Below is a list of state and federal cases that PLS has litigated over the past four decades. The list is alphabetized by subject matter and is updated regularly. 

PLS CASES BY SUBJECT MATTER

STATE CASES


ADMINISTRATIVE SEGREGATION

Matter of Pusepa v. Annucci, (Index No. 02505-16) (Albany Co. Sup. Ct.) This Article 78 proceeding challenged a hearing determination to place Ms. Pusepa in administrative segregation. Administrative segregation is indefinite confinement in solitary confinement. In many cases involving men, a placement in administrative segregation may be a short-term placement that can be resolved by transfer to another prison where the individual can be safely returned to general population. Ms. Pusepa, however, was a woman at Bedford Hills, which is the only maximum security prison in the state for women and thus, transfer was apparently not an option in this case.

Ms. Pusepa administrative segregation recommendation alleged that a confidential letter, a handcuff key, and results of a confidential investigation show that she conspired to escape from Bedford Hills. The author of the misbehaviour report, testified at the hearing, but he declined to disclose any information related to the confidential letter or the confidential investigation. He did state that the cuff key was not found with Ms. Pusepa's property, and was never alleged to have been in her possession. Petitioner prepared a list of questions about the evidence against her but the responses to those questions were deemed confidential and were not provided to her. Petitioner was given no information about whom she allegedly conspired with or how the handcuff key was connected to her alleged conspiracy. She was told that staff was unaware if she knew about the cuff key. She was told that she was not the author of the confidential letter. She was told that letters were found in a Bible in her cell, but was not told whether or how the letters were related to a conspiracy to escape. She testified that she had no knowledge of a conspiracy to escape.

The Article 78 asserted that Ms. Pusepa was deprived of her right to notice; deprived of her right to review and present documentary evidence; and, that the hearing disposition was not supported by substantial evidence. After the Article 78 petition was filed, DOCCS advised the Court that the hearing had been administratively reversed and expunged and Ms. Pusepa had been released from administrative segregation. 


COMMISSION ON CORRECTION - SUBPOENA AUTHORITY


In the Matter of New York City Health and Hospitals Corporation v. New York State Commission of Correction, 19 N.Y.3d 239 (2012). This case involved the purpose and scope of the Commission’s oversight and investigatory powers, including its subpoena power. At issue in the case was the enforceability of a subpoena duces tecum issued by New York State Commission of Correction commanding Elmhurst Hospital, a health care facility operated by New York City Health and Hospitals Corporation (HHC), “to produce its records respecting its care and treatment of one Carlos Frazier, who, at the time of his pre-mortem hospitalization at the Elmhurst facility, was a correctional inmate in the custody of the City of New York.” The Appellate Division, Third Department held that SCOC’s subpoena duces tecum power did not override the physician-patient privilege and thus denied SCOC’s attempt to obtain the requested hospital records.

As amicus together with Prisoners’ Rights Project, we argued that the Commission’s statutory duty to perform death reviews is undermined by the decision below which inappropriately denied the Commission access to information critical for fulfillment of its intertwined responsibilities to make recommendations “to prevent the recurrence of such deaths . . .” and “to improve the quality and availability of such medical care.” Correction Law Section 47 (1) (d) (e). The Court of Appeals held that “the records sought were not properly withheld from the Commission by reason of the asserted privilege and that the subpoena should be enforced.”



DISCIPLINARY CASES

Arbitrary and Capricious


Matter of Ramirez v. Annucci, (Index No. 2982-15) (Albany Co. Sup. Ct.) On his way to the yard, Mr. Ramirez emptied his pockets onto a table for staff to examine. The material he placed on the table included two hand-rolled cigarettes. The cigarettes were referred to facility drug testing staff who performed NIK testing and determined that Mr. Ramirez' cigarettes contained morphine. He was charged with contraband and possession of a narcotic.

Subsequently, the disciplinary charges against Mr. Ramirez became the basis of a new criminal prosecution for promoting prison contraband and possession of a controlled substance. The hand-rolled cigarettes were turned over to the New York State Police for more sophisticated drug testing. Using gas chromatography/ mass spectrometry, forensic scientists at the State Police detected no controlled substances in petitioner’s cigarettes. Subsequently DOCCS dismissed the drug possession charge but refused to dismiss the remaining contraband charge.

An Article 78 challenged DOCCS’ refusal to vacate the prior disciplinary decision, as arbitrary and capricious because the highly sophisticated drug testing showed there were no contraband. After the case was transferred to the Appellate Division, Third Department DOCCS agreed to administratively reverse the hearing. 

Matter of Hohenkirk v. Annucci, (Index No.1776-14) (Alb. Co. Sup. Ct.) Mr. Hohenkirk set a fire in his cell in the Marcy Residential Mental Health Unit. He was then taken to an outside hospital where a psychiatrist determined that setting the fire was a suicide attempt. When he returned to the prison, Office of Mental Health staff concurred with the view that the fire was a suicide attempt but, nevertheless, charged Mr. Hohenkirk with violating several disciplinary rules, based on the fire including: assault on staff; violent conduct; flammable materials; and property damage. The evidence of the damage caused by the fire was that it cost $100.00 to paint the cell and that there was smoke damage to a section of the cell floor but the cost of the repair had not yet been estimated.

Mr. Hohenkirk was found guilty of all charges, and given a penalty of five months in solitary confinement with loss of privileges and five months recommended loss of good time. Restitution of $1,105.25 was also imposed. Shortly after the hearing ended the superintendent dismissed the charge of possessing flammable materials as part of a discretionary review of the hearing. On appeal DOCCS’ dismissed the charges of assault on staff and violent conduct, but failed to modify the penalty. As a result, Mr. Hohenkirk was found guilty of only the single charge of property damage with a penalty of five months SHU, loss of privileges, and recommended loss of good time, and $1,105.25 restitution.

An Article 78 alleged that the sole remaining charge of property damage was inconsistent with Corrections Law § 401(3) which establishes a presumption against punishment for acts of self-harm “or related charges for the same behaviors, such as destruction of state property.” The Article 78 also asserted that the restitution of $1,105.25 was an abuse of discretion and arbitrary and capricious in that there was absolutely nothing in the record that provided a rational basis for that dollar amount of restitution. After briefs were filed, DOCCS agreed to settle the case, reducing the restitution from $1,105.25 to $362.18, an amount which had already been collected. 

Matter of Pickering v. Fischer, (Index No. 2013-2243) (Alb. Co. Sup. Ct.) Petitioner was accused of personally assaulting an inmate and then also arranging to have several other inmates later attack that same inmate. At his original Tier III hearing, petitioner requested the alleged victim as a witness regarding the attack by several other inmates. The hearing officer denied the request, stating only that he “wasn’t going to put you two in a room together.” When petitioner asked about allowing the alleged victim to testify via speakerphone, the hearing officer denied the request without further explanation. Petitioner was ultimately found guilty, but the disposition was administratively reversed citing “improper denial of witness (victim),” and a rehearing was ordered. 

However, prior to the administrative reversal, the alleged victim had been released from DOCCS custody. At the rehearing, petitioner again requested to call the alleged victim as a witness.  The hearing officer attempted to call him using an eight-year old cell phone number. Petitioner objected to the rehearing as improper in view of the original witness denial and the subsequent release of he requested witness from prison, as well as the manner in which the hearing officer was attempting to contact the witness. After three unsuccessful attempts to reach the witness the hearing officer concluded that he had made reasonable efforts to contact the witness and again found petitioner guilty and sentenced him to nine months in solitary confinement and corresponding recommended loss of good time.

An Article 78 alleged that the decision to affirm the rehearing was arbitrary and capricious because petitioner’s right to call a witness had been violated and the rehearing that had been ordered was not likely to cure the initial defect. The court issued a Decision and Order granting the petition. The court agreed that neither the hearing nor the rehearing comported with petitioner’s constitutional or regulatory rights and that “ordering a rehearing knowing that the witness had been released would not cure that deficiency.” The court further agreed that the respondent’s decision had been “arbitrary and capricious.” The court directed the respondent to expunge the matter from petitioner’s record and to restore him to his prior status. (Click here to read full decision)
 

Confidential Information

Matter of Muller v. Fischer, 120 A.D. 3d 1452, 993 N.Y.S. 2d 388 (3d Dep't 2014). Mr. Muller was one of several individuals charged with orchestrating a boycott of the Inmate Liaison Committee (ILC) at Eastern Correctional Facility by threats of violence. The charges against him were based on confidential information. During the hearing, the hearing officer advised Mr. Muller that the substance of the confidential information was that he had threatened other prisoners in the vicinity of the facility mosque. One witness who was a Captain testified that the people Mr. Muller threatened were those present in the mosque when our client gave a speech. However, the facility Imam testified that he had never heard Mr. Muller speak out against the ILC, and that he could hear everything going on in the mosque, even if he was in his office with the door closed. Despite this evidence, Mr. Muller was found guilty of both charges, and given a penalty including 36 months in solitary confinement and six months recommended loss of good time.

 An Article 78 petition alleged, among other things, that there was not substantial evidence of guilt. The Court ruled that the disciplinary charges were not supported by substantial evidence, and that the hearing officer’s in camera interview with the captain did not provide an adequate basis to assess the credibility and reliability of the confidential information. (Click here to read full decision)


Documentary Evidence


Matter of Knight v. Annucci, Index No. 6049-14 (Albany County Supreme Court) (Bruening, J.) Petitioner Knight received a Tier III misbehavior report, alleging that he violated disciplinary rule 113.24 (dirty urine for opiates). Mr. Knight argued at his hearing that he had a severe allergy to opiates and, as such, could not have tested positive for opiates. Mr. Knight called a medical doctor to testify at his hearing and he affirmed that Mr. Knight’s allergy was severe and, on one occasion, had resulted in a hospitalization of 67 days. Mr. Knight attempted to introduce additional evidence of his allergy and the blood test results that were taken shortly after the urinalysis which, he argued, were negative.

The Hearing Officer refused to admit the blood results and denied Mr. Knight’s request for two witnesses, including one doctor who allegedly could have testified that Mr. Knight’s allergy to opiates was so severe (and well-documented) that he ordered a test sample which resulted in a severe allergic reaction, during which Mr. Knight “coded” (stopped breathing).

At the end of the hearing, Mr. Knight was found guilty and received a penalty of five (5) months in solitary confinement. An Article 78 was filed alleging denial of documentary evidence and denial of witnesses. After the case was filed, DOCCS agreed to administratively reverse and expunge the hearing.



Drug Charges


Morrishill v. Prack, 24 N.Y.3d 914 (2015). Petitioner was found guilty of drug use based on a positive urinalysis test. He raised three issues in his challenge to the disciplinary disposition. He asserted that he was denied the testimony of a relevant witness, a correction officer who he believed would have testified that at the time documented as the time of the drug test, petitioner was in his housing unit, and therefore could not have been in the urinalysis testing area. He asserted he was denied his right to documentary evidence because he was denied unredacted log books that would identify other inmates tested on the day he was tested. Finally, he argued that he was denied his right to present documentary evidence, in that his request for the urinalysis testing manual was denied.

Petitioner lost in the lower courts. PLS took the case on at the Court of Appeals level. Once the Court of Appeals granted leave to appeal, DOCCS acknowledged that petitioner was denied access to the urinalysis manual, but indicated that this was not DOCCS’ current policy which was that a prisoner may review the manual in preparation for a disciplinary hearing, but he cannot possess a copy of it.

DOCCS agreed to settle the case. Petitioner, who had been challenging his hearing disposition for approximately two years, received a full reversal and expungement of the hearing disposition. Petitioner agreed to withdraw his case and to waive all future claims that related to this case. 


Employee Assistance


Matter of Medina v. Annucci, (Index No. 2014-0201) (Erie Co. Sup. Ct.) Mr. Medina was charged with misbehavior and subject to a disciplinary hearing. Mr. Medina declined his initial employee assistant due to his status as a Sergeant noting at his hearing that he wanted a civilian assistant. Mr. Medina also advised the hearing officer that he was told that he could refuse the Sergeant and get another assistant. The Hearing Officer decided to continue the hearing without addressing the lack of assistance because the Sergeant’s name was selected on the assistant form by Mr. Medina. Medina objected, stating that he didn’t know that the name he chose was that of a Sergeant when he made his choices and reiterating that he had been told that he could refuse and get a different assistant. The Hearing Officer denied these objections and when Mr. Medina requested to be returned to his cell for assistance the Hearing Officer asked him if he was refusing to continue in the hearing. Medina said “yes, I need an assistant” and the Hearing Officer had him removed from the hearing.

An Article 78 Petition asserted that: 1) assistance was inadequate and, 2) Petitioner Medina’s right to attend the hearing was violated.

The Court granted the Petition noting that the Hearing Officer had acted arbitrarily and capriciously in denying Petitioner assistance and in continuing and concluding the hearing in his absence. Unfortunately, rather than ordering the court reversed the hearing and ordered a re-hearing. Petitioner filed a motion to re-argue requesting the court to reconsider the remedy and to order expungement. The court granted the motion and, upon reargument, ordered expungement.  (Click here to read full decision)



Excessive Penalty

Matter of Cookhorne v. Fischer, 104 A.D. 3d 1197, 960 N.Y.S. 2d 798 (4th Dep’t 2013) Mr. Cookhonre, a 17-year-old young man, was issued a misbehavior report charging him with Violent Conduct, Assault on Staff, Interference with Employee, Refusing Direct Order, and Refuse Search Frisk. A prison disciplinary hearing was held and Mr. Cookhorne was given a four years in solitary confinement with four years of loss of phones, packages, commissary and good time.  

An Article 78 alleged that: 1) the hearing disposition was not supported by substantial evidence; 2) the officer acted arbitrarily and capriciously and abused his discretion when he failed to consider petitioner Cookhorne’s age as a mitigating factor; and 3) petitioner Cookhorne’s hearing disposition of four years confinement in solitary was harsh and excessive and a violation of the 8th amendment. The Article 78 requested that the Court: 1) declare that the age of sixteen and seventeen year-old prisoners housed in New York State adult correctional facilities must be considered by Respondent as a mitigating factor in all disciplinary proceedings; 2) declare that  punishing sixteen and seventeen year-olds by confining them in solitary confinement cells in New York State adult correctional facilities constitutes cruel and unusual per se, under both the Federal and New York State constitutions, or, in the alternative, declaring that punishing petitioner Cookhorne by confining him in solitary confinement constitutes cruel and unusual punishment in violation of both the Federal and New York State constitutions; and 3) order his immediate released from solitary confinement. 

The Court found that there was substantial evidence of guilt; however, it also found that the disposition of four years in solitary with four years concurrent loss of privileges “is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” The Court considered that fact that petitioner Cookhorne was only 17 years old at the time of the incident, all of the circumstances surrounding the incident, as well as DOCCS disciplinary guidelines in reaching its decision. And, the Court modified the disposition to 18 months in solitary with concurrent loss of privileges.



Failure to Follow Cell Search Directives

Matter of Tenney v. Annucci, (Mott, J) (Index No. 16-190) (Ulster Co. Sup. Ct.) (Aug. 9, 2016): Mr. Tenney was charged with misbehaviour based on the alleged recovery of certain items of contraband during a search of his cell. Mr. Tenney was removed from his cell so that officers could search the cell and ordered to wait in the recreation yard for the duration of the search. A correction officer then covered the window between the recreation yard and the housing unit with paper, thereby obstructing Mr. Tenney’s view of the hallway near his cell. After the search, Mr. Tenney was charged with and found guilty of possessing a weapon and tampering with property, and received a penalty of 365 days in solitary confinement.

An Article 78 alleged that DOCCS violated petitioner Tenney’s rights by failing to follow Directive 4910, which describes the procedures that must be followed for cell searches. The Court held that the provision in Directive 4910, that states that if a prisoner is removed from a SHU cell for the purpose of a cell search, the prisoner is to be placed in a vacant cell, or held at the end of the tier, was applicable.  As such, the court held that DOCCS’ placement of petitioner in an outdoor yard during the cell search violated Directive 4910. The Court also noted that the Directive is mandatory and that violation requires expungement. (Click here to read full decision)

Matter of Dumpson v. Annucci, (Index No. 2013-002759) (Erie Co. Sup. Ct.) Timothy Dumpson was recently transferred to general confinement housing after over 6 six years of confinement in administrative segregation. Just one month after his transfer, Mr. Dumpson received two misbehavior reports charging him with threats, threats of violence, harassment, and contraband-weapon. The first misbehavior report alleged that when approached by a CO to confirm whether Mr. Dumpson wanted to be placed on the haircut call out list, he responded with threats to kill. Following this incident, Mr. Dumpson’s cell was searched whereupon a CO allegedly found a razor hidden in a roll of toilet paper. 

At his hearing Mr. Dumpson denied threatening the CO and alleged that the CO had verbally harassed him by refusing to put him on the haircut list. He also denied possessing a weapon and testified that both reports were fabricated by staff in retaliation for his recent release from administrative segregation. To support this defense Mr. Dumpson requested Wende Deputy Superintendent of Security as well as a Corrections Counselor, both of whom, he said, were aware of the possibility of staff retaliation for his Ad Seg release. Mr. Dumpson also objected to his general confinement cell being searched outside of his presence. The Hearing Officer denied Mr. Dumpson’s witnesses and did not respond to Mr. Dumpson’s objections concerning the search. At the conclusion of his hearing Mr. Dumpson received 36 months SHU confinement, 36 months loss of privileges and 36 months recommended loss of Good Time.

The Article 78 petition set forth several causes of action including that Mr. Dumpson’s regulatory right to observe the search of his cell was violated when the HO failed to inquire as to whether a supervisory security staff member had determined that Mr. Dumpson should not have been permitted to observe the search and that Mr. Dumpson’s constitutional right to call witnesses was violated by the HO’s denial of the requested witnesses. After oral argument was presented, the Judge issued a bench decision granting the petition and reversing and expunging petitioner’s Tier III disciplinary hearing. 

Matter of Franqui v. Fischer, (Index No. 2012-1718) (Clinton Co. Sup. Ct.) (Lawliss, A.J.S.C.) Petitioner was charged with gang-related activity based upon a letter containing alleged gang material that was found during a search of his cell. Petitioner was found guilty and penalties of 9 months confinement to SHU with loss of privileges and 3 months loss of good time were imposed. 

An Article 78 challenged the prison disciplinary hearing disposition alleging that denying petitioner the right to observe the search of his cell was violative of the applicable DOCCS Directive. The court issued a Decision and Judgment, granting the petition and ordering the hearing disposition reversed and expunged. 

(Click here to read full decision)


Failure to Properly Record Hearing

Matter of Hargrove v. Annucci, (Index No. 180-14) (Alb. Co. Sup. Ct.): This Article 78 proceeding challenged a Tier III disciplinary re-hearing at which Ms. Hargrove was charged with and found guilty of writing a letter that threatened prison staff and forging the letter to make it appear to have been written by a different prisoner. At the conclusion of the hearing she received a penalty including 12 months in solitary confinement and 12 months recommended loss of good time. At the first hearing Ms. Hargrove had also been found guilty, but the penalty imposed did not include 12 months of recommended loss good time.

An Article 78 alleged that the hearing tape was so pervasively inaudible as to preclude meaningful review and that the recommended loss of good time was improper, because it was an increase compared to the penalty imposed at the first hearing.  The Court issued a decision which reversed the hearing disposition and remanded the matter to DOCCS for a rehearing. The Court unequivocally found that much of the hearing transcript was noted as “inaudible,” and that the recording was insufficient to permit meaningful review of the hearing. (Click her to read full decision)




Inabsentia Hearings

Matter of Wilson v. Annucci, #523541 (3d Dep’t) (March 2, 2017). Mr. Wilson was charged with misbehavior. At the start of his disciplinary hearing on January 8th, the hearing officer stated he was going to test the tape recorder. When the recording resumed, it was January 9th and the hearing officer was present with the counsellor who allegedly observed the misbehavior, but Mr. Wilson was not present. The hearing officer stated on the record that Mr. Wilson had refused to attend the hearing. The only indication that he had refused to attend was a form signed by the Hearing Officer and an employee witness attesting to Mr. Wilson's alleged refusal. Mr. Wilson asserted that he did not refuse to attend the hearing, but that after he was told to get ready for the hearing, no staff ever came to escort him to the hearing. At the conclusion of the hearing, Mr. Wilson was found guilty of all charges, and received a penalty including 315 days in solitary confinement and six months recommended loss of good time.

An Article 78 was filed on the grounds that petitioner was denied his right to attend his hearing. On March 2, 2017, the Appellate Division, Third Department issued a decision reversing and expunging the hearing. The court held that there was no evidence in the record to support the conclusion that petitioner knowingly, voluntarily or intelligently waived his fundamental constitutional right to attend his hearing. The court stated: “Although the form includes instructions to inform an inmate about the nature of the hearing, the charges against him or her and the fact that the hearing will be conducted in the refusing inmate’s absence, the record reflects no information regarding the steps taken to ascertain the legitimacy of petitioner’s refusal or to inform him of his right to attend the hearing and the consequences of his failure to do so.” 

Matter of Ramirez v. Annucci, (Index No. 2035-15) (Alb. Co. Sup. Ct.): Petitioner Ramirez was excluded from his disciplinary hearing where he was sentenced to nine months in solitary confinement. PLS filed an Article 78 proceeding challenging the exclusion. The court held that our client had been wrongfully excluded from the hearing.

(Click here to read full decision)

Matter of Medina v. Annucci, (Index No. 2014-0201) (Erie Co. Sup. Ct.) Mr. Medina was charged with misbehavior and subject to a disciplinary hearing. Mr. Medina declined his initial employee assistant due to his status as a Sergeant noting at his hearing that he wanted a civilian assistant. Mr. Medina also advised the hearing officer that he was told that he could refuse the Sergeant and get another assistant. The Hearing Officer decided to continue the hearing without addressing the lack of assistance because the Sergeant’s name was selected on the assistant form by Mr. Medina. Medina objected, stating that he didn’t know that the name he chose was that of a Sergeant when he made his choices and reiterating that he had been told that he could refuse and get a different assistant. The Hearing Officer denied these objections and when Mr. Medina requested to be returned to his cell for assistance the Hearing Officer asked him if he was refusing to continue in the hearing. Medina said “yes, I need an assistant” and the Hearing Officer had him removed from the hearing.

An Article 78 Petition asserted that: 1) assistance was inadequate and, 2) Petitioner Medina’s right to attend the hearing was violated.

The Court granted the Petition noting that the Hearing Officer had acted arbitrarily and capriciously in denying Petitioner assistance and in continuing and concluding the hearing in his absence. Unfortunately, rather than ordering the court reversed the hearing and ordered a re-hearing. Petitioner filed a motion to re-argue requesting the court to reconsider the remedy and to order expungement. The court granted the motion and, upon reargument, ordered expungement.  (Click here to read amended decision)


Matter of Campos v. Fischer, Index No. 928-13, (Alb. Co. Sup. Ct.) Mr. Campos was charged with stalking and harassing a female DOCCS employee when he gave her a Mothers’ Day card and advised her that she should be more careful in her dealings with inmates. The employee wrote that Mr. Campos’s conduct was threatening and she was frightened by him. The hearing officer found Mr. Campos guilty and imposed a penalty of 12 months SHU and recommended 12 months loss of good time.

At the hearing, the hearing officer was intemperate, angry and hostile to Mr. Campos. In addition, Mr. Campos says that following the first session of the hearing, the hearing officer threatened him off the record. Due his fear that the hearing officer would make good on his threats, Mr. Campos did not attend the second session of the hearing, writing on the Waiver of Right to Attend Hearing, “I was threatened by the hearing officer and do not feel safe around him.” The hearing officer did not investigate Mr. Campos’ fear or advise him that the hearing would be conducted in his absence. Instead the hearing officer found that Mr. Campos had waived his right to attend the hearing and found him guilty. The determination of guilt was affirmed on appeal but the penalty was reduced to 9 months SHU.

An Article 78 petition alleged that Mr. Campos did not make a knowing, voluntary and intelligent waiver of his right to attend the hearing and sought a reversal of the hearing and annulment of the charges. The court issued a decision in the petitioner’s favor and ordered that the hearing be reversed and the charges expunged. The court found that the hearing officer's "self-serving conclusion that he had not threatened the inmate did not substantiate a determination that the petitioner voluntarily waived his right to attend the hearing.” Adopting the petitioner’s argument, the court held that under the circumstances, “either an independent determination that petitioner's fear was unfounded, or fashioning an environment in which the inmate's concern was reasonable allayed, was necessary” before the hearing officer could proceed without the petitioner.

(Click here to read full decision)

Matter of Rodriguez v. Fischer, (Index No. 2883-12) (Alb. Co. Sup. Ct.) This Article 78 challenged a prison disciplinary hearing alleging a violation of petitioner’s fundamental right to attend and to participate in his own hearing. Petitioner, an inmate in the Residential Mental Health Unit at Marcy Correctional Facility received a misbehavior report which charged him with lewd exposure in the presence of an Office of Mental Health psychologist. At the conclusion of the hearing petitioner was found guilty, and was given a penalty including 90 days in solitary confinement.

Petitioner did not attend his hearing. He was given a refusal form to sign to acknowledge a refusal to attend the hearing. He signed the form, and wrote on the refusal form, “I am feeling suicidal and hearing voices[.] At this time I cannot attend the hearing.” However, at the hearing, the hearing officer did not acknowledge this statement, and simply noted that petitioner refused to come to the hearing. During the course of the in absentia hearing the hearing officer took confidential OMH testimony on petitioner’s mental health at the time of the incident, and his ability to participate in the hearing. While the non-confidential record implies that mental health staff rejected petitioner’s claim that he could not attend the hearing due to a psychiatric crisis, petitioner was never told that OMH staff rejected his psychiatric claim.

The Article 78 asserted that Petitioner’s handwritten statement on the refusal form was, in effect, a request for an adjournment until his psychiatric symptoms abated. The petition also argued that since petitioner was never told that his psychiatric claim was rejected and since no one ever responded to him regarding his request to adjourn the hearing, he was never given an opportunity to make a knowing, voluntary, and intelligent waiver of his fundamental right to attend the hearing. The court issued a decision in favor of petitioner, reversing and expunging the hearing decision. (Click here to read full decision)


 
Inadequate Employee Assistance

Matter of Nance v. Annucci, 46 N.Y.S.3d 717 (3d Dep’t 2017): Mr. Nance was charged with turning off the bars and pushing an officer in the chest. At his hearing, he asserted that he had not received adequate employee assistance. Among other things, he indicated he had asked his assistant to interview all of the inmates on a certain tier so he could determine who had witnessed the incident for which he was charged and select relevant witnesses. The assistant randomly selected six prisoners; five of the six refused to testify and one provided a written statement that he observed an officer push a prisoner.

Mr. Nance also called another prisoner as a witness at his hearing, but the hearing officer stated that at the time of the incident the witness was restrained face down on the floor, and therefore could not have observed petitioner’s incident. Mr. Nance was found guilty of all of the charges against him and received a penalty including 270 days in solitary confinement and six months recommended loss of good time.

PLS filed an Article 78 challenging the disposition. The Court held that petitioner Nance was prejudiced by the assistant’s failure to interview the requested witnesses and that the Hearing Officer erred in denying the requested witness based on his own speculation regarding the content of that the witness’s testimony. The court ordered expungement of the charges.



Off the Record Conversation


Matter of Lora v. Fischer, (Index No. 3438-12) (Alb. Co. Sup. Ct.) This Article 78 challenged a prison disciplinary hearing where Petitioner was charged with and found guilty of drug use on the basis of urinalysis that was positive for amphetamines. At this hearing petitioner denied using amphetamines and suggested there may have been a false positive caused by one of her prescription medications. This claim was rebutted by a memo indicating that the cross-activity specialist for the manufacturer of the urinalysis machine reviewed her medications and found none would produce a false positive.

Petitioner then stated that an officer had told her that Mountain Dew could produce a false positive in urinalysis testing, and she requested that officer as a witness. The hearing officer denied the request on the ground that petitioner had told her employee assistant, and had stated at the beginning of the hearing, that she had no witnesses. The hearing officer insisted that petitioner could not change her mind and call a witness during the hearing.

The hearing officer then adjourned the hearing for three minutes during which he apparently spoke to a Lieutenant who allegedly said Mountain Dew would not cause a false positive. When the hearing resumed, Petitioner continued to request the officer who had told her that Mountain Dew could cause a false positive, and the hearing officer denied the request on the ground that the Lieutenant outranks the officer.

Petitioner was found guilty and received a penalty including 12 months in solitary confinement. The Article 78 petition alleged that the hearing officer denied petitioner’s right to call witnesses, and improperly relied on an off-the-record conversation. The court issued an order reversing and expunging the hearing disposition.
(Click here to read full decision of hearing 1)

Preservation/Waiver

Matter of Henry v. Fischer, 28 N.Y. 3d 1135 (2016), rev’g 120 A.D. 3d 868 (2014): Mr. Henry had a prison discipline hearing and received a penalty including two years in solitary confinement and two years recommended loss of good time. A subsequent Article 78 alleged that petitioner Henry’s rights to call witnesses and present documentary evidence were violated. The respondents claimed that petitioner Henry failed to properly preserve his objection regarding the denial of witnesses and documents.

Upon review, the Court noted the clarity with which petitioner Henry requested certain witnesses and documents, and the fact that the hearing officer understood what petitioner Henry was requesting and denied the requests. The Court held that the issues sought to be raised in the Article 78 were preserved for review. This decision clarifies that if a prisoner’s request for documents or witnesses at a prison discipline hearing is denied, the issue is preserved for review, with no need for a specific objection to the adverse ruling.

 
Remedy

Matter of Wilson v. Annucci, #523541 (3d Dep’t) (March 2, 2017). Mr. Wilson was charged with misbehavior. At the start of his disciplinary hearing on January 8th, the hearing officer stated he was going to test the tape recorder. When the recording resumed, it was January 9th and the hearing officer was present with the counsellor who allegedly observed the misbehavior, but Mr. Wilson was not present. The hearing officer stated on the record that Mr. Wilson had refused to attend the hearing. The only indication that he had refused to attend was a form signed by the Hearing Officer and an employee witness attesting to Mr. Wilson's alleged refusal. Mr. Wilson asserted that he did not refuse to attend the hearing, but that after he was told to get ready for the hearing, no staff ever came to escort him to the hearing. At the conclusion of the hearing, Mr. Wilson was found guilty of all charges, and received a penalty including 315 days in solitary confinement and six months recommended loss of good time.

An Article 78 was filed on the grounds that petitioner was denied his right to attend his hearing. On March 2, 2017, the Appellate Division, Third Department issued a decision reversing and expunging the hearing. The court held that there was no evidence in the record to support the conclusion that petitioner knowingly, voluntarily or intelligently waived his fundamental constitutional right to attend his hearing. 

Matter of Nance v. Annucci, #523293 (3d Dep’t Feb. 9, 2017): Mr. Nance was charged with turning off the bars and pushing an officer in the chest. At his hearing, he asserted that he had not received adequate employee assistance. Among other things, he indicated he had asked his assistant to interview all of the inmates on a certain tier so he could determine who had witnessed the incident for which he was charged and select relevant witnesses. The assistant randomly selected six prisoners; five of the six refused to testify and one provided a written statement that he observed an officer push a prisoner. Mr. Nance also called another prisoner as a witness at his hearing, but the hearing officer stated that at the time of the incident the witness was restrained face down on the floor, and therefore could not have observed petitioner’s incident. Mr. Nance was found guilty of all of the charges and received a penalty including 270 days in solitary confinement and six months recommended loss of good time.

An Article 78 challenging the disposition was filed. The Court held that petitioner Nance was prejudiced by the assistant’s failure to interview the requested witnesses and that the Hearing Officer erred in denying the requested witness based on his own speculation regarding the content of that the witness’s testimony. The court held that, on these facts, expungement of the charges was the proper remedy.  (Click here to read full decision)

Matter of Medina v. Annucci, 144 A.D. 3d 1694 (2016): At his disciplinary hearing, Mr. Medina objected to lack of adequate employee assistance. The Hearing Officer denied his objection and when Mr. Medina requested to be returned to his cell for assistance the Hearing Officer asked him if he was refusing to continue in the hearing. Mr. Medina said “yes, I need an assistant” and the Hearing Officer had him removed from the hearing.

An Article 78 was filed arguing that: 1) assistance was inadequate, and; 2) petitioner Medina’s right to attend the hearing was violated. The Court ruled that the Hearing Officer had acted arbitrarily and capriciously in denying petitioner Medina assistance and in continuing and concluding the hearing in his absence. However, rather than ordering expungement the court reversed the hearing and ordered a re-hearing. In response, a Motion to Reargue was filed. The Court granted the motion and issued an amended decision ordering DOCCS to expunge rather than remit petitioner Medina’s Tier III hearing. DOCCS appealed.

The Appellate Division, Fourth Department affirmed stating that, contrary to respondent’s contention, the Supreme Court had properly determined that expungement of all references to the underlying incident from petitioner’s institutional record, rather than remittal for a new hearing, was the appropriate remedy for the violation of petitioner’s fundamental rights to be present at his disciplinary hearing.

Matter of Tenney v. Annucci, (Mott, J) (Index No. 16-190) (Ulster Co. Sup. Ct.) (Aug. 9, 2016): Mr. Tenney was charged with misbehaviour based on the alleged recovery of certain items of contraband during a search of his cell. Mr. Tenney was removed from his cell so that officers could search the cell and ordered to wait in the recreation yard for the duration of the search. A correction officer then covered the window between the recreation yard and the housing unit with paper, thereby obstructing Mr. Tenney’s view of the hallway near his cell. After the search, Mr. Tenney was charged with and found guilty of possessing a weapon and tampering with property, and received a penalty of 365 days in solitary confinement.

An Article 78 alleged that DOCCS violated petitioner Tenney’s rights by failing to follow Directive 4910, which describes the procedures that must be followed for cell searches. The Court held that the provision in Directive 4910, that states that if a prisoner is removed from a SHU cell for the purpose of a cell search, the prisoner is to be placed in a vacant cell, or held at the end of the tier, was applicable.  As such, the court held that DOCCS’ placement of petitioner in an outdoor yard during the cell search violated Directive 4910. The Court also noted that the Directive is mandatory and that violation requires expungement. (Click here to read full decision)


Matter of Texeira v. Fischer, 26 N.Y. 3d 230 (2015).This Article 78 challenged a prison disciplinary hearing disposition. This disposition arose out of an alleged incident at Attica, in which petitioner was charged with setting up an assault on another inmate. Petitioner was transferred to Clinton where the hearing was begun. It was concluded at Upstate following his subsequent transfer to that facility. Among petitioner’s requested witnesses was the inmate he was charged with assaulting. This inmate was then confined at Elmira. He signed a witness refusal form, in which he stated he was refusing because “I was never at Upstate. I came here from Attica!” Even though the charges had nothing to do with Upstate and it was apparent that the witness must have been misinformed about the nature of his requested testimony, the hearing officer refused to follow-up and clarify the matter and the validity of the witness refusal. Petitioner was found guilty of all seven charges and a penalty of 24 months SHU and corresponding loss of packages, commissary, phone, and recreation and 24 months loss of good time was imposed. The disposition was affirmed upon petitioner’s administrative appeal. 

An Article 78 petition argued that the hearing officer failed in his duty to make a reasonable and meaningful effort to secure the witness testimony by failing to clarify with the witness the nature of his testimony and the basis for his alleged refusal. The court issued a Decision and Judgment granting the petition remitting the matter for a new hearing. An appeal was taken regarding the remedy. The Court of Appeals decided that remittal rather than expungment was the proper remedy.  


Matter of Medina v. Annucci, (Index No. 2014-0201) (Erie Co. Sup. Ct.) Mr. Medina was charged with misbehavior and subject to a disciplinary hearing. Mr. Medina declined his initial employee assistant due to his status as a Sergeant noting at his hearing that he wanted a civilian assistant. Mr. Medina also advised the hearing officer that he was told that he could refuse the Sergeant and get another assistant. The Hearing Officer decided to continue the hearing without addressing the lack of assistance because the Sergeant’s name was selected on the assistant form by Mr. Medina. Medina objected, stating that he didn’t know that the name he chose was that of a Sergeant when he made his choices and reiterating that he had been told that he could refuse and get a different assistant. The Hearing Officer denied these objections and when Mr. Medina requested to be returned to his cell for assistance the Hearing Officer asked him if he was refusing to continue in the hearing. Medina said “yes, I need an assistant” and the Hearing Officer had him removed from the hearing.

An Article 78 Petition asserted that: 1) assistance was inadequate and, 2) Petitioner Medina’s right to attend the hearing was violated.

The Court granted the Petition noting that the Hearing Officer had acted arbitrarily and capriciously in denying Petitioner assistance and in continuing and concluding the hearing in his absence. Unfortunately, rather than ordering the court reversed the hearing and ordered a re-hearing. Petitioner filed a motion to re-argue requesting the court to reconsider the remedy and to order expungement. The court granted the motion and, upon reargument, ordered expungement.  (Click here to read full decision) 

Matter of Pickering v. Fischer, (Index No. 2013-2243) (Alb. Co. Sup. Ct.) Petitioner was accused of personally assaulting an inmate and then also arranging to have several other inmates later attack that same inmate. At his original Tier III hearing, petitioner requested the alleged victim as a witness regarding the attack by several other inmates. The hearing officer denied the request, stating only that he “wasn’t going to put you two in a room together.” When petitioner asked about allowing the alleged victim to testify via speakerphone, the hearing officer denied the request without further explanation. Petitioner was ultimately found guilty, but the disposition was administratively reversed citing “improper denial of witness (victim),” and a rehearing was ordered. 

However, prior to the administrative reversal, the alleged victim had been released from DOCCS custody. At the rehearing, petitioner again requested to call the alleged victim as a witness.  The hearing officer attempted to call him using an eight-year old cell phone number. Petitioner objected to the rehearing as improper in view of the original witness denial and the subsequent release of he requested witness from prison, as well as the manner in which the hearing officer was attempting to contact the witness. After three unsuccessful attempts to reach the witness the hearing officer concluded that he had made reasonable efforts to contact the witness and again found petitioner guilty and sentenced him to nine months in solitary confinement and corresponding recommended loss of good time.

An Article 78 alleged that the decision to affirm the rehearing was arbitrary and capricious because petitioner’s right to call a witness had been violated and the rehearing that had been ordered was not likely to cure the initial defect. The court issued a Decision and Order granting the petition. The court agreed that neither the hearing nor the rehearing comported with petitioner’s constitutional or regulatory rights and that “ordering a rehearing knowing that the witness had been released would not cure that deficiency.” The court further agreed that the respondent’s decision had been “arbitrary and capricious.” The court directed the respondent to expunge the matter from petitioner’s record and to restore him to his prior status. (Click here to read full decision)

 
Right to Call Witnesses

Matter of Nance v. Annucci, 46 N.Y.S.3d 717 (3d Dep’t 2017): Mr. Nance was charged with turning off the bars and pushing an officer in the chest. At his hearing, he asserted that he had not received adequate employee assistance. Among other things, he indicated he had asked his assistant to interview all of the inmates on a certain tier so he could determine who had witnessed the incident for which he was charged and select relevant witnesses. The assistant randomly selected six prisoners; five of the six refused to testify and one provided a written statement that he observed an officer push a prisoner. Mr. Nance also called another prisoner as a witness at his hearing, but the hearing officer stated that at the time of the incident the witness was restrained face down on the floor, and therefore could not have observed petitioner’s incident. Mr. Nance was found guilty of all of the charges against him and received a penalty including 270 days in solitary confinement and six months recommended loss of good time.

PLS filed an Article 78 challenging the disposition. The Court held that petitioner Nance was prejudiced by the assistant’s failure to interview the requested witnesses and that the Hearing Officer erred in denying the requested witness based on his own speculation regarding the content of that the witness’s testimony. The court ordered expungement of the charges. (Click here to read full decision)

Matter of Cortorreal v. Annucci, 28 N.Y. 3d 54 (2016,) rev’g 123 A.D. 3d 1337 (2014): Mr. Cortorreal was charged with misbehavior related to drugs, found guilty and given 12 months in solitary confinement together with loss of packages, commissary and phone privileges. His hearing was reversed for procedural errors and, at a rehearing, eight (8) of his requested witnesses refused to testify. An Article 78 was filed on two grounds: First, three of the refusal forms had no reasons for the refusals to testify, simply stating the individuals did not want to testify; and, second, one witness, who had stated by affidavit that he refused to testify at the first hearing because he was threatened by an officer, also refused to testify at the second hearing, but the hearing officer did not make a reasonable effort to determine if the witness’ refusal to testify at the rehearing was related to threats he received in connection with the first hearing.

The Court of Appeals reversed the lower court’s decision to uphold the charges holding that a hearing officer violates an inmate’s right to call witnesses by failing to undertake a meaningful inquiry into a requested witness’s allegation that the witness was coerced into refusing to testify in a related proceeding. The Court ordered reversal and expungement of the hearing.


Matter of Yaw v. Annucci, (Index No. 5236-14) (Alb. Co. Sup. Ct.) Petitioner was accused of assaulting another prisoner with the assistance of a co-conspirator allegedly in retaliation for the victim’s refusal to smuggle drugs into the facility.  Petitioner denied the charges and pled not guilty.  He requested numerous prisoner and staff witnesses, including the alleged victim and his alleged co-conspirator,, both of whom were named in the misbehavior report. The hearing officer denied both witnesses as a threat to security, on the basis of one of the witnesses being the victim and the other being in solitary facing similar charges. Petitioner was found guilty and given a penalty of 18 months in solitary confinement and loss of privileges and 12 months loss of good time, as well as loss of visitation. (Click here to read full decision)​


An Article 78 alleged improper denial of witnesses. The Court ordered the disposition reversed and ordered remittal for a new hearing. (Click here to read full decision)


Matter of Williams v. Annucci, (Index No. 2015-0810) (Franklin Co. Sup. Ct.): This Article 78 challenged petitioner Williams’s fourth hearing (third administratively-ordered rehearing). Mr. Williams was sentenced to 24 months in solitary confinement for violent conduct and other charges. As he had done at each previous hearing, Mr. Williams testified that he was the victim of an attack by the officer involved. An Article 78 alleged, among other things, that petitioner William’s right to call a witness was denied when the hearing officer (HO) failed to inquire into the reason for that witness’ refusal to testify.

The court concluded that petitioner Williams had been denied his right to request a witness because the hearing officer failed to personally investigate the alleged witness refusal. The court granted the petition and directed the disposition be reversed and expunged from our client’s records. (Click here to read full decision)

Matter of Dumpson v. Annucci, (Index No. 2013-002759) (Erie Co. Sup. Ct.) Timothy Dumpson was recently transferred to general confinement housing after over 6 six years of confinement in administrative segregation. Just one month after his transfer, Mr. Dumpson received two misbehavior reports charging him with threats, threats of violence, harassment, and contraband-weapon. The first misbehavior report alleged that when approached by a CO to confirm whether Mr. Dumpson wanted to be placed on the haircut call out list, he responded with threats to kill. Following this incident, Mr. Dumpson’s cell was searched whereupon a CO allegedly found a razor hidden in a roll of toilet paper. 

At his hearing Mr. Dumpson denied threatening the CO and alleged that the CO had verbally harassed him by refusing to put him on the haircut list. He also denied possessing a weapon and testified that both reports were fabricated by staff in retaliation for his recent release from administrative segregation. To support this defense Mr. Dumpson requested Wende Deputy Superintendent of Security as well as a Corrections Counselor, both of whom, he said, were aware of the possibility of staff retaliation for his Ad Seg release. Mr. Dumpson also objected to his general confinement cell being searched outside of his presence. The Hearing Officer denied Mr. Dumpson’s witnesses and did not respond to Mr. Dumpson’s objections concerning the search.


At the conclusion of his hearing Mr. Dumpson received 36 months SHU confinement, 36 months loss of privileges and 36 months recommended loss of Good Time.

The Article 78 petition set forth several causes of action including that Mr. Dumpson’s regulatory right to observe the search of his cell was violated when the HO failed to inquire as to whether a supervisory security staff member had determined that Mr. Dumpson should not have been permitted to observe the search and that Mr. Dumpson’s constitutional right to call witnesses was violated by the HO’s denial of the requested witnesses. After oral argument was presented, the Judge issued a bench decision granting the petition and reversing and expunging petitioner’s Tier III disciplinary hearing. 

Matter of Mathis v. Annucci, (Index No. 3413-13) (Alb. Co. Sup Ct.) Petitioner was charged with and found guilty of possession of a weapon based on the discovery of a sharpened metal object during a search of petitioner’s cell. At the hearing, petitioner requested inmates King and Maclin as witnesses, as those inmates were in cells adjacent to petitioner’s. Petitioner’s Employee Assistant noted on the Assistant form that that King and Maclin did not agree to testify. At the hearing petitioner repeated his request to produce King and Maclin as witnesses, and stated he did not believe they were refusing to testify. The hearing officer took no action to try to obtain testimony from King and Maclin, or to find out why they were refusing to testify. At the conclusion of the hearing, petitioner was found guilty and he received a penalty including 12 months solitary confinement and 12 months recommended loss of good time. 

An Article 78 alleged that the hearing officer’s failure to make any inquiry into the validity of or the reason for inmates King’s and Maclin’s alleged refusals to testify violated petitioner’s right to call King and Maclin as witnesses at his hearing. The court issued a decision holding that the failure to inquire into the witnesses’ refusals to testify violated Mr. Mathis’ right to call witnesses. The court ordered reversal and expungement of the hearing disposition. (Click here to read full decision)

Matter of Pickering v. Fischer, (Index No. 2013-2243) (Alb. Co. Sup. Ct.) Petitioner was accused of personally assaulting an inmate and then also arranging to have several other inmates later attack that same inmate. At his original Tier III hearing, petitioner requested the alleged victim as a witness regarding the attack by several other inmates. The hearing officer denied the request, stating only that he “wasn’t going to put you two in a room together.” When petitioner asked about allowing the alleged victim to testify via speakerphone, the hearing officer denied the request without further explanation. Petitioner was ultimately found guilty, but the disposition was administratively reversed citing “improper denial of witness (victim),” and a rehearing was ordered. 

However, prior to the administrative reversal, the alleged victim had been released from DOCCS custody. At the rehearing, petitioner again requested to call the alleged victim as a witness.  The hearing officer attempted to call him using an eight-year old cell phone number. Petitioner objected to the rehearing as improper in view of the original witness denial and the subsequent release of he requested witness from prison, as well as the manner in which the hearing officer was attempting to contact the witness. After three unsuccessful attempts to reach the witness the hearing officer concluded that he had made reasonable efforts to contact the witness and again found petitioner guilty and sentenced him to nine months in solitary confinement and corresponding recommended loss of good time.

An Article 78 alleged that the decision to affirm the rehearing was arbitrary and capricious because petitioner’s right to call a witness had been violated and the rehearing that had been ordered was not likely to cure the initial defect. The court issued a Decision and Order granting the petition. The court agreed that neither the hearing nor the rehearing comported with petitioner’s constitutional or regulatory rights and that “ordering a rehearing knowing that the witness had been released would not cure that deficiency.” The court further agreed that the respondent’s decision had been “arbitrary and capricious.” The court directed the respondent to expunge the matter from petitioner’s record and to restore him to his prior status. (Click here to read full decision)

Matter of Texeira v. Fischer, (Index No. 2012-1126) (Clinton Co. Sup. Ct.) (Lawliss, A.J.S.C.) This Article 78 challenged a prison disciplinary hearing disposition. This disposition arose out of an alleged incident at Attica, in which petitioner was charged with setting up an assault on another inmate. Petitioner was transferred to Clinton where the hearing was begun. It was concluded at Upstate following his subsequent transfer to that facility. Among petitioner’s requested witnesses was the inmate he was charged with assaulting. This inmate was then confined at Elmira. He signed a witness refusal form, in which he stated he was refusing because “I was never at Upstate. I came here from Attica!” Even though the charges had nothing to do with Upstate and it was apparent that the witness must have been misinformed about the nature of his requested testimony, the hearing officer refused to follow-up and clarify the matter and the validity of the witness refusal. Petitioner was found guilty of all seven charges and a penalty of 24 months SHU and corresponding loss of packages, commissary, phone, and recreation and 24 months loss of good time was imposed. The disposition was affirmed upon petitioner’s administrative appeal. 

An Article 78 petition argued that the hearing officer failed in his duty to make a reasonable and meaningful effort to secure the witness testimony by failing to clarify with the witness the nature of his testimony and the basis for his alleged refusal. The court issued a Decision and Judgment granting the petition remitting the matter for a new hearing. An appeal was taken regarding the remedy. The Court of Appeals decided that remittal rather than expungment was the proper remedy.  26 N.Y. 3d 230 (2015). (Click here to read full decision)


 
Matter of Wiggins v. Fischer, (Index No. 2012-1435) (Clinton Co. Sup. Co.) (Lawliss, A.J.S.C.) Petitioner was charged with assaulting another inmate with a razor-type weapon in the North Yard at Clinton. Petitioner advised his employee assistant that he wished to call the alleged victim as a witness. On the Assistant Form the employee assistant checked the box indicating that this witness did not agree to testify. At the hearing, despite the lack of any witness refusal form, petitioner’s renewed request for the witness and for a refusal form and the reasons for the witness’s refusal, the hearing officer refused and failed to make any inquiry into the alleged refusal. At the conclusion of the hearing, petitioner was found guilty of violent conduct, assault on inmate and weapon, and not guilty of creating a disturbance and fighting. A penalty of 6 months confinement to the SHU, with loss of privileges, and 6 months loss of good time was imposed. The disposition was affirmed upon petitioner’s administrative appeal. 

An Article 78 argued that the hearing officer failed in his duty to make a reasonable and meaningful effort to secure the witness testimony and failed to make or have made any inquiry into the reason for the alleged refusal to testify. The court issued a Decision and Judgment granting the petition and remitting the matter for a new hearing.   

(Click here to read full decision)

Matter of Lora v. Fischer, (Index No. 3294-12) (Alb. Co. Sup. Ct.) This Article 78 challenged a prison disciplinary hearing and alleged a denial of petitioner’s right to call witnesses. Petitioner was charged and found guilty of drug use on the basis of urinalysis that was positive for amphetamines. Her defense was that she did not use amphetamines and that she believed one or more of her prescription medications may have caused the positive urinalysis. She requested her treating Office of Mental Health psychiatrist as a witness because the psychiatrist had told her that some of her medications could produce a false positive result for amphetamines. Petitioner’s request to call her psychiatrist as a witness was denied on the ground that the psychiatrist “would not have testimony regarding the incident.” At the conclusion of the hearing petitioner was found guilty and received a penalty including 12 months in solitary confinement.

After the case was filed, DOCCS agreed to administratively reverse and expunge the hearing. Accordingly, the case was dismissed as moot. (Click here to read full decision) 


Matter of Lora v. Fischer, (Index No. 3438-12) (Alb. Co. Sup. Ct.) This Article 78 challenged a prison disciplinary hearing where Petitioner was charged with and found guilty of drug use on the basis of urinalysis that was positive for amphetamines. At this hearing petitioner denied using amphetamines and suggested there may have been a false positive caused by one of her prescription medications. This claim was rebutted by a memo indicating that the cross-activity specialist for the manufacturer of the urinalysis machine reviewed her medications and found none would produce a false positive.

Petitioner then stated that an officer had told her that Mountain Dew could produce a false positive in urinalysis testing, and she requested that officer as a witness. The hearing officer denied the request on the ground that petitioner had told her employee assistant, and had stated at the beginning of the hearing, that she had no witnesses. The hearing officer insisted that petitioner could not change her mind and call a witness during the hearing.

The hearing officer then adjourned the hearing for three minutes during which he apparently spoke to a Lieutenant who allegedly said Mountain Dew would not cause a false positive. When the hearing resumed, Petitioner continued to request the officer who had told her that Mountain Dew could cause a false positive, and the hearing officer denied the request on the ground that the Lieutenant outranks the officer.

Petitioner was found guilty and received a penalty including 12 months in solitary confinement. The Article 78 petition alleged that the hearing officer denied petitioner’s right to call witnesses, and improperly relied on an off-the-record conversation. The court issued an order reversing and expunging the hearing disposition. (Click here to read full decision)

Matter of Singh v. Fischer, (Index No. 3491-12) (Alb. Co. Sup. Ct.) This Article 78 challenged a prison discipline hearing during which a requested witness allegedly refused to testify, but provided no reason for the alleged refusal.  At the conclusion of the hearing petitioner was found guilty and the hearing officer imposed a penalty including 12 months in solitary confinement and 12 months recommended loss of good time. In his Reasons for Disposition statement the hearing officer stated that since there was no evidence that the requested witness wanted to testify for petitioner, the hearing officer was not required to personally inquire into the witness’s refusal.

The petition alleged that, following the Court of Appeals’ decision in Barnes v. LeFevre, 69 N.Y.2d 649 (1986) the fact that the record contained no reason, or evidence of any inquiry into the reason for the witness’s refusal to testify established a violation of petitioner’s right to call witnesses. See also: Hill v. Selsky, 19 A.D.3d 64, 66-67 (3rd Dep’t 2005) In line with these cases, the petition alleged that since there was no evidence of any inquiry into the requested witness’s reason for refusing to testify, petitioner’s right to call the witness was violated and the only appropriate remedy was reversal and expungement.

DOCCS responded with a motion to dismiss the petition on grounds of mootness noting that they had administratively reversed and expunged the hearing because “the hearing officer violated settled law by making no effort to determine the reason for [the witness’s] refusal to testify. Accordingly, the case was dismissed as moot. 


Matter of Steele v. Fischer, (Index No. 3492-12) (Alb. Co. Sup. Ct.) Petitioner was charged with assaulting and fighting with his cell-mate. Petitioner denied the charge and called his cell-mate as a witness.  A check mark on the employee assistant form indicated that the cell-mate refused to testify. At the conclusion of the hearing petitioner was found guilty and given a penalty including five months in solitary confinement.

The petition alleged that since the record revealed no reason for the cell-mate’s refusal to testify, and contained no evidence that the hearing officer or any other officer made any attempt to inquire into the reason for the refusal to testify, the hearing officer violated petitioner’s fundamental right to present witnesses. The Court of Appeals decision in Barnes v. LeFevre, 69 N.Y.2d 649 (1986) held that where there is a witness refusal, unaccompanied by any reason in the record, and where there is no evidence of any inquiry as to why the witness refused to testify, or that the hearing officer communicated with the witness to verify the refusal, there is a violation of the fundamental right to call witnesses.

DOCCS argued that the petition should be dismissed because, when petitioner was told by the hearing officer that his cell-mate refused to testify, he failed to object, and merely stated, “yes sir.” In addition, DOCCS noted that the hearing was held on different dates, and that although petitioner was present when the witness refusal was mentioned, he did not attend the final portion of the hearing, and that petitioner therefore forfeited any procedural objections to the hearing. In response Petitioner argued: 1) the failure to inquire into the reason for the cell-mate’s refusal to testify was a violation of a constitutional right, and a waiver of a constitutional right must be by a knowing, intelligent, and voluntary waiver, not by mere acquiescence; and 2) since petitioner stated in his administrative appeal that the reason he did not attend the final portion of his hearing was that he had been threatened by correctional staff and was fearful for his safety, it would be inequitable to bar petitioner from pursuing the claim that he was improperly denied the right to call witnesses.

The court issued a decision granting the petition, holding that the hearing officer failed to make any effort to determine the reason for the requested witness’s refusal to testify. 

(Click here to read full decision)


Substantial Evidence

Matter of Emerenciano v. Annucci, (Feldstein, J.) (Index No. 2016-170) (Franklin Co. Sup. Ct.)  Mr. Emerenciano was an Inmate Liaison Committee (ILC) representative who voiced his constituents’ concerns regarding a new facility yard policy. This policy allegedly required prisoners to sit on the ground for extended periods of time after any incident, even if the ground was wet or muddy, and even if the prisoner was disabled or elderly. Mr. Emerenciano was told he would need to take the matter up with Deputy of Security Bell, the person who had promulgated the policy at issue, but was then given a misbehavior report charging him with threats and demonstration relating to his statements about the new yard policy. He was found guilty and given 270 days in solitary confinement. The hearing officer at his hearing was Deputy Bell.  

PLS filed an Article 78 challenging the disposition based on substantial evidence and hearing officer bias. In response, the Office of Inmate Discipline/Special Housing reversed and expunged the hearing.  

Matter of Derti v. Annucci, 145 A.D. 3d 1126, 41 N.Y.S. 3d 801 (3d Dep't 2016).  Mr. Derti received a Tier III ticket charging him with smuggling, contraband, and altered items. The misbehavior report alleged that a C.O. received information about the existence of contraband in a hollow beam on the outside wall separating two cells, one of which belonged to our client. Upon further investigation, the C.O. uncovered a cell phone, SIM card, and battery. Mr. Derti was housed on an honor block that was open throughout the day, and accessible to prisoners both from his own housing unit, as well as those from other units. Additionally, the hollow beam in which the cell phone was found was accessible from within and outside of the cell, regardless of whether the cell door was closed. After a disciplinary hearing on that matter, Mr. Derti received three years of SHU, with one year suspended, and three years loss of packages, commissary, phone, and good time.

An Article 78 was filed and transferred to the Appellate Division, Third Department because it raised an issue of substantial evidence. The Court unanimously annulled the disciplinary hearing determination finding that the disposition was not supported by substantial evidence, as there was a lack of proof tying the contraband specifically to petitioner.


Matter of Perez v. Annucci, 126 A.D. 3d 1387, 4 N.Y.S.3d 457 (2015) Mr. Perez received a misbehavior report charging him with violating rule 105.14 unauthorized organizational material. The report alleged that 11 pages of written material related to the “Young Lords” (a Puerto Rican nationalist organization) were found in Mr. Perez’ cell. The first page of a printed Wikipedia article concerning the history of the “Young Lords” was attached to the misbehavior report.   

Rule 105.14 prohibits the possession of written material related to an unauthorized organization where such material “expressly or by clear implication” advocates violence against others, or disobedience against DOCCS staff, or where the material could facilitate organizational activity by an unauthorized organization within a DOCCS facility (examples of this type of material listed in the rule include an organizational roster, by laws, or constitution). At his hearing, Mr. Perez argued that the material confiscated from his cell did not violate this rule as it did not advocate violence or disobedience nor did it contain bylaws or a roster.

The hearing officer received testimony from a Sgt. who identified himself as a gang expert. He explained that the “Young Lords” are not a gang but that they are an unauthorized organization. Mr. Perez asked the Sgt. if the material advocated violence. Both the Hearing Officer and Sgt. conceded that it did not. Mr. Perez also asked whether the material could be construed as a roster, organizational chart or constitution and the Sgt. testified that it was not anything like that. Only the first page of the Wikipedia article that was attached to the misbehavior report was considered on the record. The remaining 11 pages cited in the report were not placed in the hearing packet or considered during the hearing and are not part of the record. At the conclusion of his hearing, Mr. Perez reiterated his defense; however he was found guilty and received nine months in solitary confinement as well as nine months loss of privileges.

An Article 78 petition contained three causes of action. First, the guilty finding was not supported by substantial evidence. Second, the Hearing Officer’s guilty determination was arbitrary and capricious. Third, nine months of solitary confinement for the possession of a Wikipedia article was an excessive penalty. The court granted the Petition holding that the disposition was not supported by substantial evidence and ordered reversal and expungement of the disposition.  

Matter of Bridge v. Annucci, 132 A.D. 3d 1197, 19 N.Y.S. 3d 607 (2015). Mr. Bridge was accused of weapon possession, among other things. He was given a disciplinary hearing, found guilty and punished with 12 months in solitary confinement with corresponding loss of packages, recreation, commissary, and phones, and three months recommended loss of good time. At his hearing, the author of the misbehavior report testified that he relied upon confidential sources and that the weapon used in the incident was never recovered. The record of the hearing showed that the Hearing Officer (HO) failed to make the requisite independent assessment of the informants’ reliability or credibility. In the Statement of Evidence Relied Upon, the HO stated that he relied on the author of the misbehavior report’s final assessment of the confidential informants’ reliability.

An Article 78 alleged that the determination was not supported by substantial evidence. The court agreed and issued a decision reversing the disciplinary disposition, expunging the charges and restoring petitioner’s loss of good time.  

Matter of Cooper v. Annucci, 129 A.D. 3d 1419 (3d Dep’t 2015):  Mr. Cooper was given a misbehavior report charging him with violent conduct and assault. He was subsequently found guilty and received a penalty of 18 months in solitary confinement. The report was based on confidential information. At the hearing, the victim and three other prisoners testified that Mr. Cooper was not involved in the assault. The Hearing Officer stated that he was going to consider confidential statements in this case. However, based upon a review and assessment of the record, it appears that at no point did the Hearing Officer make the requisite independent assessment of the informant’s reliability or credibility. The Hearing Officer did not even interview the Sergeant who authored the report that relied on confidential information and it appears he did not conduct any confidential interviews of informants. Instead, at most it appears he considered a confidential report of the investigation. There was no mention in the statement of reasons or evidence relied upon of any independent assessment of the reliability and credibility of the confidential information or sources either.  

An Article 78 was filed asserting lack of substantial evidence arising out of the failure to undertake the independent assessment of the confidential sources and information. 
The Court issued granted the petition holding that the hearing officer failed to undertake the necessary independent assessment of the confidential information, mandating annulment of the disposition and expungment from petitioner’s institutional record, including restoration of 18 months of recommended loss good time. (Click here to read full decision)

Matter of Muller v. Fischer, 516399 (3d Dep’t, Sept. 6, 2014): Mr. Muller was one of several individuals charged with orchestrating a boycott of the Inmate Liaison Committee (ILC) at Eastern Correctional Facility by threats of violence. The charges against him were based on confidential information. During the hearing, the hearing officer advised Mr. Muller that the substance of the confidential information was that he had threatened other prisoners in the vicinity of the facility mosque. One witness who was a Captain testified that the people Mr. Muller threatened were those present in the mosque when our client gave a speech. However, the facility Imam testified that he had never heard Mr. Muller speak out against the ILC, and that he could hear everything going on in the mosque, even if he was in his office with the door closed. Despite this evidence, Mr. Muller was found guilty of both charges, and given a penalty including 36 months in solitary confinement and six months recommended loss of good time.

An Article 78 petition alleged, among other things, that there was not substantial evidence of guilt. The Court ruled that the disciplinary charges were not supported by substantial evidence, and that the hearing officer’s in camera interview with the captain did not provide an adequate basis to assess the credibility and reliability of the confidential information. (Click here to read full decision)

Matter of Smith v. Annucci, (Index No. 5543-13) (Alb. Co. Sup. Ct.) ​Mr. Smith was removed from his cell so a cell search could be conducted. He received a misbehavior report alleging that when he was ordered to “lock in” to his cell he stopped and threw his adult diapers toward the officers. As a result, he was charged with unhygienic act, interference, and refusing a direct order. At the hearing, he testified that he could not return to his cell because he was confined in a wheelchair and the diapers on the floor were blocking the wheelchair. He asserted that he simply moved the diapers out of the way so that he could return to his cell and that the diapers in question were not soiled, and therefore there was no “unhygienic act.” At the hearing, when Mr. Smith asked the officer who wrote the report whether he had inspected the diapers to determine whether they were soiled, the hearing officer did not permit the officer to answer, stating he assumed the officer had examined the diapers, since the report referred to the diapers as soiled. There was also evidence that a second officer was involved in the cell search, but when Mr. Smith attempted to call the second officer as a witness, the officer who wrote the report could not recall his name. At the conclusion of the hearing, Mr. Smith was found guilty of each charge, and a penalty including 90 days of solitary confinement was imposed.

An Article 78 alleged, among other things, that there was no substantial evidence of unhygienic act because there is no evidence that the diapers were soiled and that there was a violation of petitioner's right to call witnesses. After the Article 78 was filed, DOCCS administratively reversed the hearing. 

​Matter of Griffin v. Fischer
, (Index No. 6067-12) (Alb. Co. Sup. Ct.) Mr. Griffin worked as a facility DJ. He received a misbehavior report that alleged that he was instrumental in undermining the Inmate Liaison Committee (ILC) election process at Eastern CF by using the DJ announcement system to coerce other inmates into boycotting the ILC election. At his hearing Mr. Griffin objected that the disciplinary charges against him were in retaliation for testimony he gave on behalf of a fellow prisoner, who was facing similar charges of undermining the ILC election process. One day after he gave that testimony, Mr. Giffin was charged with misbehavior, found guilty and a penalty including 24 months of solitary confinement and 24 months recommended loss of good time.

An Article 78 raised four causes of action: inadequate notice; lack of substantial evidence; denial of right to call witnesses; and, biased hearing officer. After the case was transferred to the Appellate Division and petitioner's brief and record was filed, DOCCS notified the court that it had administratively reversed the hearing and expunged the charges. 

Matter of Whitley v. Fischer, (Index. No. 1094-12) (3d Dep’t 2012). Mr. Whitley received a misbehavior report alleging his involvement in a 20-man fight and asserting that he “was observed by staff throwing closed fist punches at the head and torso of unknown inmates.” As his hearing Mr. Whitley stated he was in the yard at the time of the fight, but that he had no involvement in the fight. He stated that he never attempted to join the fight, and that he lay on the ground as soon as he was ordered to do so.

The author of the misbehavior report who was present at the incident testified at Mr. Whitley’s disciplinary hearing stating that he never personally observed Mr. Whitley engage in misbehavior, rather, he believed Mr. Whitley was involved in the fight because he had observed Mr. Whitley in the general area where the altercation took place.  A video of the yard at the time of the incident was shown during the hearing and neither the hearing officer nor the author of the misbehavior report could identify Mr. Whitley in the video.

Mr. Whitley was found guilty of several charges and received a penalty including 36 months in solitary confinement and twelve months recommended loss of good time. An Article 78 petition was filed on the ground that the disposition was not supported by substantial evidence. After petitioner filed the brief and record, DOCCS administratively reversed the hearing disposition and released petitioner from solitary confinement. The case was subsequently dismissed as moot.

Matter of McCollum v. Fischer, (Index No. 2010-0304) (Clinton Co. Sup. Ct.) (Lawliss, A.J.S.C.) Petitioner was accused of alleged involvement in a disturbance in the North Yard at Clinton Correctional Facility, resulting in misbehavior charges of violent conduct, creating a disturbance, refusing a direct order, and gang activity. He was found guilty of all the charges and given a penalty of 18 months in solitary confinement and corresponding loss of packages, commissary, phone, and recreation and 18 months loss of good time was imposed.

The Article 78 petition asserted that the disposition was not supported by substantial evidence. The author of the misbehavior report did not specifically identify petitioner as being involved in the disturbance. Instead, he accused petitioner of involvement solely because of the area where he was located following the incident when the yard was secured. After the case was transferred to the Appellate Division, Third Department, because the petition raised substantial evidence, the  Respondent agreed to administratively reverse and expunge the disposition. 



EXCESSIVE USE OF FORCE - STATE COURT OF CLAIMS


Lebron v. The State of New York, Claim No. 117186 (Court of Claims). This case alleged that while claimant was in his cell at Green Haven Correctional Facility an officer entered the cell, assaulted claimant, and left. Claimant was in keepklock cell confinement and did not leave his cell for any reason for the next two days. After the facility infirmary received an anonymous note stating that claimant had been assaulted, Claimant was escorted to the infirmary, and injuries were documented and treated. An x-ray showed that claimant sustained a fractured nose. The case was ultimately settled for monetary damages. 




FORCED FEEDING


Matter of Racette, for an Order Authorizing the Administration of Medical Treatment to Hawkins, (Wash. Co. Sup. Ct.) Mr. Hawkins commenced a hunger strike, and facility officials commenced the instant proceeding seeking an order to force feed Mr. Hawkins. The court issued an order to show cause which authorized DOCCS to monitor Mr. Hawkins’ weight and health, and set a hearing on the issue of whether forced feeding should be ordered.  

At the hearing, after DOCCS officials testified, it became apparent that although Mr. Hawkins was on a hunger strike he was eating and/or drinking enough to avoid the kind of serious weight loss that could present an imminent threat to his health. Therefore, the court kept in place the order to show cause provisions that allowed DOCCS to obtain vital signs, including weight, and conduct physical examination and blood tests, but the court declined to order forced feeding since it was clear weight loss was not sufficiently serious. 



FREEDOM OF INFORMATION LAW (FOIL)

Prisoners’ Legal Services of New York v. Annucci, (No. 3686-13) (Alb. Co. Sup. Ct.): This Article 78 challenged DOCCS’ denial of two separate FOIL requests. The first FOIL request was made to DOCCS’ Central Office for DOCCS’ policies for preservation of videotapes. The request was denied on the ground that disclosure could endanger the life or safety of another person. The second FOIL request was for witness refusal forms included in the record of a prisoner’s Tier III disciplinary hearing. DOCCS refused to provide the requested forms on the ground that disclosure would constitute an unwarranted invasion of privacy. The importance of the refusal forms flows from the Court of Appeals’ decision in Barnes v. LeFevre, 69 N.Y.2d 649 (1986). There the Court held that a witness refusal to testify that is not explained in the record is a violation of an inmate’s right to call witnesses. DOCCS created the refusal form as a way to document the reason for a witness’ refusal to testify. An inmate and his or her counsel need to know the reason for a refusal, in order to know whether the right to present witnesses has been violated.

 After the Article 78 was filed the case was settled. DOCCS issued a new policy on disclosure of witness refusal forms, together with an amended refusal form. The policy acknowledges that in most instances, refusal forms should be disclosed, but in specific instances, hearing officers may determine that disclosure of the refusal form would jeopardize safety and security. Under the new policy, in any hearing in which a hearing officer determines that a refusal form cannot safely be disclosed, all refusal forms for the same hearing will be withheld. In addition, certain changes were made to the witness refusal form, including deletion of language expressing generic reasons for a refusal, and simply leaving a large blank space for the recalcitrant witness to write the reason for the refusal.


PAROLE 


Matter of Cronin v. Stanford, (Alb. Co. Sup. Ct.) Mr. Cronin was returned to prison for a new sentence imposed as a result of a crime committed while on parole supervision. An Article 78 challenged the Parole Board’s determination as to the date of delinquency seeking additional time available as jail time credit toward our client’s current sentence. The petition alleged that when petitioner was declared delinquent as a result of his new sentence, the Parole Board used the wrong date, that is, the new sentence date, rather than the crime date, as the delinquency date. The significance of the delinquency date is that it interrupts the prior sentence until such time as the individual is returned to state prison or restored to parole supervision. A person is entitled to jail time credit for time spent in jail on charges that result in a criminal sentence, but cannot receive jail time credit for time credited to a previously imposed sentence. If a prior sentence is running, the time will be credited to the prior sentence even if the individual is in jail on new charges. 

Parole acknowledged the law that requires the delinquency date be set as the crime or arrest date. However, Parole relied on a policy that if a person serves a parole violation time assessment before a new sentence is imposed, then, when a second delinquency is declared based on imposition of a new sentence, the delinquency date will be the sentence date. In this case, Parole relied on the sentence date as the delinquency date because of an intervening delinquency and restoration to supervision.

The Article 78 asserted two causes of action. First, that an agency policy that relies on the sentence date as the delinquency date in certain cases is unlawful because it conflicts with both the regulation that the delinquency date must be the earliest date on which the conditions of release were violated and numerous appellate decisions. Second, that if Parole’s stated policy was applied reasonably to this case, the delinquency date should be the offense date for one of the crimes for which he was sentenced. This one crime date was after petitioner had been found to be delinquent and restored to supervision. There was no intervening delinquency between that crime date and the subsequent sentence.

In response, Parole changed the delinquency date to the date requested which resulted in petitioner receiving approximately 10 ½ months of additional jail time credit. 


RESIDENTIAL TREATMENT FACILITIES

Matter of Muniz v. Uhler, (Index No. 2014-0531) (Franklin Co. Sup. Ct.): A writ of habeas corpus sought the immediate release of Mr. Muniz from DOCCS custody because he was one of numerous individuals swept up in the new DOCCS approach toward sex offenders who have reached their maximum expiration date, but are unable to secure housing. The Sexual Assault Reform Act (SARA) prohibits most sex offenders from residing within a 1,000 feet of a school or other location where children frequent, and due to SARA, many sex offenders are unable to find SARA-compliant housing. Because of this, DOCCS adopted a policy to hold such individuals in so-called Residential Treatment Facilities (RTF), but in reality, the confinement was in a DOCCS prison.

After the habeas corpus action was filed, the Court ordered DOCCS to promptly transfer Mr. Muniz from the prison where he was being held (Woodbourne) to RTF-compliant housing or else release our client from custody. Shortly thereafter, DOCCS released Mr. Muniz from custody to post-release supervision (PRS) in the community.

People ex. Rel. Scarberry v. Connoly, et al.
, (Index No. 2014-3963) (Rosa, J.) (Dutchess Co. Sup. Ct.): A writ of habeas corpus sought the immediate release of Mr. Scarberry. The maximum expiration date of Mr. Scarberry’s sentence was April 30, 2014, but DOCCS informed him that as a special condition of his release he would be required to participate in the programs of a residential treatment facility while serving his period of post release supervision. Despite the alleged “release” to a residential treatment facility, Mr. Scarberry remained incarcerated at Fishkill Correctional Facility where he was treated the same as a sentenced prisoner.

DOCCS has authority to place offenders in residential treatment facilities. The definition of a residential treatment facility is in Corrections Law §2(6), and further provisions on the operation of residential treatment facilities is in Correction Law §73. According to Correction Law §2(6) a residential treatment facility is a correctional facility, “consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available” for people who are or who will soon be eligible for release to community supervision, and “who intend to reside in or near that community when released.”  The definition in Correction Law §2(6) implies, and the additional provisions in Correction Law §73 make reasonably explicit, that a key component of a residential treatment facility is that individuals held there are able to leave the facility to participate in rehabilitative programs in the surrounding community, which should be near where the individual intends to reside after release.

The court converted the habeas corpus action into an Article 78 proceeding and held an evidentiary hearing on the question of whether Fishkill met the statutory definition of a residential treatment facility. After the conclusion of the hearing, the Judge issued a decision holding that DOCCS’ efforts to make Fishkill a statutorily compliant residential treatment facility were insufficient, and no more than de minimis. The court ordered our client released to an appropriate shelter. (Click here to read full decision)
 

POST RELEASE SUPERVISION


Matter of Carnrite v. Unger, (Index No.  21212-12) (Wyoming Co. Sup. Ct.) The judge at Mr. Carnrite’s sentence proceeding never pronounced a term of post release supervision, but a court assistant later administratively added PRS to the sentence the judge had imposed. The sentencing minutes proved that the Mr. Carnrite was correct in that the Court had not pronounced the PRS term and that the PRS had been added to his sentence by an administrative clerk.

PLS filed a Habeas Corpus Petition arguing that Mr. Carnrite should be immediately released because he was being illegally detained by DOCCS based upon a portion of a sentence that was not pronounced by the judge. The Writ was sustained and Mr. Carnrite was ordered to be immediately released. Mr. Carnrite was released from custody 1 year, 4 months and 14 days earlier than DOCCS had calculated his maximum expiration date due to the illegal imposition of PRS. 



SENTENCING/JAIL TIME

Matter of Lett v. Annucci, (Index No. 0013-15) (Clinton Co. Sup. Ct.): This Article 78 concerned DOCCS’ refusal to compute petitioner Lett’s sentence and legal dates so as to afford him proper concurrent federal sentence credit. Mr. Lett was sentenced by both Greene County Court and the United States District Court for the Northern District of New York on charges stemming from the same conduct. Both jurisdictions expressed intent for the sentences to run concurrently. However, because Mr. Lett was sentenced to his federal term three weeks after state sentencing, and sent to a federal prison, DOCCS refused to appropriately credit him with the concurrent federal sentence credit. DOCCS position was that no credit was due because Mr. Lett was not received into DOCCS custody until nearly 31 months later.

In response to an Article 78, the court granted Mr. Lett’s request to have his federal sentence run concurrently with his state sentence and ordered DOCCS to recalculate his sentence. The recalculation resulted in 32 months of additional sentence credit for Mr. Lett.


Matter of Pivetz v. Sheahan, (Index No. 49107) (Seneca Co. Sup. Ct.) Mr. Pivetz was sentenced to two (2) years to be satisfied by completion of the Willard Drug Treatment program and successful post release supervision. For reasons that never became clear, he did not arrive to begin treatment until 52 days after his sentencing date. Due process requires that inmates who are judicially sanctioned to parole supervision at Willard be transferred to Willard no later than 40 days after the date that they were sentenced. After a habeas petition seeking Mr. Pivetz’s release was filed the Respondent conceded that Petitioner’s transfer to Willard had not taken place within 40 days of sentencing and a judgment ordering the Petitioner’s release within 10 days was signed. 

People v. Kuras, (Ind. No. 13-13A) (Yates Co. Ct.): Mr. Kuras  was sentenced in one county to 2½ to 5 years and 4 ½ months later he pled guilty in a different county to other charges and received a second sentence of 2½ to 5 years to run concurrent with the first sentence. However, because of Penal Law 70.30(1)(a)(5), only the minimum term of the second sentence is credited with the time served on the first sentence. Thus, as a result of the passage of time between the imposition of the two sentences, the effect of the second sentence was to extend Mr. Kuras’ maximum release date by 4½ months.

The court granted an application to amend the sentence and commitment order to of the second sentence to reflect the intention of the parties and the sentencing court to impose a completely concurrent sentence.

Matter of Cronin v. Stanford, (Alb. Co. Sup. Ct.) Mr. Cronin was returned to prison for a new sentence imposed as a result of a crime committed while on parole supervision. An Article 78 challenged the Parole Board’s determination as to the date of delinquency seeking additional time available as jail time credit toward our client’s current sentence. The petition alleged that when petitioner was declared delinquent as a result of his new sentence, the Parole Board used the wrong date, that is, the new sentence date, rather than the crime date, as the delinquency date. The significance of the delinquency date is that it interrupts the prior sentence until such time as the individual is returned to state prison or restored to parole supervision. A person is entitled to jail time credit for time spent in jail on charges that result in a criminal sentence, but cannot receive jail time credit for time credited to a previously imposed sentence. If a prior sentence is running, the time will be credited to the prior sentence even if the individual is in jail on new charges. 

Parole acknowledged the law that requires the delinquency date be set as the crime or arrest date. However, Parole relied on a policy that if a person serves a parole violation time assessment before a new sentence is imposed, then, when a second delinquency is declared based on imposition of a new sentence, the delinquency date will be the sentence date. In this case, Parole relied on the sentence date as the delinquency date because of an intervening delinquency and restoration to supervision.

The Article 78 asserted two causes of action. First, that an agency policy that relies on the sentence date as the delinquency date in certain cases is unlawful because it conflicts with both the regulation that the delinquency date must be the earliest date on which the conditions of release were violated and numerous appellate decisions. Second, that if Parole’s stated policy was applied reasonably to this case, the delinquency date should be the offense date for one of the crimes for which he was sentenced. This one crime date was after petitioner had been found to be delinquent and restored to supervision. There was no intervening delinquency between that crime date and the subsequent sentence. In response, Parole changed the delinquency date to the date requested which resulted in petitioner receiving approximately 10 ½ months of additional jail time credit. 

Matter of Kennedy v. Fischer, (Index No. 7347-11) (Alb. Co. Sup. Ct.) This Article 78 sought an order requiring DOCCS to credit petitioner’s five year determinate sentence, with a period of 202 days during which he was serving a misdemeanor sentence in Nassau County Jail, where the misdemeanor sentence was specifically ordered to run concurrently with the state sentence. In 2008 petitioner was facing criminal charges in the Bronx and in Nassau County. He was sentenced first in the Bronx, to a 5 year determinate sentence. Then, he was sent to Nassau County, where the court imposed a 1 year sentence, to run concurrently with his state sentence. Petitioner remained in Nassau County Jail for 202 days serving the definite sentence, and then entered state custody to serve the determinate sentence. Matter of Campbell v. Fischer, 82 A.D.3d 1562 ( 3d Dep’t 2011) appeared to be controlling.


In Campbell an inmate was arrested while on work release, found guilty of misdemeanors, and received a definite sentence to run concurrently with his felony state prison sentence. DOCCS argued that the relevant statute, Penal Law 70.30(7) did not permit them to credit concurrent definite sentence time against the felony sentence that was interrupted by the work release arrest. However, the Third Department held in Campbell, that the Department must credit the time, in order to give effect to the concurrent misdemeanor sentence that was lawfully imposed. Under Campbell, the petition argued, where the court lawfully imposed the misdemeanor sentence to run concurrently with the state prison sentence, DOCCS must credit the time served in local custody on the misdemeanor sentence, against the felony sentence, to give effect to the misdemeanor sentence that was lawfully imposed. The court concluded that Petitioner was entitled to the additional 202 days of credit and ordered that it be granted.

 

WRONGFUL CONFINEMENT/COURT OF CLAIMS

Daniel Hamer, a/k/a Jerry Hens v. The State of New York, (Index No. 121158) (Ct of Cl.) The Department of Corrections and Community Supervision miscalculated Daniel Hamer’s sentence and as a result he was confined for 30 days beyond his maximum expiration date. A claim was filed for 30 days of excessive wrongful confinement. The case was settled for $3000 in monetary damages. 





FEDERAL CASES



ADA

Wright v. DOCCS, 831 F.3d 64 (2d Circuit): This case involved an appeal of a motion for summary judgment finding in favor of DOCCS’ universal ban on motorized wheelchairs in prison. The complaint alleged that such a ban violated the protections of the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

The Second Circuit held that the Department of Corrections’ blanket ban on motorized wheelchairs violated both the ADA and the RA and that there was a dispute of material fact as to whether DOCCS provided the plaintiff meaningful access to DOCCS’ services or would be unduly burdened by allowing Wright the use of his motorized wheelchair. The court vacated the judgment and remanded the case for further proceedings.



CONDITIONS OF CONFINEMENT

Extreme Heat


Blackmon v. Garza and Kukua, 484 Fed Appx. 866 (5th Cir.) (2012). Eugene Blackmon was a prisoner in the Texas prisons and was subjected to extreme heat.  He sued but lost his case at trial and appealed it. PLS joined with a number of other organizations, to file an amicus brief in support of Mr. Blackmon. The Fifth Circuit (the federal appellate court for Texas, Louisiana, and Mississippi), reversed that trial court judgment and remanded the case back to the trial court for a new trial. 

DELIBERATE INDIFFERENCE


Corris v. Koenigsmann, et al., (Case No. 15-cv-01205) (N.D.N.Y.)(GTS/TWD): This federal lawsuit challenged DOCCS’ policy of denying Hepatitis C (HCV) treatment to any prisoner who has had a positive urinalysis test in the prior six months. The complaint alleged that the policy was not based on current medical standards of care for patients with HCV. Plaintiff Corris was suffering from advanced stage liver disease from HCV, with cirrhosis of the liver and yet was being continuously denied HCV treatment due to positive urinalysis tests. After the lawsuit was filed, DOCCS agreed to settle the case by, among other things: promptly commencing HCV treatment for our client; changing DOCCS’ Hepatitis C treatment policy so that evidence of substance use is not an automatic exclusion from HCV treatment; and agreeing that all patients who otherwise qualify for HCV treatment will be seen by an infectious disease doctor regardless of drug use.

Kosilec v. Spencer, No 12-2194 (1st Cir. 2014): This case addressed the issue of whether the district court erred in finding that the Commissioner of the Massachusetts Department of Corrections was deliberately indifferent to Michelle Kosilec’s need for treatment for gender identity disorder for failing to provide sex reassignment surgery in violation of the 8th Amendment. The First Circuit affirmed the ruling from the district court for Ms. Kosilec to receive her gender affirming surgery.


EIGHTH AMENDMENT

Cruel and Unusual

Crawford and Corley v. Cuomo, et al.
, 796 F3d 292 (2nd Cir. 2015): In this case, the district court dismissed plaintiffs'—current and former state inmates—lawsuit alleging that sexual abuse by a prison guard constituted cruel and unusual punishment violating the Eighth Amendment. The district court found the complaint failed to state a claim under Second Circuit's 1997 decision in Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997). On appeal, the plaintiffs argued the district court erred in dismissing the suit by too narrowly construing the standard established in Boddie which recognized that a single act of sexual abuse may violate the Eighth Amendment if it is entirely gratuitous and devoid of penological purposes. The Second Circuit reversed the district court's order dismissing suit and remanded the case. Clarifying Boddie, the circuit noted that a correction officer's intentional contact with an inmate's genitals or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer's sexual desire or to humiliate the inmate, violates the Eighth Amendment. By alleging that a correction officer fondled their genitals for personal gratification absent penological justification, plaintiffs stated a cognizable Eighth Amendment claim. The circuit also noted that the sexual abuse of prisoners offends contemporary standards of decency.


Excessive Use of Force

Seaton v. Henry, (14-CV-05971) (S.D.N.Y.):  This §1983 lawsuit alleged that a male correction officer used excessive and unnecessary force against a female prisoner at Bedford Hills Correctional Facility. Ms. Seaton was in a room waiting to be interviewed. She managed to do little things to aggravate the officer which escalated to her kicking toward the officer’s inner thigh where he then punched our client in the middle of her face. The entire incident was recorded on videotape. Ms. Seaton sustained a broken nose as a result of being punched by the officer. After filing suit a monetary settlement was reached.

Gross v. Lunduski, 12-CV-1221 (W.D.N.Y.): Mr. Gross was a 55-year old prisoner who was a student in an educational program and needed to use the bathroom at a time when a bathroom break was not scheduled for his class. Although he received permission from the teacher to go to the bathroom, once in the hallway, a correction officer told him to go back to the classroom and wait for the regularly scheduled break. Mr. Gross returned to the class room and talked to the teacher, following which the teacher went into the hallway and advised the correction officer that our client had her permission to use the bathroom. After the teacher returned to the classroom, the correction officer ordered Mr. Gross against the wall and the correction officer then allegedly struck him in the genitals from behind, grabbed and squeezed his testicles and struck him on the right side of his head.

As a result of alleged attack, Mr. Gross suffered painful bruised and swollen testicles, a concussion and a ruptured ear drum. The correction officer claimed that Mr. Gross received his injuries when he fell from a bench on which he was sitting. A §1983 lawsuit alleging excessive use of force ultimately resulted in settlement for monetary damages.

Morales v.  Nelan, et. al., 14-CV-6594, (W.D.N.Y.): Mr. Morales alleged he was assaulted in his cell by correction officers. During the assault, the defendants allegedly grabbed Mr. Morales, shoved him into a wall, and punched, kicked and struck him with their hands. One of the defendants allegedly kicked him in the face as he was lying on the ground. As a result of the assault, Mr. Morales suffered multiple fractures, contusions, and abrasions about the head, face and body, including a blow-out fracture of the right orbit, a fracture of the ventral and lateral walls of the right maxillary sinus, and a broken nose. After a §1983 lawsuit was filed, the parties signed a stipulation dismissing the case in exchange for a monetary settlement.

  
IMMIGRATION CASES

Jones, Immigration Court, Ulster Correctional Facility, (File No. A047-114-094): Mr. Jones, an immigrant, was served with a Notice to Appear in Immigration Court because he was convicted of weapon possession and was thus subjected to a removal hearing. Because his conviction was not an aggravated felony, he was eligible for cancellation of removal if it could be shown that there was good reason for allowing him to stay in the United States. After a merits hearing, the immigration court cancelled removal, finding that the equities, including the fact that he had children who are U.S. citizens, and a sick mother in the U.S., weighed in favor of allowing Mr. Jones to stay in the U.S.

Set Set Mu, Immigration Court, Ulster Correctional Facility, File No. A094-715-017: Mr. Mu is from Burma where he was a member of the Karen ethnic minority. He was admitted to the US as a refugee in 2007. He was convicted of Assault in the 2nd degree.  He never adjusted his status to become a lawful permanent resident. He feared return to Burma due to persecution of the Karen people. Counsel presented a claim challenging his removal under the Convention Against Torture (CAT), based on his well-founded fear of torture or death upon return to his country, intentionally inflicted by the government or with their acquiescence, not arising from lawful sanction. The immigration court ordered deferral of removal under CAT allowing Mr. Mu to remain in the U.S.

Rojas-Gomez, (File No. A097-391-456) (Immigration Court, Batavia, New York): Mr. Rojas-Gomez is a Cuban citizen who was facing deportation proceedings on the basis of his drug conviction. However, the U.S. does not deport people to Cuba. A hearing was held at which Mr. Rojas-Gomez and members of his family, who travelled from Florida to testify, testified on the hardship his deportation would cause. The judge granted cancellation of removal, and as a result he was not deported.


 
WRONGFUL CONFINEMENT/DAMAGES FOR TIME IN SHU


Whitley v. Miller, et. al., 13-cv-00418) (N.D.N.Y.): This case arose from an incident that occurred in the recreation yard at Clinton Correctional Facility. There was a 20-man fight in the yard and Mr. Whitley received a misbehavior report which alleged his involvement. At a subsequent disciplinary hearing, Mr. Whitley stated he was in the yard at the time of the fight, but that he had no involvement in the fight and that he lay on the ground as soon as he was ordered to do so.

The author of the misbehavior report testified that he was present and that he observed our client in the general area of the altercation, but he did not state that he personally observed Mr. Whitely engage in misbehavior, nor did he indicate that any other officer had observed him engage in misbehavior. Mr. Whitley was found guilty of several charges, and received a penalty including 36 months in solitary confinement and twelve months recommended loss of good time. An Article 78, alleging that the disposition was not supported by substantial evidence, was filed and, in response, DOCCS administratively reversed the hearing and released Mr. Whitley from solitary confinement, but not until after he had served approximately fifteen months.

PLS filed a §1983 action seeking monetary damages for the time Mr. Whitely was forced to wrongfully serve in solitary confinement. The complaint alleged that the evidence in the hearing record did not satisfy the due process standard of “some reliable evidence” of guilt, which is needed to support a guilty disposition in a prison discipline hearing. The court granted summary judgment to the plaintiff on the ground that the evidence offered against plaintiff Whitley did not constitute some reliable evidence of guilt. As a result, DOCCS agreed to settle for monetary damages. 

Anderson v. Miller and Prack, 13-CV- 988 (N.D.N.Y.): Mr. Anderson received a misbehavior report which alleged involvement in a 20-man fight, and that he “was observed by staff throwing closed fist punches at the head and torso of unknown inmates,” and refused orders to stop fighting and to lie down. At his disciplinary hearing, Mr. Anderson stated he was in the yard at the time of the fight, but that he had no involvement in the fight. He stated that during the fight, he was sitting on a bench at a remove from the scene of the fights and, while watching a videotape, pointed himself out.

The author of the misbehavior report testified at the hearing testified that he was present and that he observed Mr. Whitley in the general area of the altercation. However, he never stated that he personally observed Mr. Whitley engage in misbehavior nor did he indicate that any other officer had observed Mr. Whitley engage in misbehavior. The officer testified that there were several fights in various locations and that there were inmates in the areas where the fights were occurring who were not fighting. At the conclusion of the hearing Mr. Anderson was found guilty of several charges, and received a penalty including 36 months solitary confinement and twelve months recommended loss of good time. On appeal the solitary confinement penalty was reduced to 18 months.

A §1983 action was filed challenging the SHU sanction imposed at the hearing. The complaint alleged that the evidence in the hearing record did not satisfy the due process standard of “some reliable evidence” of guilt, which is needed to support a guilty disposition in a prison discipline hearing. There was no direct evidence that plaintiff was observed fighting. Plaintiff argued that this case is very similar to the issue presented in Zavarro v. Coughlin, 970 F.2d 1148 (2d Cir. 1992). The Zavarro case arose out of an incident in the mess hall at Great Meadow Correctional Facility. A misbehavior report alleged that every inmate present in the mess hall was involved in the incident, and that the fact that the charged inmate was in the mess hall therefore established his participation in the incident. The Second Circuit held that in the absence of particularized evidence of guilt, the mere allegation that an inmate was present in the mess hall did not constitute “some evidence” of guilt. The defendants agreed to reverse the hearing, reducing the plaintiff’s solitary confinement time by 18 months.

Verley v. Fauss & Bezio, (Docket No. 12-CV-1358) (N.D.N.Y.) This §1983 action alleged due process violations in a prison discipline hearing. Specifically, the complaint alleged that the plaintiff was denied due process in that the hearing disposition was not supported by sufficient evidence, and the penalty of 244 days in SHU was so grossly disproportionate to the non-violent charges brought against plaintiff as to violate the 8th Amendment’s prohibition against cruel and unusual treatment.           

As set forth in the complaint, plaintiff was incarcerated at Mohawk Correctional Facility, and was ordered to produce a urine specimen for urinalysis testing. Plaintiff advised the officer that he had medical problems that made it difficult for him to urinate, that his medication could interfere with test results, and that in the past he was usually given extra time to provide a urine sample. In addition, plaintiff advised the officer that he might be unable to produce a urine sample as directed, because he needed immediate access to a toilet to move his bowels. The officer refused to allow plaintiff to access to a toilet, stating he did not want to watch plaintiff defecate, and that he could only access a toilet to defecate after the urine sample was provided. Plaintiff stated that he was ‘dribbling” urine due to a medical condition, and asked for a specimen cup to catch the urine. The officer refused this request.  After three hours, the time allowed for providing a urine sample under DOCCS policy, plaintiff was still unable to provide a sample. At that time, the officer permitted petitioner to use a toilet to defecate. By that time petitioner had defecated in his pants. As petitioner lowered his pants the officer observed a wet spot on the front of petitioner’s underwear, and feces falling off plaintiff’s pants.

The officer ordered plaintiff to pick up the feces and place it in the toilet, and petitioner obeyed. The officer then wrote a misbehavior report charging plaintiff with failure to comply with urinalysis testing, unhygienic act, and lying or giving misleading information.  The misbehavior report stated that the wet spot on plaintiff’s underwear was “more than a dribble,” apparently implying that that petitioner had deliberately urinated on himself to avoid providing a sample for urinalysis.

A Tier III disciplinary hearing was then held. At the hearing plaintiff called the facility doctor, Dr. Robert Lowenstein as a witness.  Dr. Lowenstein testified that plaintiff had difficulty urinating and should be given additional time to produce a urine sample. Subsequently, and at the hearing officer’s request, Dr. Lowenstein wrote a letter documenting each of plaintiff’s medications and stating whether each medication could impair plaintiff’s ability to urinate. Specifically, Dr. Lowenstein found that four of plaintiff’s medications can cause difficulty urinating. Dr. Lowenstein also wrote that some patients have difficulty urinating on demand, but that it is difficult to distinguish those patients from others who simply do not wish to urinate on demand. Dr. Lowenstein also wrote that such patients should be given 10 ounces of water every ten to fifteen minutes with a sink faucet running and with occasional toilet flushes to stimulate the urge to urinate, over a period of several hours. Dr. Lowenstein never stated, in his letter or his testimony, that he thought plaintiff should have been able to provide a urine sample in three hours, with only three cups of water, nor did he state that he thought plaintiff was malingering or attempting to produce a urine sample. At the conclusion of the hearing the hearing officer found plaintiff guilty of the charges against him, failure to comply with urinalysis testing, unhygienic act, and false statements. A penalty including 18 months SHU was imposed. After serving 244 days in SHU, plaintiff was released early from SHU due to good behavior.  

While an Article 78 challenging the disposition was pending in the Appellate Division, Third Department, DOCCS administratively reversed and expunged the hearing disposition. Subsequently, a §1983 action challenging the prison discipline hearing, and seeking damages for the 244 days that plaintiff spent in SHU was filed. The complaint alleged that plaintiff’s SHU confinement was “atypical and significant” in light of the amount of time he spent there and the conditions of his SHU confinement. The case was ultimately settled for monetary damages.