Vol. 16 Number 1: Winter 2006 Published by Prisoners’ Legal Services of New York

Governor in All-Out Push for
Civil Commitment of Sex Offenders
Governor George Pataki has begun an all-out
push to enact legislation to permit the civil
commitment of sex offenders after their terms of
incarceration have ended. The push consisted of a
highly-publicized effort this past Fall to use existing
civil commitment laws, which were not designed
for sex offenders, to commit sex offenders who
were approaching the ends of their terms, while at
the same time speaking out loudly against the State
Legislature’s failure to pass a civil commitment law
aimed directly at sex offenders in the past.
As a result of the Governor’s efforts, it now
appears likely that some form of civil commitment
law will pass the State Legislature in the coming
year.
"Civil commitment" consists of the involuntary
detention of a person in a psychiatric facility for
mental health treatment. It has traditionally been
used to detain and treat persons who constitute a
threat to themselves or to society as a result of a
serious mental illness. The length of the
commitment may be indefinite: it generally lasts
until mental health authorities agree that the
detainee is no longer a threat to himself or society.
Throughout the 1990s, civil commitment laws
have increasingly been aimed at sex offenders, as
both policy makers and some mental health experts
have argued that certain sex offenders suffer from a
"mental abnormality" which makes it difficult for
them to control their behavior and likely that they

will re-offend.
The bills currently pending in the State
Legislature target as candidates for civil
commitment "sexual predators" who suffer from a
"mental abnormality" which makes them
pre-disposed to re-offend in the future.
article continued on page 2…

Also Inside…
Court Deals Setback to Pataki
Civil Commitment Efforts . . . . . . . . . . page

3

Know Your Rights: A Guide to Civil
Commitment in New York . . . . . . . . . . page 22
New Federal and State Cases
on PLRA, Discipline,
and Parole . . . . . . . . . . . . . . . . . . . . . . . page

8

PLS Welcomes
New Executive Director . . . . . . . . . . . . page

8

Subscribe to Pro Se! See back page for details

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

Page 2

Pro Se Vol. 16 No. 1 Winter 2006

article continued from page 1…

In both current proposals, a "sexual predator" is
defined as a person who has been convicted of a
crime listed under Penal Law § 130, or another
designated violent offense, if the offense was
"sexually motivated." See details, page 4, below.
According to the New York State Office of
Mental Health (“OMH”), the state prison system
currently houses about 5,300 inmates who might be
exposed to civil commitment proceedings under the
proposed legislation.
In 1997, the Supreme Court upheld a Kansas
statute which authorized the civil commitment of
certain sex offenders after their periods of
incarceration had ended. The statute permitted postincarceration civil commitment if mental health
authorities agreed that the inmate was suffering
from a “mental abnormality” which made him a
“sexual predator” who was a “danger to himself or
others.” The Court found that this statute violated
neither the double jeopardy clause nor the ex post
facto clause of the constitution. It reasoned that the
statute was not intended to impose additional
punishment on the offender but, instead, merely to
provide mental health treatment. The case was
Kansas v. Hendricks, 521 U.S. 346 (1997).
Ever since Hendricks was decided, Governor
Pataki has proposed similar legislation in New
York, but the Legislature had refused to act.
Last September, the Governor instructed the
Department of Correctional Services (“DOCS”) and
the Office of Mental Health (“OMH”) to use current
civil commitment laws in New York against sex
offenders.
New York presently has two laws on the books
providing for the civil commitment of the
dangerously mentally ill, but neither is specifically
aimed at sex offenders.
Following the Governor’s order, DOCS and
OMH began to evaluate sex offenders who were
approaching their release dates for possible civil
commitment under current law. According to
figures made available by the Governor’s office, by

late-January 2006, more than 200 inmates convicted
of sex offenses had been examined for civil
commitment and approximately 41, those who
would otherwise have been released, either on their
CR date or because their terms had expired, were
committed to psychiatric facilities.
In November 2005, the State Supreme Court in
New York County issued a decision in a case
involving the first twelve civilly-committed
offenders. The Court held that the civil commitment
proceedings were in violation of current state law,
as well as the due process rights of the inmates. The
Court ordered the twelve immediately released, but
the Governor promptly appealed, obtaining a stay of
the Court’s order. The case is State ex rel. Harkevy
v. Consilvio --- N.Y.S.2d ---, 2005 WL 3134237
(Sup. Ct., N.Y. Co., Nov 15, 2005). The Governor’s
appeal was argued in mid-January 2006. See more
on the Harkevy case below, page 3.
In January, the Governor proposed spending
$130 million to construct a secure 500-bed facility
for the civil commitment of sex offenders after their
release from prison. In a press release, he stated:
“Today, there are 5,000 sexual predators awaiting
release from New York’s prisons. We must do
everything in our power to keep those who still
represent a danger off our streets, out of our
neighborhoods, and away from our children--and
that's why my Executive Budget will include
funding to support a new secure facility and
treatment programs directed at sexual predators.”
Under his proposal, the new facility would be built
on the site of present-day Camp Pharsalia. It would
be under the direction of OMH, not DOCS.
The Governor’s moves received wide press
coverage. That translated into pressure on the
Legislature to pass a civil commitment law aimed
specifically at sex offenders. By early January, both
houses of the Legislature had announced plans for
civil commitment legislation based on the Kansas
model.
This issue of Pro Se takes a closer look at these
developments.

Pro Se Vol. 16 No. 1 Winter 2006

Currently In New York: Two Civil Commitment
Laws
New York State law currently provides two
mechanisms for civil commitment. Neither was
written specifically for sex offenders, but both
provide general authorization for the civil
commitment of persons who are suffering from a
mental illness and who present a danger either to
themselves or to society.
Article 9 of the Mental Hygiene Law is the
State’s general civil commitment statute. It applies
to all free persons in New York State. Pursuant to
§ 9.27, certain designated applicants may seek the
involuntary hospitalization of an individual alleged
to be mentally ill upon the certification of two
examining physicians attesting to the need for
psychiatric care and treatment. Thereafter, a
member of the psychiatric staff of the hospital is
required to examine the patient and determine
whether he or she is in need of hospitalization. If so,
the patient is committed for an initial period of sixty
days. Involuntarily hospitalized patients then have
the right to a post-commitment hearing on the
question of the need for involuntary care.
Correction Law § 402 provides for the
commitment of mentally ill inmates who cannot
safely be treated in a prison setting. That section
sets forth a detailed procedure whereby the
superintendent of a correctional facility may apply
to the court for an order committing an inmate to a
hospital for the mentally ill, upon notice to the
inmate, his family (or friend if no family member
can be located), and the Mental Hygiene Legal
Service. Thereafter, the inmate is advised of his
right to a pre-commitment hearing at which he is
entitled to representation by counsel and to seek an
independent medical opinion on the need for
hospitalization.
For more details on these two statutes, See box
pp. 22-23, Know Your Rights: A Guide to Civil
Commitment Laws In New York.



Page 3

The Harkevy Decision: Civil Commitments of
Inmates Must Proceed Under Correction Law
Procedures, Not Mental Hygiene Law Procedures
The Pataki Administration's efforts to commit
sex offenders have relied on the Mental Hygiene
Law’s commitment procedures, rather than the
Correction Law’s. This is presumably because the
Mental Hygiene Law procedures are less stringent
than the Correction Law procedures: They do not
require the pre-commitment intervention of a judge,
nor allow the allegedly mentally ill person to
contest his or her commitment in court.
In State ex rel. Harkevy v. Consilvio --N.Y.S.2d ---, 2005 WL 3134237 (Sup. Ct., N.Y.
Co., Nov 15, 2005), the Court held that, when
proceeding against inmates, the State must use the
Correction Law procedures, not the Mental Hygiene
Law procedures. "The plain truth of the matter," the
Court wrote, "is that each of the [twelve inmates
civilly committed by Pataki] were…imprisoned at
the time of their commitment. Thus, state officials
were bound by the procedures mandated in the
Correction Law."
The Court also suggested the Administration’s
use of the Mental Hygiene Law procedures
probably also violated the inmates’ due process
rights. In Vitek v. Jones, 445 U.S. 480 (1980), the
United States Supreme Court had held that a
criminal conviction did not authorize the State to
subject an inmate to involuntary psychiatric
treatment without first affording him notice and the
opportunity for a hearing before an independent
decision-maker. In Harkevy, the Court pointed out
that the Mental Hygiene Law procedures do not
provide the protections required by Vitek.
Even if the Administration were authorized to
use the Mental Hygiene Law procedures, however,
the Court found that it had violated them in the
twelve cases it examined.
For example, the Court wrote, the Mental
Hygiene Law requires that a person who applies for
the civil commitment of another person must
provide a statement of the facts giving rise to the
application. In several of the commitment

Page 4

applications submitted by DOCS, however, the
prison superintendent had not provided the facts
regarding the inmates' underlying mental condition
or behavior, but had merely stated: "Mental Health
has determined that this individual requires further
evaluation and risk assessment at Manhattan
Psychiatric Center."
In another example, the Court found that a
number of the inmates who had been subject to civil
commitment had received no psychiatric care while
incarcerated. This brought into question the OMH
physicians' conclusions that they suffered from a
mental illness so serious that it met the statutory
definition: One that "so impairs [their] judgment
that [they are] unable to understand the need" for
mental health care. The Court noted that what the
Administration was characterizing as the inmates'
"essential" need for mental health care had arisen
only as their release dates drew near, and the
Administration decided to "push the envelope" of
what was permissible under current civil
commitment laws. In other cases, the Court found,
the only mental health diagnosis of the transferred
inmate was "Antisocial Personality Disorder
("APD")," which, the Court observed, is a diagnosis
applicable to some 75% of the prison population.
In yet another example, the Court noted, one of
the twelve inmates alleged that his psychiatric
evaluation consisted of a mere 15-minute interview
conducted by teleconference, and that one of the
examining physicians subsequently admitted that
she did not want to send him to a psychiatric
hospital, but that a directive had "come down from
Albany."
The Court concluded that all of these facts taken
together suggested that the Administration's
commitment decisions were not made in accordance
with the Mental Hygiene Law, but were instead
made "by executive fiat."
The Court ordered the twelve inmates released
pending a review of their cases by physicians
appointed by the Court itself, pursuant to the
Correction Law procedures. The Pataki
administration immediately appealed the lower
court's ruling, resulting in a stay of the release

Pro Se Vol. 16 No. 1 Winter 2006

order.
The administration's appeal was being argued as
this issue of Pro Se went to press.
The Pending Legislation
There are currently competing bills pending in
the Legislature providing for the civil commitment
of sex offenders, one in the State Assembly, the
other in the State Senate. There are significant
constitutional and other objections to both bills and
it is unclear what form a final law might take. At
present, the Assembly bill contains more procedural
protections for inmates than the State Senate bill.
What follows is a summary of that bill. Remember:
This bill is not yet law; we summarize it here only
as an example of the kind of law the Legislature is
considering. If any civil commitment bill does
become law, Pro Se will report it.
The Assembly bill would authorize the lifetime
civil commitment of “sexual predators” who had
completed their prison sentences. It would be
structured as follows:
Eligibility: An adult offender would be eligible
for civil commitment if he been convicted of a
sexual offense felony under Penal Law § 130, or
had been convicted of a murder, manslaughter or
kidnaping which was sexually motivated and was
considered a “sexual predator.” A “sexual predator”
would be defined as a person convicted of one of
the designated offenses who also suffers from a
“mental abnormality” which makes the person
“likely” to re-offend.
Mandatory Sex Offender Treatment: Upon
being sentenced to their initial prison term, all sex
offenders would be subject to a mandatory sex
offender treatment program in prison of at least two
years duration. The program would be operated by
the State Office of Mental Health and would have to
meet detailed statutory standards to ensure
effectiveness and be designed to reduce the risk of
re-offending.
Screening: Eligible offenders who were nearing
the completion of their sentences would be screened

Pro Se Vol. 16 No. 1 Winter 2006

for possible civil commitment by the State Office of
Mental Health (OMH). Nine months prior to the
completion of a sentence, OMH would provide civil
commitment recommendations to the State Attorney
General. At the same time, the agency would notify
the inmate, the crime victim, the initial prosecutor's
office, and other appropriate agencies of its
recommendation.
Initial Commitment Petition: The State Attorney
General would be authorized to file a petition for
the civil commitment of the offender. The petition
would be filed with the court that originally
sentenced the offender. Prior to bringing the
petition, the Attorney General would be required to
consult with the original prosecutor in the case and
a three-person advisory panel of sex offender
management and treatment experts.
Provision of Counsel: Indigent offenders subject
to a civil commitment petition would be provided
with counsel through not-for-profit legal service
providers like the Legal Aid Society or Mental
Hygiene Legal Services.
Probable Cause Hearing: After the petition was
brought, the court would conduct a hearing, without
a jury, to determine whether there was probable
cause to hold the offender for trial.
Psychiatric Examination: The Court would
appoint two independent psychiatrists to evaluate
the offender and provide evidence in the civil
commitment proceeding.
Trial: An offender would be subject to civil
commitment only if found unanimously by a jury
beyond a reasonable doubt to fit the definition of a
“sexual predator.”
Placement: Offenders would be confined in
facilities operated by the State Office of Mental
Health, State Office of Mental Retardation and
Developmental Disabilities, or State Department of
Correctional Services.
Court Review: Confined offenders could seek to
have their status reviewed by courts each year. In
the event the court found that an offender no longer
warranted confinement, he or she would be subject
to supervised release.
Lifetime Supervision: Offenders who did not

Page 5

become subject to civil confinement could be
subject to intensive supervision for life. Offenders
who violated their supervision terms could then be
subject to civil confinement.
News and Briefs
Governor Also Moves Ahead on DNA Testing
While pressing hard for civil commitment of sex
offenders, the Governor has, at the same time,
moved forcibly on another front that may affect
even more inmates: DNA testing.
Under current law, only certain "designated
offenders" are required to provide a blood sample to
be stored in New York's DNA databank. These are,
for the most part, persons convicted of violent
offenses and sex offenses. See, generally, Executive
Law § 995-c. (See, also, the Fall 2003 issue of
Pro Se, which contained a complete description of
the DNA databank law and a list of the offenses
covered by the law.) Governor Pataki has long
wanted to extend this law to all persons convicted
of a felony.
On November 28, 2005, the Second Circuit
Court of Appeals upheld the constitutionality of the
current DNA databank law. The Court held that the
statute does not violate the Fourth Amendment's
prohibition against "unreasonable" searches and
seizures. The case was Nicholas v. Goord, 430 F.3d
652 (2d Cir., 2005).
Exactly one month later, on December 28, 2005,
Governor Pataki issued an executive order requiring
the submission of a DNA sample from all inmates
as a condition of participation in DOCS' Temporary
Release program, Shock Incarceration program, and
CASAT. He also ordered that it be made a condition
of parole or conditional release. Pursuant to the
Governor's order, the condition will apply
regardless of whether the inmate involved is a
"designated offender" under the DNA databank law.

Page 6

By January 3, 2006, both DOCS and the Division of
Parole had issued regulations implementing the
Governor's order. As a consequence, many inmates
who are not subject to the DNA databank law will
be required to submit a blood sample for testing as
a requirement of either parole or temporary release.
Is the Governor's order legal? No case has yet
been brought challenging the Governor's authority
to issue his DNA order. Court decisions in the past
concerning Temporary Release programs, however,
have emphasized that those programs are a
privilege, not a right, and that DOCS has broad
discretion in determining the eligibility criteria for
admission to them. Courts have also repeatedly held
that the Division of Parole may impose various
"special conditions" on parole and conditional
release, above and beyond the statutory conditions
of parole. The Governor can be expected to argue
that imposing a DNA requirement on DOCS and
DOP programs is well within his authority under
those prior court decisions. As noted, the Second
Circuit Court of Appeals has only recently upheld
the constitutionality of DNA testing of convicted
felons. Given this history, the editors of Pro Se
view a successful legal challenge to the Governor's
order as an uphill fight.
Some Very Bad Advice From the Jailhouse
Lawyer’s Manual: Post-Release Supervision
Cannot Be Avoided By Maxing Out
The Jailhouse Lawyer’s Manual, published by
the Columbia Human Rights Law Review, has a
long history, dating back to 1978, of providing
inmates with useful and generally reliable legal
information.
The current edition, however, contains an
egregious error which has caused much confusion
among New York inmates.
Under the section titled “Jenna’s Law and
Conditional Release Agreements from a
Determinate Sentence” (Jailhouse Lawyer’s
Manual, 6th Edition, Vol. 1, p. 634), the authors
suggest that if you have a determinate sentence, you

Pro Se Vol. 16 No. 1 Winter 2006

can avoid post-release supervision by serving out
the maximum term, rather than agreeing to
conditional release. They advise:
If you have a relatively short amount of time
remaining on your sentence at the time of
conditional release, you may find it
worthwhile to finish out your sentence in
prison rather than to submit to three to five
years of [post-release] supervision.
Prisoners’ Legal Services has received a number
of letters from inmates asking if this advice is
correct. We have also heard of inmates refusing
conditional release by relying on this advice. In at
least one case, it appears that an inmate refused
conditional release and then refused to sign his postrelease supervision agreement when his maximum
expiration date arrived, arguing that he was not
subject to post-release supervision. The inmate was
release from prison, but transported immediately to
a local jail under the custody of the Division of
Parole, where a parole revocation proceeding was
commenced against him.
Inmates should be aware that the advice in this
section of the Jailhouse Lawyers Manual is wrong.
A period of post-release supervision is a mandatory
element of all determinate sentences. It will be
imposed whether you CR or "max out." See Penal
Law 70.45. It cannot be avoided by maxing out.
The editors of the Jailhouse Lawyer's Manual
have acknowledged their error. They have sent a
"glue-in" correction page and notice to all prison
law libraries.
N.Y. Provides Inmates little Opportunity For
College-Level Education, Despite Research
Indicating Effectiveness in Reducing Recidivism
In the last issue of Pro Se (Fall 2005), we
reported that PLS provided testimony at a State
Legislative Hearing on transitional services. PLS
attorneys argued that although funding for
transitional service is necessary, the Legislature
should not overlook the pressing need to reinstate

Pro Se Vol. 16 No. 1 Winter 2006

education programs in the prisons. A recent report
from the Institute for Higher Education Policy
emphasizes that point.
According to the report, fewer than 5 percent of
prisoners nationwide are currently enrolled in
college classes, despite a vast body of evidence that
correctional education, particularly at the college
level, is a cost-effective approach to reducing
recidivism. In New York, the figures are far worse:
In 1999, only 344 inmates--of a total population of
71,000--had completed a college-level course; and
only 70 inmates--less than 0.1% of the population-completed a college degree.
The Institute’s report revealed a number of
barriers to greater enrollment of those eligible for
post-secondary correctional education, including
limited funding, restrictive eligibility criteria,
conflicting administrative priorities, poor academic
preparation, and logistical problems such as security
concerns and frequent reassignments that interrupt
course work. Lack of support from policymakers
and the public magnifies these barriers and makes
providing consistent programming more
challenging, the study found.
“Prisoners are serving longer sentences than in
the past but are frequently released without the
education or skills necessary to find productive
employment,” said Jamie Merisotis, president of the
Institute. The study found that recidivism, i.e., the
re-arrest, re-conviction, or return to prison of former
prisoners, has contributed to the rapidly-growing
prison population, and that greater access to postsecondary education had been shown in the past to
reduce recidivism.
According to the Federal Bureau of Prisons,
there is an inverse relationship between recidivism
rates and education. This translates to the
proposition that education is synonymous with
crime prevention. Knowing this, more than forty
years ago, in 1965, Congress passed Title IV of the
Higher Education Act. This Act permitted inmates

Page 7

to apply for financial aid through Pell Grants. In the
1970s, studies were conducted to determine the
success rate of the higher education programs that
were available to inmates. Success was measured by
the re-arrest rate and the ex-offenders’ ability to
obtain and maintain employment. It was found that
inmates with at least two years of college education
had a 10% re-arrest rate, compared to the national
re-arrest rate of approximately 60%. In 1993, the
Texas Department of Criminal Justice undertook a
study of recidivism rates, noting that the general
recidivism rate was 60%. It found that an inmate
with an associate degree had a recidivism rate of
13.7%, those inmates with a bachelor’s degree had
a recidivism rate of 5.6%, and those with a master’s
degree had a recidivism rate of zero.
In New York, the last study of the effectiveness
of post-secondary education, conducted for the
Department of Correctional Services in 1991, found
that the completion of a college degree by an inmate
greatly reduced the likelihood that the inmate would
commit a further crime. The study showed that only
26.4% of inmates who had been awarded a college
degree were returned to the Department's custody,
whereas 44.6% of those who withdrew from the
program or were administratively removed had been
returned to prison after release, contrasting with the
general return rate for the same time period of
47.4% for inmates who had not participated in the
program.
And yet, in 1994, the U.S. Congress included a
provision in the Violent Crime Control and Law
Enforcement Act of 1994 which denied all prisoners
access to Federal Pell Grants. The bill was adopted
in response to public outcry that prisons had
become places of leisure, and that inmates were
being given education at the expense of law-abiding
taxpayers. Nothing could be further from the truth.
Under the Pell Grant system, the grants were
noncompetitive, need-based federal funds available
to any and all qualifying low-income individuals

Page 8

Pro Se Vol. 16 No. 1 Winter 2006

who wished to attend college. The pool of money
available for Pell Grants was unlimited and only
dictated by the number of individuals applying and
qualifying for the Grants. In fact, the total
percentage of the Pell Grants’ annual budget that
was spent on inmate higher education was one tenth
of one percent (.1%).
The Institute of Higher Education study found
that the greatest barriers to higher education for
inmates identified in the study were the laws passed
in the mid-90s making inmates ineligible for
Federal Pell grants and the State Tuition Assistance
Program. Previously, when funding through Pell
Grants and the TAP program was available to
eligible prisoners, a much higher percentage of
inmates had the opportunity for post-secondary
study. In 1991, for example, 1078 college degrees
were earned by New York State inmates, as
compared to the 70 earned in 1999.
College enrollment is currently available at only
five correctional facilities in DOCS: Attica, Bedford
Hills, Collins, Wyoming, and Sing Sing, where the
New York Theological Seminary offers a program
leading to a master's degree. Funding for these
programs is provided by the colleges and the
inmates themselves.
The report calls for a national effort to build
public support for college-level correctional
education as an important means to reducing
recidivism, and includes a series of
recommendations, including: reinstating Pell Grant
eligibility for prisoners; allocating more state funds
to the public colleges and universities that provide
instruction in correctional education programs; and
allowing prisoners to receive state grants for
low-income students.

¬°
­©

PLS Welcomes New Executive Director
Prisoners’ Legal Services is pleased to announce
that Alba Susan Johnson was hired this past
November, 2005, as our new Executive Director.
Ms. Johnson comes to PLS with almost twenty
years of experience in legal services. Prior to
joining PLS, she worked for the Office of the Public
Defender in West Palm Beach, Florida, the HIV
Law Project in New York City, and Bronx Legal
Services, Bronx, New York. Since 1995, she has
been employed at the Capital Defender Office,
where she first served as Deputy Capital Defender
and then, in 2000, became Assistant Director of
Mitigation and Special Counsel. Ms. Johnson
received her J.D. degree from the University of
Florida, College of Law, in 1988, and is trilingual
with two degrees in French and Spanish studies.
She brings enthusiasm, dedication, and passion
to her new job. She has dedicated her life to
representing the under-privileged, the oppressed,
and the forgotten. As Executive Director,
Ms. Johnson will be responsible for insuring that we
at PLS fulfill our mission to provide meaningful
legal representation to indigent inmates. Not an easy
task in a time of shrinking budgets and a growing
inmate population, but one at which, if experience
is a guide, she will excel.
Federal Cases
Paralyzed Inmate’s Suit Barred For Failure to
Exhaust Administrative Remedies
Williams v. Comstock, 425 F.3d 175 (2nd Cir.,
2005)
In 2001, Leroy Williams suffered a stroke while
in DOCS’ custody that left him paralyzed on the left
side of his body. Nearly two years later, he filed a
grievance alleging that a DOCS’ nurse had failed to
provide him with adequate medical care at the time

Pro Se Vol. 16 No. 1 Winter 2006

of his stroke. The Inmate Grievance Program
Supervisor rejected the grievance on the grounds
that it was not filed within 14 days of the incident,
and therefore was untimely. Williams then brought
suit in federal court under 42 U.S.C. § 1983,
alleging that DOCS had failed to provide him with
adequate medical care. The district court dismissed
his claim on the grounds that he had failed to
exhaust his administrative remedies. Williams
appealed. In his appeal, he argued that his
institutional grievance had exhausted his
administrative remedies, even though it was
rejected as untimely. The Court of Appeals
disagreed.
The Prison Litigation Reform Act of 1995
requires that inmates exhaust available
administrative remedies before bringing a lawsuit in
federal court 42 U.S.C. § 1997e(a). In 2004, the
Second Circuit Court of Appeals held that
“prisoners may not circumvent the exhaustion
requirement simply by waiting to bring a § 1983
action until their administrative complaints are
time-barred [under DOCS regulations].” Giano v.
Goord, 380 F.3d 670, 677 (2d Cir., 2004). In other
words, an inmate must exhaust the grievance
process before bringing a federal lawsuit, even if he
knows the grievance will be considered untimely.
The Court recognized some exceptions to this
rule but, it held, the exceptions are limited to
circumstances in which an “uncounselled prisoner”
might understandably “fail to grieve in the normally
required way.” In Giano, for example, the inmate
was complaining that he had received a misbehavior
report in retaliation for his exercising his First
Amendment rights. He understood DOCS
regulations to state that complaints about
disciplinary hearings could not be raised in the
grievance process. Consequently, although he
appealed his disciplinary hearing, he never filed a
grievance. The Court held the inmate’s
interpretation of DOCS’ regulations was a

Page 9

reasonable justification for failing to exhaust the
administrative grievance process.
In Williams’s case, however, the inmate did not
claim that he misread DOCS’ policy. He claimed,
instead, that it had simply been “physically and
mentally impossible” to file an institutional
grievance within the fourteen days permitted by
DOCS’ regulations “after suffering from the onset
of a stroke which left him partially debilitated, i.e.,
paralyzed on his left side.” The Court did not find
this explanation sufficient. It wrote: “While it might
be true that Williams was incapable of filing his
grievance within two weeks of his stroke, [he] does
not explain why he waited nearly two years to file
the grievance. We therefore do not find Williams's
justification persuasive. Accordingly, the failure to
timely file the grievance in accordance with IGP
rules amounted to a failure to exhaust
administrative remedies in this case.”
Practice pointer: The statute of limitations
within which to bring a 1983 action in federal court
is three years from the date of the incident
complained of. DOCS’ grievance regulations
require that an inmate file a grievance within
fourteen days of the incident complained of. Since
the PLRA requires exhaustion of administrative
remedies before bringing an action in federal court,
does Williams effectively mean that no prisoner’s
action may be brought in federal court if the inmate
has not filed an administrative grievance within
fourteen days of the incident? Probably not.
Williams seems to stand for the more limited
principle that if you have failed to file a timely
grievance, you should, at the very least, have a
good explanation, and also be able to show that you
filed a late grievance and that DOCS refused to
consider it despite your good explanation.
Note: When an IGP Supervisor rejects a
grievance as untimely, the grievance is not given a
grievance number or filed in the grievance office.

Page 10

Technically, therefore, the inmate has nothing to
appeal. This presents a problem: How can an
inmate “exhaust” the IGP Supervisor’s decision not
to accept his grievance? In litigation, DOCS has
taken the position that the inmate must file a
separate grievance complaining about the IGP
Supervisor’s decision in his first grievance. If that
grievance is also rejected, he may appeal that
decision to the Central Office Review Committee
(“CORC”) in Albany. Question: If an inmate does
this, and CORC still rejects the grievance, has the
inmate “exhausted” his administrative remedies
regarding the underlying complaint such that he
may now file in federal court? Could Mr. Williams
have exhausted his administrative remedies in this
way? This question has not yet been addressed by
the courts.
PLRA Ban on Damages for Emotional Distress
Held Not to Apply to Ex-Inmates
Kelsey and Wright v. County of Schoharie,
04-CV-299
The various restrictions on prisoner litigation
enacted in 1995, known collectively as the Prison
Litigation Reform Act (“PLRA”), apply to all
inmates who bring a lawsuit about conditions or
incidents in a prison or local jail in federal court.
But does it also apply to suits by ex-inmates
concerning things that happened to them before
they were released? As it happens, that question has
received different answers depending upon which
provision of the PLRA is at issue.
In Greig v. Goord, 169 F.3d 165 (1999), for
instance, the Second Circuit held that prisoners who
are released do not have to satisfy the exhaustion
requirements of the PLRA.
In Cox v. Malone, 56 Fed. Appx. 43 (2003),
however, the Court accepted a lower court’s
conclusion that the PLRA’s “physical injury”
provisions, i.e., provisions which prohibit inmates
from bringing a suit for emotional distress unless

Pro Se Vol. 16 No. 1 Winter 2006

they can also show some physical injury, applied
both to current inmates and ex-inmates. The Cox
decision was unpublished, however, which means
that lower courts are free to ignore it, if they so
choose.
In Kelsey and Wright v. County of Schoharie,
the U.S. District Court for the Northern District of
New York did just that, holding that the physical
injury limitation of the PLRA only applies to
individuals who are incarcerated at the time their
action commences.
The case involved plaintiffs who had been
incarcerated in the Albany County Jail on
misdemeanor charges. They alleged that their
Fourth Amendment rights were violated when they
were allegedly subjected to strip searches following
arrests for misdemeanor offenses.
Albany County argued that the PLRA’s
“physical injury” requirement barred their suit,
since they could not prove a physical injury.
The Court disagreed. It wrote: “If a litigant is no
longer incarcerated at the time the action is brought,
they do not fall within the category of litigant with
which Congress was concerned--incarcerated
plaintiffs who bring civil lawsuits for recreation.”
“If the Cox decision were the rule,” said one of the
attorneys representing the Albany County plaintiffs,
“it would mean you could not get emotional distress
damages for any prison activity that doesn't result in
a physical injury. For instance, you could have a
horrific sexual assault that did not result in physical
injury, and you'd have no claim for damages. I think
[the Northern District] decision shows that Cox was
an anomaly.”

Õ

Pro Se Vol. 16 No. 1 Winter 2006

STATE CASES

DISCIPLINE
Documents: Third Department Holds Failure to
Provide Inmate With Unusual Incident Report Is
Harmless Error, Where Report Does Not
Exonerate Inmate, Nor Was Relied Upon By
Hearing Officer
Matter of Seymour v. Goord, 804 N.Y.S.2d 498
(3rd Dep’t 2005)
Petitioner Seymour was charged with stabbing
another inmate. At his disciplinary hearing, he
testified that he had seen a fight in the yard between
the man who was stabbed and another inmate but
had not participated in it. He told the Hearing
Officer that the man who was stabbed had hit his
assailant on the left eye, causing a cut below the
eye.
At his hearing, he requested copies of all the
memos and reports relating to the incident. For
unknown reasons, both the employee assistant and
the Hearing Officer withheld five and one-half
pages of the six-page unusual incident report, as
well as an interdepartmental memorandum. The
withheld documents stated that a second inmate was
also assaulted and named a number of potential
witnesses, including the alleged second victim.
They also stated that the second victim was found in
his cell with a cut beneath his eye. When
questioned, the documents stated, he said he was
attacked in the yard along with the man who was
stabbed.
After being found guilty, the Petitioner filed an
Article 78 proceeding, alleging that he was
improperly denied relevant documentary evidence
which he could have used in his defense.

Page 11

The Appellate Division disagreed: It held that
the unusual incident report was properly denied
because it did not contain any information
exonerating the Petitioner. It also stated that since
the Hearing Officer did not rely on the unusual
incident report, any error in denying it was
harmless.
Practice pointer: This is a troubling decision.
The Petitioner thought the Hearing Officer should
have relied on the withheld document because, in
his view, it corroborated his alibi testimony that the
man with the black eye was probably the assailant.
More importantly, the holding in this case appears
to add a new requirement to the relevance of
documents. It suggests that an otherwise relevant
document need not be given to an accused inmate
unless it contains exonerating evidence. It also
suggests that failure to disclose a relevant
document to the inmate is a harmless error if the
Hearing Officer doesn’t list it in his “Statement of
Evidence Relied Upon” in the hearing disposition.
Misbehavior Report: Charges Were Duplicative
Matter of Thomas v. Selsky, 804 N.Y.S.2d 148
(3rd Dep’t 2005)
The Petitioner was charged with possessing an
authorized item in an unauthorized area after a
search of his cell revealed a computer disk. Upon
examining the disk, and finding that it contained
personal information concerning the creation of a
corporation, the Petitioner was charged in a separate
report with smuggling and misuse of state property.
After being found guilty, he challenged his hearing
in an Article 78 proceeding. In response, DOCS
conceded that the smuggling charge was duplicative
of the unauthorized item charge and agreed to
expunge it. The court found that the remainder of
the charges were supported by substantial evidence:
the Petitioner admitted that he had used the disk for

Page 12

Pro Se Vol. 16 No. 1 Winter 2006

an unauthorized purpose. The Court also rejected
Petitioner’s argument that the charges should be
reversed because he was not allowed to be present
during his cell search. The need for his presence,
the Court held, was not required because he was in
the yard at the time.
Practice pointer: DOCS Directive # 4910,
§ V(C)(1), states: “The search of a general
confinement housing unit may be conducted with or
without the inmate being present. If the inmate is
removed from quarters prior to the search, he or
she shall be placed outside the immediate area to be
searched and be allowed to observe the search.
However, if, in the opinion of a supervisory security
staff member, the inmate presents a danger to the
safety and security of the facility, the inmate shall
be removed from the area and not allowed to
observe the search.”

time is at stake, unless doing so would be “unduly
hazardous to institutional safety or correctional
goals.” Wolff v. McDonnell, 418 U.S. 539 (1974).
Here, the wife was presumably a key witness: it was
she with whom the Petitioner was charged with
conspiring to smuggle the heroin. The brief opinion
of the Court does not explain how allowing her to
be called to testify would “jeopardize correctional
goals.” The Court cites only one case in support of
its opinion, Matter of Hill v. Selsky, 795 N.Y.S.2d
794 (3rd Dep’t 2005). That case, however, involved
a witness who refused to testify. There is no
indication in this case that the Hearing Officer
asked the Petitioner’s wife to testify, much less that
she refused.

Witnesses: Inmate’s Wife Prevented From
Testifying

Crosby v. Selsky, 2005 WL 3434604 (3rd Dep’t
2005)

Riley v. Goord, 802 N.Y.S.2d 524 (3rd Dep’t 2005)

In the Summer 2005 issue of Pro Se, we
reported the case of Hill v. Selsky, 795 N.Y.S.2d
794 (3rd Dep’t 2005). In that case, the Court
outlined the steps DOCS officials must take to try
and obtain the testimony of a reluctant witness in a
prison disciplinary hearing, or alternatively, verify
that the witness’s refusal to testify is genuine. Any
inmate dealing with a “witness refusal” in a
disciplinary case should refer to Hill for guidance.
In this case, the Court applied Hill, with results
favorable to the inmate.
The Petitioner was charged with “kiting” a letter
to his girlfriend via another inmate, in which he
requested that she bring “dope” contained in
balloons to him on her next visit. (Prison officials
opened the letter when it was returned due to lack of
postage.) After a Tier III hearing, he was found
guilty of violating disciplinary rules prohibiting
solicitation, conspiring to bring narcotics into the
facility, smuggling, and providing misleading

The Petitioner’s wife, while on a visit, was
found to be in possession of a heroin-filled condom
hidden in her underwear. The Petitioner was
charged with conspiring with her to smuggle the
heroin into the facility. At a subsequent Tier III
hearing, the Petitioner sought to call his wife as a
witness. The Hearing Officer refused, on the
grounds that she was incarcerated in a local jail on
charges related to the incident and was “the subject
of an ongoing investigation.” After being found
guilty at the Tier hearing, the Petitioner filed an
Article 78 proceeding, claiming that the Hearing
Officer had denied him his right to call witnesses.
The Court found no error. It held: “Under the
circumstances presented, [allowing the wife to
testify] would jeopardize correctional goals.”
Practice Pointer: This is questionable result.
Inmates have a constitutional right to call relevant
witnesses at a disciplinary hearing in which good

Witnesses: DOCS Failed to Adequately Investigate
Witness’s Refusal To Testify

Pro Se Vol. 16 No. 1 Winter 2006

information. During the hearing, he had attempted
to obtain the testimony of the inmate who sent the
letter, and whom the Petitioner alleged wrote it. The
inmate allegedly refused to testify.
The Court, citing Hill, noted that the failure of
a Hearing Officer to make appropriate inquiry into
a requested inmate witness’s refusal to testify may
constitute a deprivation of the conditional right to
call witnesses at a disciplinary hearing. Here, the
Court found, the efforts made to secure the
testimony of the inmate who the Petitioner alleged
wrote the letter, or to ascertain his reasons for
refusing to testify, were inadequate. The requested
inmate witness did not sign the witness refusal form
and the employee who attempted to secure his
testimony did not testify regarding either the
circumstances of his refusal or any inquiry made
about the reason for his refusal. Finally, the record
did not reflect that the Hearing Officer personally
conducted any such inquiry. Under these
circumstances, the Court held, Hill dictated that the
hearing be reversed.
Substantial Evidence: Confidential Information
Did Not Constitute Substantial Evidence
Matter of Colon v. Goord, 804 N.Y.S.2d 451
(3rd Dep’t 2005)
The Petitioner was found guilty of being
involved in a fight in the prison yard. The findings
were based largely on confidential information
given to the Hearing Officer by the investigating
officer. The Petitioner challenged the hearing in an
Article 78 proceeding. The Court reviewed the
confidential information in camera (in secret) and
found that it did constitute substantial evidence of
guilt.
The Court noted, “[i]t is well settled that
hearsay evidence in the form of confidential
information relayed to the Hearing Officer may
provide substantial evidence to support a

Page 13

determination of guilt where the Hearing Officer
makes an independent assessment and determines
that the information is reliable and credible.” Here,
however, the Court found that the information
provided by the investigating officer was not
sufficiently detailed or specific for the Hearing
Officer to make an independent credibility
assessment of the informants. “Although there was
some information as to how Petitioner was
identified, no specific information was relayed
about the fight and assault. Furthermore, there was
simply a general statement that the information
from the confidential informants coincided, without
any particulars regarding the specific activity
allegedly engaged in by petitioner. In fact, most of
the confidential interview involved the Hearing
Officer disclosing the particulars of the
investigation for the record with the investigating
officer simply affirming or denying the facts as
stated by the Hearing Officer.”
Practice pointer: Although the use of
confidential information in prison disciplinary
hearings has been widely upheld by the courts,
cases that rely on such information may still be
challenged in an Article 78 proceeding. Although
the court will not substitute its judgment regarding
the reliability or credibility of the confidential
information for that of the Hearing Officer, it will
review the information in camera (in secret) to
determine if there was at least a sufficient
evidentiary basis upon which the Hearing Officer
could have found it credible and reliable. In doing
so, courts look at a number of factors; a personal
interview by the Hearing Officer of the confidential
informant, for instance, has often been held to
provide a sufficient basis for a credibility judgment.
Absent a personal interview, courts will examine
whether the confidential information was
corroborated by other sources of information, or if

Page 14

it was sufficiently “detailed and specific” to allow
the Hearing Officer to measure its credibility
without corroboration. The vast majority of
confidential information cases are affirmed by the
courts. On rare occasions, however, such as in the
present case, a court will find that the confidential
information lacked even the bare minimum of
corroboration or detail and specificity needed to
allow the Hearing Officer to judge its credibility.
Substantial Evidence: Drug Testing: Proper
Documentation Required
Matter of Gonzalez v. Selsky, 803 N.Y.S.2d 315
(3rd Dep’t 2005)
Seven N.Y.C.R.R. § 1010.5 provides that when
the results of a drug identification test are to be used
in a disciplinary hearing, the record must contain
the following documents, in addition to the
misbehavior report: (a) 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, the Petitioner was found guilty of
possessing controlled substances based on tests
conducted of substances found in his cell. He
argued that the hearing result lacked substantial
evidence because the Hearing Officer failed to
include all of the forms relating to the drug testing
procedure required by 7 NYCRR § 1010.5. The
“request for test of suspected contraband drugs
form” and the “contraband test procedure form”
were included, but the other documents required by
7 NYCRR § 1010.5 concerning the testing
procedure and instructions were not. Furthermore,
the Hearing Officer obtained no testimony
concerning the testing procedure or instructions

Pro Se Vol. 16 No. 1 Winter 2006

from the correction officer who conducted the test.
Accordingly, the Court held, the test results could
not be considered evidence of the Petitioner's guilt.
Punishment: Court Upholds Eight-Year SHU
Sentence For Assault-on-Officer
Matter of Ford v. Smith, 803 N.Y.S.2d 821
(3rd Dep’t 2005)
A Petitioner was charges with assaulting a
correction officer by throwing hot oil in his face and
stabbing him several times. The Petitioner was
sentenced to eight years in SHU after being found
guilty at a Tier III hearing. He challenged the
hearing results in an Article 78 on a number of
grounds: that he had been denied a witness, that he
had been prevented from presenting documentary
evidence on his behalf, and that his sentence was
excessive, cruel and unusual.
The Court rejected the inmate’s arguments. On
the witness denial claim, the Court found that the
Hearing Officer’s failure to locate one unidentified
witness was not improper because the Petitioner had
been allowed to call twenty other witnesses and the
record revealed that, had the missing witness been
obtained, his testimony would have been redundant.
On the documentary evidence claim, the court
found that the Petitioner was not prejudiced by the
Hearing Officer’s refusal to call the injured
correction officer’s treating physician or to allow
him to see photographs of his injuries, because he
had previously been allowed to review the officer’s
medical records. Finally, on the inmate’s claim that
his sentence was excessive, the Court held that eight
years in SHU, “although lengthy…[is] not so
excessive as to shock our sense of fairness given the
serious nature of Petitioner’s assault on [the]
correction officer.”

5

Pro Se Vol. 16 No. 1 Winter 2006

Remedies: DOCS Must Expunge References to
Reversed Disciplinary Hearing From Inmate’s
Records
Matter of Proctor v. Goord, 801 N.Y.S.2d 517
(3rd Dep’t 2005)
The Petitioner filed an Article 78 proceeding
seeking to expunge his institutional records of all
references to an incident which occurred in 1995
when, during a search of his cell, a sharpened nail
clipper was allegedly found hidden in an electric
plate cover. The Petitioner had challenged his
subsequent disciplinary hearing in an Article 78
proceeding and won, obtaining an order that all
references to the hearing be expunged. In 2003,
however, he was placed in administrative
segregation. The administrative segregation
recommendation was based, in part, on the 1995
incident, the one which had supposedly been
expunged from his records.
In response to the Petitioner’s Article 78
proceeding, DOCS argued that all references to the
1995 incident had been expunged from the
Petitioner’s disciplinary history. It argued, however,
that an Unusual Incident Report mentioning the
incident had been prepared and that, although it
understands that it may not keep a record of the
misbehavior report, it is necessary to maintain
documentation “that the incident did, in fact,
occur.”
The Court disagreed. In Matter of Davidson v.
Coughlin, 546 N.Y.S. 2d 247 (3rd Dep’t 1989), it
had previously held, “It is beyond argument that
allowing references to charges that have been
dismissed and other mischievously equivocal
information that might be unfairly construed to
remain in prisoners' records leaves inmates in
jeopardy of having these references unfairly used
against them.” Here, the Court found that the
reference in the Petitioner’s records to the

Page 15

sharpened nail-clipper was precisely the kind of
“mischievously equivocal information that might be
unfairly construed” to which it had referred in
Davidson. “While the Court discerns no harm in the
use of the unusual incident report in question for
other Correctional Department purposes, the Court
finds that it was arbitrary and capricious and an
abuse of discretion not to expunge the unusual
incident report, and all references to the subject
incident, from Petitioner’s inmate record.”
Res Judicata: New Charges Based on Criminal
Conviction Upheld Where Earlier Charges
Dismissed
Caroselli v. Goord, 803 N.Y.S.2d 288 (3rd Dep’t
2005)
The Petitioner was charged in a misbehavior
report with violating the prison disciplinary rule that
prohibits inmates from committing a Penal Law
offense. The charge flowed from the Petitioner's
conviction of assault in the second degree by a jury
in Cayuga County. The alleged conduct underlying
the Criminal conviction involved an attack by the
Petitioner on a correction officer. Following a
Tier III hearing, the Petitioner was found guilty and
sentenced to six years in SHU.
The Petitioner challenged the hearing in an
Article 78 proceeding. He argued, among other
things, that the hearing violated the principles of res
judicata, collateral estoppel, and double jeopardy.
Res judicata, collateral estoppel, and double
jeopardy are all principles of adjudication which
mean, essentially, the same thing: that when an
issue has been finally judicially decided in one
court, it should not be subject to re-adjudication in
another court. The Petitioner’s argument in this case
was that he had previously been charged and found
guilty of violating various disciplinary rules relating
to the same incident at Auburn Correctional

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Pro Se Vol. 16 No. 1 Winter 2006

Facility. That determination was ultimately reversed
in an Article 78 proceeding and a new hearing was
ordered, yet DOCS failed to conduct the rehearing.
He argued that, under the circumstances, the new
Penal Law charge violated the principles of res
judicata and/or double jeopardy.
The Court found, however, that DOCS’
abandonment of the original disciplinary hearing
did not bar it from bringing new charges based on
the Petitioner’s subsequent criminal conviction. The
Penal Law charge was not a second proceeding
based on the same facts but, rather, a new
proceeding based on the intervening criminal
conviction.
Practice pointer: The Petitioner might have
obtained a different result if the court in his original
Article 78 proceeding had ordered the original
hearing reversed and expunged, rather than merely
remanding it for a rehearing. In Matter of Howard
v. Coughlin, 622 N.Y.S.2d 134 (3rd Dept 1995), the
Court held that the expungement of the Petitioner’s
prior hearing prohibited DOCS from charging him
with Penal Law violations based on a subsequent
criminal conviction arising from the same
underlying incident. In this case, however, the
Court relied on Matter of Garcia v. Coombe, 649
N.Y.S.2d 724 (2nd Dept 1996). In Garcia, the Court
had distinguished Howard on the grounds that, as
here, the prior charges had not been ordered
expunged but, instead, remanded to DOCS for a
new hearing.

proceeding challenging the determination, but it
was affirmed by the Third Department in 2002. See
Matter of Salahuddin v. Selsky, 742 N.Y.S.2d 134.
In the meantime, three of the other inmates alleged
to have been involved in the assault successfully
obtained administrative reversals of their prison
disciplinary charges arising from the incident. The
Petitioner then commenced this Article 78
proceeding seeking to have his hearing overturned,
citing the administrative reversals granted to the
three other inmates.
The Court rejected the Petitioner’s claim on the
grounds of res judicata. Res judicata bars a cause of
action that was raised and adjudicated, or which
could have been raised and adjudicated, in a prior
action or proceeding. In this case, the Court found,
the Petitioner was challenging the sufficiency of the
evidence underlying the prison disciplinary
determination. However, he had already challenged
the evidentiary basis of the determination in his
prior proceeding.
Consequently, the Court concluded, he is barred
from bringing the new case. “In any event,” the
Court noted, “the administrative reversals rendered
in the three other cases would not mandate reversal
of Petitioner's prison disciplinary determination
because the circumstances giving rise to reversal in
those matters are not present herein.”

Res Judicata

Matter of Holmes v. Drown, 804 N.Y.S.2d 823
(3rd Dept 2005)

Matter of Salahuddin v. Goord, 804 N.Y.S.2d 825
(3rd Dep’t 2005)
The Petitioner was found guilty in a Tier III
hearing of violating various disciplinary rules as a
result of his alleged involvement, along with five
others, in the assault of another inmate in
December, 2000. He commenced an Article 78

Right to be Present: Hearing Officer Erred In
Removing Inmate From Hearing

An inmate facing disciplinary sanctions has a
right to be present at his or her disciplinary hearing
“unless he or she…is excluded for reasons of
institutional safety or correctional goals.”
7 NYCRR 254.69(a)(a). The courts have interpreted
this language to mean that a Hearing Officer may
remove an inmate from a hearing for being “unruly”

Pro Se Vol. 16 No. 1 Winter 2006

or “disruptive.” See, e.g., Matter of Berrian v.
Selsky, 763 N.Y.S.2d 111 (3rd Dept 2003) (inmate
who yelled and became “loud and threatening” in
waiting room outside hearing was properly
excluded from hearing); Matter of Alexander v.
Ricks, 779 N.Y.S.2d 606 (inmate who engaged in a
fight with corrections officers after one session of
his hearing was properly excluded from the
remainder of the hearing).
Exactly where the line is drawn between the
kind of “unruly and disruptive” conduct which may
get you kicked out of your hearing, and vigorous,
but appropriate, self-representation, is difficult to
say.
The Petitioner in this case was removed from
his Tier hearing because he repeatedly interrupted,
refused to obey instructions, and made requests that
the Hearing Officer found to be deliberately
designed to harass and frustrate the hearing process.
The Court, however, found that there was no
indication that the Petitioner posed a threat to
institutional safety or correctional goals. The record
demonstrated that the Petitioner “slowed the hearing
process by asking questions about information that
he thought could vindicate him.” At no time,
however, did the Petitioner's behavior “rise to the
level of disruption that would have necessitated his
removal.”
Consequently, the hearing was reversed.
Right to be Present: Inmate Refused to Attend
Hearing
Matter of Abbas v. Selsky, 802 N.Y.S.2d 798
(3rd Dep’t 2005)
The Petitioner commenced an Article 78
proceeding challenging a number of separate prison
disciplinary hearings, several of which he did not
attend. In court, he argued that he was denied his
due process right to attend the hearings. The Court
found, however, that the transcript of the hearings
revealed that the Hearing Officer questioned

Page 17

correction officers regarding the Petitioner's
absences, and was informed that he refused to
attend the hearings or sign written waivers although
he was advised of the consequences of doing so.
Under these circumstances, the Court held, the
Hearing Officer was warranted in conducting the
hearings in the Petitioner's absence.
Practice pointer: DOCS should not prevail on
an argument that an inmate has waived a
fundamental right, such as the right to be present at
a disciplinary hearing, unless it can show that the
waiver was knowing and intelligent, that is, that the
inmate was informed of the existence of the right
and advised of the consequences of not exercising
it. Here, the Court found that the testimony of the
correction officers that the Petitioner’s waiver of
his right to attend the hearing was knowing and
intelligent.
Drug Testing: “Frequent Smoker” Defense Fails
to Impress
Matter of Callender v. Goord, 2005 WL 3543707
(3rd Dep’t 2005)
The Petitioner was charged with unauthorized
use of a controlled substance in a misbehavior
report after his urine sample tested positive for the
presence of cannabinoids. At his disciplinary
hearing, he argued that the positive test results were
caused by residual marijuana from the earlier drug
use for which he had already been disciplined. He
presented evidence that detectable amounts of
marijuana can remain in the urine of long-term
chronic marijuana users for up to 30 days and, he
stated, he was such a user. Consequently, he argued,
the test results did not constitute substantial
evidence that he had used marijuana since his prior
positive test.
The Hearing Officer rejected that argument. On
appeal, the Court held that it was within the
province of the Hearing Officer to reject the
Petitioner's “self-serving” testimony that he was a

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Pro Se Vol. 16 No. 1 Winter 2006

frequent user of marijuana, and noted that the
Petitioner had admitted to using marijuana after his
urine sample was collected. Under those
circumstances, the Court held, the misbehavior
report, supporting documentation, and testimony at
the hearing provide substantial evidence to support
the determination of guilt.
Hearing Record: Failure to Tape Hearing Results
in Reversal
Douglas v. Goord, 2005 WL 3312965 (3rd Dep’t
2005)
The Petitioner was involved in a physical
altercation with a correction officer. After a
disciplinary hearing, he was found guilty of
assaulting staff. He filed an Article 78 proceeding to
challenge the hearing. On review, the Court found
that some of the hearing testimony, including the
entire testimony from an inmate who testified at the
hearing on the Petitioner's behalf, was missing from
the hearing transcript. The Petitioner argued that the
absence of this testimony deprived him of his right
to present certain arguments and constitutional
objections relating to his claim of innocence of the
charge of assaulting a staff member. DOCS
disputed this. The Court found, however, that the
contents of the inmate’s testimony were irrelevant.
“The fact remains,” held the Court, “that the
Hearing Officer cited the inmate's testimony as one
of the factors considered in rendering the
determination of guilt on this charge. Accordingly,
the failure to record that testimony precludes
meaningful review of the hearing and, therefore,
annulment of the charge of assault on staff is
required.”



PAROLE
Court Finds Denial of Parole to 87-Year-Old
Inmate On Ground That He Presented a
“Propensity For Extreme Violence” Irrational
Bordering on Impropriety
Matter of Friedgood v. Board of Parole, 802
N.Y.S.2d 268 (3rd Dep’t 2005)
The Petitioner is an 87-year-old former
orthopedic surgeon who was convicted in 1977 of
the crimes of murder in the second degree and grand
larceny in the second degree after he killed his wife
by injecting her with a lethal dose of Demerol; he
stole property from her estate, and attempted to
leave the country to join his paramour and their two
out-of-wedlock children in Denmark. He was
sentenced to concurrent prison terms of 25 years to
life on the murder conviction. At his second
appearance before the Parole Board, in September
2003, his request for release on parole was again
denied and, after the denial was affirmed on
administrative appeal, the Petitioner commenced an
CPLR Article 78 proceeding.
The Court reversed the Board.
The Court noted that parole determinations are
discretionary and will not be disturbed as long as
they meet the statutory requirements of Executive
Law § 259-i, and that, although the law requires the
Board to consider all relevant statutory factors, it is
not required to give them equal weight or even to
articulate each and every factor that was considered.
Here, the Court found, the record showed that
the Board was aware of the following: the
Petitioner’s rehabilitation; his positive contributions
to his prison community; his debilitating medical
conditions, which include terminal cancer, a
colostomy, and incontinence; his expressions of
remorse and his good disciplinary record. The
Board’s decision, however, acknowledged none of
those factors and its decision was based instead

Pro Se Vol. 16 No. 1 Winter 2006

solely on the seriousness of the crime, stating that
the Petitioner’s offense “represents a propensity for
extreme violence.” “Our review of the record here
finds no support for this cryptic conclusion,” wrote
the Court. “Given the unique features of Petitioner's
crime, his severe physical limitations and need for
continuous medical care, we find the notion that he
is prone to engage in violent conduct to be without
any support in the record and so irrational under the
circumstances as to border on impropriety.”
Disbarred Lawyer Denied Parole, Despite Earned
Eligibility Certificate
Matter of Romer v. Dennison, 804 N.Y.S.2d 872
(3rd Dep’t 2005)
The Petitioner in this case was a disbarred
attorney serving a prison sentence based upon
convictions of grand larceny and other charges
stemming from his theft of funds from former
clients. He made his fourth appearance before the
Board in 2004 and was again denied parole. He then
commenced an Article 78 seeking to annul the
Board’s determination. The lower court granted his
application but the Board appealed. The Appellate
Division reversed.
Although the Petitioner had obtained an “earned
eligibility certificate,” the Court noted that that, in
and of itself, did not preclude the Board from
denying parole. The statute, Correction Law § 805,
states that an inmate who has been issued an earned
eligibility certificate “shall be granted parole release
at the expiration of his minimum term…unless the
board of parole determines that there is a reasonable
probability that, if such inmate is released, he will
not live and remain at liberty without violating the
law and that his release is not compatible with the
welfare of society.” If the Board’s determination
that the inmate will not “live and remain at liberty

Page 19

without violating the law” is made in accordance
with statutory requirements, the determination will
not be disturbed absent a “showing of irrationality
bordering on impropriety.”
Here, the Court found, the record revealed that
the Board considered all the statutorily relevant
factors, not merely the seriousness of the
Petitioner’s crime. The Board’s decision referred to
the Petitioner’s positive institutional record, which,
the record showed, indicated that he served as a
program aide for chaplain services and as a
paralegal assistant in the facility law library, in
addition to teaching a legal research class and, on
occasion, a Hebrew reading class. The Petitioner’s
institutional record also showed that he has not
received any disciplinary tickets during the entire
period of his incarceration. At the parole hearing,
the Board noted the Petitioner’s lack of prior
involvement with the criminal justice system, the
absence of a drug or alcohol problem, his desire to
reimburse his former clients, and his post-release
plans. According to the Court, however, “the record
also reflects…that the Petitioner continues to
maintain his innocence of the crimes for which he
stands convicted--crimes that, the Board observed,
involved ‘devious, manipulative and cunning acts
perpetrated against vulnerable individuals’ who had
placed their trust in petitioner.” The Board also
noted the Petitioner's “total disregard” for the
impact that his actions had on his clients. “In light
of the foregoing,” the Court wrote, “we simply
cannot agree with [the] Supreme Court that the
Board's decision to deny Petitioner parole release
was based solely upon the seriousness of the
underlying crimes and/or evidenced irrationality
bordering on impropriety.”

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Page 20

Name Change Application Denied To Sex
Offender
In the Matter of the Application of Gutkaiss, 2005
WL 3421911 (Supreme Court, Columbia Co.,
December 12, 2005)
The Petitioner was an inmate convicted of a sex
offense, who sought an order pursuant to Article 6
of the Civil Rights Law to change his name to
“Timothy George Dunagan,” on the grounds that he
wished to honor his mother’s maiden name, since
she had passed away in 1996. He gave no other
rationale for the request.
In general, in the absence of a demonstrable
reason, an application for a name change should be
granted by the Court. See, In re Madison, 261
A.D.2d 738 (3rd Dept. 1999). Here, however, the
Columbia County Sheriff's Department opposed the
petition on the grounds that it would not be in the
best interests of society to allow the Petitioner to
change his name. The Court held a hearing to
determine whether there was a reasonable objection
to the Petitioner's application. The Petitioner argued
that changing his name while incarcerated would
not affect his obligation to register as a sex offender
under the Sex Offender Registration Act, since he is
still incarcerated and he will need to register under
his new name upon his release. He also argued that
DOCS would not be affected because it relies upon
an inmate's DIN Number rather than his name for
identification purposes. Finally, he argued, the law
provides that a person may change his name freely
so long as there is no fraud, misrepresentation, or
interference with the rights of others.
The Columbia County Sheriff argued that the
name change was inappropriate, since the Petitioner
was a sex offender convicted of a Class B Felony:
“Society at large,” he argued, “has an interest in
knowing who this gentleman is, where he is, and
what his history is.”

Pro Se Vol. 16 No. 1 Winter 2006

The Court found that although it was true that,
upon his release, the Petitioner would be forced to
register as a sex offender using his new name, it is
possible that those familiar with his original name
prior to his incarceration would not be alerted to his
presence unless his name were to remain the same.
“People may change their appearance,” the Court
wrote. “[But] if the Court allows Petitioner to
change his name he may, in effect, create a new
identity for himself.” The Sex Offender Registration
Act, the Court found, “is designed to protect unwary
members of the public from convicted sex
offenders. To allow sex offenders to change their
names from that which they were called at the time
of their crime, would undermine the purpose of the
statute.”
Consequently, the Court denied the Petitioner's
application for a name change “in order to protect
the rights and interests of the public.”
Court of Claims Denies Compensation for Injured
Finger
Mangano v. State, 2005 WL 3434693 (3rd Dep’t
2005)
The Claimant, an inmate, was engaged in a
work program with Corcraft, DOCS’ construction
program. During one project, he was using an angle
grinder for the first time. When he turned it off and
set it down on his workbench, the rotating abrasive
disk continued to spin. The Claimant suffered an
injury to his finger. He sued the State, claiming that
DOCS should have provided him some warnings or
instructions regarding the proper use of the angle
grinder.
The Court disagreed. It found that DOCS owes
a duty to inmates engaged in work programs to
provide them with reasonably safe equipment and
sufficient warnings and instructions for safe
operation of the equipment. However, it continued,

Pro Se Vol. 16 No. 1 Winter 2006

inmates are still required to exercise ordinary care
when engaging in work programs. In this case, the
testimony at trial established, the Claimant had
worked in the construction industry for 20 years
prior to his incarceration. He had owned his own
construction company, he was familiar with many
power tools, he had seen other people operate angle
grinders, and he was familiar with how angle
grinders worked. He conceded that the grinder that
DOCS gave him was safe for its intended use. He
admitted his awareness of the common-sense
propositions that coming into contact with a
spinning disk was an obvious danger, it would be
foolish to put down the grinder while it was still
running and, based on the distinctive winding-down
sound of the grinder, he was aware that the disk was
still rotating as he placed the grinder on the
workbench.
Based on this testimony, the Court held, further
warnings and instructions were unnecessary. The
claimant was aware of the dangers which caused his
injury, and DOCS should not be held liable for his
injury.
Sentencing: Sentences for Repeat Felony Offense
Must Run Consecutively to Any PreviouslyImposed Sentence Which Has Not Yet Been
Discharged
Matter of Rivera v. Goord, 2005 WL 3485661
(2nd Dep’t 2005)
Penal Law § 70.25(a) concerns concurrent and
consecutive sentences. In general, under the statute,
sentencing courts have the discretion to decide
whether multiple sentences run consecutively or
concurrently to each other. The statute also states
that if the court fails to specify, then the sentences
must run concurrently.
There are exceptions to this rule, however. The
principal exceptions concern repeat felony

Page 21

offenders. Under Penal Law §70.25(2-a), when a
person is adjudicated a repeat felony offender and
he or she is still subject to an undischarged
sentence, the new sentence must run consecutively
to the prior sentence.
The Petitioner in this case was sentenced in
1993 to a number of prison terms for various
burglary-related crimes. In 2001, he was paroled. In
2002, he was convicted on new charges, adjudicated
a repeat felony offender, and sentenced to 12 years
to life imprisonment. The sentencing court did not
address whether these sentences would run
concurrently or consecutively to the unexpired
portion of the 1993 sentences.
The Petitioner argued that because the
sentencing court was silent on the issue, the
sentences had to run concurrently. The Court
disagreed. Under Penal Law § 70.25(2-a), his status
as a repeat felony offender required that the new
sentences run consecutively to the undischarged
sentence on the Petitioner's prior convictions,
despite the sentencing court’s silence on the issue.
“Son of Sam Law” Passes Constitutional Muster:
Inmate’s Malpractice Verdict Subject to Suit By
Crime Victim
Ciafone v. Kenyatta, — N.Y.2d — 2005 WL
3485877 (2nd Dep’t 2005)
Executive Law § 632-a, the so-called “Son of
Sam” law, was intended to help crime victims
recover damages from their assailants. It does so by
requiring DOCS to notify the Crime Victims’ Board
(“CVB”) whenever an inmate receives a sum of
$10,000.00 or more. The CVB, in turn, must notify
the crime victim and may help him or her initiate a
lawsuit to recover compensatory damages. The law
also allows a crime victim to bring such suits within
three years of the date upon which they receive
notification that the perpetrator of a crime has
received a sum of more than $10,000.00,

Page 22

notwithstanding any other statute of limitations.
In this case, the Plaintiff, Salvatore Ciafone, was
a Transit Authority Police Officer. In 1974, he
witnessed the defendant, Mr. Kenyatta, jump a
turnstile. When the Plaintiff attempted to stop the
defendant, a struggle ensued: the defendant wrested
the plaintiff’s service revolver and shot him six
times in the legs. Kenyatta was subsequently
convicted of attempted murder and has been
incarcerated ever since.
In 2000, Kenyatta commenced a medical
malpractice suit against DOCS, claiming that DOCS
had misdiagnosed his kidney failure, resulting in
permanent disability and the potential need for a
kidney transplant. The case was settled for slightly
more than $600,000.00. Pursuant to the provisions
of the Son of Sam law, Mr. Ciafone was notified of
the impending payment to Kenyatta and, in January
2003, within the three-year statute of limitations
provided for by the law, Ciafone and his wife sued
Kenyatta for damages. Kenyatta moved to dismiss,
arguing that the Son of Sam Law violated the ex
post facto clause of the U.S. Constitution, on the
grounds that it amounted to additional punishment
for his crime.

Pro Se Vol. 16 No. 1 Winter 2006

In denying Kenyatta’s motion, the Court left
little doubt about the Son of Sam law’s
constitutionality. In Kennedy v. Mendoza-Martinez,
372 US 144 (1963), the Supreme Court identified
seven factors that determine whether a statute
constitutes additional punishment. Applying those
factors in this case, the Appellate Division
concluded that the intent of the Son of Sam law was
not to impose additional punishment. The Court
found, for instance, that the law does not impose
any new disability or restraint on criminal
defendants; it simply extends the statute of
limitations for civil lawsuits from crime victims
which could have been brought under prior law. It
also does not provide for automatic damages for the
crime victim; it only provides an opportunity for the
crime victim to recover damages. Finally, the Court
found, that the statute’s purpose was not to promote
retribution or deterrence, but only to compensate
crime victims, and it is narrowly drawn and
rationally related to that purpose. Consequently, the
Court held, the Son of Sam law does not violate the
ex post facto clause.

Pro Se Vol. 16 No. 1 Winter 2006

Page 23

Know Your Rights: A Guide to Civil Commitment In New York
In light of Governor Pataki’s ongoing efforts to civilly commit sex offenders following their terms of incarceration,
Pro Se takes a detailed look at the provisions of the two current civil commitment statutes. Governor Pataki has been relying
on the provisions of the Mental Hygiene Law to civilly commit inmates. At least one court has held that the Mental Hygiene
Law does not apply and, in addition, does not provide constitutionally adequate due process protections; however, that
decision is currently on appeal. See story, page 3 above. The other law the Governor could rely upon is Correction Law
§ 402. Both statutes are summarized here. Inmates convicted of sex offenses who may be subject to civil commitment
proceedings should know their rights.
Mental Hygiene Law Article 9, §§ 27-31, provide:

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"The director of a hospital may receive and retain…any person alleged to be mentally ill and in need of involuntary
care and treatment upon the certificates of two examining physicians, accompanied by an application for the admission
of such person."
The admission application must be executed within ten days prior to the admission and must "contain a statement of
the facts upon which the allegation of mental illness and need for care and treatment are based."
The examining physicians must "consider alternative forms of care and treatment that might be adequate to provide
for the person's needs without requiring involuntary hospitalization" before signing a commitment certificate.
The director of the psychiatric facility to which the allegedly mentally ill person is brought must "cause such person
to be examined forthwith by a physician who shall be a member of the psychiatric staff of such hospital other than the
original examining physicians whose certificate or certificates accompanied the application." The person may be
admitted only if he "is found to be in need of involuntary care and treatment" by the staff physician.
Following admission to the hospital, the patient may not be sent to another hospital by any form of involuntary
admission unless Mental Hygiene Legal Services has been given notice of the transfer.
The director of the psychiatric facility must give written notice of the detention to the nearest relative of the person
detained or, if none available, to up to three friends of the detained person.
The detained person or his relative or friend may request a court hearing concerning the detention within sixty days
of the date of the involuntary admission. He may do so by putting the request in writing to the director of the
psychiatric facility. The director, in turn, must notify the court, which must schedule a hearing within five days of
receipt of notice of the request from the director.
…article continued on following page

Page 24

Pro Se Vol. 16 No. 1 Winter 2006

…article continued from previous page

Correction Law § 402 provides:

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The superintendent of a correctional facility may apply to a judge to cause an examination to be made of an
allegedly mentally-ill person in his custody "whenever the physician of [the] correctional facility…shall report in
writing…that any person undergoing a sentence of imprisonment…is, in his opinion, mentally ill."
The judge appoints two examining physicians.
The two physicians must conduct a personal examination. If satisfied after the examination that the inmate is
mentally ill and in need of care and treatment, they must issue a certificate to that effect.
Before issuing the certificate, they must "consider alternative forms of care and treatment available during
confinement in such correctional facility, penitentiary, jail, reformatory or correctional institution that might be
adequate to provide for such inmate's needs without requiring hospitalization."
If the physicians issue the certificate, the superintendent may apply to the judge for an order committing the
inmate to a psychiatric facility.
The application must be personally served upon the alleged mentally-ill person, as well as upon either the wife,
the husband, the father or mother, or other nearest relative of the alleged mentally-ill person (if known), and also
served upon Mental Hygiene Legal Services.
Mental Hygiene Legal Services "shall inform the inmate…of the procedures for placement in a hospital and of
the inmate's right to have a hearing, to have judicial review with a right to a jury trial, to be represented by
counsel and to seek an independent medical opinion," and "shall have personal access to such inmate for such
purposes."
If no hearing is requested, the judge may immediately issue an order for the commitment of the person to a
mental health facility for a period not to exceed six months from the date of the order.
If a hearing is requested, either by the inmate or any relative or near friend on behalf of the inmate, the judge
must hold a hearing and take testimony regarding the inmate's mental illness. If, after the hearing, the inmate is
judged mentally ill and in need of care and treatment, the judge may issue an order committing him to a mental
health facility for not more than six months.
If the inmate, or someone acting on his behalf, is dissatisfied with such an order, he may obtain a rehearing and a
review of the prior proceedings within thirty days of his commitment. If he requests a rehearing, the court must
"cause a jury to be summoned and shall try the question of the mental illness and the need for care and treatment
of the person."
If the director of the mental health facility concludes that the condition of an inmate requires an extension of his
stay in the hospital, he may make an application for an extension. The procedures for obtaining an extension are
spelled out in Mental Hygiene Law § 9.27.

Pro Se Vol. 16 No. 1 Winter 2006

Page 25

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EDITORS: JOEL LANDAU, ESQ; KAREN MURTAGH-MONKS, ESQ.
COPY EDITING: ALETA ALBERT; FRANCES GOLDBERG
CONTRIBUTORS: DIANNA GOODWIN
PRODUCTION: FRANCES GOLDBERG
DISTRIBUTION: MORGAN GARDNER; BETH HARDESTY
EXECUTIVE DIRECTOR: SUSAN JOHNSON

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