence the re-sentencing
proceeding.
Because of the large numbers of persons subject
to re-sentencing, DOCS, Parole, and the Office of
Court Administration (OCA) entered into an
agreement to prioritize the cases.
Under the agreement, inmates being held in
DOCS’ custody or in a local jail based solely on a
technical violation of PRS, whose commitment
papers did not show that they were sentenced to
PRS, were to be referred to their sentencing courts

for re-sentencing not later than July 31, 2008.
Inmates scheduled to be released by DOCS to PRS
prior to October 1, 2008 were to be referred to their
sentencing courts at least 45 days prior to their
release date. Inmates who are scheduled to be
released to PRS after October 1, 2008, are to be
referred to their sentencing courts at least 60 days
prior to their release date.
…article continued on Page 3

Also Inside…
“Gill” Case Goes to
Court of Appeals . . . . . . . . . page 4
DOCS Settles Sex Offender
Class Action . . . . . . . . . . . . . page 7
The Law of “Jail Time” . . . page 24
Subscribe to Pro Se! See page 27 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. 4; Fall 2008

A Message From Karen Murtagh-Monks, Executive Director
On July 21, 2008, with very little fanfare
and no press coverage to speak of, Governor
Paterson signed a bill amending the Executive
Law and, in turn, dramatically affecting the
lives of hundreds of New York State citizens.
The bill [Senate bill - S6731 and Assembly
bill - A9727] was sponsored by Senators Dale
Volker, Serphin Maltese, and Velmanette
Montgomery, and Assemblymen Jeffrion
Aubry and Joseph Lentol. The bill amends
Executive Law 259-j by restoring to the
Board of Parole the discretion it had, from
1930 to 1998, to grant a discharge from
parole supervision to any person who has
served three consecutive years of unrevoked
parole in cases where the Board is satisfied
that such a discharge will be in the best
interests of society. Even though there was no
evidence of any problems resulting from the
exercise of this discretion, in 1998 under the
umbrella of “Jenna’s Law,” the Board of
Parole’s discretion “to grant a discharge from
parole for one class of persons--those who
had been sentenced to an indeterminate
sentence with a maximum sentence of life”
was removed. Thus, since 1998, such
individuals have been subjected to mandatory
lifetime parole supervision.
In justification for the bill, the sponsors
noted that there is “no indication that such
mandatory lifetime supervision is necessary
to promote public safety. Recidivism studies
indicate that persons who have served long
terms in prison are among the least likely to
re-offend.” The sponsors also pointed out
that, for almost 70 years, the Parole Board
demonstrated sound judgment on this issue
and successfully exercised its discretion in
determining when to discharge a person from
parole.

The sponsors also noted that the 1998
change in the law unnecessarily burdened
parole officers by forcing them to supervise
individuals who did not require supervision
and resulted in an annual cost of
approximately $4,000.00 per person.
Restoring discretion to the Board of Parole in
this area will allow Parole to focus its time
and energy on those individuals who do raise
concerns of public safety and will result in a
significant cost savings to the State.
For hundreds of individuals who have
served their time in prison and who have
successfully completed a minimum of three
consecutive years on parole, this means that
the Board of Parole can now consider
whether to discharge them from parole.
Whether such a discharge will occur will
depend on the independent factors associated
with each individual. There is no guarantee
that any one person will be discharged from
parole, but at least there is a chance.
Lawyer, lobbyist, and supporter of the
bill, Ed Wassermann, stated: “The sponsors
of this bill and Governor Paterson should be
commended for enacting this change in the
law, not because it was necessarily the
popular thing to do, but because it was
rational, just and fair.” It simply makes sense
to restore discretion to the Parole Board to do
a job that it did extremely well for almost 70
years. But, this bill restores something more
than discretion to the Parole Board. For those
individuals who have served their debt to
society and have demonstrated that they are
not a public safety risk, this bill restores the
hope that there may come a day when they
really will be free.

Vol. 18, No. 4; Fall 2008

…article continued from Page 1

The agreement contains additional provisions
for persons who have been previously released to
PRS and who may be serving new sentences (they
should be referred for re-sentencing not later than
December 1, 2008) and persons presently serving
a period of PRS in the community (who were to
be referred to their sentencing courts not later that
November 1, 2008).
As of this writing, thousands of inmate and
parolees have been referred for re-sentencing,
with thousands more to follow.
What happens at the re-sentencing hearings?
Much depends on the facts of the individual case.
In some cases, courts are imposing a new
sentence, with PRS. The new law, however,
authorizes the sentencing court to decide not to
impose a new sentence and allow the original
sentence--without PRS--to stand.
In some cases, inmates and parolees have
argued that the court lacks authority to impose a
new sentence with PRS on the grounds that such
a re-sentencing violates the double jeopardy
clause. Such claims are more likely to succeed
where the inmate or parolee was not advised of
the PRS requirement at the time of sentencing
and/or where he or she has served all or most of
the underlying term of incarceration. For instance,
in at least one reported case, a judge agreed with
that argument, holding that re-sentencing a
parolee to a term that included PRS, after she had
served the entirety of the underlying term of
incarceration, would violate double jeopardy. The
case is People v. Washington, 21 Misc. 3d
N.Y.S.2d.349 (Sup. Ct., NY County, July 24,
2008).
The re-sentencing process has also raised
questions about the effects of a re-sentence.
Among them are:

¾ What happens if the sentencing court decides
not to impose PRS, but the inmate or parolee
has already served time on PRS? Can the time

Page 3

served on PRS be credited to any time
owed to the term of incarceration?

¾ What happens if the court decides not to
impose PRS, but the inmate or parolee
was previously held on a PRS violation?
Can time served on the PRS violation be
credited to another, pending charge?

¾ What happens if the court does impose
PRS at re-sentencing? Does the
imposition of PRS retroactively validate a
prior PRS violation and any recomputation of the sentence based
thereon? Or is the PRS, and any violation
thereof, considered a nullity for the period
it was illegally imposed?

¾ Does the answer to the above question
differ if the court imposed the sentence
“nunc pro tunc” (i.e., to commence on the
same date as the original sentence
commenced)? or if the court orders--as
many have--“no PRS violation”?

¾ When an earlier sentence would have
expired but for the existence of illegally
imposed PRS and the inmate is serving a
new sentence consecutive to the time
owed on the earlier sentence, must the
new sentence be recalculated if the
sentencing court removes PRS from the
prior sentence?
All of these questions--and there will
certainly be more--will have to be addressed
by the courts in due course.
In one notable development in the PRS
story, the Supreme Court, Albany County,
recently dismissed a proposed class action
brought by DOCS and the Division of Parole
called State of New York v. Myers. In the
Myers case, the State sought to establish the
right to maintain custody and supervision over

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Vol. 18, No. 4; Fall 2008

inmates improperly subjected to PRS until they
could be subjected to the re-sentencing process.
The court dismissed the case on the grounds that
it lacked any definite legal basis. “We do not, in
this country,” wrote the court, “adjudicate the
rights of criminal defendants en masse for the
simple reason that it is unfair and a denial of due
process…. The plaintiff’s broad request for relief
would keep individuals, even those known to be
not subject to post release supervision…under
custody.” The court noted that the new law
specifically grants inmates and parolees subject to
an administratively imposed period of PRS the
right to contest the period in an Article 78
proceeding or habeas corpus proceeding.
The defendants in the Myers case (i.e., the
inmates and parolees) were represented by the
Legal Aid Society of New York, Prisoners’ Legal
Services of New York, and the Albany County
Public Defenders’ Office.

News and Briefs

Gill Case Goes to Court of Appeals
The case of People ex rel Gill v. Greene, 852
N.Y.S.2d 457 (3d Dep’t 2008), in which the
Appellate Division, Third Department held that
DOCS has no authority to run the sentences of
predicate offenders consecutively to time owed to
a prior sentence absent an explicit order from.the
sentencing court, has been accepted for appeal by
the Court of Appeals, New York’s highest court.
The case is scheduled to be argued on January 6,
2009. The petitioner, Mr. Gill, is being
represented by the Legal Aid Society of New
York. A decision can be expected in March or
April 2009. If affirmed, the case could have a
broad impact, requiring either the re-sentencing or
the re-calculation of the sentences of thousands of
prisoners serving predicate felony sentences.
The Third Department, meanwhile, has

removed any doubt that it meant what it said
in Gill. In Ettari v. Fischer, 862 N.Y.S.2d 413
(3d Dep’t 2008), the court, addressing a claim
similar to that in Gill, held, “Our recent
decision in People ex rel. Gill v. Greene, is
dispositive of the case at hand,” and “DOCS
had no authority to calculate [a prisoner’s]
sentences as running consecutively to
previously imposed sentences when the
sentencing court was silent on this issue.”
Lower level courts within the Third
Department have just begun to grapple with
the implications of Gill. In Matter of Lopez v.
New York State DOCS and Parole, et. al., the
Supreme Court, Albany County, granted an
Article 78 proceeding predicated on Gill, and
prohibited DOCS from calculating the
petitioner’s sentences consecutively. The
court noted that courts had previously held
that because the sentencing court lacks
discretion to impose a concurrent sentence on
a predicate offender, there was no need to
state whether a new sentence was to run
consecutively or concurrently with a prior
undischarged sentence. However, it
continued, “the Third Department had now
reversed its long standing position [on the
issue].”
In People ex rel Moeller v. Rivera,
however, the Supreme Court, Ulster County,
denied a habeas corpus petition on raising the
same claim. Although the court acknowledged
the authority of Gill, it declined to order
DOCS to recalculate the sentence on the
grounds that a concurrent sentence would
violate Penal Law 70.25(2-a). It found that resentencing, rather than re-calculation, was the
appropriate remedy. It therefore dismissed the
petitioner’s habeas claim while stating that he
was “free...to pursue Article 78 relief in a
separate proceeding.” (In our view, this
decision is erroneous. If the petitioner is
entitled to have DOCS recalculate his
sentences--and, under Gill, he is--then there is

Vol. 18, No. 4; Fall 2008

no substantive difference between a habeas corpus
proceeding and an Article 78 proceeding; both
seek an order that DOCS recalculate the sentence.
If re-sentencing is the appropriate remedy, a CPL
440 motion directed to the sentencing court, rather
than an Article 78 proceeding, would be the
appropriate procedural mechanism. However, we
do not know why an inmate whose sentence and
commitment papers do not now reflect the
imposition of consecutive sentences, but do
indicate that the inmate is a predicate felony
offender, would want to move for re-sentencing,
as that would presumably risk having the
consecutive sentences imposed.)
The Second Department, meanwhile, recently
avoided a ruling on the Gill issue. In People ex rel
Harris v. Fischer, 860 N.Y.S. 2d 752 (2d Dep’t
2008), the court rejected the petitioner’s habeas
corpus proceeding on the ground that, “[e]ven if
the petitioner were to prevail on his argument that
DOCS improperly deemed his 2005 sentence to
run consecutively to his 1991 sentence, the
petitioner would not be entitled to immediate
release from prison and, thus, habeas corpus relief
is unavailable.” Courts generally have the
discretion to convert an improperly filed habeas
corpus proceeding to an Article 78 proceeding in
order to reach the merits and avoid the need for
future litigation over the same issue. The Second
Department, however, apparently had no interest
in doing so in this case.
Finally, at least one Federal District Court has
also considered--and rejected--a “Gill” claim. In
El-Aziz v. LeClair, (S.D.N.Y. September 29,
2008) (Sheindlin, J.) the court distinguished the
“Gill”
situation (in which DOCS runs a sentence
consecutively to parole time owed without
explicit court authorization) from the situation at
issue in Earley v. Murray, 451 F.3d 71, (2d Cir.
2006) (in which DOCS added post-release
supervision to a sentence without explicit court
authorization). In the “Earley” situation, the court
found, “administrative personnel effectively

Page 5

increased the sentences imposed upon the
defendants by the court.” In the “Gill”
situation, however,
DOCS did not alter the length of [the
defendant’s] sentence or impose
additional terms upon its own
initiative. Instead, DOCS merely
calculated the sentence in accord with
a statutory directive by which judges
themselves were bound. Penal Law
§ 70.25(2-a) mandates that because
[the defendant] was sentenced as a
second violent felony offender and a
second felony offender for his 1985
convictions, those sentences must run
consecutively to his undischarged
1968 sentence, even without explicit
instruction from the court.
The court’s decision, distinguishing Gill from
Earley, is ironic, since the State court, in Gill,
had specifically relied on Earley in holding
that DOCS could not run the sentences
consecutively.
Practice pointer: Few articles have
prompted as much mail to Prisoners’ Legal
Services as that in our Spring 2008 issue
concerning Gill. Most of our correspondents
sought representation for a lawsuit
demanding that DOCS recalculate their
sentences to run concurrently with their
parole time.
We continue to advise, however, that only
a minority of prisoners should consider such
a lawsuit now. This is largely because, first,
Gill itself will be decided by the Court of
Appeals shortly. That Court’s decision will
apply statewide. Any lawsuit filed now will
likely be controlled by it. Second, only
prisoners who can bring a habeas corpus
proceeding stand to benefit from Gill.
Although prisoners may bring an Article 78
proceeding to challenge their sentence

Page 6

Vol. 18, No. 4; Fall 2008

computations, such proceedings are subject to
being stayed pending appeal, and by the time the
appeal is completed, the Court of Appeals will
have decided Gill. Third, habeas corpus
proceedings can only be brought by prisoners
who can show that, if they win, they would be
entitled to immediate release. Finally, habeas
corpus proceedings must be filed in the county in
which the prisoner resides. Thus, the only
category of prisoners who should, in our view,
consider bringing a Gill claim are those who are
presently in a Third Department county and who
would be entitled to be immediately released if
their sentences were calculated as running
concurrently, rather than consecutively, to their
parole time. As the Moeller case above suggests,
however, even those prisoners do not necessarily
have a straightforward path to victory.

The breakdown of the award by each of
the Correctional Officers involved was:
$200,000 against Scott Thompson, $150,000
against Larry Sisco, $100,000 against Michael
Duvall, and $50,000 against Roland
LaBrague; plus punitive damages of $500,000
against Thompson, $200,000 against Duvall,
$150,000 against Sisco, and $50,000 against
LaBrague. There were also $1 damages
awarded against Thompson, Duvall, and
LaBrague for nominal damages, as well as $1
each against Thompson, Sisco, and Scott
Meyers for malicious prosecution.
Claims against four other officers and one
administrator were dismissed.

Former Inmate Awarded $1.4 Million in
Damages For Injuries From Guards

A New York State Parole Board
Commissioner was arrested in October and
charged with trying to set up a sexual liaison
with two underaged girls. The commissioner,
Chris Ortloff, 61, was arrested in an
Albany-area hotel by federal officials.
According to the officials, Ortloff thought he
was going to be meeting a 12-year-old girl
and her 11-year-old sister who were to be
dropped off by a parent. Ortloff was charged
federally with using the Internet to solicit sex
from underaged girls. If convicted, he faces
10 years to life and a $250,000 fine.
Ortloff is a former State assembly member
representing the Plattsburgh area. Ortloff rose
to the ranks of Assistant Minority Leader and
was considered a tough-on-crime legislator,
and often called for stronger criminal justice
laws, particularly for crimes against children.
In 2006, then-Governor George Pataki
appointed him to the Parole Board, where he
was part of panels who interviewed inmates
before voting whether to authorize their
release. He now faces up to life in federal
prison.

A former inmate in Oneida Correctional
Facility in Rome has been awarded $1.4 million in
damages for injuries from correctional officers.
Angel L. Martinez, 45, of the Bronx was awarded
the judgment by a jury in U.S. District Court for
the Northern District of New York, according to
an article in The Daily News. The decision was
made on September 12, 2008.
According to The Daily News, Martinez had
been serving a sentence for attempted robbery.
In his federal complaint, he alleged that he
was beaten repeatedly, denied medical care, and
falsely charged with assault and placed in SHU in
the spring of 2003 because he annoyed an officer
by ringing a buzzer multiple times. He claimed
that the beatings caused broken ribs, herniated
discs, and dozens of cuts, bruises, and welts.
Correctional Officers’ claims that Martinez
had assaulted them were rejected by a jury, which
instead ordered the officers to pay Martinez
damages for his injuries.

Parole Commissioner Charged With Sex
Offense

Vol. 18, No. 4; Fall 2008

Practice pointer: An obvious question for any
prisoner denied parole by a panel which included
Commissioner Ortloff is whether this new
development provides grounds for challenging the
parole denial in court. Unfortunately, we are
skeptical. The courts’ standard of review of
Parole Board decisions is extremely deferential.
In general, so long as the Board has considered
the statutory factors set forth in Executive Law §
259-i (2)(c), a court will not disturb the decision
absent a showing of “irrationality bordering on
impropriety.” Thus, if the underlying record
supports the Parole Board’s decision, the court
will likely uphold it, regardless of one
commissioner’s subsequent malfeasance.
In 2000, former Parole Commissioner Sean
McSherry was convicted in a federal court of
having lied to a grand jury about his role in
securing the release of an inmate whose family
was a financial supporter of former Governor
George Pataki. Nevertheless, claims by other
inmates that their parole denials were tainted by
McSherry’s participation were rejected. For
example, in Hernandez v. McSherry, 706 N.Y.S.2d
647 (3d Dep’t 2000), the court held: [P]etitioner's
allegations of bias on the part of the Board
Commissioner are not supported by the record
and, further…petitioner has failed to offer proof
that the outcome of this case flowed from the
alleged bias.” This requirement, i.e., that an
inmate show that the outcome of the case “flowed
from the alleged bias,” is essentially equivalent to
a requirement that the inmate show that but for
the bias, he would have been released, a very
difficult burden to meet.
DOCS Settles Class Action Over Sex Offender
Program: Grants “Use Immunity” to
Participating Inmates
DOCS’ Sex Offender Counseling Program
(SOCP) has long required inmates to accept
responsibility for their sexually offending
behavior and to divulge any history of sexually
offending behavior, including acts or conduct for

Page 7

which the participant was not or has not been
criminally charged. According to SOCP
policy, if an inmate elected to participate and
disclosed offending behavior for which he had
not been charged, program counselors were
“required to report evidence of child physical
and/or sexual abuse that has occurred or is
planned and any specific details of previous
crimes for which the offender has not been
charged.” SOCP policy manuals further stated
that “an inmate who discloses the details of
any prior crime(s), must be reported to the
appropriate authorities so that society will be
protected.”
In 2000, inmate David Donhauser was
told by his counselor that he should take the
SOCP. Donhauser refused, citing the SOCP
policy requiring him to discuss uncharged
offenses. He was thereafter told by various
officials in DOCS that his failure to take the
SOCP would almost certainly result in his loss
of good time.
In 2002, he filed suit in the federal district
court for the Northern District of New York,
claiming that the program, by requiring him to
divulge a history of sexual conduct, including
illegal acts for which no criminal charges had
been brought or else face a loss of good time
credits, violated his Fifth Amendment
privilege against self-incrimination.
In 2004, he court agreed, and issued a
system-wide preliminary injunction enjoining
DOCS from denying a prisoner good time
credits based on a refusal to provide his
sexual history so as to be eligible for SOCP.
See, Donhauser v. Goord, 314 F. Supp.2d
119. The case was then converted into a class
action, with Donhauser representing all
“current or former New York State prisoners
who have lost or been denied good time
credits or have been threatened with the loss
or denial of good time credits because of a
refusal to admit guilt to criminal conduct as
part of the SOCP.”

Page 8

DOCS, meanwhile, appealed the preliminary
injunction. The Second Circuit Court of Appeals
stayed the injunction and, in 2006, remanded the
case to the district court for “further development
of the factual record in light of various changes
that have occurred since the District Court issued
the preliminary injunction.” The court further
stated that, on remand, DOCS should “consider
whether granting use immunity to prisoners for
any information disclosed in the course of the
prisoners’ participation in SOCP would [resolve]
the issues in dispute.”
Two years of negotiations followed. Finally,
in Ocotber of 2008, DOCS and the plaintiff class
entered into an agreement to settle the case. Under
the agreement, inmates will no longer be required
to disclose details of past offenses in order to
participate in the SOCP or admit the commission
of a particular crime. Instead, inmates will be
required to discuss their behavior “in general
terms” without providing victims’ names, or the
dates, times, or places of any offending behavior,
although they are still required to “openly and
honestly discuss the behavior that resulted
in...incarceration and referral to the program,
demonstrate acceptance of responsibility of their
conduct...and demonstrate an understanding of
[the] sexually offending behavior....” In turn,
DOCS has agreed that “no written or oral
statement made...in conjunction with…the Sex
Offender Counseling and Treatment Program”
may be used against an inmate in a subsequent
criminal proceeding.
Practice pointer: The Donhauser settlement
grants “use immunity” for any statement made
about a past offenses in the SOCP (now the
“SOCTP”). That means that the State cannot use
the statements made in connection with SOCTP,
or information derived from the statements, in a
future prosecution. But that is not the same as full
(sometimes called “transactional”) immunity,
which would preclude the State from later
prosecuting an inmate for the offense entirely. The

Vol. 18, No. 4; Fall 2008

Donhauser settlement would not prohibit the
State, for instance, from conducting an
independent investigation and collecting
independent evidence of the divulged crimes,
or in bringing charges based thereon.
New Law Requires Parole to Assist Inmates
Find Housing and to Consider Additional
Factors Before Releasing Certain Sex
Offenders
The Division of Parole must assist inmates
find suitable housing, under a recent
amendment to Executive Law § 259-a(6).
That statute previously required Parole to
“assist inmates eligible for presumptive
release, parole or conditional release…to
secure employment, educational or vocational
training.” The amendment added the word
“housing” to the list of items Parole must
assist inmates to secure.
This appears to be a welcome step
forward, as a lack of suitable housing can be
a major obstacle to successful re-entry. We
look forward to seeing how it works in
practice.
At the same time, the Legislature required
Parole to take additional factors into account
“when investigating and approving the
residence of level two or level three sex
offenders.” This new law, a new subdivision
5 added to Executive Law 259-a, appears to
complicate the release of certain sex
offenders. In deciding whether to approve a
residence for a level one or two sex offender,
it requires Parole to take into account the
following factors: the number of other
registered sex offenders near or in the
proposed residence; the proximity of the
proposed residence to “entities with
vulnerable populations”; the proposed
residence’s accessibility to family, friends,
and other support; and whether there is

Vol. 18, No. 4; Fall 2008

“permanent, stable housing” available to the
offender “in order to reduce the likelihood [of his
or her becoming] transient.”
The law was apparently prompted by
legislators’ concerns that Parole was
concentrating too many paroled sex offenders in
certain neighborhoods and residences-concentrations which often result from restrictive
local laws limiting the areas in which sex
offenders may live.
A Tribute to Paul Curran,
PLS Board Chairman, 1988 - 2008
By David C. Leven
Paul Curran, who passed away this year, was
the Chairman of the Board of Prisoners’ Legal
Services for twenty years, from 1988 until 2008.
During much of that time, I was the Executive
Director of PLS. I was a little apprehensive when
Paul became Chaiman because, despite Paul’s
sterling reputation--he had been the United States
Attorney for the Southern District, State
Assemblyman, the chair of the State
Investigations Commission, a highly regarded
litigator, and the managing litigation partner at a
large New York City law firm, Kaye Scholer--he
was also a Republican, at a time when
Republicans were believed hostile to prisoners’
rights.
As it happened, it was incredibly good fortune
for PLS and the clients we serve that Paul became
the Chair of PLS. For the next 11 years, Paul was
an exceptional leader during many difficult years
and many difficult situations which PLS
confronted, and an amazingly strong advocate for
a cause in which he believed: protecting and
expanding the legal rights of prisoners. Resolute
in his determination to ensure effective access to
and justice for New York State inmates, he
steadfastly supported the mission of PLS. Greatly
respected in Albany, he was able to open up
doors, going with me to Albany to make the case

Page 9

for funding PLS at an adequate level. And he
made the case brilliantly, helping to ensure
our continued funding, sometimes with
increases that may not have been secured
without his involvement.
When, despite Paul’s efforts, Governor
Pataki vetoed our budget in 1998, forcing us
to close our six offices for inmate
representation and lay off 56 of 60 staff, Paul
helped us to survive that awful year against all
odds, survive and rebound, albeit with
reduced funding.
Paul’s unwavering support of PLS, his
commitment to its mission, and the
unbelievable amount of time and energy he
devoted to PLS for two decades made him
something he probably never thought he
would be, a hero of the prisoners’ rights
movement. He was certainly a hero of mine.

Federal Cases

Second Circuit Reinstates Conviction of
Correctional Officer Who Fatally Injured
County Jail Prisoner
United State v. Cote, 544 F.3d. 88 (2d Cir.
2008)
The Second Circuit Court of Appeals
reinstated the civil rights conviction of a
correctional officer who fatally kicked a
county jail inmate while allegedly trying to
restrain him.
A jury found Officer Paul M. Cote guilty
of violating inmate Zoran Teodorovic’s civil
rights after he stomped and kicked
Teodorovic in the head and chest on
October 10, 2000. The incident occurred after
Teodorovic allegedly sucker punched another
officer. Teodorovic, who was mentally ill and
homeless, and was being held in the county

Page 10

jail on misdemeanor trespassing charges, went
into a coma and died of his injuries 14 months
later.
Following the incident, Officer Cote was
charged under state law with assault and reckless
battery. He was acquitted of assault but convicted
of battery. When Teodorovic subsequently died of
his injuries, federal authorities charged Cote with
civil rights violations. After the jury found him
guilty, Southern District Judge Charles Brieant
granted a judgment of acquittal to Cote, saying he
had a “real concern that an innocent person may
have been convicted.” The court specifically
concluded that much of the inmate testimony in
the case “was so exaggerated and vindictive as to
be entirely incredible as a matter of law….”
The Court of Appeals reversed, saying that
Judge Brieant had “usurped the jury’s role in
determining [the inmate] witness[es] credibility”
and “improperly concluded that the jury was
erroneously instructed.” For example, Judge
Brieant had found that the testimony of some of
the witnesses as to the number of stomps and
kicks administered by Officer Cote was incredible
and that if Cote had kicked or stomped
Teodorovic in the head as many times as the
witnesses claimed, Teodorovic’s face would have
been unrecognizable in the photographs. The
appeals court said that question should have been
left to the jury. “The purported inconsistencies
that troubled the district court, and the inferences
to be drawn from the photographic evidence, are
factors relevant to the weight the jury should
accord to the evidence, and do not on this record
justify the grant of a judgment of acquittal.”
The court also criticized Judge Breiant for
finding that Officer Cote lacked the specific intent
needed to be convicted under the statute. The
“nature of the force itself--repeatedly striking and
kicking Teodorovic in the head” suggested an
intent to injure rather than restrain the prisoner,
the court wrote, and the words Mr. Cote allegedly
screamed at the prisoner “betrayed his willful
intent and belied any possibility that he was

Vol. 18, No. 4; Fall 2008

engaged in a good-faith effort to restrain the
inmate.”
The court remanded the case to the lower
court with instructions that Cote be sentenced.
He faces up to 10 years in prison.
Practice pointer: The factors that the jury
had to consider in determining whether
Officer Cote was criminally liable for using
excessive force are similar to those that a
court or jury would have to weigh in deciding
an inmate’s civil claim for damages against
an officer for excessive force. As recited by
the court in this case, they are: “the need for
the application of force, the relationship
between the need and amount of force that
was used, the extent of the injury inflicted,
and whether the force was applied in a
good-faith effort to restore discipline or
sadistically for the purpose of causing harm.”
Here, a number of eyewitnesses testified
that Cote punched, kicked, and stomped
Teodorovic while he was lying on the ground,
already in a position of weakness: Officer
Reimer, the officer who had been punched by
Teodorvoic, testified that, while he was
holding Teodorovic on the ground, Cote ran
into the cell block and punched, kicked, and
stomped on Teodorovic.The appeals court
noted that even if, as Judge Breiant suggested,
Cote had a duty to aid Reimer to subdue
Teodorovice, the available evidence “would
plainly allow a reasonable juror to determine
that Cote used excessive force” in doing so.
District Court Rejects Claim That Extension
of Sex Offender Registration Period Violates
Ex Post Facto Clause, Due Process
Woe v. Spitzer, 571 F.Supp.2d 382 (E.D.N.Y.
2008)
“SORA,” New York’s Sex Offender
Registration Act, requires that sex offenders
register with the New York State Division of

Vol. 18, No. 4; Fall 2008

Criminal Justice Services and be subject to
“community notification” for a specified period of
time. The time period of registration and the
degree of community notification depend upon the
“risk level” assigned to the offender, as
determined by the New York State Board of Sex
Offenders. See, generally, Correction Law § 168.
When SORA was first enacted, in 1995, level
one sex offenders--those with the lowest risk of
re-offense--were required to register for ten years
from the date of their discharge or parole from
prison.
The plaintiff in this case is a level one sex
offender who became subject to SORA in 1996.
In 2006, ten days before the plaintiff’s
required period of registration would have
expired, the Legislature amended SORA to
provide that level one offenders register for
twenty years.
The plaintiff sued, claiming this new
requirement violated the ex post facto clause of
the constitution, as well as his right to due process
of law. The ex post facto clause of the constitution
prohibits the government from increasing
someone’s punishment after a punishment has
already been imposed.
The court rejected the plaintiff’s ex post facto
claim, noting that both the Second Circuit Court
of Appeals and the Supreme Court had previously
rejected such claims concerning sex offender
notification laws, on the grounds that they are
civil in nature and do not constitute additional
“punishment.” See, Doe v. Pataki, 120 F.3d
1263(2d Cir.1997) (New York SORA does not
violate ex post facto clause); Smith v. Doe, 538
U.S. 84 (2003) (Alaska’s sex offender registration
act does not violate the ex post facto clause).
The Court also rejected the plaintiff’s due
process claim. Although it found that the plaintiff
did have a “liberty interest” in being free of the
requirements of the sex offender registration–and
was therefore entitled to procedural due process
before he could be required to register--it found
that the due process entitlement arose at the

Page 11

original risk level determination--that is, when
the registration requirement was imposed-and was not implicated by the “the length of
the registration period.”
The court therefore dismissed the
plaintiff’s claims.
Practice pointer: In doing so, however,
the court noted that SORA contains a
provision that allows any sex offender to
petition a court for an order modifying the
level of notification. See Correction Law
§ 168- o(2). As applied to level one offenders,
the court stated, an adjustment of the risk
level would “relieve the offender from any
registration requirement.” Therefore, the
court continued, the plaintiff was not without
a potential remedy.
District Court Rejects Claim That
Commissioner, Superintendent, Should Have
Done More to Prevent Assault at Green
Haven
Warren v. Goord, __ F. Supp.2d. __
(S.D.N.Y. 2008)
Between 1995 and 2003, there were 148
inmate-on-inmate assaults in the Green Haven
yards. Between 2000 and 2003, there were
thirty-seven attacks in the yards, thirty of
which involved the use of weapons. There
were eight inmate-on-inmate assaults in the
Green Haven yards in 2003, six involving
weapons. In July of 2003, an inmate was
stabbed and killed with an unidentified
weapon.
On January 1, 2004, the plaintiff was
watching television in the E/F recreation yard
at Green Haven around 9:00 p.m. when
another inmate attacked him with a razor,
cutting him across his left cheek. The
resulting wound was approximately three
inches in length and required twelve stitches
to close.

Page 12

The plaintiff sued both (then) Commissioner
Glenn Goord and Superintendent Phillips,
claiming that their failure to install metal detectors
at the entrance to the recreation yards in Green
Haven constituted deliberate indifference to the
risk to inmates in this yard of violence from other
inmates.
The defendants disagreed, arguing that the
security measures they had in place were
sufficient. They stated that, in order to prevent
inmates from bringing weapons into the yards,
Green Haven subjected inmates to random frisks
using a hand-held metal detector or metal detector
chair. Correctional officers were physically
present in the yard during recreation, they
regularly performed visual inspections of the
yards and bathroom, and periodically swept them
with metal detectors.
The defendants also argued that metal
detectors would be impractical: the recreation
period was not long enough to permit numerous
inmates to remove their shoes, belts, jackets, and
other articles and pass through a metal detector,
and in any event, the installation of metal
detectors would not prevent weapons from
entering the recreation yards for a number of
reasons: inmates may make weapons out of
plexiglass or foil a metal detector in other ways;
in addition, they “routinely” throw weapons into
the yard through windows which face the yard
(despite what the defendants argued were diligent
efforts to screen the windows). The defendants
also argued that an inmate can commit an assault
in the yard without a weapon, or by using weight
bars or other exercise equipment.
“Prison officials have a duty…to protect
prisoners from violence at the hands of other
prisoners.” Farmer v. Brennan 511 U.S. 825, 833,
(1994) (citations omitted). When a prisoner is
incarcerated under conditions posing “a
substantial risk of serious harm” and can show
that the officials knew or should have known
about the risk and failed to take reasonable steps
to abate it, he or she can bring a civil rights action

Vol. 18, No. 4; Fall 2008

for damages.
In this case, the court found that the
evidence showed that the plaintiff was
incarcerated in conditions that posed a
substantial risk of harm and that there was an
at least triable question over whether
defendant Phillips knew or should have
known of the risk.
The court further found, however, that the
plaintiff had not presented sufficient evidence
that the steps Phillips had taken to address the
danger of assaults in the yard were
unreasonable. The court noted that Green
Haven had a number of security measures to
address the dangers of attacks in the yards,
including random frisks and metal detector
screenings, more extensive screenings when
alerted to specific dangers, placement of
officers in the yard during exercise periods,
and regular visual inspections and periodic
metal detector sweeps. The plaintiff,
meanwhile, offered “nothing but his own
conclusory statements to support the argument
that metal detectors would significantly
reduce the risk to inmates of being assaulted
by other inmates.” As the defendants pointed
out, inmates can and do commit assaults with
non-metal weapons and with their bodies and
have other ways of getting weapons into the
yards or, indeed, to other areas in the facility.
“While the system in place at Green Haven
may not be infallible,” the court concluded,
“no reasonable fact finder could conclude on
this record that Defendants disregarded an
excessive risk to plaintiff’s…safety by failing
to adopt the security measures that he
proposed.”
Therefore, the court dismissed the claim.
Magistrate Judge Appoints Counsel for One
Inmate, Denies It for Another
Prisoners litigating pro se in the federal
courts often make a motion for the

Vol. 18, No. 4; Fall 2008

appointment of counsel. To prevail in such a
motion, the inmate must show that:
1. the case has merit;
2. the prisoner is unable to pay for private
counsel;
3. the prisoner has made efforts to obtain a
lawyer; and
4. “the prisoner’s ability to gather the facts and
deal with the issues will be significantly
impeded if unassisted by counsel.”
See, Cooper v. A. Sargenti Co., 877 F.2d 170,
172 (2d Cir.1986).
The most important of these factors is the
merits. For instance, the Second Circuit, in
Cooper, held:
Courts do not perform a useful service if
they appoint a volunteer lawyer to a case
which a private lawyer would not take if it
were brought to his or her attention. Nor
do courts perform a socially justified
function when they request the services of
a volunteer lawyer for a meritless case that
no lawyer would take were the plaintiff
not indigent.
The above standard was recently applied by a
district court to two prisoner pro se cases, with
differing results.
The plaintiff in Blailey v. Sloly (S.D.N.Y.
August 15, 2008) (Pittman, MJ) was an inmate on
Rikers Island who alleged that he was sprayed
with pepper spray by the defendant-guards, hit
with a chair, kicked and punched while on the
ground, and handcuffed. He also alleged that he
was hit with riot clubs and helmets. All of these
acts allegedly occurred after the plaintiff returned
to his cell with a razor that he had used to shave
his head. The plaintiff alleged that he was given
no warning before the attacks and that he
complied immediately when ordered to drop the
razor. The plaintiff also alleged that there were

Page 13

twenty-five to thirty witnesses, that his
injuries included fractured ribs and contusions
all over his body, and that he required eight
sutures on the right side of his head as a result
of the incident.
The court noted the Supreme Court has
held that significant injury is not necessary for
an Eighth Amendment claim, and that “when
prison officials maliciously and sadistically
use force, contemporary standards of decency
are always violated.” In that case, the court
noted, guards allegedly beat a shackled
prisoner, which the court found to be
“malicious and sadistic”--and thus in violation
of the Eight Amendment--even though only
minor injuries resulted.
Here, the court noted, the plaintiff was
allegedly beaten while he was handcuffed and
suffered more than just bruises. “Thus, it
appears that the plaintiff may have a
meritorious Eighth Amendment claim.”
The court also noted that the plaintiff is in
jail, that his only employment lasted for less
than two months in 2006, and that he
therefore “lacks the funds to hire private
counsel.” Also, the court continued, “the
plaintiff has sufficiently attempted to obtain a
lawyer on his own but was denied assistance
three times.” Finally, although the plaintiff’s
need for counsel was “debatable”--he stated
that he needed counsel to “properly assist…in
making the right decisions, and…help file the
motions”--the court found that when all of the
factors were weighed together, “it is
appropriate to add plaintiff's case to the list of
cases considered by the Court's Pro Bono
Panel.”
The court reached the opposite conclusion
in Brown v. Banks (S.D.N.Y. August 15,
2008) (Pittman, MJ). In that case, the plaintiff
alleged that, after he disobeyed an order to
remove his jacket, the defendants sprayed him
with mace, kicked and punched him, threw
him to the floor, and handcuffed him. He

Page 14

claimed to have suffered numbness in his hand
and a swollen ankle.
The court found it likely that “plaintiff will
confront several difficulties in litigating his case
because: (1) prison guards are given some leeway
in using force, especially when a prisoner
disobeys an order; (2) the use of mace is not
necessarily excessive force; (3) the occurrence of
minor injuries because of tight handcuffs does not
necessarily imply excessive force was used; and
(4) there were no uninterested witnesses to the
incident.”
Therefore, the court held, even assuming the
plaintiff’s financial inability to retain counsel and
that he had made sufficient efforts on his own to
secure counsel, his current application
“establishes none of the other elements relevant to
an application for counsel.” In response to the
question on the form motion that asks the plaintiff
to explain why he feels he needs a lawyer, the
plaintiff stated, “To reassure professional
guidance.” But, the court stated, “The need for
guidance is not sufficient. If the need for guidance
were sufficient to warrant adding a case to the list
circulated to the Pro Bono Panel, nearly every pro
se case would be added to that list.... Accordingly,
because plaintiff has failed to show that his
petition is sufficiently meritorious, his motion for
counsel is denied….”
Practice pointer: In a civil case such as this,
the court does not actually “appoint” counsel.
Instead, the court submits the case to a panel of
volunteer attorneys. The members of the panel
consider the case, and each decides whether he or
she will volunteer to represent the plaintiff. If no
panel member agrees to represent the plaintiff,
there is nothing more the court can do. Thus, even
in cases where the court finds it is appropriate to
request volunteer counsel, there is no guarantee
that counsel will actually volunteer to represent
the plaintiff.

Vol. 18, No. 4; Fall 2008

State Cases

Disciplinary
Inmate Found Not Guilty of Solicitation,
Guilty of Harassing Facility Nurse
Matter of Wells v. Dubray, 862 N.Y.S.2d 187
(3d Dep’t 2008)
The petitioner was charged in a
misbehavior report with stalking, harassment,
and soliciting a sexual act after admittedly
kissing a facility nurse on the cheek. At the
conclusion of the Tier III disciplinary hearing
that followed, he was found not guilty of
stalking but guilty of the remaining charges
and sentenced to 180 days in the Special
Housing Unit. In an Article 78 proceeding, the
petitioner argued that the evidence did not
support the charge.
With respect to the solicitation charge, the
court agreed. Disciplinary Rule 101.10
provides that “[a]n inmate shall not engage in
or encourage, solicit or attempt to force
another to engage in sexual acts” (7 NYCRR
270.2 [B] [2] [i]). The petitioner’s kiss could
not reasonably be construed as the solicitation
of a sexual act, the court found. Further,
although the nurse testified that the petitioner
“insinuated” and she “thought” that he
“wanted more” than a professional
relationship with her, she conceded that he did
not go into detail or otherwise explain what he
meant by “more.” “[T]his vague and
unspecified request is insufficient to sustain
the solicitation charge,” concluded the court.
With regard to the harassment charge,
however, the court disagreed. Disciplinary
Rule 107.11 provides that,

Vol. 18, No. 4; Fall 2008

Page 15

The court found that although the petitioner
did not expressly articulate his desires or explain
what type of relationship he wanted with the
nurse, he nevertheless “communicated a message
of a personal nature to a facility employee.” Thus,
notwithstanding the nurse’s testimony that the
petitioner did not harass her, the court held, “the
cited rule is sufficiently broad to encompass
petitioner’s conduct.”

The court concluded that there was
sufficient evidence to support the remaining
charges, however. With respect to the
smuggling charge, the fact that the petitioner
was not found to be in possession of any
drugs or that no drugs actually were brought
into the facility “is of no moment,” held the
court, “as the rule was violated when
petitioner conspired with another to introduce
drugs into the facility.” Further, although the
correspondence between the petitioner and his
friend, which formed the basis for the charges,
made no express mention of drugs, “the
Hearing Officer could reasonably infer, based
upon the totality of the evidence, that the
underlying transaction involved drugs.” The
petitioner’s assertion that he was asking his
friend to smuggle tattoo ink, not drugs, into
the facility, as well as his varying
explanations for the $400 he had received
from fellow inmates or members of their
families, merely “presented credibility issues
for the Hearing Officer to resolve.”

Inmate Found Guilty of Conspiring to Smuggle
Drugs Into Facility

Inmate Held Not Entitled to Back Pay After
Disciplinary Conviction Reversed

Matter of Gomez v. LeClaire, 862 N.Y.S.2d 633
(3d Dep’t 2008)

Matter of Henriquez v. Goord, 862 N.Y.S.2d
411 (3d Dep’t 2008)

The petitioner was found guilty at a Tier III
hearing of conspiring to bring drugs into the
facility, smuggling or soliciting another to
smuggle items into the facility, possessing
contraband, and violating facility correspondence
procedures and was sentenced to 12 months in the
Special Housing Unit, together with a 36-month
loss of privileges and a recommended loss of good
time of 24 months. In reply to his Article 78
proceeding, the Attorney General agreed that
there was insufficient evidence to sustain the
contraband charge, as no contraband had been
introduced into the facility.

After the petitioner’s disciplinary hearing
was administratively reversed, he sought back
pay for wages lost as the result of his removal
from his prison job and placement in the
Special Housing Unit. Pursuant to Department
of Correctional Services Directive No. 4802,
the petitioner was reimbursed in the amount
of $36.45, the idle pay rate. Dissatisfied, he
filed a grievance. The Central Office Review
Committee (CORC) denied the grievance,
finding that his back pay had been properly
calculated. The petitioner then commenced an
Article 78 proceeding challenging that
determination, as well as a separate

[a]n inmate shall not harass an employee
or any other person verbally or in writing.
Prohibited conduct includes, but is not
limited to, using insolent, abusive, or
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.
7 NYCRR 270.2 (B)(8)(ii).

Page 16

determination denying his request to be reinstated
to his former pay grade.
The lower court partially granted the petition.
It returned the matter to DOCS to recompute the
amount the petitioner was owed under the idle pay
rate. However, it dismissed the remainder of the
petition, finding, “[a] prison inmate does not have
any statutory, constitutional or precedential right
to a prison job. Since petitioner's prior pay grade
was simply one attribute of his former
employment, he is not entitled to restoration of his
prior status.”
Inmate Found Guilty of Interfering With An
Employee
Matter of Harvey v. Woods, 862 N.Y.S.2d 630
(3d Dep’t 2008)
The petitioner, an inmate, was found guilty of
creating a disturbance, demonstration, and
interference with an employee after attempting to
lessen the effects of a chemical agent that was
being used by correctional officers on another
inmate by throwing water into the inmate’s face.
He also allegedly encouraged the inmate to
continue resisting the officers and defy their
orders. He challenged the decision on the ground
that it was not supported by the evidence.
The court disagreed. The determination of
guilt, the court found, was “supported by
substantial evidence consisting of the misbehavior
report and corroborating hearing testimony from
the correction officer who authored it.”
Contradictory testimony from the other inmate
involved in the incident, the court held, “merely
created credibility issues for resolution by the
Hearing Officer.”

Vol. 18, No. 4; Fall 2008

Evidence Did Not Support Charge of
Smuggling, Drug Possession, and Violating
Visiting Room Procedure
Matter of Gibson v. Fischer, 864 N.Y.S.2d
183 (3d Dep’t 2008)
The petitioner was found guilty of
smuggling, drug possession, violating visiting
room procedures and making unauthorized
calls in a Tier III proceeding after an
investigation into a telephone call that the
petitioner made to his wife. He challenged
this result, arguing that the charges were not
supported by the evidence. The court agreed.
The misbehavior report and the
hearing transcript do not contain
sufficient detail to conclude that
petitioner violated the rules alleged.
Likewise, the transcript of the
conversation between petitioner and
his wife is vague and does not indicate
that the two were discussing
smuggling drugs into the facility
through use of the facility visiting
room nor does the record suggest that
any drugs were recovered.
Therefore, the court concluded, “the
determination must be annulled and all
references thereto expunged from petitioner's
institutional record.”
Other Cases
Denial of Temporary Release to Former
Supreme Court Justice Not Improper, Court
Holds
Matter of Garson v. NYS Department of
Correctional Services, 863 N.Y.S.2d 537
(Sup. Ct., Albany Cty., August 8, 2008)
(Ceresia, J.)

Vol. 18, No. 4; Fall 2008

The petitioner, a 76-year-old former New
York State Supreme Court Justice, is serving a
sentence of 3 to 10 years after being convicted of
accepting a bribe and receiving an award for
official misconduct. The charges arose out of the
performance of his duties as a judge.
Soon after his incarceration, he applied to
participate in the Temporary Release Program.
The application was denied based on the nature of
his offense. The decision of the Central Officer
Reviewer stated, in part: “Explanation: Instant
offense included Garson, while employed as
Kings County Supreme Court Judge, accepting
bribes with understanding his decisions as a
public servant would be influenced. Many
innocent lives were affected by his actions. Not
considered appropriate for work release at this
time. You may not re-apply for work release until
08/2009.”
The petitioner appealed but his appeal was
also denied. The appeals decision stated, in part,
as follows: “After reviewing all factors in this
case, both positive and negative, the decision has
been made to affirm the TRC decision in this
case…The present offense involved you
employed in the capacity of a county supreme
court justice, accepting bribes with the
understanding your decision as a public servant
would be influenced…Noted is your recent Tier II
conviction. Your poor custodial adjustment
coupled with the serious impact the instant
offense has on the community renders you an
unsuitable candidate for work release.”
The petitioner subsequently commenced an
Article 78 proceeding challenging the decision. In
it, he argued that the decision was irrational, his
crimes were non-violent, and he was an ideal
candidate for temporary release.
Corrections Law § 855(9) provides that
“participation in a temporary release program
shall be a privilege” and [n]othing contained in
this article may be construed to confer upon any
inmate the right to participate, or to continue to
participate, in a temporary release program.”

Page 17

Courts have held that judicial review of a
determination to deny an application to
participate in such a program is limited to
consideration of whether the determination
“violated any positive statutory requirement
or denied a constitutional right of the inmate
and whether [it] is affected by irrationality
bordering on impropriety.” Matter of Abascal
v. Maczek, 796 N.Y.S.2d 757 (3d Dep’t
2005). They have specifically noted that
denial of a temporary release application may
be based upon the seriousness of the crime for
which the petitioner is incarcerated. See, e.g.,
Matter of Peck v. Maczek, 830 N.Y.S.2d 846
(3d Dep’t 2007).
DOCS has established a point system for
the consideration of temporary release
applications. See, generally, 7 NYCRR 1900.
But DOCS’ regulations also state that “[t]he
[Temporary Release] Committee shall also
take into account any factors, besides the
items in the point system, which, in their best
judgment, they find significant.” 7 NYCRR
1900.4(l)(2). They also state that, “inmates
should be denied temporary release if their
presence in the community or in minimum
security institutions would pose an
unwarranted threat to their own or public
safety, if public reaction is such that the
inmate’s successful participation in the
program would be made difficult and public
acceptance of the temporary release program
would be jeopardized.”
Under the circumstances, the court found,
DOCS’ decision was neither irrational nor
otherwise affected by an error of law. “The
factors considered by the Temporary Release
Committee were proper, and adequate to
support the determination. They also comport
with the standard…set forth in § 1900.4( l )(4)
of the Rules of the Department of
Correctional Services.” According to the
court, the Temporary Release Committee
could “properly take into account the nature

Page 18

and consequence of petitioner’s criminal acts,
particularly the fact that they were committed by
an elected judicial official uniquely entrusted with
the responsibility to impartially uphold and follow
the law, not violate it”--notwithstanding the fact
that his crimes were nonviolent.
DOCS Did Not Err In Withholding Good Time
Matter of Reed v. Fischer, 863 NYS2d 524
(3d Dep’t 2008)
The petitioner in this case is serving a
sentence of from 6 to 18 years for attempted
murder. In May 2007, he appeared before a Time
Allowance Committee (TAC) to determine
whether some or all of his good time credit should
be withheld after he was removed from an
academic program for disciplinary reasons.
Following the hearing, TAC recommended that all
six years of the petitioner’s good time be withheld
and that, following his completion of an
aggression therapy program, despite the fact that
he had already completed one aggression therapy
program, he could reapply for reconsideration.
The petitioner commenced an Article 78
proceeding challenging the determination.
The court rejected the petitioner’s challenge.
The court noted, initially, that, “[i]t is well
established that good behavior allowances are in
the nature of a privilege…and no inmate has the
right to demand or to require that any good
behavior allowance be granted to him.” Whether
to withhold a good time behavior allowance is a
discretionary determination and, “as long as it is
made in accordance with law and is based upon a
review of an inmate's entire institutional record, it
is not subject to judicial review.”
Here, the court found, the record showed that
the TAC had considered the petitioner’s complete
institutional record, including his several prior
disciplinary infractions, in addition to his program
accomplishments. The petitioner agreed that the
basic facts were accurate. The TAC placed

Vol. 18, No. 4; Fall 2008

particular emphasis on the petitioner’s recent
disciplinary infractions incurred as the result
of a fight in which he exhibited behavior
“inconsistent with [his] prior aggression
therapy program.” Noting that good time may
be withheld for “bad behavior, violation of
institutional rules or failure to perform
properly in the duties or program assigned”
(See Correction Law § 803[1][a]), the court
concluded that the withholding of the
petitioner’s good time credit was “entirely
rational under the circumstances presented
here.”
Inmate Denied Parole Based on Seriousness
of Offense
Barnes v. New York State Division of Parole,
862 N.Y.S.2d 639 (3d Dep’t 2008)
The petitioner in this case is serving an
aggregate prison term of 20 years to life
imposed in 1979. He commenced an
Article 78 proceeding following his fifth
unsuccessful appearance before the Board of
Parole in January 2007. The Appellate
Division, in a brief and boilerplate opinion,
upheld the Board. “It is well settled,” wrote
the court, “that decisions regarding release on
parole are discretionary and will not be
disturbed absent a showing of irrationality
bordering on impropriety” and “although the
Board indeed is required to consider the
statutory factors set forth in Executive Law §
259-i (2)(c),” it need not “enumerate, give
equal weight to or explicitly discuss every
factor considered.”
Here, the court found, the record did not
show that the Board denied the petitioner’s
request for parole release based solely upon
the severity of the underlying offense. Rather,
the record reflects that the Board also
considered the petitioner’s good disciplinary
record, his positive institutional adjustment,

Vol. 18, No. 4; Fall 2008

and his successful completion of various
programs. “In sum,” concluded the court “we are
satisfied that the underlying determination
evidences a proper exercise of the Board’s
discretion.”
Practice pointer: There is some tension
between Appellate Division decisions holding that
the Parole Board may not deny parole based
“solely” on the seriousness of the underlying
offense (See, e.g., Matter of King v. New York
State Div. of Parole, 598 N.Y.S.2d 245, affd. 83
N.Y.2d 788 [1993]) and others holding that so
long as the Board has considered the statutory
factors set forth in Executive Law § 259-i, its
decisions are not subject to judicial review absent
“irrationality bordering on impropriety.”
Here, for example, all of the factors other than
the seriousness of the offense weighed in favor of
Parole. The court nevertheless upheld the Board
on the ground that it at least considered the
positive factors. But if the Board considered them
only to reject them in light of the seriousness of
the offense, what difference is there from denying
parole based “solely” on the seriousness of the
offense?
Inmate Not Entitled to Damages for Mouse Bite
Covington v. State, 863 N.Y.S.2d 852 (3d Dep’t
2008)
The claimant, an inmate at Great Meadow
Correctional Facility, sought damages for an
injury allegedly sustained as the result of a mouse
bite on his left big toe. Following a trial, the Court
of Claims dismissed his claim and the claimant
appealed.
The appellate court sustained the Court of
Claims, noting that although the State “bears a
duty to maintain its property in a reasonably safe
condition in view of all of the circumstances,” it
is not “an insurer against every injury that might
occur on its property, including the likelihood and
seriousness of a potential injury and the burden of

Page 19

avoiding such risk.”
Here, the court found, the claimant’s
claims that the cell block in which he was
housed was infested with rodents was
contradicted by the testimony of the Plant
Superintendent of Great Meadow, who
explained that the facility contracted with an
outside exterminator who visited the facility
weekly and treated all of the common areas,
as well as individual cells that had been
reported by inmates to have had problems. In
addition, the defendant submitted service
reports from the pest control company from
January 2005 and February 2005, just prior to
the claimant’s alleged injury, describing the
extermination procedures employed, which
included the placement of glue boards in the
claimant's cell block for the purpose of
catching mice. Given that evidence, the court
found, there was “ample” basis in the record
to support the lower court’s determination that
the claimant failed to prove that the State was
negligent.
Practice pointer: The mere occurrence of
an unfortunate event, such as a mouse bite, is
not in and of itself proof of negligence, unless
the event could not have occurred but for the
negligence. Here, the court found, the
claimant’s injuries could have occurred
despite the fact that the State took reasonable
steps--such as the placement of mouse traps-to prevent them. Therefore, there was not
basis upon which to find the State liable for
negligence.
Court Rejects Jury’s Conclusion That Sex
Offender Should Be Released From Civil
Confinement
In re Daniel XX., 861 N.Y.S.2d 838 (3d Dep’t
2008)
The petitioner, a sex offender, was paroled
from a sentence of 6 to 12 years for attempted

Page 20

rape and other offenses on the condition that he
voluntarily commit himself to the Sunmount
Developmental Disabilities Services Office, a
mental health facility. Thereafter, Sunmount’s
Director applied for and obtained several
involuntary extensions of the petitioner’s
commitment. In 2006, the petitioner sought a trial
on the question of the need for his further
retention, as provided for by Mental Hygiene Law
§ 15.35. A jury found that the respondent was not
in need of inpatient care and treatment and
Sunmount’s application to retain him was
dismissed.
On appeal, the court reversed the Jury verdict.
The court noted that to involuntarily retain a
person as a resident at a facility such as
Sunmount, the petitioning agency has the burden
of proving “that the person is in need of in-patient
care and treatment, such care and treatment is
essential to the person's welfare, and the person’s
judgment is so impaired that he or she is unable to
understand the need for care and treatment.”
Additionally, “[i]ncluded within such proof must
be the constitutionally required showing that
[respondent] poses a substantial threat of physical
harm to [him]self or others.”
At the trial, Sunmount presented the testimony
of an expert witness, a Sunmount psychologist,
who testified that the petitioner had a disability
attributable to a neurological impairment and that
he has psychiatric diagnoses of polysubstance
abuse, which arises from his history of alcohol
and drug abuse, and schizoaffective disorder,
bipolar type, which is manifested by his history of
hallucinations and depression. The psychologist
also opined that the petitioner suffers from
antisocial personality disorder and that, given his
assaultive, abusive behavior, combined with his
refusal to voluntarily take necessary medications,
he “would be dangerous to other people” if
released. The psychologist stated that the
petitioner lacked anger management and social
skills and received training and counseling in
those areas at Sunmount. He also gave his opinion

Vol. 18, No. 4; Fall 2008

that the petitioner “is in need of in-patient
care and treatment as a resident at Sunmount
because “he [cannot] get along in society[, nor
can he] meet his own needs without a
tremendous amount of support.”
The court found that the psychiatric
testimony was corroborated by Sunmount's
daily monitoring notes on the respondent
which revealed “a pattern of assaultive,
verbally abusive and sexually inappropriate
behavior.” In addition to harassing patients
and staff on an almost daily basis, the
petitioner, according to the court, started three
physical altercations with patients, one of
which involved him punching a staff member
in the back, and he masturbated in front of
female staff on three separate occasions.
A treatment aide at Sunmount described
an incident that occurred during the initial
hearing on the petitioner’s application in
which the petitioner “jumped out of his seat
and violently punched his attorney in the side
of the head [and] had to be physically
restrained and…injected with a sedative….”
The petitioner testified that he should be
released because he had “paid [his] debt to
society and will not harm himself or anyone
else.” When asked about some of the specific
conduct noted in the evidence, however, the
respondent defended his behavior. With
respect to the assault upon his attorney, he
stated, “I believe the lawyer threatened me. I
believe that, you know, he caused me pain,
humiliation; and, you know, he was treating
me like a prostitute.” He explained his
behavior toward the patients and staff at
Sunmount by stating that “[f]rom time to time
we have a little argument; but when they put
their hands on me physically I have to, you
know, protect myself.” He denied ever having
any problem with alcohol or drugs or ever
having experienced hallucinations.
The court noted that a jury verdict may be
set aside “when the evidence preponderates so

Vol. 18, No. 4; Fall 2008

greatly in the movant’s favor that the jury could
not have reached its conclusion on any fair
interpretation of the evidence.”
Here, the court held, “no fair interpretation of
[the] evidence supports the conclusion…that
respondent is not in need of in-patient care and
treatment. In demonstrating petitioner’s failure to
accept his need for treatment and consistent
refusal to take his medication, and his pattern of
assaultive, threatening and abusive behavior
toward others, we find that petitioner
overwhelmingly met its burden of proving, by
clear, convincing and uncontroverted evidence,
that respondent is in need of in-patient care and
treatment.”
The court ordered that a new trial be held to
evaluate the petitioner’s current condition and
eligibility for release.
Inmate Serving Definite Sentence in Local Jail
Not Entitled to Parole Jail Time Credit Against
Interrupted State Sentence
Matter of Davidson v. State Department of
Correctional Services, 861 N.Y.S.2d 471
(3d Dep’t 2008)
The petitioner was conditionally released from
an indeterminate sentence of 6 to 18 years in
2003. He was then declared delinquent from
parole on April 10, 2004, after his arrest for
various charges of assault. Parole was revoked,
and an administrative law judge recommended
that he be returned to prison and held to the
expiration of his maximum term.
Meanwhile, the petitioner was convicted of
assault and sentenced to a one-year definite
sentence to be served in a local jail. That sentence
commenced on December 5, 2004. With credit for
time served since his arrest, plus good time, it
expired on January 6, 2005. On January 18, 2005,
the petitioner was returned to DOCS’ custody to
resume serving the remainder of his State
sentence. He received 11 days of jail time credit

Page 21

against the sentence, reflecting the period
from January 6, 2005 to January 17, 2005.
The petitioner challenged the credit,
arguing that he should get credit for all the
time he was in local custody.
The court disagreed. The court noted that
the declaration of delinquency interrupted the
running of the 1993 sentence. See Penal Law
70.40(3)(a). Time served in local custody
from a declaration of delinquency to the
resumption of the interrupted sentence is
considered “parole jail time” and may be
credited against the maximum term of the
interrupted sentence. See Penal Law
70.40(3(3). Where, however, as here, the local
custody arose from an arrest and conviction
on another charge, the credit is “limited to the
portion of the time spent in custody that
exceeds the...maximum term of imprisonment
imposed for such conviction.” Penal Law
70.40(3) (iii).
This means that a prisoner who has served
a definite sentence in a local jail will only
receive credit against an interrupted
indeterminate sentence for time in custody
that exceeds the length of the definite
sentence. In this case, that time was 11 days.
Practice pointer: There is one exception
to the rule stated in this case. A “time served”
sentence is never technically “imposed.”
Therefore, local jail time that is credited to a
“time served” sentence may also be credited
to the interrupted state sentence. See Bridges
v. Malcolm, 44 NY2d 875 (1978).

Special Report

Two Decades in Solitary
The following article, by John Eligon,
appeared in the September 22, 2008 edition of
the New York Times.

Page 22

He is one of New York’s most isolated
prisoners, spending 23 hours a day for the past
two decades in a 9-by-6-foot cell. The only
trimmings are a cot and a sink-toilet combination.
His visitors — few as they are — must wedge into
a nook outside his cell and speak to him through
a 1-by-3-foot window of foggy plexiglass and iron
bars.
In this static existence, Willie Bosket, 45,
seems to have gone from defiant menace to
subdued and empty inmate.
It was 30 years ago this month that a state law
took effect allowing juveniles to be tried as adults,
largely in response to Mr. Bosket’s slaying of two
people on a New York subway when he was 15.
He served only five years in jail for that crime
because he was a juvenile, sparking public
outrage. But shortly after completing his sentence,
Mr. Bosket was arrested for assaulting a
72-year-old man.
He once claimed to be at “war” with prison
officials. He said he laughed at the system and
claimed to have committed more than 2,000
crimes as a child. He set fire to his cell and
attacked guards. Mr. Bosket was sentenced to 25
years to life for stabbing a guard in the visitors’
room in 1988, along with other offenses, leading
prison authorities to make him virtually the most
restricted inmate in the state.
Now Mr. Bosket, who has gone 14 years
without a disciplinary violation, does mainly three
things: read, sleep and think.
“Just blank” is how Mr. Bosket described his
existence during a recent interview at
Woodbourne Correctional Facility, about 75 miles
north of Manhattan. “Everything is the same
every day. This is hell. Always has been.”
He is scheduled to remain isolated from the
general prison population until 2046.
Mr. Bosket’s seclusion is part of a bigger
debate over the confinement of troublesome
inmates and the role of the prison system. Some
say that Mr. Bosket’s level of seclusion is
draconian, that he should be given an opportunity

Vol. 18, No. 4; Fall 2008

to rejoin the general population.
“He is a very dangerous person; he’s
killed people,” said Jo Allison Henn, a lawyer
who helped represent Mr. Bosket roughly 20
years ago when he fought unsuccessfully to
have some of his restrictions removed. “I’m
not saying he should be released from custody
entirely, just the custody that he is in. It is
beyond inhumane. I don’t think that too many
civilized countries do that.”
But proponents of Mr. Bosket’s
restrictions say he has proved to be something
of an incorrigible danger to prison guards and
other inmates and cannot be trusted in the
general population. He is evaluated
periodically, meaning he could rejoin the
general prison population before 2046, said
Erik Kriss, a spokesman for the State
Department of Correctional Services.
“This guy was violent or threatening
violence practically every day,” Mr. Kriss
said. “Granted, it has been a while, but there
are consequences for being violent in prison.
We have zero tolerance for that.”
From 1985 to 1994, Mr. Bosket was
written up nearly 250 times for disciplinary
violations that included spitting on guards,
throwing food and swallowing the handle of
a spoon, according to prison reports.
Few, if any, of the state’s current inmates
have been in disciplinary housing longer than
Mr. Bosket, said Linda Foglia, a
spokeswoman for the corrections department.
Mr. Bosket says he wakes up at 7:15 every
morning and gets a visit from a counselor at 8.
At 9, he gets his first of three doses of
medication for asthma and high cholesterol,
he said. Lunch comes at 11:30, followed by
more medication at 1 p.m. and 5 p.m.
He is entitled to three showers a week.
Other than one hour of recreation a day, also
solitary, he may leave his cell only for
medical visits and haircuts. The recreation
area measures 34 feet by 17 feet, surrounded

Vol. 18, No. 4; Fall 2008

by nearly 9-foot-high walls with bars on the top.
Mr. Bosket said he was chained to a door during
his recreation time and could not walk more than
six feet, but corrections officials disputed that
account, saying he was allowed to roam freely
during his hour like other inmates.
And while other prisoners in isolation are
escorted to a visiting room when they have guests,
he must stay in his cell, speaking through the
plexiglass.
Most of his waking hours, he said, are spent
reading books, magazines, newspapers and
anything else he can get his hands on. His favorite
magazine, he said, was Elle.
“It’s very colorful,” he said. “It keeps me up
to date on technology and the world.”
Mr. Bosket has long been known as a paradox,
a man of charm and extraordinary intelligence but
also of inexplicable fits of rage.
“It was like a terrifying metamorphosis when
this spark within him went off, and you could see
the rage in him building,” said Robert Silbering,
a former prosecutor who tried Mr. Bosket for the
subway murders. “I never have seen anything like
that before or afterward.”
The killings led Gov. Hugh L. Carey to sign a
law allowing people as young as 13 to be tried as
adults for murder. Mr. Bosket said he saw it as
something of an honor that he could drastically
change a justice system that he said made him a
“monster.”
“If I’m the perfect example, then I’ve been
taught well,” he said.
At the sight of a recent visitor, Mr. Bosket
cheerfully nodded and, revealing a small gap
between his front teeth, gave a friendly, “Hi,
how’s it going?”
He spoke with the aura of a professor, using
deliberate gestures and emphasizing the ends of
many words. He often spoke in metaphors and
used stories and quotations to explain his
philosophies.
As he contemplated his words, Mr. Bosket
often folded his right arm across his bulging

Page 23

stomach and lay the fingers of his left hand
across his mouth and nose. He sometimes
rocked in his chair.
Despite his bleak situation, Mr. Bosket
refused to concede defeat: “I’m not broken
down and never will be.”
His life has always been empty, he said.
“I grew up with nothing,” he said. “I was
born with nothing. I still have nothing. I will
never have nothing. Forty-five years of living
the way I have lived, I like ‘nothing.’ No one
can take ‘nothing’ from you.”
Mr. Bosket, who has spent all but two
years in some form of lockup since he was 9,
also said he had formed a “breastplate” from
a lifetime of incarceration.
“I’ve become so callous to the poking of
the sword that, literally, instead of bleeding to
death, the blood was drained and I became
absent of concern, void of emotions, cold —
plain cold to the degree that not much affects
me anymore,” he said.
Yet Mr. Bosket did hint at something of a
life of suffering.
“If somebody came to me with a lethal
injection, I’d take it,” he said. “I’d rather be
dead.”
His change from vicious to quiescent,
Mr. Bosket said, was a calculated move.
Growing up in Harlem, Mr. Bosket said, his
heroes were revolutionaries like Huey Newton
and Assata Shakur. He said he believed blacks
needed to use violence to survive in the 1970s
and ’80s.
But in 1994, he said, he sensed a change
in society. “Blacks don’t need to go and attack
to get their message across,” he recalled
thinking.
He said that he also wanted young people
to see positive in his life, and that continued
violence could be counterproductive.
“I don’t believe at this point it’s strategic
for me to be aggressive or violent,” he said.
“I’ve made my point.”

Page 24

Vol. 18, No. 4; Fall 2008

“I’m not proud of a lot of the things I’ve
done,” he added.
Mr. Bosket’s sister, Cheryl Stewart, 51, said
her brother had expressed remorse in letters.
“What was done was wrong, and if he could
redo it, he wouldn’t do it again,” she said. “He
knows what was done was wrong and is just sorry
for what all has went down.”
Though she corresponds with her brother,
Ms. Stewart said she had not visited him in 23
years because it was difficult to see him so
confined. Mr. Bosket is lucky to receive more
than two visits a year.
Adam Mesinger, a television and movie
producer, said he had visited Mr. Bosket seven
times over the past four years and is shopping a
script for a movie about Mr. Bosket’s life. He said
that Mr. Bosket had always been warm and open
with him and that he would consider him a friend.
“I have no fear of him,” Mr. Mesinger said. “I
don’t think he would ever harm me. I don’t think
he ever really wants to harm anybody.”
But not even Mr. Bosket would say that his
days of violence are behind him.
“When you’re in hell,” he said, “you can’t
predict the future.”

Pro Se Practice
The Law of “Jail Time”
On its face, it sounds like a simple
proposition. A prisoner should receive credit for
“jail time,” the time spent in custody before
beginning to serve his or her sentence.
In practice, however, the application of the
principle can become complicated, particularly
where there are multiple sentences involved, or
the prisoner was on parole when the sentence was
imposed.
A proper understanding of the rules of jail
time may assist you in obtaining credit for the

maximum time permissible by law.
Correction Law 600-a places the
responsibility for certifying “jail time” with
the county sheriff in the county in which you
were incarcerated, or with the New York City
Department of Correction, if you were
incarcerated in New York City. If you think
you are missing jail time, your initial inquiry
should go to those offices.
The principle statute governing the
granting of jail time is Penal Law 70.30(3).
This statute reads as follows:
The term of a definite sentence, a
determinate sentence, or the maximum
term of an indeterminate sentence
imposed on a person shall be credited
with and diminished by the amount of
time the person spent in custody prior
to the commencement of such
sentence as a result of the charge that
culminated in the sentence. In the case
of an indeterminate sentence, if the
minimum period of imprisonment has
been fixed by the court or by the
board of parole, the credit shall also
be applied against the minimum
period. The credit herein provided
shall be calculated from the date
custody under the charge commenced
to the date the sentence commences
and shall not include any time that is
credited against the term or maximum
term of any previously imposed
sentence or period of post-release
supervision to which the person is
subject. Where the charge or charges
culminate in more than one sentence,
the credit shall be applied as follows:
(a) If the sentences run concurrently,
the credit shall be applied against
each such sentence;

Vol. 18, No. 4; Fall 2008

(b) If the sentences run consecutively, the
credit shall be applied against the
aggregate term or aggregate maximum
term of the sentences and against the
aggregate minimum period of
imprisonment.
In any case where a person has been in
custody due to a charge that culminated in
a dismissal or an acquittal, the amount of
time that would have been credited against
a sentence for such charge, had one been
imposed, shall be credited against any
sentence that is based on a charge for
which a warrant or commitment was
lodged during the pendency of such
custody.
The statute, although densely worded,
contains all of the basic rules for jail time. They
can be summarized as follows:
Rule 1: You are entitled to have all time spent
in custody on a criminal charge, prior to the
commencement of the sentence received for the
charge, credited to the sentence received for that
charge. (An indeterminate or determinate sentence
commences “when the prisoner is received in an
institution under the jurisdiction of the state
department of correctional services.”)
Example: You are arrested on June 1 on
Charge A. You are sentenced on Charge A on
July 1. You were received by DOCS on
September 1. You are entitled to have all the time
in local custody from June 1 until August 1
credited to the sentence that resulted from
Charge A .
Rule 2: You are not entitled to receive jail
time credit for time served after the
commencement of a sentence.
Example: You are arrested on June 1 on
Charge A. While in jail, a second charge,
Charge B, is filed against you. You are sentenced
on Charge A on July 1. You are sent to DOCS on

Page 25

September 1. On October 1, you are returned
to local custody to face Charge B. After
sentencing on Charge B, you are returned to
DOCS on December 1.
You are entitled to receive jail time credit
for the period in custody from June 1 until
August 31, but not from September 1 through
November 30. Once you were received by
DOCS, the sentence received for Charge A
commenced, and any time served thereafter-including the time served in local custody--is
not “jail time.”(You may nevertheless receive
credit for this time if your sentence on
Charge B is run concurrently with that for
Charge A. However, this would be considered
a prior time credit, not jail time, and it might
not be credited in the same way.)
Rule 3. If you are held on multiple
charges which culminate in more than one
sentence, jail time must be credited against all
of the sentences, so long as you have not
begun service of any of the sentences.
Example: You are arrested on Charge A
on June 1. You make bail on July 1. You are
arrested on Charge B on August 1. You are
sentenced on both charges on Setember 1 and
are received by DOCS on October 1.
You are entitled to jail time credit for all
time served in custody between June 1 and
September 30.
If your sentences are concurrent, the credit
is applied against each sentence. If your
sentences are consecutive, your credit applies
against the aggregate sentence.
Rule 4. Jail time does not include any
time credited to any “previously imposed
sentence.”
Example: On June 1, you are arrested on
Charge A. On July 1, a warrant is filed against
you on Charge B. On August 1, you receive a
90-day misdemeanor sentence on Charge A.
On September 1, you complete service of the
misdemeanor service (90 days minus 60 days

Page 26

jail time). On October 1, you are sentenced on
Charge B to a term in State prison. You are
received by DOCS on November 1.
You are entitled to jail time against the
sentence imposed for Charge B from June 1 until
July 31, and from October 1 until October 31.
You are not entitled to jail time for the period
from August 1 until August 31, as this was
“sentence time” credited to a “previously imposed
sentence.”
(Note, however, that you get the jail time
credit for the period from June 1 until July 31
against both the misdemeanor and the State
sentence [see Rule 3, above].)
(Note 2: A “time served” sentence is not a
previously imposed sentence, since it is never
technically imposed. Jail time credited to a “time
served” sentence can also be credited to a state
sentence based on charges pending at the time of
the local sentence.)
Rule 5: The same rules that apply to in-state
jail time also apply to out-of-state jail time.
Example: You are arrested in Florida on
June 1. On July 1, New York serves a detainer on
Florida. On September 1, you are sentenced in
Florida. On October 1, your Florida sentence
commences. On November 1, you are sent to New
York. On December 1, you are sentenced in New
York, concurrently to your Florida sentence. You
are returned to Florida on January 1.
Your New York sentence commences on
January 1. (See Penal Law § 70.20[3].) You are
entitled to jail time credit against the New York
sentence for all the time served in local custody in
Florida from June 1 until September 30. You may
also received “prior time credit” against the New
York sentence for the time served on the Florida
sentence from October 1 until December 31.
(see Rules 1 and 2, above.)
The rules for jail time served while on parole
are governed by Penal Law 70.40(3)(c). That
statute states:

Vol. 18, No. 4; Fall 2008

Any time spent by a person in custody
from the time of delinquency to the
time service of the sentence resumes
shall be credited against the term or
maximum term of the interrupted
sentence, provided:
(i) that such custody was due to an
arrest or surrender based upon the
delinquency; or (ii) that such custody
arose from an arrest on another charge
which culminated in a dismissal or an
acquittal; or (iii) that such custody
arose from an arrest on another charge
which culminated in a conviction, but
in such case, if a sentence of
imprisonment was imposed, the credit
allowed shall be limited to the portion
of the time spent in custody that
exceeds the period, term or maximum
term of imprisonment imposed for
such conviction.
The rules of this statute can be
summarized as follows:
Rule 1: Time served in local custody
based on a parole warrant or a charge that
results in a dismissal or acquittal should be
credited to the interrupted sentence.
Example: On June 1, your parole officer
arrests you for failing to report and you are
declared delinquent on that date. On July 1,
parole is revoked, and you are returned to
State custody.
You are entitled to credit against the State
sentence for time served in local custody from
June 1 until July 1.
Rule 2. If you are arrested on new charges
while on parole and receive a new sentence
based on those charges, time served is jail
time, credited against the new sentence,
unless the time served exceeds the length of
the sentence imposed on the new charge, in

Vol. 18, No. 4; Fall 2008

which case the excess is credited to the prior
sentence.
Example. You are on parole on a sentence
imposed for Charge A. On June 1, while on
parole, you are arrested on Charge B. You are
sentenced to a three-year sentence on Charge B on
July 1. On September 1, you are received in
DOCS to begin the sentence on Charge B, and
resume the sentence on Charge A.
The time served in local custody from June 1
until July 31 cannot be credited to the sentence
you were serving for Charge A as “parole jail
time” because none of that time exceeded the
three-year term of imprisonment imposed for

Page 27

Charge B.You can, however, credit the time
as “jail time” against the sentence imposed for
Charge B. See Penal Law 70.30.
Jail time problems can be complicated,
and this article cannot cover all possible
situations. In general, however, a careful
application of the above rules to your jail time
situation should give at least a preliminary
answer to the question: Am I entitled to
additional jail time?

Page 28

Vol. 18, No. 4; Fall 2008

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

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www.plsny.org.

Vol. 18, No. 4; Fall 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.