This project is supported in part by grants from the New York State Division of Criminal Justice Services, the New York State BarFoundation, 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.

Also Inside…

Deferring Payment ofMandatory Fees . . . . . . . . . . . . page 18

Second Circuit Offers Primeron Deliberate Indifference . . . page 19

Maximizing Chances For EarlyRelease: The Earned EligibilityCertificate and RelatedPrograms . . . . . . . . . . . . . . . . . page 23

Subscribe to Pro Se! See back page for details

Vol. 17, No. 4; Fall 2007 Published by Prisoners’ Legal Services of New York

SENTENCE REFORM COMMISSION CALLS FORDETERMINATE SENTENCES;

PUTS OFF FURTHER DRUG LAW REFORM DISCUSSIONIn a preliminary report issued in October, the

New York State Commission on Sentencing Reformcalled for determinate sentencing, increasededucational opportunities in prison, and increaseduse of “graduated sanctions” for parole violators.The Commission, which was charged with makingrecommendations for reform of New York’scomplex sentencing laws, failed, however, torecommend further reform the harsh Rockefeller eradrug laws, as it was widely expected to do. It said itwas still studying the matter.

The principal recommendations of thepreliminary report included:

Abandoning indeterminate sentences, withlimited exceptions, and moving to an all-determinate sentencing system. Currently, NewYork uses both indeterminate and determinatesentences. Under this “hybrid” sentencingstructure, the Commission found, defendants,crime victims, and even judges often leave thecourtroom with only a general understanding ofhow long an offender will actually spend behindbars. A determinate sentencing structure, itfound, would bring greater fairness anduniformity to sentences.

Modifying New York’s sentencing statutes topermit a court to sentence certain non-violent,drug-addicted felony offenders tocommunity-based treatment, in lieu of stateprison, when the judge, prosecutor, anddefendant all agree that this is a just outcome.Under current law, a prison term is required formany drug felonies.

…article continued on Page 3

Page 2 Vol. 17, No. 4; Fall 2007

Cut Programs to Meet a Fiscal Crunch? No. Expand Them.

A Letter from Susan Johnson, Executive Director

New York is, again, facing a fiscal crisis.Historically, when states are faced with fiscalproblems, their first reaction is to ask stateagencies to cut programs. This has been thepattern in New York. Commissioners are toldthat they must cut their budgets to help balancethe budget, and they do. Furthermore, if historyis a guide, when DOCS is asked to cut itsbudget, the first thing to go will be programs.Why? Because if you don’t cut programs, youare going to have to cut something else and thatsomething else is usually security. Most believethat cutting security costs is a controversial, andpossibly dangerous, choice to make. But is it?

The Correctional Association of New York,in its State of the Prisons: 2002-2003 Report,found that “superintendents, correction officers,and inmates cite program cuts and idleness asthe leading problems in their facilities.” Thus,cutting programs may actually hinder DOCSfrom achieving its primary goal, security. So,let’s step back for a minute and think aboutwhat could happen if we changed the paradigm.As counterintuitive as it may seem, maybe theresponse to a state’s fiscal crisis is not to cut butto add programs.

Currently, in New York State, theSentencing Reform Commission is working onrecommendations to improve our criminaljustice system. In its Preliminary Report, theCommission notes that alternatives toincarceration (“ATIs”) are “critical to thediversion of offenders from prison and theavoidance of re-incarceration after a parole ruleviolation.” The Report focuses on the need tosupport for those programs that are found to beeffective.

Imagine that, in its final report, theCommission acknowledges the success of ourcurrent Adult Drug Courts and Mental HealthCourts, which divert certain low level offenderswith drug and mental health problems fromDOCS, and recommends that these programsand other innovative ATIs be expanded.Imagine that, in response, funding for suchprograms is appropriated by the Legislature andapproved by the Governor, and a sufficientnumber of alternative treatment courts and otherATIs are opened across the state. What wouldthe budget implications be?

A study done in 2006 by the WashingtonState Institute for Public Policy is informative.The Institute was directed by the StateLegislature to report on whether evidence-basedand cost-beneficial program options existed toreduce the need for future prison beds, savemoney, and reduce recidivism. The Instituteexhaustively reviewed all research evidence thatit could locate in searching for what works, ifanything, to reduce crime. In analyzing 57evaluations of the effectiveness of adult drugcourts across the nation, the study found thataverage adult drug court programs reduce therecidivism rate of participants by 8.0 percent. Asimilar cost-benefit analysis of adult drugprograms found that the use of adult drug courtstypically results in an economic benefit ofalmost $5,000.00 per participant.

Currently, in New York State, we have 171drug courts and another 25 in the planningstages. We also have 10 mental health courtswith two additional courts scheduled to opensoon. In 2006, there were 16,799 newcommitments to New York State’s prisons and

Vol. 17, No. 4; Fall 2007 Page 3

over 6,000 of those were for drug offenses.Eleven percent of current state prisoners are onthe mental health caseload and at least 3,500inmates are classified as having major mentaldisorders.

If we had the ability to divert some or mostof these individuals to drug or mental healthcourts, the State would save millions. It is quitepossible that the result would be thatCommissioner Fisher would not only not haveto cut his agency’s budget but, due to thedecrease in the prison population, there wouldbe more in-prison programming opportunitiesfor those who are incarcerated.

A similar argument could be made withrespect to education. In 1995, the New YorkLegislature voted to change the existing lawsand prohibit prisoners from receiving New York

State Tuition Assistance Program (“TAP”)grants. At the same time, the Federal governmentsimilarly prohibited Federal Pell Grants toprisoners. The combined result of these changeseffectively terminated all college programs inDOCS. And yet, historically, studies had shownthat, in New York, only 26.4% of the inmateswho earned a degree returned to prison,compared to 44.6% of those who participated inthe college program but did not complete adegree. Studies conducted by states across theU.S. have shown the recidivism rate of prisonersto be inversely proportional to their level ofeducation.

PLS is working hard to ensure that, at leastwith respect to funding for in-prison programs,history does not repeat itself.

…article continued from Page 1

Using valid evidence-based practices toguide decision making and programming.The Commission noted that over 30 years ofresearch exists that identifies crucialcomponents of effective and successfulcorrectional and community interventionsand programs. Theses studies are commonlyreferred to as “evidence-based practices.”The Commission recommended that NewYork review this body of research anddevelop our institutional and communityprogramming based upon “scientificallyvalidated, evidence-based practices.”

Using “graduated sanctions,” such ascurfews, home confinement, electronicmonitoring, and re-entry courts, to help endthe “revolving door” of incarceration forcertain offenders under parole supervisionwho violate one or more conditions ofparole but commit no new crime. Thecommittee found that, currently, a largenumber of parolees are returned to stateprison on technical parole violations andthat, in many cases, there were better andmore cost-effective community basedalternatives.

§§§§§§§§§§§§§§§

Page 4 Vol. 17, No. 4; Fall 2007

Expanding prison-based educational andvocational training programs and work-release, enhancing employment and housingopportunities for ex-convicts, and“utiliz[ing] other cost-effective measuresdesigned to reduce recidivism and increasepublic safety.”

Establishing a permanent sentencingcommission in New York to serve as anadvisory board to both the Legislative andExecutive branches.

As noted, however, the Commission failedto address further reform of the so-calledRockefeller Drug Laws. According to manyadvocates, the limited drug law reforms of 2004and 2005, which reduced the sentences thatmost drug offenders can expect to receive andprovided an opportunity for inmates convictedof A-1 drug offenses and some inmatesconvicted of A-II offenses prior the reform toapply for a reduced sentence, did not go farenough. They note that reform has not touchedB drug offenders sentenced before the reformlaws were passed, and that many other aspectsof the Rockefeller era drug laws, includingmandatory prison terms for many first time drugoffenders, as well as mandatory prison for non-violent second felony offenders, remain inplace. It was widely expected that theCommission would recommend further reform.

The Commission noted that it had heardconflicting views on the merits and de-merits ofthe Rockefeller era laws. Prosecutorsmaintained that they encourage cooperation inthe prosecution of higher ups in drugorganizations and provide a strong incentive fordrug-addicted offenders to participate in DOCS’treatment programs, such as Willard andCASAT.

Advocates of further drug reform pointedout that there were more annual admissions of

drug offenders into State prison in the past twoyears, after the reform, than in the yearsimmediately preceding the reform. Moreover,they noted, thousands of persons sentencedunder the former drug laws, including manyA-II drug offenders and all B drug offenders,remain ineligible to seek re-sentencing.

The Commission report stated that “it willbe challenging to reconcile these competingviews” and stated that it intends to further studythe impact of the 2004 and 2005 reformmeasures as well as proposals for additionalsentencing reform before issuing its final report.

With respect to reforming New Yorksentencing laws more broadly, as noted above,the Commission came down strongly in favor ofmoving to a determinate sentencing scheme foralmost all offenses. In doing so, theCommission criticized the uncertainty inherentin indeterminate sentences, in which the ParoleBoard’s subjective judgment is often theprincipal factor in determining when an inmatewill be released. Under the current system, theCommission noted, a person serving anindeterminate sentence may have up to fivepotential release dates: a supplemental meriteligibility date for most drug offenses; a meriteligibility date; a parole eligibility date; aconditional release date; and a maximumexpiration date.

Determinate sentencing, on the other hand,

allows the parties to leave the courtroomwith a greater understanding of thelength of the sentence…and, byeliminating entirely the subjectiveassessments and release decisions of anintervening parole…reduces thepossibility that like offenders will betreated differently with regard to timeactually served, thereby promotinggreater fairness.

Vol. 17, No. 4; Fall 2007 Page 5

“Understandably,” wrote the Commission,“many defendants reportedly prefer thecertainty of determinate sentences to thevagaries of the parole process.”

In addition, the Commission stated, theParole Board “has achieved only mixed results”in determining when a person should bereleased, citing the following statistic: for non-violent felony offenders released from DOCS in2004, the percentage who returned to prisonwithin 24 months was virtually the same forthose released following their first parolehearing (38.2%) as those denied initial releaseand then released following their second orsubsequent hearing (38.6%).

The Commission recommended retainingindeterminate sentences only for the mostegregious sentences which now requiremaximum terms of life, such as non-drug A-Iand A-II offenses and persistent felony offendersentences. It identified two reasons for this.First, the Commission found, there are someinstances in which early release is appropriatefor inmates serving long sentences for veryserious crimes (e.g., where an inmate is servinga life sentence for a crime committed at a youngage who is determined by the Parole Board tonot longer pose a threat to others). In thosecases, the Commission found, an inmate shouldhave an opportunity to go before a Parole Boardand present a case for release. Second, thepossibility that an inmate serving a life sentencemay be granted release on parole provides astrong incentive for good behavior.

The Commission held additional hearings inNovember in New York City, Albany, andBuffalo. PLS testified at the hearing in Buffalo.The Sentencing Commission is expected toproduce a final report in the Spring.

Copies of the full preliminary report havebeen made available to DOCS and should beavailable in all prison libraries. The report isalso available online at:

http://www.criminaljustice.state.ny.us/legalservices/sentencingreform.htm.

Courts Split on Eligibility Requirements forRe-Sentencing of A-II Drug Offenders

The Drug Law Reform Act of 2005 wasintended to allow certain A-II drug offenderssentenced under the harsh Rockefeller DrugLaws apply to be re-sentenced to new, lesser,determinate sentences. The Act, however,imposed several stringent eligibilityrequirements, among them: in order to beeligible for re-sentencing, the offender mustmeet “the eligibility requirements” for merittime.

This requirements has raised the question:What are the eligibility requirements for merittime?

Merit time is governed by Correction Law§ 803(1)(d). Nowhere in that statute is the term“eligibility requirements,” or any similarexpression, used. Instead, subsection (i) of thestatute states that all inmates servingindeterminate terms (as well as certain inmatesserving determinate terms) may “earn” merittime. Subsection (ii) states that merit time “shallnot be available” to inmates convicted of certainspecified offenses, including violent offenses.And subsection (iv) states that merit time “may”be “granted” when an inmate “successfullyparticipates” in an assigned “work and treatmentprogram” and “obtains a general equivalencydiploma, an alcohol and substance abusetreatment certificate, a vocational tradecertificate...or performs at least four hundredhours of service as part of a community workcrew” and “shall be withheld for any seriousdisciplinary infraction”--or upon a judicialdetermination that the defendant, while an

News and Briefs

Page 6 Vol. 17, No. 4; Fall 2007

inmate, commenced a frivolous lawsuit,proceeding, or claim against a state agency,officer, or employee.

In People v. Sanders, 829 N.Y.S.2d 187(2d Dep’t 2007), the Second Department of theState Appellate Division held last winter thatthe “eligibility requirements” for merit time--and, thus, for re-sentencing--included only thoserequirements outlined in subsections (i) and (ii)of Correction Law § 803(1)(d).

In other words, the court held, an inmatewho is serving an indeterminate sentence, andwho has not been convicted of one of theoffenses specified in subsection (ii) of thestatute, is “eligible” for merit time. WhetherDOCS has actually granted or “withheld” thetime, under the criteria listed in subsection (iv),is irrelevant as to whether the inmate is“eligible” in the first place. The contraryargument, the court found, would allow DOCS,rather than the courts, to decide which A-IIoffenders were eligible for re-sentencing,simply by deciding who did and did not receivemerit time.

Nonsense, held the First Department of theAppellate Division this Summer, in People v.Paniagua, 841 N.Y.S.2d 506 (1st Dep’t 2007).Subsection (iv) of Correction Law § 803(1)(d)specifically provides that to obtain a merit timeallowance, an inmate must not have committeda “serious disciplinary infraction.” Not havinga serious disciplinary infraction may, therefore,“fairly be concluded [an] eligibilityrequirement” for obtaining merit time.

The argument in Sanders that thisinterpretation grants DOCS the authority todecide which A-II offenders will be eligible forre-sentencing, the Paniagua court continued,

overlooks the fact that theLegislature...could have reasonablydecided to deny re-sentencing toindividuals who had not met the

requirements for being granted merittime. An inmate’s failure to meet thoserequirements and, in particular, hisrepeated commission of serious acts ofinsubordination while incarcerated, canonly be viewed adversely in consideringhis likelihood of re-adjusting to lifeoutside of prison.

Practice pointers: The Paniagua decisionmeans that there is now a split between the Firstand Second Departments over which A-II drugoffenders will be eligible for re-sentencing. Inthe First Department (which covers courts inManhattan and the Bronx), offenders who haveeither been convicted of a “serious”disciplinary infraction or have not completedthe program requirements for merit time areineligible for re-sentencing. In the SecondDepartment (which covers courts in Brooklyn,Queens, Long Island, and Southern New York),such offenders are eligible for re-sentencing (solong as they also meet the additional eligibilitycriteria in the Drug Law Reform Act of 2005.)

The additional eligibility criteria for re-sentencing under the Act are: that the offenderbe committed prior to October 29, 2005; that hebe sentenced to a minimum term of at leastthree years; and that he be more than threeyears from a parole eligibility date.

DOCS considers a “serious” disciplinaryinfraction to be any misbehavior which resultsin “60 or more days of SHU and/or keeplocktime” or “receipt of any recommended loss ofgood time as a disciplinary sanction.”

See 7 NYCRR § 280.2(b).

Vol. 17, No. 4; Fall 2007 Page 7

Court Rejects Brutality Claim; Finds InmateFailed to Exhaust Administrative Remedies

Wilkinson v. Banks, 2007 WL 2693636,W.D.N.Y., September 10, 2007 (NO.02-CV-361) (Unreported Decision)

The Prison Litigation Reform Act (“PLRA”)of 1995 requires inmates to exhaust theiradministrative remedies before filing a claiminvolving prison conditions in federal court. InWoodford v. Ngo, __ U.S. __ 126 S.Ct. 2378(2006), the Supreme Court held that exhaustionunder the PLRA means “proper exhaustion”,which, in turn, means using all the grievancesteps a prison administration holds out “anddoing so properly.” In that case, the court foundthat a prisoner who had filed a late grievancehad not exhausted his administrative remedies,even though he properly appealed the prisonsystem’s decision that the grievance was late.

Woodford did not, however, overrule a 2004decision from the Second Circuit Court ofAppeals which established some exceptions tothe exhaustion rule. In Hemphill v. New York,380 F.3d 680 (2d Cir 2004), the court held thefailure to properly exhaust may be excused ifthe grievance process was not “available” to theprisoner, or if the Defendant’s own actions--such as threatening retaliation--inhibited orprevented the inmate from using it, or if other“special circumstances” could plausibly justifythe prisoner’s “failure to comply with [the]administrative procedural requirements.”

In this case, the Plaintiff, Darrell Wilkinson,alleged that he was assaulted by severalCorrection Officers in an exercise pen atSouthport in May of 1999. He did not file agrievance about the assault until July of 2001,after he had been transferred out of Southport.

On July 17, the Superintendent of the facilitywhere he filed the grievance (Elmira) rejected iton the grounds that it was untimely. The formon which the Superintendent rejected thegrievance contained a pre-printed notice at thebottom entitled “Appeal Statement,” whichadvised Wilkinson that if he wished to “refer”the Superintendent’s decision, he must sign thedocument and return it to the Inmate GrievanceClerk. It further advised that he must file hisappeal within four working days from receipt of“this notice.”

On July 30, 2001, Wilkinson sent his appealdirectly to the Central Office ReviewCommittee (“CORC”). On August 9, 2001,Thomas Eagen, Director of the InmateGrievance Program, wrote to Wilkinson,returning his appeal. The letter explained,“[DOCS's] policy, Directive # 4040, InmateGrievance Program (“IGP”), provides inmateswith an orderly, fair and simple method ofresolving grievances pursuant to the CorrectionLaw. The directive makes no provision for aninmate to refer grievances directly to [CORC].”Wilkinson filed his lawsuit one year later, onMay 16, 2002.

Under these facts, the court concluded thatWilkinson had failed to exhaust hisadministrative remedies.

As an initial matter, the court found that thetwo-year delay in filing the grievance did notmake it untimely. This is because, during muchof that period, the law in Second Circuit did notrequire exhaustion of administrative remediesfor prisoner claims of assault or excessive force,on the grounds that such claims did not involveprison “conditions.” It was not until May of2001 that the Supreme Court decided, in Boothv. Churner, 532 U.S. 731, that the exhaustionrequirement applied to excessive force claims.Under the circumstances, the court agreed withWilkinson that his grievance, filed within fourweeks of Booth, should be considered timely.

Federal Cases

Page 8 Vol. 17, No. 4; Fall 2007

The court also found that it could notconclude that his appeal to CORC wasuntimely. Although the appeal was notsubmitted until July 30, 2001--13 days after theSuperintendent denied the grievance--the recorddid not establish when Wilkinson received thedenial. It was thus impossible to determinewhether his appeal was untimely.

The court, nevertheless, found thatWilkinson’s decision to send his appeal directlyto CORC, rather than to file it with the InmateGrievance Clerk, was a procedural error.

Wilkinson argued that, if so, the errorshould be excused, because the instructions thathe received regarding appealing were unclearand confusing. Specifically, he argued, theyseemed to indicate he had two options available:first, to “refer” the Superintendent’s decision byreturning the form to the Inmate GrievanceClerk; and second, to appeal to CORC withinfour days of the receipt of the form. As to thesecond option, he argued, the instructions didnot obligate him to file his appeal with theClerk, rather than to forward it directly toCORC, as he did.

The court disagreed. In Hemphill, the courtnoted, the Second Circuit held that one of the“special circumstances” that may excuse afailure to properly exhaust administrativeremedies is a prisoner’s reliance on areasonable, if ultimately incorrect, interpretationof prison grievance regulations. Here, however,the court found that Wilkinson’s belief that hecould file his appeal directly with CORC wasnot a reasonable interpretation of the rules.

First, the court held, “the belief that DOCSrules afforded a prisoner dissatisfied with aSuperintendent’s grievance decision twoseparate avenues of review is belied by theheading placed directly above the instructions”that Wilkinson received. That heading stated“Appeal Statement,” and provided room forWilkinson to write a response to the decision. It

did not, according to the court, suggest twooptions, i.e., appeal or referral.

Moreover, the court continued, Wilkinson’sinterpretation “makes little sense.” “Only bytaking the instructions as a whole,” the courtwrote, “and reading them to refer to a prisoner’sright to appeal to CORC, do they make sense.”

Read together in this manner, theinstructions identify the body by whomreview may be sought (CORC), themanner in which review may be sought(by forwarding the form to the InmateGrievance Clerk) and the deadline bywhich review may be sought (four daysfrom receipt of the Superintendent'sdecision).

Since Wilkinson had failed to “properly’exhaust his grievance, and since he had no“reasonable” excuse for his failure, the courtdismissed his claim.

Practice pointer: This case turns on whatappears to be a minor technicality: Wilkinsonsent his appeal directly to CORC, rather thanfiling it with the IGRC clerk. However, that wasenough for the court to conclude that he hadfailed to exhaust his administrative remedies--and bar him from court. Cases such as thisshould serve as a reminder to inmate-litigantsof the importance not only of exhaustingadministrative remedies, but of doing so“properly.”

The Plaintiff in this case was represented byPrisoners’ Legal Services.

Vol. 17, No. 4; Fall 2007 Page 9

Disciplinary Cases

Inmate Found Not Guilty of Refusing ToDouble Bunk, Guilty of Refusing to ObeyDirect Order

Matter of Amaker v Selsky,838 N.Y.S.2d 921(3d Dep’t 2007)

The Petitioner in this case refused to complywith a Correction Officer’s order to move to adouble-bunk cell. As a result, he was charged ina Misbehavior Report with refusing a directorder and refusing a double-bunk assignment.At the Tier III disciplinary hearing, the HearingOfficer reviewed certain paperwork and agreedthat the Petitioner was not supposed to behoused in a double-bunk cell. Consequently, hewas found not guilty of refusing a double-bunkassignment, but guilty of refusing a direct order.After the determination was affirmed onadministrative appeal, the Petitionercommenced an Article 78 proceeding.

The court sustained the hearing, noting: the“Petitioner was not entitled to refuse to obey theorder even if he felt that it was not authorized…His recourse was to file a grievance.”

Minor Gaps in Hearing Transcript Did NotPreclude Review

Matter of Berry v. Goord, 837 N.Y.S.2d 880(3d Dep’t 2007)

The Petitioner was charged with creating adisturbance, harassment, assaulting staff,engaging in violent conduct, refusing a directorder, and interfering with an employee afterallegedly becoming disruptive in his cell.Following a Tier III hearing, he was foundguilty of all charges. After the determinationwas affirmed on administrative appeal, hecommenced an Article 78 proceeding. Heargued that the hearing transcript contained gapswhich precluded meaningful review, andrequired that the hearing be reversed.

The court, after reviewing the hearing,disagreed. It found that the hearing transcriptdid not preclude meaningful judicial review.After reviewing the remainder of thePetitioner’s claims, the court affirmed thehearing result.

P r a c t i c e p o i n t e r : S e v e nN.Y.C.R.R.254.6(a)(2) provides that the entiretyof a Tier III hearing must be electronicallyrecorded. Courts are reluctant to reversedisciplinary hearings, however, solely becausecertain portions of the hearing transcript maybe unintelligible, so long as the deficiencies“are minor and sporadic and do not impederesolution of the other issues raised.” Wilson v.Coombe,655 N.Y.S.2d 192 (3d Dep’t 1997).

In Matter of Berrios v. Kuhlmann, 532N.Y.S.2d 593 (3d Dep’t 1988), the HearingOfficer held a two-minute, off-the-recordconversation with an inmate regarding theunavailability of an employee witness and someconfusion over the dates a urine sample hadbeen taken. The inmate argued that the hearinghad to be reversed because the conversationviolated the rule that hearings must berecorded. The court disagreed, writing:

State Cases

Page 10 Vol. 17, No. 4; Fall 2007

The purpose of [a] hearing record is toallow review by a higher authority.Since there was no dispute as to thecontent of the conversation, the issue ofwhether it was on the record isacademic and the failure to record it atthe time cannot be said to constitutereversible error. Furthermore, therewas sufficient documentary evidenceand testimony in the record whichestablished the dates which thespecimen was taken and the testingconducted. Thus, no prejudicial erroroccurred in this regard.

Courts will only reverse a disciplinaryhearing on these grounds when the deficienciesin the transcript make it impossible to reviewthe adequacy of the hearing or the issues raisedin the appeal. For example, in Scott v.Coughlin, 615 N.Y.S.2d 828 (Supreme Court,Dutchess Co., 1994), the Hearing Officer reliedon confidential testimony from inmate Fosse toconvict inmate Scott of assault. The tape ofFosse’s testimony, however, was cut off afterjust two minutes. Since the evidence relied uponby the Hearing Officer was unavailable forjudicial review, the court found that the hearinghad to be reversed and expunged.

Hearing Reversed Where DOCS LackedAuthority to Open Inmate’s Mail

Matter of Tevault v. Goord, Index # 6658-06(Supreme Court, Albany Co., May 3, 2007)(Unreported Decision)

The Petitioner, an inmate then at UpstateCorrectional Facility, mailed a letter to hisfather in Brooklyn. When the letter arrived inthe facility mail room, there was no postage onthe envelope. The mail clerk opened theenvelope. Inside, she found two letters which

she forwarded to security. Upon inspecting thecorrespondence, it was determined that one ofthe letters was written to the Petitioner’s fatherand contained a request that he mail the otherletter to a fellow inmate. The Petitioner wasthereafter charged with a violation ofcorrespondence procedures and solicitation.Both charges were affirmed and the Petitionercommenced an Article 78 proceeding.

In his Article 78 proceeding, the Petitionerargued that the hearing had to be reversedbecause the mail clerk had no authority to openhis mail. At the hearing, the clerk had testifiedthat when she received the correspondencewithout postage, she assumed that it would betreated as privileged. However, she found thatthe addressee was not listed in the New YorkState Lawyer’s Diary and, therefore, she couldnot treat the correspondence as privileged. Shedecided to treat it as regular correspondence--which, she testified, she had the authority toopen.

The rules regarding outgoing mail arecontained in 7 NYCRR § 720.3. Subsection (e)of that rule provides that “[o]utgoingcorrespondence shall not be opened, inspected,or read without express written authorizationfrom the facility superintendent.” Subsection (q)states that outgoing correspondence that doesnot comply with other provisions of theoutgoing mail regulations “will be opened andreturned to the inmate.”

Here, the court held that returning thecorrespondence to the inmate may have been an“appropriate procedure…not at odds with theregulations.” However, the court went on,“given the explicitly prohibition againstopening, inspecting or reading outgoingcorrespondence without express writtenauthorization from the facility superintendent,and in the absence of some [other] violation ofthe regulation, the clerk had no authority toopen the correspondence.” Since DOCS could

Vol. 17, No. 4; Fall 2007 Page 11

not show “reasonable compliance” with theregulations regarding opening inmatecorrespondence, the hearing was reversed.

Other Cases

Absent Evidence of Dangerousness,Possession of Small Amount of MarijuanaDoes Not Support Charge of Promoting PrisonContraband in First Degree

People v. Cole, 842 N.Y.S.2d 636(4th Dep’t 2007)

People v. Finley, 839 N.Y.S.2d 393(4th Dep’t 2007)

Penal Law § 205.25 provides that a personis guilty of promoting prison contraband in thefirst degree if he “knowingly and unlawfullyintroduces any dangerous contraband into adetention facility” or “being a person confinedin a detention facility, he knowingly andunlawfully makes, obtains or possesses anydangerous contraband.”

“Dangerous Contraband” is defined in PenalLaw § 205.00(4) as “contraband which iscapable of such use as may endanger the safetyor security of a detention facility or any persontherein.”

In People v. Cole, the Defendant wasindicted for promoting prison contraband in thefirst degree after being found by CorrectionOfficers with what the court described as “asmall quantity” of marijuana. He moved todismiss the indictment, arguing that a smallamount of marijuana did not constitute

“dangerous” contraband and that, therefore, hecould not be found guilty under this section.

The court, citing past precedent, agreed.Absent specific evidence that the small quantityof marijuana possessed by the Defendantendangered the safety of the facility, the courtheld, the Defendant could not be indicted underthat count.

In People v. Finley, the Defendant wasconvicted of promoting prison contraband in thefirst degree, where the evidence showed that,upon being asked for his identification card bya Correction Officer, he threw a wad of toiletpaper containing three marijuana cigarettes tothe grounds. In his appeal, he argued that thejury erred in convicting him of this countbecause the small amount of marijuana at issuedid not endanger the safety or security of thefacility.

The Finley court disagreed. It pointed toevidence provided by a Deputy InspectorGeneral for the Department of Corrections whotestified that the Defendant’s possession ofmarijuana endangered the safety of thecorrectional facility because, by throwing themarijuana on the ground, he “created aheightened risk that another inmate wouldattempt to grab the marijuana and that theCorrection Officer would then have to chaseafter the other inmate.” In addition, “theCorrection Officer had to turn his back and walkaway from defendant in order to retrieve themarihuana that was thrown on the ground, thuscreating a heightened risk of injury to theofficer” and, by focusing his attention on theDefendant and the marijuana, “the officer wasno longer able to supervise the inmates on hisblock.”

This testimony, held the court, constitutedsufficient evidence of dangerousness to upholdthe conviction.

Practice pointer: The court upheldDefendant Cole’s indictment under the lessercharge of promoting prison contraband in the

Page 12 Vol. 17, No. 4; Fall 2007

second degree, which requires only that thedefendant “knowingly and unlawfully make[],obtain[] or possesses any contraband.” See,Penal Law § 205.20

In People v. Camarena, 839 N.Y.S.2d 635(3d Dep’t 2007), the court held that evidencethat the Defendant possessed a “sharpened,6½-inch metal rod” was plainly sufficient for aconviction under promoting prison contrabandin the first degree.

Court Upholds DOCS Ban on SmokelessTobacco

Matter of O’Keefe v. Goord, 843 N.Y.S.2d 193(3d Dep’t 2007)

The Petitioner, an inmate in SHU,challenged the denial of his grievancerequesting smokeless tobacco and the DOCSpolicy which does not permit its possession anduse by SHU inmates. In his petition, hecontended that the policy violated SHUinmates’ constitutional rights. The court noted,however, that in Matter of Malik v. Coughlin,550 N.Y.S.2d 219 (3d Dep’t 1990), it hadpreviously upheld the constitutionality of theregulations that the Petitioner challenged withrespect to the denial of such items such as awatch, a hairbrush, and personal photographs toSHU inmates.

In Malik, the court wrote: “Conditions ofconfinement are not within the proscription ofthe Eighth Amendment unless they ‘depriveinmates of the minimal civilized measure oflife's necessities’” or, stated another way, are“‘barbarous’ or ‘shocking to the conscience.’”The denial of a watch, a hairbrush and personalphotographs, the court continued, “are the usualincidents of confinement in maximumsecurity… [P]etitioner is not physically injuredby [the denial]” and, accordingly, “has failed toestablish cruel and unusual conditions and the

directives at issue clearly satisfy therequirements of the Eighth Amendment.”

Here, the court found, without elaboration,that “smokeless tobacco does not warrant adifferent result.”

The Petitioner also argued that DOCS’policy prohibiting smokeless tobacco wasarbitrary and capricious. To that end, heattempted to link the prohibition against the useof smokeless tobacco by SHU inmates to the1999 DOCS policy banning indoor smoking inan effort to improve indoor air quality. ThePetitioner argued that it was arbitrary andcapricious for DOCS to also ban smokelesstobacco, as smokeless tobacco has no effect onindoor air quality.

The court noted, however, that smokelesstobacco was not a permitted item for SHUinmates prior to the implementation of theindoor smoking ban. Consequently, it found hisargument “unavailing.”

Court Upholds Constitutionality of RuleRequiring Parole Time Assessment Equal toMinimum Term for Shock Violators

Smith v. Vann, 16 Misc.3d 1132(A) (SupremeCourt, Clinton County, Aug. 15, 2007)(Unreported Decision)

DOCS’ Shock Incarceration Program,created in 1987, allows inmates who areaccepted into the program to undergo asix-month regimen of “rigorous physicalactivity, intensive regimentation and disciplineand rehabilitation therapy and programming.”Upon successful completion of the program, theinmate becomes eligible to receive a certificateof earned eligibility which, in turn, entitles himor her to apply for parole prior to the expirationof the minimum term.

Under rules established by the Division ofParole, an inmate who has been granted early

Vol. 17, No. 4; Fall 2007 Page 13

parole after completing Shock, who thereafterviolates parole and who is not restored toparole, must be given a “time assessment”--i.e.,returned to prison--for a period “equal to theminimum period of imprisonment imposed bythe court.” 9 NYCRR § 8010.3(a). Moreover, incalculating the length of the time assessment,

the six-month period of shockincarceration shall not be deemed to bea part of the minimum period ofimprisonment, and the violator shalltherefore not receive credit for that timein calculating the minimum period of re-incarceration. However, the minimumperiod of re-incarceration shall ber e d u c e d b y t h e v i o l a t o r ’ spre-commitment jail time and any timespent incarcerated in a State correctionalfacility other than a shock incarcerationfacility.

9 NYCRR § 8010.3(b)

The Petitioner in this case commenced his2- to 6-year sentence on September 30, 2004.He was credited with 29 days of jail time credit.He entered the Shock program on March 14,2005 and, after completing the program, wasparoled on September 15, 2005.

On September 26, 2006, he was declareddelinquent and, in accordance with the aboverule, the Division of Parole imposed a 2-yeartime assessment. Pursuant to the rule, the timeassessment was credited with the Petitioner’spre-incarceration jail time, as well as the timehe spent in prison outside the ShockIncarceration Program, but it was not creditedwith the six months he spent in Shock.

The Petitioner sued, arguing that since thetime assessment required that he stay in prisonbeyond his original parole eligibility datewithout seeing a Parole Board, it wasunconstitutional.

The court disagreed, writing:

[T]he petitioner has confused theconcept of a minimum period ofincarceration of an indeterminatesentence...with [the] delinquent timeassessment imposed upon the revocationof parole.

The minimum period of anindeterminate sentence of imprisonmentmust be imposed by a sentencing courtpursuant to Penal Law § 70.00(1) and(3). For most inmates the expiration ofthe minimum period of imprisonmentmarks the point at which he or shebecomes eligible for release from DOCScustody to parole supervision... Forinmates like the petitioner, however,who successfully complete the DOCSshock incarceration program, initialparole eligibility is not necessarily basedupon the expiration of his or herminimum period of imprisonment...Thus, following completion of the shockincarceration program, the petitionerwas released to parole supervision onSeptember 15, 2005--almost one yearearlier than he would have been eligiblefor parole had he not participated in theprogram.

[W]hen an inmate is...returned toDOCS custody as a parole violator, thetiming of his or her eligibility forre-release to parole supervisionis...based upon the expiration of thedelinquent time assessment imposed bythe Administrative Law Judge uponconclusion of the final parole revocationhearing…In [this] case...petitioner’sdelinquent time assessment wasimposedby the ALJ…in accordance withthe…provisions of 9 NYCRR § 8010.3.

Page 14 Vol. 17, No. 4; Fall 2007

Under these facts, the court continued,

[there is] no basis to conclude that theminimum period of incarcerationimposed by the sentencing judge...hasbeen unconstitutionally extended by [theDivision of Parole]. Petitioner'sminimum period of incarceration hasalways been two years and it is notdisputed that the petitioner has, in fact,completed the minimum period of hisincarceration. As a reincarcerated paroleviolator, however, the petitioner’seligibility for re-release to parolesupervision is now contingent on theexpiration of the delinquent timeassessment imposed by the ALJ at hisfinal hearing.

The court thus found no merit to the Petitioner’sposition that,

even after his early parole release,following completion of the shockincarceration program, and subsequentreturn to DOCS custody as a paroleviolator, the expiration of his minimumperiod of imprisonment still triggerseligibility for parole release regardlessof the delinquent time assessment.

It therefore dismissed his case.

TAC May Not Withhold Good Time WhereDOCS Was Unable to Provide RecommendedPrograming

Matter of Ferrer v. Goord, Index # 1630-07(Sup Ct., Albany Co., September 11, 2007)(Unreported Decision)

Good Time, as they say, “is in the nature ofa privilege…and no inmate as the right todemand or to require that any good behavior

allowance be granted to him.” 7 NYCRR 260.2.The determination to withhold Good Time “isdiscretionary in nature and, as long as it is madein accordance with the law, it will not be subjectto judicial review. Correction Law § 803.

In this case, a Time Allowance Committeerecommended that all of the Petitioner’s GoodTime be withheld “for completion of requiredASAT program.”“Need [for ASAT] was clearlyestablished,” the TAC continued, “ in August of2005…Inmate may reapply to TAC forreconsideration upon successful completion ofprogram.” After the recommendation wasconfirmed by the superintendent, the inmatechallenged the decision in an Article 78proceeding.

The court found that things were not as clearas the TAC implied.

The Petitioner’s August 2005 quarterlyinterview showed that substance abusetreatment was recommended, but it alsoindicated that the Petitioner had not refused toaccept any recommended program. In a memodated August 17, 2005, his CorrectionCounselor said only that “a final determinationfor substance abuse needs will be made” afterthe Petitioner’s evaluation by an Alcohol andSubstance Abuse Counselor.

Quarterly interview records over the nextyear showed the same thing: substance abusetreatment was being recommended and thePetitioner was not refusing to participate in anyrecommended programming. The record of theFebruary 2006 hearing interview showed thatthe Petitioner ‘disputed’ the recommended needfor substance abuse programming, and that forMay 2006 stated that he ‘questioned’ the needand, in both instances, the Correction Counselorindicated that he would speak to the Alcoholand Substance Abuse Counselor--although therecord contained no evidence that he ever did.In the record of the Petitioner’s August 2006interview, the Correction Counselor wrote:“Acceptable attitude at interview--Still says he

Vol. 17, No. 4; Fall 2007 Page 15

doesn’t need ASAT.” The interview formcontinued to show, however, that the Petitionerwas not refusing any programming.

In January of 2006, the Petitioner wrote anote to his counselor following their interviewin which he said: “As per our discussion; inregards to my program needs you told me youdidn’t see why ASAT would be a requirementfor me. I agree, however if I got to take ASATrefer me to the ASAT people have meinterviewed etc. all this way I could knock thisprogram out. If I don’t need it let me know. Wediscussed this at length. So please stay on top ofthe ball for me.”

Under the circumstances, the court foundthat the record did not support the TAC’sconclusion that the need for ASAT was clearlyestablished or that the Petitioner had refused totake it. Thus, the court found, “the question iswhether the Department of CorrectionalServices’ failure to timely providerecommended programming is consistent withthe statutory purpose and thereby provides arational basis for withholding good time.”

Correction Law § 803(1)(a) provides:

Every person confined in an institutionof the department or a facility in thedepartment of mental hygiene serving anindeterminate or determinate sentence ofimprisonment, except a person serving asentence with a maximum term of lifeimprisonment, may receive timeallowance against the term or maximumterm of his sentence imposed by the

court. Such allowances may be grantedfor good behavior and efficient andwilling performance of duties assignedor progress and achievement in anassigned treatment program, and may bewithheld, forfeited or canceled in wholeor in part for bad behavior, violation ofinstitutional rules or failure to perform

properly in the duties or programassigned.

In withholding the Petitioner’s Good Time,the TAC did not rely on the Petitioner’s badbehavior or a violation of institutional rules.And, although a refusal to participate in arecommended program has been consistentlytreated as a failure to perform an assignedprogram, nothing in the statute provides thatGood Time may be withheld based on thefailure of DOCS to timely arrange forrecommended programming.

The court stated that it was “aware of thebenefits of providing certain inmates withrelevant therapeutic programming prior torelease as well as the budgetary constraints thatmay impact DOCS’ ability to timely meet thatneed.” However, the court went on, “the statutedoes not authorize respondents to withhold goodtime on the basis that an inmate has not, forunexplained reasons, completed a recommendedprogram.” Such a rule, stated the court

would open the door to wholly arbitraryconduct in that an inmate’s ability to beawarded good time could be subject tothe whim of those who make programassignments. In the absence of anyreasoned explanation as to why arecommended program has not beenprovided, the determination withholdgood time on the basis that

recommended program has not beencompleted is not in accord with the lawand must be set aside.

The court ordered the TAC to reconsider thePetitioner’s case under the appropriate statutoryguidelines.

q

Page 16 Vol. 17, No. 4; Fall 2007

Inmate Fails to Prove That InadequateSecurity Led to Assault

Vazquez v. State, (NY Court of Claims, July 5,2007) (Unreported Decision)

The Claimant, an inmate, was assaulted onMarch 9, 2002 by an unidentified inmate atElmira Correctional facility. He sued the State,alleging that the assault was due to inadequatestaffing and negligent supervision at ElmiraCorrectional Facility.

The facts were as follows:The Claimant had been housed at Elmira for

approximately 12 days before the incident,although he had previously been incarcerated atElmira for approximately 12 years during thecourse of his sentence. When he was admitted toElmira, he advised facility officers that he hadno known enemies.

At the time of the assault, he was seated inthe bleachers near the televisions at thebasketball court located in Elmira’s gym. Anallegedly unknown assailant with twoaccomplices crossed the gym, went up the stairsinto the bleachers, and slashed his face with arazor blade.

According to testimony and evidence attrial, ten officers would routinely be assigned tothe gym area: One officer would be assigned tothe COs’ office; one to the observation booth,which overlooks both the gym and the gymyard; two to a desk in the shower/telephonearea; four officers would normally be assignedto posts outside in the gym yard; and two wouldbe in “roving posts” on the gym floor.

There were 157 inmates in the gym area atthe time of the incident but it was unclear howmany were in the gym and how many wereoutside, in the gym yard.

CO Cardinale testified that he was on dutyin the shower area at the time of the incident.He became aware that there was a problemwhen an inmate caught his attention and

gestured toward the bathroom. He went into thebathroom and found the Claimant kneeling onthe floor in front of a toilet, apparently washinghis face in the toilet. Cardinale told him to getup. When the Claimant complied, he held apiece of cloth to his face and turned his headaway from Cardinale. When Cardinale told himto remove it, he saw that the Claimant wasinjured and took him to the medical area of thefacility. He testified that he believed eight to tenofficers were assigned to the gym area that day.He said he did not know how many of thoseofficers were actually in the gym at the time ofthe assault, nor did he know how many inmateswere in the gym.

A videotape of the gym at the time of theassault did not show the actual assault (whichoccurred out of the field of view of the camera),but it did show three individuals walking acrossthe gym floor toward the stairs where theClaimant was seated in the bleachers. The timestamp on the tape indicates that this occurred at1:59:17 p.m.. At 1:59:42 p.m., a CorrectionSergeant is seen on the tape exiting the COs’office and walking out the gym door to the gymyard. At 2:00:09 p.m., the tape shows theClaimant exiting the staircase to the bleachersholding something to his face as he walked intothe bathroom area. The Claimant testified thathe looked around the gym area for a CO after hewas attacked, but did not see one, so he wentinto the bathroom to clean the blood off hisface. While individuals appearing to be COsentered and exited the security office during thecourse of the video, it was impossible todetermine from the video whether any officerswere on the floor of the gym outside the rangeof the camera.

Robert DeRosa, a former Warden of theAnna M. Kross Detention Center for Men atRikers Island, testified as a corrections experton behalf of the Claimant.

DeRosa testified that, in his opinion, DOCS’operation of the gym area at Elmira was not

Vol. 17, No. 4; Fall 2007 Page 17

consistent with the general principles ofpenology. In his view, because the officersassigned to the gym floor were not assigned tospecific locations, but instead to a “rovingpatrol,” it was impossible for them to fulfilltheir duties regarding the care, custody, andcontrol of the inmates, and it was furtherimpossible for the officers to respondeffectively in an emergency situation. He saidthat at one point on the videotape (atapproximately 1:15 p.m., nearly 45 minutesprior to the assault), it appeared that there were11 Correction Officers located in the securityoffice. In his opinion, that continuous flow ofofficers into the office indicated that securitywas not being effectively provided, and hebelieved that rather than being on a “rovingpatrol,” the officers should have been located atdesignated posts in the gym. He further statedthat his review of the videotape indicated thatthe Supervising Officer was not making regularrounds to observe and enforce the levels ofsupervision designated for those officers at anyparticular time. He also testified that DOCS’records show that recreation areas constitute thesecond most frequent location forinmate-on-inmate assault (the first being the cellblocks), and that Elmira had a relatively highincidence of such assaults among the State’smaximum security facilities. Further, in hisopinion, a CO should have been stationed in thebleachers.

Superintendent John Burge, Sr., the currentSuperintendent at Elmira, testified as an expertin the field of penology on behalf of theDefendant. Burge stated that DOCS’ centraloffice in Albany establishes guidelinesregarding staffing, and that the facility is givena “plot plan” that specifies staffing by shifts. Inhis opinion, there was adequate staffing in thegym on the day and time the Claimant wasa s s a u l t e d , b u t h e c o n c e d e d o ncross-examination that he had no personal

knowledge of whether the various posts werestaffed according to the directives.

Under these facts, the court found that theClaimant had failed to establish that there wasinadequate security in the gym. Although hetried to prove that there were no guards on thegym floor at the time of the incident, thatassertion was supported only by the facts thatthe videotape showed no COs on the floor of thegym and by the Claimant's own testimony. Thevideotape, however, did not show the wholegym floor and the court rejected the Claimant’stestimony as self-serving and not credible, giventhat he had apparently tried to conceal his injuryfrom prison officials immediately after theassault. “Because claimant's testimony was theonly basis (given the limited view of the gymfloor provided by the camera) for a potentialfinding that there were no officers on the gymfloor, claimant's theory-that defendant hadconstructive notice that an attack would bereasonably foreseeable, given the lack ofsupervision-must fail.”

Practice Pointer: Courts have held that theState must provide inmates with “reasonableprotection against foreseeable risks of attack byother inmates.” Blake v. State of New York, 259A.D.2d 878 (1999). However, courts havecontinued to hold that the State is not theinsurer of inmates’ safety and the mere fact thatan assault occurs does not mean that it wasforeseeable or give rise to the inference that theState has been negligent. Sebastiano v. State ofNew York, 112 A.D.2d 562 (1985). In order toestablish that the State is liable for an assault,an inmate must prove that the State knew orshould have known that there was a risk ofharm to the Claimant which was reasonablyforeseeable and which the State could haveprevented. Sanchez v. State of New York, 99N.Y.2d 247, 253 (2002).

In practice, this rule has meant that theState has been held liable for an inmate assaultin only three circumstances: when, 1) the State

Page 18 Vol. 17, No. 4; Fall 2007

knew the victim was at risk of assault and failedto take reasonable steps to protect him; 2) theState knew the assailant was dangerous, butfailed to protect other inmates from him; or3) the State had notice that an assault was likelyto occur and an opportunity to intervene toprotect the victim, but failed to do so. Courtshave consistently rejected claims alleging thata mere absence of supervision made an assaultforeseeable. See e.g., Colon v. State of NewYork, 620 N.Y.S.2d 1015 (3d Dep’t 1994).

In Sanchez, supra, the Court of Appealsappeared to open the door to lawsuits based ona lack of supervision. In that case, as here, therewas no evidence that DOCS was on notice thatan assault was likely to occur, or that theassailant was particularly dangerous, or thatthe Claimant was particularly at risk. TheClaimant, however, presented evidence, similarto the evidence presented in this case, thatDOCS should have known that the limitedsupervision provided in the area where theassault occurred would lead to an increasedrisk of assault and that the assault was thereforeforeseeable. The Court returned the case to thelower court for further consideration of thisargument.

Since Sanchez, however, no court--includingthe court that reconsidered the Sanchez case--has held DOCS liable for an inmate assault onthe grounds of lack of supervision.Furthermore, as this case demonstrates, itappears that the bar to doing so remains aformidable one.

Deferring Payment of Mandatory Fees

A felony conviction can be costly. NewYork State law provides that all felonyconvictions be accompanied by a $250

mandatory surcharge and a $20 Crime VictimAssistance Fee. Many convicts are also chargeda $50 DNA Databank Fee. Sex offenders mayhave to pay a $50 Sex Offender RegistrationFee and a $1,000 “Supplemental Sex OffenderVictim Fee.” In 1995, the Legislature amendedthe Criminal Procedure Law to eliminate theauthority of the sentencing court to waive thefees. Furthermore, under Penal Law § 60.35, thesuperintendent of a correctional facility isauthorized to collect unpaid fees directly fromyour inmate account.

Such fees can be a particularly onerousburden for indigent inmates earning only prisonwages. In some cases, however, it may bepossible to defer the payment of the fees untilafter incarceration.

Under Criminal Procedure Law § 420.40, acourt may defer a fee or surcharge upon afinding that its immediate imposition wouldwork “an unreasonable hardship on the[defendant] or his or her immediate family.”The statute goes on to provide a procedurepursuant to which the court can hold a hearingto determine whether the fees should bedeferred.

Until recently, there was a dispute overwhether this provision applied to inmates. Thisis because the statute states that a court cannotissue a summons for a hearing to “[any] personwho is being sentenced to a term ofconfinement…in the department of correctionalservices.” Several courts had interpreted thatlanguage to mean that fee deferral wasunavailable to DOCS inmates.

There is an emerging consensus, however,that the statute does apply to inmates. This isbecause, although it prohibits the court fromissuing a summons to an inmate, it also statesthat inmates’ fees “shall be governed byCriminal Procedure Law § 60.30.”

Criminal Procedure Law § 60.30, in turn,contains no limits on a court’s discretion toissue an order deferring fees.

Pro Se Practice

Vol. 17, No. 4; Fall 2007 Page 19

Thus, in People v. Kistner, 736 N.Y.S.2d924 (4th Dep’t 2002), a case involving aDefendant serving a two-year state prisonsentence, the Fourth Department of theAppellate Division concluded that a lower courthad “erred in determining that it lackedauthority pursuant to CPL 420.40(2) to defer themandatory surcharge.”

In People v. Camacho, 771 N.Y.S.2d 481(4th Dep’t 2004), lv. den. 2 NY3d 761 (2004),a case involving an inmate serving a 1½- to 3-year sentence, the court reaffirmed its view that“a [sentencing] court has the authority to deferthe mandatory surcharge.”

Also, People v. Huggins, 685 N.Y.S.2d 881(Sup. Ct., Greene Co., Jan. 20, 1999), the courtheld that fee deferral is “within the court'sdiscretionary authority provided by CriminalProcedure Law § 60.30.”

To apply for a fee deferral, you direct amotion to your sentencing court and serve it onthe District Attorney. You should include anaffidavit stating why you believe the immediateimposition of the fees is “work[ing] anunreasonable hardship [on you] over and abovethe ordinary hardship suffered by other indigentinmates” (People v. Kistner, supra), and youshould ask that the fee be deferred until somereasonable period after your incarceration hasbeen completed.

If granted, the motion should prevent DOCSfrom collecting your fee from your inmateaccount during incarceration. See Huggins,supra (“Where there has been entered, evenretrospectively, a discretionary deferral pursuantto Penal Law § 60.30…prison officials have noauthority thereafter to seize an inmate’s funds inderogation of the sentencing court’s order.”).

Second Circuit Offers Primer on DeliberateIndifference

Among the most frequent types of lawsuitsbrought by inmates in federal court are those

concerning claims of inadequate medical care.They are also among the most difficult and themost misunderstood. This is in part because, inorder to rise to the level of a federal claim, it isnot enough that DOCS’ medical care beinadequate, or even that it constitutemalpractice. It must, instead, be “deliberatelyindifferent.”

Many inmates are familiar with the phrase“deliberate indifference,” and many of them,dissatisfied with the medical care they arereceiving from DOCS, are certain that their carerises to the “deliberate indifference” standard.Few, however, can state with precision justwhat it means to be “deliberately indifferent.”

This is by no means the inmates’ fault. Infact, Federal courts have wrestled for years withexactly what it means to be “deliberatelyindifferent” to inmates’ medical needs. Theanswer they have arrived at is neither brief noreasy to summarize.

In Salahuddin v. Goord, 467 F.3d 263(2d Cir. 2006), the Second Circuit Court ofAppeals, the federal appeals court withjurisdiction over New York, found that not eventhe lawyers arguing the case were describing thedeliberate indifference standard correctly. TheCourt tried to boil it down to just a fewparagraphs:

The Cruel and Unusual PunishmentsClause of the Eighth Amendmentimposes a duty upon prison officials toensure that inmates receive adequatemedical care. Yet not every lapse inmedical care is a constitutional wrong.Rather, “a prison official violates theEighth Amendment only when tworequirements are met.”

The first requirement is objective:the alleged deprivation of adequatemedical care must be “‘sufficientlyserious.’” Only “deprivations of medicalcare which deny the minimal civilized

Page 20 Vol. 17, No. 4; Fall 2007

measure of life’s necessities aresufficiently grave to form the basis of anEighth Amendment violation.”

Determining whether a deprivationmeets the objective standard entails twoinquiries. The first is whether theprisoner was actually deprived ofadequate medical care. A prison officialis only required to provide reasonablecare. Thus, prison officials who actreasonably in response to aninmate-health risk cannot be foundliable under the Cruel and UnusualPunishments Clause. However, failing“to take reasonable measures” inresponse to a medical condition can leadto liability.

The second inquiry asks whether theinadequacy in medical care issufficiently serious. This inquiryrequires the court to examine how theoffending conduct is inadequate andwhat harm, if any, the inadequacy hascaused or will likely cause the prisonerFor example, if the unreasonablemedical care is a failure to provide anytreatment for an inmate’s medicalcondition, courts examine whether theinmate’s medical condition issufficiently serious. Factors relevant tothe seriousness of a medical conditioninclude whether “a reasonable doctor orpatient would find [it] important andworthy of comment,” whether thecondition “significantly affects anindividual’s daily activities,” andwhether the condition causes “chronicand substantial pain.” In cases where theinadequacy is in the medical treatmentgiven, the seriousness inquiry isnarrower. For example, if the prisoner isreceiving on-going treatment and theoffending conduct is an unreasonabledelay or interruption in that treatment,

the seriousness inquiry “focus[es] on thechallenged delay or interruption intreatment rather than the prisoner’sunderlying medical condition alone.”

The second requirement for anEighth Amendment violation issubjective: the charged official must actwith a sufficiently culpable state ofmind. The Supreme Court has held that“some mental element must beattributed to the inflicting officer”before the harm inflicted can qualify as“punishment” under the EighthAmendment. In medical treatment casesnot arising from emergency situations,the official’s state of mind need notreach the level of knowing andpurposeful infliction of harm; it sufficesif the plaintiff proves that the officialacted with deliberate indifference toinmate health. Deliberate indifference isa mental state equivalent torecklessness, as the term is used incriminal law. This mental state requiresthat the charged official act or fail to actwhile actually aware of a substantial riskthat serious inmate harm will result.Although less blameworthy thanharmful action taken intentionally andknowingly, action taken with recklessindifference is no less actionable. Thereckless official need not desire to causesuch harm or be aware that such harmwill surely or almost certainly result.Rather, proof of awareness of asubstantial risk of the harm suffices. Butrecklessness entails more than merenegligence; the risk of harm must besubstantial and the official’s actionsmore than merely negligent.

Clear? In case not, the editors of Pro Seattempt their own summary of the court’ssummary below:

Vol. 17, No. 4; Fall 2007 Page 21

$ Deliberate indifference has two elements.

< The first element is an “objective” element.

< Under the “objective” element, courts asktwo questions:

1. Were you deprived of adequate medicalcare? That is, was your medical care“reasonable” or “unreasonable”? Onlycare that is “unreasonable” will meet thedeliberate indifference standard.

2. Was the condition for which youreceived inadequate treatment“sufficiently serious”? That is, was it“important”? Would a reasonable doctorhave found it “worthy of comment”?Did it significantly affect your dailyactivities? Did it cause you “chronic andsubstantial pain”?

" The second element is a “subjective”element.

" Under the subjective element, courts askwhether the defendant was “aware” that thetreatment he was providing, or failing toprovide, carried a substantial risk of harm.Only an official who acted “recklessly”--that is, who knew or should have know thatthe care he/she was providing wasunreasonable, can be held liable under thedeliberate indifference standard.

" Only if you can meet both the objective andsubjective prongs of the deliberateindifference standard do you have a casethat you can bring to federal court.

In Salahuddin, the court applied thisstandard to a set of facts which typify many of

the kinds of problems inmates encounter withDOCS’ medical system.

The Plaintiff in Salahuddin was diagnosedwith Hepatitis C in the Fall of 2000, while incustody at Woodbourne. At year’s end, a doctorat Woodbourne informed him that he wouldhave to undergo a liver biopsy for the medicalstaff to determine the correct course oftreatment. The biopsy was delayed for severalmonths, due to a series of events. First, thePlaintiff was in SHU; he was then transferred toEastern Correctional Facility, then to DownstateCorrectional Facility, then to Auburn, andfinally to Lakeview. Then, sometime inFebruary or March 2001, a physician atLakeview canceled the biopsy becauseSalahuddin was eligible for parole within thenext twelve months. The physician believed thisdecision was mandated by the then-existent[since modified] DOCS Hepatitis C PrimaryCare Practice Guideline, a DOCS-wide policypromulgated by Dr. Lester Wright, the DOCSChief Medical Officer.

On the day before Salahuddin’s July 2001parole hearing, Dr. Wright intervened andapproved Salahuddin for a liver biopsy. Afterbeing denied parole, Salahuddin received theliver biopsy in or around December 2001. Afterspending several months on a national waitinglist for a new medication, a physician at Atticacanceled his medication because Salahuddinthen had less than twelve months remaininguntil his next Parole Board hearing. InDecember 2002, Dr. Wright intervened againand ordered expedited delivery of the medicine,which Salahuddin began receiving in January2003.

During the more than two years between hisdiagnosis and his eventual receipt ofmedication, Salahuddin complained to variousprison officials and medical personnel aboutstomach pain, digestive problems, fever, chronicdiarrhea, fatigue, and other maladies.

Page 22 Vol. 17, No. 4; Fall 2007

Salahuddin sued, among others, Dr. Piazza,for cancelling his liver biopsy. The questionbefore the court: Could Dr. Piazza be held liableunder the deliberate indifference standard?

The court first addressed Dr. Piazza’scancellation of the liver biopsy.

Applying the first prong of the deliberateindifference test, the court found that it was“objectively unreasonable” for Dr. Piazza tohave cancelled the biopsy. First, the court heldthat it could not, as a matter of law, “find itreasonable for a prison official to postpone forfive months a course of treatment for aninmate’s Hepatitis C because of the possibilityof parole” without at least some individualizedassessment of the likelihood that the inmatewould be denied parole. Second, becauseSalahuddin claimed that the delay in his biopsycaused him to suffer serious pain between thetime the biopsy was cancelled by the Dr. Piazzaand the time it was re-instated by Dr. Wright,and because the Defendant did not rebut thatclaim, the court found that the unreasonableconduct was “sufficiently serious” to supportdeliberate indifference.

Addressing the second prong of thedeliberate indifference standard, however, thecourt found no evidence upon which to base aconclusion that Dr. Piazza had acted“recklessly” or that he knew or should haveknown that his conduct created a serious risk toSalahuddin. Onthe contrary, the record contained a letter fromDr. Piazza to the facility Superintendent, writtenin response to a grievance filed by Salahuddin,in which Dr. Piazza stated his belief thatbecause Hepatitis C leads to liver damage onlyover 20 to 30 years, Salahuddin was “in noimmediate danger” and that “f[ro]m a medicalstandpoint, there is no urgency for [the liverbiopsy].”

The court found: “This may have been anunsound conclusion…but, as we havediscussed, the mental-state inquiry does not

include an objective-reasonableness test.Piazza's letter is direct evidence that he was notaware of a substantial risk that postponing theliver biopsy would cause serious harm.”

As a result, Dr. Piazza could not be foundliable under the deliberate indifference standardand Salahuddin’s case was dismissed.

Practice pointer: Dr. Piazza’s actions mighthave been negligent; however, mere negligencedoes not rise to a federal claim under thedeliberate indifference standard. “A[prisoner's] complaint that a physician hasbeen negligent in diagnosing or treating amedical condition does not state a valid claim ofmedical mistreatment under the EighthAmendment. Medical malpractice does notbecome a constitutional violation merelybecause the victim is a prisoner.” Estelle v.Gamble, 429 U.S. 97, 106 (1976). Likewise, aninmate’s mere disagreement over the propertreatment does not create a constitutional claim.“So long as the treatment given is adequate, thefact that a prisoner might prefer a differenttreatment does not give rise to an EighthAmendment violation.” Chance v. Armstrong,143 F.3d 698, 702 (2d Cir.1998).

Do these rules mean that inmates areentirely without remedy if DOCS’ medicaltreatment is negligent, or constitutesmalpractice, but still does not rise to the level ofdeliberate indifference? No. It simply meansthat you do not have a federal claim andtherefore can not sue in federal court. Youcould still sue the State in the State Court ofClaims.

Maximizing Chances for Early Release: TheEarned Eligibility Certificate and RelatedPrograms

Inmates often want to know what they cando to minimize their time in custody. Thisarticle provides an overview of the EarnedEligibility Program and its counterparts, the

Vol. 17, No. 4; Fall 2007 Page 23

Presumptive Release, Merit Time Release, andAdditional Merit Time Release programs, all ofwhich provide keys to early release.

What Is the Earned Eligibility Program?

The Earned Eligibility Program (“EEP”) isthe process by which DOCS assigns inmates totreatment and/or work programs and thendetermines if inmates have complied withassigned programs. Those who successfullycomplete assigned programs are awarded anEarned Eligibility Program certificate (“EEPcertificate”). In conjunction with the followingprograms, the EEP certificate can help youreduce the amount of time you spend in DOCScustody:

1) Parole:

If you have a minimum sentence of not morethan 8 years, you can use an EEP certificate tosignificantly increase your chances of beingparoled. Under Corrections Law § 805, theParole Board applies a more relaxed standardwhen determining parole applications for suchinmates, and will grant the application “unlessthe board determines that there is a reasonableprobability that, if the inmate is released, he willnot live and remain at liberty without violatingthe law and that his release is not compatiblewith the welfare of society.” As discussed morebelow, parole is granted far more often underthis relaxed standard.

2) Presumptive Release:

As described in Corrections Law § 806 andDOCS Directive 4791, Presumptive Releaseallows inmates convicted of certain non-violentfelonies to be released by the Commissioner ofDOCS at their Merit Time or parole eligibilitydates without having to appear before the ParoleBoard for a parole release hearing. DOCS

makes decisions about Presumptive Release, notthe Parole Board. If DOCS grants youPresumptive Release, you are released withoutappearing before the Parole Board for a hearing;you appear only to sign the conditions ofrelease. If denied, you must appear before theParole Board to be considered for release. Ingeneral, inmates are not eligible forPresumptive Release if they have committedcertain felonies (listed in Directive 4971,Section III, B) or if they have been found guiltyof a serious disciplinary infraction (as defined inDirective 4971, Section III, C). In addition,inmates must successfully participate inassigned programs and be awarded an EEPcertificate to be eligible for presumptive release.You should carefully read Directive 4791 todetermine if you meet the eligibilityrequirements.

3) Merit Time Release:

As described in Corrections Law §§ 803,806 and Directive 4790, Merit Time Releaseallows inmates convicted of certain non-violentfelonies to be eligible for parole before theirregular parole or Conditional Release dates. Ingeneral, to obtain Merit Time Release: youcannot have been convicted of certain felonies(listed in Directive 4790, Section II, A); youcannot have been found guilty of a seriousdisciplinary infraction (as defined inDirective 4790, Section II, B); and you mustsuccessfully perform your recommendedprogram requirements. In addition, you mustaccomplish at least one of the following:

i) get a GED;ii) get an alcohol and substance abuse

treatment certificate;iii) get a vocational trade certificate

following at least 6 months ofprogramming; or

Page 24 Vol. 17, No. 4; Fall 2007

iv) perform at least 400 hours ofcommunity service as part of acommunity work crew.

DOCS determines whether you will be eligiblefor Merit Time Release; if so, you get to appearbefore the Parole Board for your merit releasebefore your regular parole release date. (But seeabove: if you also qualify for PresumptiveRelease, you could be released without havingto appear before the Parole Board).

The benefits of Merit Time can besignificant for both indeterminate anddeterminate sentences, as described below:

Merit Release for Indeterminate Sentences:

Unlike Good Time, which reduces yourmaximum sentence, Merit Time reduces yourminimum sentence. If you are serving an indeterminate sentence and have earned MeritTime, you will be eligible for release afterserving only 5/6ths of your minimum sentence;if you are convicted of a class A-I violent drugoffense, you will be eligible for release afterserving only b of your minimum sentence. So,for example, an inmate serving an indeterminatesentence of 15 years to life for Criminal Sale ofa Controlled Substance in the First Degree (anA-I felony) is eligible for Merit Time Releaseafter serving 10 years; he is never eligible forConditional Release. An inmate serving anindeterminate 6- to 12-year sentence for Forgeryin the First Degree is eligible for Merit TimeRelease after 5 years (5/6 of 6), and ConditionalRelease after 8 years (b of 12).

Merit Release for Determinate Sentences:

For determinate sentences, you will beeligible for Merit Time release after servingonly 5/7 of your sentence (as compared toConditional Release, which is not granted untilyou have served 6/7 of your determinate

sentence). By way of example, an inmateserving a determinate term of 14 years for FirstDegree Criminal Possession of a ControlledSubstance is eligible for Merit Release afterserving 10 years (5/7 of 14), while he mustserve at least 12 years (6/7 of 14) to be eligiblefor Conditional Release.

4) Supplemental Merit Time:

As part of the 2004 Drug Law Reform, theLegislature provided for additional Merit Timefor certain drug offenders, which DOCS calls“supplemental” Merit Time. SupplementalMerit Time is only applicable to indeterminatedrug offense sentences and does not apply toA-I drug offense sentences. Found in § 30(1) ofChapter 738 of the Laws of 2004, this provision,which has not been codified (meaning that youcannot find it in any statute), provides asfollows:

Notwithstanding any contrary provisionof law, any person convicted of a felonydefined in Article 200 or 221 of thepenal law, other than a Class A-I felonyoffense defined in Article-220 of thepenal law, which was committed prior tothe effective date of this section, andsentenced thereon to an indeterminateterm of imprisonment pursuant toprovisions of the law in effect prior tothe effective date of this section andwho meets the eligibility requirementsof paragraph (d) of Subdivision 1 of §803 of the correction law as it exists onthe effective date of this section, mayreceive an additional merit timeallowance not to exceed one-sixth of theminimum term or period imposed by thecourt provided the inmate either:(i) successfully participates or hasparticipated in two or more of the fourprogram objectives set forth in

Vol. 17, No. 4; Fall 2007 Page 25

Paragraph (d) of Subdivision 1 of § 803of the correction law, or (ii) successfullyparticipants in one of the programobjectives set forth in Paragraph (d) ofSubdivision 1 of § 803 of the correctionlaw and successfully maintainsemployment while in a work releaseprogram for a period of not less thanthree months.

Put simply, eligible inmates can earnsupplemental Merit Time by successfullyparticipating in assigned work and treatmentprograms pursuant to Correctional Law § 805,and either 1) successfully completing two ormore of the four programs required for MeritTime, or 2) successfully completing one of theprograms required for Merit Time andsuccessfully maintaining employment in a workrelease program or any other continuoustemporary release program for at least 3 months.See Directive 4790, Section III, A, 2, andDirective 4791, Section IV, B for these criteria.

Again, the benefits are significant. Withsupplemental Merit Time, the minimum term isreduced by 1/6--in addition to the 1/6 reductionfor merit time--thus providing for a totalreduction of 1/3 (2/6) of the minimum. Forexample, an inmate serving a 12- to 24-yearsentence for Criminal Possession of aControlled Substance in the Third Degree whohas earned additional merit time is eligible fordiscretionary parole release at his SupplementalMerit Board after serving 8 years (1/3 off of 12)and to Merit Time release after serving 10 years(1/6 off of 12). Another way of saying this isthat a person who earns additional Merit Timegoes to his Supplemental Merit Board afterserving 2/3 of the his minimum. A personearning only merit time goes to his Merit Boardafter serving 5/6 of his minimum. Incomparison, without any Merit Time, he mustserve 12 years for parole eligibility and 16 yearsfor Conditional Release eligibility.

Does Getting an EEP Certificate ReallyMake a Difference?

There is no question: Getting an EEPcertificate can make a significant difference inthe amount of time you spend in DOCS custody.This works in two possible ways. First, gettingan EEP certificate may allow you to be releasedat your merit eligibility date or supplementalmerit eligibility date through PresumptiveRelease--without having to appear before theParole Board (except to sign conditions ofrelease).

However, the EEP certificate will help youeven if you do not meet the requirements for thePresumptive Release and must appear before theBoard. According to data collected by DOCS,having an EEP certificate significantly increasesthe chances of getting parole. BetweenOctober 2005 and March 2006, the ParoleBoard issued decisions for 7,310 inmates. Ofthese, 5,582 had earned their EEP certificates,1,125 had been denied, and 663 wereconsidered “non-certifiable.” (The reasons forthis “non-certifiable” status are explainedbelow.) The Board granted parole to 54%--wellover half--of those inmates who had EEPcertificates. In contrast, the Board grantedparole to only 24%--less than a quarter--of thoseinmates who had been denied EEP certificates.The non-certifiable group fared slightly betterthan the denied group: 35% of this group weregranted parole.

What Are Common Reasons Inmates Fail toEarn EEP Certificates?

Since getting an EEP certificate can makesuch a significant difference in your chance ofbeing released, it is important that youunderstand the obstacles you may face. Asstated above, between October 2005 andMarch 2006, DOCS denied EEP certificates to1,125 inmates. Most of these inmates (63%)

Page 26 Vol. 17, No. 4; Fall 2007

were denied because their poor disciplinaryrecord interfered with their programming. Anadditional 46% of the inmates were deniedeither because they had poor programparticipation and progress, or because theirprogram attendance was unacceptable. Finally,8% were denied EEP certificates because oftheir outright refusal to participate inrecommended programs.

What is the standard by which “poorinstitutional behavior as it has impacted on yourprogress and participation and/or that of otherinmates in programs” is measured? Clearly, it isa subjective standard and it is in your bestinterest to avoid receiving a misbehavior report.DOCS does, however, apply a workingstandard. One thing to be aware of is that, inapplying this standard, DOCS looks at yourinstitutional behavior during you entire periodof confinement, not just between Parole Boardappearances. A rule of thumb that will likelylead to a denial of an EEP certificate is if poorinstitutional behavior has taken you out ofprison programming for over 25% of the timeyou have been incarcerated. Frequent keeplocksand SHU time early in your incarceration cancause difficulties in obtaining an EEP certificatelater on, even though you have been ticket-freein recent years. When you first arrive in DOCSand release seems so far away, critical thinkingabout your disciplinary record is important.

A minority of inmates are neither grantednor denied EEP certificates; instead, DOCSdeems these inmates to be “non-certifiable.”Most of the time, this is because these inmateshave not been in a program long enough forDOCS to measure their level of participation.Inmates still in reception are also considered“non-certifiable.” Other reasons for “non-certifiable” status include time out of the facilityfor court appearances, time spent in the hospitalor infirmary, and time spent in protectivecustody.

How Might the Above Information ImpactYour Decision-Making?

You should certainly consider the aboveinformation in making decisions about behaviorthat could result in a disciplinary infraction (oreven spending time with other inmates who areprone to getting disciplinary tickets). As theabove reveals, a poor disciplinary record is thereason cited most often in denying EEPcertificates.

The above information should play a role inother decision-making. For example, you mightbe thinking about asking for placement inProtective Custody (PC). If so, you shouldremember that while placement in PC mightaddress your security concerns, it might alsoresult in you getting a “non-certifiable” status,which in turns prevents you from getting anEEP certificate.

Conclusion

A thorough understanding of the EarnedEligibility Program, Presumptive Release, MeritTime, and Supplemental Merit Time Releasemay help you make important decisions aboutthe goals you can realistically achieve and thesteps you must take to achieve these goals.Being aware of these programs may result inyou significantly reducing the amount of timeyou spend in custody. To help you understandthese programs you should read CorrectionsLaw §§ 803, 805, and 806, as well asDirectives 4790 and 4791.

Vol. 17, No. 4; Fall 2007 Page 27

Pro Se is printed and distributed free through grants from the New York State Bar Foundationand the Tompkins County Bar Association.

Subscribe to Pro Se!

Pro Se accepts individual subscription requests. With a subscription,a copy of Pro Se will be delivered directly to you via the facilitycorrespondence program. To subscribe, send a subscription request withyour name, DIN number, and facility to Pro Se, 114 Prospect Street, Ithaca,NY 14850.

Pro Se Wants to Hear From You!

Pro Se wants your opinion. Send your comments, questions, orsuggestions about the contents of Pro Se to Pro Se, 301 South Allen Street,Albany, NY 12208. Do not send requests for legal representation to Pro Se.Requests for legal representation and all other problems should be sent toCentral Intake, Prisoners’ Legal Services of New York, 114 Prospect Street,Ithaca, NY 14850.

EDITORS: JOEL LANDAU, ESQ.; KAREN MURTAGH-MONKS, ESQ.COPY EDITING: FRANCES GOLDBERG

CONTRIBUTORS: PATRICIA WARTH, ESQ.;ALAN ROSENTHAL, ESQ.

PRODUCTION: FRANCES GOLDBERGDISTRIBUTION: BETH HARDESTY