Vol. 17, No. 3; Summer 2007 Published by Prisoners’ Legal Services of New York HINTS OF CHANGE AT PAROLE Eighteen months after the state was sued over its range of factors about an inmate, not just the nature extremely low parole rates for violent offenders, of the crime, when deciding on parole eligibility. and more than seven months of a new Mr. Alexander said he believes the Governor has administration in Albany, the New York Law given the Board the “autonomy” to do its job, and Journal reports indications that Parole Boards are higher release rates may be the result. “If there has easing back on what critics had contended was, in been any hesitation [to grant parole] in the past, I effect, an unwritten policy of denying parole to think people feel more able to do the jobs that they inmates based solely on the circumstances of their were entrusted with in this administration,” said crime. …article continued on Page 3 According to the Journal, whereas Parole Boards under former Governor George E. Pataki were releasing violent A-1 felons at a rate of between 3 percent and 5 percent from 2000 to 2005, more than 11 percent of such felons were granted Also Inside… release in 2006; more than 15 percent were released from January to July 2007, and June’s release rate Sentence Reform Commission was 26.7--a release percentage not seen in New Gets Underway ...... page 4 York since the early 1990s, when boards appointed by former Governor Mario Cuomo were making release decisions. Case Note: Reviewing Your Additionally, there are ongoing settlement talks Pre-Sentence Report ...... page21 in the federal litigation against the state, Graziano v. Pataki, in which inmates charged that the Division of Parole was unlawfully making parole decisions Litigating an Excessive based solely on the seriousness of an inmate’s Force Claim in the crime. Court of Claims ...... page22 George B. Alexander, Parole Chairman appointed by Governor Eliot Spitzer, told the Law Subscribe to Pro Se! See back page for details Journal that it is Mr. Spitzer's policy, as well as his own, that commissioners consider and weigh a

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. 17, No. 3; Spring 2007

A Message From Susan Johnson, Executive Director

The election of Governor Eliot Spitzer committed to rehabilitation, reentry, and appears to have brought with it a welcome reducing recidivism. The present administration change in the way in which New York realizes that it is crucial to successful addresses prisoners’ issues. As we reported in reintegration that reentry services begin before our Winter 2007 issue of Pro Se, just eight days an inmate leaves prison. Individuals who have after being elected, Governor Spitzer issued an been neglected, unfairly treated, or mistreated Executive Order that sharply cut the cost of while in prison are far more likely to be a public collect calls from prisons in New York State. safety risk upon release than those who have More recently, on July 19, 2007, had access to programs, education, and Governor Spitzer signed into law the Family appropriate medical and mental health care. For Connections bill, which states that prison more than thirty years, PLS has helped to telephone service is a right and not a revenue reduce that safety risk by assisting individuals generator. In addition, as this issue of Pro Se while in prison, ensuring that prisoners are notes, Governor Spitzer has also recently signed treated fairly, that they receive the programs, legislation that suspends rather than terminates medical and mental health treatment they need, Medicaid benefits for prisoners while they are and that they maintain contact with their incarcerated. This law enables inmates to families so as to facilitate their reintegration reenter society without having to wait two to into society. Years ago, PLS also played a three months for their benefits to restart. significant role in specific reentry programs, but Governor Spitzer has also issued Executive due to drastic funding cuts, we were forced to Order #10, which created a New York State cut back on the services we could provide. But, Commission on Sentencing Reform. The Order the winds have shifted and PLS is working hard states that the goal of the Commission is to to secure increased funding so we can provide perform a comprehensive review of New York’s such services again. current sentencing structure. As part of that Although it is too early to tell what effect review, the subcommittee on Incarceration and the recent changes in the law will have on Reentry will be evaluating the extent to which reducing recidivism, it is extremely clear, at this education and reentry preparation programs can juncture, that the Governor and those who he facilitate the readiness of inmates to transition has placed in administrative positions share a into the community and reduce recidivism. common goal: to increase public safety by Finally, as the cover story of this issue of Pro Se decreasing the likelihood that individuals will notes, there has apparently been a change in re-offend. Facilitating family contact, ensuring attitude regarding the way in which Parole that individuals who are released from prison decisions should be made, the result being a can obtain the medical and mental health significant increase in the number of inmates services that they need, restructuring our being release to parole since Governor Spitzer sentencing laws with a focus toward education has taken office. and reentry, and encouraging the Parole Board Taken individually, any one of these events to consider all the factors that are relevant to could be seen as progress in the fight for release are all ways in which to achieve this criminal justice reform. Taken together, the goal. message is much stronger. New York State is Vol. 17, No. 3; Summer 2007 Page 3

…article continued from Page 1 she is worried, however, that a more open-minded attitude by Parole Boards could Mr. Alexander, a former Erie County vanish overnight if Mr. Spitzer is politically Department of Probation commissioner. embarrassed by the actions of a parolee. “I think Soon after taking over at the Board this it would be his Willie Horton if any of these winter, Mr. Alexander notified commissioners high-profile guys get out and commit a crime," that they are bound to consider several factors she said. “I don't think it will be seen as an when hearing parole cases under Executive Law individual. It will be seen as, ‘No one should be § 259-i. They include not only the nature of the paroled.’” crimes, but also whether the inmates pose a risk …see related articles, Page 13 to others if released, their prospects for re-entering society, and their efforts to improve personally while incarcerated. Critics of the system as it had come to News and Briefs operate under Mr. Pataki argued that the commissioners--all of whom were eventually appointed by the former Governor--gave New Law Reinstates Inmates to Medicaid inordinate consideration to the circumstances of Immediately Upon Release the crimes and little or none to the efforts inmates made, often over decades, to improve Under a new law signed by Governor themselves. Spitzer in July, inmates who were receiving Robert N. Isseks, the lawyer representing Medicaid benefits prior to their incarceration the Plaintiffs in the Graziano suit, said there has will be immediately reinstated to the Medicaid been something of an easing of Parole Board rolls upon their release. decisions toward violent inmates. He attributes Medicaid is a joint federal/state health care that, in part, to his January 2006 litigation on program for low income persons and persons behalf of inmates who contend they were denied with disabilities. parole unlawfully by Boards who failed to Under prior law, Medicaid benefits were weigh all factors relevant to their release. terminated during incarceration. Inmates had to Amy James-Oliveras, who is active in reapply for benefits when they were released, a several parole reform and inmate relatives process which took two to three months and groups, said she has been at meetings involving could result in delays in obtaining treatment and Mr. Alexander at which he has assured families services at a time when they were greatly that a new attitude is in place and that the needed. Those delays caused many former families are an important factor in an inmate's prisoners to forgo needed medical care, even in successful reentry into society. It was the first cases of serious illnesses or addiction. time the chairman has met with the families of The New York Times, for example, recently inmates, she said. “They expressed that there reported the stories of Sheryl Sohn and Rufus was a new atmosphere and that there was a new Dantzler. Ms. Sohn learned while in prison that balanced approach…but that it would take she had an advanced case of Hepatitis C that time,” said Ms. James-Oliveras, of Wappingers had ravaged her liver. Prison doctors prescribed Falls. Her husband, George Oliveras, served 27 medicine to ease her symptoms and put her on years of a 25-years-to-life term for murder a liver transplant list. When she was released before being paroled. Ms. James-Oliveras said Page 4 Vol. 17, No. 3; Spring 2007 last December, however, a pharmacist at a CVS community supervision, and the use of told her that until her Medicaid benefits were alternatives to incarceration” and make reapproved, she would have to pay for her recommendations for future legislative changes. medication. She was told the same thing when The Governor charged the Commission with she tried to have her prescription filled at Kings exploring the following issues: County Medical Center in Brooklyn. For a T the current complex and sometimes month, Ms. Sohn went without the drugs she inconsistent structure of New York needed, even as her body grew achy, itchy, and sentencing laws, which include bloated. “I could have gone into liver failure at indeterminate sentences, determinate any time,” she said. She eventually checked sentences, definite sentences, sentences of herself into the SUNY Health Science Center at parole supervision, merit time, supplemental Brooklyn, and, in May, had a liver transplant at merit time, shock incarceration, temporary Mount Sinai Hospital. release, presumptive release, and Mr. Dantzler was ordered, upon his release, conditional release; to get treatment for alcoholism and marijuana T the uniformity, consistency, certainty, and abuse. But when he arrived at the program, he adequacy of the sentences produced by the was told that he would have to pay for treatment current system; because his Medicaid coverage had not yet T whether the lengths of imprisonment that started. Mr. Dantzler had to put his treatment on the system produces are equitable and hold while he waited for Medicaid, jeopardizing whether there exist either too many barriers his parole. to or insufficient incentives for alternatives Under the new law, Medicaid will be to incarceration; suspended, not terminated, during incarceration, T the ability of education and job training to and inmates will have their Medicaid coverage ease reentry and reduce recidivism; immediately reinstated once they are released. T the impact of current sentencing practice on Advocates for inmates praised the new law, state resources; but pointed out that it only helps those who T the relationship of sentencing to public were already on the Medicaid rolls prior to their safety and recidivism; and incarceration. “The next step is to go beyond T future trends in sentencing. suspension to make sure that every person leaving prison has health care coverage, The Commission held its first two public regardless of whether or not they had it before,” sessions in June and July. At its initial session, said Tamar Kraft-Stolar, Director of the Women members criticized the current sentencing in Prison Project at the Correctional Association structure. Michael C. Green, the District of New York. Attorney of Monroe County, said the sentencing system is a “mess.”According to him, it fails to Sentence Reform Commission Reviews State’s provide flexibility to help offenders with such Complex, Inconsistent Sentencing Scheme programs as drug treatment. Although he advocated for strict punishment for violent This past March, Governor Spitzer offenders, he said the State also has an established the New York State Commission on obligation “to deal with those people who can Sentencing Reform and ordered it to conduct “a and want to be helped.” He said he would argue comprehensive review of New York’s current for the greater use of alternatives to sentencing structure, sentencing practices, incarceration, especially the diversion of Vol. 17, No. 3; Summer 2007 Page 5 nonviolent drug offenders to treatment instead The parents of Ashley O’Donoghue, who is of prison. State Senator Eric Schneiderman serving a 7-to-21-year sentence for a first-time, noted that the State’s mandatory minimum nonviolent drug offense under the Rockefeller sentences for drug offenders are far stricter than Drug Laws, testified about the need for further in many states in the South and the West. He reform of those laws, and handed out articles said, “We have to deal with the fact that our about their son. sentencing structure is out of line with the rest Members of the prosecution bar took a of the country for nonviolent drug offenders.” different view. Bridget G. Brennan, New York State Assemblyman Joseph Lentol said that the City’s special narcotics prosecutor, and Michael State’s criminal statutes are “disjointed, E. Bongiorno, the Rockland County District confusing and inconsistent,” producing Attorney, said reforms to the Rockefeller Drug unpredictability for defendants, attorneys, Laws had given benefits to some offenders who judges, and crime victims. “No one, even those did not deserve them. “Nonviolent drug who practice in this area of law on a daily basis, offenders: There’s no such thing,” said are sure how the law will be applied in a Mr. Bongiorno, adding that drug crimes, by particular case,” Mr. Lentol said. their very nature, did violence to users, and At its second meeting, in July, the calling for enhanced penalties for repeat Commission heard from witnesses representing marijuana offenders and for drug offenders the judiciary, prosecutors, and defendants. caught with weapons. Bronx District Attorney A state judge emphasized the need for more Robert Johnson argued that members of his consistency in sentences. He noted that, in some community favored a strict approach to circumstances, a defendant could face a sentencing in order to improve safety in their determinate sentence between 5 and 25 years, neighborhoods and asked the Commission not meaning that two persons convicted of the same to reduce the role that prosecutors play in offense could end up serving sentences that sentencing, in favor of increasing the discretion diverge by as much as 20 years. given to judges. “We have a greater link to the Witnesses for defendants testified in favor community than the judge,” Mr. Johnson said of doing away with mandatory minimum and added, in apparent reference to sentences and for increased focus on treatment O’Donoghue’s testimony, that only a “small for drug offenses. Jonathan Gradess, Executive minority” advocated further changes in the drug Director of the New York State Defender laws, that they don’t speak for the “silent Association, called for reducing the influence of majority” in New York who are happy with the the prosecution when it comes to sentencing and status quo, and that some family members had plea bargains, and a philosophy that views let their personal experience cloud their treatment as optimal and jail as a last resort. judgment. Gabriel Sayegh of the Drug Policy Alliance, The Commission is directed to issue an urged the Commission to offer first- and initial report of its findings and second-time nonviolent drug offenders a choice recommendations by October 1, 2007, with a of treatment rather than incarceration. He final report to follow by March 1, 2008. suggested viewing drugs as a disease, not a Practice pointer: The Sentence Reform crime. “If I have cancer I'm not going to talk to Commission is chaired by Denise O’Donnell, a a lawyer,” he said. “Why do we do that with former U.S. Attorney in Buffalo and Current drug abuse?” Page 6 Vol. 17, No. 3; Spring 2007

Chairwoman of the Division of Criminal Justice The new law defines a “sex offender Services. Other members include: Juanita Bing requiring civil management” as one who is Newton, Administrative Judge of the Criminal suffering from a “mental abnormality” which Court of the City of New York; Brian Fischer, “predisposes him or her to the commission of Commissioner of the Department of conduct constituting a sex offense and that Correctional Services; George Alexander, results in that person having serious difficulty in Chairman of the State Parole Board; Michael controlling such conduct.” McDermott, a former Albany County District The legal proceeding to which such persons Attorney; Michael C. Green, the District may be referred has three parts. In the first part, Attorney of Monroe County; Anthony Bergamo, a judge decides whether there is “probable Chief Executive Officer of Niagara Falls cause” to conclude that the offender is a “sex Redevelopment; State Senator Eric offender needing civil management.” If there is Schneiderman (Democrat, Manhattan); and probable cause, the case is referred to a jury, State Assemblyman Joseph Lentol (Democrat, which must decide the same question. If the jury Brooklyn). unanimously agrees that there is “clear and To contribute your views about New York’s convincing evidence” that the offender is a “sex current sentencing structure to the Sentence offender needing civil management,” the judge Reform Commission, write to Denise must hold yet another hearing to determine O’Donnell, Chairwoman, NYS Commission on whether the offender should be civilly Sentencing Reform, 4 Tower Place,10th Floor, committed or subjected to intensive parole Albany, New York 12203-3764 supervision. In the first court decision since the Court Expresses Concern Over Sex Offender enactment of the new law, a State Supreme Management and Treatment Act Court Judge rejected the State’s position that the probable cause portion of the legal proceeding State v. Junco, (Sup. Ct., Washington was intended to be nothing more than a brief, Co.)(May 3, 2007) (Krogmann, J. ) (Unreported summary proceeding, to be dispensed with in a Decision) matter of hours, and expressed concerns about the adequacy of the work of the Case Review New York’s new Sex Offender Management Team. and Treatment Act (“SOMTA”) permits the In a four-day probable cause hearing, the State to hold allegedly dangerous sex offenders court permitted the Respondent, a convicted sex in a psychiatric treatment facility after the terms offender who had been referred for civil of their incarceration have expired. management by a Case Review Team, to Under the law, codified as Article 10 of the conduct an extensive cross-examination of the Mental Hygiene Law (“MHL”), convicted sex State’s expert, an OMH psychiatrist who had offenders who are nearing the ends of their participated in the decision. sentences have their cases reviewed by a “Case The psychiatrist had evaluated the Review Team” established by the State Office Respondent shortly before his maximum of Mental Health (“OMH”). If the Care Review expiration date and concluded that he suffered Team determines that they meet the definition in from an “Impulse Control Disorder,” which the law of a “sex offender requiring civil made him a “danger to others” and required his management,” they are referred to a legal “strict and intensive supervision in an OMH proceeding for possible civil confinement. Psychiatric Facility with a Sexual Offender Vol. 17, No. 3; Summer 2007 Page 7

Program and an Aggression Replacement cautioned the State that at the trial stage of the Therapy Program.” The decision of the Case SOMTA proceeding, it “will be held to a more Review Team was based largely this psychiatric strict burden of establishing by clear and diagnosis. convincing evidence that the respondent is a Under the cross-examination permitted by detained sex offender who suffers from a mental the court, however, the Respondent showed the abnormality.” psychiatric evaluation suffered from several Practice pointer: Inmates who may be shortcomings. subject to SOMTA are entitled to free For instance: Although the State psychiatrist representation in the three stages of the legal believed that the Respondent suffered from an proceeding required by SOMTA. Representation “Impulse Control Disorder,” he could not is provided by Mental Hygiene Legal Services. conclude that he had “serious” difficulty in If you believe you may be subject to SOMTA, controlling his conduct”--one of the elements you should contact MHLS at any of the required by the statute for a finding that a sex following addresses: 40 Steuben Street, offender requires civil management. Suite 501, Albany, New York 12207 (Central Further, although the Respondent had been and Northern New York); 50 East Avenue, subjected to numerous psychiatric evaluations Suite 402, Rochester, New York 14604 (Western in DOCS’ custody over a prolonged period of New York); 26 Center Circle, Wassaic, New time (since 1992), he had never previously been York 12592 (Southern New York, including diagnosed with Impulse Control Disorder--until Dutchess and Sullivan Counties); or the State psychiatrist’s evaluation on the eve of 60 Madison Avenue, 2d floor, New York, New the Respondent’s release date. York 10010. In addition, the psychiatrist relied on the Inmates are not, however, entitled to number of Misbehavior Reports that the counsel at the critical stage--when the Case Respondent had received in custody without Review Team is conducting its review and being aware of the circumstances surrounding deciding whether the inmate should be placed in them. Furthermore, he considered a criminal the SOMTA proceedings in the first place. charge against the Respondent in 1991 which had been dismissed; he did not know that a The Rumor Mill determination had been made that there was no sexual contact with the victim in the Prisoners’ Legal Services often receives Respondent’s current offense; he had not been letters from inmates citing rumors of new laws provided with any of the many favorable reports or prison policies which may be of benefit to submitted regarding the Respondent’s behavior them. Often, such rumors are exaggerated, or in custody; and had conducted only a one-hour simply incorrect. interview with the Respondent prior to making We recently received a number of letters his diagnosis--about which, the court noted, he about a supposed new law which would provide “incredibly” took no notes. additional merit time for both determinate and The court held that the flaws in the State indeterminate sentences. One such letter stated psychiatrist’s presentation were not so great as as follows: “Dear Pro Se: I would like to know to prevent it from finding probable cause that what’s going on with the new law (8 months to the Respondent was a “sex offender requiring a year for flats/violents) that Spitzer approved. civil management.” It nevertheless expressed its Also it would be retroactive. Thank you.” “concern” about the quality of his testimony and Page 8 Vol. 17, No. 3; Spring 2007

Regrettably, there is no such law. A new law prison officials were unable to account for one was recently proposed by State Senator of the syringes given him and, upon searching, Velmanette Montgomery (Democrat of they found it in a trash can, modified in a Brooklyn), which would have allowed DOCS to manner which suggested the use of illegal award up to one third of the sentence as merit drugs. time against both the minimum and maximum The officials concluded that the altered terms of indeterminate sentences, and the terms syringe led to the “reasonable inference” that of determinate sentences. However, like many Erickson had either used or intended to use such proposals, Senator Montgomery’s has not drugs. They charged him with various made it out of the Committee process. disciplinary violations and also removed him Pro Se will continue to write about from the Hepatitis C treatment program. They important new laws affecting inmates’ lives argued that his removal from Hepatitis C when they become law. treatment was necessary because, for “the Practice pointer: To request a copy of successful treatment of Hepatitis C, [it] is Senator Montgomery’s sentencing proposal incumbent upon the individual remaining drug (Senate Bill # 3578,) contact her office at and alcohol free to give the liver a better chance 306 Legislative Office Building, Albany, New of recovery.” Under Colorado’s treatment York 12247. protocol, a person removed from the treatment regime for having used illegal drugs must wait up to 18 months before commencing treatment Federal Cases again. In his lawsuit, Erickson alleged that his life was threatened by his removal from the Supreme Court: Prisoner’s Section 1983 Hepatitis C treatment program, and that his Complaint That Termination of Hepatitis C removal therefrom constituted deliberate Treatment Threatened His Life, States a Claim indifference to his serious medical needs, in Under the Eighth Amendment violation of his Eighth Amendment Rights. The Court of Appeals dismissed his claim. Erickson v Pardus, __US__, 127 S. Ct 2197 It found that his complaint did not state a (2007) violation of the Eighth Amendment because it failed to “allege that as a result of the William Erickson, an inmate in Colorado, discontinuance of [his] treatment…he suffered sued Colorado prison officials, alleging that any harm, let alone substantial harm, [other] they had wrongfully terminated his Hepatitis C than what he already faced from the Hepatitis C treatment, thereby putting his life in jeopardy. itself.” Erickson alleged that after being diagnosed The Supreme Court reversed. The Court with Hepatitis C, he completed classes and noted that a violation of the Eighth Amendment otherwise complied with protocols of the can be found when delays in medical treatment Colorado Department of Corrections to be involve “life-threatening situations and enrolled in the State’s Hepatitis C treatment instances in which it is apparent that delay program. The treatment program, which takes a would exacerbate the prisoner’s medical year to complete, involves weekly problems.” The Court also noted that the Eighth self-injections of medication by use of a Amendment “protects against future harm to an syringe. Shortly after he began the treatment, Vol. 17, No. 3; Summer 2007 Page 9 inmate.” Here, the Court continued, Erickson had specifically stated in his complaint that the State Cases decision to remove him from the Hepatitis C medication was “endangering [his] life,” and that he was “still in need of treatment for this Disciplinary Cases disease.” “This alone,” the Court held, would, if true, be a sufficiently serious harm to state a Hearing Officer Erred in Relying on claim under the Eighth Amendment. Confidential Information, but Error Was The Court reversed the Court of Appeals Harmless Where Other Evidence Supported and remanded the case for further proceedings. the Decision Practice pointer: The Eighth Amendment prohibits “cruel and unusual punishment.” The Matter Britt v. Goord, 838 N.Y.S.2d 793 Supreme Court held, more than thirty years (3d Dep’t 2007) ago, that this language means, among other things, that prison officials may not be The Petitioner was charged in two “deliberately indifferent” to an inmate’s Misbehavior Reports with fighting, disobeying “serious” medical needs. Estelle v. Gamble, a direct order, violent conduct, creating a 429 U.S. 97 (1976). disturbance, assault on an inmate, and use of a The issue in this case was whether the weapon. At his Tier III hearing, he pleaded Plaintiff’s complaint had stated a sufficiently guilty to fighting, disobeying a direct order, and “serious” medical need. The lower court creating a disturbance, but not guilty to violent concluded that because it did not--because it conduct, assault on an inmate, and use of a failed to specifically allege that it was the weapon. The Hearing Officer, after a hearing Defendant’s removal of the Plaintiff from the which included confidential information, treatment program that threatened his life, concluded that the Petitioner was guilty of all rather than the underlying fact that he had charges. The Petitioner challenged that Hepatitis C (for which the Defendant was not conclusion in an Article 78 proceeding. responsible). In reversing, the Supreme Court A Hearing Officer in a prison disciplinary noted that Federal Rule of Civil Procedure hearing may rely on confidential information. In 8(a)(2) requires that a complaint contain only order to do so, however, there must be some “a short and plain statement of the claim evidence in the record that the information is showing that the pleader is entitled to reliable and credible. relief”which“‘gives the defendant fair notice of In this case, the Hearing Officer did not what the…claim is and the grounds upon which personally interview the confidential informant. it rests.’” Moreover, the Court continued, it is The Correction Officer (“CO”) who did had well settled that a document filed pro se is “to only been at the facility for about one month be liberally construed.” “A pro se complaint, and was unable to vouch for his credibility. however inartfully pleaded, must be held to less Under the circumstances, the court held, there stringent standards than formal pleadings was insufficient evidence of the informant’s drafted by lawyers.” reliability and credibility. Nevertheless, the court held that the Hearing §§§§§§§§§ Officer’s reliance on the informant’s testimony was a “harmless” error: The informant provided Page 10 Vol. 17, No. 3; Spring 2007 no information that was not already in the Disciplinary Hearing Was Timely Commenced record. He merely confirmed what was already known from other sources, i.e., the Misbehavior Matter of Agosto v. Selsky, 834 N.Y.S.2d 402 Reports, the investigative memorandum, the (3d Dep’t 2007) testimony of the Correction Officers, and the admissions made by the Petitioner. An inmate was charged with having forged Consequently, the court affirmed the hearing a certificate that he had completed aggression result. replacement training. After being found guilty in a Tier III hearing, he filed an Article 78 “In Absentia” Hearing Reversed Where proceeding. Inmate Was Not Advised of Consequences of His principal argument in his Article 78 Failure to Attend proceeding was that the hearing was not timely commenced. The Misbehavior Report was Tafari v. Selsky, 836 N.Y.S.2d 306 (3d Dep’t written on January 6, 2006, but the hearing did 2007) not commence until January 13, 2006. Under 7 N.Y.C.R.R. 251-5.1(a), when an inmate is The Petitioner was charged with interfering confined to keeplock or SHU pending a with an employee and refusing a direct order disciplinary hearing, the hearing must be after he allegedly refused to leave his cell to commenced within seven days of the attend a Tier III hearing and refused to sign the confinement. The inmate argued that the period refusal form. As a result, the hearing was held from January 6th to January 13th constituted in his absence and he was found guilty of both eight days and, therefore, his hearing should be charges. He then filed an Article 78 proceeding. reversed. The court, however, held that, “in The court held that the hearing record failed calculating that period the day the misbehavior to establish that the Petitioner was advised of report is written is excluded.” Thus, since the the consequences of his failure to attend the period to be counted started on January 7th, not hearing and that, therefore, the determination January 6th, the hearing was timely commenced. had to be reversed. The COs who attempted to The court also rejected the Petitioner’s claim bring the Petitioner to the hearing testified that that he could not be found guilty absent a he refused to leave his cell for the hearing and comparison between his handwriting and that of would not sign the refusal form. However, they the allegedly forged document by a handwriting did not testify that they advised him of his right expert. “Although the documents were not to attend the hearing and the consequences compared by a handwriting expert,” the court associated with failing to appear--namely, that held, “the Hearing Officer’s own analysis and the hearing would be held in his absence. his finding of sufficient similarities between the “Without evidence that petitioner was so forged documents and petitioner’s handwriting advised, the record does not establish that [he] samples are enough to sustain the knowingly and voluntarily waived his right to determination.” attend, and the Hearing Officer should not have Practice pointer: The court’s decision relied held the hearing in [his] absence.” on General Construction Law § 20, which provides: “A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days Vol. 17, No. 3; Summer 2007 Page 11 exclusive of the calendar day from which the not constitute evidence that the Petitioner had reckoning is made.” violated the correspondence rule, the court held. Note that 7 N.Y.C.R.R. 251-5.1(a) provides In fact, the hearing record contained no that a hearing must commence within seven evidence that the Petitioner either wrote to days of an inmate’s initial confinement in SHU “Sparky” or even that “Sparky” had been an or keeplock--not, as the court in this case inmate. perhaps inadvertently suggested, within seven Similarly, the court found, there was no days of the writing of the Misbeh evidence that the Petitioner had violated DOCS’ avior Report. rules against “kiting” mail, i.e., sent “written material in outgoing mail not specifically Inmate Found Guilty of Possession of Escape intended for the addressee identified on the Materials, Not Guilty of Correspondence exterior of the envelope.” See 7 N.Y.C.R.R. Violations 720.3(p). The Misbehavior Report indicated only that he received mail, not sent it. Matter of Davis v. Goord, 833 N.Y.S.2d 802 In light of its findings, the court ordered (4th Dep’t 2007) DOCS to expunge the references to the alleged correspondence rule violations from the The Petitioner was charged with violating Petitioner’s records. Since, by the time of the inmate Rules 108.13 [possession of any article ruling, the Petitioner had already served his or paraphernalia providing reasonable grounds SHU sentence, there was nothing further the to believe that escape is planned] and 180.11 court could do for him. [compliance with correspondence procedures pursuant to 7 NYCRR parts 720, 721]. The Inmate Found Guilty of Making Threats, Even court determined that there was substantial Though Threats Not Made to Victim evidence to support a finding that he possessed escape materials, including a magazine article Griswold v. Goord, 835 N.Y.S.2d 460 (3d Dep’t concerning prison escape. It also found that 2007) there was substantial evidence that he had ordered equipment used to pick locks and The Petitioner was scheduled for conditional bypass security systems to be delivered to his release after serving 16 years of a 25-year lawyer’s office. sentence for attempted murder and assault The court found that the determination that when, in a recorded telephone conversation with the Petitioner had violated DOCS’ his sister, he became angry and, referring to a correspondence rules was not supported by the third person, said, “I'll punch his lights out.” As evidence. Those charges were based on the a result, he was charged with making threats Petitioner’s receipt of a letter from someone and failing to comply with telephone guidelines. named “Sparky,” whom DOCS’ officials Following a Tier III hearing, he was found believed to be a former inmate. DOCS’ rules guilty as charged and received a penalty that prohibit writing to an inmate or someone on included 18 months loss of good time, which parole or probation without authorization from had the effect of postponing his release date. the facility superintendent. See 7 N.Y.C.R.R. After an unsuccessful administrative appeal, he 720.3(b)(2). commenced an Article 78 proceeding The mere fact that the Petitioner had challenging the disciplinary determination. received a letter from “Sparky,” however, did Page 12 Vol. 17, No. 3; Spring 2007

In his Article 78, he argued that his inmate strike earlier in the year. Following a statement was an offhand remark communicated hearing, it was determined that the Petitioner's only to his sister, rather than a serious threat of continued presence in the general population violence, and was insufficient to support the would pose a threat to the safety and security of finding that he had made a threat because it was the prison facility, a decision which was upheld never communicated to the person against on administrative appeal. As a result, the whom it was directed. Petitioner filed an Article 78 proceeding. The court rejected this argument. It noted In his proceeding, he contended that the that the relevant disciplinary rule--7 N.Y.C.R.R. recommendation was made in retaliation for 270.2(B)(3)(i)--prohibits “any threat” made grievances he had filed, that the Hearing Officer “under any circumstances.” It was therefore of was biased, and that he could not prepare a “no consequence,” according to the court, that defense because the recommendation was the threat was never communicated to its deficient in its details. intended target. The Petitioner’s claim that the The court found, however, that by refusing threat was not real, the court held, presented a to attend his hearing, he had forfeited the right credibility issue for the Hearing Officer to to raise these issues. According to the court, he resolve. Accordingly, the court found, the was given the opportunity to present his views Misbehavior Report, together with the and respond to the segregation recommendation, Petitioner’s admission that he made the “yet chose to forgo that opportunity.” Moreover, statement, provided substantial evidence for the the court found, the recommendation, together determination of guilt. with the testimony and evidence at the hearing, provided sufficient evidence to support the conclusion that he had negatively influenced other Muslim inmates such that his removal from the general population was in the best interest of the facility’s safety and security.

Hearing Officer’s Refusal to Provide Inmate With Correction Officer’s Injury Report Results in Reversal of Disciplinary Hearing

Inmate Forfeits Right to Challenge Matter of Davis v. LeClaire, Sup Ct. Albany Co, Administrative Segregation Hearing March 28, 2007 (McNamara, J.)

Abdur-Raheem v. Burgee, 835 N.Y.S.2d 457 The Petitioner was found guilty in a Tier III (3d Dep’t 2007) disciplinary proceeding of violent conduct, creating a disturbance, assault on staff, weapons The Petitioner, a Muslim, was placed in possession ,and refusing a direct order. Administrative Segregation (“Ad. Seg.”) based According to the Misbehavior Report, a on an Ad. Seg. recommendation which stated Correction Officer (“CO”) observed the that he was suspected of influencing other Petitioner creating a disturbance in the mess hall Muslim inmates to stay in their cells during at Elmira and placed him on the wall for a pat Ramadan and of being the catalyst behind an frisk. When the CO attempted to retrieve an Vol. 17, No. 3; Summer 2007 Page 13

object that he said he felt in the Petitioner’s Officer to deny the Petitioner’s request to pocket, he allegedly came off the wall and review them. struck the CO in the face with his elbow. The Moreover, the court found, the error CO then grabbed the Petitioner from behind and required reversal of the hearing. The forced him face first into the wall. When the Petitioner’s defense to the charges was that he Petitioner attempted to break free, he was driven was the victim of an unprovoked attack by the face first to the floor. According to the Report, Correction Officers. His request for the CO’s the Petitioner continued to struggle while on the Injury Report was intended to show that the ground, and attempted to strike the CO again. CO’s injuries did not support the description of The CO then struck the Petitioner with a closed the incident contained in the Misbehavior fist in his forehead. Report. In addition, the court pointed out, in The Petitioner denied the charges. He stated fact, that the CO’s Injury Report made no that he and the CO had exchanged words in the reference of any injury to his face--which was mess hall. Shortly thereafter, a CO told the arguably contrary to the CO’s assertion that the Petitioner to follow him into the hallway. Petitioner initiated the incident by striking him According to the Petitioner, he was told to put in the face with his elbow. his hands on the wall and was then punched in “Considering the importance of this the head, thrown to the ground and punched and evidence,” the court wrote, “the Hearing kicked. Officer’s refusal to allow the Petitioner to It was undisputed that as a result of the review it cannot be characterized as harmless.” incident, the Petitioner suffered a fracture of the The Petitioner in this case was represented orbital bone around his eye, a broken nose, a by Prisoners’ Legal Services of New York. fractured thumb, and facial lacerations which required more than thirty stitches to close. Parole Cases At his hearing, the Petitioner requested that the Hearing Officer produce the Injury Report Court Declines to Reverse Parole Denial of of the Correction Officer who wrote the Model Inmate Misbehavior Report as well as photographs of the Officer’s injuries, both of which are Cruz v. New York State Division of Parole, 833 generally generated as part of the Use of Force N.Y.S.2d 311 (3d Dep’t 2007) Report. The Hearing Officer denied this request, stating that revealing the CO’s injury reports The Petitioner, denied parole, appealed the would constitute an unauthorized invasion of denial in an Article 78 proceeding. the Officer’s privacy. The Petitioner had been convicted of After being found guilty, and having his manslaughter and weapon’s possession arising administrative appeal affirmed, the inmate filed out of an altercation between two groups of men an Article 78 proceeding. in 1991. The Petitioner, who had been drinking The court noted that appellate courts have and smoking marijuana, had retrieved his gun held that medical records and photographs of from the trunk of a car and fired a shot but was the Correction Officer involved in an altercation unaware that he had hit anyone. When he found with inmates are relevant to disciplinary charges out the next day that an individual had been that arise from the incident. See, e.g., Matter of shot, he turned himself in to the police. He was Cody v. Goord, 794 N.Y.S.2d 149 (3d Dep’t 17 years old at the time and had no prior 2005). It was therefore an error for the Hearing criminal record. Page 14 Vol. 17, No. 3; Spring 2007

The record before the Parole Board revealed criminal history, nearly spotless prison that Petitioner has always admitted his guilt and disciplinary record, positive program expressed remorse for his conduct. In his 15 accomplishments and post-release plans. years of incarceration, he had only one Yet, with the Board not required to give disciplinary offense. He has participated in equal weight to those factors, and numerous available programs, including alcohol instead placing more emphasis on the and substance abuse treatment and the serious nature of petitioner's crime, we alternatives to violence project, and he had are constrained to affirm. earned 45 college credits. The record also showed that he had offers of employment from Court Reverses Parole Denial Where Denial a New York City police officer and several Based Solely on Seriousness of the Crime relatives. Finally, at his hearing, the Petitioner detailed the support that he receives from his Matter of Almonor v. New York State Board of wife who visits him weekly, and he continued to Parole, (Sup. Ct., NY Co.) (March 29, 2007) express his sorrow for the taking of another (York, J.) person's life and the suffering that he caused. Although the Board noted his positive On December 1, 1991, the Petitioner, then institutional achievements and his exemplary 20 years old, was at a nightclub with some conduct in prison, it concluded that “[his] friends when a fight broke out. He and other actions that led to the death of a male victim friends were drawn into the fight, the details of leads this panel to determine that if released at which are unclear. According to the Petitioner, this time, there is a reasonable probability that he was slashed in the face with a knife and one your ( sic ) would not live and remain at liberty of his friends gave him a gun with which to without violating the law.” Accordingly, the defend himself. Ultimately, the Petitioner fired Board denied parole and ordered the Petitioner the gun three times, injuring one woman and held for an additional 24 months. killing one man. He was sentenced to 12½ to The court--with apparent reluctance--upheld 25 years for criminal use of a firearm in the first the Board’s decision, writing as follows: degree, and to 8a to 25 years for manslaughter in the first degree. We find petitioner’s academic and During the Petitioner’s years in prison, he institutional achievements exemplary. It successfully completed various programs to would seem that he is a prime candidate deal with his aggression, received his GED, and for parole release. Yet, given the completed training programs that enable him to standard of review available to us, we work as an electrician’s assistant and a custodial cannot find that the Board's decision maintenance worker. In addition, he trained in exhibits “‘irrationality bordering on legal research, received an associate's degree in impropriety’” Clearly, the Board paralegal studies, and worked as a paralegal in considered the appropriate statutory the prison library. The Law Library Supervisor factors set forth in Executive Law gave him consistently superior evaluations for § 259-i, spanning from the seriousness his conduct. His record also detailed other of petitioner’s crime to his lack of vocational and rehabilitative achievements, Vol. 17, No. 3; Summer 2007 Page 15 including work with the hearing impaired and comes before it.” This includes work as an HIV/AIDS Peer Educator. consideration of the inmate’s In 2004, he married his high school institutional record including, as is sweetheart, a former teacher who now works as relevant here, the inmate’s vocational a Guidance Counselor with the New York City education, his training and work Department of Education. She wrote a letter to assignments, therapy, and his release the Parole Board on behalf of her husband in plans. Where the record convincingly connection with his 2006 application for parole. demonstrates that the Parole Board did In addition, numerous relatives and friends, as in fact fail to consider the proper well as the Petitioner’s local assemblyman, standards, the courts must intervene. wrote letters. The Petitioner also submitted evidence to the Board showing that he was In this case, the court found, the Board actively seeking both employment and entrance relied exclusively on the severity of the offense into a four-year college in the event of his in its decision to deny parole. Its decision did release on parole. not mention any factor other than the At his 2006 parole hearing, the Petitioner seriousness of the crime as its basis. Thus, its expressed his remorse for the crime and stated action “not only contravene[d] the discretionary that he was older and wiser and he would not scheme mandated by statute, but also effectively repeat his earlier mistakes. One of the constitute[d] an unauthorized re-sentencing of Commissioners commented that he found it the defendant.” In reaching this conclusion, the “rather interesting” that his manslaughter charge court also noted the short length of the parole received a smaller sentence than his weapons hearing, the Commissioners’ unwillingness to charge. discuss the Petitioner’s letters in support of his The Commissioners then denied parole, application, and Commissioner Rodriguez’s writing: comment suggesting that he thought the Petitioner's sentence for manslaughter was too Parole is again denied due to the serious short. nature and violent circumstances of the The Court ordered that a de novo parole instant offenses, criminal use of a hearing be held. firearm first and manslaughter one, Practice pointer: The similarities between wherein you shot and killed one man this case and the Cruz case above--and their and shot and injured a female victim. opposite results--beg further explanation. Both cases involve inmates convicted of The Petitioner challenged the denial of manslaughter at a young age in similar parole in an Article 78 proceeding as arbitrary circumstances. Both inmates apparently have and capricious. The court reversed, noting that model prison records, and in both, the Board although the Parole Board has great discretion, denied parole based entirely on the its discretion is not “unfettered.” “seriousness of the underlying offense.” Yet, in this case, the court felt it appropriate to reverse The Board cannot base its determination the Board, while in Cruz, it declined. Why? solely on the serious nature of the crime. The only rationale that the editors of Pro Se Instead, although it need not discuss can suggest is that, in this case, the court found every statutory factor, it must consider that the Board failed to consider any factor these factors “as to every person who other than the seriousness of the crime, while in Page 16 Vol. 17, No. 3; Spring 2007 the Cruz case, the court found that the Board Banks v. State of New York, (Court of Claims, did consider factors other than the seriousness April 11, 2007) (Mognano, J.) (Unreported of the crime--notably the inmate’s “nearly Decision) spotless prison disciplinary record, positive program accomplishments and post-release The Claimant, an inmate, suffered burns on plans.” Apparently, this distinction was his shoulder during a physical therapy session at sufficient to merit upholding the Board in the Shawangunk Correctional Facility. He sued the Cruz case, while reversing it in the instant case. State in the Court of Claims and, after his claim One can only wonder, however, if this is a was filed, he moved for “summary judgment.” distinction without a difference. In Cruz, all the A motion for summary judgment is one in factors other than the seriousness of the offense which one party argues that there is enough weighed in favor of granting parole. If the evidence available for the court to decide the Board considered those factors, it must have matter without a trial. To prevail, the party rejected them out of hand. A cynic could argue, making the motion “must make a prima facie based on the results of these decisions (and showing of entitlement to judgment as a matter others like them), that it makes little difference of law, tendering sufficient evidence to whether or not the Board considers additional demonstrate the absence of any material issues factors, since it will not be persuaded by them. of fact.” Pro Se litigants should also note that, even Making a prima facie means submitting in this case, it is not clear that the inmate won evidence that, unless rebutted, would be much. A court’s authority upon reversing a sufficient to prove the case. parole hearing is limited to ordering that a new If the party making the summary judgment parole hearing be held. The court does not have motion establishes a prima facie case, “the the authority to order the inmate released. See burden shifts to the opposing party to produce Quartararo v. New York State Div. of Parole, evidence that some of the facts on which the 637 N.Y.S.2d 721 (1st Dep’t 1996). DOCS’ prima facie case depends are in dispute, thus inmate locator reveals that the Petitioner in this requiring a trial.” case remains incarcerated and that his next Here, the Claimant submitted an affidavit in parole board is not scheduled until April 2008. support of his summary judgment motion. In his That suggests that the Board has either affidavit, he stated that part of his physical appealed this case, and obtained a stay of the therapy treatment involved application of a hot decision, or that it held the re-hearing required plate wrapped in a towel to his left shoulder. He by the court and denied the Petitioner parole complained that the device was too hot but his once again. In either event, it is evidence that complaints were ignored, causing burns and even a successful challenge to a parole denial permanent scarring. He also submitted, with his may, in the end, be only a “pyrrhic” victory. motion, an “Inmate Injury Report,” which indicated that he had presented himself at the Court of Claims Cases Wallkill Correctional Facility health facility on September 2, 2005, stating that while receiving Inmate, Burned During Physical Therapy, physical therapy the day before, a heating pad Wins Summary Judgement on DOCS’ caused burns on his shoulder. In the Inmate Negligence Injury Report, the nurse wrote, “[b]urns noted Vol. 17, No. 3; Summer 2007 Page 17 on Lt shoulder (3) blisters intact,” applied malfunctioning or the Defendant had notice that Bacitracin and a dressing, and admitted the it would cause the Claimant's skin to burn; and Claimant to the infirmary to be seen by a doctor. there was no proof that the Claimant was in In an Inter-Departmental Memorandum need of special precaution due to age or addressed to “Dep. Hansen,” she noted that the sensitivity. The court noted, however, that the Claimant told her he had “complained to PT State presented no evidence in support of its staff that the moist heat was too hot and another arguments. The State’s arguments were “[m]ere towel was placed between the heat source and conclusions, expressions of hope or his skin.” unsubstantiated allegations.” As such, they were The court found that the evidence submitted insufficient to meet the State’s burden of proof by the Plaintiff established the Plaintiff’s prima on a summary judgment motion. “Had [the facie case of negligence under the doctrine of State’s] allegations been supported by evidence res ipsa loquitur. of improper physical therapy practice, a Res ipsa loquitur is a Latin term meaning malfunction or lack thereof of the heat source or “the things speaks for itself.” It is a principle of claimant’s alleged particular sensitivity to heat, evidence which allows a court to conclude that or any indication that burns to the skin such as the mere fact that an event happened is proof of claimant received are a normal and accepted the defendant’s negligence, because it could not risk of physical therapy involving heat, [the have happened absent the defendant’s State] may well have been able to demonstrate negligence. To establish negligence by virtue of issues of fact” sufficient to warrant a trial. res ipsa loquitur, a claimant must show that: However, “[s]ince no such evidence was (1) the event was of a kind that does not presented, and counsel’s statements to the ordinarily occur in the absence of negligence; contrary are not an adequate substitute and the (2) the event was caused by an “agency or fact that a physical therapy treatment instrumentality” within the defendant’s uncontrovertedly resulted in second degree exclusive control; and, (3) the event was not due burns implicates negligence within the to any voluntary action or contribution on the comprehension of a layperson.” part of the claimant. Thus, the court granted summary judgment Here, the court found, the fact that the to the Plaintiff and scheduled a trial for Claimant was burned during his physical damages. therapy session satisfied the standard for a showing of negligence by virtue of res ipsa Inmate Awarded $8,000 for DOCS’ Negligence loquitur. The facts established by the in Allowing Other Inmates to Assault Him in Claimant’s evidence, if true, made “the SHU inference of negligence…inescapable.” The burden, therefore, shifted to the State to Martin v. State of New York, 833 N.Y.S.2d 706 demonstrate that there were disputed factual (3d Dep’t 2007) issues which warranted a trial. In reply, the State argued that: the therapist In April 1999, while serving a SHU had acted properly in placing the hot plate on sentence, the Claimant was attacked and the Claimant’s shoulder; there was no evidence assaulted by two inmates wielding shanks as he that the therapist had acted negligently or in exercised in the “cage.” The assault lasted “disregard of community standards”; there was approximately three minutes, during which the no evidence that the hot plate was Claimant defended himself, rendering one of his Page 18 Vol. 17, No. 3; Spring 2007 assailants semiconscious. As a result of the Officer who escorted the Claimant to the incident, the Claimant required a total of nine infirmary following the attack, who stated that stitches, one to his scalp, three to his left thumb, the Claimant expressed “exuberance that he had four to his chest, and one on the right side of his successfully defended himself from two neck. Approximately six weeks later, in attackers, and that he had, in fact, rendered one June 1999, he sought mental health treatment, semiconscious during this incident.” Finally, the contending that he could not sleep due to court took into consideration testimony to the nightmares and that he was suffering from effect that some of the symptoms the Claimant extreme headaches, and subsequently was associated with PTSD, including his allegedly diagnosed with Posttraumatic Stress Disorder persistent headaches, could be the product of (“PTSD”) and treated with various medications. other medical conditions from which the In the interim, the Claimant commenced an Claimant suffers, including hypertension and action against the State in the Court of Claims, Grave's disease. Under these circumstances, the alleging that on the day he was assaulted, appeals court held, “the Court of Claims quite Correction Officers negligently failed to screen properly rejected claimant’s assertion of inmates before allowing them to enter the PTSD.” exercise cage. After a trial, the court found for The court also agreed with the State’s the inmate and awarded him $15,000 in contention that the $15,000 awarded by the compensation for his physical injuries, but Court of Claims for the Claimant’s physical rejected his claim that he suffers from PTSD injuries was excessive under the circumstances. and, hence, denied him any compensation for On reviewing the record as a whole, the court his alleged psychological injuries. reduced the Claimant’s award to $8,000.00-- Both the Claimant and the State appealed. although one judge dissented from that portion The Claimant argued that the award should of holding, concluding that there was nothing in include damages for PTSD, while the State the record to justify reducing the award from argued that the $15,000.00 awarded for the $15,000.00. Claimant’s physical injuries was too high. The appeals court found that the lower court Other Cases had acted appropriately in rejecting the Claimant’s PTSD claim. At trial, the court had Inmate Denied Visitation With Children been confronted with competing expert opinions as to whether the Claimant suffered from PTSD Matter of Conklin v. Hernandez, 837 N.Y.S.2d and it elected to credit the testimony of the 419 (3d Dep’t 2007) State’s expert over that of the Claimant. In addition, the court noted that the Claimant had The Petitioner, an inmate, petitioned for sustained a seven-inch laceration to his chest in visitation with his two children, ages three and a bar fight in 1970, was incarcerated in 1979 for five, whom he has not seen since he was armed robbery, and was found guilty of fighting incarcerated in 2004. After a hearing, the while incarcerated at least three times, including Family Court denied his petition, granting him an incident during which the Claimant only the right to communicate with his children apparently threw hot oil at a fellow inmate. by mail and receive updates on their condition Thus, the court wrote, the incident was “not six times per year. The Petitioner appealed. claimant’s first exposure to violence.” The court The Appellate Division noted that also considered the testimony of the Correction “visitation [with] a noncustodial parent is Vol. 17, No. 3; Summer 2007 Page 19 presumed to be in the child’s best interest and suitable, other than the mother, who could should be denied only in exceptional situations, accompany and supervise his children. such as where substantial [proof] reveals that At Family Court, the children’s mother had visitation would be detrimental to the welfare of testified that she did not oppose visitation with the child.” Further, the court noted, “the the father, but that she did not want to have any incarceration of a noncustodial parent shall not, contact with him herself because of their by itself, preclude visitation with his or her volatile relationship. She conceded that the child.” On the other hand, the court noted, Petitioner had bonded with their son, who was “denial of an application for visitation is proper 2½ years old when the Petitioner had last lived where evidence demonstrates that visitation with them, prior to his incarceration, but she would not be in the child’s best interest” and stated that their daughter, who was only a “the propriety of visitation is generally left to four-month-old infant at that time, did not know the sound discretion of Family Court whose him and she was uncomfortable having her visit findings are accorded deference by [the appeals with someone who was, essentially, a stranger. court] and will remain undisturbed unless Under all of the circumstances, the court lacking a sound basis in the record.” held, including the young ages of the children, In this case, the court found that the Family the difficult logistics and the expense of travel, Court's determination that, under the the mother’s opposition to having contact with circumstances, it would not be in the children’s the Petitioner, the lack of a pre-existing best interests to have visitation with their relationship between the father and the incarcerated father was supported by the record, daughter, and the parties’ lack of resources or notwithstanding what the court characterized as appropriate third-party assistance, the Family the Petitioner’s “earnest efforts to secure Court’s denial of visitation “had a substantial in-person visitation with his children.” basis in the record” and should, therefore, be The court pointed out that the Petitioner had affirmed. The appeals court noted that if the minimal financial resources and no family or Petitioner were to be transferred to a facility friends to assist in providing transportation or closer to his children or if the financial situation supervision of the children. The children’s of the parties substantially improved or a mother was a single mother with four children suitable adult were to be identified by the who worked full time earning minimal wages. parties who could provide the necessary She did not have either a car or the financial supervision and transportation, the Petitioner resources or family or friends to help with the could renew his petition for a modification of five- to eight-hour round trip from the City of visitation at a later date. Binghamton, where she lived, to Wyoming County, where the Petitioner was incarcerated. Inmate Denied Re-Sentencing Under Drug Although the Petitioner offered to use his Law Reform Act inmate salary to pay for their bus transportation, the court stated, he offered no proposal for how People v. Vega, 836 N.Y.S.2d 685 (2d Dep’t the children’s mother would care for her other 2007) two children or pay other travel-related expenses, and he was unable to suggest anyone The Drug Law Reform Act of 2004 established a new sentencing structure for drug Page 20 Vol. 17, No. 3; Spring 2007 offenses in an effort to alleviate the strict laws The Petitioner was placed in Involuntary enacted in 1973, commonly known as the Protective Custody (“IPC”) at Shawangunk Rockefeller Drug Laws. Although the new Correctional Facility after it was revealed that sentences apply only to persons convicted after his safety was in jeopardy. Because of his IPC the Reform Act was passed, the Act also status, his application for participation in the allowed inmates convicted of A-I and A-II drug Family Reunion program was subject to offenses prior to the Act’s passage to apply to “special review.” See 7 N.Y.C.R.R. 220.2(c). be re-sentenced. The Act, however, does not When the special review was completed, his require a sentencing court to grant re- Family Reunion application was denied and the sentencing. Instead, under the statute, the court determination was upheld on administrative should: appeal. The Petitioner then commenced an Article 78 proceeding challenging the denial. consider any facts or circumstances The court noted that “it is well settled that relevant to the imposition of a new [a] decision to deny an inmate participation in sentence which are submitted by such the family reunion program is ‘heavily person or the people and may, in discretionary’ and will not be disturbed if addition, consider the institutional supported by a rational basis.” Here, the court record of confinement of such person… found, DOCS properly considered the various Upon its review of the submissions and factors outlined in 7 N.Y.C.R.R. 220.2 during the findings of fact made in connection the special review process, but denied the with the application, the court shall, Petitioner’s application primarily on the basis of unless substantial justice dictates that his IPC status and the security concern the application should be denied, in presented thereby. Because this constituted a which event the court shall issue an rational reason for the denial of the Petitioner's order denying the application, specify application, the court dismissed the Petitioner’s and inform such person of the term of a Article 78 proceeding. determinate sentence of imprisonment it Practice pointer: 7 N.Y.C.R.R. 220.2(c) would impose upon such conviction. provides for “special review” of an inmate who is otherwise eligible to participate in the Family In this case, the Defendant was a second Reunion program if he or she: (i) has been felony offender with a prior criminal history designated a central monitoring case; (ii) has dating back to 1988, including convictions of any outstanding warrants or show cause order other controlled substance offenses, and he was (e.g., U.S. Immigration Service); (iii) has been subsequently convicted of murder in the second convicted of heinous or unusual crimes or if it degree. Moreover, his prison disciplinary record appears that the inmate is a sex offender; (iv) is was poor. Under the circumstances, the court a returned parole violator; (v) is in protective held, justice dictated that his application for a custody or administrative segregation; (vi) is in new sentence be denied. a special program such as Merle Cooper or APPU or IPC or assigned to a closed mental Inmate in IPC Denied Permission to hygiene unit. The regulation does not specify Participate in Family Reunion Program what factors should be considered in the “special review” process, so it is unclear as to Matter of Cabassa v. Goord, 836 N.Y.S.2d 351 what factors--other than the mere fact that the (3d Dep’t 2007) Vol. 17, No. 3; Summer 2007 Page 21

inmate was in IPC--were considered in this “important need [for it] that cannot be filled by case. other means.” Thus, if you were convicted in one of the Inmate Denied Access to Pre-Sentence Report Counties located in the Third Department, you can obtain a copy of your Pre-sentence Report People v. Muniz, (Sup Ct., Kings Co.) (May 7, if you can show an “important need [for it] that 2007) (Rivera, J.) (Unreported Decision) cannot be filled by other means.” What constitutes such a need? Inmates often want to see a copy of their Several courts have addressed that question. Pre-sentence Report. Often, they wish to correct In Shader v. People, 650 N.Y.S.2d 350 what they believe to be incorrect information in (3d Dep’t 1996), the Petitioner made a motion the Pre-sentence Report. On other occasions, for disclosure of his Pre-sentence Report in they may wish to use the Pre-sentence Report to connection with his pending parole appeal. argue in favor of admission to certain prison There, the appellate court held that the programs or to present to the Parole Board for Petitioner had made an adequate showing of the consideration for release on parole. need for the report “inasmuch as it is one of the Under Criminal Procedure Law § 390.50, a factors required to be considered by the Board sentencing court must provide the parties in a of Parole upon application for release.” criminal case with access to the Pre-sentence However, in Kilgore v. People, 710 Report at least one day prior to sentencing. N.Y.S.2d 690 (3d Dep’t 2000), the court held They must also provide copies to various public that the Petitioner’s assertion that he needed his agencies, including DOCS. Beyond that, Pre-sentence Report in order to help him however, the law states that Pre-sentence prepare for his parole board was not a sufficient Reports are “confidential and may not be made ground for release of the Report. “Petitioner’s available to any person except…upon specific bare assertion,” wrote the court, without more, authorization of the [sentencing] court.” C.P.L. that he required the report in order to properly § 390.50(1). prepare for an appearance before the Board of State courts are divided over whether a Parole “is insufficient to constitute a showing sentencing court may grant an inmate access to [of need for the report].” At the very least, the his Pre-sentence Report for any purposes other “petitioner must demonstrate that he has been than presenting arguments about his sentence. given notice of an impending hearing before the In Salamone v. Monroe County Dept. of Board of Parole.” Probation, 524 N.Y.S.2d 943 (4th Dep’t 1988), Also, in Campney v. People, 718 N.Y.S.2d the Fourth Department of the Appellate 898 (3d Dep’t 2001), where the inmate claimed Division held that a Pre-sentence Report can he needed his Pre-sentence Report in order to never be released for any purpose other than “apply for certain prison programs and future that for which it was prepared (i.e., to help the parole release consideration,” the court found judge establish sentence). his claim too “speculative and insufficient” to However, in Blanche v. People, 598 support his application. N.Y.S.2d 102 (3d Dep’t 1993), the Third Here, the court held, the Petitioner made Department held that the sentencing court may “only a bare assertion that he requires his disclose the Pre-sentence Report--if the party Pre-sentence Report for an upcoming parole requesting the Report can show some hearing.” He did not inform the court of the date Page 22 Vol. 17, No. 3; Spring 2007

of the hearing or why he needed the Report to prepare. Under these circumstances, the court found, it did not have enough information to determine whether the Petitioner was entitled to his Report. “Petitioner’s bare assertion that he needs it for an upcoming parole hearing is insufficient,” held the court. Pro Se Practice Inmate’s Article 78 Proceeding Dismissed as Untimely Bringing an Excessive Force Lawsuit in the Matter of Watson v. Goord, 832 N.Y.S.2d 464 Court of Claims (3d Dep’t 2007) New York State can be held liable in the The Petitioner filed a grievance in the winter Court of Claims when state employees, of 2003-2004, alleging that he was not provided including Correction Officers, cause injury by with adequate winter clothing. He filed another using excessive force. However, succeeding in in December 2003 challenging the institutional an excessive force claim is very difficult. The procedure for reviewing his complaint about law allows officers to use reasonable force to medical care. His grievances were maintain order and protect themselves, and administratively denied in September 2003 and there are significant obstacles to proving that January 2004, respectively. In January 2005, he the amount of force used was excessive. In commenced an Article 78 proceeding. excessive force cases, the Court of Claims judge Pursuant to Civil Practice Law and Rules is often forced to choose between the inmate’s § 217 (1), Article 78 proceedings are governed story of what happened, or the Correction by a four-month statute of limitations. Officer’s, with little additional evidence. In the Section 217(1) states: “a proceeding against a vast majority of cases, the court credits the body or officer [an Article 78 proceeding] must testimony of the officer. Moreover, even in the be commenced within four months after the rare instances in which inmates have determination to be reviewed becomes final and successfully proved excessive force, the damage binding upon the petitioner or the person whom awards are usually modest. he represents in law or in fact, or after the Nevertheless, filing an excessive force claim respondent’s refusal, upon the demand of the in the Court of Claims may, for many, be an petitioner or the person whom he represents, to attractive alternative to filing in federal court. perform its duty…” The process is generally simpler and more An administrative determination becomes straightforward, many of the procedural hurdles “final and binding” when it is received by the that prevent federal courts from addressing the person who wants to bring the Article 78 merits of inmate cases do not exist in the Court proceeding. of Claims, and the threshold of what you must Here, because the Petitioner did not start his prove to establish excessive force is slightly Article 78 proceeding until a year or more after lower in the Court of Claims than it is in federal his grievances were decided, the court court. dismissed his claim. Vol. 17, No. 3; Summer 2007 Page 23

This article is intended to be a brief guide to [N]o officer…shall inflict any blows filing an excessive force case in the Court of whatever upon any inmate, unless in self Claims. defense, or to suppress a revolt or insurrection. When any inmate, or group Deadline for Filing an Excessive Force Claim: of inmates, shall offer violence to any person, or do or attempt to do any injury i Under the Court of Claims statute, if you to property, or attempt to escape, or believe a Correction Officer used excessive resist or disobey any lawful direction, force against you, you must either file your the officers and employees shall use all claim in the court or serve the Attorney suitable means to defend themselves, to General with a notice that you intend to file maintain order, to enforce observation a claim, within 90 days of the incident. If of discipline, to secure the persons of you give notice within this 90-day period, the offenders and to prevent any such you have one year from the date of the attempt or escape. incident to file the claim in court. If you fail to either give notice of your claim within 90 New York regulations require that days, or fail to file your claim within one Correction Officers use only “such degree of year, the Court of Claims cannot hear your force as is reasonably required” and that they case. See Court of Claims Act § 10(3-b). not “lay hands on or strike an inmate”: unless they “reasonably believe that the physical force i There is one exception: If you miss the to be used is reasonably necessary for 90-day deadline for filing a claim or giving self-defense; to prevent injury to person or notice of your claim, you can file a motion property; to enforce compliance with a lawful for permission to file a late claim. (For more direction; to quell a disturbance; or to prevent information on filing a late claim, request an escape.” 7 N.Y.C.R.R. § 251-1.2(b). PLS’s “Late Claims” memo.) These rules do not specify precisely what kinds of force or level of force is excessive--it i However, if more than one year has passed, depends on the particular circumstances of the all claims, including late claims, are barred incident. When an inmate brings an excessive by New York’s statute of limitations. force claim, the Court of Claims must determine Excessive force claims are considered to be whether the degree of force was “reasonably “intentional tort” claims, which are required” or “reasonably necessary,” focusing barred after one year has passed on “the circumstances confronting the officers from the date of the incident. or guards.” In past cases, the Court has been very What Constitutes Excessive Force Under willing to defer to the judgment and credibility New York law? of Correction Officers. The judges often note in their opinions that Correction Officers “are New York corrections law allows officers to charged with the unenviable task of maintaining use some force against inmates for certain order and discipline in correctional facilities purposes. Correction Law § 137(5) states: under stressful circumstances.” Therefore, Page 24 Vol. 17, No. 3; Spring 2007

judges are very reluctant to conclude that a hit his head repeatedly against a steel given amount of force was unreasonable. doorway 5 to 11 times. He also testified that his glasses fell on the ground and Proving Excessive Force: that an officer stepped on them. But a nurse who examined the Claimant In order to determine whether Correction observed no evidence of injury, and Officers used excessive force, the Court of testified that “based upon Claimant’s Claims examines the specific circumstances of description of the nature and duration of the incident and evaluates the credibility of the assault, one would expect to find witnesses. In excessive force cases, the very obvious injuries.” The court also credibility of the witnesses is crucially noted that photographs of the inmate important. It is very often the decisive factor. after the alleged assault showed that his In nearly all excessive force cases where an glasses had not been broken. The State inmate can show an injury, the court must also called a doctor as a medical expert decide between the inmate’s account of how the who testified that with an assault as injury occurred and the account provided by the described by Claimant, she would officer who testifies/officers who testify. The expect to see serious head injuries. The inmate bringing an excessive force claim bears judge agreed that had the events the burden of proving that the officer(s) used unfolded the way the Claimant alleged, excessive force. In other words, if the judge “one would expect very visible and finds the inmate's testimony and the perhaps life threatening injuries.” officer's/officers’ testimony equally believable, Because there was no such objective the inmate loses and the claim is dismissed. medical evidence consistent with the In deciding whose testimony to believe, the inmate’s claims, the judge dismissed the Court typically considers the following: case.

! The demeanor of the witnesses. ! The internal consistency of the Correction Officers’ testimony, and whether it squares ! The internal consistency of the claimant's with the physical evidence. testimony, and whether it squares with the " Where several officers corroborate each physical evidence, including evidence of the other’s testimony, the court will likely claimant's injuries. believe their account. " The Court will be suspicious of an " Even when the Correction Officers' inmate's testimony about excessive force testimony about an incident shows if medical reports do not show the kinds minor inconsistencies, the court will still of injuries that would be expected. For credit their account as long as it is example: In Dougal v. State, Claim consistent about the critical details of No. 102893 (Court of Claims, April 13, the incident. 2003), the court dismissed an inmate’s claim partly because medical reports did ! Photographs or videotapes: In excessive not corroborate the inmate’s testimony. force cases, “photographs of the condition The Claimant testified that Correction of claimant's body immediately after that Officers punched him in the kidney/rib alleged force was applied [are] inescapably area 20 to 25 times, and that an officer relevant, whatever they may or may not Vol. 17, No. 3; Summer 2007 Page 25

show.” The law requires “full disclosure of q For example, in Blacks v. State, a Claimant any films, photographs, video tapes or audio suffered an injury above his eye during an tapes” involving a party to the case. altercation with Correction Officers. The inmate claimed that the officers had ! Medical records: Courts will always slammed his face into some cell bars examine the claimant's medical records for without provocation. But an officer testified proof of injuries. When no medical evidence that the inmate suddenly kicked another substantiates the claimant’s allegations of officer in the knee while being escorted in injuries, the court will dismiss the claim. handcuffs to the Special Housing Unit, and that the injury occurred when the officer ! Results of disciplinary actions or other court then tried to subdue him. Although the proceedings: When an inmate has been inmate produced a videotape documenting disciplined or convicted for assaulting the that he did indeed have an injury above his officer during the same incident during eye, the videotape did not show how the which the inmate was injured, the court will injury happened. Because the injury was be more likely to dismiss the inmate’s consistent with the officer's account of the excessive force claim. altercation, the court credited the officer’s testimony and dismissed the inmate’s claim. ! Information from officers’ personnel records about past conduct not allowed: The q In Quiles v. State, the Claimant admitted court will not allow the claimant to obtain that he had been fighting with another information from a Correction Officer’s inmate, but testified that the fight had personnel records for the purpose of broken up by the time Correction Officers showing that the officer probably assaulted arrived. The Correction Officers testified the claimant because he had assaulted other that the fight was ongoing when they were inmates in the past. called in to break it up, and that the Claimant resisted their efforts to subdue Examples of “Reasonable” Use of Force: him. The Court found that any injuries the Claimant suffered were a result of either his There are several situations where the Court initial fight with the other inmate or his of Claims typically finds that the officers’ use of resisting the officers. force was reasonable and not excessive, even when the inmate can prove that the use of force Inmates disobeying orders: caused an injury. Similarly, if officers give a credible account Inmate-instigated violence: that an inmate has resisted an order, the Court will allow the officers to use some force Where Correction Officers give a credible (including “takedowns”) to subdue the inmate. account that an inmate instigated violence against the Correction Officers, the Court will | In Curkendall v. State, a Claimant was able very likely find that the officers’ use of force in to produce a videotape of an incident in response was reasonable. which a Correction Officer grabbed his arm and took him to the floor during a strip frisk. Page 26 Vol. 17, No. 3; Spring 2007

The Claimant also produced a medical lie prone on the floor, “he would not have report that showed pain and significant experienced the use of force…. His injuries bruising from a sprained knee, a laceration were the direct result of his own violent and above his eye, as well as abrasions to his hip assaultive behavior that day in his cell.” and back. Nevertheless, the judge found that Therefore, the officer’s use of force was because the inmate had resisted the officer's reasonable and necessary. attempt to remove contraband hidden in his hand, the officer was justified in wrestling Possession of weapons: the inmate to the ground. The amount of force was “reasonable and appropriate”  In Rosell v. State, the Claimant’s ankle was because the inmate “disobeyed a direct broken during a struggle with Correction order and came off the wall during the Officers who had spotted a concealed razor. frisk.” The court found that the officers’ use of force in tackling and restraining the inmate | In Odom v. State, the testimony and written was reasonable because the inmate “was reports of Correction Officers stated that an armed, attempted to flee, and resisted the inmate refused to dress himself following a officers.” strip frisk. The court found that this “continued defiance and aggressive Lack of objective evidence as to the cause of an behavior” justified the officers in “taking injury: him to the floor to put on his pants.” ) In McKee v. State, the Claimant produced | In Williams v. State, a Claimant suffered a an x-ray report showing that he had a fractured arm in a struggle with Correction dislocated shoulder that he claimed was the Officers. The Claimant testified that he did result of an unprovoked assault by not resist the officers’ orders to raise his Correction Officers. Despite the x-ray hands for a frisk, and that an officer pushed report, the court dismissed the case on the his hands up toward his neck while ground that the inmate had failed to present handcuffed, resulting in the fracture. any other evidence indicating how the However, two officers testified that the shoulder was dislocated. “No use of force Claimant resisted being placed in handcuffs report…or report of inmate injury, or other and the fracture occurred as one officer independent corroboration of the event was struggled to place him in cuffs. After presented in evidence. Without more, observing the witnesses’ demeanor in giving Claimant's testimony alone does not these differing accounts, the court persuade the court that the [State] should be concluded that the amount of force was not liable for the alleged acts of its employees." excessive under the circumstances. Proving Injuries: | In Thorpe v. State, the court believed the Claimant's testimony that he was “slammed” Need for an expert: to the ground when an officer body tackled him to break up a fight between the Expert medical evidence is not necessary Claimant and his cellmate. But, the court when the injuries documented in a claimant's held, had the Claimant obeyed an order to medical records are of such a nature as to be Vol. 17, No. 3; Summer 2007 Page 27 within the range of common knowledge and S An inmate who testified that he was struck experience. An example of a situation where no twice on the back of the head with a baton medical expert is needed was a case where during a pat-frisk was awarded $200. medical records showed that an inmate's wrists showed swelling and abrasions after he was S An inmate whose medical records showed placed in excessively tight handcuffs--no “minimal swelling and small abrasions” on medical expert was needed to prove that the his wrists after he complained that his handcuffs caused the abrasions. handcuffs were too tight was awarded $200. But in more complex cases, medical experts are needed. For example, in one case, an inmate S An inmate who suffered knee pain after a was struck twice on the jaw by a Correction Correction Officer knocked his knee into a Officer and later underwent surgery to remove concrete wall received $300. a salivary gland from his jaw. The Court of Claims declined to compensate the inmate for S An inmate who claimed that he was slapped the surgery because he had not presented and punched by Correction Officers, and medical evidence proving that the blows to the succeeded in proving to the court that “some jaw caused him to need surgery. excess force was used,” was awarded $500.

Damages Available in Excessive Force Cases: S An inmate assaulted by Correction Officers using unnecessary force was awarded When an inmate succeeds in proving that approximately $148.95 for his broken sports excessive force was used, the Court of Claims eye glasses, $2.43 for lost shower slippers, can only award compensatory damages. In other and $3,000 for his injuries. words, the Court can only award compensation for the actual harm that the inmate is able to Cases in which the Court of Claims has prove. The Court of Claims cannot award awarded substantial damages are extremely rare. punitive damages (damages intended to punish In one case more than ten years ago, an inmate the State or the officer). who suffered persistent pain from being struck In excessive force cases, the Court of on the jaw by a Correction Officer was awarded Claims has awarded damages for physical $25,000 for his pain and suffering. In another, injuries, pain and suffering, and damaged/lost an inmate who needed surgery to remove his property. However, even in the handful of cases spleen after a Correction Officer beat him where inmates have succeeded in proving “unmercifully” and “without any provocation” excessive force, damages awarded are usually was awarded $200,000 for pain and suffering modest. For example: and loss of quality of life. But, according to Pro Se’s research, these are the only cases in S An inmate who testified that a Correction more than a decade where inmates have secured Officer banged his head against a metal damage awards in the thousands. door frame and succeeded in proving that his eye was bruised from the incident was awarded $100. Page 28 Vol. 17, No. 3; Spring 2007

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