Skip navigation
× You have 2 more free articles available this month. Subscribe today.

NY Prisoners Entitled to Assistant to Help Prepare Their Defenses in Tier 3 Disciplinary Hearings

Louis Avincola, a New York state prisoner, was infracted for fighting. At the ensuing Tier 3 disciplinary hearing the hearing officer produced a form with the box waiving assistance by an "employee assistant" checked. The form wasn't signed and Avincola challenged it. He was provided no assistance, was convicted of fighting and challenged those proceedings in state court.

During those proceedings, the New York Court for the 3rd Department of its Appellate Division found that 7 NYCRR 254.4 and 251-4.1 (a) (4) required the hearing officer to provide an employee assistant to help Avincola prepare his defense in any Tier 3 Disciplinary action unless there is sufficient evidence that he knowingly and voluntarily waived his right thereto. Since the unsigned form did not constitute such evidence, the disciplinary outcome was annulled and the case remanded to the Commissioner of the Department of Correctional Services for a new hearing with appropriate assistance for Avincola. See: Avincola v. Goord, et al., 283 A.D.2d 748, 725 N.Y.S.2d 116
(N.Y.A.D. 3 Dept. 2001).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Avincola v. Goord