Vol. 16 Number 3: Summer 2006 Published by Prisoners’ Legal Services of New York

Supreme Court, Second Circuit, and DOCS Weigh In
on Exhaustion of Administrative Remedies
Since 1996, prisoners have been required to
exhaust “such administrative remedies as are
available” before filing federal lawsuits. This
requirement, part of the Prison Litigation Reform
Act of 1996 (“PLRA”), has resulted in extensive
litigation over what just it means to “exhaust”
available administrative remedies--and whether
there are any circumstances in which inmates may
be excused from doing so.
This issue of Pro Se takes a look at three recent
legal developments concerning “exhaustion.” First,
we look at a new Supreme Court decision which
addressed the question of whether a California
inmate had exhausted administrative remedies when
his grievance was rejected as late but he appealed
the rejection as far as he could within the grievance
system. The Court held that he had not.
Second, we look at a recent Second Circuit
decision which addressed the question of whether a
New York inmate, who failed to exhaust
administrative remedies, should be allowed to
proceed with his lawsuit anyway, where his failure
to exhaust was due to misinformation given him by
prison staff. The Court held that he should.
Finally, we look at recent amendments to the
Department of Correctional Services’ (“DOCS’”)
grievance policies intended, according to DOCS, to
“eliminate ambiguities [in the grievance system]
that have been revealed by litigation.”

First, the Supreme Court decision.
In Woodford v. Ngo, 126 S.Ct. 2378 (2006), the
Court essentially held that not only must inmates
exhaust their administrative remedies, they’d better
do it right, and they’d better do it on time. How this
decision will affect New York prisoners is not yet
article continued on page 2…

Also Inside…
Parole Class Action
Survives Summary Judgment . . . . . . . page

8

Developments re:
Rockefeller Drug Law Reform . . . . . . page 9
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 23
Federal Court says
Post-Release Supervision
Can’t be Imposed by DOCS . . . . . . . . page 10
Litigation Prompts DOCS to Amend
Hep-C Treatment Criteria . . . . . . . . . . page 26
New Report Details
“Collateral Consequences”
of a Criminal Conviction . . . . . . . . . . . page 30
Subscribe to Pro Se! See back page for details

This project is supported in part by grants from the New York State Division of Criminal Justice Services, the New York State
Bar Foundation, and the Tompkins County Bar Association. Points of view in this document are those of the author and do
not represent the official position or policies of the grantors.

Page 2

Pro Se Vol. 16 No. 3 Summer 2006

article continued from page 1…

clear. It does, however, reinforce the lesson that if
you want the option of filing a lawsuit, you must
promptly determine your administrative remedies-the grievance system, a disciplinary appeal, or other
applicable remedy--and you must pursue them
correctly.
The full story is this:
Inmate Ngo was excluded from several prison
programs as a result of his security level. Six
months after learning about this, he filed a
grievance. He gave no reason for having waited so
long to file the grievance.
Under the California grievance system, an
inmate must file a grievance within fifteen working
days of the event he is complaining about.
California prison officials rejected Ngo’s
grievance as too late. He appealed the rejection all
the way up the grievance system, but lost. He then
filed a lawsuit in federal court. A lower court held
that, because Ngo had appealed the decision that his
grievance was late all the way up the grievance
system, he had “exhausted” his administrative
remedies and could proceed with his lawsuit.
The Supreme Court reversed. It held that the
exhaustion requirement requires “proper
exhaustion.” “Proper” exhaustion “demands
compliance with an agency’s deadlines and other
critical procedural rules because no adjudicative
system can function effectively without imposing
some orderly structure on the course of its
proceedings.” If a prisoner does not “properly”
exhaust, he or she has committed a “procedural
default,” which means the federal case must be
dismissed. The bottom line: If prison officials reject
a grievance because the prisoner made a procedural
error, the prisoner’s subsequent lawsuit is doomed.
The Woodford decision resolved a conflict
between federal courts. Some courts had imposed a
“proper exhaustion” rule, but others had said that as
long as the prisoner takes the grievance to the end
of the line, it is exhausted, even if it had been
rejected for lateness or other procedural reason.

How will Woodford affect New York prisoners?
That is not immediately clear because the Second
Circuit had previously taken a middle position,
rejecting both a procedural default approach and the
notion that prisoners can ignore grievance rules.
Instead, the Second Circuit’s pre-Woodford
decisions held that there were several situations
where a prisoner’s failure to exhaust according to
prison rules would not bar the prisoner’s lawsuit.
First, it said, administrative remedies that were
available in theory might not be available “in fact”
in a given situation. Hemphill v. New York, 380
F.3d 680, 686, 688 (2nd Cir. 2004) (holding threats
of retaliation by prison staff can make a remedy
“functionally unavailable”). Or actions by prison
staff inhibiting the plaintiff’s exhaustion might
estop the staff members from raising the defense of
failure to exhaust. Hemphill, 380 F.3d at 688-89
(holding allegations of verbal and physical threats
by staff and fear of further assault if the prisoner
filed a grievance could support a finding of
equitable estoppel).
There may also be “special circumstances” that
justify the prisoner’s failure to comply with
administrative procedural requirements. Giano v.
Goord, 380 F.3d 670, 686 (2nd Cir. 2004) (holding
that a prisoner who didn’t file a grievance about
alleged tampering with his drug test samples was
justified by the special circumstance that DOCS’
rules were not clear and he could reasonably have
understood that a disciplinary appeal was the only
available remedy).
So, after Woodward, are these arguments taken
away from prisoners? We don’t know yet, but the
first court to rule on the question has said “no.” In
Collins v. Goord, 2006 WL 1928646 (S.D.N.Y.
Jul 11, 2006), the court said that Woodford had left
the question open, but observed that:
Justice Breyer, concurring in the Court's
judgment in Woodford, cited with approval
our Circuit's opinion in Giano, which held
that exhaustion is “mandatory” but subject
to the “caveats” outlined in Hemphill, See,
Giano, 380 F.3d at 677-78…

Pro Se Vol. 16 No. 3 Summer 2006

The Collins decision went on to say:
Although it is open to doubt whether
Woodford is compatible with the results
reached in some of the cases in this Circuit
applying Hemphill, and parts of the
Hemphill inquiry may be in tension with
Woodford, to the extent the Hemphill
inquiry bears directly on the facts of this
case, I do not believe that anything in
Woodford would change the result.
The Collins court seems to be saying that the
Second Circuit rules are probably still the law, but
their application may not be as favorable to
prisoners as before Woodford. That is, courts will
be less likely to find “special circumstances”
justifying failure to exhaust correctly.
Practice pointer: DOCS’ lawyers can be
expected to argue that after Woodford, any mistake
a prisoner makes, however minor, means the case
must be dismissed. The first thing to know is that
even under a procedural default rule, if the
grievance system addressed the merits of your
complaint (rather than dismissing your grievance as
untimely or for other procedural or technical
reasons) – and (if the decision goes against you)
you appeal all the way up – you have exhausted.
Any procedural error you may have committed is
waived. Pozo v. McCaughtry, 286 F.3d 1022, 1025
(7th Cir.), cert. denied, 537 U.S. 949 (2002);
accord, Gates v. Cook, 376 F.3d 323, 331 n.6 (5th
Cir. 2004) (noting that the Plaintiff sent a form to
the Commissioner rather than the Legal
Adjudicator but the Defendants did not reject it for
noncompliance; in addition, the grievance was
submitted by the prisoner’s lawyer and not by the
prisoner, as the rules specify); Spruill v. Gillis, 372
F.3d 218, 234 (3rd Cir. 2004); Ross v. County of
Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004).
But if your grievance has been rejected on
procedural grounds, or if there is any argument that

Page 3

you didn’t take the grievance far enough, you may
be at risk of dismissal for non-exhaustion when you
file suit. Protecting yourself starts at the time the
incident occurs that you may want to sue about. You
must know your rights under the state’s
administrative procedures, and you must exercise
them as correctly as you can and in compliance
with time deadlines. You should also err on the side
of doing more rather than less to exhaust, in order
to increase the likelihood that you will get the
benefit of the doubt in a close case. Here are some
suggestions:

‚ If your grievance is late or may be viewed as
late, explain the reasons it took you so long and
ask for permission to file late based on
“mitigating circumstances.” That’s the phrase
in the Directive; use it. If your grievance is
rejected as untimely anyway, file a second
grievance, complaining about the rejection of
your first grievance. Be sure to raise the
“mitigating circumstances” at all stages, all the
way up to the Central Office Review Committee
(“CORC”).

‚ If your problem is resolved either without filing
a grievance or after you file at the facility,
appeal anyway. There is law saying that once
you resolve your problem informally, Marvin v.
Goord, 255 F.3d 40, 43 (2nd Cir. 2001), or
once you get a favorable decision, Abney v.
McGinnis, 380 F.3d 663, 669 (2nd Cir. 2004),
you have exhausted administrative remedies.
But there is also law saying that even if your
immediate problem is solved, if you don’t
appeal you haven’t exhausted, because the
system might have developed better policies or
disciplined staff if you had. Braham v. Clancy,
425 F.3d 177, 183 (2nd Cir. 2005). So you are
best advised to grieve or appeal no matter what,
to state that the action you want is for prison
officials to consider how to prevent any

Page 4

recurrence of what happened to you, and
that you want to exhaust administrative
remedies.

‚ The dividing line between disciplinary appeals
and grievances is not very clear, See, Giano v.
Goord, supra, and DOCS has done little to
clarify it since the Giano case. Anything related
to a disciplinary proceeding other than
decisions the Hearing Officer makes at the
hearing or how the Misbehavior Report is
written should probably be raised in the
disciplinary appeal and be the subject of a
grievance. If grievance personnel say it’s not
grievable, then you are protected from having a
court say later that you should have grieved it.

‚ If you obtain additional information or
something else happens that makes you see your
problem in a new light, file a new grievance
about it, explaining the reasons for it. For
example, in Brownell v. Krom, 446 F.3d 305
(2nd Cir. 2006) (see below), the prisoner filed a
claim and a grievance about lost property, but
much later learned information that caused him
to believe that his property had been taken
intentionally by staff; the court said he had not
exhausted because he failed to put that
allegation into his grievance, 446 F.3d at 311;
however, it let the case go forward because of
other special circumstances.
Second Circuit Reaffirms “Special
Circumstances” Doctrine; Holds Inmate Justified
in Failing to Exhaust Administrative Remedies
Brownell v. Krom, 446 F.3d 305 (2nd Cir. 2006)
In Brownell v. Krom, decided shortly before the
Supreme Court decision in Woodford (see the
previous article), the Second Circuit Court of
Appeals expanded upon its prior holdings regarding
the “special circumstances” that may excuse an
inmate’s failure to exhaust administrative remedies.
In 2000, the Plaintiff, Hardy Brownell, was
transferred from Woodbourne to Eastern to

Pro Se Vol. 16 No. 3 Summer 2006

Southport, and finally to Shawangunk. When he left
Woodbourne, he had 14 bags of property, and much
of the property consisted of legal papers and
transcripts he needed to file a habeas corpus
petition. By the time he got to Shawangunk, he only
had three bags of property, and the legal papers
were missing.
At Shawangunk, Brownell filed a lost property
claim for the missing property. However, DOCS’
property claim process, which can be found at 7
N.Y.C.R.R. (New York Code, Rules and
Regulations) 1700, is designed only to provide
reimbursement for lost property. It is not intended
to cause an investigation of the loss or a search for
the missing property. Brownell’s property claim
was promptly denied on the grounds that he had
failed to submit documentation of the value of the
lost property.
After the property claim was denied, Brownell
spoke with the Grievance Supervisor at
Shawangunk. Since what Brownell wanted was to
recover the lost property, the Inmate Grievance
Review Committee (“IGRC”) Supervisor advised
him to file a grievance concerning the lost property,
rather than appeal the denial of the property claim.
Brownell took this advice. He filed a grievance
describing the missing property, including
thousands of pages of legal work needed for a
habeas corpus, and requested that the property be
found “via a thorough investigation.” The IGRC at
Shawangunk, however, denied the grievance and
recommended that Brownell file a property claim at
Woodbourne. However, since 7 N.Y.C.R.R.
1700.5(a) only permits an inmate to file a property
claim at “the facility in which the inmate is housed
at the time the claim is filed,” Brownell could not
file a property claim at Woodbourne.
Brownell appealed the grievance decision to the
Superintendent. The Superintendent denied the
appeal of the grievance and recommended that
Brownell appeal the denial of the now-abandoned
property claim. However, since, pursuant to 7
N.Y.C.R.R. 1700.4(d), an appeal of a property
claim denial must be filed within five days, by the
time the Superintendent denied the grievance, the
deadline for appealing the property claim had

Pro Se Vol. 16 No. 3 Summer 2006

passed; and, moreover, as noted above, a property
claim could not give Brownell the relief he sought,
i.e., an investigation into the loss of his property.
Brownell therefore appealed his grievance to the
Central Office Review Committee (“CORC”).
CORC, however, agreed with the Superintendent
that Brownell should appeal his property claim to
the Superintendent.
At some point after Brownell filed his
grievance, he came to believe that his property had
been deliberately destroyed by staff at Woodbourne.
His grievance had not alleged deliberate destruction
of his property because he was not aware of that
until after the grievance process was completed.
Brownell eventually filed a section 1983 action
in federal district court, alleging that staff at
Woodbourne had violated his right of access to
court by deliberately destroying papers he needed
for his habeas corpus.
The Attorney General made a motion for
summary judgment, alleging that Brownell failed to
exhaust his administrative remedies. He argued that
Brownell did not exhaust his administrative
remedies because his grievance only referred to lost
property, and did not allege that his property was
lost through any deliberate staff misconduct.
The Court agreed that Brownell did not exhaust
his administrative remedies. His grievance did not
allege intentional misconduct, and therefore did not
give DOCS an opportunity to investigate and
address the allegedly deliberate staff misconduct
which was the basis of his lawsuit. However, the
Court held that “special circumstances” justified
Brownell’s failure to exhaust: Despite the fact that
Brownell had filed both a property claim and a
grievance over his lost property, DOCS never
investigated what had happened to his property.
Instead, it denied both on technicalities. His
property claim was denied on the grounds that the
relief he sought was not available in that process,
and his grievance was denied on the grounds that he
should pursue the property claim process, even
though the deadlines for filing and appealing a
property claim had expired. In addition, although
his grievance did not allege intentional misconduct
by staff, that was because at the time he filed the

Page 5

grievance he was not aware that officers might have
deliberately destroyed his property. When he
learned that his property might have been
deliberately destroyed, he reasonably believed that
it was too late to file a new grievance alleging
deliberate misconduct.
Practice pointer: DOCS’ lawyers often rely on
inmates’ confusion over the proper grievance
procedures to try and prevent inmates’ claims from
being heard in court. Fortunately, Brownell now
joins such other Second Circuit cases as Hemphill
v. State of New York, 380 F.3d (2nd Cir. 2004) and
Giano v. Goord, 380 F.3d 670 (2nd Cir. 2004), in
holding that “special circumstances”--including, as
here, a justifiable mis-understanding of the rules
(or, in other cases, DOCS’ failure to follow the
rules or an inmate’s legitimate fear of retaliation
for filing a grievance)--may, in some cases, excuse
exhaustion of administrative remedies.
As noted, however, Brownell was decided prior
to the Supreme Court’s decision in Woodford. Will
the Second Circuit’s “special circumstances”
doctrine survive Woodford? For the reasons
discussed in the prior article, we think so. The
inmate in Woodford advanced no “special
circumstances” for the lateness of his grievance.
Under those circumstances, the Court held, an
inmate is bound by the rules of the particular
correctional department’s grievance process. But
that decision does not appear to overrule the
Second Circuit rule that, in some cases, special
circumstances may justify a failure to follow the
rules.
The inmate in this case was represented by the
Prisoners’ Rights Project of the Legal Aid Society
and Prisoners’ Legal Services of New York.
DOCS Amends Grievance Regulations; PLS and
Prisoners’ Rights Project Critical
Since the PLRA was passed, many courts have
noted the complicated, ambiguous, sometimes
contradictory nature of DOCS’ grievance process.
Caselaw has repeatedly shown that inmates and
staff alike can easily become confused about how to
exhaust their administrative remedies for a given

Page 6

Pro Se Vol. 16 No. 3 Summer 2006

complaint. DOCS itself recently conceded that
“cases have made it obvious that the language in the
current [grievance regulations] is unclear.”
This Spring, DOCS amended its grievance rules
with the goal, it said, of “eliminat[ing] ambiguities
in the grievance system and reinforc[ing] the
program’s primary function as a non-adversarial and
effective problem resolution mechanism.”
Among other things, the new amendments:

— Extend the time frames for various actions, as
follows:
•

filing the grievance: from 14 calendar days
to 21 calendar days;

•

IGRC resolution or convening of a hearing:
from 7 working days to 16 calendar days;

•

grievant’s appeal to Superintendent or to
CORC: from 4 working days to 7 calendar
days;

•

Superintendent’s response: from 10 working
days to 20 calendar days;

•

Superintendent’s response to harassment or
illegal discrimination grievance: from 12
working days to 25 calendar days; and

•

CORC response to an appeal: from 20
working days to 30 calendar days;

— Allow inmates to request an extension of the
time limits at any stage of the process for
mitigating circumstances, but emphasize that
granting such requests are within the discretion
of DOCS’ personnel and that no “exception to
the time limit may…be granted more than 45
days after an alleged occurrence” or “more than
45 days after the date of the [IGRC or
Superintendent’s] decision” unless the late
appeal asserts a failure to implement the
decision.

— Attempt to “clarify the relationship between the
grievance mechanism and other formal or
informal means of problem resolution.” The
new amendments state that if an inmate receives
a decision from a program that has a separate
appeal mechanism, outside the grievance
system, “the decision rendered during that
process…is not grievable while all other aspects
of the other program and its implementation,
remain grievable.” For example: If you have a
disciplinary hearing and you want to challenge
both the disposition of the hearing (the finding
of guilt) and allege that the charges were filed
against you for retaliatory reasons, you would
have to file your appeal of the disciplinary
hearing within the disciplinary system and file
a separate grievance within the grievance
system concerning the retaliation complaint.
The new amendments caution, however, that “if
an inmate is unsure whether an issue is
grievable, he/she should file a grievance and the
question will be decided through the grievance
process.”
— Permit a grievant to appeal in cases where a
decision has not been implemented. The new
text at 7 N.Y.C.R.R. 701.5(c)(4) states: “If a
decision (of the Superintendent requiring
action) is not implemented within 45 days, the
grievant may appeal to CORC citing lack of
implementation as a mitigating circumstance.”
— Require inmates to follow up on their grievance
appeals. The new text at 7 N.Y.C.R.R.
§ 701.5(d)(3)(I) states: “If a grievant does not
receive a copy of the written notice of receipt
within 45 days of filing an appeal (to CORC),
the grievant should contact the IGP supervisor
in writing to confirm that the appeal was filed
and transmitted to CORC.”
— Address the procedures to be followed when an
inmate is transferred to another facility while
his grievance is being processed. The new 7

Pro Se Vol. 16 No. 3 Summer 2006

N.Y.C.R.R. § 701.6(h) states: “Any response to a
grievance filed by an inmate who has been
transferred shall be mailed directly to that inmate,
via privileged correspondence, at his/her new
facility or location. An inmate transferred to another
facility may continue an appeal of any grievance.”

— Provide a new section, 7 N.Y.C.R.R. § 701.10,
describing an “expedited procedure” for review
of grievances alleging violation of the
Department’s strip search or strip frisk policy.
The expedited procedure basically mirrors the
“expedited procedures” already in the books for
review of grievances alleging staff harassment
or discrimination.
— Provide extra security to inmate grievance
representatives and clerks by providing a
“reasonable assurance” that they will be able to
return to their former job assignments, and
preventing inadvertent transfers of IGRC
representatives by placing a “marker” in their
institutional files, indicating that the inmate is
an IGRC representative and cannot be
transferred without a due process hearing.
Do the new grievance amendments meet DOCS’
goal of eliminating ambiguity in the system and
providing an “orderly, fair, simple and expeditious”
method of resolving grievances? Neither PLS nor
the Prisoners’ Rights Project believe so. We have
called on DOCS to completely overhaul the
grievance system to make it simpler, fairer, and
clearer. At a minimum, we believe DOCS should
institute the following reforms:

Page 7

3.

Institute a straightforward appeal method that
would allow inmates to appeal all grievances,
including those that have been rejected as
untimely or dismissed for other procedural
reasons;

4.

Mandate that grievances filed at the wrong
facility be accepted, filed, and transferred to
the right facility, with notice to the prisoner;

5.

Overhaul, simplify, and clarify confusing and
ambiguous aspects of the “expedited” review
procedures for harassment, discrimination,
and strip search complaints;

6.

Provide prisoners a means to complain
confidentially within the grievance process
about sensitive matters;

7.

Eliminate ambiguous decisions and require
that grievances be either accepted or denied;

8.

Provide prisoners with a comprehensive,
unambiguous, and brief explanation of what
they must do to exhaust administrative
remedies to DOCS’ satisfaction;

9.

Eliminate the requirement that a grievance
state the “action requested,” since prisoners
do not necessarily know what must be done to
correct the problem; and

10.

Promulgate guidelines for both prisoners and
staff as to the meaning of “mitigating
circumstances” for filing a late grievance.

1.

Dramatically extend the time limit for filing
grievances to 180 days;

DOCS has rejected virtually all of these
suggestions.

2.

Require the IGRC to accept, file, and provide
a grievance number to all grievances
submitted, including those that are untimely or
procedurally improper for some other reason;

A copy of the full text of DOCS’ grievance
amendments can be obtained from Anthony J.
Annucci, Deputy Commissioner and

Page 8

Pro Se Vol. 16 No. 3 Summer 2006

Counsel, Department of Correctional Services,
1220 Washington Avenue, Albany, NY 12226-2050.
A copy of PLS’ and PRP’s criticisms of the
proposed amendments and our suggestions for
reform can be obtained by writing to Central Intake,
Prisoners’ Legal Services of New York,
114 Prospect St., Ithaca, NY 14850.
News and Briefs
Parole Class Action Survives Summary Judgment
The “abrupt and steep decline” in the parole
release rate for A-1 violent felons presents “at least
circumstantial evidence” that the Parole Board is
relying on gubernatorial policy rather than
legislatively directed law, a federal judge has held,
denying the Governor’s motion to dismiss the case.
The decision in the case, Graziano v. Pataki,
2006 WL 2023082, S.D.N.Y. (July 17, 2006),comes
in a class action alleging that the Parole Board
under Governor Pataki is not properly following the
statutory criteria for the consideration of parole
release of violent felons but is, instead, following
gubernatorial directives and automatically denying
release in almost all cases. In its decision, the Court
noted that under Mr. Pataki, the release rate for A-1
violent felons fell from 28% to 3%.
The Court held that while there is no due
process right to parole release, there is a
constitutional right to have parole determinations
made in accordance with the statute.
Under Executive Law §259-i, the Parole Board
is required to take into consideration a number of
factors, including the seriousness of the offense, the
inmate’s institutional adjustment, and academic and
other achievements.
The Graziano court held that while the Parole
Board has the discretion to give as much weight as
it deems appropriate to any of those factors,, it may
not refuse to exercise any discretion at all and
automatically deny release to violent felons.

“Without suggesting that he has done so, the
Court can hold with confidence that the Governor
would not be permitted to effect a ‘policy’ as an end
run around the legislature, in order to accomplish
the goal of amending the statutory criteria to deny
parole to a class of violent offenders,” the Court
wrote. “Such an end run is precisely what is alleged
by the Plaintiffs.”
The Court acknowledged that there have been
dozens of cases in which individuals denied parole
have made allegations similar to those in this case.
However, it found the allegation in this case of a
“policy or practice to deny parole based solely” on
the offense “transcends what all previous Court
decisions have addressed, namely, whether a
particular parole denial constituted a violation of
one or more Constitutional rights.” While agreeing
that there may be reasons to deny a violent prisoner
parole and grant parole to a non-violent convict, the
Court wrote, both are entitled to the same statutory
consideration. “The violent nature of the offense
may obviously be considered, but may not serve to
make a denial a foregone conclusion, in
contravention of the statutorily-prescribed process
of consideration,” wrote the Court.
Governor Pataki has long been opposed to
parole. In1998, he succeeded in eliminating parole
for violent felons by replacing indeterminate
sentences with determinate sentences, but he has not
persuaded the Legislature to eliminate parole for all
felons. Moreover, many inmates convicted of
violent felonies prior to 1998 are still serving
indeterminate sentences and have been appearing
before the Parole Board since then. Critics, such as
the Plaintiffs in this case, allege that the Governor
has sought to achieve, through a Parole Board he
appointed, that which he has been unable to achieve
in the Legislature.
Robert Isseks, the attorney for the Plaintiffs in
the Graziano case, stated, “Unlike the parole
challenges that have come before, this class action
enables the Plaintiffs to present proof that the Pataki
Parole Board has been systematically using the fact
of a murder conviction, without more, to keep
prisoners from being considered for release.”
The case will now move to discovery.

Pro Se Vol. 16 No. 3 Summer 2006

In a related story, the New York Law Journal
recently reported the filing of a case called
Frederick v. Pataki. In that case, an inmate was
granted parole by one Board and was about to walk
out the prison door, after having given away his
belongings and his in-prison job, when his release
was abruptly rescinded by a new Board. Mr.
Frederick alleges that in August 2003, two Parole
Commissioners, Vernon C. Manley and Daizzee D.
Bouey, voted to release him. Although Mr.
Frederick had been convicted of murder, the
Commissioners were persuaded he had reformed.
He took responsibility for his crime, made
considerable accomplishments in prison, compiled
a spotless institutional record, and won
endorsements from, among others, the
Superintendent of Sing Sing, who described him as
a “poster child” for the type of offender for whom
the parole system is supposed to work.
The two commissioners who voted to release
Mr. Frederick, however, were also responsible for
the release of Kathy Boudin, a 1960s radical
convicted of felony murder and robbery in
connection with an incident that left two police
officers and a Brinks security guard dead. That
decision was publicly denounced by Mr. Pataki.
While Mr. Frederick was preparing for release,
another member of the Board, Robert Dennison,
met with relatives of one of the victims. After
Mr. Dennison asked if they thought Mr. Frederick
“should die in jail,” a relative agreed that “he should
never go free.” Mr. Frederick was then subjected to
a parole rescission hearing based on “newly
discovered evidence.” The newly discovered
evidence was that the victim's relatives opposed
release.
Commissioners Manley and Bouey, who had
voted to release Ms. Boudin and Mr. Frederick,
were meanwhile suspended and a new Parole Board,
with Mr. Dennison sitting on the panel,
reconsidered and voted to deny release, according to
the complaint.
Mr. Dennison was subsequently promoted to
Chairman of the Commission and the chairman who
had been presiding when Ms. Boudin was released

Page 9

was replaced. The Governor also recently replaced
Commissioners Bouey and Manley.
Officials with the Division of Parole have
denied that there is any correlation between Mr.
Dennison’s promotion and the Frederick or Boudin
cases, or that there is any political interference with
the Board.
Vivian Shevitz, the attorney representing
Mr. Frederick, however, argues that the Parole
Board and state court judges who upheld the
rescission “were apparently intimidated by the
Governor's political agenda.” “The policy and
practice carried forward by Commissioner Dennison
and approved by the New York courts was a sham;
it is a violation of due process and equal protection
in that it forwards a political agenda…,” wrote Ms.
Shevitz in her complaint.
For additional parole cases, see page 21 below.
Rockefeller Drug Law Reform: DOCS Amends
CASAT Policy; Will Enroll Inmates With Judicial
CASAT Orders in Phase I Of Program, But Only
When Six to 12 Months From Earliest Release
The Rockefeller Drug Law Reform Act of 2004
amended the Penal Law to allow sentencing courts
to order DOCS to enroll drug offenders in the
Comprehensive Alcohol and Substance Abuse
Treatment (“CASAT”) program. DOCS, however,
has resisted such orders. It argued that the new
statute did not alter its statutory discretion to
determine who would be admitted to the program
and that it could exercise its discretion to refuse to
place an inmate in CASAT, regardless of whether
the inmate had a court order.
After losing several court decisions, however,
DOCS has now modified its policy. It now concedes
that inmates with judicial CASAT must be admitted
into Phase 1 of CASAT. But, it states, such inmates
need not be admitted into either Phases 2 or 3 of the
program--unless they are eligible for work release.
Further, it states, inmates with CASAT orders who
are not eligible for work release will not be
admitted into Phase 1 until they are from six to 12
months from their earliest possible release date.

Page 10

DOCS argues that this new policy is legal. The
CASAT statute, Penal Law 60.04(6), states that a
sentencing court may order DOCS to place a drug
offender in CASAT “in an alcohol and substance
abuse correctional annex,” provided the offender
will “satisfy the statutory eligibility criteria for the
program.”
CASAT is a three-phase program. Only Phase 1
of CASAT takes place in an “alcohol and substance
abuse correctional annex.” (Phase 2 consists of six
months of either residential treatment in a
residential treatment facility or work release in a
work release facility. Phase 3 consists of early
release to parole supervision.) See, generally, 7
N.Y.C.R.R. § 1950.2.
Therefore, DOCS argues, a judicial CASAT
order only requires that an inmate be placed in
Phase 1 of the program. Phases 2 and 3, DOCS
argues, are not covered by the order.
The statutory eligibility criteria for transfer to a
correctional annex are contained in Correction Law
§ § 2(18) and 851. For drug offenders, the criteria
are that he be within 30 months of a parole or
conditional release date. Thus, a drug offender who
is within 30 months of a parole or conditional
release date should meet the statutory eligibility
criteria for Phase 1 of CASAT.
DOCS argues, however, that the mere fact that
a CASAT ordered inmate meets the eligibility
requirements for Phase 1 does not mean that he
must be placed in CASAT immediately. In fact,
DOCS argues, the new statute says nothing about
when such inmates must be placed in the program.
In addition, DOCS notes, inmates who are ineligible
for work release will not be able to take advantage
of Phases 2 or 3 of CASAT, the phases of the
program that involve early release. Therefore,
DOCS has decided that it will only place such
inmates in Phase 1 when they are from 6 to 12
months from their earliest release date.
This is a disappointing result. Many inmates had
understood that a judicial CASAT order would
entitle them to a prompt CASAT placement and the
opportunity to complete all three phases of the
program, including work release or residential
treatment and early parole.

Pro Se Vol. 16 No. 3 Summer 2006

PLS’ analysis of the relevant statutory language,
however, suggests that DOCS’ new policy, however
disappointing, conforms to the letter of the law. PLS
does not believe it is susceptible to further legal
challenge.
Practice pointer: Some inmates received CASAT
orders as part of their plea bargain. We are aware
of some cases in which sentencing courts have
permitted inmates to vacate their pleas under such
circumstances on the grounds that DOCS will not
carry out the terms of the plea bargain. If you
received a CASAT order as part of a plea bargain
and you do not believe that DOCS is carrying it out
as you and your sentencing court understood that it
would be carried out, and that it would be to your
benefit to re-negotiate your plea bargain, you
should contact your public defender or criminal
defense attorney.
See more on the Rockefeller Drug Laws, this
issue, p. 23.
Federal Cases
Sentencing: Second Circuit Holds DOCS May Not
Add Period of Post-Release Supervision to
Sentence Where Sentencing Court Failed to Do So
Earley v. Murray, 451 F.3d 71 (2nd Cir. 2006)
In 1998, the Legislature extended determinate
sentencing to all first-time violent felonies and
mandated that all determinate sentences be followed
by a period of mandatory Post-Release Supervision
(“PRS”). See, Penal Law § 70.45(1).
In February of 2000, Sean Earley plead guilty to
attempted burglary in the second degree, a violent
felony, and was sentenced to a determinate term of
six years in prison. Neither Earley, his counsel, the
prosecutor, nor the judge was aware of the
requirement that a term of post-release supervision
be included with the determinate sentence, and no
such term was mentioned in either the sentencing
minutes or the written commitment order. Sometime
after Earley arrived in DOCS’ custody, DOCS
administratively added a five-year term of post-

Pro Se Vol. 16 No. 3 Summer 2006

release supervision to Earley's sentence without
informing Earley. Earley became aware of DOCS’
actions only in 2002, after hearing rumors from
other inmates that DOCS was administratively
adding terms of post-release supervision to all
determinate sentences.
After exhausting his administrative remedies
within DOCS, Earley moved in state court pursuant
to § 440.20 of the New York Criminal Procedure
Law to be re-sentenced according to the terms
imposed by the sentencing judge. He argued that
DOCS’ modification to his sentence violated his
due process rights and that he had received
ineffective assistance of counsel.
The state court denied Earley's motion. The
Court acknowledged that Earley should have been
told about the PRS term, but found that, since a PRS
term is mandatory under New York law, Earley’s
request to eliminate it from his sentence could not
be granted.
After his state court appeals were denied, Earley
filed a habeas corpus petition in federal court. The
Second Circuit Court of Appeals granted his
petition.
The Court relied on a 1936 Supreme Court case,
Hill v. United States ex rel. Wampler, 298 U.S. 460.
In that case, the Court held, “The only sentence
known to the law is the sentence or judgment
entered upon the records of the court…” The
Second Circuit took Wampler to mean that “a
sentence may not be increased by an administrator's
amendment.” In this case, the Court held, “The
sentence imposed by the court on Earley was six
years in prison. The judgment authorized the state to
incarcerate him for six years and no more. Any
addition to that sentence not imposed by the judge
was unlawful.” The Court, therefore, ordered that
the period of PRS be excised from Earley’s
sentence.

Page 11

Practice pointers. This case merits several
comments. First, a period of Post-Release
Supervision remains a mandatory part of a
determinate sentence. The Court here held that
what was unlawful was the way in which the PRS
term was added to the sentence. The Court pointed
out that when DOCS discovered the oversight made
by Earley's sentencing judge, “the proper course
would have been to inform the state of the problem,
not to modify the sentence unilaterally.” The state
could then have “moved to correct the sentence
through a [440 motion], in the Defendant’s
presence, before a court of competent jurisdiction.”
The Court’s order that the Post-Release Supervision
be excised, it pointed out, was “not intended to
preclude the state from moving in the New York
courts to modify Earley’s sentence to include the
mandatory PRS term.” (Note, however, that under
Criminal Procedure Law § 440.40, the state has
only one year from the entry of judgment in which
to move to correct an erroneous sentence.)
Second, there is a question concerning whether
Earley is enforceable in state court. Although state
courts are required to apply the constitutional
rulings of the United States Supreme Court, the
interpretation of a constitutional question by the
lower federal courts is not binding on state courts’
interpretation of the same question. See, People v.
Kin Kan, 78 N.Y.2d 54, 59-60 (1991). In People v.
Catu, 729 N.Y.S.2d 887 (2005), the New York Court
of Appeals addressed an issue similar to that
addressed by the federal court in Earley. In that
case, the defendant was not told that PRS would be
a mandatory part of his sentence. Later, he sought
to withdraw his plea, on the ground that it was not
made knowingly and voluntarily, since he was not
aware that PRS would be included as part of the
determinate sentence. The Court agreed that the
proper remedy was to allow the inmate to withdraw
his plea.

Page 12

DOCS officials have argued that under Catu,
they may continue to correct legally erroneous
commitment papers to reflect a PRS term, if the
sentencing court failed to do so. They argue that an
inmate’s only remedy in state court is that offered
by Catu: withdrawal of the plea.
In one recently-decided case, however, a state
court chose to follow Earley, even though it was not
required to. In that case, People v. Ryan,---N.Y.S.2d
---, 2006 WL 2085473 (N.Y. Sup Ct., July 28, 2006),
a defendant was erroneously sentenced to 2½ years
of PRS when the correct sentence was 5 years PRS.
DOCS administratively changed the 2½ years to
five years. After the inmate had served both his
incarceration and more than 2½ years on parole,
his parole was revoked. He then filed a 440 motion,
seeking enforcement of the 2½-year PRS sentence,
and directing the Division of Parole to withdraw its
citation for a violation of parole. The sentencing
court granted the motion. Citing Earley, the court
held: “A Department of Correction clerk is
unauthorized to unilaterally amend a sentence
imposed by a sentencing judge. Under these
circumstances, the defendant is entitled to
enforcement of the sentence imposed by the court
which included a two and one half year term of
PRS.”
The Ryan cases suggests that an inmate’s
options in state court are not limited to merely
revoking the plea. He may also seek specific
performance of the commitment order even if the
commitment is legally wrong. This remains,
however, a quickly developing area of law.
(Note that Earley can presumably be enforced
against DOCS in a federal court. However, to get
into federal court, an inmate would have to file a
federal habeas corpus petition, and to file a federal
habeas corpus petition, the inmate would first have
to exhaust state court remedies [as Mr. Earley
did]).
The final comment that should be made about
this case is this: Prisoners’ Legal Services has
received a number of letters from inmates asking
whether the reasoning of Earley can be extended to
challenge DOCS’ practice of administratively
ordering that the sentences of predicate felons run

Pro Se Vol. 16 No. 3 Summer 2006

consecutively to time owed on a prior sentence
under Penal Law 70.25(2-a), where the sentencing
court did not specify consecutive sentences. We are
skeptical. Earley stands for the proposition that
only a court, and not DOCS, may impose a
sentence. In the case of offenders serving predicate
sentences, however, the finding that they are
predicate offenders is made by a court and is
incorporated as part of the sentence. The
requirement of Penal Law § 70.25(2-a), that such
sentences run consecutively to time owed on
previous sentences, is more akin to a rule of
sentence calculation, properly the realm of DOCS’
administrators, than it is part of the sentence itself.
(See, also, Adams v. Goord, discussed below, p. 24.)
District Court Dismisses Class Action Challenging
Double-Bunking
Jones v. Goord, 435 F.Supp.2nd 221(S.D.N.Y)
In Jones v. Goord, a federal district court judge
dismissed the inmates’ class action suit which
challenged DOCS’ program of double-bunking
maximum security inmates. The case, one of the
oldest cases in the district court’s calendar, is better
understood with some background.
In the late 1980s and early 1990s, New York,
like many states, experienced a dramatic increase in
its prison population. New York’s maximum
security prisons were so crowded that inmates often
would languish in local jails for months after before
DOCS could receive them. This led to several local
jails and counties suing DOCS. In response, DOCS
decided to adopt a double-bunking program to open
up more bed space. DOCS implemented its doublebunking policy in 1995, affecting 13 maximum
security prisons and a total of 796 cells.
Soon after, several inmates from different
maximum security prisons sued DOCS, stating that
the double-bunking program violated their
constitutional rights. The suit took years to litigate
because of the exhaustive discovery, the need to
certify it as a class action, and because the court
stayed the proceedings to await another federal
court decision on double-bunking in medium

Pro Se Vol. 16 No. 3 Summer 2006

security prisons. In that case, Bolton v. Goord, 992
F.Supp. 604 (S.D.N.Y. 1998), the federal court
decided that the manner in which DOCS doublebunked inmates at Woodburne did not constitute
cruel and unusual punishment. The Bolton decision
rested in large part on Rhodes v. Chapman, 452
U.S. 337 (1981), in which the Supreme Court held
that double-bunking per se does not violate the
Eighth Amendment. Together, Bolton and Rhodes
established a high bar to a successful challenge to a
double-bunking policy: Under those cases, a
double-bunking program would have to constitute
or cause a “serious deprivation of basic human
needs” before it would be found to have violated the
Eighth Amendment.
The Plaintiffs in Jones persevered despite the
high bar. They completed discovery in 2003, and
over the next two years, argued DOCS’ motion to
dismiss the case before trial.
The Court has now granted DOCS’ motion.
The Court’s decision is best understood in terms
of the Plaintiffs’ two main constitutional arguments.
The Plaintiffs first argued that DOCS’ doublebunking program constitutes cruel and unusual
punishment under the Eighth Amendment because
forcing two inmates to live in such a small space
causes unsanitary conditions, increases inmates’
exposure to second-hand cigarette smoke, and also
increases the risk that inmates will be injured or
contract diseases such as HIV, hepatitis, and
tuberculosis. In addition, the Plaintiffs argued that
double-bunking subjects inmates to a substantially
increased risk of violence, and that there is a great
deal of unreported violence and sexual assault
between inmates in double-bunked cells. Finally,
the Plaintiffs noted that DOCS’ officials often
violate their own screening procedures for doublebunking. To support all these assertions, the
Plaintiffs relied upon logic, common-sense, and
anecdotal evidence from inmates and their experts.
The Court rejected this argument on the ground
that the Plaintiffs had provided insufficient factual
support. It found that, while double-bunking is not
without problems, the Plaintiffs had failed to show
that the rate of disease, injury, violence, and sexual

Page 13

assault had increased since the inception of the
double-bunking program.
The Plaintiffs’ second argument was that the
double-bunking program impairs inmates’ ability to
practice their religion, in violation of the First and
Fourteenth Amendments. This is especially true for
Muslim inmates, the Plaintiffs argued, because their
religious tenets call for a clean and private place to
pray. The court did not contest that the doublebunking program may burden inmates’ religious
practice. However, the court concluded that the
First Amendment claims nevertheless failed because
double-bunking is “rationally related to the goal of
finding sufficient bed space to house all maximum
security inmates.” The court reasoned that “the need
to house each inmate in a cell is indeed a
‘legitimate’ interest for DOCS, and placing two
inmates in a single cell is ‘reasonably related’ to
that interest.”
Although the Court dismissed the Plaintiffs’
class action claims, it did not dismiss their
individual claims against DOCS. The Court found
that although the Plaintiffs “failed to produce
sufficient evidence to show that [DOCS’] doublecelling policy is unconstitutional as a general
matter…nothing in this Court’s opinion forecloses
[them] from showing that, with respect to particular
plaintiffs in particular circumstances, doublecelling may result in a violation of an inmate’s
constitutional rights.”
It remains to be seen what will happen with the
Plaintiffs’ individual claims.
Practice pointers:
1. Most inmates are aware that their freedom to
practice the religion of their choice is protected
by the First Amendment to the U.S. constitution.
Many are unaware, however, that freedom of
religion in prison receives even greater
protection from a federal statute, the Religious
Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc-1. Here, the
Court only analyzed the inmate Plaintiffs’
constitutional claims. It refused to analyze a
RLUIPA claim on the grounds that the Plaintiffs

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Pro Se Vol. 16 No. 3 Summer 2006

had failed to plead such a claim in their complaint.
To determine whether the Plaintiffs had a
constitutional claim, the Court used a “reasonable
relationship” test. Under that test, a policy that
burdens inmates’ exercise of their constitutional
rights is nevertheless constitutional if it is
“reasonably related” to a “legitimate” penal
interest. Under RLUIPA, by contrast, any policy
which imposes “a substantial burden” on the free
exercise of religion will be found illegal unless
DOCS can show that the policy is: (1) in
furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering
that interest.
In this case, the Court found that doublebunking was reasonably related to a legitimate
penalogical interest and therefore met the test of
constitutionality. Would the Plaintiffs have
fared better if they had pled a RLUIPA claim?
2. A practice or policy may be found
unconstitutional “per se,” i.e., unconstitutional
as applied in all circumstances; or it may be
found unconstitutional “as applied,” i.e.
unconstitutional as applied to a particular case,
even if it is generally constitutional. Here, the
Court found that double-bunking was
constitutional “per se,” but held the door open
to complaints that it was unconstitutional as
applied in particular circumstances. Under
what kind of circumstances might double
bunking be unconstitutional “as applied?”
What about a situation in which an inmate is
required to double-bunk with another inmate
who is known by DOCS staff to be assaultive?

p

Disciplinary Cases
Defenses: Inmate Failed to “Prove” Psychiatric
Defense
Matter of Williams v. Goord, 817 N.Y.S.2d 428
(3d Dept. 2006)
When a Correction Officer directed the
Petitioner, an inmate, to exit his cell for a urinalysis
test, the Petitioner allegedly refused, used profane
language, and yelled to other inmates that he was
being set up. As a result, he was charged in a
Misbehavior Report with failing to comply with
urinalysis testing procedures, refusing a direct
order, interfering with an employee, creating a
disturbance, and harassment. After being found
guilty, he filed an Article 78 proceeding, arguing
that the Hearing Officer had denied him the right to
present a psychiatric defense. The Court rejected
this claim. “Assuming, without deciding, that
Petitioner sufficiently raised this issue at the
administrative hearing,” the Court wrote, “ his
failure to prove this defense and/or present any
evidence in support of it is fatal to his claim.” The
Court also rejected the Petitioner’s employee
assistance claim, noting that although the Petitioner
criticized his employee assistant's failure to
interview two correction officials, he did not request
these officials as witnesses at his hearing, and his
assistant interviewed four inmates that the Petitioner
wished to have testify and provided him with a
large amount of documentary evidence. “In view of
this,” the Court found, “we find that Petitioner was
provided meaningful assistance.”
Practice Commentary: The right to present a
psychiatric defense at a prison disciplinary hearing
was established through litigation over the past 20
years and is now embodied in DOCS’ regulations,at
7 N.Y.C.R.R. 254.6(b). In general, the regulations

Pro Se Vol. 16 No. 3 Summer 2006

provide that when an inmate’s mental state is “at
issue” in a disciplinary hearing, the Hearing
Officer must take evidence about it, including
confidential testimony from an Office of Mental
Health (“OMH”) clinician. The Hearing Officer
must then consider whether the inmate is capable of
proceeding with the hearing. If he concludes that
the inmate is capable of proceeding with the
hearing, and he ultimately finds the inmate guilty of
the underlying conduct, he must consider whether
the misbehavior should be excused or the penalty
mitigated on account of the inmate’s mental state.
An inmate’s mental state is considered “at
issue” under the regulations if:

< the inmate is classified as level 1 by OMH;
< the inmate is charged with engaging in an act of
self-harm;

< the incident occurred en route to or from or
while the inmate was in the Central New York
Psychiatric Center (“CNYPC”) or an OMH
satellite unit or intermediate care program or
was at CNYPC within nine months prior to the
incident; or

< “it appears to the Hearing Officer, based on the
inmate's testimony, demeanor, the circumstances
of the alleged offense, or any other reason, that
the inmate may have been mentally impaired at
the time of the incident or may be mentally
impaired at the time of the hearing.”
In light of these regulations, the decision in this
case seems questionable. If an inmate’s mental state
is “at issue,” which the Court here assumes to be
the case, the burden should be on the Hearing
Officer to determine whether the inmate is capable
of participating in the hearing and whether the
penalty should be reduced or eliminated on account
of the inmate’s disability. The inmate has no burden
to “prove” the defense.

Page 15

Prisoners’ Legal Services’ motion asking the
court to reconsider its decision was, however,
denied.
Drug Testing: Circumstances Giving Rise to Drug
Test Held Irrelevant
Matter of Mullen v. Superintendent, 815 N.Y.S.2d
778 (3d Dep’t 2006)
The Petitioner was asked to submit a urine
sample based on an investigation into possible drug
use. After the urine sample twice tested positive for
the presence of cannabinoids, the Petitioner was
charged in a Misbehavior Report with violating the
prison disciplinary rule which prohibits the
unauthorized use of a controlled substance.
Following a disciplinary hearing, the Petitioner was
found guilty of the charge and the determination
was affirmed on administrative appeal. The Court
here rejects the Petitioner’s contention that he was
denied relevant documentary evidence in the form
of a report relating to the investigation prompting
the request for urinalysis because that information
was irrelevant; the Misbehavior Report and
determination of guilt resulted from the two positive
drug test results and not from any information
obtained from the investigation leading to the
request for the Petitioner's urine sample.
Practice pointer: Inmates often argue that a
disciplinary conviction for drug use or possession
was invalid because the search or test that revealed
the drugs was based on an improper motive, such as
retaliation, or because there was no basis upon
which to conclude that a confidential source who
suggested the presence of the drugs was reliable.
The New York courts have rejected such claims.
They have held that the presence of drugs or other
contraband in an inmate’s possession constitutes an
independent violation of the rules. The only relevant
question is whether possession of the contraband
can be fairly attributed to the inmate in whose
possession it was found. The factors that gave rise

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Pro Se Vol. 16 No. 3 Summer 2006

to the search which revealed the contraband are
irrelevant.

Disposition: Charges Dismissed Where Hearing
Officer Fails To State Evidence Relied Upon

Drug Testing: Hearing Officer Erred in Refusing
to Allow Inmate to Introduce Medical Records;
But Error Was Harmless Where Same Defense
Has Been Rejected in Prior Case

Canzater-Smith v. Selsky, 813 N.Y.S.2d 254
(3d Dep’t 2006)

Matter of Harris v. Selsky 812 N.Y.S.2d 389
(3d Dep’t 2006)
The Petitioner was charged in a Misbehavior
Report with using a controlled substance after a
sample of his urine twice tested positive for
cannabinoids. He was found guilty of the charge at
the conclusion of a Tier III disciplinary hearing and
the determination was affirmed on administrative
appeal. He then commenced an Article 78
proceeding. He argued, first, that he was denied
adequate employee assistance because the assistant
neglected to provide him with some of the
documents requested because they were
inaccurately referenced by the Petitioner. The Court
found, however, that this defect was remedied when
the Hearing Officer provided most of the documents
the Petitioner had sought and adjourned the hearing
to give him an opportunity to review them. The
Petitioner next argued that he should have been
allowed to submit his medical records in evidence
and that the Hearing Officer erred in finding them
irrelevant. The Court agreed with the inmate that
this was an error because the medical records were
relevant to the Petitioner’s defense that his use of
ibuprofen caused a false positive test result. But the
Court also found that the error was harmless
because that “ibuprofen defense” had been rejected
in past decisions. See, e.g., Matter of Alvarez v.
Coombe, 649 N.Y.S.2d 836 (3d Dep’t 1996).
Practice pointer: In Alvarez, the Court noted
that “there was evidence in the record that
ibuprofen would not have produced a positive result
for cannabinoids.” The Alvarez Court did not state
what the evidence was.

The Petitioner was charged in three separate
Misbehavior Reports with violating various prison
disciplinary rules arising out of three related
incidents. According to the Misbehavior Reports,
the Petitioner had asked the Correction Officer
standing outside the Sergeant’s office to speak to
the Sergeant. The Correction Officer refused the
Petitioner’s request. The Petitioner then refused the
Correction Officer’s orders to leave the area and
began shouting profanities. When the Correction
Officer told the Petitioner to place his hands on the
wall and stepped toward the Petitioner, the
Petitioner struck him in the face with a bag. The
Correction Officer then used force to take the
Petitioner to the floor, where the Petitioner
continued to struggle until he was placed in
handcuffs.
The first Misbehavior Report, issued as a result
of that incident, charged the Petitioner with violent
conduct, assault on staff, refusing a direct order, and
interference with an employee. The remaining
reports, with similar charges, were issued due to the
Petitioner’s continued uncooperative behavior while
being transported to the infirmary and being
admitted to the Special Housing Unit. Following a
Tier III disciplinary hearing, the Petitioner was
found guilty of all charges and the determination
was upheld on administrative appeal. He then filed
an Article 78 proceeding.
Seven N.Y.C.R.R. 254.7(a)(5) provides that an
inmate in a disciplinary hearing shall be given a
written statement of the evidence relied upon by the
Hearing Officer in reaching his decision, a rule
which codifies a basic due process principle.
Upon reviewing the record in this case, the
Court found that the Hearing Officer had failed to

Pro Se Vol. 16 No. 3 Summer 2006

set forth the evidence relied upon in finding the
Petitioner guilty of the charges contained in the
second and third Misbehavior Reports. It therefore
dismissed those charges.
The remaining charges, however, were
supported by substantial evidence, including the
Misbehavior Report and corroborating testimony at
the hearing, including the Petitioner’s own
testimony.
Hearing Officer Bias: Court Thinks Twice;
Inmate Loses Once
Matter of Sime v. Goord, 812 N.Y.S.2d 714
(3d Dep’t 2006)
Matter of Sime v. Goord, 817 N.Y.S.2d 733
(3d Dep’t 2006)
Petitioner Sime, an inmate, was charged with
assaulting an inmate and possessing a weapon after
confidential information identified him as having
attempted to stab another inmate with a pen. He was
found guilty of the charges in a Tier III disciplinary
hearing, the charges were affirmed on
administrative appeal, and the Petitioner brought an
Article 78 proceeding.
In his petition, the Petitioner argued that the
determination had to be annulled because the
Hearing Officer was improperly appointed to
conduct the disciplinary hearing. In a decision dated
April 13, 2006, the Appellate Division, Third
Department, agreed. The Court noted that the
Hearing Officer was specifically named in the
unusual incident report as one of the persons who
investigated the incident and that, when questioned
by the Petitioner about his involvement in the
investigation, the Hearing Officer offered nothing
but a blanket denial of any involvement at all. The
Court held that, “[w]ithout an explanation as to why
his name appeared as an investigator, we cannot
discern whether the Hearing Officer’s involvement
in this matter was strictly tangential” and
“[i]nasmuch as the documentary evidence gives the
appearance that the Hearing Officer was aware of
the particulars of the incident leading to the

Page 17

Misbehavior Report prior to the commencement of
the hearing, which is in contravention of 7
N.Y.C.R.R. 254.1, the determination [must be]
annulled.”
DOCS moved to re-argue this decision,
however, and, in a decision dated June 23, 2006, the
Court reversed its April decision. In the new
decision, the Court wrote:
The unusual incident report does not, as
petitioner claims, indicate that the Hearing
Officer was involved in the investigation of
the incident. Rather, the document states
that the Hearing Officer, as a Deputy
Superintendent of Security, was notified of
the incident which led to the disciplinary
charges. Furthermore, at the disciplinary
hearing, the Hearing Officer denied being
involved in any investigation into
petitioner's alleged misconduct. The fact
that the Hearing Officer served as the
review officer with respect to a
recommendation that petitioner be placed in
involuntary protective custody due to the
assault incident does not constitute an
investigation into the incident precluding
him from presiding as a hearing officer at
the disciplinary proceeding.
Practice pointer: Seven N.Y.C.R.R. 254.1
provides that the following persons shall not serve
as a Hearing Officer:

T “a person who actually witnessed the incident;
T a person who was directly involved in the
incident;

T the Review Officer who reviewed the
misbehavior report; or

T a person who has investigated the incident.”
As the court’s decision in this case reflects,
however, persons with more tangential involvement
in the case may serve as Hearing Officers.

Page 18

Substantial Evidence: Court Finds Insufficient
Evidence that the Petitioner Was Providing
Unauthorized Legal Assistance
Matter of DeLeo v. Selsky, 814 N.Y.S.2d 798
(3d Dep’t 2006)
Petitioner DeLeo worked as a prison law library
clerk until he was removed due to a disciplinary
matter. After he was removed, he was directed to
delete all materials from his computer disks that had
not been authorized by the Deputy Superintendent
of Programs. Later, during a random search of
inmate computer disks, a Correction Officer
discovered legal documents on disks belonging to
the Petitioner. Specifically, there was an August 7,
2004 letter from an inmate named “Alfrodo Nuesi”
to the Commissioner of Correctional Services
inquiring about the requirements for participating in
the Residential Substance Abuse Treatment
(“RSAT”) program. There was also a September 3,
2002 letter from an unknown inmate to the
Governor inquiring about executive clemency.
Finally, there was an “Affidavit in Opposition to
District Attorney’s Motion to Reargue” by an
inmate named Ramon Duran. As a result, the
Petitioner was charged with refusing a direct order,
possessing documents containing the crime and
sentence information of another inmate, and
providing unauthorized legal assistance. He was
found guilty of the charges at a Tier III disciplinary
hearing and, after the hearing was affirmed on
administrative appeal, he filed an Article 78
proceeding.
The Court found that there was insufficient
evidence to find the Petitioner guilty of providing
unauthorized legal assistance. The clemency letter
and the Duran affidavit, the Court noted, were dated
prior to the Petitioner's removal from his job as a
law clerk and, thus, did not establish that he was
performing unauthorized legal work after this time.
The August 2004 letter was evidently drafted after
the Petitioner was removed from his law clerk job,
but it merely sought clarification on the

Pro Se Vol. 16 No. 3 Summer 2006

requirements of the RSAT program. It did not, the
Court concluded, “amount to the performance of
legal work.”
Nor, the Court found, did the record contain
sufficient evidence to support the finding that the
Petitioner was guilty of possessing documentation
containing the crime and sentence information of
another inmate. There was no such information in
the August 2004 letter. The clemency letter
referenced some crime and sentence information but
it did not identify the inmate involved. The Duran
affidavit also contained crime and sentence
information; however, the Petitioner's possession of
Duran’s crime and sentence information was
permissible because Duran was a co-defendant. See,
Disciplinary Rule 113.27 (7 N.Y.C.R.R
270.2[B][14][xvii] ). The Court therefore reversed
that charge as well.
The Court affirmed the charge of refusing a
direct order, however, as the Misbehavior Report
and other documents indicated that the Petitioner
failed to delete the unauthorized materials from his
computer disks.
Substantial Evidence: Request for Hug Equals
Harassment
Matter of Ellis v. Selsky 815 N.Y.S.2d 345
(3d Dep’t 2006)
The Petitioner allegedly gave a note to a female
teacher stating that he would miss her when she left
for the summer and would like to give her a hug. As
a result, he was charged in a Misbehavior Report
with violating disciplinary rules prohibiting
solicitation of a sexual act and harassment. He was
found guilty of both charges at a Tier III hearing.
On administrative appeal, the charge of sexual
solicitation was dismissed and the penalty was
reduced, but the Petitioner nevertheless filed an
Article 78 proceeding to challenge the remaining
charge. In it, he argued that the Misbehavior Report
failed to provide adequate notice of the charges.
The Court rejected this claim. According to the

Pro Se Vol. 16 No. 3 Summer 2006

Court, the Misbehavior Report specified that the
harassment charge arose from the communication of
a message of a personal nature as conveyed in a
note from the Petitioner and the note was attached
to the Misbehavior Report. Therefore, the Court
found, the Petitioner was given sufficient notice of
the charges against him to enable him to prepare a
defense.”
Substantial Evidence: Inmate’s False Complaint
About a Correction Officer Did Not Violate Rule
Against Harassment, But It Did Violate Another
DOCS Commandment: Thou Shalt Not Lie
Matter of Royster v. Goord, 810 N.Y.S.2d 212
(2d Dep’t 2006)
The Petitioner, an inmate, was alleged to have
made a single, false complaint to a sergeant that a
Correction Officer had assaulted him. As a result, he
was charged in a Misbehavior Report with
harassment of the officer and with lying, in
violation of Disciplinary Rule Numbers 107.11 and
107.20, respectively. After being found guilty of
these charges, the Petitioner filed an Article 78
proceeding.
The Court held that a single, non-abusive
complaint about a Correction Officer, made to
another Correctional Officer, does not constitute
“harassment” under Rule 107.11, even if the
complaint is later found to be false. Therefore, the
Court dismissed the harassment charge.
The Court upheld the Hearing Officer’s
determination that the Petitioner had lied about the
alleged assault, however. Rule 107.20 provides that
an inmate “shall not lie or provide an incomplete,
misleading and/or false statement or information.”
Here, the Court noted that at a medical examination
conducted approximately four hours after the
alleged assault, there was no physical evidence that
the Petitioner had been assaulted. In light of the
Petitioner’s statement at the disciplinary hearing
that, after the incident, his eyes were “so bloody
[he] could barely make out the pupils,” the lack of
any physical evidence was sufficient to support the

Page 19

Hearing Officer's determination that the Petitioner
lied about the assault.
Witnesses: Informant’s Testimony at Hearing
Provided Basis For Hearing Officer To Assess
Credibility
Matter of Hines v. Goord, 814 N.Y.S.2d 807
(3d Dep’t 2006)
After an investigation prompted by accusations
from another inmate, Correction Officers alleged
that the Petitioner was participating in gang-related
activities, including extorting and threatening
another inmate. As a result, he was charged in a
Misbehavior Report with engaging in unauthorized
organizational activities. He was found guilty in a
Tier III disciplinary hearing, which was affirmed on
appeal. He then filed an Article 78 proceeding,
arguing that the hearing was not supported by the
evidence because there was no basis in the record
upon which to conclude that the inmate who had
accused him was either credible or reliable. The
Court disagreed. It held that the Misbehavior Report
and Internal Memorandum, together with the
testimony at the hearing of the Correction Sergeant
who authored them both, as well as that of the
inmate who accused the Petitioner, provided
sufficient evidence to support the determination of
guilt. Moreover, since the accusing inmate was not
a confidential informant, the Hearing Officer was
not required to undertake an independent
assessment of his credibility: He could evaluate the
inmate’s reliability based upon the testimony he
gave at the hearing.
Practice pointer: When a Hearing Officer hears
confidential information in a prison disciplinary
hearing, he must assess the informant’s credibility
and reliability, and the record must show that he
had sufficient basis upon which to make such an
assessment. If the Hearing Officer has not
personally spoken with the informant, evidence that
he had a sufficient basis upon which to rely on the
informant’s statement may include the statement’s
detail and specificity, other evidence in the record

Page 20

tending to corroborate the statement, or testimony
from Correction Officers stating that the informant
has been used, and proven reliable, in the past.
Where the Hearing Officer is able to hear the
informant’s testimony and observe his demeanor
personally, however, courts have found that this
alone provides a sufficient basis upon which he can
assess the informant’s credibility and reliability.
Witnesses: Court Holds Inmate Was Not
Sufficiently Specific Regarding His Need For
Sergeant’s Testimony
Matter of Hall v. Goord, 819 N.Y.S.2d 133
(3d Dep’t 2006)
The Petitioner received two Misbehavior
Reports charging him with possession of a weapon
after a pen fitted with a razor blade was found in his
attaché case and, later, a razor blade was found in
his bed frame. Both counts were heard at a single
disciplinary hearing. At the hearing, the Petitioner
sought to call a Sergeant to testify that he had told
the Sergeant about a prior problem he had had with
the two Correction Officers who found the first
weapon in his attaché case. The Hearing Officer
denied the Petitioner’s request on the ground that
the testimony would be irrelevant. After the
Petitioner was found guilty and he had exhausted
his administrative remedies, he challenged the
hearing in an Article 78 proceeding. He argued that
the Hearing Officer had erred in refusing to call the
Sergeant.
The Court was “not persuaded.” Although the
Petitioner argued in court that he had requested the
Sergeant's testimony to show that the Correction
Officers involved in the first Misbehavior Report set
him up in retaliation for his complaint about them,
the Court, in reviewing the record, found that “he
did not inform the Hearing Officer that this was the
purpose of his request.” Rather, the Court found,
when asked to explain the Sergeant’s relevance, the
Petitioner stated only that his testimony “would
prove that he had reported an earlier problem with
these officers.” “This response,” the Court held,

Pro Se Vol. 16 No. 3 Summer 2006

“failed to sufficiently specify how the Sergeant's
testimony would aid a defense to the charges.”
Practice pointer: The Court here holds that an
inmate must be specific about his reasons for
wanting to call a particular witness. But how
specific? Here, the Petitioner apparently told the
Hearing Officer that he wanted the Sergeant to
testify because he had previously complained to him
about the same two Correction Officers who later
accused him of possessing a weapon. Did he need to
actually specify that the Sergeant’s testimony would
corroborate his allegation that the officers set him
up? That seems to us implicit in the statement that
he made. We believe that requiring an inmate to be
more specific than inmate Hall was in this case is
asking too much of inmates without legal training
who are required to defend themselves in prison
disciplinary hearing. Prisoners’ Legal Services is
seeking leave to appeal this decision to the Court of
Appeals.
Other Cases
Access to Courts: No Refund of Filing Fee
Matter of Rouff v. Cunningham, 816 N.Y.S.2d 390
(3d Dep’t 2006)
The Petitioner, an inmate, brought an Article 78
proceeding challenging a determination finding him
guilty of violating a prison disciplinary rule, which
had been affirmed on administrative appeal. After
he filed his Article 78 proceeding, DOCS agreed to
administratively reverse the hearing. The Attorney
General then asked that the Article 78 proceeding
be dismissed on the grounds that it was moot. The
Petitioner objected to this request. He noted that in
his petition, he had asked for reimbursement of the
$50.00 filing fee paid to commence the proceeding.
He argued, therefore, that the proceeding was not
moot. The lower court, however, denied the
Petitioner's request for reimbursement of his filing
fees and the Petitioner appealed.
The Appellate Division held that there was no
reason to reverse the lower court’s decision to
refuse to reimburse the filing fee.

Pro Se Vol. 16 No. 3 Summer 2006

Practice pointer: Justice sometimes has a price.
Here, the Petitioner found himself obligated to file
an Article 78 proceeding to obtain the relief he was
entitled to and which DOCS should have granted
him without the necessity of litigation. It was,
nevertheless, within the discretion of the court to
grant or deny his request to have the filing fees
returned to him.
Article 78 Practice: Inmate Misses Four-Month
Statute of Limitations to Challenge Parole
Hearing
Matter of Purcell v. Dennison 814 N.Y.S.2d 787
(3d Dep’t 2006)
The Petitioner was denied parole following an
August 2004 hearing and the determination was
upheld on administrative appeal. He received notice
of the determination on January 13, 2005.
Thereafter, he filed a petition and supporting papers
in an effort to commence a CPLR Article 78
proceeding challenging the determination. The
papers were received by the Columbia County
Clerk's office on May 19, 2005. The Court
dismissed the petition, since the papers were
received by the Clerk's office after the expiration of
the four-month statute of limitations, which began
to run when the Petitioner acquired notice of the
determination.
Practice pointer: An Article 78 petition has a
four-month statute of limitations. The four months
begin to run from the date the notice of the decision
you are complaining about is received by you. The
petition is considered “filed” on the day that all
necessary papers are received by the court clerk.
For more information on filing an Article 78
proceeding, including a list and copies of all
necessary papers, request a copy of Prisoners’
Legal Services memo, “How to File an Article 78
Proceeding.”

q

Page 21

Family Law: Unable to Help Plan For Children’s
Future, Inmate Loses Parental Rights
Matter of Jaylysia,
(4th Dep’t 2006)

813

N.Y.S.2d

622

The Respondent, an inmate, resisted the
Department of Social Services’ petition to have his
parental rights terminated on the ground of parental
neglect. The Court, however, ruled against him,
finding that the Department had met its burden of
establishing “by clear and convincing evidence”
that it had “fulfilled its statutory duty to exercise
diligent efforts to strengthen the parent-child
relationship and to reunite the family” without
success. Although the Respondent maintained
consistent contact with the Department and [the]
child[ren], “he failed to plan for the child[ren]'s
future in that the resources he proposed…were not
realistic alternatives to foster care.” Thus, “given
the circumstances,” the Court held, the Department
“provided what services it could” and termination
of the incarcerated father’s parental rights was
appropriate.
Parole: Inmate Denied Parole Despite Favorable
Testimony From Victim’s Son
Matter of Bottom v. New York State Board of
Parole, 815 N.Y.S.2d 789 (3d Dep’t 2006)
Petitioner Bottom is serving concurrent prison
terms of 25 years to life as a result of his conviction
of two counts of murder, arising from the shooting
deaths, in 1971, of two police officers. In 2004, he
appeared before the Parole Board for the second
time. Prior to his appearance, the adult son of one of
the police officers appeared at a victim impact
meeting and spoke at length in favor of his release.
The Board, nevertheless, denied parole. In doing so,
the Board cited the negative impact of the
Petitioner's actions upon the victims' families as one
reason to deny him parole, but made no mention of
the police officer’s son’s statement in favor of

Page 22

parole. Moreover, the Board failed to preserve a
transcript of the son’s statement.
The Court affirmed the Board’s decision,
despite these irregularities. “In the instant case,” the
Court wrote, “although the Board placed significant
emphasis on the gravity of Petitioner's offense, his
prior record and the probable repercussions of his
actions upon the victims' families…it is clear that
other applicable statutory factors were brought to
Respondent's attention and duly considered.” At the
Parole Hearing, the Court continued, “there was
discussion of Petitioner's significant educational and
vocational achievements while incarcerated, as well
as his plans for the future. Also considered was an
extensive submission by Petitioner's counsel…In
sum, inasmuch as the record reveals that
Respondent considered the appropriate statutory
factors, we decline to disturb its determination and
hold that Supreme Court properly dismissed the
petition.”
With respect to the missing transcript, the Court
let the Board go with what amounted to a slap on
the wrist. The Court remarked only that, “[w]hile
we appreciate that Respondent may weigh the
relevant factors set forth in Executive Law §
259-i(2)(c)(A) as it sees fit…and need not discuss
each factor in its decisions…where, as here, it is
provided with a compelling victim impact statement
which advocates for the release of the prospective
parolee, explicit reference to such an exceptional
submission would facilitate ‘intelligent appellate
review’ of Respondent's required compliance with
the dictates of Executive Law § 259-I.”
Practice pointer: The courts obviously remain
extremely deferential to decisions of the Parole
Board. Here, the Court finds evidence which
directly contradicts the Board’s findings and
chastises the Board for failing to make that
evidence part of the record, yet finds insufficient
grounds to reverse the hearing.

Pro Se Vol. 16 No. 3 Summer 2006

Parole Revocation: Eyewitness
Supports Parole Revocation

Testimony

Kovalsky v. NYS Divsion of Parole,815 N.Y.S.2d
349 (3d Dep’t 2006)
The Petitioner, a Risk Level III sex offender,
was released from prison to parole supervision in
July 2003 after serving approximately 10 years of a
controlling 5- to 15-year sentence. In early October
2003, a flyer with the Petitioner’s photograph was
distributed by the local school district advising
parents and students that the Petitioner was residing
in the area. At approximately 7:00 A.M. on the
mornings of October 14 and 15, 2003, an
11-year-old girl was followed, spoken to, and
chased by a man while she was walking to school.
She reported both incidents on October 15, and
identified the Petitioner as the perpetrator of these
acts, initially by reference to the flyer, which had
been posted on the refrigerator at her home several
days earlier. Following a Preliminary Hearing and
a final Parole Revocation Hearing, during which the
girl and police officers who had interviewed her
testified, an Administrative Law Judge sustained the
charges that the Petitioner had violated certain
conditions of his parole, revoked his parole, and
recommended a time assessment of 36 months. The
decision of the Administrative Law Judge was
administratively affirmed. The Petitioner appealed.
“A determination to revoke parole will be
confirmed if…there is evidence which, if credited,
would support such determination.” See, Matter of
Layne v. New York State Bd. of Parole, 684
N.Y.S.2d 4 (3d Dep’t 1998), lv. dismissed 93
N.Y.2nd 886 (1999).
The Petitioner argued that the girl could not
have identified him because: she never got a close
view of the perpetrator; she identified him only as

Pro Se Vol. 16 No. 3 Summer 2006

a result of the suggestive use of a photograph; he
did not possess the clothes she described him as
wearing; and he had a reliable alibi. The Court
found, however, that these factual issues were fully
explored at the final revocation hearing and, in any
event, the record revealed that the young girl
identified the Petitioner clearly and with certainty as
the man who chased her on both mornings. “As it is
within the province of the Board to resolve issues of
credibility...and to determine the relative weight to
be assigned to the evidence,” the Court held, “we
find that the Board's determination is supported by
substantial evidence and, thus, it will not be
disturbed.”
Rockefeller Drug Law Reform: A-II Drug
Offender May Qualify for Re-Sentencing, Despite
“Serious” Disciplinary History
People v. Schulze 816 N.Y.S.2d 699 (N.Y.Co.Ct.,
March 16, 2006)
The recent reform of the Rockefeller Drug laws
allowed certain inmates convicted of A-I and A-II
drug offenses to petition their sentencing courts for
lesser sentences. A-II drug offenders, however,
unlike A-I offenders, must meet certain additional
eligibility criteria in order to be eligible for resentencing. They must be more than 12 months
from being an “eligible inmate” as that term is
defined in Correction Law § 851(2), and they must
be eligible to earn merit time under Correction Law
§ 803(1)(d).
These criteria have been the subject of both
confusion and litigation. The confusion over the
first eligibility criteria has raised the question:
When is an inmate “more than 12 months” from
being an “eligible inmate” under Correction Law §
851(2)? Is it when he is “more than 12 months”
from a parole eligibility date (as some courts have
held) or when he is “more than 12 months” from
being within two years of a parole eligibility date
(i.e., more than three years from a parole eligibility
date, as other courts have held)?

Page 23

That question has recently been taken up by the
Court of Appeals in the case of People v. Bautista,
which will be argued this Fall.
The question in People v. Shulze concerned the
second eligibility criteria: When is an inmate eligible
to earn merit time under Correction Law
§ 803(1)(d)?
Shulze was sentenced to 10 years to life for an AII drug offense in 2000. After passage of the
Rockefeller Drug Law Reform Act, he petitioned his
sentencing court to be re-sentenced to a lesser
sentence. At the time he filed his petition, he was
more “more than 12 months” from being within two
years of his first parole eligibility date, so there was
no question that he met the first eligibility criteria for
re-sentencing.
The District Attorney, however, argued that he
did not meet the second eligibility criteria, i.e., being
eligible to earn merit time, because he had been
found guilty of “serious” disciplinary infractions
while incarcerated.
Correction Law § 803(1)(d) states that inmates
serving an indeterminate sentence (excluding violent
felons and several other felony categories) may earn
merit time off their minimum terms if they
successfully participate in and complete a work and
treatment program, and obtain: (1) a general
equivalency diploma; (2) an alcohol and substance
abuse treatment certificate; (3) a vocational trade
certificate; or (4) perform at least 400 hours of
service as a part of a community work crew. The
statute goes on to say, however, that a merit time
allowance “shall be withheld for any serious
disciplinary infraction.” DOCS’ regulations,
meanwhile, define a “serious” disciplinary infraction
as one which results in “disciplinary sanctions which
total 60 or more days of keeplock time.” See, 7
N.Y.C.R.R. § 208.2(b)(3).
Inmate Shulze had been convicted of one Tier II
disciplinary infraction and one Tier III infraction, for
which he had received a cumulative total of 90 days
SHU time, i.e., a “serious disciplinary infraction”
under DOCS’ regulations.
At issue was whether he was still eligible to be
re-sentenced.

Page 24

The Court held that he was.
The Court reasoned that although the statute
provides that merit time shall be withheld from any
inmate who has been found guilty of a “serious”
disciplinary offense, that language does not mean
that not having a serious disciplinary history is an
“eligibility requirement” for merit time. Rather, it
describes conditions under which an inmate who is
already eligible for merit time shall have his merit
time withheld. The eligibility requirements for merit
time are those stated earlier in the statute (i.e., that
the inmate be serving an indeterminate sentence, not
be convicted of one of the crimes for which merit
time is not available, and have met the program
requirements described above). Since Shulze met
those eligibility requirements, the Court held, he
was eligible for re-sentencing, notwithstanding the
fact that he had been found guilty of a “serious”
disciplinary violation and would, in all likelihood,
have his merit time withheld.
Practice pointer: A different court reached the
same result in People v. Quinones, 812 N.Y.S.2d
259 (Supreme Court, New York County, December
16, 2005). Thus, although there are as yet no
appellate level decisions on this issue, the growing
consensus of courts appears to be that an A-II drug
offender who meets the other eligibility
requirements for re-sentencing will not be
disqualified from being re-sentenced because of his
or her disciplinary record. (Note, however, that
being eligible for re-sentencing is not the same as
being granted re-sentencing and a sentencing court
may consider your disciplinary record in deciding
whether to grant a re-sentencing petition.)
Sentence Computation: Undischarged Portion of
Predicate Sentence Must Run Consecutive to New
Sentence
Matter of Adams v. Goord, 817 N.Y.S.2d 159
(3d Dep’t 2006)
The Petitioner was convicted of multiple crimes
and sentenced in 1981 to an aggregate prison term
of 4 to 8 years. Following his release to parole

Pro Se Vol. 16 No. 3 Summer 2006

supervision, he was convicted of another crime and
sentenced in 1985 as a second felony offender to 1½
to 3 years in prison. He was then again paroled and,
upon his convictions for numerous additional crimes,
sentenced in 1989 as a second violent felony
offender to an aggregate prison term of 20 to 40
years. In 2005, he commenced an Article 78
proceeding, asserting that his 1985 and 1989
sentences should be construed as running
concurrently with the remaining years on the preexisting unexpired sentences, rather than
consecutively thereto, since the commitment orders
were silent in that regard. The Court rejected that
argument, holding, “[b]ecause Petitioner was
sentenced as a second felony offender and a second
violent felony offender in 1985 and 1989,
respectively, it is mandatory that such sentences run
consecutively to his prior undischarged sentences,
notwithstanding the fact that the sentencing courts
did not expressly indicate same in the commitment
orders.”
Practice pointer: Penal Law § 70.25(1)(a)
provides that when multiple sentences of
imprisonment are imposed on a person at the same
time, or when a person who is subject to an
undischarged term of imprisonment is sentenced to
an additional term of imprisonment, the sentences
should run concurrently if the court fails to specify
otherwise. Penal Law 70.25(2-a), provides an
exception to that rule. It states that if the offender is
a predicate offender, as defined in Penal Law § §
70.04, 70.06, 70.08 or 70.10, the sentence must run
consecutively to any time owed on a prior sentence.
(A predicate felon is any person convicted as a
second felony offender, second violent felony
offender, predicate felony offender, or predicate
violent felony offender.)
There has been a great deal of pro se litigation
over these statutes. Inmates who have been convicted
as predicate felons often argue that, because their
commitment papers do not specify how their
sentences should run with respect to time owed on a
prior sentence or sentences, they should run
concurrently, and that DOCS lacks authority to run
them consecutively. As this case illustrates, however,

Pro Se Vol. 16 No. 3 Summer 2006

state courts have consistently rejected this
argument. In the courts’ view, the finding that the
offender is a predicate felon is part of the sentence
and satisfies the judicial function. The requirement
that such sentences run consecutively to time owed
on prior sentences is mandatory, and may be
imposed administratively by DOCS. In addition to
this case, See, e.g., Matter of Williams v. Goord, 25
A.D.3d 838, (3d Dep’t 2006); Matter of Soriano v.
New York State Dep’t of Correctional Servs., 21
A.D.3d 1233 (3d Dep’t 2005); Matter of Santiago v.
Van Zandt, 236 A.D.2d 728 (3d Dep’t 1997), appeal
dismissed, 89 N.Y.2d 1085 (1997).
Son of Sam Law: Crime Victim Can Garnish
Inmate’s Military Benefits
New York State Crime Victims Board v. Wendell
815 N.Y.S.2d 438 (N.Y.Co., May 8, 2006)
Under the “Son of Sam” law, a crime victim
may bring suit for money damages against the
perpetrator of the crime at any time within three
years of the discovery of any “funds of a convicted
person.” “Funds of a convicted person” are defined
as “all funds and property received from any source
by a person convicted of a specified crime,”
excluding “child support” and “earned income.”
“Earned income” is defined as income derived from
one’s own labor, “as distinguished from income
from, for example, dividends or investment.” See,
generally, Executive Law § 632-a.
In this case, a crime victim, identified in court
only as K.A.S., sought to have funds in inmate
Wendell’s prison account turned over to her to
satisfy a $5,000,000.00 civil judgment she had
previously obtained against him under the Son of
Sam law. The funds consisted of money received by
Wendell as retirement pay from the United States
Military. At issue was whether those funds were
exempt from being paid to (or “garnished by”) the
crime victim under provisions of state law, which
protect “the pay of a non-commissioned officer…in

Page 25

the armed forces of the United States…from
application to the satisfaction of any money
judgment. See, C.P.L.R. § 5205(e).
The Court found that they were not. The
legislative history of the Son of Sam, according to
the Court, showed that the Legislature intended the
Son of Sam law to enable “crime victims
to…recover money and property received by or on
behalf of a convicted person from virtually any
source.” The “earned income” exemption, the Court
wrote, was only intended to relieve employers of
paroled or probationary convicted persons from
notifying the crime victim or the Crime Victim’s
Board every time they made a payment to a
convicted person. But, the Court, noted,
“employment income earned by a convicted person,
as well as all other forms of earned and unearned
income, are always recoverable by a crime victim
once the crime victim commences a cause of action
pursuant to Executive Law § 632-a.” The Court also
quoted from the Legislative memo in support of the
Son of Sam law:
Criminals should be held accountable to their
victims financially, regardless of their source
of wealth. Debts that criminals have with
crime victims should not disappear because
of passage of time or the notion that they will
never be able to pay. Simply put, if a
criminal gains the ability to pay while he or
she is a ward of the local, State or federal
criminal justice system (or acquires a
financial or proprietary interest while a ward
of the system), then the victim who was
injured by the criminal should no longer
shoulder expenses that directly relate to the
crime. The bill embraces these fundamental
principles, and instills responsibility and
fairness in the way crime victims are
compensated.
It is apparent from the legislative history, the
Court concluded, “that the Legislature intended that

Page 26

a crime victim be compensated from any ‘source of
wealth’ of the criminal.” The Court, therefore,
found that general exemption of military pay from
civil judgments contained in C.P.L.R. § 5205(e),
enacted in 1962, “must yield to the specific
provisions of [the Son of Sam law] enacted in
2001.”
Son of Sam Law: Inmate Ordered to Pay
$41 Million Compensation
The Son of Sam law, Executive Law § 632-a(2),
provides that whenever an inmate receives income
of $10,000.00 or more, the payment must be
reported to the State Crime Victim’s Board and to
any victims of the inmate’s crime. The statute also
extends the normal statute of limitations of most
civil suits to allow a crime victim to sue the
perpetrator of the crime at any time within three
years of learning that the perpetrator has received an
income of $10,000.00 or more.
Anthony LaBorde, now known as Abdul Majid,
was convicted more than 25 years ago of killing a
police officer, John Scarangella, and wounding his
partner, Richard Rainey. In 1999, Majid filed a
lawsuit against several Correction Officers whom he
accused of using excessive force against him. The
lawsuit was settled for $15,000.00. Under the terms
of the Son of Sam law, the settlement was reported
to Rainey. Rainey then brought suit against Majid
for the injuries he suffered more than 25 years ago.
In May of this year, a jury awarded Rainey
$42.1 million. As a result, Majid will forfeit the
$15,000.00 he won in the lawsuit against the
Correction Officers and, moreover, his inmate
account will be garnished whenever it exceeds
$50.00. The excess will go to Rainey.
Practice pointer: Perhaps it goes without
saying, but this case presents a vivid example of the
Son of Sam law in action.

Pro Se Vol. 16 No. 3 Summer 2006

Pro Se Practice
Litigation Prompts DOCS to Amend Hepatitis C
Treatment Criteria
It is estimated that some 14 % of New York State
inmates have Hepatitis C.
Hepatitis C is a liver disease caused by the
Hepatitis C virus (HCV). HCV infection occurs
when blood, or to a lesser extent, other body fluids
such as semen or vaginal fluid, from an infected
person enters the body of an uninfected person.
Injection drug use is the major cause of HCV
infection. In about 15% of cases, infection is
characterized by an initial “acute” infection with
strong, flu-like symptoms, but no long-term or
“chronic” infection. In about 85% of cases, however,
the infection is chronic and the virus stays in the
body long after the acute phase has passed. Most
people with a chronic infection do not have
symptoms for many years. Over time, however,
chronic Hepatitis C infection can lead to liver cancer,
liver failure, or cirrhosis. Estimates are that about
20% of people with chronic infections may develop
one of these diseases at some point in their lives.
Some individuals with chronic Hepatitis C may
benefit from antiviral therapy. Anti-viral therapy can
eliminate HCV from the body and prevent the virus
from damaging the liver. The most common course
of treatment is a combination therapy of pegylated
interferon and ribavirin taken for up to a year.
Unfortunately, the therapy has numerous, sometimes
severe, side effects. These include flu-like symptoms
similar to heroin withdrawal, severe depression,
irritability, fatigue, and personality changes. Because
of both the side effects and the length of treatment,
antiviral therapy can be very difficult to tolerate.
Moreover, treatment is only effective in about half of
the people treated. Furthermore, because the body

Pro Se Vol. 16 No. 3 Summer 2006

can develop immunities to the antiviral drugs,
starting the course of treatment without completing
it can make the infection more difficult to treat in
the future.
Consequently, DOCS has imposed stringent
criteria on who can receive anti-viral treatment.
Prior to October 2005, the DOCS’ criteria required
that to receive antiviral therapy, an inmate with
Hepatitis C must:
1.

Not have chronic Hepatitis B;

2.

Not have an elevated ALT (an enzyme that,
when elevated, may indicate liver problems);

3.

Have adequate liver function and not have
cirrhosis;

4.

Not have an uncontrolled thyroid disease;

5.

Not have autoimmune disease or a history of a
solid organ transplant;

6.

Not have a history of major depression or other
major psychiatric illness;

7.

Not have had active substance abuse during the
past 6 months;

8.

Have successfully completed or be enrolled in
RSAT/ASAT if s/he had a substance abuse
history;

9.

Be age 18-59 years old;

10. Have had at least 15 months left to serve in
prison from the time of the referral for
treatment; and
11. Be a highly motivated patient who could deal
with potential side effects.

Page 27

DOCS had a specific justification for each of the
above criteria. The absence of Hepatitis B, for
example, is critical because antiviral therapy will be
ineffective in a patient with both Hepatitis B and C.
In fact, antiviral therapy in such a patient is likely to
accelerate liver damage.
Elevated levels of the ALT enzyme identify
patients whose liver may already be damaged. For
patients who have already developed cirrhosis or
have severe liver damage, antiviral therapy will not
be beneficial, and treatment may instead increase
liver damage. On the other hand, patients with
normal ALT levels (i.e., very little liver damage)
should also not be treated because antiviral therapy
may trigger liver abnormalities.
Autoimmune diseases, solid organ
transplantation, and uncontrolled thyroid disease are
also considered contraindications to antiviral
therapy. (A contraindication is a factor that has been
identified as making a particular course of treatment
dangerous or inadvisable.) For each of these
diseases, there is a high likelihood of serious, life
threatening complications with antiviral therapy.
Thus, a patient with Hepatitis C, who also has one of
the above, cannot receive treatment.
The severe side effects associated with antiviral
therapy explain DOCS’ treatment criteria concerning
mental health. People with a history of severe mental
illness are more likely to experience the side effects
of antiviral therapy. Personality changes, severe
depression, and even acute psychosis are likely to
develop. As a result, doctors recommend that people
with uncontrolled psychiatric illness not receive
antiviral therapy. (Note, however, that mental illness
should not prohibit antiviral therapy in every case.
Patients with a history of mental illness but in whom
the condition is well controlled should not be barred
from treatment.)
The DOCS’ criteria relating to substance abuse
had at least two justifications. First, the benefits of
antiviral treatment would be virtually eliminated if a

Page 28

person becomes reinfected. Since injection drug use
is the most common way to contract Hepatitis C, it
is possible for a patient who continues to use
intravenous drugs to become reinfected after
completing antiviral therapy. Another justification
is to ensure completion of the entire course of
treatment. DOCS is concerned that inmates with a
history of substance abuse may be less able to
tolerate the side effects and, thus, less likely to
complete treatment. In addition, the needles used for
interferon, plus the side effect of depression, may
cause a relapse into injection drug use. No data
exist, however, to suggest that long-term substance
abuse affects the risk or benefit of treatment.
The justification for requiring an inmate to have
at least 15 months left on his/her sentence is
unclear. Most likely, DOCS implemented this
criteria because the success of antiviral treatment
decreases in patients who receive less than 80% of
the full course of therapy. Antiviral therapy takes up
to one year to complete. Thus, inmates who expect
to be released in the middle of treatment may
jeopardize the treatment’s success if they cannot
continue therapy upon release.
DOCS requires that an inmate be between the
ages of 18 to 59 because, outside this range, there is
an increased risk for serious complications while
taking pegylated interferon and ribavirin. Possible
complications may include dangerous heart
problems such as arrhythmia, cardiomyopathy,
angina, or heart attack.
Finally, the DOCS’ criteria of a highly
motivated patient is also a result of the side effects
of antiviral therapy. Treatment which is
discontinued or not followed correctly is more
likely to be unsuccessful. Thus, given the severity
of the side effects of antiviral treatment and the
lengthy course of treatment, a willing patient is
crucial.
The most controversial aspect of DOCS’
treatment criteria was the requirement that potential
patients either have completed or be enrolled in
ASAT/RSAT prior to receiving treatment. This

Pro Se Vol. 16 No. 3 Summer 2006

requirement was applied to anyone with a history of
drug or alcohol abuse, no matter how remote. Given
the waiting lists for ASAT/RSAT, the requirement
resulted in disqualifying many inmates who were
otherwise eligible for treatment from receiving it.
Prison health advocates charged this was no
accident: Treating Hep-C is expensive. The
multi-drug regimen can cost as much as $35,000 per
patient.
That ASAT/RSAT requirement was dealt severe
blows by both federal and state courts, however. In
the federal cases, inmates who had been denied
Hep-C treatment solely because they had not
enrolled in ASAT/RSAT programs were deemed to
have stated a claim that the requirement violated
their Eighth Amendment rights. See, McKenna v.
Wright 386 F.3d 432 (2nd Cir. 2004); Johnson v.
Wright 412 F.3d 398 (2nd Cir. 2005). Likewise, a
state court held that where there is no evidence that
an inmate is currently engaged in substance abuse or
likely to relapse, the denial of Hep-C treatment for
failure to enroll in ASAT results in “a deliberate
denial of medical attention to his serious medical
needs, in violation of the Eighth Amendment.”
Domenech v. Goord, 766 N.Y.S.2d 287 (Sup. Ct.,
N.Y. Co., 2003), aff’d 797 N.Y.S.2d 313 (2d Dept.
2005).
In response to these cases, in October of last
year, DOCS eliminated the ASAT/RSAT
requirement from their treatment guidelines. The
amended guideline now require an absence of
evidence of active substance abuse during the past
six months, but no longer requires enrollment in or
completion of ASAT/RSAT. Where an inmate has a
substance abuse incident within this time frame but
would otherwise qualify for treatment, DOCS will
evaluate on a case-by-case basis whether treatment
is appropriate. The guideline also states that those
with a history of substance abuse are “strongly
encouraged to complete an ASAT/RSAT, since
dealing with alcohol or substance abuse issues is an
essential part of their Hepatitis C/liver treatment and
protection program.”

Pro Se Vol. 16 No. 3 Summer 2006

At the same time, DOCS eliminated another
controversial treatment criterion: that which
required that, in order to begin Hep-C treatment, an
inmate not be eligible for release within 15 months.
DOCS amended the guideline in 2005 as a result of
its participation in an AIDS Treatment Center
“Continuity Program.” Now, inmates who are
eligible for release in the near future may begin
Hep-C treatment and, upon release, participate in a
“Continuity Program” to proceed with treatment.
Meanwhile, DOCS is battling yet another case
challenging its treatment guidelines, called Hilton v.
Wright. In that case, filed before the October 2005
change in the treatment guidelines, inmates who
were refused treatment on the grounds that they had

Page 29

not yet completed ASAT/RSAT recently sought to
be certified for a class action. After DOCS made its
policy change, it moved to dismiss the case. In a
recent decision, however, the Federal District Court
for the Northern District of New York denied
DOCS’ motion, pointing out that DOCS had changed
its criteria only under pressure from litigation. Since
DOCS’ “motivation for the change [was]
questionable at best,” the Court held, there is no
guarantee that the ASAT/RSAT requiremet will not
be reinstated. Moreover, the Court continued, the
revised guideline’s description of participation in
ASAT/RSAT as “essential” suggests that the
program may become mandatory again in the future.
Consequently, DOCS’ motion was denied.

Page 30

Pro Se Vol. 16 No. 3 Summer 2006

From Susan Johnson, Executive Director
Prisoners’ Legal Services
Greetings.
Sixty-seven percent of persons released from prison are re-arrested on
some charge within three years, according to a 2002 Department of Justice
study. Assisting inmates to successfully re-enter society is, therefore,
critical to reducing both the prison population and crime. Unfortunately, an
extensive new report from a special committee of the New York State Bar
Association (“NYSBA”) has shown that a variety of “collateral”
consequences of a criminal conviction--consequences rarely spelled out in
a criminal sentence--can have a profound and often negative effect on exoffenders’ ability to re-enter society. The report concludes that the “legal
disabilities and social exclusions resulting from [a criminal
conviction]...erect formidable societal barriers for...those returning to their
communities after incarceration, and their families. Those consequences are
far-reaching, often unforeseen, and sometimes counterproductive.”
The report provides a detailed examination of those collateral
consequences on such things as employment, education, housing, public
benefits, voting rights, and immigration status.
For example, the report notes that up to 60% of people formerly
incarcerated remain unemployed one year after release, and 83% of those
who violate parole are unemployed at the time of the violation. “Without
employment, these individuals cannot meet their own or their families’
basic needs [and] many revert to their former criminal behavior.” Yet, the
report states, society erects significant barriers between ex-offenders and
employment, starting with the most basic question on a job application:
“Have you ever been convicted of a crime?” Although an employer may
not generally refuse to hire an applicant based on the prior conviction, if an
individual who has been convicted of a crime lies to avoid the social stigma
associated with a conviction, his or her employment may be legally
terminated for lying on an employment application.
The report also finds a critical connection between education and
recidivism rates. It acknowledges that DOCS has set, as a goal, that every
person released from incarceration have a high school diploma or its
equivalency and the necessary skills to obtain a job. Yet the report finds
that limited resources, poorly designed and executed prison programs,
frequent transfers of inmates from one facility to another, and greater

article continues on page 31…

Pro Se Vol. 16 No. 3 Summer 2006

Page 31

…article continued from page 30

interest in short-term substance abuse and anger management treatment
programs have sharply limited the effectiveness of in-prison education
programs.
The report also notes other legal disabilities that hamper successful
re-entry, including the wide range of financial penalties imposed on
persons with criminal convictions--a “vast array of fines, fees, costs,
penalties, surcharges, forfeitures, assessments, and restitutions” provided
for in dozens of different laws--as well as the costs incurred by inmates
and their families as a result of a criminal conviction, such as required
program participation fees, access to court and filing fees, collect phone
calls, and travel to prisons. In addition, a myriad of legal restrictions are
placed on the public assistance available to persons with criminal
convictions. Taken together, these fees and costs can create a crushing
financial burden for inmates trying to get back on their feet and for the
families trying to assist them.
The report also offers detailed discussions of the consequences of a
criminal conviction for persons trying to obtain housing, maintain stable
family ties, vote, and serve on juries, as well as the sometimes dire
immigration consequences of criminal convictions on foreign-born
inmates and their families.
It urges various reforms, including requiring judges to inform
criminal defendants of all potential civil consequences of a criminal
conviction and incorporating those consequences into the sentence;
barring discrimination by post-secondary educational institutions;
suspending, rather than terminating, the Medicaid benefits of people
entering jail or prison; consolidating all financial penalties into one fee;
shielding people with criminal records from housing discrimination;
encouraging contact between parents and children during periods of
incarceration; permitting parolees to vote; and repealing the ban on
voting for those released from prison.
The report’s detailed study of the collateral consequences of a
criminal conviction points the way to additional reform. We urge the
State Bar to endorse its proposals.
Copies of the full report, “Re-Entry and Reintegration: The
Road to Public Safety," can be obtained, free of charge, by
writing to the New York State Bar Association, 1 Elk St., Albany,
NY 12207, att’n Frank Sirvo, Liaison to the Special Committee
on Collateral Consequences.

Page 32

Pro Se Vol. 16 No. 3 Summer 2006

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EDITORS: JOEL LANDAU, ESQ.; KAREN MURTAGH-MONKS, ESQ.
COPY EDITING: FRANCES GOLDBERG
CONTRIBUTORS: JAMES BOGIN, ESQ.; JOHN BOSTON, ESQ.; SUSAN JOHNSON, ESQ.;
ASHLEY MILLER; BETSY STERLING, ESQ.; PATRICIA WARTH, ESQ.
PRODUCTION: FRANCES GOLDBERG
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