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Visitation Rights Suspension Overturned
The New York Supreme Court Appellate Division overturned the one-year
suspension of visitation rights for the wife of a prisoner at the Green
Haven Correctional Facility. The prisoner's wife allegedly introduced
cocaine into the facility, and at the disciplinary hearing the Department
of Corrections failed to produce documents required to substantiate the
charges. The Court held that 7NYCRR part 1010 dictates how prisons should
deal with "the possession by inmates or visitors of contraband drugs"
(7NYCRR 1010.3). 7NYCRR 1010.5 provides that in a disciplinary hearing on
such charges "the record ...must include: (1) the request for test of
suspected contraband drugs form; (b) the contraband test procedure form;
(c) the test report prepared by an outside agency subsequent to testing of
the substance, if any; and (d) a statement of the scientific principals
and validity of the testing materials, and procedures used." In this case,
none of the required documents was introduced into evidence, and the
substantial evidence requirement was not met. See: Rollins v. Scully, 181
A.D. 2d 734; 580 N.Y. 2d. 480; (N.Y.A.D. 1992).
suspension of visitation rights for the wife of a prisoner at the Green
Haven Correctional Facility. The prisoner's wife allegedly introduced
cocaine into the facility, and at the disciplinary hearing the Department
of Corrections failed to produce documents required to substantiate the
charges. The Court held that 7NYCRR part 1010 dictates how prisons should
deal with "the possession by inmates or visitors of contraband drugs"
(7NYCRR 1010.3). 7NYCRR 1010.5 provides that in a disciplinary hearing on
such charges "the record ...must include: (1) the request for test of
suspected contraband drugs form; (b) the contraband test procedure form;
(c) the test report prepared by an outside agency subsequent to testing of
the substance, if any; and (d) a statement of the scientific principals
and validity of the testing materials, and procedures used." In this case,
none of the required documents was introduced into evidence, and the
substantial evidence requirement was not met. See: Rollins v. Scully, 181
A.D. 2d 734; 580 N.Y. 2d. 480; (N.Y.A.D. 1992).
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Related legal case
Rollins v. Scully
| Year | 1972 |
|---|---|
| Cite | 181 A.D. 2d 734; 580 N.Y. 2d. 480; (N.Y.A.D. 1992) |
| Level | State Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
MATTER PETER ROLLISON v. CHARLES SCULLY (03/09/92)
[1] SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
[2] 91-05790
[3] 580 N.Y.S.2d 480; 181 A.D.2d 734, 1992
[4] decided: March 9, 1992.
[5] IN THE MATTER OF PETER ROLLISON, APPELLANT,
v.
CHARLES SCULLY, AS SUPERINTENDENT OF GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.
[6] In a proceeding pursuant to CPLR article 78 to review a determination of the Department of Correctional Services, dated March 2, 1987, which, after a hearing, found that the petitioner's wife had introduced cocaine into the Green Haven Correctional Facility and suspended her visiting privileges for a period of one year, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered May 29, 1987, which dismissed the proceeding.
[7] Loren I. Glassman, White Plains, N.Y., for appellant.
[8] Robert Abrams, Attorney-General, New York, N.Y. (Andrea Green of counsel), for respondent.
[9] Harwood, J. P., Balletta, O'Brien and Ritter, JJ., concur.
[10] Ordered that the judgment is reversed, on the law, without costs or disbursements, the determination is annulled, the charge is dismissed, and the respondent is directed to expunge all references to the charge and the proceedings from the petitioner's institutional records.
[11] Where the Department of Correctional Services fails to comply with its own regulations in arriving at an administrative determination, that determination cannot stand (see, e.g., Matter of Garcia v LeFevre,64 N.Y.2d 1001, 1003; Matter of Estrella v Coughlin, 131 A.D.2d 760; Matter of Schumate v Hammock, 85 A.D.2d 640; Matter of Longo v Fogg, 71 A.D.2d 955).
[12] 7 NYCRR part 1010 dictates how correctional facilities should deal with "the possession by inmates or visitors of contraband drugs" (7 NYCRR 1010.3). 7 NYCRR 1010.5 provides that in a disciplinary hearing on such charges,
[13] "the record ... must include:
[14] "(a) the request for test of suspected contraband drugs form;
[15] "(b) the contraband test procedure form;
[16] "(c) the test report prepared by an outside agency subsequent to testing of the substance, if any; [and]
[17] "(d) a statement of the scientific principals and validity of the testing materials and procedures used" (emphasis supplied).
[18] Where, as in the case at bar, none of these required documents is introduced into evidence, the substantial evidence requirement is not met (see, e.g., Matter of Moss v Scully,152 A.D.2d 577; Matter of Sanchez v Hoke, 116 A.D.2d 965; Matter of Tal v Scully, 139 Misc. 2d 192, 193). In consequence, the administrative determination is annulled and all references to the Superintendent's proceeding should be expunged from the petitioner's institutional records (see, e.g., Matter of Cunningham v LeFevre,130 A.D.2d 809, 810; Matter of Moss v Scully, supra; Matter of Tal v Scully, supra).
[19] Disposition
[20] ORDERED that the judgment is reversed, on the law, without costs or disbursements, the determination is annulled, the charge is dismissed, and the respondent is directed to expunge all references to the charge and the proceedings from the petitioner's institutional records.
[1] SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
[2] 91-05790
[3] 580 N.Y.S.2d 480; 181 A.D.2d 734, 1992
[4] decided: March 9, 1992.
[5] IN THE MATTER OF PETER ROLLISON, APPELLANT,
v.
CHARLES SCULLY, AS SUPERINTENDENT OF GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.
[6] In a proceeding pursuant to CPLR article 78 to review a determination of the Department of Correctional Services, dated March 2, 1987, which, after a hearing, found that the petitioner's wife had introduced cocaine into the Green Haven Correctional Facility and suspended her visiting privileges for a period of one year, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered May 29, 1987, which dismissed the proceeding.
[7] Loren I. Glassman, White Plains, N.Y., for appellant.
[8] Robert Abrams, Attorney-General, New York, N.Y. (Andrea Green of counsel), for respondent.
[9] Harwood, J. P., Balletta, O'Brien and Ritter, JJ., concur.
[10] Ordered that the judgment is reversed, on the law, without costs or disbursements, the determination is annulled, the charge is dismissed, and the respondent is directed to expunge all references to the charge and the proceedings from the petitioner's institutional records.
[11] Where the Department of Correctional Services fails to comply with its own regulations in arriving at an administrative determination, that determination cannot stand (see, e.g., Matter of Garcia v LeFevre,64 N.Y.2d 1001, 1003; Matter of Estrella v Coughlin, 131 A.D.2d 760; Matter of Schumate v Hammock, 85 A.D.2d 640; Matter of Longo v Fogg, 71 A.D.2d 955).
[12] 7 NYCRR part 1010 dictates how correctional facilities should deal with "the possession by inmates or visitors of contraband drugs" (7 NYCRR 1010.3). 7 NYCRR 1010.5 provides that in a disciplinary hearing on such charges,
[13] "the record ... must include:
[14] "(a) the request for test of suspected contraband drugs form;
[15] "(b) the contraband test procedure form;
[16] "(c) the test report prepared by an outside agency subsequent to testing of the substance, if any; [and]
[17] "(d) a statement of the scientific principals and validity of the testing materials and procedures used" (emphasis supplied).
[18] Where, as in the case at bar, none of these required documents is introduced into evidence, the substantial evidence requirement is not met (see, e.g., Matter of Moss v Scully,152 A.D.2d 577; Matter of Sanchez v Hoke, 116 A.D.2d 965; Matter of Tal v Scully, 139 Misc. 2d 192, 193). In consequence, the administrative determination is annulled and all references to the Superintendent's proceeding should be expunged from the petitioner's institutional records (see, e.g., Matter of Cunningham v LeFevre,130 A.D.2d 809, 810; Matter of Moss v Scully, supra; Matter of Tal v Scully, supra).
[19] Disposition
[20] ORDERED that the judgment is reversed, on the law, without costs or disbursements, the determination is annulled, the charge is dismissed, and the respondent is directed to expunge all references to the charge and the proceedings from the petitioner's institutional records.