Vol. 19, No. 4; Fall 2009 Published by Prisoners’ Legal Services of New York

NEW LAW MANDATES ADDITIONAL OVERSIGHT OF
PRISON HEALTHCARE
Law Follows Critical Report
Governor Patterson signed a new law this past
September requiring the State Department of Health
(DOH) to oversee DOCS’ provision of medical care
to prisoners with HIV and Hepatitis C. The
legislation took immediate effect.
The law requires the DOH to conduct annual
reviews of the HIV and Hepatitis C care in state and
local correctional facilities and authorizes DOH to
mandate improvements to make correctional
healthcare meet community standards of care. It also
requires the DOH to publish annual reports on the
state of correctional healthcare.
Of New York’s 60,000 inmates, almost 4,000
are infected with HIV, representing nearly 20% of
all HIV-infected inmates in the country. New York
prisons also confine 8,400 inmates infected with
Hepatitis C (HCV), a rate eight times greater than in
the general public.
Before the passage of the new law, medical
facilities in prisons and jails were the only substantial
public health institutions in the state exempt from
mandatory, independent assessments by DOH.
The law “represents a significant step forward in
making our prison system more transparent and
accountable and providing needed medical services

to a highly vulnerable population,” said Jack Beck,
Director of the Prison Visiting Project at the
Correctional Association of New York.
The law comes on the heels of a new report
critical of the quality of health care services provided
by DOCS. The report, issued by the Correctional
Association, is titled Health Care in New York
Prisons, 2004-2007. It was based on observations
made at 19 prisons and an analysis
…healthcare article continued on page 4

Also Inside…
DOCS’ Crackdown on UCC
Filings Continues . . . . . . . . . . . . . . Page 6
Court Reverses Parole Denial:
Finds Parole Relied Exclusively
on Seriousness of Crime . . . . . . . . . Page 11
State Liable for Imposing
Post-Release Supervision
Administratively . . . . . . . . . . . . . . Page 14
Subscribe to Pro Se! See Page 3 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. 4; Fall 2009

A Me s s ag e fro m th e Exe c u tiv e Dire c to r,
Kare n Mu rtag h -Mo n ks
In this issue of Pro Se, we report on the “Anti-Shackling” bill. This legislation, signed
into law by Governor Paterson on August 26, 2009, prohibits the shackling of women
prisoners during labor and delivery unless the woman poses a major flight risk. In the
Summer 2008 issue of Pro Se, I urged a prohibition on the horrific practice of shackling
women prisoners during childbirth. In furtherance of our commitment to ending this practice,
PLS signed an amicus brief that was submitted in Nelson v. Norris, 553 F.3d 958 (8th Cir.
2008), a case raising the issue of whether it was clearly established that the 8th Amendment’s
ban on cruel and unusual punishment prohibited the shackling of women during childbirth.
The Plaintiff in Nelson alleged that forcing her to go through labor with both legs shackled
to her hospital bed violated the 8th Amendment. The defendants argued that in 2003, when
they shackled the plaintiff to her bed, the law was not clearly established that their conduct
violated the 8th Amendment, and thus they should not be held legally responsible for the
violation of the plaintiff’s rights. On the heels of Governor Paterson’s adoption of the antishackling law, the Eighth Circuit Court of Appeals issued its decision in the Nelson case,
finding that at the time that Plaintiff Nelson was shackled to the bed, it was well established
that the shackling during childbirth was cruel and unusual punishment and holding that the
defendant was not entitled to qualified immunity. Nelson v. Norris, ___F.3d ___, 2009 WL
3151208 (8th Cir. Oct. 2, 2009).
In the summer of 2008, when Pro Se first addressed the issue of shackling women
during childbirth, only three states--California, Illinois, and Vermont--had laws banning the
practice and the Eighth Circuit Court of Appeals had taken the position that in 2003, it was
not clearly established that the practice violated the 8th Amendment. A little more than a year
later, three more states have barred the practice of shackling women during childbirth, Texas,
New Mexico and New York, and the Eighth Circuit has partially reversed itself. This is
progress. This is how we as a society demonstrate that we have become more humane. It
demonstrates what the United States Supreme Court calls “evolving standards of decency.”
With so far to go on the human rights front, it is easy to lose sight of where we have
been. Although progress is often slow, when we do move forward, even when it is by, or
because of, ‘baby steps,’ it is important that we acknowledge that progress. Over the last
several years, we have made significant advances. We have adopted legislation prohibiting
the placement of mentally ill individuals in solitary confinement. We have established
procedural and substantive rights at disciplinary hearings. As a result of putting cameras in
prisons, better training of officers, and more rigorous reporting requirements, the number of
excessive force incidents has decreased. And most recently, we, as a society, have decided
that we will no longer tolerate the shackling of women prisoners during childbirth. Each of
these steps has moved us forward on the road to becoming a more civilized society.
Executive Director’s message continues…

Vol. 19, No. 4; Fall 2009

Page 3

…Executive Director’s message continued

Our legal system plays a critical role in setting the standards that reflect our progress
toward becoming a truly civilized society. In the context of prisoners’ rights, the foundation
for these standards is the 8th Amendment’s prohibition on the use of cruel and unusual
punishment. Over a hundred years ago, the Supreme Court wisely noted that the scope of the
cruel and unusual punishment clause is defined by public opinion and, “as the public becomes
more enlightened by a humane justice,” the scope broadens. Ex Parte Wilson, 114 U.S. 417,
429 (1885). Thus, the slowly evolving societal standards of decency dictate the courts’ views
on when a prisoner has been subjected to cruel and unusual punishment.
My hope is that one day in the near future, our standards of decency will evolve to
the point that the law will prohibit placing any prisoner in solitary confinement, mandate the
provision of education to all prisoners, implement policies and practices that lead to
rehabilitation and successful re-entry, acknowledge the necessity of maintaining family ties,
abolish the felony disenfranchisement laws, prohibit the use of “restricted diets,” and
broaden the use of medical parole. When these reforms are firmly in place, we will know that
we are well on the way to becoming a truly enlightened society.

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the PLS website at: www.plsny.org

Vol. 19, No. 4; Fall 2009

Page 4
…healthcare article continued from page 1

of system-wide data, inmate grievances,
specialty care services, and DOCS’s quality
improvement program. It concludes that
although DOCS has made progress in improving
prison healthcare over the past decade,
significant problems exist at many prisons.
Among the problems identified were:
(1) wide variations in the quality of care from
prison to prison;
(2) staff shortages;
(3) inadequate routine healthcare;
(4) gaps in chronic diseases care;
(5) inconsistencies with specialty care services;
(6) inadequate access to medications; and
(7) absence of outside monitoring of the
healthcare.
The Correctional Association report
highlighted the following problems:
Variability in Care From Prison to Prison
The report found wide variations in quality
of care from prison to prison. At some prisons
found to provide low-quality care, the problem
was rooted in a lack of resources. At others, the
poor quality of medical staff were the heart of
the problem. According to the report, certain
medical care providers were either unable, due
to inadequate training or expertise, or unwilling
to respond fully to inmates’ medical needs or to
promptly follow up on medical problems.
“At these institutions, the poor quality of the
medical personnel compromises the delivery of
healthcare,” said Robert Gangi, Executive
Director of the Correctional Association, in a
press release. “Overall, our report describes
breakdowns in services that can seriously
endanger the lives of inmates housed in these
facilities. Better scrutiny of care and an effective
system of accountability will help identify where
changes in policies, practices or staff are needed
at a system-wide or facility level. These steps
will save the state money and save lives.”
Staff Shortages The report states that
although DOCS has reduced system-wide
vacancies for nurses and doctors during the last
few years, high vacancy rates still exist for

physician assistants (14%) and pharmacists
(13%), primarily due to the low salary rates for
these positions. Some prisons, the report found,
have significant vacancies for all staff positions.
For example, in 2007, Great Meadow
Correctional Facility was missing 40% of its
doctors, half of its physician assistants and 30%
of its nurses. Moreover, some medical vacancies
have gone unfilled for many months or years due
to salary limitations.
Even at full staffing, the report found, some
prisons do not have enough medical personnel.
For example, some facilities have only one
clinical provider–either a doctor, physician
assistant, or nurse practitioner–for every 600 to
800 inmates, whereas the system-wide average
is one provider for 400 inmates. According to
the report, staff shortages have had and continue
to have a significant adverse impact on patients’
access to services and the quality of care they
receive.
Inadequate Routine Healthcare
At some prisons, the report states, there was
inadequate access to routine healthcare such as
examinations by nurses for assessments and
appointments with clinic providers. Inmates, the
report states, often wait weeks or months for a
routine appointment with a physician at some
prisons. At Attica there was an 11-page waiting
list for the doctors. Inmates at many prisons
reported cursory, inadequate, and sometimes
disrespectful care once they were seen by the
medical staff. At several prisons—such as
Auburn, Upstate, and Wyoming—a majority of
inmates reported that the care provided by their
doctors was poor.
Gaps in Chronic Diseases Care
The report found that the care provided to
inmates with chronic diseases (e.g., HIV,
Hepatitis C, asthma, diabetes, hypertension, etc.)
varied greatly within DOCS. Although DOCS
has attempted to standardize policies and
practices through the promulgation of practice
guidelines for many of these illnesses, some
prisons fail to fully conform to the clinical
standards. For instance, while AIDS deaths have
declined and many HIV-infected inmates are

Vol. 19, No. 4; Fall 2009

doing well on medications provided by DOCS,
not all HIV-infected inmates receive appropriate
care: many go without treatment simply because
DOCS has identified less than half of its
HIV-infected population. For HIV-infected
inmates known to DOCS, care throughout the
Department varies greatly, with significantly
different rates of treatment for HIV-infected
inmates and with some prisons rarely referring
HIV-infected inmates to infectious disease
specialists. For example, in northern New York
prisons, the report found, HIV-infected inmates
see an infectious disease specialist at one-tenth
the rate of prisons in the southern region of the
state.
Hepatitis C (HCV) is also a serious problem
in the prisons, according to the report. An
estimated 13% of the men and 22% of the
women inmates are infected. Although DOCS
has improved the identification of its
HCV-infected population, approximately 30% or
more of HCV-infected inmates are unidentified.
More importantly, the report states, the care
provided to HCV-infected inmates in different
prisons varies significantly, with inadequate
documentation of chronic HCV-infections, great
variability in access to diagnostic specialists and
procedures, and significant differences in rates of
HCV treatment. Although DOCS has increased
the number of inmates receiving effective HCV
treatment, it is providing therapy to only 6% of
its HCV-infected inmates.
Inconsistencies with Specialty Care Services
Although DOCS sends thousands of inmates
to specialists throughout the state for
consultations, the utilization of these services
varies greatly among the prisons, the report
found, and a consistent inmate criticism of prison
health care was that DOCS does not adequately
follow up on specialists’ recommendations.
Inadequate Access to Medications
Inmates reported several problems with the
medication delivery system at certain prisons,
including: running out of essential medications
for chronic conditions; failure to provide

Page 5

inmates with sufficient information about
medications they are taking and their potential
side effects; and failure to provide medications
in a confidential manner.
Absence of Outside Monitoring for
Healthcare Within DOCS Inadequate Access to
Medications
According to the report, monitoring of
healthcare by an outside agency is an essential
component of good medical practice. Although
DOCS has implemented a Continuous Quality
Improvement Program to monitor medical care
in the prisons that attempts to assess compliance
with its practice guidelines, the report found that
more needs to be done to improve prison
practices. The report specifically recommends
that the Department of Health step in to monitor
t he qua lit y c a r e w it hin DOCS– a
recommendation which has now been partially
met by the DOH oversight law.
Practice pointer: The 137-page
Correctional Association report contains
numerous additional recommendations for
addressing problems with DOCS’ Health Care
services. A copy can be obtained by writing to
the Correctional Association of New York,
2090 Adam Clayton Powell Blvd., Suite 200,
New York, NY 10027.

News and Briefs

Governor Signs Anti-Shackling Bill
Governor Paterson signed legislation this Fall
outlawing the use of shackles on pregnant
inmates during labor and after delivery.
The Anti-Shackling Bill forbids the use of
restraints on incarcerated women during labor
and post-delivery recovery unless the woman is
a flight risk, and restricts the use of restraints
during transport to and from the hospital.
Sponsored by Assembly member Nick Perry and
Senator Velmanette Montgomery, the bill
passed unanimously in the Senate and
overwhelmingly in the Assembly on May 20.

Page 6

Vol. 19, No. 4; Fall 2009

Throughout the summer, advocates held
demonstrations outside the Governor’s
Manhattan office and pressured Gov. Paterson
for a response.
Shackling women in labor is a degrading and
unnecessary practice that puts the health and
lives of women and babies at risk, said the bill’s
sponsors. The new law “moves New York one
step closer to making sure that women in prison
receive a minimum level of dignity, safety and
compassionate care,” said Tamar Kraft-Stolar,
Director of the Correctional Association’s
Women in Prison Project.
“Times” Editorializes
Litigation Reform Act

Against

Prison

In its September 24, 2009 edition, The New
York Times called on Congress to reform the
“Prison Litigation Reform Act” of 1996
(PLRA). We reprint the editorial, below.
Prisoners’ Rights
In 1996, Congress passed a law that made it
much harder for inmates to challenge abusive
treatment. It has contributed significantly to the
bad conditions—including the desperate
overcrowding—that prevail today. The law must
be fixed.
In the name of clamping down on frivolous
lawsuits, the Prison Litigation Reform Act
barred prisoners from suing prisons and jails
unless they could show that they had suffered a
physical injury. Prison officials have used this
requirement to block lawsuits challenging all
sorts of horrific conditions, including sexual
abuse.
The law also requires inmates to present
their claims to prison officials before filing a suit.
The prisons set the rules for those grievance
procedures, notes Stephen Bright, the president
of the Southern Center for Human Rights, and
they have an incentive to make the rules as
complicated as possible, so prisoners will not be
able to sue. “That has become the main
purpose of many grievance systems,” Mr. Bright
told Congress last year.

In the last Congress, Representative Robert
Scott, Democrat of Virginia, sponsored the
Prison Abuse Remedies Act. It would have
eliminated the physical injury requirement and
made it harder for prison officials to get suits
dismissed for failure to exhaust grievance
procedures. It would have exempted juveniles,
who are especially vulnerable to abuse, from the
law’s restrictions.
The bill’s supporters need to try again this
year. Conditions in the nation’s overcrowded
prisons are becoming increasingly dangerous;
recently, there have been major riots in
California and Kentucky. Prisoner lawsuits are a
way of reining in the worst abuses, which
contribute to prison riots and other violence.
The main reason to pass the new law,
though, is human decency. The only way to
ensure that inmates are not mistreated is to
guarantee them a fair opportunity to bring their
legitimate complaints to court.
DOCS Continues Crack-Down on Fraudulent
UCC Filings
In the last issue of Pro Se, we reported that
DOCS had defined various U.C.C. related
materials as contraband. These include U.C.C.
filing forms and documents referencing such
things as “an inmate’s ‘strawman’ ‘House Joint
Resolution 192 of 1933,’ the ‘Redemptive
Process,’ ‘Acceptance for Value,’ or document
indicating copyright of an inmate’s name,”
without the prior written authorization of a
facility superintendent. DOCS also amended its
mail regulations to provide that mail to or from
the Secretary of State, Department of State,
corporation division or Uniform Commercial
Code Unit of any state, may be subject to
inspection and may be withheld unless the inmate
is able to provide the superintendent with
specific, legitimate legal reasons why such
materials are required.
DOCS also amended its disciplinary rules to
permit the disciplining of inmates who possess
U.C.C. related materials or engage in fraudulent
U.C.C. filing activities. Specifically, DOCS has

Vol. 19, No. 4; Fall 2009

added a new disciplinary rule 107.20, which
states:
An inmate shall not file or record any
document or instrument of any
description which purports to create a
lien or record a security interest of any
kind against the person or property of
any officer or employee of the
Department, the State of New York or
the United States absent prior written
authorization from the superintendent
or a court order authorizing such filing.
It also added a new rule 113.30, stating:
An inmate shall not possess any Uniform
Commercial Code (UCC) Article 9 form,
including but not limited to any financing
statement (UCC1, UCC1Ad, UCC1AP,
UCC3, U CC3Ad, UCC3AP,
UCC1CAd), correction statement
(UCC5) or information request
(UCC11), whether printed, copied, typed
or hand written, or any document
concerning a scheme involving an
inmate’s ‘‘strawman,’’ “House Joint
Resolution 19 of 1933,’’ the
‘‘Redemptive Process,’’ ‘‘Acceptance
for Value’’ presentments or documents
indicating copyright or attempted
copyright of an inmate's name absent
prior written authorization from the
superintendent.
Justifying the new regulations DOCS wrote,
in the State Register:
This…rule is in response to a scheme
whereby inmates have fraudulently
utilized provisions of the Uniform
Commercial Code (UCC) to file baseless
liens with the Secretary of State against
Department employees and others.
Under this scheme, an inmate asserts a
‘‘copyright’’ over his or her name;

Page 7

files a UCC-1 financing statement that
asserts a claim over the inmate’s
‘‘property’’, which in this case is
him/herself. The inmate then makes
demands to be compensated for the
unauthorized use of his or her property
(i.e., every time an officer writes down the
‘‘copyrighted’’ name) or for the illegal
holding of his or her property, which in
this case is the inmate him/herself. When
the demands are ignored, the inmate
claims a right to assert a UCC lien against
the staff member to whom the demand
was made. This has the potential to have a
severe detrimental effect on the
individual's credit or to cause them
significant financial hardship. Since the
adoption of the original emergency rule,
the Department has discovered prohibited
materials in the possession of at least forty
(40) inmates at nineteen (19) of the
Department's facilities. In each case the
documents were consistent with the bogus
filings associated with the “Redemptive
Process’’ scheme that may lead to the
filing of a false lien.
Practice pointer: Many inmates have written
to Prisoners’ Legal Services to ask whether
these new rules are legal.
Restrictions on access to U.C.C. materials
come in response to the so-called “redemption
theory”--a belief that the State has legal
authority only over an individual’s “strawman”
and lacks authority over “real” persons. The
theory holds that the efforts of state officials to
incarcerate “real” persons--or even, in some
cases, to use their names--may subject them to
enormous fines, against which a U.C.C. lien
may be filed.
Although there is no merit to this bizarre
and complex theory, it has spread widely
through prison systems over the past several
years, prompting numerous inmates to file
frivolous or fraudulent liens against state
officials. In the last issue of Pro Se, for
example, we reported the case of Matter of
Fludd v. DOCS, 879 N.Y.S.2d 606 (3d Dep’t

Page 8

2009), which involved a New York inmate who
was disciplined for filing numerous fraudulent
liens against various state officials.
Against this background, we believe most
courts would uphold the new regulations.
Prison rules imposing restrictions on
constitutional rights – in this case, the right of
access to the courts – are evaluated under a
“reasonableness” test, first set forth in Turner
v. Safley, 482 U.S. 78 (1987). Under the Turner
test, a court looks at whether there is a “valid,
rational connection” between the challenged
prison regulation and the State interests put
forth to justify it.” If so, it considers, “(1)
whether inmates retain alternative means of
exercising the circumscribed right… (2) the
burden on prison resources that would be
imposed by accommodating the right and (3)
whether there are alternatives to the regulation
that fully accommodate the prisoner's rights at
de minimis cost to valid penological
objectives.”
In Monroe v. Beard, 536 F.3d 198 (3d Cir.
2008) a federal appeals court analyzed
Pennsylvania regulations restricting access to
U.C.C. materials which are similar to those
recently enacted by New York DOCS. The court
found them to be constitutional. It found, first,
that they were justified by a rise in criminal
cases across the country involving inmates filing
fraudulent liens against public officials, as well
as several instances in Pennsylvania in which
fraudulent liens had been filed against state
officials.
It then analyzed whether the rules met the
three additional “Turner” standards and found
that they did. Inmates still have a wide range of
alternative means of accessing the courts for
legitimate purposes “ that do not pertain to the
filing of fraudulent [U.C.C.] liens,” the court
found. Moreover, accommodating an inmate’s
right to have access to U.C.C. materials “may

The Ithaca Regional Office of PLS has
moved. Please see the listing of PLS office
addresses at the end of this issue for the
new address.

Vol. 19, No. 4; Fall 2009

encourage them to harass, intimidate or
threaten prison officials, including guards and
administrators, by threatening to file liens.”
And finally, although there may be “less
restrictive means” for the prison administrators
to meet their objectives than by an outright ban
on such materials, prison administrators are not
required, the court wrote, to take the “leastrestrictive” approach to meet their goals.

FEDERAL CASES

Appellate Ruling Grants Some Inmates
Additional Time to File Medical Indifference
Claims
Shomo v. City of New York, 579 F.3d 176
(2d Cir. 2009)
Inmates asserting deliberate indifference to
their medical needs by prison officials can make
use of a legal doctrine that extends the time in
which to file suit, ruled the federal appeals court
with jurisdiction over New York this Fall.
Specifically, the court held, for the first time,
that the “continuing violation doctrine” can be
applied to claims of medical indifference under
the Eighth Amendment.
The plaintiff in the case, Mr. Shomo was in
the custody of the New York City Department
of Corrections when, on September 20, 1999, he
was diagnosed with right arm paralysis. In his
suit, he claimed that, despite the fact that doctors
ordered he be given assistance with basic
activities of daily living, be placed in specialized
infirmary housing and get treatment, the medical
and security staff did none of these things from
September 20, 1999, to January 4, 2001. The
district court judge dismissed some of his claims
on the grounds that they had not been timely
filed and he appealed.
In deciding the appeal, the appellate court
explained that the statute of limitations for
constitutional claims brought under 42 U.S.C.
§1983 is governed by state law — in this case

Vol. 19, No. 4; Fall 2009

New York's three-year statute of limitations for
personal injury actions. Mr. Shomo’s complaint
was filed on September 26, 2003, but he did not
allege any acts of deliberate indifference
occurring after September 26, 2000. Under a
strict reading of the Statute of Limitations,
therefore, his claim would have to be dismissed.
But, the court wrote, there is an exception to
the three year rule, called the “continuing
violation doctrine.” The continuing violation
doctrine applies where the plaintiff has alleged an
ongoing policy of medical indifference, as well as
some act taken in furtherance of the policy that
occurred within the statute of limitations. Under
the doctrine, “the commencement of the statute
of limitations period may be delayed until the last
discriminatory act in furtherance of it.”
Here, the court found, the alleged failure of
various jail supervisors, as well as a city hospital,
to respond to Shomo’s complaints after
September 26, 2000, could make a continuing
violation of the medical indifference.

STATE CASES
Discipline
Drug Testing: Testimony Constitutes
Adequate Proof of Chain of Custody
Matter of Harris v. Fischer, 883 N.Y.S.2d 737
(3d Dep’t 2009)
Petitioner was being processed into a special
housing unit when a search of his property
revealed a small plastic package hidden in a
bottle of saline solution. After the contents of
the package were tested they were determined to
be amphetamines, and petitioner was charged
with possessing narcotics and smuggling.
Following a Tier III disciplinary hearing, he was
found guilty of both charges and the
determination was affirmed on administrative
appeal. He then filed an Article 78 proceeding,
alleging that the drug test results were not
supported by an adequate “chain of custody”--

Page 9

meaning that DOCS could not show where the
alleged drugs had been from the time they were
confiscated to the time they were tested.
The court rejected petitioner’s claim. The
author of the misbehavior report testified that,
upon discovering the contraband, he informed
his supervisor and was directed to have the
material analyzed. He immediately brought the
contraband to a certified drug analysis tester and
remained in the room while the tests were
performed. The certified drug analysis tester,
meanwhile, stated that he adhered to proper
procedure while conducting the drug tests to
confirm that the recovered substances were
amphetamines. Upon receiving the confirmation,
the author of the misbehavior report placed the
contraband into an evidence locker.
Such testimony, the court found, in
conjunction with the test request form and the
contraband test procedure form, sufficiently
established that there was an unbroken chain of
custody and that proper drug testing procedures
were employed.
Inmate Disciplined for Providing Parole With
False Proof of Residence
Matter of Wright v. Bezio, 882 N.Y.S.2d 668
(3d Dep’t 2009)
Petitioner provided his parole officer with a
letter purportedly written by his mother
approving of him residing with her on her
property. It was later determined that the letter
was not written by petitioner's mother and, as a
result, petitioner was charged in a misbehavior
report with making a false statement and
forgery. He was found guilty of these charges
following a Tier III disciplinary hearing and the
determination was affirmed on administrative
appeal. Petitioner then filed an Article 78
proceeding.
The court found that petitioner’s admissions,
at the hearing, that the letter was composed and
signed by his sister-in-law, rather than his
mother, that he was aware that the signature was
not his mother’s and that he nevertheless sent
the letter to his parole officer, were sufficient to

Page 10

sustain the hearing officer’s conclusion that he
was guilty as an accomplice to the forgery.
The court also found that he was not denied
his constitutional and regulatory rights to call his
sister-in-law as a witness at the hearing, since
“the record reveals that the hearing officer made
reasonable and substantial efforts to obtain the
testimony [of the sister-in-law] by making
numerous, unsuccessful attempts to contact the
[her] by telephone.” Therefore, the court held,
the determination must be confirmed.
Charges Against Inmate Supported by
Substantial Evidence
Matter of Terrence v. Fischer, 884 N.Y.S.2d
277 (3d Dep’t 2009)
Petitioner, while being pat frisked for
weapons, allegedly attempted to strike the
correction officer who had ordered him to stand
so that mechanical restraints could be applied.
An altercation ensued and petitioner sustained
injuries while he was being subdued. As a result
of the incident, petitioner was charged in a
misbehavior report with refusing a direct order,
failing to comply with search and frisk
procedures and attempting to assault staff. He
was found guilty of the charges following a
Tier III disciplinary hearing. The determination
was later upheld on administrative appeal with a
modified penalty and petitioner filed an
Article 78 proceeding.
The court affirmed the hearing result. It
found that the petitioner’s testimony that it was
the correction officers who were the aggressors
and assaulted him, not vice-versa, merely
presented a credibility issue which was for the
Hearing Officer, not the court, to resolve. It also
rejected petitioner’s claim that the Hearing
Officer had failed to independently assess the
credibility of the confidential source that had
caused the officers to frisk him. Since that
information did not provide the basis for
determination of guilt of the charges at issue,
there was no requirement that the Hearing
Officer assess the credibility and reliability of the
information.

Vol. 19, No. 4; Fall 2009

Inmate’s Letter Provided Evidence of Gang
Activity
Matter of Umoja v. Bezio, 881 N.Y.S.2d 924
(3d Dep’t 2009)
A letter to the petitioner from another inmate
highlighting “the importance of a chain of
command and the use of caution when recruiting
other prisoners into a particular gang,” was
confiscated from petitioner’s cell, resulting in a
misbehavior report charging him with violating
the prison disciplinary rule that prohibits
possession of gang-related materials. He was
found guilty of the charge following a Tier III
disciplinary hearing and, after his administrative
appeal was denied, filed an Article 78
proceeding.
The court affirmed the Hearing Officer. “The
confiscated letter, misbehavior report and
testimony from the authoring correction officers,
both of whom were trained in the identification
of gang-related materials, provide[d] substantial
evidence of petitioner's guilt.” Contrary to
petitioner’s assertions, he was not entitled to
hear confidential testimony regarding the
ongoing investigation that led to the search of
his cell, and the misbehavior report “provided
identifying information and the factual basis for
the charge with sufficient particularity to allow
[him] to prepare a defense.”
Misbehavior Report Provided Adequate
Notice of Charges
Matter of Fareedullah v. Fischer, 882 N.Y.S.2d
756 (3d Dep’t 2009)
An investigation suggested that petitioner
had conspired with other inmates at Arthur Kill
Correctional Facility in Richmond County to
gain a leadership role over the facility’s Muslim
community. He was found guilty after a Tier III
disciplinary hearing of, among other things,
violating the prison disciplinary rules that
prohibit making threats, attempting to create an
unauthorized organization and urging other
inmates to participate in a demonstration.
After that determination was administratively

Vol. 19, No. 4; Fall 2009

affirmed, he filed an Article 78 proceeding
claiming that the misbehavior report did not
provide him with sufficient notice and that the
hearing result was not supported by substantial
evidence.
The court rejected both of these assertions.
Regarding the notice claim, the court held that,
“[I]nasmuch as the charges resulted from an
ongoing investigation, it was sufficient for the
misbehavior report to set forth the rules
determined to have been violated, the particulars
of the incident giving rise to the violations and a
time period during which said incidents
occurred, all of which served to provide
petitioner with enough particulars to make an
effective response.”
With respect to the substantial evidence
claim, the court noted that the evidence
consisted of “information from confidential
informants;” “the misbehavior report, [which
alleged] that documents containing threatening
statements against the civilian chaplain were
discovered in petitioner's personal property;” and
“corroborating testimony from the civilian
chaplain, the correction officers involved in the
investigation and petitioner himself.” The court
reviewed the confidential information
“in-camera” [in chambers] and found that there
was sufficient proof and corroborating evidence
for the Hearing Officer to independently assess
the credibility of the confidential informants.
That information, it held, along with the other
evidence presented at the hearing, was sufficient
to support the Hearing Officer’s conclusions.
Parole
Court Reverses Parole Denial Where Board
Relied Solely on Seriousness of the Crime
Matter of Johnson v. NYS Division of Parole,
884 N.Y.S.2d 545 (4th Dep’t 2009)
Petitioner, who was serving a sentence of 15
years to life for murder, was denied parole for a
second time in December 2007. The only reason
given by the Board was “[t]he violence
associated with this terrible crime.” He appealed,
and the court reversed.

Page 11

The court began its analysis by noting that it
is “well settled that parole release determinations
are discretionary and entitled to deference.”
Nevertheless, it held, “[t]he Parole Board is
required...to give fair consideration to each of
the applicable statutory factors as to every
person who comes before it, and where the
record convincingly demonstrates that the Board
did in fact fail to consider the proper standards,
the courts must intervene.” Although the Board
“need not expressly refer to the relevant
statutory factors in its determination” here, the
court concluded, the Board’s determination
“fail[ed] to comply with the requirement of
Executive Law § 259-i(2)(a) that the reasons for
denial of parole be ‘given in detail and not in
conclusory terms.’”
“[T]he only reason for the Parole Board’s
denial of parole…discernable from [its]
perfunctory reference to ‘[t]he violence
associated with this terrible crime’, is that the
determination was based solely upon the
seriousness of the crime,” wrote the court.
“But,” it continued, “in order to preclude the
granting of parole exclusively on this ground
there must [also] have been some significantly
aggravating or egregious circumstances
surrounding the commission of the particular
crime.” “[T]he mere reference to the violence of
the crime, without elaboration, does not
constitute the requisite ‘aggravating
circumstances’ beyond the inherent seriousness
of the crime itself.”
The court also found that the record was
“devoid of any indication that the Parole
Board…considered the statutory factors that
weighed in favor of petitioner’s release,” such as
his exemplary institutional record and the
favorable remarks of the County Court at the
time of sentencing. “In fact,” wrote the court,
“during the notably truncated hearing, the Parole
Board focused on matters unrelated to any
statutory factor.” Therefore, the court
concluded, there is “a strong indication that the
denial of petitioner's application was a foregone
conclusion.”
Practice pointer: It remains difficult to find
consistent principles in the courts’ parole
decisions. Here, the court criticizes the Board

Page 12

for relying exclusively on the seriousness of the
crime and for failing to consider factors that
weighed in favor of release. In other cases,
however, courts have appeared to permit
precisely that. For example, in Cruz v. NYS
Division of Parole, 833 N.Y.S.2d 311 (3d Dep’t
2007) the Board denied parole on the grounds
that the facts of the petitioner’s crime gave rise
to a “reasonable probability” that he would not
“live and remain at liberty without violating the
law.” The court, in reviewing the Board’s
decision, noted that the petitioner’s academic
and institutional accomplishments had been
“exemplary” and that it would seem that he
would be “a prime candidate for parole
release.” Nevertheless, the court held, because
the Board had considered the appropriate
statutory factors set forth in Executive Law
§ 259-I, “spanning from the seriousness of
petitioner’s crime to his lack of criminal history,
nearly spotless prison disciplinary record,
positive program accomplishments and
postrelease plans” and because “the Board [is]
not required to give equal weight to those
factors” and is allowed to place “more
emphasis on the serious nature of [the] crime,”
it felt “constrained” to affirm the Board’s
decision.
The distinction may be that, in this case, the
court found that the Board had failed to even
consider the positive factors, while in Cruz, the
court found that the Board had considered the
positive factors, even though it failed to weigh
them equally against the seriousness of the
crime.
Sentence Computation
Inmate Not Entitled to Parole Jail Time for
Time Spent in Drug Rehabilitation Program
Matter of Brooks v. Alexander, 883 N.Y.S.2d
381 (3d Dep’t 2009)
In 1995, petitioner pled guilty to criminal
possession of a controlled substance in the
second degree and was sentenced to a prison
term of three years to life. He successfully
completed a six-month shock incarceration

Vol. 19, No. 4; Fall 2009

program, however, and was released to parole
supervision in April 1996. Although he was
declared delinquent on eight occasions between
then and 2005, each time that the Board of
Parole recommended revocation of his parole it
contemporaneously recommended that parole be
restored if he successfully completed a drug
rehabilitation program. During the time periods
between the dates on which he was declared
delinquent and the dates on which he entered a
drug treatment program, he was held in custody
in either a county jail or state prison while he
awaited transfer to the treatment program. On
each occasion, he completed the recommended
treatment and the corresponding declarations of
delinquency were canceled.
In June 2007, petitioner violated his parole
for the ninth time. Following a final revocation
hearing, an Administrative Law Judge declared
petitioner delinquent and directed that he be reincarcerated for three years pursuant to a Parole
regulation which requires that any period of reincarceration for a shock releasee “be for at least
a period of time equal to the minimum period of
imprisonment imposed by the court.” See
9 NYCRR 8010.3(a). Petitioner's three-year time
assessment was subsequently reduced by 190
days, reflecting jail time credit for the 140 days
he was in custody prior to his transfer to the
shock incarceration program in 1995 and 50
days for the time period between the declaration
of delinquency for the 2007 violation leading to
his present incarceration and the date on which
he was returned to the custody of the
Department of Correctional Services. He was
not, however, granted any credit for the time
during which he was held in custody while
awaiting transfer to a drug treatment facility as
a result of his eight earlier parole violations.
After exhausting his administrative remedies, he
commenced an Article 78 proceeding asserting
that he was entitled to parole jail time credit for
those occasions. Supreme Court dismissed the
petition, concluding that petitioner was properly
credited with all of the time to which he was
entitled. Petitioner appealed.
The appellate court affirmed. Nine NYCRR
§ 8010.3(b) states that the minimum period of
re-incarceration for a shock releasee “shall be

Vol. 19, No. 4; Fall 2009

reduced by the violator’s pre-commitment jail
time and any time spent incarcerated at a [s]tate
correctional facility other than a shock
incarceration facility.” The Division of Parole
interprets that regulation as applying to the time
an inmate spends in jail or prison prior to his
commitment to the original shock incarceration
program and to the time he spends in jail prior to
his commitment to prison on a parole violation
(i.e., “pre-commitment jail time”).
In this case, in each of the occasions when
the petitioner was declared delinquent, except
for his 2007 delinquency, he was never
“committed” to a correctional facility. He was,
instead, permitted to attend a drug rehabilitation
program. Therefore, according to Parole, he was
not entitled to credit those periods to his reincarceration time.
The court found this interpretation of the
Parole regulation “reasonable” and, therefore,
upheld the lower court.
Petitioner Can’t Credit Prior Sentence With
Jail Time Served on New Sentence
Matter of Oriole v. Saunders, 884 N.Y.S.2d 719
(1st Dep’t 2009)
Petitioner, serving an indeterminate term of
3 to 6 years, was released to parole supervision
in August 2004. In November 2004, a parole
warrant was issued, charging that he had
committed various violations of the terms of
parole. Petitioner, in the meantime, had
absconded from parole.
In July of 2006, petitioner was arrested on
new charges. Two days after his arrest, Parole
served the November 2004 warrant and violation
report. A preliminary parole revocation was held
in August 2006, but the final hearing was
adjourned pending resolution of the new
charges. In January 2007, petitioner pleaded
guilty to the new charges and was sentenced to
an indeterminate term of 1½ to 3 years. In
February 2007, Parole served him with a Final
Declaration of Delinquency based on the new
conviction. The Declaration of Delinquency
established his delinquency date as July 22,
2006, the date of his arrest on the new charge.

Page 13

Parole then scheduled another hearing to
resolve the still outstanding 2004 violation
report. Before that hearing could be held,
however, petitioner commenced an Article 78
proceeding seeking to prohibit a new hearing.
He argued that Parole should be barred from
holding a hearing on the 2004 charges after
already establishing a delinquency date based on
the 2007 charges. After the State Supreme Court
granted his petition, Parole appealed.
The appellate court reversed. It found
nothing in the law to prohibit a second hearing
concerning the earlier incident, despite the fact
that petitioner’s parole had already been revoked
based on the later incident. “Petitioner’s
January 2007 conviction does not change the
fact that a final revocation hearing with respect
to the violations charged in November 2004 will
serve the purpose of determining whether
petitioner had become delinquent in observing
his parole obligations – thereby interrupting the
running of his sentence on the 1998 conviction –
as of November 2004, 20 months before the
commission of the crime underlying the
January 2007 conviction,” wrote the court.
“After all, the January 2007 conviction
established nothing with regard to the
November 2004 charges.”
Practice pointer: At issue in this case was a
question of sentence credit. A delinquency date
interrupts the running of a sentence. Therefore,
the later the delinquency date, the more time is
available to be credited to the interrupted
sentence. Here, the petitioner absconded from
parole in 2004. The 2007 conviction, however,
established only a 2006 delinquency date. If
Parole had been precluded from addressing the
2004 parole violation, petitioner would have
received credit against his sentence for the
period from 2004 until 2006, despite the fact
that he had absconded from parole in 2004.
The court noted as much, stating:
The construction of [the law] urged by
petitioner, besides failing in any way to
further the legislative intent and lacking
any compelling support in the statutory
language, would essentially reward
petitioner for his commission of a new

Page 14

felony by requiring the Division of Parole
to credit him for the 20 months during
which he was absconding. Even if
petitioner's reading of the statute were
otherwise tenable, we would reject it as
running afoul of the rule that a court
“will not blindly apply the words of a
statute to arrive at an unreasonable or
absurd result.”
Court of Claims
State Found Liable for Imposing
Administrative PRS and Revoking Parole
Burch v. State of New York, Claim No. 115299
(July 24, 2009) (Milano, J.)
A number of claims for damages resulted
from DOCS’ practice of administratively
imposing a period of post-release supervision on
a determinate sentence where the sentencing
court had failed to do so--a practice declared
illegal by the Court of Appeals in Garner v. New
York State Dept. of Correctional Services, 10
N.Y.3d 358 (2008). Some have been dismissed
on procedural grounds. Others have been
dismissed because trial judges concluded that
DOCS should be immune from such suits.
In this case, however, a judge found for the
plaintiff–and wrote a compelling argument for
why DOCS should be held liable in such cases.
The claimant alleged that as a result of the
unlawful imposition of PRS on his sentence, he
served nearly three years in prison on various
alleged PRS violations.
The court, in analyzing the claim, noted that
in order to establish that the State was liable for
his confinement he would have to prove that (1)
the State intended to confine him, (2) he was
conscious of the confinement, (3) he did not
consent to the confinement, and (4) the
confinement was not otherwise privileged.
Here, the State conceded that the claimant
had established the first three elements of the
claim. It argued, however, that the imposition
of PRS was “privileged” because claimant had
been sentenced to a determinate term and the
law requires that all determinate terms be

Vol. 19, No. 4; Fall 2009

accompanied by a period of post-release
supervision. The sentencing court’s failure to
impose the term, the State continued, was a
mere oversight and that DOCS was entitled to
impose it administratively.
The court rejected this argument, writing:
“[D]efendant’s assertion of privilege remains
unpersuasive in view of the absence of express
statutory authority to administratively impose
PRS, the explicit statutory instruction (CPL §§
380.20 and 380.40) that only a court may
impose a sentence and the fact that Penal Law
§ 70.00(6) expressly stated at all relevant times
that the court, and not DOCS or any other
administrative agency, is required to impose any
applicable term of PRS.”
The State next argued that “prevailing
decisional law” before the Court of Appeals’
2008 decision in Garner permitted it to impose a
term of PRS on claimant and should thus render
it immune from liability. The court rejected this
argument, too, stating:
Defendant’s selective reliance on
“prevailing decisional law” is particularly
specious as defendant had begun the
practice of administratively imposing
PRS terms on inmates similarly situated
to claimant before any “prevailing
decisional law” had emerged. In Donald
v. State of New York for instance,
defendant administratively imposed the
PRS term on inmate Donald just prior to
Donald's release from incarceration on
July 10, 2000. All but one of the cases
cited by defendant as “prior decisional
law” are dated after 2000. That some
lower courts subsequently, and
mistakenly, sanctioned defendant's
extra-jurisdictional and illegal actions
does not, after the fact, confer privilege
or immunity upon defendant for
wrongfully confining claimant.
Finally, the State argued, claimant would
be getting an undeserved “windfall” were he
to obtain monetary damages for wrongful
confinement because he would have been

Vol. 19, No. 4; Fall 2009

Page 15

required to serve a PRS term but for “the
sentencing court's error.”
The court rejected that argument as well. It
noted, first, that DOCS had imposed a three year
PRS term, whereas the relevant sentencing
statute would have permitted the sentencing
court to have imposed a term of as little as 1½
years–a fact the court found “particularly
troubling.” “More importantly,” the court
wrote, the State’s argument “ignores the
possibility that if defendant had acted lawfully
upon learning of the ‘sentencing court's error’
and sought judicial re-sentencing…claimant may
have chosen to withdraw his plea, be tried on the
violation of probation charges and be acquitted.”
It also ignored that, under a remedial law passed
in 2008, should the State seek to re-sentence the
claimant now, the sentencing court could decline
to impose a PRS term.
The State’s argument, the court wrote, could
be described as “no harm, no foul.” But “harm,
in the form of either incarceration or otherwise
restricted liberty, accrued until claimant was
either lawfully sentenced by a court of law or
released from incarceration or parole
supervision.”

county court. The Montanaro court held that the
claimant had been unlawfully confined prior to
the issuance of the order. “Under defendant's
reasoning,” wrote the court, “there could be no
recovery because the claimant could have been
lawfully confined, if she had been arraigned and
if the officer had signed the information.”
Since that theory had been rejected in
Montanaro, the similar theory had to be rejected
here. “[I]mposition of post-release supervision
on claimant…was a legal nullity. [C]laimant was
unlawfully confined by its terms and could not be
lawfully imprisoned 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.”
Practice pointer: Copies of Court of Claims
decisions can be obtained by submitting a FOIL
request to the Chief Clerk of the Court at P.O.
Box 7344, Capitol Station, Albany, N.Y. 12224.

It is this Court's opinion that the harm,
once done, is not excused or said to be
without tangible, meaningful redress by
suggesting that had lawful procedures
been followed, this claimant, or other
similarly situated claimants, would have
or may have endured, by lawful judicial
action, the same limitation of liberty that
defendant unlawfully imposed.

Claimant Ronnie Varela testified at his Court
of Claims trial that, as a part of an inmate work
crew at Wallkill Correctional Facility, he had
been ordered by Correction Officer Robin
Greene to climb up to a flat roof (the package
room roof) on a rainy day to collect and bag
garbage that had been thrown to the roof from
an adjoining building.
According to the claimant he was expected
to climb up to the roof by means of stepping on
a garbage dumpster and then onto an awning
before hauling himself up to the roof. No ladder
was provided and claimant had never before
been asked to clean the roof.
After collecting the garbage, he testified, he
began to descend from the roof. He had one foot
on the awning and one foot on the roof when
another inmate slipped and grabbed onto him,
causing both to fall into the dumpster and
causing injuries to his side and arm.

The State’s argument was also belied by a
1964 case called Montanaro v. State of New
York, 42 Misc.2d 851 (Ct. Cl. 1964). In that
case, the claimant was confined at a state
hospital on August 23, 1960 based upon an
order of commitment issued by a local court
judge which was later found to have been issued
improperly because the police officer who had
arrested claimant had not signed the underlying
criminal information and because claimant had
not yet been arraigned on the charge. Later, a
proper order of commitment was issued by a

Court Doesn’t Buy What C.O. Is Selling
Varela v. State of New York, Claim No. 112637
(Court of Claims) (Milano, J.)

Page 16

Officer Greene gave starkly different
testimony. He testified that no inmates ascended
to the package room roof on the day in question.
He stated he himself, out of concern for the
safety of the inmates on that rainy day, had
ascended to the roof to collect the garbage. He
stated that, while on the roof, he saw claimant
raise his head to the roof level and ordered him
to descend. He stated that he was later informed
that the claimant had fallen into the dumpster.
The court found that C.O. Greene’s
testimony lacked credibility.
First, the court found it hard to believe that
Greene would choose to “undertake the work
assignment otherwise expected to be
completed…by inmates.” “Even more difficult to
believe,” continued the court, “his testimony
places him, as the sole supervising Correction
Officer of the work gang, on a roof seven to
eight feet off the ground, for several minutes,
unable to immediately police or supervise the
work gang. This Court simply does not credit
[this] testimony….”
The Court also noted that Greene’s
testimony was contradicted by his own
memorandum regarding the incident, which
stated, in part, “On this date…the YGI gang had
completed cleaning the package room roof.” In
other words, Greene’s own memorandum
indicated that the roof cleaning had been
performed by the work gang, not by himself.
Under the circumstances, the court
“declin[ed] to credit the testimony of Correction
Officer Greene” and found in favor of the
claimant.
Other Cases
Transfer Request Denied
Matter of Salahuddin v. Goord, 882 N.Y.S.2d
772 (3d Dep’t 2009)
Petitioner’s request for an area-of-preference
transfer was denied based upon his failure to
complete recommended programming and
his removal from the Alcohol and Substance
Abuse Treatment program (ASAT). He filed a
grievance seeking, among other things,

Vol. 19, No. 4; Fall 2009

corrections to his institutional records to indicate
completion of ASAT and honoring his transfer
request. The grievance was denied and he
commenced an Article 78 proceeding. After the
State Supreme Court dismissed his claim, he
appealed.
The appellate court denied his appeal, noting
that an inmate “has no right to choose the
correctional facility where he will be
incarcerated.” It found that, insofar as the
petitioner’s institutional records reflected that he
did not successfully complete recommended
programming and that he was removed from
ASAT, the denial of his transfer request was
neither irrational nor arbitrary and capricious. To
the extent that he was also challenging the
accuracy of that portion of records with respect
to the fact that they indicated that he failed to
complete ASAT, the court held that requests for
corrections of allegedly erroneous information
contained in prison records “are to be pursued in
accordance with the procedures set forth
in...7 NYCRR §§ 5.50, 5.51, 5.52.”
Practice Pointer: Seven NYCRR (New York
Code, Rules and Regulations) §§ 5.50, 5.51,
5.52 provide:
Section 5.50. Challenge to accuracy
If the completeness or accuracy of any item of
information contained in the personal history or
correctional supervision history portion of an
inmate's record is disputed by the inmate, the
inmate shall convey such dispute to the
custodian of the record or the designee of the
custodian reviewing the record with him. The
inmate may obtain a copy of any record that
contains information the accuracy or
completeness of which the inmate disputes. The
fee for copies of records shall be in accordance
with section 5.36 of this Part.
Section 5.51. Investigation
(a) If the completeness or accuracy of any item
of information is disputed by an inmate,
the custodian of the record shall, within a

Vol. 19, No. 4; Fall 2009

reasonable period of time, investigate the
accuracy and completeness of the
information unless he has reasonable
grounds to believe that the dispute by the
inmate is frivolous. If the record in
dispute is one which has been received
from another governmental agency, then
the custodian shall direct the inmate to
make his challenge to such governmental
agency.
(b) If the custodian, after investigation,
shall determine the disputed information is erroneous or incomplete, he
shall make such changes as are necessary
and shall report to the inmate the results
of the investigation and the changes, if
any, which have been made no later than
45 days after the custodian or the
custodian's designee has been advised of
the dispute.
Section 5.52. Appeal from determination
If the inmate still disputes the accuracy or
completeness of the information after
investigation and determination, the inmate may
appeal the determination of the custodian to the
Inspector General, Department of Correctional
Services, State Campus, Building 2, Albany,
NY 12226. The appeal shall be in writing. The
Inspector General shall affirm, modify or
reverse the determination of the custodian and
shall notify the inmate of his decision within 30
days of receipt of the appeal.
Court Affirms TAC Decision to Withhold
Good Time
Torres v. Durbray, 882 N.Y.S.2d 761 (3d Dep’t
2009)
Petitioner in this case was serving a prison
term of 11 to 22 years for manslaughter, among
other offenses. He had been disciplined for
fighting in November 2007 and directed to
appear at a hearing before the Time Allowance
Committee (TAC) one month later to time
behavior determine whether any portion of his

Page 17

good time behavior allowance should be
withheld. The TAC recommended that all 88
months of his good time be withheld based upon
his disciplinary history and failure to participate
in a mandatory educational program. After that
recommendation was affirmed, petitioner
commenced an Article 78 proceeding
challenging the decision.
The court affirmed DOCS’ decision.
“Whether to withhold a good time behavior
allowance is a discretionary determination,” the
court wrote, “and, as long as it is made in
accordance with law and is based upon a review
of an inmate’s entire record, it is not subject to
judicial review.” Here, the court noted, the TAC
considered the complete institutional record
prior to making its recommendation, and that
review revealed 23 disciplinary infractions,
including the violent episode just one month
before the TAC hearing. It also reflected his
refusal to participate in the education program
despite knowing that such refusal would have
repercussions with respect to his good time.
Correction Law § 803(1)(a) states that a
good time allowance may be withheld “for bad
behavior, violation of institutional rules or failure
to perform properly in the duties or program
assigned.” Given the statutory language, the
court held, DOCS’ decision to withhold
petitioner’s good time “was entirely rational.”
Referral to Sex Offender Program Upheld,
Even Though Inmate Not Convicted of Sex
Offense
Matter of Harris v. Granger, 882 N.Y.S.2d 545
(3d Dep’t 2009)
Petitioner in this case is serving an aggregate
prison term of 20 years to life following his 1975
plea of guilty to the crimes of murder and
attempted murder. Approximately 30 years after
his conviction DOCS referred him, for the first
time, to the Sex Offender Counseling Program
(SOCP). The referral was based upon
information contained in his pre-sentence report
suggesting that there was a sexual element to the
underlying offense. Petitioner then filed a

Page 18

grievance contending that he had been
improperly “classified” as a sex offender and
challenging the referral to SOCP. After the
grievance was denied, he filed an Article 78
proceeding.
The court affirmed DOCS’ decision.
Although the petitioner was not convicted of a
sex offense, the court found, “the pre-sentence
investigation report contains information which
suggests that petitioner attempted to engage in
sexual conduct with his victim prior to her
death….” Under the circumstances, the court
continued, it was rational for DOCS to refer him
to SOCP. Moreover, the court held, the referral
“does not operate as a ‘classification’ of the
petitioner for purposes of the Sex Offender
Registration Act.”
Decision Denying Temporary Release
Reversed Where TRC Relied on Incorrect
Information and Failed to Review
Administrative Appeal
Matter of Parker v. Joy, (Sup Ct. Albany Cty.
May 12, 2009) (Devine, J.)
Petitioner, an inmate at Bare Hill
Correctional Facility, submitted an application
for Temporary Release. The application was
denied by his facility Temporary Release
Committee (TRC). In denying the application,
the Committee cited the petitioner’s instant
offense which, it wrote, “involved the inmate
taking the victim’s money while armed with a
gun” and “us[ing] the gun to strike the victim on
the head.”
On July 1, 2008, petitioner submitted a
notice of appeal, stating that he was in the
process of perfecting his appeal and that the
respondent would receive it within twenty days.
On July 8, 2008, he received a notice of
appeal decision from the respondent, stating that
his appeal had been reviewed and rejected.
Petitioner then sent a letter, dated July 14,
2008, asking how the respondent had been able
to review his appeal when he had not yet
submitted it and raising various objections to the
original disapproval, arguing that the TRC had
relied on erroneous information. In particular, he

Vol. 19, No. 4; Fall 2009

stated, he did not personally take money from
the victim and did not strike anyone with a gun.
Respondent then issued a second notice of
appeal decision. The second decision was
identical to the first, but for a “PS” which stated:
PSR [Presentence Report] reviewed. Instant
offense is an in concert act. You provided the
weapon used in the attempt to rob a victim and
the infliction of injury to the victim.
Participation in temporary release, the court
noted, is a privilege, not a right. Nevertheless, it
continued, a decision to deny temporary release
“must be rational and must have a sound basis in
fact.”
Here, the court found, the respondent’s
decision was irrational. According to the court,
the Presentence Report did not show that the
inmate had either taken the victim’s money or
struck her with a gun. On the contrary, it
showed that he was not actually present at the
scene of the robbery and had never struck the
victim. “[W]here, as here, the details of the
instant offense considered…are clearly
inconsistent with the information provided in the
Presentence Investigation Report, such
determination constitutes an abuse of
discretion.”
Moreover, the court found, “the premature
denial” of petitioner’s initial appeal, sent before
he had actually submitted his appeal, constituted
further evidence of respondent’s “arbitrary
treatment” of petitioner. “Respondent contended
that she had ‘reviewed’ the appeal while she
clearly had not,” wrote the court. Given the
foregoing, the court concluded, the denial of
temporary “was done in an arbitrary and
capricious manner.” The court ordered that
theapplication be returned to DOCS for “proper
review.”

Vol. 19, No. 4; Fall 2009

Petitioner Entitled to Disclosure of Parole
Records Under FOIL
Matter of Hector v. NYS Division of Parole,
(Sup. Ct. Albany Cty., February 10, 2009)
(Connolly, J.)
Petitioner submitted a Freedom of
Information Law (FOIL) request to the Division
of Parole seeking disclosure of “the name of all
inmates convicted of A-1 violent felony who
appeared or reappeared before the Parole Board
on March, April, May and June 2008; and how
many were granted release and how many were
denied release.” Parole denied the request,stating
that it “cannot release the information you have
requested.” Petitioner appealed administratively.
In response to his administrative appeal, Parole
advised him that the records could not be
released because their disclosure would
constitute an unwarranted invasion of privacy.
Petitioner then filed an Article 78 proceeding.

Page 19

The court found in petitioner’s favor. Agency
records are presumptively available under FOIL,
the court noted, unless they fall within one of
several exemptions enumerated in Public
Officer’s Law § 87. The exemptions include one
which exempts from disclosure records which, if
disclosed, would “constitute an unwarranted
invasion of privacy.”
Here, however, the information petitioner
sought was readily available on Parole’s website.
“While the Court is cognizant of the
confidentiality of parole case record
information,” it wrote, “where such information
is readily available to the public it cannot be held
exempt on privacy grounds.” Since Parole raised
no other basis for denial, the court granted the
petition.

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

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, 114 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.