Vol. 20 No.1 Wincer 2010; Published By Prisoners' Legal Services of New York

DangerousConuaband
In June 2008, the Court ofAppeals issued
a decision that, for the purpose of P.L
§205.25, promoting prison contraband in the
first degree, clarifies the definition of
dangerous contraband. Penal Law §205.25
crimina1izes the possession of dangerous
contraband and is a class E felony. Penal Law
§205.20 criminalizes the possession of
contraband and is a class A misdemeanor.
In People v. Finley and People v. Salters,
862 N.Y.S.2d 1 (2008), the Court considered
the appeals of two prisoners who had been
convicted ofpromotion ofprison contraband in
the first degree. In their appeals, the appellants
claimed that they should not have been
convicted of felony promotion of prison
contraband because that offense requires that
the defendant possess dangerous contraband in
a detention facility. The contraband that
defendants Finley and Salters were convicted
of possessing was 9 grams of marijuana and
three joints of marijuana, respectively. They
argued that the small amounts of marijuana
which they were found to have possessed did
not constitute dangerous contraband. After
examining the statute and its history, the Court
ofAppeals agreed with them and reversed their
convictions.

First the court looked at the language of
the statute which defines "dangerous
contraband." Penal Law §205.00(4) defines
dangerous contraband as contraband which is
capable ofsuch use as may endanger the safety
or security ofa detention facility or any person
therein.
. .. Contraband article continues on page 3

Also Inside • . .
Parole Rescission Based on
Victims' Statements . . . . . . .. Page 9

Court Awards $3,600 For
Wrongful Confinement. . . .. Page 10
Challenges to Grievance
Denials

Page 15

Wrongful Imposition of PRS .. Page 19

Find out bow to subscribe to Pro Se on
Page 22.

Tlru project u Sllpported in part by grtIIIJs from tile New York Stale DivUion 0/ CrlminIIl Justke Services, the New York
Stale Btu F0IUUIlIti0n, tmd tile Tompkins CounJy Btu Associlltion. PointY 0/ new in tbir docIutumI are those 0/ the tllllho,.
and do not ,ep,esellt tile o./flcitll position or polides 0/the grtllflon.

VoL 20, No.1 Winter 2010

Page 2

A Message from the Executive Director,
Karen Murtllgh-Monks
Successful Reintegration Should Be Everyone's Goal

It is crucial to successful reintegration that re-entry services begin before an incarcerated person
leaves prison and continues until that person has been given the tools that will allow himlher to
succeed. The way in which a person is treated in prison, the educational and treatment programs
he/she is provided, the medical and mental health care that is offered and the timely release of that
person, are all factors that affect an individual's ability to reintegrate into society. If a person is
abused or neglected, prevented from obtaining the education and programming they need, denied
adequate medical and mental health care or confined beyond the sentence that was legally imposed,
the likelihood of recidivism is extremely high. On the other hand, if a person is treated humanely,
provided education, programming, medical and mental health care and released in compliance with
the orders of our courts, the chances for successful reintegration are significantly increased.
PLS works hard to increase the chances ofsuccessful reintegration for our clients. An example
of this is the advocacy PLS recently did for a mentally ill client who was being held in the special
housing unit (SHU) and was scheduled to be held there through his maximum release date. PLS
successfully advocated for this client to be released from SHU two months prior to his maximum
release date so that he could participate in discharge planning for his return home. In addition, since
2006, PLS has been assisting the Department of Correctional Services (DOCS) in its Reentry
Program at Orleans Correctional Facility. The program services between 60 and 90 inmates who are
transferred to Orleans from other facilities across the State, all ofwhom have set dates for release to
the Buffalo area. On a quarterly basis PLS, together with the Legal Aid Bureau in Buffalo, makes
presentations to the Orleans group on employment, parole, and family law issues. In 2009, DOCS
implemented a similar program at Hudson Correctional Facility. In December 2009, PLS presented
infonnation on various legal issues associated with issues related to re-entry for 32 incarcerated
individuals at Hudson Correctional Facility who were scheduled to be released within the next three
months to Albany, Schenectady, Columbia, and Rensselaer counties. We are scheduled to make a
similar presentation in March 2010.
In an effort to engage in additional re-entry efforts, PLS is currently working on developing a
re-entry pilot project. Within the next two months, we hope to meet with various individuals to begin
setting up the project. Our hope is to focus on incarcerated individuals who are scheduled to be
released within the upcoming year to the Capital District Region. Our plan is to focus on assisting
those individuals in preparing for release by addressing a wide-range of issues from ensuring that
those individuals are receiving the proper programming, education, medical and mental health care
that they need to prepare them for release, to obtaining proper identification, to ensuring that
education, programming, housing, employment and medical and mental health care are available to
those individuals when they are released. We are hopeful that our efforts in this area will help to
reduce recidivism and help our clients succeed in adjusting to life outside the prison walls and re-enter
society as law-abiding, productive members of society.

VoL 20, No. 1 Wiater 2010
Page 3

... Contraband article continuedfrom page 1

In reaching the conclusion that the
defendants were not guilty of possessing
dangerous contraband, the Court considered
the evidence used to prove dangerousness at
the defendants' trials. In Defendant Salter's
trial, the prosecution's expert testified that 9
grams of marijuana could be sold and lead to
altercations and disobedience that could
endanger the safety and security of staff and
inmates. At Defendant Finley's trial, the
officer who recovered the three joints from
the defendant testified that the circumstances
of the recovery could have caused him to be
assaulted by inmates or to have left a large
group of inmates without sufficient security.
The Court noted that the allegedly
dangerous consequences were not related to
the specific nature of the item of contraband,
but would hold true of any form of
contraban~ including food and cigarettes.
Thus, the Court found, if it were to accept the
People's definition ofdangerous contraband, it
would capture any unauthorized item that,
when present in a prison, could lead to
altercations and inmate disobedience.
But ultimately fatal to the People's
construction of term, the Court found, was
that it would effectively nullify P.L. § 205.20,
the misdemeanor crime of promoting prison
contraband in the second degree. Even the
People's experts had conced~ when any
contraband is introduced into the prison barter
system - whether it is perishables or marijuana
- it brings with it the potential for disruption
that could endanger safety and order. Thus, if
testimony as to these possibly pernicious
(harmful) secondary effects were sufficient to
establish the felony promoting contraband
offense, then every item of contraband could
be classified as dangerous and possession of
any form ofcontraband would be a felony.

The Court was unwilling to presume that
the Legislature intended such a result when
it mandated harsher consequences for the
possession of dangerous contraband. It
concluded that the test for determining
whether an item is dangerous contraband is
whether its particular characteristics are such
that there is a substantial probability that the
item will be used in a manner that it likely to
cause death or other serious physical injury, to
facilitate an escape, or to bring about other
major threats to prison safety or security. The
Court found no evidence that such drastic
results were likely to occur with the small
amounts of marijuana at issue in these two

cases.
Finally, the Court stated, the conclusion
that small amounts of marijuana - in both
cases under 25 grams - are not dangerous
contraband is supported by the Legislature's
more lenient treatment of possession of 25 or
fewer grams ofmarijuana. The legislature has
decriminalized possession of marijuana in
amounts under 25 grams. In light of this,
classifYing the possession of small amounts of
marijuana as non-dangerous contraband is
consistent with the legislative view of this
matter.
The Court did not pass on whether
possession of amounts of marijuana greater
than 25 grams could be deemed to be
dangerous contraband. However, in People v.
Cooper, 67 AD.3d 1254 (3d Dep't 2009), the
Third Department affirmed a conviction for
promoting prison contraband in the first
degree, based on the defendant's possession of
30.5 grams of marijuana and .06 grams of
heroin. The Court stated that in Cooper,
unlike in Finley, the defendant possessed
marijuana and heroin in amounts that
constituted crimes. In addition, the evidence
showed that defendant's wife was paid by
other inmates in advance to import iUegai
quantities of marijuana and heroin into
Southport C.F., a maximum security prison for

VoL 20, No.1 Wiater 2010

Page 4

"problem" inmates, where possession of
heroin and marijuana could lead to dangerous
confrontations involving inmates and prison
staff. Further, the evidence showed that this
was not the first time that the defendant had
arranged to have drugs brought to him to
distribute to other inmates. Under these
circumstances, the court held that the weight
of the evidence supported the conviction.

I

News and Briefs

I

Court of Appeals Accepts
Cases Raising Issues Related
toPRS
On January 7, 2010, the Court ofAppeals
heard oral argument on the issue ofwhether its
decisions in Gamer v. N.Y.S. Department of
Correctional Services, 859 N.Y.S.2d 590
(2008), and People v. Sparber, 859 N.Y.S.2d
582 (2008) - which led to a statewide resentencing initiative to have post release
supervision imposed on hundreds of
individuals whose sentences had not originally
included PRS - permit the state to re-sentence
individuals whose actually imposed sentences
had already expired at the time of the resentencing. As of the writing of this issue of
P,o Se, the decisions in these five cases had
not been issued. We wiD let you know the
results of these appeals.

Phone Surcharges Not Tax
In January 2007, following the 2004 filing
ofWalton v. N.V.S. DOCS. a lawsuit alleging
that the exorbitantly (unreasonably) high rates
charged to the recipients of collect calls
made by N.Y.S. prisoners was an unjust tax,
then Governor Spitzer announced a 500.10
reduction in the cost of collect calls from
prisoners. The NYS Legislature later limited
DOCS's right to generate operating revenue
by charging inmate families more than the
reasonable cost of running the inmate phone
service. As these developments occurred, the
lawsuit seeking refunds ofthe excess fees that
DOCS had collected from the families and
friends of prisoners in DOCS custody,
continued to make its way through the courts.
In November 2009, the Court of Appeals
affinned the Appellate Division decision
holding that the surcharges were not an
unconstitutional tax and the families and
friends ofinmates were not entitled to refunds
for overcharges paid between 2003 and 2007.
Walton v. N.Y.S. DOCS, 2009 WL 4016122
(Nov. 23, 2009).

Commissioner Fischer Lowers
Phone Charges
In the Autumn issue of DOCS TODAY,
Commissioner Fischer announced a new
contract that significantly reduces the rates for
collect calls made by prisoners. There will be
no connection fee for the calls - fonnerty there
had been a connection fee of$I.28 - and the
per-minute fee will drop from 6.8 cents to 4.8
cents. The result will be a 64% decrease in call
costs. The price ofa 20 nUnute call will fall to
96 cents from $2.48.
The new phone system is expected to be
installed this year, and the new charges will
take effect facility to facility as the installation
proceeds.

PageS

VoL 20, No. 1 Winter 2010

Best Wishes to Betsy Sterling,
Director of Special Litigation
and Projects
After fifteen years ofdedicated service to
prisoners throughout New York State, Betsy
Sterling, Director of Special Litigation and
Projects, has left Prisoners' Legal Services
("PLS") to take on other opportunities. Ms.
Sterling began employment at PLS as a Staff
Atto~ey, th.en became a Managing Attorney,
AssoClate Drrector and the Director ofSpecial
Litigation and Projects. Prior to coming to
PLS, Ms. Sterling worked for ten years in civil
legal services programs in Alabama and
upstate New York.
Coworkers, clients and adversaries alike
know of Ms. Sterling's strong commitment to
bettering the lives ofprisoners and her zealous
representation of her clients. Her
accomplishments at PLS are numerous and
range from individual client advocacy and
litigation, to class action work, to legislative
reform. Ms. Sterling adeptly collaborated
with divergent stakeholders including state
agency officials and counsel, legal services
programs, community
groups, bar
associations and pro bono attorneys to
accomplish positive results for her clients.
Working collaboratively with colleagues
at The Legal Aid Society Prisoners' Rights
Project, Disability Advocates, Inc., and pro
bono counseL Ms. Sterling engaged in
systemic and class action litigation resulting in
significant improvement in treatment
conditions and housing for prisoners with
mental illness. (Anderson et aI. v. Goord et
al.. and Disability Advocates. Inc. v. New
York State Office of Mental Health and
Department of Corrections.) As a result of
this work, New York State is allocating
resources at levels never seen before to
prisoners with disabilities, improving their lives
within prison and paving the road to their
successful community reentry.

Ms. Sterling also worked with numerous
co~unity groups, family members, and legal
seMces programs to obtain bipartisan support
for the passage of the "SHU Exclusion Law"
making New York the first state in the nation
to pass legislation limiting the confinement of
prisoners with mental illness in solitary
confinement.
At PLS, Ms. Sterling leveraged significant
resources and funding for the agency, provided
legal training, supervision and support to
numerous attorneys, paralegals and law interns
and obtained agency Continuing Legal
Education accreditation. Ms. Sterling also
provided expertise on a broad range ofcentral
m~~ement functions including management
tr81mng and support, fiscal operations,
personnel management, and media relations.
. Please join the community of prisoners'
nght~ advocates in wishing Ms. Sterling aU the
best 10 her future endeavors and in thanking
her for her many accomplishments on behalfof
prisoners throughout New York State.

Disciplinary Hearings
Doctor's Testimony Would Not
Have Been Redundant
In Matter of Townes v. Fischer, 890
N.Y.S.2d 708 (3d Dep't 2009), the petitioner
d~ended ,the charge that he had used drugs
WIth a cl81m that his medication had caused a
false positive. Both the officer who ran the
test and a nurse testified that the drugs
that the petitioner was taking could not have
caused a false positive, but, the court found
ther~ was no evidence that they wer;
qualified to render such an opinion. The
petitioner had also asked that his doctor testify,
and stated that the doctor would state that the

Page 6

medication could have caused a false positive.
The court found that the hearing officer's
denial of the request that the doctor be called
as a witness, based on the conclusion that his
testimony would be redundant to that of the
nurse and the officer, was improper. The offer
ofprooffor the doctor's testimony was that it
would have contradicted the testimony of the
other two witnesses and therefore would not
have been redundant. As the testimony could
have affected the outcome of the hearing, the
court ordered that the hearing be reversed and
that a new hearing be conducted.

No Constitutional Right to
Production of the Hearing
Tape
Following
a Tier III hearing
determination that the petitioner was guilty of
possessing a weapon, the petitioner in Matter
of Holmes v. Fischer, 885 N.Y.S.2d 654 (3d
Dep't 2009), made a FOn.. request for a copy
ofthe hearing tape. When he did not receive
the tape in time to use it to prepare his
administrative appeal, petitioner filed an
Article 78 challenge to the hearing, alleging,
among other claims, that his right to due
process oflaw had been violated by the failure
to produce the tape.
Noting that the
explanation for the delay was apparent from
the record - the petitioner had requested a
copy ofthe tape from the prison where he was
at the time ofthe request rather than from the
prison where the hearing was held - the court
went on to hold that for the purposes of
preparing an appeal, the Constitution required
only that an inmate be given a statement ofthe
evidence relied upon. As the petitioner had
that, the court held that his rights to due
process of law with respect to preparing an
appeal had not been violated.

VoL 20, No. I Winter lOla

Reversal Does Not Necessarily
Bring Program Restoration
As a result of a Tier I determination that

he had possessed prohibited articles
(pornography), the petitioner in Matter of
Shearer v. DOCS, 885 N.Y.S.2d 136 (3d
Dep't 2009) was removed from the sex
offender program. His Article 78 challenge to
the hearing was dismissed by the Supreme
Court, but between that decision and the
appeal to the AppeUate Division, DOCS
administratively reversed the hearing and
expunged all references to it. Petitioner argued
that his appeal should not be dismissed, as he
had not been re-instated in the sex offender
program. The court rejected his argument,
holding that because inmates have no
constitutional or statutory rights to their prior
housing or programming status, and because
the petitioner had gotten all of the relief to
which he would have been entitled had his
petition been granted, the case was moot.

Guilty Plea Is Bar to Challenge
to Determination of Guilt
Petitioner was charged with asking other
inmates for stamps in violation ofprison rules.
He pled guilty with an explanation. After he
was found guilty, he filed an Article 78
challenge. In Matter of McMoore v. Bezio,
888 N.Y.S.2d 678 (3d Dep't 2009), the court
denied his petition, holding that by his plea of
guilty, the petitioner is precluded from
challenging the determination ofguilt with an
explanation.

Page 7

VoL 20, No.1 Wiater 2010

Denial of Right to Review
Evidence Leads to Reversal
and Rehearing
PetitionerTolliverwas charged with using
the facility phone system to conspire to
introduce marijuana and heroin into the
facility. The evidence against him included
tape recordings of phone calls during which,
an investigator alleged, petitioner used coded
language. The hearing officer was given an
explanation ofthe code but refused to provide
the code to the petitioner. In Matter of
Tolliver v. Fischer. 2009 WL 4678382 (2d
Dep't Dec. 8, 2009), the court held that
because the explanation of the code was
relevant to the petitioner's defense that the
conversations were not about drugs, the failure
to provide it to the petitioner violated his right
to due process of law. The court ordered a
rehearing at which the hearing officer would
either provide the explanation to the petitioner
or not rely on it.

Transcript of Log Entries
Reasonable Substitute For Log
When Petitioner Brown was charged with
violent conduct, assaulting staff, and creating
a disturbance, he requested that the hearing
officer provide him with copies of certain log
book entries. The hearing officer produced a
transcript of the entries rather than a
photocopy of the actual entries. Petitioner
then challenged the determination ofguilt in an
Article 78, raising the failure to produce a
photocopy of the log as a due process
violation. Dismissing the petition, in Matter of
Brown v. Fischer, 888 N.Y.S.2d 682 (3d
Dep't 2009), the court held that production of
a transcript instead of a photocopy did not
violate petitioner's right to due process oflaw
as it did not prejudice his preparation of a
defense.

No Transcript Required Where
Tapes Were Played At Hearing
In Matter of Sanders v. LaClair. 67
AD.3d 1226 (3d Dep't 2009), the petitioner
was charged with drug possession, smuggling,
and unauthorized third party calls. Tape
recordings of the calls were played at the
hearing, but the petitioner was not provided
with transcripts ofthese calls. In his Article 78
challenge to the determination of guilt,
petitioner claimed that the failure to provide
him with a transcript of the calls impaired his
ability to prepare a defense. The court rejected
this claim, ruling that playing the tapes was an
adequate substitute for production of
transcripts ofthe recordings.

Parole
Court Dismisses Challenge to
Condition of Supervision For
Failure to Exhaust
Administrative Remedies
As a condition ofparole supervision, F.B.
agreed to submit to periodic polygraph (liedetector) examinations. This condition was
imposed due to a 1962 arrest for kidnapping
and rape, which led to a conviction of assault
in the third degree and a one year prison
sentence. As a result, F.B. was detennined to
be a "Discretionary Sex Offender." This status
imposes a greater amount of supervision on
F.B. than would be imposed on an ordinary
parolee. Requiring parolees to take polygraph
exams can serve several purposes, but in F.B.'s
case, the purpose was to aid the Division of
Parole (DOP) in deciding whether F.B. should
continue to be supervised as a sex offender, or

PageS

be supervised as an ordinary parolee. One of
the conditions ofthe exam was that the results
would only be used to detect untruthfulness
and not to discover evidence to be used
against F.B at a parole revocation procedure.
F.B. was notified that he was to appear
for a polygraph exam. He refused to take the
exam, and then filed an Article 78 proceeding
claiming that requiring that he take a
polygraph exam was a violation of his Fifth
Amendment right not to incriminate himself.
In Matter of F.B. v. NYS Executive
Department. 2010 W.L. 97994 (Sup. Court.
Bronx Co. Jan. 11, 2010), because F.B. had
not exhausted his administrative remedies, the
court dismissed his petition without reaching
the merits of his argument. According to the
court's decision, prior to filing an Article 78
challenge to the condition that he take
polygraph exams, F.B. had to appeal the initial
imposition ofthe condition.

Majority Finds That DOP
Properly Considered
Statutory Factors; Dissent
Thinks Not
In Matter of Comfort y. N.Y.S. Division
ofParole, 890 N.Y.S.2d 700 (3d Dep't 2009),
the court once again examined whether the
denial of parole to an individual who had
served a significant number ofyears beyond his
minimum - here, 28 years of a 21 ~ years to
life sentence - was the result of giving
improper weight to one factor - the
seriousness of the defendant's crime. Here,
the majority found that the Board of Parole
had properly considered the statutory factors,
including, "the seriousness of the petitioner's
crime, his prior criminal history, positive
program achievements while incarcerated and
postrelease plans." The majority noted that

VoL 20, No.1 Wiater 2010

the Board had reached its conclusion after
weighing the petitioner's criminal history - he
had been a drug dealer for 10 years, was a high
level cocaine trafficker, and his criminal
activity had directly led to the violent death of
one police officer and serious injury to a
second officer- against his accomplishments in
prison and found that its conclusion was
supported by the record and did not display
irrationality bordering on impropriety.
Thedissenters noted that petitioner, unlike
other individuals who had been denied parole
numerous times due to the seriousness oftheir
crimes, had never been convicted of a violent
crime and had a short criminal history. In
addition, petitioner's institutional record was
exemplary (could serve as an example for
others). He had had a perfect disciplinary
record for 15 years, had completed all of the
recommended programs required by DOCS,
had overcome drug and alcohol addiction and
participated in Alcoholics Anonymous for 20
years, and had engaged in several other
volunteer service projects as well as vocational
and educational programs. The petitioner's
post release plans included participation in a
veterans' employment program and
volunteering in programs for substance
abusers.
The dissenters pointed out that the court
had twice directed the Board to conduct a de
novo hearing after it was established that the
Board had improperly considered and relied
upon convictions that had been reversed on
appeal. They found that a strong inference
arose upon the record - where the Board gave
only fleeting acknowledgment to the statutory
factors other than the seriousness ofthe crime
- that the Board may have again been
improperly influenced by factors outside the
scope ofthe statute, commenting:
While the determination . . . includes
no explicit reference to the reversed
convictions, in light of the lack
of detail provided, the history of

VoL 20, No. 1 Winter 2010

petitioner's prior appearances, the
extensive evidence ofhis rehabilitation
and remorse, the cursory nature of the
Board's acknowledgment of these
factors and the absence of record
support for its conclusion that
petitioner is likely to re-offend
cumulatively render the decision 'so
irrational under the circumstances as to
border on impropriety. '

Rescission of Parole Based on
Victims' Statements Did Not
Exceed DOP's Authority
':-- decision to grant parole may be
reSCinded based on significant information
which
existed but was not known by
the Board of Parole.
9 N.Y.C.R.R.
8002.5(b)(2)(1). While substantial evidence
must support a decision to rescind parole,
9 N.Y.C.R.R. 80002(5)d)(I), only
the
existence of significant new information
is required to support
the
Board's
decision to hold a rescission hearing,
9 N. Y. C. R. R. 8002.5 (b)(2)(1).
Under
Executive Law§259-i(2)(c)(A)(v), the Board
of Parole is required to consider any
statement made by the victim of a crime
committed by the inmate being considered for
parole. In Matter of Raheem v. Board of
Parole, 888 N.Y.S.2d 631 (3d Dep't 2009),
the court considered the interplay of these
regulatory and statutory requirements when it
determined that the Board's decision to start a
proceeding to rescind its decision to release
Petitioner Raheem to parole supervision was
not in excess of its authority and was
supported by substantial evidence.
Underlying this decision were the following
facts. Following a robbery that led to hostage
taking, the shooting death ofone police officer
and injury to others, petitioner was found

Page 9

guilty of. among other crimes, several counts
of murder and sentenced to 25 years to life.
He was denied parole five times before being
granted parole in 2007. In its decision to
release petitioner, the Board noted that
petitioner was 58 years old, had earned several
college degrees and had participated in service
organizations and that a co-defendant had been
released 10 years earlier.
After the Board issued its decision, but
prior to petitioner's release, a number of
victims of petitioner's crimes were allowed to
submit statements, and a victim impact hearing
w~ conducted at which a hostage, injured
pollce officer and members of the slain
officer's family testified about the impact ofthe
crime on their lives. The Board then scheduled
a hearing to determine whether the decision to
parole petitioner should be rescinded on the
basis of information that was not previously
known to it, namely the information provided
by the victims.
The petitioner brought an Article 78
proceeding seeking to prohibit the Board from
conducting the hearing, alleging that the
initiation of a rescission proceeding was in
excess of its jurisdiction. The Supreme Court
di~~~sed the petition, and the Appellate
DIVISion affirmed that decision.
The Appellate Division held that the
remedy of prohibition is available where an
a~ency proceeded, or is about to proceed,
Without or in excess of its jurisdiction. This
remedy cannot be used, the court said, to seek
collateral review of an error of law in an
administrative proceeding; that is, where a
petitioner has access to another legal remedy,
prohibition "will not lie." Here the court
found, the Board ofParole has authority under
the regulations to conduct rescission
proceedings based upon significant information
which was not known to the Board and was
required by the statute to consider any
statement made by the victims. The court
also noted that it had previously held that

VoL 20, No. 1 Winter 2010

Page 10

victim impact statements can be significant
infonnation, which when submitted to the
Board even after its detennination, mayjustifY
the rescission of parole. Here, none of the
victims had submitted statements before and
had not given statements to the Probation
Department.
Thus, the court held, the
statementswere new evidence, the existence of
which was not known to the Board when it
made its decision to release petitioner to parole
supervision. Under these circumstances, the
court found that the Board had not exceeded
its jurisdiction by scheduling a rescission
hearing.

Court of Claims

Court Awards $3,600 For 120
Days of Wrongful Confinement
In DuBois v. State, 887 N.Y.S.2d 448
(Court of Claims 2009), the claimant sought
damages for two periods of wrongful
confinement to keeplock and SHU. In the first
incident, claimant was confined in keeplock
for 30 days. Claimant alleged that the
misbehavior report relating to 30 days of
keeplock did not conform to the regulatory
requirements and that the hearing officer had
wrongfully refused to call a witness without
stating a reason for the denial or attempting
to obtain the witness's testimony. The hearing
determination was affirmed on appeal,
following which Mr. DuBois filed an
Article 78 that was transferred to the Appellate
Division, whereupon Mr. DuBois submitted
his brief. Prior to submitting a brief: and after
consulting with the Department of Law, the

Superintendent reversed the bearing and
expunged it from Mr. DuBois's institutional
records.
Mr. DuBois then filed the claim for
wrongful confinement.
After the State
answered, he filed a motion for summary
judgment. The State opposed the application,
citing Rivera v. State, CIm. No. 102781, Feb.
8, 2006, a decision dismissing a claim of
unlawful confinement to SHU because the
claimant could not show that had the witness
whom the hearing officer wrongfully refused to
call actually testified, the result of the hearing
would have been different.
Here, the court held, the decision in Rivera
v. State was not controlling. Because of the
expungement, the court was unable to review
the record to determine whether the testimony
ofthe witness whom the hearing officer did not
call might have made a difference in the
outcome of the hearing. By administratively
expunging the disciplinary hearing, the court
stated, the State shifted the burden ofshowing
that the testimony would not have a made
difference in the outcome from the claimant to
the State. Or, the court held, at the very least,
the State's conduct allows the presumption
that had the witness been called, his testimony
would have made a difference in the result of
the hearing.
The court concluded that where the hearing
officer had violated the claimant's regulatory
right to call witnesses by failing to state a
reason for not calling the witness, and the only
evidence that the State submitted did not show
that had the witness testified the result would
not have been different, the State had not
shown that there were any material facts in
dispute. Thus, claimant was entitled to
summary judgment on liability.
As a result ofthe second incident, claimant
was confined to SHU for 90 days. Mr. DuBois
filed an Article 78 proceeding alleging that the
hearing was untimely. The court granted the

VoL 20, No. 1 Winter 2010

petition and ordered the hearing reversed and
expunged. Mr. DuBois then filed an action in
the Court ofClaims for damages for wrongful
confinement to SHU. The court first held that
the defendant was collaterally estopped from
challenging the Article 78 court's
determination and then found that 1) claimant
had not consented to the confinement to SHU,
2) claimant was conscious ofthe confinement,
3) the defendant had intentionally confined the
claimant to SHU, and 4) because of the
untimeliness of the hearing, the confinement
was not otherwise privileged. Under these
circumstances, the claimant was entitled to
summary judgment.
The court awarded damages in the amount
of $30.00 per day for 120 days of wrongful
confinement.

First Department Rules Claim
For Damages For Unlawfully
Imposed PRS Lacks Merit
In Collins v. State, 887 N.V.S.2d 400 (111
Dep't 2009), the claimants brought a motion
to tile a late claim alleging that they were
entitled to damages for the period of time that
Mr. Collins had been confined due to a
violation of administratively imposed post
release supervision. To be successful, the
court must consider a range of factors,
including whether the claim had the
appearance of merit. Here, the court denied
the claimants' motion, holding that the claim
had no merit. The court noted that while there
are approximately 250 such claims pending
before the court of claims, and that some of
the trial courts have found the claims to be
meritorious while others have not, this
decision is the first decision on the topic by an
appellate court.
In reaching its conclusion, the court stated
that to establish a claim of unlawful
confinement, the claimant must show the

Page 11

following: the defendant intended to confine
the claimant; the claimant was conscious ofthe
confinement and did not consent to the
confinement; and the confinement was not
otherwise privileged. The court ruled that the
claimants would not be able to show that the
confinement was not privileged because, "[a]
detention, otherwise unlawful, is privileged
where the confinement was by arrest under a
valid process issued by a court having
jurisdiction." In situations where individuals
were confined as a result of wrongfully
imposed post release supervision, the court
noted that the legal process was valid on its
face but questioned whether the "Court" (in
this case the Division of Parole [OOP]) had
jurisdiction over the person and subject
matter. With respect to the second prong of
the test, the court made a distinction between
acts which are in excess of the body's
jurisdiction, and acts which are preformed in
the clear absence of any jurisdiction, noting
that the former is privileged and the latter is
not.
To answer the question of whether DOP
had acted in excess ofits jurisdiction or in the
absence ofanyjurisdiction, the court looked to
the Court of Appeals decision in Matter of
Gamer v. NYS Dept ofCorrectional Services,
859 N.V.S.2d 590 (2008). There the Court
characterized DOCS's imposition ofa period
of post release supervision where a court had
not imposed it as "conduct in excess of
DOCS's jurisdiction." Thus, the Collins court
held, the imposition ofa period ofpost release
supervision by the Division of Parole was in
excess of its jurisdiction, not in the complete
absence of jurisdiction, and the act was
therefore privileged.
In further support of this conclusion, the
court noted 1) that at the time that PRS was
wrongfully imposed on the claimants, there
was case law holding that a period of
post release supervision was automatically
included in a sentence, even if the court did

PageU

not pronounce a period of post release
supervision, see e.g., People v. DePugh. 791
N.Y.S.2d 234 (llll Dep't 2005); and 2) that
under certain circumstances, DOCS and the
Division ofParole are authorized to clarify the
sentence ofa defendant without direction from
the sentencing court, see e.g., People ex reI.
Gill v. Greene, 875 N.Y.S.2d 826 (2009).
Finally, the court held that because of
legislation authorizing the re-sentencing of
individuals in Mr. Collins's position, the claim
did not appear to be meritorious because he
could not establish that the DOP's alleged
unlawful action had caused him any injury.
Thus, if the sentencing court had been alerted
to the fact that it had failed to impose a period
of PRS, the court would have imposed the
same five year period of PRS at the resentencing hearing that the DOP imposed.

VoL 20, No. 1 Winter 2010

In its decision, the court found that the
evidence supporting the imposition of the
condition was "quite inconsequential." There
was one incident where petitioner exhibited
scratches allegedly inflicted by his wife, but no
police report relating to the incident and no
order of protection or other legal mechanism
to insure the safety of the parties. While the
respondent countered this fact with the truism
that victims many times do not report their
abusers, the court found the truism, when
applied to this case - where the evidence of
abuse was slight - to be conclusory. The
court found that while supervision and
monitoring might have been justified, a
complete and total separation was arbitrary
and capricious and therefore vacated the
condition.

Spousal No Contact Condition
Found to Be Arbitrary and
Capricious
In Matter of Sabriel Lambertv v. NYS

Division of Parole, Index No. 16945/09,
(Supreme Court, Kings County Nov. 4,
2009), the petitioner challenged the
respondent's condition that he have no contact
with his wife while he was under parole
supervision. The Division of Parole (OOP)
imposed the condition after petitioner told his
parole officer that his wife was responsible for
the scratches on his face and petitioner's wife
told the parole officer that he had assaulted her
in the past and had taken drugs. Concluding
that the relationship between petitioner and his
wife was volatile, violent and dangerous to
both, the parole officer imposed a special
condition that petitioner have no contact with
his wife.

The Buffalo Office of Prisoners'
Legal Services has moved.
Their new address is:
Prisoners' Lega1 Services of New York
237 Main Street, Suite 1535
Buffalo, New York 14203
The facilities that are covered by the
Buffalo office are noted in the listing
on page 23 of this newsletter.

VoL 20, No. 1 Winter 2010

~..Iiiii.s.eiiio.teiiiD.C.in.g.ciiiiiasiiie.siiiiiiil
Court Permits Re-sentenciog
25 Years After Sentence Was
Originally Imposed
In 1986, Isaac Hudson was convicted of
two violent felonies and sentenced to 3113 to
10 years.
He was released to parole
supervision and in 1992 was re-arrested on
robbery charges. Mr. Hudson pled guilty and
was sentenced to 10 to 20 years.
At
sentencing, although questioned about the
issue, the District Attorney did not file a
predicate sentencing statement and the court
did not state that the sentence was concurrent
or consecutive to his first sentence.
When Mr. Hudson returned to DOCS'
custody, DOCS ran the sentences
consecutively. In response to advocacy by
Prisoners' Legal Services, DOCS agreed to
run the sentences concurrently and as a result,
Mr. Hudson was released from prison.
Following his release from prison, Mr.
Hudson filed a claim for wrongful confinement
for the period September 2005 - the date that
he was eligible for conditional discharge when
DOCS calculated his sentences as running
concurrently - and March 2007- when he was
released afterDOCS recalculated his sentence.
In April 2009, DOCS notified the
sentencing court that the sentence which it had
imposed on Mr. Hudson in 1992 was invalid
as a matter oflaw. DOCS informed the court
that it was bringing this to the court's
attention in 2009 because ofa recent Court of
Appeals decision - People v. Sparber, 859
N.Y.S.2d 582 (2008) - holding that there was
no statutory limit on a sentencing court's
authority to correct an invalid sentence.

Page 13

At
the re-sentencing hearing, the
defendant argued that Criminal Procedure
Law §440.40(1) provides that motions to resentence based on the failure to file a predicate
felony statement must be brought by the
district attorney within a year of sentencing,
citing People v. Medina. 826 N.Y.S.2d 26 (Isl
Dep't 2006). The court found that Medina
was not controlling law, as CPL § 440.40(I)
limits the authority of prosecutors to bring
motions to correct erroneous sentences; it
does not limit the court's inherent authority to
doso.
In response to other arguments raised by
the parties, the court found that even ifDOCS
did not alert the court to the erroneous
sentencing until after the defendant had filed
his lawsuit for damages for unlawful
confinement, the notification was not
vindictive in the sense contemplated by United
States v. Goodwin, 457 U.S. 368 (1982).
There the defendant claimed that the
prosecutor and court had exercised a
discretionary function - adding felony charges
- only after the defendant elected to exercise
his right to a jury trial. In Goodwin. the court
found that the presumption of vindictiveness
that attaches in such situations had been
defeated by objective infonnation and
circumstances showing that the district
attorney had not acted in bad faith or
maliciously. Here, the court found, it was not
engaging in a discretionary act. Rather, it was
addressing a statutorily mandated procedure
that had been ignored and omitted by the
prosecutor and sentencing judge.
The court also rejected the argument that
CPL §440.40 limited the court's authority to
correct an unlawful sentence when it provided
that the district attorney's authority to do so
was limited to the one year period following
imposition of sentencing. Rather, the court
held, the sentencing court has the inherent
authority to correct its own mistakes - where,
for example, the imposed sentence is not in

Page 14

accord with the plea agreement - and to
correct a defective sentence, such as the
defendant's sentence.
Finally, the court wrote, the defect in the
defendant's sentence was similar to the defect
which the Court of Appeals in People v.
Sparber. recognized was within the court's
inherent authority to correct.
Based on these holdings, the court directed
the district attorney to file the appropriate
second violent felony offender statement so
that the defendant could be arraigned on it,
adjudicated a second violent felony offender
and then be re-sentenced.

Miscellaneous State Cases
Inmate Entitled to 10% of
Award That Is Subject to Son
of Sam Law
After claimant Gordon, an inmate, agreed
to a $150,000 settlement of his medical
malpractice suit and the Court of Claims "so
ordered" the stipulation, the NYS
Comptrollers Office notified the NYS Crime
Victims' Board (CVB) ofthe settlement. The
cva notified the victims of Mr. Gordon's
crime and the victims informed the Board that
they intended to commence an action to obtain
the settlement funds, whereupon the CVB
sought a preliminary injunction enjoining
(stopping) the funds from being paid to the
respondent (Mr. Gordon). After ordering the
payment of counsel fees and other
disbursements, the court granted the
injunction. Respondent Gordon then moved
to compel payment of l001G of the net
settlement (the gross settlement reduced by
fees and disbursements).

VoL 20, No. 1 Winter 2010

Read together, Executive Law §632-a(3)
(the Son of Sam Law) and CPLR §5205(k)
provide that10% ofan award ofcompensatory
damages to a "convicted person" is exempt
from execution of a judgment obtained by a
crime victim pursuant to the Son ofSam Law.
The court however, denied Respondent
Gordon's motion, holding that these statutes
did not apply to Respondent because the funds
received were as a result ofa settlement rather
than a judgment.
On appeal, in Matter of NYS Crime
Victims's Board olblo Thompson v. Gordon.
887 N.Y.S.2d 283 (3d Dep't 2009), the
Appellate Division reversed the lower court's
decision. The court started by noting that
when interpreting a statute, a court should
attempt to effectuate the intent of the
legislature and to do this, it should first look at
the language of the statute itself. Here the
issue was whether, for the purposes of the
Legislation, a settlement which is so-ordered,
is encompassed in the term "judgment." The
court found that the terms "order" and
"judgment" are used interchangeably. The
court therefore concluded that the use of the
word judgment in the legislation did not reveal
a clear and unambiguous intent to exclude
from CPLR §5205(k) a "so ordered"
settlement of pending litigation.
In fact, the court said, the legislative
history revealed that the Legislature did not
intend to exclude so ordered stipulations from
the coverage of §5205(k). In discussing the
purpose of the legislation, the legislative
memorandum states that, "recognizing that
convicted criminals who are themselves
victims of tortious or wrongful acts should
have incentives to seek redress in the courts,
the bill includes a provision allowing them to
retain 10% of compensatory damages less
attorney's fees." Finally, the court noted, ifthe
petitioner's argument were to be accepted, the

VoL 20, No. 1 Winter 2010

result would be potentially to punish prisoners
who settle their claims rather than taking them
to trial. This result would be contrary to the
Statets public policy of encouraging the
expeditious settlement ofclaims. In addition,
the petitioner's position would also have a
negative effect on victims by reducing the
availability of potential funds by essentially
eliminating the settlement option from inmate
litigation. Thus, the court concluded, where
there is a court order that fully resolves the
claim and directs the payment of money, it
should be treated as tantamount to (the same
as) a judgment as that term is used in CPLR
§5205(k).
The respondent in NYS Crime VICtims

Board o/b/o Tho1llJ!son v. Gordon was
represented by Stephen N. DrilJch of
Franr,bltIJI Dralch, P. C

Funds Held By Surrogate's
Court Are Funds of a
Convicted Person
In NYS Crime Victims' Board v. Harris,
891 N.Y.S.2d 175 (3d Dep't 2009), the court
addressed the question of whether funds to
which the respondent (a prisoner) was entitled
prior to the enactment ofthe Son of Sam Law
are subject to that law's provisions. In 1995,
a trust was established for the benefit of Mr.
Harris. In 2008, in response to inquiries by
Mr. Harris, the Surrogate's Court informed
him of the existence of the account. While
Mr. Harris's petition for release of the funds
was pending in that Court, the NYS Crime
Victims' Board commenced a proceeding
pursuant to the Son of Sam Law (Executive
Law §632-a) seeking a preliminary injunction
prohibiting respondent from accessing the
funds until such time as the claims of
respondent's victims could be resolved. The
court granted the preliminary injunction and
Mr. Harris appealed.

PagelS

The Third Department held that the
preliminary injunction was rightfully granted.
It was not persuaded by Mr. Harris's argument
that because he became entitled to the funds
before the Son of Sam Law was enacted, the
funds should not be subject to the provisions
of that law. In rejecting the respondent's
argument, the court first noted that the 200 I
amendments to the Son of Sam Law broadly
defined "funds of a convicted person" as "all
funds and property received from any source
by a person convicted of a specified crime"
and excluded only four types offunds. Funds
obtained from a trust account were not among
the four excluded types of funds. Thus, the
court held, funds held by the Surrogate's
Court are "funds of a convicted person/'
which may be received by respondent upon an
order of the Surrogate's Court and are
properly subject to the provisions of the Son
of Sam Law.

Challenges to the Denial of
Grievances
Increasingly, prisoners are using Article 78
proceedings to challenge the denials of
grievances. We report here on three such

cases.
Reliliously and MedicaD! Based Reguest
for Strict Vgetarian Diet
Petitioner Patel brought an Article 78
proceeding to challenge the denial of his
grievance requesting fully vegetarian meals.
According to DOCS, petitioner was given a
vegetarian diet, known as the religious
alternative diet. The petitioner, however,
grieved the diet because some meals included
fish, eggs or chicken, which he does not eat
for religious reasons. In its response, DOCS
submitted an affidavit from the Assistant
Director of Nutritional Services, who stated
that if the petitioner eats the foods in the
religious alternative menu, but does not eat the

Page 16

poultry, fish and eggs, he will still be eating a
nutritionally adequate diet. The respondent
also submitted an affidavit from a physician's
assistant saying that a review of petitioner's
medical records showed that there was no
medical reason for changing petitioner's diet.
Accordingly, the court held in Matter ofPatel
v, Fischer, 889 N.Y.S.2d 113 (3d Dep't
2009), the record supported a finding that
petitioner is being provided with a diet that is
nutritionally adequate without requiring him to
compromise his religious beliefs or his health,
Based on this conclusion, the court held that
the denial of the grievance cannot be
considered irrational or arbitrary and
capricious.

Hermetically Sealed Containen
In Matter of Frejomil v. Fischer, 891
N.Y.S.2d 208 (3d Dep't 2009), the petitioner
challenged a decision relating to a grievance
that he had filed seeking clarification of
Directive 4911, That Directive states that "all
items except for fresh fruits and vegetables
must be received commercially packaged in
airtight hermetically sealed containers
impervious to external influence (e.g" sealed
cans, heat sealed plastic bags, vacuum sealed
pouches, vacuum sealed plastic jars, glue
sealed paper or cardboard boxes with the
inside product being hermetically sealed,
etc.).7t As examples of the items that he had
been denied, petitioner Frejomil attached
photographs of what he described as plastic
jars ofTasters Choice coffees, with glue sealed
foil. He challenged the DOCS interpretation
of the Directive, which required that items
beneath heat sealed foil must also be in a
hermetically sealed wrapping. The grievance
was denied by CORC (Central Office Review
Committee) which interpreted the Directive as
requiring that items inside ofglue sealed paper
(or glue sealed cardboard boxes) be
hermetically sealed.

VoL 20, No.1 Winter 2010

The court stated that to prevail in his
Article 78, the petitioner must demonstrate
that CORC's determination was irrational or
arbitrary and capricious. It framed the issues
thus: 1) Whether the products contained in
glue sealed paper containers require that the
inside product be further hermetically sealed
and 2) Whether products contained in other
types of containers that are already
hermetically sealed, i,e., vacuum sealed plastic
jars, require the inside product to be further
hermetically sealed.
The court found that the clear intention of
the Directive was to ensure that any package
received by an inmate has some type of
hermetic seal put in place by the manufacturer
to insure that the product has not been
tampered with prior to its introduction into the
facility. Thus, with regard to products
contained in glue sealed paper containers such as candy bars, cookies and potato chips,
the determination by CORC is rational,
inasmuch as this type of packaging does not
render the inside products impervious to
external influence.
The court found however, to require a
product packaged in a vacuum sealed plastic
jar or similar container, that is hermetically
sealed using glued paper or foil, to have its
inside product also hermetically sealed would
be redundant and, therefore, represents an
irrational interpretation of the Directive.
Consequently, the court held, CORC's denial
of that part of the petitioner's grievance was
arbitrary and capricious.

Court Finds Removal From ASAT
Was Not Arbitrary or Capricious
In Matter of Rivera v. Fischer, 888
N.Y.S.2d 307 (3d Dep't 2009), the court
considered the issue of whether CORC's
denial of a grievance claiming that I)
petitioner's removal from ASATwas wrongful

VoL 20, No. 1 Winter 2010

and 2) petitioner's placement, after his
removal, at the bottom of the waiting list for
entry into ASAT was improper. As with the
other two cases discussed above, the court
stated that it could only reverse CORC's
decision if the decision was irrational or
arbitrary and capricious.
Here, petitioner alleged that he was
removed from ASAT and improperly placed at
the bottom ofthe waiting list for re-entry into
the program after he filed grievances against
the staff. DOCS's records, submitted to the
court, showed that while petitioner was in
ASAT, he received three behavior contracts in
one month and was put on probation. The
next month, he received two behavior
contracts and as a consequence, was removed
from the program.
The court found that the record
demonstrated that petitioner was removed
from ASAT due to his failure to comply with
the rules, and not because he filed grievances
against the staff Likewise, the court found
that because the program guidelines mandate
that when an inmate has received two or more
unsatisfactory discharges, as the petitioner
had, application for re-admission can be made
after 90 days, and the inmate's name will be
placed on the bottom of the list. Thus, the
court ruled, CORC's denial ofthe petitioner's
grievance was not irrational or arbitrary and
capnCtous.

Court Finds Action Seeking
Damages for Wrongful
Confinement is Time Barred
Plaintiff Jackson sued the Sheriff of
Schenectady County for failure to perform a
statutory duty - certifYjail time - as a result of
which plaintiffwas held in prison for 9 months
more than he should have been. In Jackson v.
Buffardi. 887 N.Y.S.2d 733 (3d Dep't 2009),
the Appellate Division aflinned a lower court

Pagel'

decision finding that the action was time
barred. The court found that the one year
statute of limitations began to run either from
the time that the sheriff should have certified
the jail time, i.e., when Plaintiff Jackson was
placed in DOCS custody, or when Plaintiff
Jackson began to serve the time beyond when
he would have been released had the jail time
been properly credited. Because the plaintiff
failed to file his claim within one year ofeither
date, his action was time barred.
In PlaintiffJackson's case, he was held in
the Schenectady County Jail on federal and
state charges from January 200 I through
approximately March 14, 2003, when he pled
guilty to the state charges and the federal
charges were dismissed. He was placed in
DOCS custody in April 2003, and brought an
Article 78 proceeding that led to an order
requiring the Schenectady County Sheriff to
credit him with 794 days of jail time. As a
result of the credited time, plaintiff was
released in October 2004, 9 months later than
he would have been released had the time been
properly credited before he brought the
Article 78. About a year after he was released,
plaintifffiled the suit for damages. The court
held that whether the time was measured from
plaintiff's admission to DOCS or when he
began to be damaged by the failure to credit
the time, more than a year had passed from
both of those dates when plaintiff filed his
complaint and thus it was time barred.

County Did Not Make Diligent
Effort to Strengthen Father's
Relationship - Court Refuses to
Terminate Parental Rights
Mr. D. was in prison when his son,
Preston, was born. Preston, who is now 5
years old, was placed in foster care with
Lawrence and Vicky B. when he was one.
Preston's foster parents petitioned to adopt

Page 18

him, however, when the court notified Mr. D.,

who was by then out ofprison, he opposed the
application, arguing that the Department of
Social Services had failed to make diligent
efforts to strengthen and encourage Mr. D.'s
relationship with his son while Mr. D was in
prison, and thus there was no basis for finding
that he had pennanently neglected his son.
In Lawrence B. v. Peter D., 11120/09
N.Y.L.J. 1, (col. 4), the court found that while
he was in prison, Mr. D. had done everything
in his power to plan for his son's future. He
had written the Department ofSocial Services
(DSS) on a weekly basis seeking assistance in
arranging visits, expressing a desire to take
parenting classes, and stating that he planned
on raising his son when he was released from
prison. He also proposed to DSS that Preston
be placed with his mother (Preston's
grandmother), whom DSS considered to be a
viable alternative. A DSS caseworker three
times brought Preston to visit with Mr. D.
while he was in prison. Since his release in
2009, Mr. D. had visited Preston weekly. Mr.
D. is employed, has an apartment and hopes to
regain custody of Preston in the near future.
The court noted that Social Services Law
§384-b defines a pennanently neglected child
as one whose parent "has substantially and
continuously or repeatedly failed to maintain
contact with or failed to plan for the child's
future, notwithstanding the agency's diligent
efforts to encourage and strengthen the
parental relationship." The threshold issue,
the court said, is whether DSS made diligent
efforts to encourage the relationship between
the parent and the child. Here, the court
found, DSS had not shown that it had made
such an effort. There was a year when
Preston's caseworker failed to respond to any
of Mr. D.'s letters, during other periods,
corr~~po~den~ from DSS was "sporadic at
best, while phone contact was non-existent
and Mr. D had received only one update on hi~

VoL 20, No. 1 Winter 2010

son's development. While acknowledging that
the foster parents had a strong bond with
Preston, the court ruled that there was
insufficient proof of parental neglect and that
therefore Mr. D.'s parental rights could not be
terminated.

Court Grants Order of
Protection Relating to Conduct
While in Prison
In Matter of Amy SS. v. John SS., 891

N.Y.S.2d 178 (3d Dep't 2009), the respondent
appealed from a Famity Court decision
determining that he had committed the crime
ofaggravated harassment in the second degree
by sending two letters to the petitioner (his
wife) and causing a former inmate to send her
a third letter. The respondent argued that
where the letters that he sent were not
threatening, and there was no evidence
showing a connection between him and the
former inmate, the court's determination was
not supported by the preponderance of the
evidence.
The Appellate Division affirmed the Famity
Court decision. The court found that contents
of respondent's letters were alarming and
justified a belief that they were sent with the
intent of alarming and annoying her. In one
letter respondent wrote that he could put
petitioner's fiance away and that if she ever
lied to him, she will have the worst nightmares
she had ever had. The court found that the
letters had an unmistakably ominous tone and
provided ample support for the Family Court's
decision.
With respect to the letter from the former
inmate, the Appellate Court found that it was
impossible to ignore that this individual and
respondent knew each other and that it was
obvious the two had had contact with each
other before the fonner inmate wrote the
petitioner. His letter, when viewed in context

VoL 20, No.1 Winter 2010

with the letters that respondent admitted to
having sent, established by a fair
preponderance of the credible evidence that
respondent had committed the crime of
aggravated harassment in the second degree.

Federal Cases
Wrongful Imposition of PRS:
Federal Due Process Claim
Survives; State Claim of
Wrongful Imprisonment
Dismissed
Omar
Santiago brought claims for
damages on 1) a state wrongful imprisonment
theory and 2) a federal theory that his 1411I
Amendment rights were violated when he was
arrested and jailed for a violation of
administratively imposed post release
supervision. In response, the defendants DOCS Central Office personnel - moved to
dismiss the complaint, raising, among other
rejected defenses, that these claims were timebarred, that the defendants were entitled to
qualified immunity, and that the complaint
failed to state a claim upon which relief could
be granted.
The facts underlying these claims were that
in 2001. Mr. Santiago had been sentenced to a
determinate term of 3 years. Although not
imposed by the court. upon his release in 2004.
plaintiff was also given a 5 year term of post
release supervision. In 2008. Mr. Santiago
was arrested for violating the terms of his
PRS. While these charges were pending, he
was returned to the sentencing court for resentencing pursuant to Correction Law
§60 I-d. "In the interests of justice and

Page 19

equity." the court declined to impose a period
of PRS. Shortly thereafter, having been in jail
for approximately three months, Mr. Santiago
was released pursuant to a writ of habeas
corpus. He then filed this complaint.
In reaching its decision, the court provided
some relevant background. First. it noted that
in 2006, in Early v. Murray. 451 F.3d 71
(2006). the Second Circuit had found that the
DOCS's policy of administratively imposing
post release supervision when it had not been
judicially imposed was unconstitutional.
Second. in 2008. in People v. Sparber, 859
N.Y.S.2d 582 (2008) and Gamer v. NYS
DOCS. 858 N.Y.S.2d 590 (2008), the New
York State Court of Appeals found that this
practice was contrary to New York State law
mandating that sentencing is a uniquelyjudicial
responsibility, and authorizing re-sentencing in
Mr. Sparber's case. In response to People v.
Sparber, the NYS Legislature enacted
Correction Law 601-d. thereby codifying the
re-sentencing procedure
established in
Sparber.
Timeliness of Complaint
With respect to the 1983 claim, the court
started its analysis by noting that there was a
3 year statute of limitations for such claims.
The court stated that while §1983 claims
generally accrue when the plaintiff has reason
to know of the injury which is the basis of his
claim, under Heck v. Humphrey, 512 U. S. 477
(1994). a §1983 claim for damages attributable
to an unconstitutional conviction or sentence
does not accrue until the conviction or
sentence has been invalidated. Plaintiffargued
that the operative date from which the statute
of limitations began to run was the date upon
which the period ofPRS was invalidated by the
sentencing court.
The defendants argued that Heck v.
Humphrey did not apply because the Plaintiff
was challenging only the procedure used to

Page 20

sentence him, not the actual sentence. They
also argued that the date upon which the
sentencing court refused to re-sentence Mr.
Santiago should not be considered the date
upon which the claim accrued, as refusing to
re-sentence was not an invalidation of
sentence. The defendants argued that the date
that the claim accrued was the date upon
which Mr. Santiago became aware that DOCS
had imposed the period of PRS. Under the
defendants' theory, the statute of limitations
would have run three years from when Mr.
Santiago was released to post release
supervision - April 4, 2007 - a date which had
passed by the time that Mr. Santiago was
arrested for the violation ofPRS.
The court rejected the defendants'
arguments. It held that while technically the
sentencing court's refusal to re-sentence was
not a finding that the PRS enhanced sentence
was invalid, its refusal to re-sentence was
premised on the SparberlEarley decisions
finding the practice unconstitutional. Indeed,
in March 2009, in Scott v. Fischer, 2009 WL
928195 (S.D.N.Y. Mar. 30, 2009), the court
rejected the argument made by defendants in
Santiago (that the statute oflimitations should
run from the day upon which the plaintiff is
first released to illegally imposed PRS),
holding that the statute of limitations was
tolled (did not begin to run) until the date of
plaintiff's habeas relief Likewise, the court in
Santiago rejected the defendants' arguments,
holding that the claim accrued on the date that
the habeas court ordered his release.
With respect to the state claim of false
imprisonment, the court found that intentional
torts, including the tort of false arrest, are
governed by a one year statute of limitations.
A claim of false arrest accrues when the
individual is detained pursuant to legal
process. For Plaintiff Santiago, this occurred
in September 2008, when he was arrested for
violating the conditions ofhis illegally imposed
PRS. As his claim was filed in April 2009, the
court found that it was not time barred.

Vol. 20, No.1 Winter 2010

Qualified Immunity
Qualified immunity is a doctrine which
protects defendants from liability where,
although the court finds that their conduct
violated an individual's constitutional rights,
the court also finds that the rights involved
were not "clearly established statutory or
constitutional rights of which a reasonable
person would have known." To determine
whether the defendants are protected by
qualified immunity, the court must decide
whether the plaintitrhas proven three matters:
I. Whether the facts, when viewed in
the light most favorable to the plaintiff,
show that the defendants' conduct
violated a constitutional right;
2. Whether the right was clearly
established in a given factual context or
situation;
3.
Whether it was
objectively
reasonable for the defendant to believe
that his conduct did not violate the law.
Here the court found that Mr. Santiago's
complaint accused the defendants of violating
the 14lb Amendment's prohibition against
depriving individuals of liberty without due
process oflaw by promulgating, implementing,
enforcing and/or failing to rectify DOCS's
policy of administratively imposing PRS
despite the Second Circuit's finding in Earley
v. Murray that the policy was unconstitutional.
Assuming that these allegations are true, the
court found, a constitutional right has clearly
been violated.
Turning to step 2, the court stated that a
right is "clearly established" if " the contours
of the right ... [are] sufficiently clear that a
reasonable official would understand that what
he is doing violates the right." Normally, a

VoL 20, No.1 Wiater 2010

controlling precedent of the [US] Supreme
Court, the particular circuit, or the highest
court in the state is necessary to clearly
establish federal law. According to the court,
the date upon which the right would have
needed to be clearly established was the date
upon which Mr. Santiago was arrested and
incarcerated for the violation of PRS September 2008. As ofthat time, a court with
the power to clearly establish federal rights had
held that administratively imposed PRS
violated due process: the decision in Earlm' y.
Murray was issued in June 2006. Because at
the time of Mr. Santiago's arrest there existed
a ruling from the Second Circuit, defendants
cannot argue that the federal right at issue was
not sufficiently clear at the time oftheir alleged
conduct.
Even if the right at issue was clearly
established, an officer is still entitled to
qualified immunity if officers of reasonable
competence could disagree on the legality of
the action at issue in its particular factual
context. Defendants argued that because until
June 2008, when the Court ofAppeals decided
Sparber and Gamer, there was a) a statute,
Penal Law §70.45(1), providing that each
determinate sentence also includes, as a part
thereof, an additional period of PRS, b)
numerous Appellate Division cases upholding
this statute, and c) they relied on a
presumptively valid state statute, their actions
were objectively reasonable. The court did not
agree with the premise of this argument. It
stated that a presumptively valid state statute
only provides immunity until the statute is
declared unconstitutional. Because Earley v.
Murray. the decision finding the process of
administratively imposing PRS to be
unconstitutional, had been issued in June
2006, the court rejected the defendants'
arguments. For this and several other reasons,
the court found that by September 2008 the
right in question was defined with reasonable
clarity and a reasonable defendant should have

Page 21

understood that the plaintiff should not be
arrested for a PRS violation without first
having been brought before the court for resentencing. Accordingly, the court rejected
defendants' qualified immunity defense.

Failure to State a Claim
According to Ashcroft v. Igbal. 129 S.Ct.
1937 (2009), to survive a motion to dismiss,
the claim must contain sufficient factual matter,
which if accepted as true, would state a claim
to relief that is plausible on its face. To meet
this standard, the Second Circuit, in Igbal v.
HastY. 490 F.3d 143, (2d Cir. 2007), has held
that a pleader must amplify (add detail to) a
claim with some factual allegations in those
contexts where such amplification is needed to
render the claim plausible.

State Claim of False Arrest
To state a claim for false arrest, the plaintiff
must allege four elements:
1. The defendant intended to confine the
plainti1f;
2. The plaintiff was conscious of the
confinement;
3. The plaintiff did not consent to the
confinement; and
4. The confinement was not otherwise
privileged.
Only the final element was at issue in Mr.
Santiago's case. According to state law,
privilege arises when the confinement is based
on an arrest warrant that is valid on its face,
issued by a court havingjurisdiction. An arrest
warrant based on a facially valid warrant,
which results in an unlawful detention, does
not give rise to an action for false arrest even
though the warrant was erroneously or
improperly issued.
Here the court found that the plaintiff did
not allege that the warrant was not valid but
rather claimed that the defendants were not
privileged to arrest him because they lacked

VoL 20, No. 1 Winter 2010

Page 22

the authority to impose PRS in the first place.
This, the court held, was a fonnulaic recitation
ofthe elements ofa false arrest claim, and was
insufficient to survive a motion to dismiss.
Due Process Claim
To state a claim under § 1983, a plaintiff
must allege 1) that the challenged conduct was
attributable at least in part to a person acting
under color of state law, and 2) that such
conduct deprived the plaintiff of a right,
privilege or immunity secured by the
Constitution or laws of the United States.
Additionally, personal involvement of the
defendants in the alleged constitutional
deprivations is a prerequisite to an award of
damages.
Plaintiff Santiago alleged that Defendants
Brian Fischer and Anthony Annucci were
policy makers with respect to DOCS's
decision to administratively impose PRS and
that they are responsible for ensuring that
DOCS personnel obey the Constitution and the
laws ofthe United States. This allegation, the
court held, is sufficient to establish (for the
purposes of a motion to dismiss) that the
challenged conduct was attributable at least in
part to a person acting under color of state
law.
In addition, Plaintiff further alleged that
Fischer and Annucci promulgated (put into
effect), implemented, enforced and/or failed to
rectify a policy, practiceand custom mandating
the administrative imposition and enforcement
ofPRS on a person without authorization from
the sentencing court. The court found that
because the plaintiff was unquestionably
imprisoned after administrative imposition of
PRS was struck down, the plaintiff's
allegations permit the court to infer that he
was deprived of a right secured by the
Constitution or laws ofthe United States. The
court went on to hold that the same allegations
also sufficiently pled personal involvement of
Defendants Fischer and Annucci.

Based on these findings, the court found
that Plaintiff Santiago's complaint against
Defendants Fischer and Annucci contained
sufficient factual matter, which if accepted as
true, state a claim to reliefthat if plausible on
its face.

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VoL 20, No. 1 Wiater 2010

II

PLS OFFICES AND THE FACILITIES

Page 23

II

Requests for legal representation and all other problems should be sent to the local office that covers
the prison in which you are incarcerated. Below is a list identifYing the prisons each PLS office
serves:

ALBANY, 41 State Street, Suite M112, Albany, NY 12207
Prisons served: Arthurkill, Bayview, Beacon, Bedford Hills, Mt. McGregor, Summit Shock,
CNYPC, Coxsackie, Downstate, Eastern, Edgecombe, Fishkill, Fulton, Great Meadow, Greene,
Greenhaven, Hale Creek, Hudson, Lincoln, Marcy, Midstate, Mid-Orange, Mohawk, Oneida,
Otisville, Queensboro, Shawangunk, Sing Sing, Sullivan, Taconic, Ulster, Wallkill, Walsh,
Washington, Woodbourne.

BUFFALO, 237 Main Street, Suite 1535, Buffalo, NY 14203
Prisons served: Albion, Attica, Buffalo, Collins, Gowanda, Groveland, Lakeview, Livingston,
Orleans, Rochester, Wende, Wyoming.

ITHACA, 114 Prospect Street, Ithaca, NY 14850
Prisons served: Auburn, Butler, Camp Georgetown, Monterey Shock, Cape Vincent, Cayuga,
Elmira, Five Points, Southport, Watertown, Willard.

PLATTSBURGH, 121 Bridge Street, Suite 202, Plattsburgh, NY 12901
Prisons served: Adirondack, Altona, Bare Hill, Chateaugay, Clinton, Franklin, Gouverneur, Lyon
Mountain, Moriah Shock, Ogdensburg, Riverview, Upstate.

PRISONER LEGAL SERVICES OF NY
114 PROSPECT STREET
ITHACA, NY 14850
CHANGE SERVICE REQUESTED

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