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Vol. 13 Number 2: Marcb 2003 Publisbed by Prisoners' Legal Services of New York NEW YORK HIGH COURT EXPANDS DOCS' LIABILITY FOR INMATE ASSAULTS In a rare victory for inmates, New York State's highest court, the Court of Appeals, held that the State may be liable when one inmate assaults another if it failed to provide adequate supervision at the time of the assault. In previous cases, courts have held that the State could be liahle in such cases only if it had specific knowledge that an assault was likely to occur. The new case thus expands the circumstances under which the State nlay be liable in "inrnate-an-inmate" assault cases. The case, Sanchez v. State of New York, 99N.Y.2d. 247(2002) arose from an incident that occurred in 1995 at Elmira Correctional Facility. Inmate Sanchez was working as a teacher in the btcility program building when he was assaulted by two unidentified inmates. When the assault occurred there was only one oHicer stationed on the floor to supervise approximately 100 inmates and he was busy assisting inmates retuming video equipment and was unable to see the area where the assault occurred. Sanchez sued the State, alleging that the oHiccr's negligent supervision had contributed to the assault. Wben is an assault foreseeable? The question at issue in Sanchez "\vas whether the assault had been foreseeable. Under traditional principles of tort law, the law of negligence, a defendant GUl only be held liable for an accident if the accident was "foreseeable" that is, if the defendant knew or should have known that circumstances under his control created an unreasonable risk that the accident would occur. Prior to Sanchez New York State courts had generally held that there were only tJlree circumstances in which the state could have "foreseen" and inrnatc-ol1 inrnate assault: (Col1tinlled 011 page 2) Also Inside ... Mixed Messages - A letter from the Executive Director..... ..".....page 3 News and Briefs - New cases that may affect your rights page 4 PLS Settles Mental Health Claims on Behalf of Inmates page 16 Understanding the New 'Son of Sam' Law Post-Release Supervision. page 18 ..page 21 ThiJpnyed it'dS .l'lppotted t:J agn:mt ad!J1iltiftered fry rheNew York .ftate Dilisiol1 o/Cilmina!]ustice Smiccs. Point! Ofl'7Clli in this document are thOJ8 qf the author (Itd do not netessmify repreJellt the t!fJidalpositioti orpolicies fI! tbe Dizision 0/ Ctiminal ]uJtice Senias. Pro Sc Vol. 13 No.2 Page 2 if, 1) the State knew the victim was at risk and failed to take reasonable steps to protect him or her; 2) the State knew the assailant was dangerous, but failed to protect othet inmates from him or her; or, 3) the State had both notice that an assault was likely to oecur and an opportunity to intervene to protect the victim, but failed to do so. The courts had consistently rejected claims alleging that mere absence of supervision made an assanlt foreseeable . .lee, e./;-, Colon v. State of New York, 620 N.Y.S.2d 1015 (3rd Dep't 1994). Inmate Sanchez had testified at trial that he was completely surprised by the assault. He knew of no enemies at Elmira and had no reason to believe hewas going to be attacked. Consequently, both the lower court and the appellate court dismissed his claim. Since there was no evidence in the record to show tJut the State either knew that an assault on Sanchez was likely to occur, that he was at a heightened risk of attack, or that his assailants were particularly dangerous, the appellate court held. there was no basis for holding the State liable for failing to take additional measures to prevent the assault. Sanchez v. State, 732 N.Y.S.2d 471 (3rd Dep't ZOOI). Pro Se is printed and distributed free to people incarcerated in New York State prisons and to New York State prison law libraries, through a generous grant from the New York State Bar Foundation. ll7hat the State Should Have Known The Court of Appeals reversed the appellate court decision. The Court of Appeals held that the appellatc court's focus on what the State tldJltllly knell/was too narrow; it prevented consideration of another factor important to the question of foreseeability - that is, what the State shoJild hal~ kIJOIJJII, based both on its expertise and prior experience in nJllning p1'ison5 and its own policies and practices designed to address the risks of inmate assaults. The Court noted that Sanchez had presented evidence at trial which suggested the State knew that the type of supervision provided by the correction officer at the time of the. attack would increase the risks of inmate assaults. For instance, Sanchez had presented the correction officer's Individual Security Post Description, which required that the offIcer "ren1ain alert and monitor intnates' behavior... to prevent or stop assaults...on inmates." He also presented thc State Commission of Corrections Minimum Standards for County Jails, which state that staff must maintain "active supervision"of prisoners outside of their housing area and define "active supervision" as "the uninterrnptcd ability to communicate orally with and respond to each pI~soner... [and] the ability... to immediately respond to emergency situations." 9 NYCRR 7003.2, 7003.4. Sanchez had also presented the testimony of an expert in prison management. The expert testified that the assault occurted during "goback," a tirne notorious for inmate assaults and argued that the physical layout of the area where the assault occurred made it impossible for one offIcer to maintain either the "active supervision" called for in the Commission on Corrections Standan.ls or the kind of active visual monitoring of inmates called for in DOCS' Security Post Description. He also testifIed that when the assault occurred, the correction ofticer \vas 60 feet away froln Sanchcz, in the storeroorn, \vhere he was unablc to see the "5sault occur, much less prevent it. The Court found that these betors raised a lcgitin1ate question as to \vhethcr it was foreseeable that bx superviSIOn by the correction created a heightened risk that Sanchez would be assaulted, despite the absence of information indicating the presence of a specific threat. The Court noted that the State had written standards of supervision which required the presence of an offIcer who could h"laintain constant contact with inlnates, l11onitor their behavior and provide "active supervision." Pm Se Vol. 13 No.2 Page ;J, Since the very purpose of those standards was to prevent inmate assaults, the Court concluded, the State could not arb'lle that when those standards \vere not met, an assault was unforeseeable. W1Jat Does Sanchez Mean? The S,Ulchez decision does not change the underlying law of negligence. 'ro win a claim against the State in an inmate assault case you must still present evidence to show that the assault was foreseeable. In addition, the S'Ulchez Court emphasized that its holding did not mean that the State must provide "unremitting surveilLUlce in all circunlstanccs," nor did it rnake the State an insurer of inmate safety: "When persons with dangerous criminal propensities are held in close quarters" the Court noted, "inevitably there will be some risk of unpreventlble ass-/lult." 'The nlcre occurrence of an assault does not itself establish that the State was negligent. However, Sanchez does break the rig1d view of foreseeability that has prevailed in the lower courts and opens the door to claims that the State can be E)und negligent based upon its failure to provide adequate supervision. Since such claims had been all but ruled out under prior law, Sanchez represents a broad expansion of the law. MIXED MESSAGES: COMMENTS FROM THE PLS EXECUTIVE DIRECTOR Buried in Governor Pataki's proposed budget is a parole initiative which has been received with mostly positive reviews by prison advocates. The Governor proposes to accelerate the release dates of 1,300 people serving time for non~violcnt felonies. He would do this through the expanded nse of the earned eligibility and merit time prograrns. This is a welcome initiative by the Governor, which seems to reverse the trend of the past decade which focused on lengthening sentences, even for those serving non~violent felonies. But it's too early to suggest that New York will t"lIow the trends in other states to reexamine all sentencing policies with an eye toward a more rational, individnaliyed approach to sentencing and parole release. Many of the same people who might be released early by the Governor's plan, and many others, would also benefit from repeal of the second felony offender law. Although often lumped in with the debate on the Rockefeller DnIg laws, the second felony otfender laws force judges to give prison sentences to those who would be better served by alternatives to prison, such as cornnlUnity based drug treatrnent programs. The Governor, so f,lf, has not supported a roll back of mandatory sentencing which would gives judges the authority to set sen tences based on the record and circumstances of the person before them. The Governor has also called t()[ the total elimination of parole, even for non~violent felony offenses. This would eliminate any individualized review of a persons rehabilitative efforts by the Parole Board. There is another message regarding prison sentences not rncntioned in Governor' Patakils budget. This agenda has been carried out by the Division of Parole over the past eight years. People serving time for violent felonies are finding it harder and harder to gct parole, despite service of long sentences and proof of their rehabilitation. Of the nearly 67,000 inmates now in New York's prisons, 12,611 are facing a maximum sentence of life. Eighty~nine are serving life without parole. FOl- those convicted of violent felonies, the odds of getting Ollt at a tlrst Board appearance, despite an excellent institutional record, continues to drop. Of 162 violent oft"nders up for parole in 1991~92, 39 were granted release. Of the 232 considered in 2001~02, only 10 were released, according to the Division of Parole. "That's a sibrniticant drop" according to Torn (;rcen\ (I Division spokesman. "The parole board [is] looking at people who commit violent felonies with a more jaundiced eye." Even those people who have served the maximum term of their detenninate sentence may not get released under a questionable interpretation of the Penal Law supported by DOCS and Parole. Those agencies argued Pro Se Vol. 13 No.2 Pllge 4 unsuccesstiJlly recently that DOCS has the authority to hold someone past the maximum term of their detcL'111inate sentence, without a violation of the terms of post-release supervision. This has led the Advisory Committees of the Courts, the criminal defense bar and other prison advocates to back an amendment to the Penal Law which says no one can be held beyond the maximum term of a determinate sentence without a finding of a vi()lation. These arc contradictory messages from the Governor, the courts and criminal justice agencies. The message is that differences between individual people is less important, particularly at initial Board appearances. Individual accomplishments and efTorts will not be recognized It's tirne agam for a cornprehensive examination ofthe sentencing policies and practices in this state. A cornrn()11 sense approach will save the state money, redirect lives and free up resources to support cost effective drug treatment programs and proven alternatives to incarceration. hwill also restore money to the state education budget, mistakenly siphoned off to support prison expansIon. Tom Teniz'I! I,. Exemti,'e Dimtor of PliSil/teI:f' Le,gal Smices ofNeill YOlk. NEWS AND BRIEFS Federal Court First Amendment: Inspection ofInmate Mail Duamutef v. Hollins, 297 F.3d 108 (2nd Cir. 2002) The plaintift~ an inmate, had a disciplinary history involving prohibited org,,-nizational activities including charges that he had printed unauthorized fliers for inmates and organized inmate demonstrations. In 1995, [)()CS .offtcials opened his general, non-privileged correspondence and found a publication containing the phrase, "Blood in the Streets" in the title. Concerned that the publication had a "provocative tone," the officials authorized a 30-day watch of plaintiffs It was later determined that the mail. publication was an economics book entitled "Blood in the Streets: Investment Profits in a World Gone Mad." Plaintiff sued, arguing that the watch on his mail was in retaliation tor an earlier grievance he had filed. The District Court dismissed his suit. On appeal, the Second Circuit Court of Appeals held that a liberal reading of his complaint suggested that the plaintiff was making a First Amendment complaint for censorship of his On :malysis, however, the Court mail. concluded there was no violaticln of the First Amendment under these facts. The Court noted that the Supreme C:ourt has upheld broad restrictions on inmates' rights to correspond with prisoners in other institutions Crurner v. Safely, 482 U.S. 78 [1987]) as well as regulations prohibiting inmates from receiving publications deemed detrimental to pnson security. Thornburgh v. Abbott, 490 U.S. 401 (1989). Likewise, the Second Circuit has held that "a valid, rational connection between the decision to impose a watch on [a prisoner'sl mail and the desire to ensure the good of the prison and the rehabilitation of the prisoners" will generally be sufficient to uphold the validity of a watch on rnail. The Court concluded that, in this case, the oftlcials' actions were rationally related to legitimate penological interests. Despite IDe fact that the book turned out to be a harmless economics text, its intlammatory title, combined with plaintiffs prior disciplinary history of prohibited org,,-nizational activities, was enough reason to impose tllemail watch. The Court held: "[I]t is generally sufficient for a prison official to base a security decision on the title alone. Considering the limited resources of prison systems and the intense pressure to prevent security problems, we cannot expect more of con·ections personnel in most circlHTIstances." Pro Se Vol. 13 No.2 piJj1t: 5 Eighth Amendment: Restricted Diet Phelps v. Kapnolas, 308 F.3d ISO (2nd Cir. 2(02) Plaintiff Phelps was an inmate at Southport Correctional Facility when he was placed on a restricted diet for fourteen days. The restricted dict consisted of raw cabbage and "loat" - a bread like substance containing ground vegetables. Phelps filed a lawsuit in federal court alleging that tlie diet "did not contain sufficient calories, vitamins, or nutrients to maintain his physical or ment'al health and tbat, as a result of the diet, he "lost over thirty pounds, sufTered severe abdominal pain, and severe emotional distress." He alleged that prison officials' actions in putting him on the diet violated his right under the Eighth Amendment to be free from "cruel and unusual" punishment. To state a claim under the Ei(~hth o Amendment, a prisoner's complaint must plead both an objecth·e element - that the prison officials' transgressions were "suHlcicntly serious" to "violat.e contemporary standards of decency," - and a JlIbjutil/e element - that the officials acted, or failed to act with a "sufficiently culpable state of mind." (i.e., that they "knew or should have known" that the conditions posed an unreasonable risk of harm to the inmate, and that they acted with "deliberate indifference" to the inmate's health or safety. Farmer v. Brennan, 511 U.S. at 834,114 S.Ct. 1970 (1994) Here, the lower court held that the plaintiffs allegations, even if true, did not state a claim under the Eighth Amendment. The lower court found that the plaintiffs complaint contained "no allegation that any defendant, through the imposition of the restricted diet for fourteen days, acting with deliberate indifference, placed Phelps at substantial risk of serious harm [the subjective element] or that Phelps's weight loss or abdominal pains constihlted serious harm rising to the level of an Eighth Amendment violation Ithe objective element]." The Court of Appeals reversed. Regarding the subjective element of the claim, the Court noted that thecomplaint specifically alleged that the defendants "knew or recklessly disregarded that the restricted diet . . . was nutritionally inadequate" and knew their actions "were likely to intlict pain and suffering and extreme emotional distress." The Court held that, regmdless of the trutll of these allegations, the complaint had sufficiently pleaded them to allow the plaintiff to go to trial. Consequently, the Court f,mnd the lower court erred in dismissing the elaim. Eightll Amendment: Second Ha.nd Smoke Exposure Davis v. State of New York 316 F.3d 93 (2nd Cir.2(02) In 1993, the Supreme Court held that an inmate may state a claim for an Eiehth " Amendment violation based on prison oHicials' deliberate indifference to his exposure to second hand smoke. Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475 (1993) The Court held that in order to prevail in such a claim, the inmate must show that he is likely to suffer seriolts harm as a result of unreasonably high levels of smoke and that prison o Hicials acted with deliberate indifference to his health. Plaintiff Davis was an inmate at Attica Correctional Facility. He tiled a federal lawsuit against prison ofticials claiming that he had been exposed to unreasonably high levels of second h,md smoke and that prison ofticials had been deliberately indift"rent to his plight. He sought both dannges and a permanent injunction. The lower court dismissed his complaint, concluding that his complaint failed to raise a genuine issue of t~lct as to whether he had been exposed to unreasonable levels of second-hand smoke. The Court of Appeals reversed. The Court noted that Davis's complaint alleged that since his arrival at Attica in 1993, he had always been housed in areas where the majority of inmates were smokers; that, in the honor block area, he was surrounded by seven inmates who smoked so much that "tlle smell of smoke tills the air Pro Se Vol. 13 No.2 ['>lge 6 and enter[sJ my cell in a manner as though I myself was smoking"; that the smoke caused dizziness, diftlculty breathing, coughing, watery eyes, blackouts and respiratory problems and that it threatened both his current and hIture health; that the ventilation in his cell was inadequate; and that he had been forbidden from opening the windows to his cell by correction oftlcials who were indifferent to his plight. The court found that these allegations were more than suHicient to state a claim under Helling. and it concluded that the lower court erred in dismissing plaintiffs suit without allowing it to go to trial. Pri..on Litigation Refornl Act: "TlJree Strike.." Rille Malik v. t\1cGinnis, 293 F.3d 559 (2nd Cir. 2002) One of the provisions of the Prisoners' Litigation Reform Act of 1995 (the "PLRA") states that an inmate shall not be allowed to bring ;m action in federal court ill forma pauperis, that is, without ttrstpaying the f1ling fcc, ifhe has, "on 3 or more prior occasions, while incarcerated...brought an action or appeal in a court of the United States that was dismissed on the grounds that it (was) frivolous, malicious or Elil(ed) to state a claim upon which relief may be gGU1ted, unless the prisoner is under imminent danger of serious physical injury." 28 LJ.S.c. § 1915(g). This has been dubbed the "three strike nlle." Plaintiff Malik, while at Attica Correctional F;lcility, commenccd an action in federal district court allq~ng that ofttcials at Southport Correctional Facility had violated his Eighth Amendment right to be free from cmel and unusual punishment by restricting his diet for thirty-ttve days. He also moved to tile his complaint ill .forma pauperis. The District Court found that Malik had had at least four cases previously dismissed for "three strike" reasons and, therefore, denied Malik's motion. In addition, the Court mled, Malik did not fall within the exception to the three strikes mIl' for inmates in "imminent danger of serious physical injury" because his allegation concerned his treatment at Southport, and the complaint was not brought until Malik was at Attica. Consequently, the Court held, the complaint would be dismissed unless Malik payed the fiJlI tiling fcc. Malik appealed. On appeal, Malik argued that the "irnrninent danger" exception to the "three strikes" rule only required him to show that he was in danger of serious physical harm at the time the incident occmred, not at the time the complaint was tiled. Since the restricted diet had placed him in "imminent danger of serious physical harm," at Southport, he argued, the exception should apply. The Court of Appeals rejected this argument. The Court found that although section 1915(g) allows a prisoner to escape the "three strikes" rule if he is under "imminent danger of serious physical injury", Congress's use of the present tense in the statute implied that the danger must exist at the time the complaint is ttled. Further, by using the wotd "imminent" in the statute, Congress indicated that it intended to include a safety valve for the "three strikes rule" to prevent impending harms, not harms that had already occurred. State (,ourt: Di..eipJilJaryHearinll" Confidential Information: Hannie.... Error Matter of Perez v. Goord, 750 N.Y.S.2d 906 (3rd Dep't 2002) Petitioner was found guilty of violating prison disciplinary mil'S prohibiting violent conduct, possession of a \veapon~ refusing a direct order and assault on an inmate. The charges arose from an allegation that he had used a razor to slash another inmate's face and refused a correction officer's orders to desist. \X-'hen he was returned to his cell he was observed removing an article from his mouth that appeared similar to the weapon used in the attack and Hushing it down the toilet. The charges were afttrmed based on the misbehavior Pro Se Vol. 13 No.2 Page 7 report, an unusual incident report and certain confldential information. Petitioner challenged the hearing on the grounds that the hearing offlcer failed to notifY him that confldential infonnation was going to be used in tbe hearing and for failing to state a reason that the information should be kept confidential. Generally, when confidential infotmation is used in a prison disciplinary hearing, the hearing offlcer must inform the inmate that it is being used and state why it cannot be disclosed. Jee,i\latter of Boyd v. Coughlin, 481 N.Y.S.2d 769 (.lrd Dep't 1984). Here, however, the court found that the bilure of the hearing officer to do so was hannless hecause the evidence produced at the hearing was sufficient to sustain the charges even without consideration of the confidential information. Moreover, the confidential information rclated to a collateral incident ,md not to the petitioner's guilt on the charges themselves. Under these circumstances, the Court found, there was "no basis to disturb the determination." Confidential Information: Witnes.~es Matter of Moore v. Miller, 749 N.Y.S.2d 312 (3rd Dep't 2002) Petitioner was found guilty of violating prison disciplinary rules regarding assaults on other inmates. The misbehavior report stated that three contldential witnesses had witnessed petitioner assault another inmate on the basketball courts. Petitioner appealed, asserting that the Hearing Officer did not asseSS the reliability of the contldential inf()rmants. The Court disagreed. The Court found that the Hearing Officet· had personally interviewed one of the informants and conducted a detailed interview with the offlcer who received the information from the other two informants. This g,tve him sufficient hasis to detennine the credibility and reliability of the The court concluded that the informants. confidential inf()rmat1on, 1ll addition to the misbehavior report and the other testimony, provided substantial evidence of the petitioner's guilt. The Court also rejected petitioner's claim that he was denied witnesses. The Court found that one of the witnesses petitioner had called had refused to attend the hearing because he claimed not to have seen the incident. The other witnesses called by the petitioner were correction officers, and the hearing offIcer had concluded that their testimony was i'1"elevant to Under those the incident in question. circumstances, the Court held, there was no reason to conclude that petitioner was improperly denied witnesses. DnJg Testing: Urinalysis Testing l\1atter of Ouinones v. Selsky, 747 N.Y.S.2d 64 (3nl Dep't 2002) Petitioner was found guilty of refusing to obey a direct order and violating urinalysis testing procedures on the grounds that he failed to provide a urine sample within three hours after being requested to do so. Petitioner appealed, arguing that the charges should be dismissed because he spoke and understood only Spanish and he was never told, in Spanish, of the consequences of his failure to provide the urine s;unple. The Supreme Court rejected this claim. The Court found that the record ref1ected that petitioner was provided with an interpreter from the time he was ordered to provide the sample up until the time of his disciplinary hearing and that he repeatedly aHirmed that he understood the proceedings. After thc Supreme Court's decision, the petitioner made a motion to rcopen his case based upon allegedly newly discovered evidence. In his motion he argued that his inability to produce the urine sample was not his fault: it was caused by a condition known as "social phobia," one symptom of which can be tbe inability to urinate when others are present. In support of this motion he suhmitted medical records from a psychiatric center documenting Pro Se Vol. 13 No.2 P!t."'C 8 that he had actually been diagnosed and treated for social phobia. The Supreme Court nevertheless denied his motion on procedural gronnds. The Appellate Division affirmed holding that a motion to reopen must be based on newly discovered evidence. The medical documents submitted by petitioner predated the rehlr11 date of his Article 78 proceeding. Thus, the facts contained in tbose documents were known to him at the time of his original proceeding and could have been presented by him at that time. Under those circumstances, the Court held, a Court should not rcopen a case that has already been litigated. Employee A.~si.~tance : Harmless Error Matter of Brown v. Goon], 750 N.Y.S.2d 800 (3rd Dep't 2002) Petitioner challenged the results of a disciplinary hearing in which he was found guilty of violent conduct, assaulting staffand interferingwith an employee. Petitioner claimed that he was denied adequate employee assistance because his assistant rehlsed to provide him with various documents, including medical records and photograpbs describing the injuries he allegedly inflicted upon the staff. The court rejected his claim. The court found that the petitioner had failed to establish tbat he suffered any prejudice from any alleged deficiencies on the palt of his assistant. The Court believed both the employee assistant and the hearing officer were wrong to assert that the medical records and photographs of the correction oHicers were irrelevant to the chargcs. The Court nevettheless concluded that petitioner had snffered no injury from their error because similar information regarding the correction officer's injuries was contained in other documents that were in the record. Accordingly, the Court concluded, the hearing officer's error was harmless. Practice Pointer: Often, in (balle1(gi1ig a disdplinaty beating, it ir neeeHaty to JbOt!' b011/ ,my allfcged prvcedural defect in tbe conduct o/tbe beatitig worked qgainst 'your abili(y to d~jend..YOtmelf OtbmiJiJe, tbe tYitllt meg find tbat tbe emr Jl'aJ "bamIle,r,r" and iJ notgrrmndsjor tr/Jeni1(g tbe fwdt. Exhaustion ofAdmiJlistrative Remedies MatterofDa~none v. Goord, 748 N.Y.S.2d 707 (3rd Dep't 2002) Petitioner was found guilty in a Tier III hearing of violating a number of disciplinary rules, including attempted escape. The hearing was reversed on administrative appeal because the tape recording was incomplete and only partly audible. A re-hearing was held and petitioner was again found guilty. He tlIed a second administrative appeal. \'Vhile the second appeal was pending, he filed an Article 78 proceeding arguing that it had been improper for DOCS to order the second hearing and asserting that the charges should have been reversed after his initial appeal. DOCS' moved to dismiss the case, arguing that the petitioner had failed to exhaust his administrative remedies. The court agreed with DOCS. By arguing that the second hearing had been improperly brought, the Article 78 proceeding was, in essence, seeking judicial review of that hearing. The administrative appeal ofthe hearing was still pending, however. Consequently, the Article 78 proceeding was commenced prematurely and was appropriately dismissed. Practice Pointer: You must exbaust admit/istratille frmedieJ j)/ior to btingi1(g aft Artide 78 proceeding. Notice: Possession ofContraband Matter of Edwards v. Goord, 748 N.Y.S.2d 707 (3rd Dep't 2(02) Petitioner was found guilty of violating prison disciplinary rules regarding the possession of a weapon after a search of his cell revealed a metal shank hidden in the binding of a book. Pro Se Vol. 13 No.2 Pap::; 9 Although he admitted at the hearing that the book was his, petitioner argued that he did not have exclusive access to his cell and had no idea that a weapon was hidden in the binding. Tbe Court held that these assertions merely created an issue of credibility; the hearing oftlcer was free to resolve the issue against the petitioner. The Court noted, a reasonable inference of possession may arise from the fact that the weapon was found in an area within the inmate's control. Petitioner also argued that the hearing should he reversed on the ground that the misbehavior report had failed to provide him with adequate notice of the charged misbehavior because the author of the report had failed to sign it or note the date of its preparation. The Court rejected this argument too, noting that the missing information did appear in the body of the report and, the reporting ofticer testified at the hearing and was Under those available for questioning. circumstances, the Court held, petitioner had failed to demonstrate any prejudice as a result of the lack of infonnation in tbe misbehavior report. Statute ofLimitations Matter of Lott v. Goord, 745 N.Y.S. 2d 119 (3rd Dep't 2(02) Petitioner was found guilty of violating certain disciplinary rules. The decision was administratively affirmed on February 9, 2001. The Statute of Limitations for commencing an Article 78 proceeding is four months from the date on which you receive notice that the decision you wish to challenge has been administratively aHirmed. In this case, the petitioner had until, approximately, June 11,2001, to file an Article 78 proceeding, i.e., four months from February 9, 2001 (June 9, 2001, fell on a Saturday.) (He may have had a few additional days, because the statute runs from the date you receive notice of the aftlrmance, not the date on which the decision is actually aftirn1ed.) On May 25, 2001, petitioner attempted to commence an Article 78 proceeding challenging the hea.ring. He submitted his papers, including a proposed order to show cause, a verifled petition and an application for poor person's relief, to the Supreme Court in Ulster County. Approximately 10 days later, on June 4, 2001, the Court Clerk informed him that his papers were being returned because he had used an outdated form for his poor person's application. When returning all the papers, the Court Clerk enclosed what was intendecl to be the proper form. However, when petitioner resubmitted this fonn with all his other papers, it was discovered that the Court Clerk had sent him the same out~ot~date form that be had submitted with his original papers. On June 20, 2001, the Court Clerk provided him with the correct form for poor person's relief. By then, however, the Statute of Limitations had passed. Petitioner submitted the completed form and the proceeding was commenced on July 5,2001, the date on which it was received by the Court Clerk and ;U1 index number was assigned. The Supreme Court d,en dismissed the petition on the ground that the Statute of Limitations had passed. The Appellate Division reversed the decision of the lower court. The Court held: "Upon review of the particular circumstances of this case, assuming that the commencement of this proceeding was untimely, we deem it appropriate to correct any mistakes that contributed to the flndingofuntimeliness." The Court reinstated the petition "in the interest of justice." 8ub.~tantial Evidence Matter of Rushing v. Goord, 749 N.Y.S.2d 314 (3rd Dep't 2002) Petitioner, an inmate, suffered two fractured ribs and a split lip after an altercation with a correction ofticer. The correction oHicer wrote a misbehavior report charging petitioner According to the with assault on st:aff. misbehavior report, petitioner had punched the oHicer in the face without provocation. At the Pro Se Vol. 13 No.2 Page 10 disciplinary hearing, petitioner disputed this version of the events. He testified that the correction officer had assaulted him because of the nature of his crime. The hearing oHicer refused to credit petitioner's version of events and found him guilty. Petitioner appealed. The Third Department aHirmed the hearing "'fhe disparity between officer's findings: petitioner's description of the incident and that of the correction officer's raised an issue of credibility As for resolution by the Hearing Officer. substantial evidence supports the determination under review, it will not be disturbed." Practice Pointer: /t is not enO/(gb, in a dltJllel(ge to a disdplinmy bearil(g, to sboJl) tbat tbe betllil(g offieer did 110t believeyollr side oftbe story. 1'011 mllst sboJl' eitber tbat tbe bearing officer's conclllrtollJ )nle not sllpjJOIted I?y "JNbstantial etidence" or tbat tber" Jl'ilS a JeriollsjJIYJCcdllral envr ill tbe condud oftbe betllil(g Jl'bicb prevcntedyoufTom bating i1Jilir cbance to pmenlyollr side oftbe stO!Y. Matter of Whitfield v. Fischer, 739 N.Y.S.2d 720 (2nd Dep't 2(02) Petitioner was charged with violating a prison disciplinary rule prohibiting the possession of stolen property. The charge arose from his failure to return three books he had borrowed from the prison library. Upon receiving the misbehavior report he immediately returned the books. At his disciplinary hearing he claimed to be unaware that they were overdue. The hearing officer found that because he had borrowed books from the library in the past it conld be "assumed" that he knew the rules and was therefore guilty of intentionally keeping the books. The Appellate Division reversed. The Court held that there was no evidence presented to support the hearing officer's assumption that petitioner had intended to keep the books. The only evidence presented at the hearing was that petitioner had unintentionally retained the books beyond their due date and that he immediately returned them upon being informed that they were overdue. That evidence, the Court concluded, "does not give rise to an inference of any intentional wrongdoingwith reg<lrd to the books and can be distinguished from cases in which inmates intentionally damage library books or otherwise evidence an intent to prevent their recovety." Vagueness ofRules Matter of Mitchell v. Fischer 752 N.Y.S.2d 97 (2nd Dep't 20(2) Pelitionerwas found guilty of violating Rule 107.10 (7 NYCRR 270.2IBI18j[i]) after throwing ,vater at a correction officer. Rule 107.10 states that an inmate shall not physically or verbally obstruct or interfere with an employee at any time. Petitioner ar2ued that this rule was " unconstitutionally vague and failed to provide him with adequate notice of precisely what conduct was prohihitcd. The Court found that a nIle is not unconstihltionally vague if it "informs a reasonable person of the nature of the offense prohibited and what is required of him or her." The test is whether the stahlte provides an adequate warning as applied in a specitic situation. "A vagueness challenge" the Court held, "must be addressed to the facts before the court, and a court cannot consider the possibility that a statute may be vague as applied in other hypothetical situations." [n tl1is case, the petitioner supported his argument with hypothetical facts. The Court dismissed his hypotheticals and held that a reasonable person wonkl understand that throwing water at a correction officer would violate the rule because it would be likely to physically interfere with the oHieer's duties. As ;lpplied to these facts, therefore, the Court held the rule was not unconstitutionally vague: [t provided petitionerwith adequate notice that the conduct in which he engaged was prohibited. Pro ScVol. 13 No.2 Page 11 1\latter of Hughes v. Goord, 750 N.Y.S.2d 798 (3rd Dep't 20(2) Petitioner was found guilty of possessing contraband after officers discovered a list of three omcers, with their social security numbers, in bis cell. He asserted that he had obtained the information through a Freedom of Information Law request while serving as a legal assistant assisting another inmate with an assault claim against the officers. In court, he argued that the rule agamst possesston of contraband was The rule defines unconstitutionally vague. "contraband" as "any ;lrticle that is not authorized by the superintendent." The Court rejected petitioner's claims. "We find this language sufficient to have pl;lced petitioner on notice that he would be in violatjon by retaining personal infomution reg'trding correction officers at least two years after he could have held ;lny reasonahle belief that he was ;luthorized to possess it. Petitioner's professed ignorance of this rule does not dictate a contrary result as applied to these facts." P,unilv COllrt Termination ofParental Rights In Re Guardian Ship of Tamara Liz H, 752 N.Y.S.2d 634 (1st Dep't 2(02) A finding of "pettmment neglect" of a child may result in the termination of parental rights and in the child being placed nnder a guardiamhip or placed for adoption. In this case, a finding of permanent neglect was supported by the fact that the respondent-mother, who was incarcerated, "failed to offer any resource for die child other than continued foster care for as long as she rernained in prison.n The court noted fhat although the Commissioner of Social Services for the City of New York had tried to encourage and strengthen the parental relationship by arranging for the respondent to visit the child, the respondent was absent without notice from most of the visits and was eventually incarcerated at a facility impractical for the child to visit, due to a medical condition which made travel difficult. Although the agency infcmned the respondent of the child's medical condition and the special therapies she would require, the respondent was unable to offer a viable caretaker. The court held: "The Legislature did not intend to approve a plan of indefInite foster care for the child of an incarcerated parent who is serving a lengthy prison tettll and who cannot provide the child with an alternative living arrangetnent. l ' Visitation Matter of Rodenbaugh v. Gillen, 738 N.Y.S.2d 621 (4th Dep't 2(02). The petitioner, an inmate, sued in Family Court for visitation with his child at the correctional facility where he was incarcerated. Family Court granted his petition, but limited the visitation to only four days per year during specified months. Petitioner appealed. The Appellate Division afilttned the order fe)r "reasons stated in the decision at Family Couti" (which it did not repeat). It added that the Family Court did not abuse its discretion in t,tiling to specify the duration of each permitted visit: There was no evidence in the record conceming the length of each visit. The Court held, in view of evidence that the child was uncomfortable in petitioner's presence, it Inay be appropriate to impose limits on the duration of the visit. If the parent who had custody of the child were to act unreasonably in limiting the duration of the visits, the Court concluded, petitioner conld seck modittcation of the order of the Family Court to specify the duration of each visit. Pro Se Vol. 13 No.2 Page 12 State Court: Conditional Release. Parole. Post Release Supervision Conditional Requirenlents Release: Programming Matter of Bolster v. Goord 752 N.Y.S.2d 403 (3rd Dep't 2002) Petitioner pleaded guilty to one count of burglary in full satisfaction of an indictment which charged him with a variety of other offenses, including several sex offenses. During his incarceration he refused to participate in DOCS' treatment program for sex offenders on the ground that he had not been convicted of a crime involving sexual misconduct and had never admitted committing any of the unlawful sexual acts that had been alleged in the indictment. When he became eligible for conditional release the Time Allowance Committee withheld his good time based on his refusal to attend the sex offender program. Petitioner brought suit, seeking to restore his good time. The Court affirmed the decision of the Time Allowance Committee. "Good behavior allowances are a privilege" held the Court, " 'and no inmate has the l~ght to demand or to require that any good behavior allowance be grdtlted.''' (Citil{~ 7 NYCRR 260.2.) So long as the TAC's decision to withhold good time is made in accordance with law and is not arhitrary or capricious, it is not subject to judicial review. In this case, the Court found the decision to withhold petitioner's good tifne had a rational basis in the record based upon the contents of the presentence report. Moreover, the Court found, the crime for which he was convicted, burglary in the third degree, had an element of sexual misconduct underlying it. Based on these facts, the Court concluded that the decision to withhold petitioner's good time "had a rational basis in his failure to participate in a program designed to treat the type of behavior that led to his conviction and itnprisonment." Parole Denial Torres v. New York State Division of Parole, 750 N.Y.S.2d 759 (1st Dep't 2002) Petitioner challenged the denial of his request for parole. His instihJtional record was extremely positive. He had a record of good behavior while incarcerated, he had many accomplishments and a good work record while in prison, many letters of support were submitted on his behalf, and his employability, his involvement in institutional programs and his plans upon release all weighed heavily in favor of granting parole. Nevertheless, the Board denied parole. The Court found that the Board did not act "arbitrarily and capriciously" in denying him parole, notwithstanding his positive record. The Court held that his positive post-conviction activities, however commendable, remained overshadowed by the "extraordinary severity" of his crime. Parole Violati011s Matter of Ramos v. New York State Division of Parole 752 N.Y.S.2d 159 (3rd Dep't 2002) Petitioner, while on parole, was convicted of a new ottense in Florida. After serving: c, his Florida term he was returned to N L'W York on a At a parole revocation parole warrant. proceeding, he pleaded guilty to one violation charge. As part of his plea agreement, the Administrative LawJudge recommended that he be held for 30 months, with the understanding that tbe Parole Board would not be bound by that recommendation. Thereafter, the Board determined to hold him to his maximum term. Petitioner brought suit, alleging that his guilty pica was not "knowing and voluntary" because he had not understood that tlle Board was not bound by the ternlS of the plea agreement. The court disagreed. The record showed that he had been represented by counsel at the revocation hearing, he was advised by tlle ALJ that the Pro Soc Vol. 13 No.2 Paw: 13 Board could decide to hold him heyond the recommended 30 months, hc was asked whether he understood the consequences of the plea agreement and he was told that he could plead "not guilty." Moreover, he affirmatively stated that he understood the plea. Under those circumstances, the court found, he could not argue that he did not understand the possible consequences of his plea. Sex Offenders: Sex Offender Registration Act Matter of Mandel, 742 N.Y.S.2d 321 (2nd Dep't 2002) New York's Sex Offender Registration Act (SORA) (Correction Law Art. 6-C) requires that individuals convicted ofcertain sex offenses register their residence with the State of New York. SORA also provides the criteria concerning who must register in cases in which the offender was convicted outside the State of New York (.ree Correction Law § 168-a 121 [b]), as well as pwcedures to ensure that out-of-state offenders are registered (see Correction Law § 168-k). Petitioner was convicted in federal court of possession of child pornography. He was later notified that his case had heen referred to the New York State Board of Examiners of Sex Offenders for review, and for a determination of whether he was required to register with the Stedte ofNew York as a convicted sex offender. His attorney sent a letter to the Board arguing that registration was not warranted. The Board nevertheless determined that registration was required on account of the federal conviction. It recommended that the petitioner he assessed a "level 1" risk and (as the statute requires) referred the matter to County Court for a hearing. At the hearing, petitioner asserted that the Board had incorrectly determined that he must register. The County Court concluded that it was without authority to review that claim in a SORA proceeding and petitioner appealed. The Appellate Division affirmed tl,e decision of the County Court. Under SORA, the Board of Examiners is empowered to determine whether a person must register. The County Court's function is limited to determining the duration of the registration and the level of risk assessment assigned. Since the court's function in a SORA proceeding is limited, it was without autllOrity to review the underlying determination of the Board that petitioner must register. In order to challenge that decision, petitioner would have to bring a separate Article 78 proceeding against the Board. State Court: Sentence Computations Concurrent Sentences: DOCS' Authority to Challenge Sentence Matter of Murray v. Goord, 747 N.Y.S. 2d(lst Dep't 2(02) The facts ofthis sentence computation case are complicated, hut the ultimate holding is not: The Court concluded that DOCS h;L'i no authority to change the terms of an inmate's sentence, even if it thinks the sentence was illegal. The petlnoner in this case was first sentenced on a drug conviction. Later, in front of another judge, he pled guilty to a nYdUslaughter charge. The judge in the manslaugh ter case ordered that the sentence run consecutively to the sentence previously imposed in the drug case. The two convictions were then consolidated for appeal. On appeal, the Appellate Division reversed the drug conviction hut affitmed the manslaughter conviction. The petitioner returned to Supreme Court on the drug case and accepted a plea bargain on condition that the sentence imposed run concurrent with the sentence already imposed in the manslaughter case. The judge accepted his plea ,md ordered that tlle new sentence run concurrent with the manslaughter sentence. When petitioner arrived in state custody, however, DOCS took the position that the concurrent sentence was illegal. It made several Pro Se Vol. 13 No.2 page 14 arguments, one of which relied upon Criminal Procedure Law section 430.10. That section provides, "[e]xcept as otherwise specitically authorized by law, when the court has imposed a sentence of imprisonment ,md such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced." DOCS aroued that because the manslauQhter b sentence bad already commenced, it could not be changed, under CPL 430.10, by the subsequently imposed sentence in the drug case. The Appellate Division disagreed. As an initial matter, the Court held that DOCS had no jUl1sdiction to challenge the commitment it had received in the drug case. "Irrespective of any opinion [the Department] might entertain towards the order of commitment [ in the dmg case] they are not vested with the discretion to ignore its terms. As the last order of commitment reccived from the Supreme Court, the order supersedes any prior order of commitment. Furthennore, by presuming to determine the court's authority to issue tlle order, respondents have intruded upon the prerogative of this Court to decide lany legal question that may arise concerning the order]." Moreover, in ~Ulalyzing the commitment itselt~ the Court concluded that it was entirely legal, despite DOCS' objections. ~, Jail Time: DlmJissal/Acqllittal Clallse Matter of Guido v. Goord, 749 N.Y.S. 2d 915 (3rd Dep't 2002) In 1989, petitioner was arrested and charged with several crimes in Florida. He was eventually acquitted of some of the charges and, on April 22, 1990, the remaining charges wcre dismissed. The next day, on April 23, 1990, he was extradited to New York to face charges in that State. He was convicted of the New York charges ~md sentenced to a term of 12 '/2 to 25 years. He then commenced an Article 78 proceeding arguing that his New York sentence should he credited with the 411 days of jail time that he had previously served in Florida. Penal Law § 70.30(3) addresses jail time. The so-called "dismissal!acquittal clause" ofthat statute states: "In any case where a person has been in custody due to a charge that culminated in a dismissal or an acquittal, d1C amount of time that would have heen credited against a scntence for such charge, had one been imposed, shall be credited ag;unst any sentence d1at is based on a charge for which a warran t or commitmen twas lodged during the pendency of such custody." Here, the petitioner's Florida clhlrges were dismissed and the New York State warrant was lodged against him during the pendency of his Florida custody. Thus, one would think that the plain language of the statute requires that the amount of jail time that would have been credited to the Florida sentence, had one been imposed, should be credited to the New York sentcnce. However, that isn't the casco Although the dismissal!acquittal clause would apply if bodl of the charges had arisen in New York, the New York courts have "established an entirely different set of rules" for situations in which aNew York prisoner seeks credit for jail time spent in a foreign jurisdiction. Matter of Keffer V. Reid, 47:3 N.Y.S.2d 479 (2nd Dep't 1984) dting Matter of Peterson v. New York State DeDt. of Correctional Services, 473 Under those N.Y.S.2d 473 (1984). circums tances, the jail time served on the dismissed charges can only he credited to the New York sentence if the prisoner can demonstrate that dIe confinement was filMy the result of the New York warrant or detainer. In this case, petitioner's incarceration in Florida was not due solely to the New York detainer, but also by the criminal charges that had been tIled against him in Florida. Therefore, the Court held, petitjonerwas not entitled to receive credit against his New York sentence for that time he had served in Florida. Pro Se Vol. 13 No.2 Pare 15 State Court: Other Lag Pay Matter of Williamson v. Goord, 730 N.Y.S.2d 387 (4th Dep't 2(01) Petitioner appealed the denial of a grievance in which he challenged the lag pay provision of DOCS' Directive 2788. This provision requires the equivalent of 15 days' wages to be withheld from an inmate while he or she is incarcerated and returned upon his or her release frorn incarceration. Petitioner contended that no wages should bc withheld from him because he had been sentenced to life imprisonment without the possibility of parole. The Court rejected petitioner's argument. DOCS, the court held, has broad discretion over the wages of inmates and may hold them in tmst until ,Ul inmate is released. Courts will not interfere with DOCS' exercise of that discretion '\lbsent a showing of a statntory violation or an abuse of discretion." Neither of those had been shown in this case. Herc, the CoUtt noted, the petitioner could be released from prison for a variety of reasons, including medical furlough or revers'al of his judgment of conviction or modification of his sentence on appeal, at which time the withheld wages would be returned to him. Court ofClaims Late Claims: Medical Malpractice Matter of Gonzalez v. State of New York 730 N.Y.S.2d 387 (3rd Dep't 2(02) Plaintiff had a tooth extracted at Sullivan Correctional Facility in November of 2000, but continued to experience pain. ]n January of 2001, an x-ray revealcd the presence of a bone fragment in the area of the original extraction. The bone fragment was removed by an oral surgeon. Approximately four months later, tbe plaintiff sought permission to file a late "notice of intention to file a claim" against the State of New York for medical malpractice. The Court of Claims denied the application and the Appellate Division afiirmed. To bring a lawsuit against the State of New York in the Court of Claims you must either file the claim within ninety days of the incident about which you are suing or serve a "Notice of Claim" upon the New York St'lte Attorney General within the same time. If you fail to do either of these things within ninety days you may apply to the Court for permission to file a late claim within the one year statute of limitations. In determining whether to grant the request f"r permission to ttle a late claim the Court will consider whether the delay in filing the claim waS excusable, whether the state had notice of the essential tacts constituting the claim, whether the state had an opportunity to investigate the circumstances underlying the claim, whether the claim appears to be meritorious, whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other availablc remedy. Court of Claims Act § 10(6). The Notice of Intention should have been served within ninety days of the January 200], extraction of the bone fragment. The plaintiff offered no explanation for the four-month delay in bringing his action. Additionally, he failed to provide any medical evidence to support his allegations of dental malpractice. In light of tbose facts, and upon con.sideration of the other factors listed in the Court of Claims Act, the court found no reason to overturn the lowcr court's decision. Practice Pointer: A Notice o[IlItention tofile a Claim I1J!1st be sewed Ifpon tbe Attomey Gelleral uitbill 90 daY.' ofthe went abolft whicbyoll u'allt to slfe. Ifyotl JJJ!lS't rrqtlest permission til file a late dalm, 'y0ll mlfst tell tbe COlllt w~y'yoll ll'eIE Ifnable tojile tbe claim on time. To prewll ill a medictJ! l1laipmdice cilse,]<J!I tJll1stpresent l1lediml etidelJce, ex, ill1 4/irJaliitfivtJJ 11 Pro Se Vol. 13 No.2 Pm 16 doctor, that the car~ ]OU receit,td deliated fivtt! accepted medical pradit~ ami that J'Nch deviation caused]our ilpury. PLS SETILES MENTAL HEALTH CLAIMS ON BEHALF OF INMATES Res Ipsa Loquitur PL'; recen tly settled two cases alleging an Eighth Amendment violation of inadequate mental health care on the part of DOCS employees. In Charnock v. Padman, et. al, PLS sued DOCS otTtcials for failing to adequately treat an inmate who suffered from a mental illness. Mr. Charnock, the plaintiff, suffered from a panic disorder. He had been taking the anti-psychotic medication Xanax, as well as other medications, for over 18 months. He was transferred to Marcy Correctional Facility on a Friday and upon arrival was told that the medications he had been taking were not available at the pharmacy but would be available the next Monday. On Monday, the defendant, Dr. Padman, ordered that Mr. Charnock's medications be discontinued. He began to suffer severe anxiety attacks ,LS a result of the withdrawal of the medication and he eng-aged in bizarre behavior that resulted in him being charged with misbehavior and placed in solitary confinement. Five days after the medication had been discontinued, he attempted to commit suicide. PL'; tiled two actions on behalf of Mr. Charnock. In Charnock v. State, brought in the Court of Claims, Mr Charnock alleged that defendant's actions constituted medical malpractice. In Charnock v. Padman, et. a!', brought in federal court under §1983, he alleged that the defendant's actions constituted deliberate indifference to his serious medical needs, the constitutional standard. During discovery in the federal action, the Assistant Attorney General indicated mat DOCS was willing to settle hoth claims. On the Court of Claims case, the State offered to provide a monetary settlement to Mr. Charnock. On the federal section 1983 case, the defendants offered to amend DOCS' Directives to provide uninterrupted health care to inmates during and after transfer. Imhotep v. State of New York, 750 N.Y.S.2d 87 (2nd Dep't 2002) Claimant, an inmate, sued the State after being injured when a bulletin board in bis cell fell on him. A trial was held. Claimant testified that the last person to handle the bulletin board was the inmate who occupied his cell previously. There was no evidence regarding what caused the bulletin board to fall, nor any that the State had been notified of the existence of a dangerous condition. Claimant asserted that he was entitled to a judgment as a matter of law under the doctrine of res ipsa loquitm: Res Ipsa Loquituris a Latin phrase meaning "the thing speaks for itself." In the law of negligence it is a claim that a particular accident could not have happened unless the defendant was negligent. If established, it means that the claimant should win his suit with no evidence other than the fact that the accident occurred. In Imhotep the Court rejected claimant's assertion that he was entitled to judgment based on the theory of res ipsa !oquitur; The Court noted that the doctrine can only be invoked if the claimant establishes three elements: (1) the accident is of a kind which ordinarily does not occur absent someone's negligence, (2) the accident is caused by an agenL)' or instrumentality in the exclusive control of the defendant, and (3) the event was not the result of action on the part of the plaintiff. Here, however, the evidence at trial showed that the bulletin board had been affixed to the wall for at least eight years prior to falling. Thus, it cannot be said tllatthe accident was of the sort that would not ordinarily occur absent negligence. Furthermore, the claimant testified that the last person to handle the board was the inmate who occ-upied claimant's cell previously. Where an instrument is under the control of persons other than the defendant, res ipsa loquitur does not apply. Pro Sc Vol. 13 No. 2 PaFl~ 17 As result of this settlement, in September 2002, DOCS issued a new Directive relating to the transfer of inmates from a Level 1 to another Level 1 facility. A new Directive for transfers involving Level 2 and 3 facilities (i.e., those without OMH staHl was issued in December 2002. There are three documents that implement the new polices: 1) DOCS' Division of Health Services Policy #1.22 dated 10-01-02; 2) a revision Notice to DOCS directive #4918, "Inmate Health Care During Transfer," dated 12/01/02; and 3) a DOCS Policy Revision Notice, revising Health Service Policy Manual (J ISPM) #3.07, "Pharmacy Services," datcd 12/01/02. The new policy provides that when an inmate is transferred from one facility to another, staff at the sending facility must fax prescriptions to the receiving facility and to any in-transit facility, as soon as the staff knows the transfer date, route, and destination of the inmate. This should give receiving and intransit facilities more opportunity to obtain any medications that they might not have in stock. The second case, \Vaters v. Andrews. ct aJ., (W.D.N.Y., 97-CV-04(7) involved an Albion inmate who was placed in SHU for mental health observation in May 1994 after admitting to prison authorities that she had considered hanning herself two days earlier. Ms. Waters alleged in her complaint that, although she was menstmating at the time of being strip frisked :md placed into SHU, she was only provided with one paper gown, one sanitary napkin and no undergam1Cnts or other me:ms to hold the sanitary napkin in place during her approximately 2 '/2 days of SHU confinement. She was also denied soap, toothpaste, a toothbmsh, a washcloth or other towel, denied a shower while under observation status and was denied any additional paper gowns or other clothing even after her gown became ripped and blood stained, exposing her body to male correctional staff and construction workers in the unit. Ms. Waters also alleged that she was denied appropriate mental health treatment while confined in SHU. During discovery defendants offered to settle. Negotiations led to the plaintiff agreeing to enter into a settlement agreement awarding monetary damages. Practice Pointer: To establish tltI Ezghth Ametldm8tit daim for inadequate medictll Mtr, a pnJ'oner mUJt Ptril~ "deliberate illllitJerence to [bis} Jet;ous medi",lmedJ." Estelle II. Gamble, 429 U.S. 97 (1976). Tbis Jtatldard has both atl objective and subjective element. The objedive element requim a prisonev to Jhow that hiJ !tledical cONditil1ll is atl objectively JeT;OUS Otic. The mbjertil'e element tequim the prisoner to jJtvve that the priSOti li!J/rials htld actual ktloJlJ/e4ge of the seriotlSfleJS of the condition.yet a,.ted Jvith deliberate indifftmlte to it. Btvck Ii. Ii/tight, 315 F3d 158 (2nd Cir: 2(03). With respect to the object;w element, it haJ been held that there iJ no exac(guide aJ to JJ'hat cotlStitutes tI "seriouJ medical need." In Chance II. ArmJttvnf, 143 F,3d 698 (2nd Cit: 1998), the comt setji;rth a '1I1oli-exhauftiue lift" rjjrJL10TJ to consider, includi!{g, 1) Ii/hether a nlaJonable dodor or patient would pttceit}e the medical need in queJlion as 'itnpottant and tl'orthy oj' COJJlIJJent or treatment,' 2) ni/lether tbe mediral cotlditiotl sigtlifil'rl1lt!y a!Jcrts daily actilit;eJ, and (3) the exiftence I(/chtrinil' and Jubstatltialpain. With rrJj>ect to the subjectilie element, comts b(J/}e held that prisoners JJJtlft be able to show tbat the PllSOti offidals kn81i/ that the inmate had a Jeriou.r medical tondition orfaced substantial ri.rk of sellOUS bamJ and "disre.gmd[ed} tbtlt rifh by failil{g to tahe reClJoltable meaJlfn,s to ahate it." Falmer II. Blwmatl, 511 u.S'. 825, (1994). However tbe S'upl~me Court has empbaJized that the E{gbtb Amendment is not a I'ebiclefor Ill;tlgitlg mediCtiI mtllpractice cfaiflu, 1Ior it is a Jlfbstitute for state tOit faUI. Estelle I/. Gamble, 429 u.S'. 97 (1976). "INlot IIWIY lapfc in PllSO!1 medittJI carE Itiill rise to the lellel of a C01lst;tut;onal/iolation. " Smith v. Catpentet; 316 F3d 178 (2t1d CiJ: 20(3) "A prisoner fl/tlft demonstrate more thCltl an Pro Se Vol. 13 No.2 Page 18 inadveltent failure to prollide adequate medical "m by p,ison officials to successji,lly eJtabliJb EZgbth Amelulment liallility." lei. UNDERSTANDING THE NEW 'SON OF SAM' LAW In the SUlllmer of 2001, New York State signiticantly broadened the so-called "Son of Sam" law. The new law requires that whenever a person convicted of certain crimes receives money in excess of $10,000.00, notitication must be given to the victim of the crime. It also provides a variety of mechanisms to make it easier for crime victims to sue the person convicted of the crime of which they were victim. The net effect of these changes is to make it more likely that if you receive substantial funds whether as the result of a lawsuit, or as a gift, inheritance, or investment - the money will become the object of a lawsuit by the victim of the crime for whieh you were convicted. Inmates expecting to receive such funds will be well advised to become familiar with the details of tbis new law. The law defines a category of funds as "hmds of a convicted person." Funds of a convictcd person are defined as "all funds and property received from a!!y SOUIre" by a person convicted of certain specitied crimes, excluding child support and earned income. The specified crimes include all violen t felonies, all firs t degree felonies, all "D" felonies, gmnd larceny in the second and fourth degrees, criminal possession of stolen property in the second degree, and any offense "for which a merit time allowance may not be received." Drug offenses under Penal Law section 220 or 221, as well as the crimes of welfare t[aud and g"mbling are excluded. (Thus, if you were convicted of a dmg offense under Penal Law section 220 or 221, the law does not apply to you, even if the conviction was for a first degree felony or a "13" felony.) The law requires that if you receive "hmds of a convicted person" in excess of $10,000.00, the State Crime Victims' Board (CYB) must be notified. The law contains a variety of provisions to insure that the notification occur. For example, it states that whenever any person or entity agrees to pay "funds of a convicted person:' 'whose "value, combined value or aggregate value...excceds... $10,000.00," that person or entity must notify the CVB. See Executive Law § 632-a(2). Another provision states that the Department of Correctional Services must notify the CYB whenever an inmate's inrnate account contains more than $10,000.00. See Correction Law § 500-c(7) The law also requires the CYB to notify all of the known victims of the crime for which you were convicted that you have received "hlllds of a covicted person." A "crime victim" is defined in the law not just as tl'e victim of the offense, but also as the rejJlrsettt(JtitJe of the victim. Under some circumstances, the CVB itself is authorized to act on behalf of the victim. In addition, the law extends the statute of limitations within which a crime victim may bring a lawsuit against you to recover money damages for injuries suffered as a result of your crime. Under the new law there are now three such statutes of limitations. The first applies to all crime victims. It states that any crime victim may bring a suit against the person convicted of the crime in which they were injured at any time within seven years of the conviction for the crime. The second applies only to victims of one of the crimes covered by the new Son of Sam law. It states that those victims may bring suit within ten yearr of the conviction. The third statute of limitations also applies only to victims of crimes covered by the Son of Sanl law. It states that such victims, in addition to being able to bring a suit against you within 10 years Pro Se Vol. 13 Ho. 2 Paw 19 of the convictIOn, may also bring a suit against you at any time within three years after they (discover>' that you have received "funds of a convicted person." So, for example, if you have been convicted of one of the crimes covered by the Son of Sam law and you receive "funds of a convicted person," the victim of your crime may bring a lawsuit against you at any time within three years of the date that he or she "discovers" the existence of the funds. Finally, the law authorizes the CVB to act to prevent any person covered by Son of Sam from "wasting" (t:e. spending) any funds he or she may receive before the cnme victim has an opportunity to bring a lawsuit. It can do this by applying to a court to freeze the funds, pending the litigation. Using this law, the Board has sued to freeze seveled! inmates' funds. The net effect of these changes is to make it highly likely that if you receive a substantial sum of money from any source, excepting child support payments or earned income, the victim of your crime will become aware of the existence of that money, <UHf will be able to initiate a lawsuit against you to obtain damages for injuries suffered as a result of your crune. Prisoners' Legal Services continues to receive numerous questions about this new statute. Some of the most frequently asked questions are as follows: • Is it possible to avoid the effects of the statute by giving my money to someone else, or directing that any money owed to me be payed to someone else? Probably not. The statute applies both to convicted persons and their "representatives." A "representative" is defined as "one who represents or stands in the place of another person, including but not limited to <Ul agent, an assignee, an attorney, a guardian, a committee, a conselCVator, a partner, a receiver, an adnlinistrator, an executor or an heir of another person, or a parent of a minor." Executive Law § 621. So, if you try to give your money to another person, or direct that the money be given to another person, that person would become your "assignee", or representative, <Uld all of the provisions of the stdtute would apply: The eVB would have to be notified, they would notifY the victirn(s) of the crime, and victim(s) would be able to bring suit against both you and your representative. • Is there any money that is excluded from the notice requirement? Yes. The statute excludes both "earned income" and child support payments from the notification requiretnent. ('Earned income?) is detlned as "income derived from one's own labor or through active participation in a business as distinguished from, for example, dividends or investments." Since both earned income and child support payments are excluded from the detlnition of "funds of a convicted person" they do not have to be reported to the CVB, even if you receive more That does not mean, than $10,000.00. however, that "earned income" would not be available to a crime victim if he or she were to win a judgment against you. It only means that payment or receipt of such income would not have to be reported to the CVIl. • What if I settle or win a lawsuit against the State? Money that you may win in a suit against the State (or anyone else) is considered "fimds of a convicted person" (if you have been convicted of one of the crimes covered by the Son of Sam law). Consequently, it would have to be reported to the CVB if the payment exceeded $10,000.00. Executive Law 632-a. See alro, Correction Law § 500-c. HOJvet~r, the Pro Se VoL 13 No.2 page 20 statute provides that if the money you receive as the result of a judgment in a lawsuit represents "compensatory damages", then ten pen~nt of that money is immune to a judgment on behalf of a crime victim. So, for example, say you win $20,000.00 in a lawsuit against Department of Correctional Services staff based on allegations that they used excessive force ag-ainst you. Later, the victim of your crime sues you for damages for injuries caused during the course of your crime. Then, $2,000.00 of the money you won in your suit against DOCS would he immune from any judgment the victim might obtain against you. This rule only applies to compensatory damages. It does not apply to punitive damages. So, if you win $10,000.00 in compensatory damages, but $50,000.00 in punitive damages, the rule would only protect 10% of the $10,000.00 awarded tor compensatory damages. • Is there anything else that is immnne to a judgment on behalf of the crime victim? Yes. The law statcs that the first one thO/lSand dolltm deposited in your inmate account is immune from any judgment tl1at a crime vict1m may obtain against you. This sum is in addition to the 10'Yo compensatOty damages exclusion discussed above. Thus, if you have $1,000.00 in your inmate account, and you win $20,000.00 in compensatory damages in a lawsuit, $2,000.00 of the latter, plus the $1,000.00 already 1t1 your account, would be immune from suit. • Does the statute continue to apply even when I have been released from prison? Yes. "I'he statute applies to persons who arc serving an undischarged indeterminate, determinate or ddinite sentence, including persons on parole or post-release supervision. The statute also applies for three years after you have completed your maximum ternl, or have been discharged from parole. In that case, however, only funds that are paid to you as a result of "any interest, right, right of action, asset share, claim, recovery or benefit of any kind" that accrued prior to the expiration of your sentence would have to he reported to the CVB. So, for example, if you received an inheritance two years after your maximum term had expired, that money would not have to be reported to the CVE because it did not "accrue» while you were serving your sentence. If, on the other hand, two years after your maximum term has expired, you settlc a lawsuit about sometlling that happened while you were incarcerated, you would still have to report that to the CVE, because the right to sue accnICd while your sentence was still runnlllg. In addition, if you receive earn cd income during a period when you are supposed to be under parole supervision, but you are not in compliance with the terms of your parole, (you are delinquent) that income will becorne subject to rhe reporting requirements, even though it would not be otherwise. • Where can I read this new law for myself? Un fortunately, the new law was passed in a complicated way. It was passed as a series of amendments to a large number of different sections of law. The actual law consists of atnendn1ents, for instance, to the Executive Law, the Corrections Law, the Civil Practice Law, the Surrogate's Court Act and the Criminal Procedure I/,lw, among others. Thus, there is no one single place to view the whole law. The most important parts of the law, however, those which define "funds of convicted person" and state the reporting requirements for such funds, can be found in New York's Executive Law, Sec. 632-a. You should be able to find this in your law library. Pro Se Vol. 13 No.2 P,we 21 Since this is a new law, you will probably need to cbeck the "pocket part" to see the arnendments to section 632-a. Your law lihrarian should be able to help you with this. POST-RELEASE SUPERVISION In 1998, the Legislature passed "Jenna's Law", part of which requires tbat all persons convicted of violent felonies receive determinate sentences. A determinate sentence is one which does not allow for parole or discretionary release after the minimum period of imprisonment. An individual with a determinate sentence may earn good time and qualify for conditional release but the good time available is limited to one day for every seven days served (as opposed to one day for three days served of an indeterminate sentence). Thus an individual with a determinate sentence must serve at least six-sevenths of the term before becoming eligible for conditional release. Jee Correction Law § 803(1)(c); Penal Law § 70040(I)(b). Jenna's Law also requires that all persons subject to a determinate sentence serve a period of "post-release supervision" after release from prison. Jee Penal Law §70.45. The legislative history behind these new provisions indicates that the Legislature passed them as a way to provide greater protection to the publie and to promote successful inmate reintegration into the commumty. Both the determinate sentence and postrelease snpervision sections of ./enna's Law apply only to violent felony offenses committed on or after September 1, 1998. See Penal Law § 70045. Offenses committed prior to September 1, 1998, are governed by the law in effect at the time the offense was committed. A determinate sentence for a violent felony committed on or after September 1, 1998, is technically incorrect if it fails to include a period of post-release supervision. Post-release supervision is similar in most ways to parole or conditional release. It is administered by the Board of Parole, which is "empowered to establish and impose conditions during the post release period in the sarne manner as it does for individuals on parole or conditional release." Penal Law § 7004.5(3). People v. Goss, 733 N.Y.S.2d 310 (3rd Dep't 20(1). Jee afro Executive Low §§ 259-;~ 259-c, 259-e, 259-f, 259-i, 259-j. In addition to other parole-type conditions, postrelease supervision may include a mandatory period of up to six months in a residential treatment facility immediately following release from prison. 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. ..." See Correction LlW § 2(6). Post-release supervision is distinct from both parole and conditional release, however, in that you may not turn down post-release supervision the same way you can tum down parole and simply "max-out." Post-release supervision is required by law to f()llow a determinate sentence. There is presently controversy over whether post-release supervision is distinct from parole and conditional release in another way. It is well settled that both parole and conditional release arc discretionary. That is, the Division of Parole is not required to grant you parole when you become eligible, nor is DOCS required to grant you conditional release. It was assumed however, that neither DOCS nor Parole had the discretion to hold you in prison beyond the expiration of your n1axttnutn tenn of incarceration, even if the term of incarceration was to be followed by a term of post-release supervision. Recently, however, several cases have corne to the attention of Prisoners' Leg,l! Pro Se Vol. 13 No.2 page 22 Services in which DOCS and the Division of Parole have refused to release inmates who have served their maximum terms of incarceration to post-release supervision. They have relied on the language of .letma's I,aw which allows the Division of Parole to set the conditions of postrelease supervision. They have argued that postrelease supervision, like parole or conditional release, is discretionary, and that if you are unable to meet the conditions they imposc for post-release supervision (for example, if you have not found housing that satisfies the conditions of the Division of Parole ), they may continue to hold you in prison even beyond your maximum term. This has not yet been unequivocally decided by the courts but it seems clear that the Legislal1lre intended post-release supervision to serve as a period of transition to civilian life, and did not 1ntend that it be served in prison (absent a violation of its terms). In at least one case, a Court has ruled that post-release supervision is 1Iot like parole in this respect, and that DOCS JfftlJl release you to post-release supervision when yOll have served the maximum term of the determinate sentence. See People ex reI. Lasch v. Berbary, Index No. I 2002-11884 (Sup. Ct. Erie Co., Dec. 19, 2002). (rhe State may, however, place you in a residential treatment facility for the flrst six months of post-release snpervision.) It is likely that this issue will continue to be the subject of future litie:ltion. , The length of post-release supervision can range from one and one half years up to five years, depending on circums tances. Penal Law § 70.45(2). Forfint time violent felony offenders, sentenced under Penal Law § 70.02, the length of post-release supervision will be as follows: For Class B or C violent felony the period of post release supervision is five years, unless the court specifies a shorter period of not less than two and one half years; for Class D or E violent felonies, the period of post-release supervision is three years, unless the court specifies a shorter period of not less than one and one half years. For ..) second or persistent violent felonies, sentenced under Pen:ll Law § 70.04, the period of post-release supervision must be flve yem:s. See People v. Goss, 733 N.Y.s.2d 310, 314 (3rd Dep't 2001). Release on post-release supervls10n interrupts any period of imprisonment left to serve on an aggregate tnaximurn or maxin1um sentence. The time rem:lining on the sentence 15 "held 111 abeyance" until post-release supervision is successfully completed or until a person is returned to the custody of the Department of Correctional Services because of a violation of the conditions of post-release supervision. Penal Law § 70.45(5) (a). If postrele'Lse supervision is successfully completed, then any confinement time left on the maximum sentence (time "held in abeyance") will be eliminated as the post-release time will be credited against it. Penal Law § 70.45(5)(b). Like a violation of parole, a violation of tbe terms of post-release supervision may result in revocation of supervision. 111e revocation and bearing procedures are generally the same as those for parole and conditional release. See Penal Law § 70.45(4); Executive Law § 259-i(3)(4). The penalties for a violation of post-release superv1s10n, however, are likely to be more severe than those for a violation of parole or conditional If a person on post-release release. supervision is found delinquent and has their supervision revoked they must serve at IecHt six mond1s in prison before re-rele'Lse to postrelease supervision is possible, even if the remaining time on the post-release supervision included in the original sentence was less than six months. Penal Law § 70.45(5) (d) (iv); Penal Law §§ 70.45(1), (5)(d). If your time remaining on the post-release supervision included in the original sentence is more than six months, the time assessment for a delinquenLl' may be up to the remaining balance but not more than five years. But if the time left from your Pro Sc Vol. 13 No.2 Page 23 a~"egate maximum ot~ginal prison sentence allows for a longer period of further imprisonment, than the six month to ttve year limits do not always apply. A longer period in prison is possible because the period of postrelease supervision will be intemJpted while the original sentence is completed. Penal Law §§ 70.45(1) , (5) (d), (e), (t). In other words, if your post-release supervision is revoked it is possible that you could go back to prison for more than five years. Moreover, good time is not awarded during any time assessment period. A number of inmates have written to Prisoners' Legal Services to complain tbat, although they pled guilty to crimes that would subject them to the requirements of ]ell11a'S Law, they were never told that a period of post-release supervision would be included as part of their sentence. This situation raises complicated legal issues. If you pled JlO! guilty and were convicted ,md sentenced following a trial, tllen there is really no legal way to challenge the post-release supervision attached to the sentence after the conttnement. All detel1ninate sentences for violent felonies must include a period of post-release supervision under Penal Law § 70.45. on the other hand, you pled guilty, the result may be different. All guilty pleas must be knowingly, voluntarily and intelligently made. Under New York law, this means that the person pleading guilty must be aware of all tllC "direct" consequences of his or her plea. People v. Ford, 633 N.Y.S.2d 270 (1995). Thus, at the time of your guilty plea, the trial court should have made sure you knew about all the consequences of your plea which would have a "definite, immediate and largely automatic etTect" on your punishment. Ford, 86 N.Y.2d at 403. Post-release supervision has been held to be a direct consequence of a plea. People v. Goss, 733 N.Y.S.2d 310 (3rd Dep't 20(1); People v. Catu, 749 N.Y.S.2d 397 (Sup.Ct. New York Co., Oct. 18, 2002). It: Therefore, if you agreed to plead guilty you should have been told about the post-release supervision you would have to serve after your confinenlcnt. What should yOll do if you were not told that a period of post-release supervision was included in your sentence? If you find out about it only after the time for direct appeal has passed, the only way to challenge the issue is with a motion under C6minal Procedure Law (CPL) Article 440. CPL § 440.10 permits you to ask the court to vacate the sentence and allow you to wiilidraw your Hawed guilty plea. Before doing this, however, you will want to ask yourself if there will really be any benefit to you in withdrawing your plea. WithdGlwing your plea has the legal effect of restoring you to "prepleading status." CPL § 440.10(7). The State will press new charges against you. These may be the same charges you faced previously or they may be more severe. You will have to choose whether to plead guilty or go to trial based on whatever new charges arc presented. One thing that you will not be able to do, however, is to plead h'Llilty to the same charges to which you previously pled guilty and obtain a nc\v sentence that does not include a period of post-release snpervision, since such a sentence would be illegal under Jenna's Law. See e.g., People v. YekeL 733 N.Y.S.2d 643 (3rd Dep't 20(1); People v. Cooney, 735 N.Y.S.2d 834 (3rd Dep't 2002). Thus, witlldrawing your pica mayor may not benefit you. In addition, if you are convicted of any of the violent felony offenses listed above, your sentence will still include post-release supervision. Theref()re, you should weigh your options carefully and, preferably, discuss them with an attorney before proceeding. Pro Se Vol. 13 No.2 page 24 PLRA Exhaustion Update [n the previous edition of Pro Se, we reported on the state of the law which requires exhaustion of administrative remedies before E1ing a Sec. 1983 action in federal court. A recent Second Circuit opinion summarizes some of the issues currently pending. In Ortiz v. McBride, decided March 21, 2003, the 2nd Circuit stated: "This court has noted that under the administrative scheme applicable to New York prisoners, resolution of an inmate's grievances through informal channels can satisfy the exhaustion requirement of 42 USc. 1997e(a). See Marvin v. Goord, 255 F. 3d 40, 43, n. 3(2nd Cir. 2001) (per curiam) (citing 7 NY.C.R.R. 701.1). More recently, we have ordered that counscl be appointed in four pending cases that address whether inmates who did not fully comply with the dictates of New York law nonetheless exhausted their clain1.s in other ways. Abney v. New York Dep't of Corr. Servs., No. 02_0241 (2nd Cir. Feb. 13, 2003) (order granting motion to appoint counsel); Johnson IJ. Reno, No. 02_0145 (2nd Cir. Feb. 13, 2003) (same); Hemphill II. New York, No. 02_0164 (2nd Cir. Oct. 18, 2(02) (same); Giano II. Goonl, No. 02_0105 (2nd Cir. Aug. 22, 2(J02) (same). " In Ortiz, the 2nd Circuit has extended the PLRA issues it will address stating: "\'Vhile Ortiz's attempts to exhaust his Eighth Amendment claim may be more limited than those at issue in these cases, Ortiz has contended that he flIed written grievances without receiving a response and that he was deterred from further pursuing.. administrative remedies by the guards' . threat of assault. And that is enough to raise the issue currently being considered by us in the four just mentioned cases. In addition to the question of whether Ortiz administrati vely exhausted his Eighth Amendment claim for purposes of the PLRA this case raises the question of whether the PLRA requires that a prisoner exhaust feU] claim raised in order to be able to proceed on anyone claim. In other words, if Ortiz has not administratively exhausted his Eighth Amendment claim, does the PLRA bar consideration of his Fourteenth Amendment due process claim, a claim which all agree was administratively exhausted? District courts in this circuit are currently split on tlle question of whether the PLRA requires such "total exhaustion." The 2nd Circuit decided that: "Given the complexity of these and other issues in this case, we believe it appropriate to appoint counsel to represent Ortiz in this appeal, if he so chooses.... In addition to any other argurnents counsel rnay choose to raise, the following issues should be addressed: (1) whether Ortiz's proffered evidence that he administratively exhausted his Eighth Amendment claim satisfies the requirements of Sec. 1997e(a); (2) whether Sec. 1997e(a) requires "total exhaustion" and, if so, whether Ortiz may now witl](lraw ,my unexhausted claims; (3) whether Ortiz's factual allegations that the conditions of his confinement in SHU were unusually harsh sufficed to raise the question of whether that confinement implicated a constitutionally protected liberty interest so as to preclude 12(b) dismissal; (4) whether Ortiz's complaint adequately pled, or could be amended adequately to plead, that the defendants are subject to supervisory liability, under the test described in Wright v. Smith, 21 F 3d 496, 501 (2nd Cir. 1994), for the alleged Eighth Amendment violations." EDITORS: JOEL LANDAU, ESQ., KAREN MURTAGH-MONKS, ESC.). CONTRIBUTORS: PATIENCE SCHERMER, TOM TERRlZZI, ESQ. COPY EDITOR: ALETA ALBERT PRODUCTION: DAVID BOISVERT EDITORIAL BOARD: TOM TERRIZZI. ESQ., BETSY STERLING, ESQ., KAREN MURTAGH-MONKS, ESQ