Vol. 19, No. 2; Spring 2009 Published by Prisoners’ Legal Services of New York

2009-2010 State Budget Advances Criminal Justice Agenda
Rockefeller Drug Law Reform
The budget bill signed into law in early April
contains the broadest criminal justice reforms in
New York in decades and appears to mark the end
of a 36-year-old social experiment called the
Rockefeller Drug Laws, an experiment which
treated drug abuse as an almost exclusively
criminal, rather than public, health problem and
which resulted in an explosion in New York’s
prison population.
The Rockefeller laws, passed in 1973, required
harsh mandatory prison sentences for most drug
offenses--from 15 to 25 years to life for an A-I drug
felony, for example, and maximum terms of up to
25 years for B drug felonies. These laws led to a
tripling of the State’s prison population in the
decades after they were passed.
Reforms, enacted in 2004 and 2005, reduced the
most severe sentences and reduced the weight
threshold of drugs needed for conviction of certain
offenses. They also allowed A-1 and certain A-II
offenders convicted prior to the reforms to petition
for the new sentences. They continued to require
mandatory prison sentences for most drug offenses,
however, and more people were sent to state prison
for non-violent drug offenses in the years 2005 to
2008 than in those preceding. In 2007, more than
35% of all persons sent to state prison were drug
offenders.

…drug law article continued on page 3

“Merit Time” for Violent Felons
The 2009-2010 New York State budget bill adds
a new § 803-B to the Correction Law titled
“Limited Credit Time Allowance.” The Limited
Credit Time Allowance consists of a one-time,
discretionary sentence credit, similar in many
respects to merit time but, unlike merit time, is
available to violent felony offenders.
…merit time article continued on page 3

Also Inside…
A Win in the
Supreme Court . . . . . . . . . . . . page 2
Resentencing for Certain
Class B Drug Offenders . . . . . page 6
Medical Parole Expanded. . . . page 6
Questions about
Time Served on Illegal
Post-Release Supervision . . . . page 20
Subscribe to Pro Se! See page 25 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. 19, No. 2; Spring 2009

A Message from the Executive Director, Karen L. Murtagh-Monks
A Win In the Supreme Court
On May 26, 2009, the United States
Supreme Court declared New York’s
Correction Law ' 24, which prohibited inmates
from bringing a civil action for damages against
a DOCS employee in state court,
unconstitutional. The decision, Haywood v.
Drown, 2009 WL 1443136, is a major victory
for inmates and a vindication of the principle
that the courts must treat all litigants equally.
Correction Law ' 24 provided that, “No
civil action shall be brought in any court of the
State…against any officer or employee of
[DOCS]…for damages arising out of any act
done or the failure to perform any act within the
scope of the employment and in the discharge
of the duties by such officer or employee.”
Under § 24, any damages action arising from
the actions of a DOCS employee in state court
would have to be filed in the Court of Claims,
with the State, rather the individual employee,
as the defendant, and any action under § 1983
(the federal civil rights act) could only be
brought in federal court.
Plaintiff Haywood, an inmate, filed a 1983
action in state court alleging that DOCS’
employees violated his civil rights in respect to
several disciplinary proceedings and an
altercation. The Attorney General argued that
Correction Law ' 24 prohibited the state court
from hearing the case. The state supreme court
agreed and dismissed the case. The Appellate
Division, 3rd Department affirmed the order of
the supreme court.
Haywood sought leave to appeal to the
New York State Court of Appeals. The court
appointed Jason Murtagh, formerly of Dechert,
LLP, to represent Mr. Haywood. PLS, together
with other agencies, filed an amicus brief in
support of Mr. Haywood’s case, arguing that

Correction Law ' 24 was unconstitutional
because it violated the Supremacy Clause. The
Supremacy Clause mandates that the U.S.
Constitution and the Laws of the United States
are the supreme laws of the land and that every
state is bound by them. The Court of Appeals,
however, concluded that because the statute did
not discriminate against one claim in favor of
another, but rather prohibited all damage claims
against DOCS officials, both state and federal,
there was no Supremacy Clause violation.
Plaintiff then filed a motion for certiorari in
the U.S. Supreme Court and PLS prepared an
amicus brief in support of Plaintiff=s motion.
Certiorari was granted and the case was argued
before the U.S. Supreme Court on December 3,
2008.
The Supreme Court held that because New
York had created “courts of general jurisdiction
that regularly sit to entertain analogous suits
[i.e., federal lawsuits against non-DOCS
employees], New York is not at liberty to shut
the courthouse door to federal claims [against
DOCS employees].” The Court concluded that,
“Correction Law ' 24 is effectively an
immunity statue cloaked in jurisdictional garb.”
What does Haywood mean for New York
State prisoners? It means that if you believe that
your civil rights have been violated and that
you have been damaged, you now have the
option of bringing a § 1983 claim in either state
or federal court. Which venue to chose depends
on a number of different factors that are too
lengthy to discuss here. However, the Haywood
decision itself is a victory, not just for New
York State inmates, but for all U.S. citizens, as
it reaffirms the strength and importance of the
Supremacy Clause.

Vol. 19, No. 2; Spring 2009
…drug law article continued from page 1

The new reforms constitute a significant
break with mandatory sentences. At the heart of
the new laws is a Judicial Diversion Program,
under which sentencing courts will have the
option of diverting most drug offenders to in- or
out-patient drug treatment in lieu of prison, or to
the Willard Drug Treatment or SHOCK
incarceration program. The new laws also
reduce the sentences for some offenses and will,
for the first time, allow some B drug felons
convicted prior to the 2004 reforms to petition
for resentencing. A detailed review of the new
sentencing laws begins on page 4.
The new laws do not eliminate all vestiges
of the Rockefeller-era laws. They leave
undisturbed overly-harsh, mandatory sentences
for A-1 and A-II drug offenders, 2d felony level
B drug offenders who are not substance
dependent, and anyone convicted of a violent
offense within the last 10 years. They also
continue the Rockefeller model of basing the
principal criteria for guilt for most offenses on
the weight of the drugs in a person’s possession
at the time of arrest, rather than the person’s
role in the transaction. Furthermore, they leave
some 10,000 drug offenders behind bars without
an opportunity to appeal for sentence reduction.
Nevertheless, the new laws represent a
welcome break from the Rockefeller mentality
that Governor Patterson recently called the
“least successful criminal justice program” he
could think of.
…merit time article continued from page 1

The new law provides that eligible inmates
serving determinate sentences may reduce their
conditional release dates by six months,
provided they meet several criteria, and eligible
inmates serving indeterminate sentences may
reduce their minimum periods of incarceration
by six months.

Page 3

Eligible inmates are:
1) Individuals serving indeterminate sentences
for A-1 felony offenses other than criminal
possession of a controlled substance,
criminal sale of a controlled substance, or an
attempt or conspiracy to commit either of
those offenses; and
2) Individuals serving indeterminate or
determinate sentences for violent felony
offenses, as defined in Penal Law § 70.02;
and
3) Individuals serving indeterminate or
determinate sentences for homicide
offenses, except for Murder 1, as defined in
Penal Law § 125.27 (that is, murder of a
police, peace, or correction officer, or a
murder committed by an incarcerated
person).
Sex offenders are not eligible.
An inmate will lose eligibility if he or she is
returned to DOCS on a violation of any form of
supervised release without being sentenced to
an additional determinate or indeterminate term.
The credit is available only once, even if an
offender is serving multiple eligible sentences.
To earn the credit, the eligible inmate must:

T successfully participate in assigned work
and treatment programs; and
T successfully complete one or more
"significant
programmatic
accomplishments," which are defined as:
participating in no less than two years of
college programming; obtaining a masters
or professional studies degree; participating
as an inmate program associate for at least
two years; receiving a certification from the
State Department of Labor for successful
participation in an apprenticeship program;

Page 4

working as an inmate hospice aid for two
years; and

T not have committed a “serious disciplinary
infraction” or maintained an “overall
negative institutional record,” as defined in
rules and regulations to be promulgated by
the Commissioner; and
T not have received a "disqualifying judicial
decision," meaning one found to have been
frivolous under the Civil Practice Law and
Rules or for which sanctions were imposed
under Rule 11 of Federal Rules of Civil
Procedure.
The program is discretionary and, as with
merit time, DOCS is not required to grant the
credit just because an inmate meets the
eligibility criteria. The new statute provides that
no person shall have a right to demand or
require this credit. In addition, it states that the
Commissioner may revoke the credit for a
disciplinary infraction or for any failure to
continue to successfully participate in any
assigned work program after a certificate of
earned eligibility has been awarded.
The law became effective April 7, 2009.
Rockefeller Drug Law Reform: A Closer Look
The Rockefeller Drug Law Reform provides
for new sentencing options, including Willard,
SHOCK incarceration, and judicial diversion to
a drug treatment program for most drug
felonies. Details are as follows.
First Felony Offenses
Class B: Imprisonment is no longer mandatory:
Probation, a split sentence, a definite jail term,
or a determinate state prison term between 1
and 9 years (with post-release supervision) will

Vol. 19, No. 2; Spring 2009

be authorized. If imposing a state prison
sentence, the court may order that the defendant
be directly placed in the Willard drug treatment
program as part of a sentence of parole
supervision. The court may also order the
defendant directly placed in the SHOCK
incarceration program.
Class C, D, and E: Imprisonment will be
d i s c r e t i o n a r y , n o t ma n d a t o r y . A l l
non-incarcerative dispositions are authorized.
The sentencing court may order the defendant
directly placed in the SHOCK incarceration
program.
Second Felony Offenders
non-violent felony)

(with

prior

Class B: Imprisonment is required unless a
defendant is diverted for drug or alcohol
treatment pursuant to new § 216 of the Criminal
Procedure Law, which authorizes diversion at
the court’s discretion following an alcohol and
substance abuse evaluation (see “Judicial
Diversion Program” below). The minimum state
prison sentence for Class B second felony drug
offenders (with a prior non-violent felony) is
reduced to 2 years (from 3½). The maximum is
unchanged at 12 years. Therefore, Class B
second felony offenders who are not judicially
diverted to treatment, and are sentenced to less
than 3½ years, will be SHOCK eligible, and
may be directly placed in the program, provided
they otherwise meet eligibility requirements
[age, no prior DOCS commitments, no
exclusion convictions--see Correction Law §
865 (1)].
Class C, D, and E: Imprisonment is not required
–all non-incarcerative dispositions are
authorized, including judicial diversion. In
addition, Willard placement and judicial
SHOCK placement are available sentencing
options. Optional state prison sentences include:

Vol. 19, No. 2; Spring 2009

Class C – a determinate sentence between 1½
(reduced from 2) to 8 years – plus PRS;
Class D – a determinate sentence between 1½ to
4 years (unchanged) – plus PRS;
Class E – 1½ - 2 (unchanged) – plus PRS.
Second Felony Offenders (with prior violent
felony)
There are no sentencing changes available
to defendants who are second felony offenders
with a predicate violent felony conviction.
These defendants still face mandatory
imprisonment, as follows:
Class B – A determinate sentence between 6 15 years – plus PRS (categorical ineligibility for
SHOCK);
Class C – a determinate sentence between 3½ –
9 years – plus PRS;
Class D – a determinate sentence between 2½ 4½ years – plus PRS;
Class E – a determinate sentence between 2 –
2½ years – plus PRS.
Some Class C, D and E offenders will be
eligible for SHOCK.
Judicial Diversion
The centerpiece of the reform bill is
authorization for a court to divert most drug and
marijuana offenders with an identified alcohol
or substance abuse problem to treatment. It
provides that courts may divert drug offenders
(Class B through Class E), including second
felony drug offenders, to in-patient or outpatient treatment programs in lieu of prison
without consent of the D.A. Courts may also
order judicial diversion for defendants charged
with Willard eligible crimes (see CPL §
410.91). Various offenders are ineligible for
diversion without D.A. consent. These include:

Page 5

second felony drug offenders with predicate
violent felony offense convictions; defendants
with a conviction for a merit time ineligible
offense within the preceding 10 years (generally
sex and homicide offenses); defendants with a
Class A felony drug conviction within the
preceding 10 years; and defendants who have
ever been adjudicated a second violent felony
offender or a persistent violent felony offender.
Also ineligible for diversion without D.A.
consent are defendants currently charged with a
violent felony offense or a merit time ineligible
offense, for which imprisonment is mandatory
upon conviction, while such charge is pending.
After ordering and receiving an alcohol and
substance abuse evaluation, the court must make
findings with respect to whether:
a. the defendant is statutorily eligible for
diversion;
b. the defendant has a history of alcohol or
substance abuse or dependence;
c. such alcohol or substance abuse or
dependence is a contributing factor to
the defendant’s criminal behavior;
d. the defendant’s participation in judicial
diversion could effectively address such
abuse or dependence; and
e. institutional confinement of the defendant is
or may not be necessary for the protection of
the public.
A guilty plea will generally be required in
exchange for judicial diversion, but the court
may, in circumstances where the plea is “likely
to result in severe collateral consequences,”
order diversion without a guilty plea. The court
will have a range of options upon the
defendant’s successful completion of the
diversion program, including allowing the
defendant to withdraw a guilty plea and
dismissing the indictment, or substituting a
misdemeanor conviction in lieu of the felony.
The court will also have a range of options

Page 6

when a defendant is unsuccessful in the
diversion program, including imposing a state
prison sentence for the crime of conviction or a
lesser offense. The legislation directs courts to
consider that “persons who ultimately
successfully complete a drug treatment regimen
sometimes relapse by not abstaining from
alcohol or substance abuse” and to consider
using a “system of graduated and appropriate
responses or sanctions.”
Additional Criminal Justice Provisions of the
2009-2010 Budget Bill
Resentencing of Some Class B Drug
Offenders Permitted
Beginning in October 2009, any eligible
Class B drug felony offender in DOCS with an
indeterminate sentence greater than one to
three years can apply to the courts to be resentenced to a determinate term in accordance
with the new ranges authorized by the
Rockefeller Reform bill. The procedures are the
same as those that were in effect when Class
A-I offenders were allowed to apply for
resentencing: the application should be made to
the court which originally sentenced you;
inmates who make a re-sentencing application
will have the immediate right to appointed
counsel to prepare and file the petition and the
right to appeal from adverse determinations; the
courts can take into account “any facts or
circumstances” relevant to the imposition of a
new sentence, including the inmate’s
participation or willingness to participate in
prison programming, before deciding whether
to grant the petition. As part of the application,
the inmate may also move for resentencing on
any Class C, D, or E drug or marijuana
convictions “which were imposed by the
sentencing court at the same time or were
included in the same order of commitment as
such class B felony.”

Vol. 19, No. 2; Spring 2009

Offenders will not be eligible for
resentencing if, within the last ten years--not
counting time in prison--they were convicted of
a violent felony offense or an offense which
would make them ineligible for merit time or if
they have ever been adjudicated a second
violent felon or a persistent violent felon.
Shock Incarceration Expanded
The Reform bill amends § 865 of the
Correction Law to expand SHOCK
Incarceration to inmates up to and including 49
years of age (up from 39), and to permit a
second felony offender convicted of a Class B
drug felony to enter the program. Prior law
prohibited Class B drug felons from entering the
program.
The new law also permits an otherwise
eligible inmate to be selected from or apply to
SHOCK directly from a general confinement
facility if, in the case of an inmate with an
indeterminate sentence, the inmate is within
three years of parole eligibility, or, in the case of
an inmate serving a determinate sentence for a
drug offense, when the inmate is within three
years of conditional release. Under prior law,
eligible inmates could only enter SHOCK from
a DOCS reception center.
Successful completion of the SHOCK
program results in the granting of an earned
eligibility certificate and, for inmates serving a
determinate sentence, immediate consideration
for conditional release.
Medical Parole Expanded
The new bill amends Executive Law 259-r
to permit inmates who suffer from non-terminal
medical conditions that render them “so
physically or cognitively debilitated that they do
not present a danger to society” to be released
under medical parole. It also allows persons
convicted of murder in the second degree,

Vol. 19, No. 2; Spring 2009

manslaughter, or a sex offense to apply for
medical parole, provided they have served at
least half the minimum period of incarceration
in the case of an indeterminate sentence, or half
the term in the case of a determinate sentence.
Previously, medical parole was only available to
inmates with a terminal medical condition and
was not available to persons convicted of
murder, manslaughter, or a sex offense.
Parole Instructed to Consider Graduated
Sanctions
The new law amends Executive Law 259-a
to require the Division of Parole to “consider”
graduated sanctions for parole violations that
would include the concentration of supervision
on new releasees, alternatives to incarceration
for technical parole violators, and “the use of
enhanced technologies” for parole supervision.
DOCS Allowed to Hold Offenders in Civil
Commitment Proceedings
The new law allows DOCS to temporarily
keep in custody a sex offender, beyond his or
her maximum expiration date, who is the
subject of a pending civil management
proceeding and for whom a probable cause
determination was found, finding cause to hold
the offender for trial to determine whether civil
management is required, provided that the
offender and his counsel consent in writing to
such an arrangement. Under prior law, a sex
offender for whom probable cause was found
would have to be transferred to a secure
treatment facility operated by the Office of
Mental Health (“OMH”) upon his or her
maximum expiration date, pending trial.

Page 7

News and Briefs

OMH Issues Report on the Sex Offender
Management and Treatment Act
The Office of Mental Health has issued its
second annual report on the implementation of
the Sex Offender Management and Treatment
Act of 2007 (“SOMTA”), which calls for
enhanced “civil management,” including
possible civil commitment of sex offenders
deemed pre-disposed to re-offend. The report
shows that during the 12 month period between
November 1, 2007 and October 31, 2008, 1,581
sex offenders were reviewed by OMH for
possible civil management. Of those, 139
(9.3%) were referred for possible civil
management based on their perceived risk of reoffending.
Referral for civil management results in a
“probable cause” hearing, at which a judge is
required to determine whether there is “probable
cause” that the offender is a “dangerous sex
offender in need of civil management.” If so, the
offender is placed in a secure OMH facility
pending a trial by jury to determine whether he
suffers from a “mental abnormality” which predisposes him to commit sex offenses. If the jury
concludes that the offender suffers from such an
abnormality, the judge must determine whether
the offender is “dangerous” and should be
therefore subject to civil commitment in a
secure psychiatric facility or, instead, subject to
“Strict and Intensive Supervision and
Treatment” (“SIST”), a form of intensive parole
supervision, in the community.
The report states that there have been 231
probable cause hearings held since the inception

Page 8

of SOMTA and that all but one resulted in a
finding of probable cause and the placement of
the offender in a secure facility pending trial.
The report also states that, as of October 31,
2008, 122 persons were in secure treatment
facilities awaiting trial on whether they suffered
a mental abnormality; 56 were designated to
secure treatment facilities upon a judge’s
conclusion that they were dangerous sex
offenders requiring civil confinement; and only
36 had been placed on SIST orders in the
community. Of the 36 on SIST, 17 were
pending a violation of either their SIST
conditions or their conditions of parole.
The report concludes that SOMTA has
resulted in much-higher-than-anticipated rates
of civil confinement due to, among other things,
the lengthy pre-trial detention periods, the high
rates at which juries and courts find that
offenders with mental abnormalities are too
dangerous to be safely managed in the
community, and the low rate at which offenders
are released from secure confinement. The
report states that a continued growth of civil
confinement at the rate at which it has grown
since the inception of SOMTA will be
“unsustainable” in the near future and urges
alternatives for the treatment and management
of sex offenders.
The entire report can be obtained from the
FOIL Officer, Office of Mental Health,
44 Holland Avenue, Albany, New York 12229.
Court Holds Local Sex Offender Residency
Law Invalid
Sex offender residency restrictions have
multiplied throughout New York State as local
legislatures scramble to outmaneuver each other
with highly restrictive ordinances designed to
banish registered sex offenders from their
communities. As many as 80 such NIMBY
(“Not-In-My-Backyard”) residency restrictions
have been passed by counties, towns, and

Vol. 19, No. 2; Spring 2009

villages from Suffolk County to Niagara Falls.
Police and prosecutors are now enforcing them,
ordering sex offenders to move from restricted
zones and filing criminal charges for non
compliance. Even without vigorous
enforcement, the ordinances interfere with
parole and probation officers’ efforts to find
suitable housing for offenders.
In People v. Oberlander (Sup. Ct., Rockland
Ct., January 26, 2009), a Rockland County
Judge found one such law, imposed by
Rockland County, illegal.
The court found that the Rockland County
law was impermissible under the “preemption
doctrine.” The preemption doctrine prohibits
local legislatures from passing laws in a field in
which there is already extensive State
legislation, because they may be inconsistent
with the State’s “transcendent interest” in the
subject matter.
The court noted that New York State already
has a Sex Offender Registration Act (“SORA”)
(Correction Law § 168) which establishes a
scheme for the registration and classification of
sex offenders based on their perceived risk of a
re-offending. The court noted that SORA and
other laws authorize community notification
concerning most sex offender releases, that
Parole officers in New York exercise broad veto
authority over the proposed residences of sex
offenders, and that, in 2005, the state legislature
barred various categories of sex offenders from
knowingly “entering”--and, for all practical
purposes, residing--within 1,000 feet of the
“real property boundary line of a public or
private elementary [school], parochial,
intermediate, junior high, vocational or high
school.”
The State laws, the court concluded, were
“powerful indications of the New York
Legislature’s intention to ‘occupy the field’” of
community management of sex offenders, and
that Rockland County’s law “impermissibly
conflict[ed]” with the State enactments by

Vol. 19, No. 2; Spring 2009

prohibiting sex offenders from residing in areas
that might be permissible under State law.
The court noted that, in the instant case, the
defendant had found 15 residence locations in
Rockland County that were acceptable to the
Probation Department under State law but
which were rejected by the County under the
local law.
The ruling, if affirmed, could have a broad
impact on NIMBY laws across the State, as sex
offenders bring additional challenges to such
laws in other localities.
State Cases

Disciplinary Cases
Inmate Found Not Guilty of Interfering With
Nurse
Matter of Tevault v. Fischer, --- N.Y.S.2d ---(3d Dep’t 2009)
The petitioner in this case was charged in a
misbehavior report with, among other things,
interfering with an employee and abusing state
property after it was discovered that he was
missing a quantity of prescription medication.
After being found guilty in a disciplinary
hearing, he filed an Article 78 proceeding.
The court affirmed the charge that he had
misused his prescription medication. The
petitioner’s assertion that he inadvertently
dropped the medication on a wet floor, thereby
accounting for the missing pills, “presented a
credibility determination,” held the court, and
was therefore for the hearing officer, not the
court, to resolve.
The court reached a contrary decision,
however, with regard to the allegation that the
petitioner had violated Disciplinary Rule
107.10. That Rule provides that “[a]n inmate

Page 9

shall not physically or verbally obstruct or
interfere with an employee at any time” 7
NYCRR 270.2(B)(8) (i).
The facts of the case were that a fellow
inmate had overdosed on the prescription
medication Baclofen. This prompted the facility
to confiscate the drug from all of the inmates for
whom it had been prescribed, including the
petitioner. The petitioner’s alleged
“interference” with an employee stemmed from
the facility nurse having to interrupt her
“typical” duties to do a pill count, ascertain how
much of the petitioner's medication was
missing, and author the misbehavior report.
The court held that“this is not the type of
conduct that the subject rule was designed to
prevent.” The petitioner did not physically or
verbally interfere with the nurse, there is no
evidence that the underlying pill count
effectively precluded the nurse from responding
to any medical situations, and the petitioner's
loss or abuse of his medication, “while
improper,” was not the precipitating event that
gave rise to the pill count in the first instance.
Accordingly, the court held that the finding of
guilt for the charge of interference should be
reversed and the matter remitted to DOCS for a
redetermination of the penalty for the remaining
charge.
Weapon Found in Area “Controlled” by
Inmate Provided Sufficient Evidence to
Support Disciplinary Judgement
Matter of Griffin v. Selsky, 878 N.Y.S.2d 204
Following a cell search during which a
utility knife was found, the petitioner was found
guilty in a Tier III proceeding of possessing a
weapon and a penalty was imposed. He
challenged the finding of guilt in an Article 78
proceeding, arguing that the evidence was
inadequate because he did not have exclusive
control over the cell. The court affirmed,

Page 10

nonetheless, writing: “Although petitioner may
not have had exclusive access to the area where
the secreted utility blade was found, a
reasonable inference of possession arises from
the fact that the weapon, which was discovered
inside the fold of a hat underneath petitioner's
mattress, was located in an area within his
control. To the extent that petitioner denied that
the weapon was his and/or claimed that it had
been planted underneath his mattress by his
cellmate, this presented a credibility issue for
the hearing officer to resolve.”
Inmate Not Guilty of Smuggling Contraband
Hizbullahankhamon v. Fischer, 876 N.Y.S.2d
795 (4th Dep’t 2009)
The petitioner commenced an Article 78
proceeding to annul the determination that he
violated various inmate rules relating to his
alleged possession and smuggling contraband-to wit, a pornographic videotape. The charges
were based on allegations that while he was
distributing food at his correctional facility,
another inmate placed a commissary bag on the
petitioner’s cart. A correction officer who
searched the bag found a pornographic video in
it. The court noted that, although a misbehavior
report may by itself constitute substantial
evidence of guilt, “here there was no evidence
that petitioner had possession of the videotape
or that he and the other inmate were attempting
to smuggle it.” On the contrary, the court found,
the record established that, based on the order of
the correction officer, the petitioner
immediately delivered his cart with the bag to
the correction officer and, according to the
correction officer, the petitioner never touched
the bag or otherwise took possession of it.
Furthermore, there was no evidence of a scheme
between the petitioner and the other inmate to
smuggle the videotape. Therefore, there was no

Vol. 19, No. 2; Spring 2009

evidence that he violated the inmate rules in
question.
Witness to Inmate’s Mental Health Status
Found Redundant to OMH Testimony
Matter of Gray v. Kirkpatrick, 873 N.Y.S.2d
816 (4th Dep’t 2009)
The petitioner commenced an Article 78
seeking to expunge the determination that he
violated two disciplinary rules. The court agreed
with the petitioner’s first argument--that his
employee assistant had failed to interview
requested witnesses and to collect requested
documentary evidence--but it nevertheless
concluded that “[t]he Hearing Officer remedied
any alleged defect in the prehearing assistance
by ensuring that petitioner was offered all
[relevant] documentation which he requested,
ensured that petitioner's many objections were
addressed, [and] exercised considerable patience
in allowing petitioner to develop the record” at
the hearing.
The court then went on to reject all of the
petitioner’s remaining contentions, including his
claim that the testimony of an inmate
concerning his mental health status had been
improperly denied. The court found that,
“because the Hearing Officer previously had
conducted a confidential interview with an
employee from the Office of Mental
Health…any additional testimony concerning
petitioner's mental health status would have
been redundant.”
Practice pointer: In Huggins v. Coughlin,
548 N.Y.S.2d 105 (3d Dep’t 1989), aff’d 76
N.Y.2d 904 (1990), the New York Court of
Appeals held that a hearing officer is required
to consider an inmate’s mental condition in
making a disciplinary disposition when the
inmate's mental state is at issue. The court said
this principle was “in conformity with the
well-established proposition that evidence in

Vol. 19, No. 2; Spring 2009

mitigation of the penalty to be imposed or that
which raises a possible excuse defense to the
charged violation is relevant and material in a
disciplinary proceeding.” Following additional
class action litigation, DOCS adopted
regulations stating that when an inmate’s
mental health is at issue, the hearing officer
shall “interview an OMH clinician” concerning
the inmate’s mental condition and “inquire of
other witnesses to the incident…concerning any
observations that they may have regarding the
inmate’s mental condition…at the time of the
incident.” 7 N.Y.C.R.R. 254.6(c).
In our view, a direct witness to an inmate’s
mental condition who has testimony to offer
which goes above and beyond that of the OMH
clinician--and which may be at odds with that of
the clinician--would not be “redundant” and,
under 7 N.Y.C.R.R. 254.6(c), should have been
admitted.
Sentencing Cases
DLRA Resentencing Does Not Authorize
Reconsideration of Whether Sentences Should
Run Concurrently or Consecutively to Other,
Non-Drug Offenses
People v. Vaughan, 876 N.Y.S.2d 82 (2d Dep’t
2009)
The Drug Law Reform Act of 2004 (the
“DLRA”) substituted shorter determinate
sentences for the lengthy indeterminate
sentences previously required under the
Rockefeller Drug Laws for drug-related
offenses. It also authorized individuals serving
sentences for Class A-I felony drug offenses to
apply for re-sentencing under the newly-enacted
sentencing structure.
In this case, the defendant was serving a
sentence of 15 years to life for an A-1 drug
felony offense consecutively to sentences of 9
years to life and 6 years to life for several non-

Page 11

drug related offenses, resulting in an aggregate
term of 30 years to life. He moved for
resentencing under the DLRA. Specifically, he
asked to be resentenced to a determinate prison
term of 15 years plus a 5-year period of postrelease supervision for the drug offense. In his
motion papers, however, he pointed out that if
the three prison terms were still required to run
consecutively, the substitution of a determinate
prison term of 15 years for the original
indeterminate prison term of 15 years to life
would not alter his aggregate prison term, which
would still be 30 years to life. He therefore
asked for an order that the new sentence run
concurrently with the indeterminate sentences.
The court held that this was not authorized
by the DLRA. Criminal Procedure Law §
430.20 provides: “Except as otherwise
specifically authorized by law, when the court
has imposed a sentence of imprisonment and
such sentence is in accordance with law, such
sentence may not be changed, suspended, or
interrupted once the term or period of the
sentence has commenced.” While the DLRA
does authorize the court to change a sentence,
the court held, the scope of that authorization is
limited. It was “not designed to grant the
resentencing court plenary power over the
defendant's sentence, including the
determination as to how the sentence should be
served in relation to sentences imposed for
other, violent, non-drug-related felonies” wrote
the court. “There is no indication that the
Legislature intended that the issue of concurrent
versus consecutive sentences should be
reopened when a defendant is resentenced in
conformance with the new sentencing structure
adopted in the 2004 DLRA. The purpose of the
resentencing provision of the 2004 DLRA is
simply to retroactively reduce the level of
punishment for certain drug offenses. A
decision that a sentence for such an offense
should run consecutively or concurrently in
relation to sentences for other offenses is

Page 12

unrelated to the ameliorative purposes of the
2004 DLRA.”
Inmate May Bring Petition to Annul PostRelease Supervision Portion of Sentence
Matter of Johnson v. Fischer (Sup Ct. NY Co.
March 24, 2009)
As many inmates know, the Court of
Appeals, in Garner v. Department of
Correctional Services, 10 NY3d 358 (2008),
held that only a sentencing court can impose a
period of post-release supervision, and any PRS
administratively imposed by DOCS is unlawful.
The petitioner in this case, like many other
inmates, commenced an Article 78 proceeding
to annul a period of post-release supervision
which had been administratively added to his
sentence by DOCS. Notwithstanding the Court
of Appeals’ decision in Garner, DOCS opposed
the petition. It offered two grounds for its
opposition. First, DOCS argued, because the
petitioner had failed to provide a copy of his
sentencing minutes to the court, he had failed to
prove that the PRS component of his sentence
had been imposed by DOCS, rather than the
sentencing court.
The court dismissed this argument as
“wholly without merit.” The petitioner, the
court noted, “was present at his sentencing and
speaks with personal knowledge.” DOCS itself
had not presented the sentencing minutes “or
any other document to cast doubt on petitioner’s
allegation in the verified petition” that the
petitioner’s PRS was administratively, rather
than judicially, ordered.
Second, DOCS pointed out that, after
Garner, the State had passed legislation-Correction Law § 601-d--providing for the
resentencing of persons who were subject to
illegal, administratively imposed PRS. Under
the statute, the resentencing process is
commenced by either DOCS or the Division of

Vol. 19, No. 2; Spring 2009

Parole, referring such a person to their
sentencing court. DOCS argued that
resentencing, not nullification of the
administratively imposed PRS, was the only
remedy available to the petitioner. Moreover,
DOCS continued, after Correction Law § 601-d
was passed, DOCS had entered into a
Memorandum of Understanding with the NYS
Office of Court Administration, under which
(DOCS contended) the petitioner could not be
referred to his sentencing court for resentencing “until at least 60 days before the
release date.” Therefore, DOCS argued, the
instant case was not “ripe” for review and the
court lacked jurisdiction.
The court characterized these arguments as
“a complete mischaracterization.” Under
Garner, the petitioner had a right to have his
administratively imposed PRS term vacated. In
addition, the Memorandum of Understanding,
the court pointed out, actually states the
opposite of what DOCS said that it states. The
court wrote:
When the Court of Appeals, in Garner v.
NYS Department of Correctional
Services, 10 NY3d 358 (2008),
confirmed the illegality of
administratively imposed PRS the
Legislature promulgated Correction Law
§ 601-d to require that DOCS arrange
for the resentencing of any inmate
whose PRS had been unlawfully
imposed by the agency, rather than the
court. Recognizing that a large number
of inmates would be affected, the
Memorandum was agreed upon to
establish priorities for resentencing to
facilitate the process. The first priority,
to be addressed within weeks of the
Memorandum, was inmates in DOCS
custody solely based on a technical
violation of PRS which had not been set
by the sentencing court. Persons such as

Vol. 19, No. 2; Spring 2009

Page 13

petitioner, who were not eligible to be
released onto PRS until after October 1,
2008, were to be referred to the
sentencing courts “at least 60 days prior
to their release date.”

Article 78 proceeding may be an appropriate
remedy.

Thus, the court noted, the 60 days is the
latest, not the earliest, time for resentencing,
under the Memorandum.
Therefore, the court held, the petitioner was
entitled both to have his administratively
imposed period of PRS vacated and to be
brought before his sentencing court for
resentencing “without delay.”
Practice pointer: Despite this case, DOCS
adheres to a policy of not referring inmates who
had PRS administratively added to their
sentences but who are not yet eligible for
release for resentencing until they are within 60
days of their earliest release date. This can be
problematic. In some cases, for example, it may
develop at resentencing that the defendant was
not told that PRS had to be a part of the
sentence prior to entering his or her plea. In
those cases, the defendant would be entitled to
revoke the plea and, possibly, negotiate a lesser
term of incarceration. In other cases, the
sentence to which PRS was administratively
added was on a prior sentence, not the current
sentence. In those cases, resentencing on the
prior sentence--particularly if it is to a term
without PRS--might alter the computation of the
current sentence. In both scenarios, if the
defendant is not resentenced until the current
sentence is exhausted, the benefit of the
resentencing may be lost.
As this case indicates, however, there is no
legal reason for DOCS to wait until such
inmates are within 60 days of their release date
to refer them for resentencing. On the contrary,
as this case suggests, an inmate who has had
PRS unlawfully added to his or her sentence has
a right to be resentenced at a time of his or her
choosing. If DOCS refuses to refer such an
inmate for resentencing on request, an

People v. Hernandez, 872 N.Y.S.2d 455
(1st Dep’t 2009)

Appellate Court Rejects Claim That Double
Jeopardy Prohibits Adding PRS to a Sentence

Correction Law § 601-d, passed last
summer, permits the State to resentence inmates
who were not sentenced to post-release
supervision by their sentencing courts. At resentencing, the court may add the missing
period of post-release supervision to the
sentence.
Some defendants’ advocates have argued
that, in cases in which the inmate had already
completed the underlying term of incarceration,
such resentencings would violate the
constitutional prohibition against “double
jeopardy.”
The Double Jeopardy Clause of the
Constitution prohibits successive prosecution or
multiple punishment for “the same offence.” It
is intended to provide for “finality” in a criminal
judgment and protect against multiple
punishments for the same offense.
As we reported in the last issue of Pro Se, at
least one lower level court agreed that adding
PRS to a sentence, where the defendant had
already served the sentence that was imposed,
would violate double jeopardy. That case was
People ex rel. Pamblanco, 23 Misc. 3d 776
(Supreme Court, Bronx Co., November 28,
2008).
Since then, however, the Appellate Division,
First Department, has rejected a defendant’s
claim that double-jeopardy rendered a
resentencing unconstitutional. In People v.
Hernandez, 872 N.Y.S.2d 455 (1st Dep’t 2009),
the court noted that the Legislature had
specifically granted courts the authority to
resentence in these circumstances and held that

Page 14

the defendant “had no legitimate expectation of
finality with respect to a determinate seven-year
sentence with no attending PRS component.”
[The] defendant could not have had a
legitimate expectation in the finality of
a sentence that is manifestly contrary to
law. As noted, both the Court of
Appeals and the Legislature have
determined that failure to impose PRS is
a defect that is correctable,
notwithstanding the expiration of the
People's time to appeal or move for resentencing. Finally, defendant's
resentencing did not offend notions of
fundamental fairness, as he was
resentenced only to the originally
promised determinate term of seven
years, along with the required five-year
term of PRS.
The First Department of the Appellate
Division governs cases that arise in Manhattan
and the Bronx. Since Pamblanco was decided
by a Bronx County Judge, that decision is now
overruled.
Practice pointer: Lower courts have
rejected other objections to resentencing. For
example, in People v. Thompson, Sup. Ct.,
Bronx Co., February 11, 2009, the defendant
argued that resentencing him to a term with
post-release supervision after he had already
served his term of incarceration and spent some
time serving the illegal PRS term would be
“inconsistent with notions of fairness embodied
in the due process clause.” The court rejected
this claim, characterizing it as “the right of a
convicted felon to resist being resentenced to
additional punishment mandated by law if he
has fully served the original, illegally lenient
sentence and the state has not sought
resentencing for such an appreciable period of
time.” The court found “no federal or state
authority” supporting the proposition that there

Vol. 19, No. 2; Spring 2009

is a fundamental liberty interest protected by the
due process clause in being resentenced under
those circumstances. The same court also
rejected the defendant’s argument that it had
lost jurisdiction to resentence by unreasonable
delay--because, the court opined, the defendant
had not shown that he had been prejudiced by
the delay:
[D]uring the period since the initial
sentencing proceeding defendant was
incarcerated for a determinate term
commensurate with both the original,
albeit illegal sentence and that which
the law required, and he was released to
the albeit illegal DOCS imposed
supervision of the Division of Parole on
the same date and under the same
conditions as he would have been had
PRS been imposed at the initial
sentencing proceeding. Nor does
defendant allege that as a result of the
delay in resentencing he has lived under
any legal disability or been otherwise
prejudiced in a manner which he would
not have suffered if the illegality of his
original sentence had been remedied
sooner.
It appears, in brief, that the courts will not
look favorably on arguments that inmates who
were erroneously not sentenced to PRS cannot
or should not be resentenced now.
Parole Cases
Parole Denied
Sagaria v. New York State Board of Parole
(Supreme Court, NY Co., March 3, 2009)
The petitioner filed an Article 78 proceeding
to challenge the determination of the New York
State Division of Parole denying his release. He
argued that the Board disregarded his

Vol. 19, No. 2; Spring 2009

“impressive institutional record,” his “triumph
over substance abuse,” along with training,
work assignments, and other accomplishments,
when it denied parole.
The minutes of the parole hearing revealed
that the Board credited the petitioner with
having completed transitional services,
orientation, ASAT, and with working as a
plumber and a porter. The Board also noted
certificates on file for transitional service and
Group Industries and Group Ministries. The
minutes also showed that the Board considered
numerous positive letters, including positive
statements from the D.A., correction officers,
and family. The petitioner noted his recovery,
not having used drugs since 1997. The minutes
also showed, however, that the petitioner had
had several disciplinary infractions in prison.
The court noted that: “[A] reviewing court
may not substitute its judgment for that of the
agency’s determination but must decide if the
agency's decision is supported on any
reasonable basis. Once the court finds a rational
basis exists for the agency's determination, its
review is ended. The court may only declare an
agency's determination ‘arbitrary and
capricious’ if it finds that there is no rational
basis for the determination.”
Here, the court found that although the
Parole Board did not explicitly commend the
petitioner for his having overcome his drug
addiction, the fact that he had stopped using
drugs was made clear during the interview: the
Board specifically noted that his “institutional
programming demonstrates progress and
achievement, which is to [his] credit.” It also
stated that its decision was made only after
“careful review and deliberation of
[petitioner’s] record and interview.” But the
interview, according to the court, also “revealed
other considerations which the board had to
weigh and balance against the above.” Under
the circumstances, the court concluded, “it
cannot be said that the Board of Parole's

Page 15

decision was arbitrary or capricious” and,
therefore, its decision was affirmed.
Criminal Cases
Inmate Guilty
Contraband

of

Promoting

Prison

People v. Aponte, 874 N.Y.S.2d 646 (3d Dep’t
2009)
Penal Law § 205.25(2) provides that a
person confined in a detention facility is guilty
of promoting prison contraband in the first
degree when he or she “knowingly and
unlawfully makes, obtains or possesses any
dangerous contraband.” An item is dangerous
contraband if “its particular characteristics are
such that there is a substantial probability that
the item will be used in a manner that is likely
to cause death or other serious injury, to
facilitate an escape, or to bring about other
major threats to a detention facility's
institutional safety or security.” (See, People v.
Finley, 10 N.Y.3d 647 [2008]).
In this case, the defendant was incarcerated
at Ogdensburg Correctional Facility when a
correction officer found a sharpened piece of
metal in his pocket during a search. Found
guilty of promoting prison contraband in the
first degree, he appealed. In his appeal, he did
not dispute that the evidence was sufficient to
prove that the item in question was contraband
or that it was found on his person. He
challenged the evidence that the item was
dangerous.
The court rejected his appeal. The evidence
included, among other things, the testimony of
several correction officers who had observed the
contraband. Although there were some
variations in their description of the item, they
all testified that it was a sharpened piece of
metal. They also testified about the use of
similar items as weapons. The item itself was

Page 16

placed in evidence and was available for
inspection by the jury. The court found that the
evidence could “certainly lead a rational person
to conclude that the item was dangerous.”
Therefore, it concluded, the jury’s verdict
should not be disturbed.
Programming/Other
Denial of Temporary Release Was “Rational”
Matter of Herber v. Joy, 876 N.Y.S.2d 555
(3d Dep’t 2009)
The petitioner, a financial services provider
serving a prison term of 3 to 9 years for grand
larceny based upon his misappropriation of
client funds, was denied temporary release
based on the nature of his offense. He appealed
administratively and, after his appeal was
denied, filed an Article 78 proceeding. In it, he
argued that it was irrational for DOCS to deny
him temporary release based on the nature of
his offense: The offense was not a violent
felony, it did not make him statutorily ineligible
for temporary release, and he had an otherwise
positive disciplinary record.
The court rejected his claim, noting: “It is
well settled that participation in a temporary
release program is a privilege, not a right.” The
mere fact that an inmate is statutorily eligible
for temporary release does not automatically
entitle him or her to temporary release. Where,
as here, an inmate has been denied participation
in such a program, the scope of court review of
DOCS’ decision “is limited to whether the
denial violated any statutory requirement or
constitutional right of the inmate, and whether
the determination was affected by irrationality
bordering on impropriety.”
Here, the court found, “it was within
[DOCS’] discretion to consider petitioner's
positive institutional program history and
nevertheless conclude that the particular

Vol. 19, No. 2; Spring 2009

circumstances surrounding his crimes render
him unsuitable, at this time, for temporary
release. In particular, respondent rationally
based the denial upon the “serious and
sophisticated” nature of petitioner's offenses,
i.e., petitioner’s abuse of his relationship with
his clients by stealing large sums of their
money.”
Practice pointer: Decisions which the law
grants to the discretion of DOCS’
administrators--such as the decision in this case
to grant or deny temporary release to an inmate
who is statutorily eligible for it--are reviewed by
courts under a “rational basis test.” Under this
test, the court will not substitute its judgment for
that of the DOCS administrator. It asks only
whether there was some “rational basis” for the
administrator’s decision. If so, it will affirm the
decision.
As this case illustrates, it is very difficult for
an inmate to win a case that is being reviewed
under the “rational basis” test. What may
appear to the affected inmate to be irrational-such as denying temporary release to an inmate
who meets the statutory eligibility requirements
for the program and has an otherwise positive
institutional record--will likely be affirmed so
long as DOCS can articulate some “rational”
basis for its decision.
Inmate Entitled to “Violent Felony Override”
From Sentencing Court
People v. Cumberbatch, --- N.Y.S.2d ---Correction Law § 851(2) provides that no
person who is under sentence for a crime
involving:
“(a) infliction of serious physical injury upon
another as defined in the penal law or
(b) any other offense involving the use or
threatened use of a deadly weapon
may participate in a temporary release program
without the written approval of the

Vol. 19, No. 2; Spring 2009

commissioner [of the Department of
Correctional Services].”
DOCS has published a list of offenses which
would make an inmate presumptively ineligible
for temporary release under § 851(2) because
they involve infliction of serious physical injury
or the use or threatened use of a deadly weapon.
The list includes such offenses as Assault1st
and 2d, Burglary 1st and 2d, Robbery 1st and 2d,
and Criminal Possession and Criminal Use of a
Firearm. (For a full list, see, 7 NYCRR
§ 1900.4[c].)
Under certain circumstances, however, a
person may be convicted of one of the offenses
on the DOCS’ list without having been
convicted of a crime involving the infliction of
serious physical injury or the use or threatened
use of a deadly weapon. For example, one may
be convicted of Burglary 2d under Penal Law
§ 140.25(1) if, during the crime, he or she
caused physical injury to anyone not a
participant in the crime and/or used or
threatened the use of a deadly weapon. But, one
may also be convicted of Burglary 2d under
Penal Law § 140.25(2) merely by knowingly
entering or remaining unlawfully in a building,
if the building is a dwelling.
In such cases, DOCS rules state that if the
inmate can “provide the TRC chairperson with
a court-generated document or document
generated by the Office of the District Attorney
which establishes that his/her current
commitment is for a subdivision of one of the
above listed crimes which did not involve either
the use or threatened use of a deadly weapon or
a dangerous instrument or the infliction of a
serious physical injury as defined in the Penal
Law [he or she] shall be otherwise eligible for
temporary release.” This procedure is widely
known as obtaining a “Violent Felony
Override.”
The defendant in this case, an inmate, made
a motion to his sentencing court for an order

Page 17

granting him a “Violent Felony Override.”
Specifically, he requested a document stating
that, although he plead guilty to Attempted
Robbery in the Second Degree, a violent felony
offense, the particular subdivision to which his
plea was entered did not involve the use or
threatened use of a deadly weapon or a
dangerous instrument or the infliction of a
serious physical injury.
The court noted that no such document with
the title “Violent Felony Override” exists and
that there is no specific legal procedure for
obtaining one. Nevertheless, the court agreed
that the defendant’s conviction--in this case,
Attempted Robbery in the Second Degree under
Penal Law § 160.10(1)--did not involve the use
or threatened use of a dangerous instrument or
the infliction of serious physical injury. The
court ordered that its finding be treated as the
requisite “court-generated document”
contemplated by DOCS rules. It then
“hasten[ed] to note,” however, that its decision
did not mean that the defendant must be granted
temporary release. The court took “no position”
as to that issue, noting that the defendant’s
ultimate eligibility for temporary release would
be decided by DOCS, and that the applicable
rules and regulations for temporary release
“contain other provisions not addressed in the
defendant’s papers which might otherwise
disqualify him from obtaining the relief he
seeks.”
Practice pointer: It should not generally be
necessary to file a motion with your sentencing
court to obtain a “court-generated document”
stating that you were not convicted of an offense
which makes you ineligible for temporary
release. Your commitment sheet or your rap
sheet should show which section of the law you
were convicted under. This, in turn, should be
sufficient to establish whether you were
convicted of an offense which would make you
ineligible for temporary release.

Page 18

Court Finds Halva
Unreasonable”

Vol. 19, No. 2; Spring 2009

Confiscation

“Not

Frejomil v. Fischer, 872 N.Y.S.2d 746
(3d Dep’t 2009)
The petitioner, an inmate at Great Meadow
Correctional Facility in Washington County,
was denied a package of halva, a Middle
Eastern confection, that was packaged in a
two-pound plastic container. He filed a
grievance that was denied by the facility
superintendent. Upon review, the Central Office
Review Committee upheld that determination.
The petitioner filed an Article 78 proceeding.
The court affirmed DOCS’ decision. “There
can be no doubt but that correction facility
officials must be accorded wide latitude in their
efforts to insure the safety and security of
correctional facilities under their supervision
and, in that regard, have the right, albeit, the
obligation, to control what property is permitted
to be introduced into these facilities,” wrote the
court. “A determination regarding the
confiscation of impermissible items, if
rationally based, is entitled to deference and
should not be disturbed unless there has been a
showing that it was arbitrary and capricious.”
In this case, the court continued, a sergeant
at Great Meadow had confiscated the
two-pound plastic container because the
contents appeared to “be a paste,” which he
considered to be “a condiment like a spread”
and DOCS Directive No. 4911 provides that a
food item in this type of container could not be
admitted into correction facilities if it weighed
more than 16 ounces. The petitioner claimed
that the paste-like substance in the plastic
container was, in fact, halva--a candy, not a
condiment--and that the regulation establishing
the 16-ounce weight limitation therefore did not
apply. But, the court found, the container did
not identify the paste as a candy. The facts as
presented to the sergeant who confiscated it

established that the decision to do so was
rationally based; the container he was presented
with did not identify its contents beyond listing
its ingredients, weighed more than 16 ounces,
and contained a paste which was a food stuff.
These facts, taken together, establish that the
decision to confiscate this package, as well as
CORC's determination denying the petitioner's
grievance, were both based upon a rational
interpretation of Directive No. 4911.
Inmate, Denied Jogging Suit, Was Not
Discriminated Against
59 A.D.3d 798, 2009 N.Y. Slip Op. 01059
Matter of Keesh v. Smith, 872 N.Y.S.2d 743
(3d Dep’t 2009)
The petitioner, an inmate at Shawangunk
Correctional Facility in Ulster County, ordered
two jogging suits from an outside vendor. When
the jogging suits arrived at the facility and were
inspected, the tops were classified as sweatshirts
with zippers, which are prohibited under DOCS’
Directive No. 4911 (V) (Attachment D) (E) (4)
(d). The petitioner thereafter filed a grievance
contending, among other things, that he
arbitrarily was denied the jogging suit tops
based upon alleged religious discrimination.
CORC denied his grievance, and he commenced
an Article 78 proceeding.
The court dismissed his claim. To prevail,
the court wrote, the petitioner would have to
demonstrate that CORC’s determination was
irrational or arbitrary and capricious. “This,” the
court found, “he failed to do.” The record
contained no evidence to support the
petitioner’s claims of religious discrimination,
the directive at issue plainly imposed a “no
zippers” restriction upon sweatshirts and
sweatpants, and the court could “perceive no
irrationality in CORC’s determination that a

Vol. 19, No. 2; Spring 2009

jogging suit top qualifies as a zippered
sweatshirt.”
Inmate’s Claim That DOCS’ Negligence
Caused Him to Fall Down Stairs Will Go to
Trial
Reid v. State of New York, 875 N.Y.S.2d 641
(3d Dep’t 2009)
The claimant, an inmate at Southport
Correctional Facility, brought a negligence
action against the State contending that, while
being housed in the Special Housing Unit, he
slipped and fell on wet stairs as he was being
transported to the recreation yard. Following
discovery, both parties moved for summary
judgment--a decision without a trial--on the
issue of liability. The Court of Claims denied
the parties’ motions and the claimant appealed.
The Appellate Division affirmed the lower
court. For the claimant to prevail on his
summary judgment motion based on his
allegation that a dangerous condition existed on
the stairway that caused him to fall, he would
have to establish, as a matter of law, that
defendant “either created [the] dangerous
condition or…had actual or constructive notice”
of it prior to his fall. The evidence presented,
however, showed that it was an open question
whether the stairs were wet at the time of the
claimant's fall and, if they were, whether DOCS

Page 19

had notice of the existence of this condition.
Consequently, trial was required on that issue.
The claimant’s claim that DOCS was
negligent by requiring him to descend the stairs
without an escort while his hands were
handcuffed in front secured to his body by a
waist chain also required a trial. Although the
State owes inmates “a duty to use reasonable
care to protect its inmates from foreseeable risks
of harm,” handcuffing an inmate in this manner
is required when transporting Special Housing
Unit inmates (see 7 NYCRR 305.3[b]). Also,
although the claimant presented evidence that,
as restrained, he was not able to reach the
handrail on the staircase to steady himself once
he slipped or made a misstep on the stairs and
began to fall, a review of the videotape made
while the claimant was being transported does
not establish that, had he not been restrained, he
would have been able to grasp the handrail on
the staircase once he began to fall. Moreover,
DOCS submitted videotaped evidence
demonstrating that individuals who were
handcuffed like the claimant could grasp the
handrail while descending the staircase. Under
the circumstances, the court concluded that the
question of whether DOCS breached its duty to
protect the claimant from foreseeable harm by
the manner in which he was restrained and
whether the restraints employed played a role in
causing him to fall was one which should go to
trial.

Page 20

Vol. 19, No. 2; Spring 2009

Pro Se Practice

QUESTIONS ABOUT TIME SERVED ON
ILLEGAL POST-RELEASE SUPERVISION

As many inmates are aware, a number of
courts over the last several years, including the
Second Circuit Court of Appeals and the New
York State Court of Appeals, have held that a
period of post-release supervision (“PRS”)
cannot be administratively added to a
determinate sentence by DOCS, even though it
is required by law to be part of such sentences.
It must, instead, be added by a judge, at
sentencing. Moreover, these courts have ruled,
a period of Post-Release Supervision that was
not judicially imposed is invalid, or “null and
void.” See, generally, Earley v Murray, 451 F3d
71 (2nd Cir 2006); Garner v. New York State
Department of Correctional Services, 10 NY3d
358 (2008).
In response to these rulings, the State passed
legislation in 2008 requiring that inmates who
had been sentenced to determinate terms since
1998 without PRS be resentenced. Under the
legislation, the sentencing courts were
authorized to impose a new sentence with PRS
or, in certain circumstances, affirm the original
sentence, without PRS.
Questions have arisen, however, about the
consequences of these new sentences for
inmates who may have served prison time for a
violation of PRS prior to being resentenced.
What effect does the resentencing have on the
time served on the now-illegal PRS? Does that
time “count”? If not, is there some remedy
available for the fact that the inmate had to
serve it? Can the time served, for instance, be
credited to some other sentence? Or, can the
inmate get money damages for it?

These questions have not yet been fully
resolved by the courts. Nevertheless, we attempt
to present a guide to the answers that have
emerged to date.
New York State first required that inmates
sentenced to determinate (“flat”) terms serve a
period of PRS after their release from prison in
1998. Under the law, the PRS period begins as
soon as an inmate with such a sentence is
released from prison.
If an inmate is released from prison to PRS
prior to the expiration of the term of
incarceration (for example, at his or her merit
eligibility or conditional release date), the term
of incarceration is interrupted. Time owed to the
term of incarceration is “held in abeyance,”
pending completion of PRS.
If the period of PRS is successfully
completed, the time served on PRS is credited
to time owed to the incarcerative term, in most
cases eliminating it. For example, if an inmate
owed one year to his or her term of
incarceration and served three years of PRS,
once the three years PRS had been completed,
it would be credited to the one year of
incarceration, eliminating it.
If PRS is revoked before being completed,
the period of PRS is interrupted and any time
served on the revocation, either in a local jail or
in prison, is credited, first, to any time owed on
the term of incarceration and, second, to time
owed to PRS.
If PRS is revoked and the inmate is returned
to prison with a new consecutive sentence, the
time owed to the term of incarceration on the
prior sentence is added to the new sentence.

Vol. 19, No. 2; Spring 2009

But what happens if PRS has been revoked,
but the inmate is then subsequently resentenced
on the grounds that PRS was not properly
imposed--i.e., was illegal? That is the subject of
the rest of this memo.
As we see it, there are several possible
scenarios:
•

Inmate resentenced to original sentence with
PRS added, but court does not specify what
effect the new sentence will have with
respect to any violation of PRS that
occurred prior to resentencing.

In these cases, DOCS takes the view that
resentencing “rehabilitates” the PRS violation.
This interpretation can have the effect of
lengthening the period of PRS an inmate must
serve. For example, if an inmate served six
months in prison on a PRS revocation in 2005,
the time served was credited, first, to time owed
to the term of incarceration (if any) while the
period of PRS was interrupted. If the PRS
violation is “rehabilitated” by resentencing, then
the inmate will owe six months of PRS that he
or she would not owe if the violation were
considered “null and void.”
At least one appellate court, however, has
disagreed with DOCS’ view. In State v. Randy
M., 870 N.Y.S.2d 490 (3d Dep’t 2008), the
court considered the case of an individual who
was originally sentenced without judicial PRS.
He was conditionally released, returned to
DOCS as a PRS violator, and then subsequently
resentenced to his original term, with PRS. The
question before the court was whether he could
still be held in prison as a PRS violator.
The court held that he could not. It found
that an inmate cannot be incarcerated for
violating the terms of PRS during a time when
PRS was not properly imposed. The later
resentencing, the court held, “did not operate
retroactively to cure the illegal imposition of
[PRS], meaning [the inmate] could not validly

Page 21

be punished for violating the terms of post
release supervision until after it was imposed by
a court.”
Under the reasoning of the Randy M. case,
therefore, a resentencing should eliminate all
consequences of a violation of PRS that
occurred before the resentencing. See, also,
People ex rel Benton v. Warden, 20 Misc.3d
516 (Sup. Ct., Bronx Co., 2008) (same).
•

Inmate resentenced to original sentence with
PRS added, but court orders that any PRS
revocation that occurred prior to
resentencing be considered null and void.

In these circumstances, DOCS has been
obeying the courts’ direct order that the PRS
revocation should not be considered and it is
recalculating sentences accordingly.
•

Inmate resentenced without PRS.

In these circumstances, DOCS will consider
any PRS violation that occurred prior to the
resentencing to be null and void and should
recalculate the sentence accordingly.
Whether a period of time served in prison on
the revocation of illegal PRS is counted does
not change the fact that it still had to be served.
The question then arises: Can an inmate receive
compensation for having to serve time on a
now-illegal period of PRS?
Compensation might take one of two
possible forms. One is credit for the time
served, either against the sentence on which the
time was served or against some subsequent
sentence. The other is money damages.
1. Can I get credit for time served on illegal
PRS?
If you are in prison on the same sentence on
which you served the illegal PRS term, the time
served on any revocation that occurred prior to

Page 22

resentencing should already be credited to the
incarceration period of your sentence.
Therefore, there is no additional credit to
receive.
If, however, you are serving a new sentence
for a latter offense, you could benefit by
receiving credit for time serve on a revocation
of illegal PRS on a past sentence.
Unfortunately, it is unlikely a court would order
such a credit. For example, in Hawkins v.
Coughlin, 72 N.Y.2d 158 (1988), a court held
that an inmate was not entitled to credit time
served on a sentence, which was later held to be
unconstitutional, against an unrelated sentence
imposed later.
2. Can I get money damages for time served
on illegal PRS?
There are at least two kinds of lawsuits that
could potentially be brought to obtain money
damages for time served on illegally imposed
PRS. The first is a federal civil rights action,
under 42 USC § 1983. The second is a claim for
“false imprisonment” in the State Court of
Claims. Unfortunately, both present numerous
obstacles.
A. A federal civil rights claim
In Earley v. Murray, the Second Circuit
Court of Appeals held that the administrative
imposition of PRS violated the due process
clause of the federal constitution. Forty-two
U.S.C. § 1983 allows persons to sue state
officials in federal court for money damages for
injuries caused by a violations of civil rights.
Thus, an inmate could sue state officials for
damages in federal court that resulted from the
decision to administratively add PRS to their
sentence, if the decision caused them some
injury--like, for instance, causing them to serve
time in a local jail or state prison due to a
revocation of the illegally imposed PRS.

Vol. 19, No. 2; Spring 2009

There are numerous difficulties associated
with such claims, however. First, if the inmate
is currently in prison, he or she will be subject
to the Prison Litigation Reform Act, or PLRA.
Under the PLRA, you must exhaust
administrative remedies before you can file a
1983 action. What does it mean to exhaust
administrative remedies in the PRS context?
Does being resentenced constitute exhaustion?
Or, must you also file and exhaust an
administrative grievance? These question have
not yet been addressed by the courts.
A potentially more significant problem is
the federal doctrine of “qualified” or “good
faith” immunity. Under the qualified immunity
doctrine, state officials are immune from the
consequences of unconstitutional acts in federal
court if, at the time they acted, the
constitutionality of their acts was not “clearly
established.”
This could be particularly difficult to
overcome in the PRS context because the first
important holding, that administratively added
PRS was unconstitutional, was not made until
2006. Any decision to add PRS to your sentence
or revoke PRS made prior to 2006 might be
subject to qualified immunity. At least one
federal district court judge has already so-held.
See, Scott v. Fischer, (S.D.N.Y., March 30,
2009) (Buchwald, J.).
On the other hand, the Earley court relied
heavily on a Supreme Court decision issued in
the 1930s. Thus, there should be at least an
arguable claim that state officials should have
been aware that their actions were
unconstitutional before Earley.
One option that could be considered is
joining the federal class action lawsuit seeking
damages for persons who were subject to
detention as a result of illegally imposed PRS
filed by the law firm of Emery, Celli,
Brinckerhoff & Abady LLP. To learn more
about this lawsuit and whether you are eligible
to participate in it, write to:

Vol. 19, No. 2; Spring 2009

Matt Brinckerhoff, Esq.
Emery, Celli, Brinckerhoff & Abady
LLP
75 Rockefeller Plaza, 20th Floor
New York, NY 10019
B. A State Court of Claims Action
If you decide not to file a federal civil rights
claim, the other option would be to file a state
claim in the State Court of Claims for wrongful
confinement. In order to state a claim for
wrongful confinement, you must show that, “(1)
the defendant intended to confine him, (2) the
plaintiff was conscious of the confinement, (3)
the [claimant] did not consent to the
confinement and (4) the confinement was not
otherwise privileged.”
At least one Court of Claims judge has
found the State liable to someone who served
time on illegally imposed PRS under this
standard. In Donald v. State of New York,
Claim # 115414 (February 5, 2009) (Milano, J.),
the court held: “Because the imposition of
post-release supervision on claimant by DOCS
was a legal nullity, claimant could not be
lawfully confined for violating its terms. Any
period of claimant’s confinement caused by
DOCS’ unlawful and extra-jurisdictional
imposition of the post-release supervision is not
privileged and is actionable by claimant.”
A different Court of Claims judge, however,
has come to the opposite conclusion. In Nazario
v. State, Claim # 114318 (February 27, 2009)
(Collins, J.), the court noted: “It has long been
recognized that public officials regardless of
their job title are entitled to absolute immunity
for discretionary or quasi-judicial
determinations involving the construction and
application of governing law in the performance
of their official functions.” Applying that
principle, the court found that since the
claimant’s parole revocation took place at a
time when “both the plain language of the

Page 23

statute and the then prevailing decisional law
addressed PRS as an integral part of a
determinate sentence arising by operation of
law,” any decision by DOCS to add PRS
administratively when the sentencing court had
failed to do so “was within the scope of
discretion and responsibilities of the office and
all the circumstances as they reasonably
appeared at the time of the action on which
liability is sought to be based.”
That hindsight proved this discretionary
determination erroneous provides no
basis for defeating the privilege….
While DOCS obviously has no
discretion to alter a sentence, its
interpretation of the statute as
mandating postrelease supervision for
those individuals meeting the statutory
criteria, and the subsequent
determination to administratively apply
a period of postrelease supervision to all
such individuals, though incorrect in
hindsight, was a discretionary
quasi-judicial function for which DOCS
is entitled to absolute immunity.
Another difficulty with a Court of Claims
action is the Statute of Limitations. The Statute
of Limitations (or “SOL”) for a wrongful
confinement lawsuit in New York is one year,
measured from the date the claimant was
released from the wrongful confinement. To
commence a suit in the Court of Claims, a
claimant must either file a “Notice of Intent” to
sue within 90 days of the date the SOL starts
running or seek permission to file a late claim
within the period of the SOL. Thus, an inmate
wanting to sue over a period of imprisonment
under illegal PRS from which he or she was
released on November 1, 2005 would have to
file a Notice of Intent by February 1, 2006 (and
the claim itself by November 1, 2006) or file a

Page 24

request to file a late claim, with the claim itself,
by November 1, 2006.
Some have argued that the Statute of
Limitations for wrongful confinement in these
circumstances should not start to run until the
State Court of Appeals had decided, in Garner,
that it was illegal for DOCS to administratively
impose PRS. Prior to that date, the argument
goes, there was no legal basis for a lawsuit and
there is a general rule that a Statute of
Limitations does not run until there is a legal
right to relief. “Stated another way, accrual
occurs when the claim becomes enforceable,
i.e., when all elements of the tort can be
truthfully alleged in a complaint.” Kronos, Inc.
v. AVX Corp., 81 N.Y.2d 90, 1993. In Britt v.
Legal Aid Soc., Inc., 95 N.Y.2d 443 (2000), for
instance, the Court held that a legal malpractice
claim “could not accrue while plaintiff's
conviction remained a jural fact.” Id at 447.
That kind of reasoning would seem applicable
here: The wrongful confinement claim could not
have “accrued” before it was established, in
Garner, that it was “wrongful.”

Vol. 19, No. 2; Spring 2009

But even granting this argument, Garner
was decided in April of 2008. If the SOL were
extended to that date, any lawsuit would have to
be filed by April of 2009.
Furthermore, at least one Court of Claims
judge has rejected that argument. In Vazquez v.
State of New York, Claim # 115574
(February 10, 2009), the court (Collins, J.)
found that “[n]othing in… Britt v. Legal Aid
Socy. requires a different result [other than
dismissal of the claim].” “As damages arising
from false imprisonment are reasonably
ascertainable upon the release from
confinement, it is on this date that a cause of
action for false imprisonment accrues. The
claim served and filed on July 24, 2008 was
therefore untimely as to both periods of alleged
false imprisonment, which ended on July 21,
2004 and March 13, 2008, respectively.”
Conclusion: Although a claim for damages
for time served on illegal PRS is possible, in
both federal and state courts, inmates making
such claims will have to overcome significant
legal barriers in order to prevail.

Vol. 19, No. 2; Spring 2009

Page 25

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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Page 26

Vol. 19, No. 2; Spring 2009

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, MidOrange, 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.

…more prisons on next page

Vol. 19, No. 2; Spring 2009

Page 27

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.

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