New York Criminal Attorney Blog

Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York McKinney's Statutes § 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)
Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.

Indeed, the New York State Legislature has in fact enacted a law prohibiting a non-attorney from appearing as an attorney except is certain delineated circumstances. New York Judiciary Law § 478, titled “Practicing or appearing as attorney-at-law without being admitted and registered” makes it unlawful for those who have not “been duly and regularly licensed and admitted to practice law in the courts of record of this state” from acting or holding themselves out as attorneys.

The same statute however, goes on to specify certain categories of non-attorneys that may otherwise act in an attorney like capacity despite the fact that they are not duly admitted to practice in the State of New York. For example, law students who have completed two semesters of law school or who are awaiting their bar exam results may, under the supervision of the Legal Aid Society or other government agency such as the District Attorney’s Office, partake in lawyerly activities otherwise prohibited for non-lawyers. Jud. Law § 478

Continue reading "WHY IS THE TROOPER OR OFFICER WHO ISSUED YOUR NEW YORK TRAFFIC TICKET ALSO PROSECUTING IT? PART IV – UNDER THE DOCTRINE OF “INCLUSIO UNIUS EST EXCLUSIO ALTERIUS”, THE LEGISLATURE’S SPECIFIC INCLUSION OF SOME NON-ATTORNEYS WHO MAY ACT AS AN ATTORN" »

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The simple fact is, the practice of the issuing officer prosecuting their own New York traffic tickets is allowed only because of an outright Judicial hijacking by the court’s of the State Legislature’s power. Generally, the New York State Constitution establishes that the Legislative Branch (consisting of the New York State Assembly and New York State Senate) enact the laws (with the consent of the governor) (see NY Const. Art. 3, § I).

The New York State Executive branch enforces and carries out the laws enacted by the New York State Legislature (See NY Const. Art. IV) and the New York State Judiciary branch interprets and applies the laws enacted by the Legislature (NY Const. Art. VI). It is not the function of the Executive and/or the Judiciary branches to create laws.
This division of powers and responsibilities is commonly known as the “Separation of Powers” doctrine most of us learned about early in our scholastic careers. The “Separation of Powers” doctrine is a bedrock principle in this country as well as in New York. Each branch of government should be free to carry-out its lawful duties free from the improper interference from the other branches of government. New York State Inspection, Sec. and Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233, 485 N.Y.S.2d 719, 475 N.E.2d 90 (1984).

Therefore, whether they agree with the law or not, law enforcement (which is part of the Executive Branch) must enforce a law duly enacted by the Legislature. For example, it’s not for law-enforcement to decide that drugs should be legal and refuse to enforce our drug laws. Similarly, absent some constitutional infirmity, judges are bound to impose and interpret the laws as written by the Legislature whether they agree with them or not.

Applying the Separation of Powers Doctrine to attorney admissions to practice law in New York, it is the New York State Legislature that has the unrestricted power to determine the procedures and by what evidence the qualifications for admission as an attorney to the New York State Bar should be ascertained. In re Cooper, 22 N.Y. 67 (1860). In fact, in Cooper, the Court of Appeals noted that the authority and power to admit attorneys to practice in the State of New York is not an inherent power of the courts but is entirely subject to legislative action.

Continue reading "WHY IS THE TROOPER OR OFFICER WHO ISSUED YOUR NEW YORK STATE TRAFFIC TICKET ALSO PROSECUTING IT? PART III – A BRIEF OVERVIEW OF THE THREE BRANCHES OF NEW YORK STATE GOVERNMENT AND THEIR RESPECTIVE ROLES" »

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As I explained in a previous blog, the practice of officers prosecuting the New York traffic tickets they issue was upheld by the New York Court of Appeals case; People v. Soddano. Soddano and it’s holding that officers may act as prosecutors for their tickets is flawed for several glaring reasons. First, the practice violates a principle as old as trials themselves - a witness may not act as an advocate at a trial. In other words, if the lawyer is a witness in a case, he may not act as one’s lawyer in that same case. For example, if I witness a car accident, I am forbidden from representing someone involved in that car accident. This is commonly referred to as the “Witness-Advocate Rule”. In fact, this ancient rule is codified in the Disciplinary Rules that attorneys in this State are obligated to follow. See N.Y.Ct.Rules, § 1200.21(c); (DR 5-102(c).

This is a very basic rule that most sixth-graders could comprehend once it was explained to them. If you are a witness in the case, you can’t represent someone in the case. Therefore, in a traffic ticket case, the issuing officer is not only a witness; he or she is usually the complaining, and sole witness in the case. Accordingly, under the “Witness-Advocate Rule”, the officer should be barred from representing the People. The officer should be barred from acting as an advocate in the very case he or she is the main witness. Very simple, right? Wrong!

You see, in most New York local criminal courts, “up is down” “down is up” “left is right” “right is left” and the Constitution and Due Process are mere annoyances that are simply cast aside. When I first became an attorney, I thought I was missing something. I became hesitant to even open my mouth in court because apparently in local criminal court, words have different meanings and statutes are interpreted and applied without regard to the plain wording of the law. I came out of law-school thinking the judges were the most wise and legally educated individuals in the equation. Quickly, however, I realized that I wasn’t misreading the law; I came to learn that the law doesn’t matter. It’s that simple – THE LAW DOESN’T MATTER. The extent to which most local criminal court judges will contort the law to ensure conviction and accommodate the prosecution is mind boggling.

How the courts justified officers prosecuting the tickets they issue when such conduct clearly violates the “Witness-Advocate Rule” is a perfect example of the contorted reasoning that courts will employ to justify improper prosecutorial misconduct and constitutional violations. In People v. Pappas, the Appellate Term held that the “Witness-Advocate Rule” didn’t apply to officers who prosecuted their own tickets because they are not attorneys and therefore are not bound by the Disciplinary Rules that attorneys must follow. 19 Misc.3d 140(A)(2008).

The court’s reasoning in Pappas is flawed. If the officers are not attorneys, they shouldn’t be prosecuting cases. By allowing officers to act as attorneys without being bound by the rules of attorney conduct removes a layer of protection designed to protect the public and ensure that those who practice law are fit to do so and comply with strict standards of conduct. It also puts an attorney representing a defendant at a disadvantage. Indeed, the defense attorney’s adversary (the officer) is not bound by the rules of attorney conduct. By allowing officers to prosecute their own tickets, without regard to the rules of attorney conduct, the Courts have created an unequal playing field. If the officer can violate the attorney Disciplinary Rules prohibiting a witness from representing a party; what other attorney Disciplinary Rules can the officer violate?

As I discuss in my next blog, the Legislature has indicated where non-attorneys may act as prosecutors and police officers are not one of the non-attorney classifications empowered by the Legislature to act as prosecutors.

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The answer to this question is fairly simple; when it comes to New York traffic violations, the Courts of New York State have allowed deeply rooted judicial principles founded on fairness to be disregarded. As I said in a previous blog, far too many judges have no apparent concept of the presumption of innocence and proof of guilt beyond a reasonable doubt. This fact is more prevalent in traffic court where, in most (but not all) courts, if a traffic violation actually goes to trial, the guilty outcome is a foregone conclusion. The trial, sadly, is a rubberstamp process and the rubberstamp says “Guilty”.

The New York criminal justice system particularly as it pertains to lower level offenses is designed for speed. Some New York courts handle hundreds of tickets per day; others handle dozens per day. Needless to say, fair trials are not on the top of the judge’s list of things to do. In my opinion the desire to “move cases” has eroded our rights to a fair trial in New York traffic court. A prime example of placing the need to “move cases” over the rights of defendants is the practice of having the police officer who issued the ticket both plea bargain the ticket and if necessary, prosecute the ticket. This practice has been condoned by the highest court in New York. See People v. Soddano, 86 N.Y.2d 727, 631 N.Y.S.2d 120 (1995) where the New York Court of Appeals held that officers may, upon a proper delegation from the duly elected District Attorney, prosecute the traffic tickets they issue. The Court acknowledged that the elected county District Attorneys are ultimately responsible for all prosecutions in their particular county (See County Law § 700) but held that the County District Attorneys could properly “delegate” the authority to prosecute traffic infractions to the issuing police officers.

In reality, I doubt the officers have any formal delegation of authority from the elected District Attorney to prosecute their own tickets. Tilem & Campbell handles hundreds of traffic tickets each year and I only recall one time where a local village prosecutor actually presented a written delegation of authority from the elected District Attorney allowing that local prosecutor to prosecute traffic violations within that village. In fact, if you were to ask the issuing officer under what authority he was acting as prosecutor, he or she would most likely have no idea what you were talking about. Most police officers probably learned as rookies that they negotiate and/or prosecute their own tickets. It is in reality, a matter of custom. Ask a local judge to dismiss or inquire as to what delegation of authority the officer has to act as prosecutor and most (not all) local court judges will look at you like you are speaking an unknown foreign language. That’s the reality of New York traffic court.

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So your New York Criminal case is heading to jury selection. At jury selection both your criminal defense attorney and the prosecutor will have an opportunity to question potential jurors chosen from the jury pool. (Jury selection itself will be discussed in a later blog). How is the jury pool assembled? Where does the commissioner of jurors for the county your case is be tried in get the names of people to summon for jury duty?

Potential jurors’ names are selected from such lists as voter registration, drivers’ license holders, registered motor vehicle owners, tax payers, those on public assistance, those collecting unemployment and/or those who have volunteered for jury duty. NY Jud. Law § 506. Therefore, that old-time belief that if you don’t vote you won’t be chosen for jury duty is no longer the case. Because one might be discouraged from voting for fear of being selected for jury duty does violate one’s right to vote. Marcus v. Levin, 198 A.D.2d 214, 603 N.Y.S.2d 323 (2nd Dept. 1993).

From the above mentioned lists, the commissioner of jurors randomly selects the names of potential jurors. This random selection may be done mechanically or by any other method to ensure random selection. NY Jud. Law § 507. The randomly selected individuals will make up the jury panel from which your jury will ultimately be selected.

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How jury pools are chosen in a New York misdemeanor cases depends on what type of court your case is in. Section 2012 of New York's Uniform District Court Act, New York's Uniform City Court Act or of New York's Uniform Justice Court Act, prescribes how jury panels are chosen in each of the aforementioned courts. In the New York City Criminal Court, the jury pool or panel is chosen in the same manner as in the Supreme Court in counties within cities having populations of one million or more.
When one reviews Section 2012 of the aforementioned acts, one realizes the section is not very enlightening. Both the New York State District Court Act and the New York State City Court Act merely tell us that jurors may be summoned as prescribed by the rules of the appellate department in which the particular court sits. So in reality, to determine how a jury pool is selected in a District or City Court we first turn to the CPL 360.10(2) which directs us to Section 2012 of the District or City Court acts as the case may be. After we look up Section 2012 in either act, it directs us to the appellate division rules for the department in which the particular city or district court sits. Now you know why lawyers like to get paid by the hour. It’s as if these statutes and rules were written by 3 different people who had no idea what the others were writing.
Section 2012 of the Uniform Justice Court Act is evening less enlightening bordering on comical. This section simply informs us that the jury panel in Justice Court trials is to be selected in accordance with the rules. What?! What Rules?! This is really comedic. Therefore, if you are going to trial in a local Justice of Village Court, the jury panel will be selected in accordance with the Rules – whatever they may be.
In reality, the New York State Judiciary Law is where we find the rules and procedures pertaining to the selection of the jury panel. Recall, it is the jury panel that your actual jury will be selected from. It is the policy of New York State that all litigants have a right to grand and trial juries (referred to as petit juries) randomly assembled from a fair cross-section of the community in the county or other local government subdivision where the court in which the trial is to take place is located. It is also the policy of this State that all eligible citizens have an opportunity to serve on grand and trial juries and in fact are obligated to when summoned unless otherwise excused. Jud. Law. § 500.
The jury panel is selected from a cross-section of eligible jurors drawn from the community where the crime was committed – not where the defendant lives. People v. Kellerman, 102 A.D.2d 629, 479 N.Y.S.2d 815 (3rd Dept. 1984). The panel of prospective jurors should reasonably represent a fair cross section of the community in which the trial is to take place. People v. Guzman, 89 A.D.2d 14, 454 N.Y.S.2d 852 (2nd Dept. 1982). However, there is not constitutional or statutory right requiring the trial (petit) jury be reasonably representative of the community in which the trial is to take place. Only the jury pool that the trial jury is chosen from need be reasonably representative of the community. People v. Moss, 80 Misc.2d 633, 366 N.Y.S.2d 522 (1975).
One way of knowing if the jury pool in a particular community is representative of the community in general is research the demographics of that community. In the pretrial conference, your attorney should inquire as to the make up of the jury panel. Your attorney should ask for a hearing on the manner of selection of the jury pool if an identifiable group is underrepresented. If your case is approaching jury selection and you have questions about the process, feel free to contact Tilem & Campbell for a free consultation.

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The order of proceeding in a jury trial in a New York State local criminal court is the same as those in a jury trial in a superior court when one is charged by indictment. CPL § 360.05. Therefore, the order of a jury trial in local criminal court is guided by CPL § 260.30. See CPL § 360.05.
The order of a jury trial in New York local criminal courts is as follows:
1. A jury must be selected and then sworn in. CPL § 260.30(1)
2. The judge must give preliminary instructions to the selected and sworn jury. CPL § 260.30(2)
3. In a jury trial, the People must then deliver an opening statement. CPL § 260.30(3).
4. The defendant may, if he or she so chooses, deliver an opening statement. CPL § 260.30(4).
5. The People must then offer evidence in support of the charge or charges in the information. CPL § 260.30(5).
a. If the People fail to adequately allege in their opening statement that defendant committed each element of the offense charge, the case should be dismissed. People v. Thomas, 21 A.D.3d 643, 799 N.Y.S.2d 653 (3rd Dept. 2005)
6. Next, the defendant may, but is not obligated to, offer evidence in his or her defense. CPL § 260.30(6).
7. If the defendant presents a defense, the People may then present rebuttal evidence. If the People so choose to present rebuttal evidence, the defendant may then present evidence in rebuttal to the People’s rebuttal. The court may, in it’s discretion, allow continued rebuttal evidence. The court may also, in it’s discretion, allow either party to offer evidence on their rebuttal which is not technically rebuttal evidence but actually evidence that is part of the parties original case. CPL § 260.30(7).
8. At the end of the case, the defendant may deliver a closing argument and then the People may deliver a closing argument. CPL § 260.30(8).
9. Next the judge must charge the jury and the jury will then retire to deliberate and if possible, reach a verdict. CPL § § 260.30(9), (10) & (11).
If you’re facing trial in local or superior court on any criminal charge and would like a
free consultation regarding your case, call Tilem & Campbell toll free at 1-888-AnyCrime.

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As a New York criminal defense attorney, at a law firm that handles a lot of criminal trials, I often am asked by clients charged with misdemeanors and/or violations in a New York State local criminal court if they must appear in court with me for trial. Generally a defendant must be present during his or her trial. CPL § 340.50 (1).
However, where a defendant is represented by an attorney, a court may, upon written motion by the defendant, waive the defendant’s appearance at trial provided the prosecutor doesn’t object. The defendant must file a written signed and notarized statement declaring the he or she waives their right to be present at trial and authorizing their attorney to conduct their defense in their absence. CPL § 340.50(2).
A defendant may also be excluded from his or her trial if they act in disruptive and disorderly manner to the point that the trial cannot proceed. Before a judge can exclude a defendant from his or her own trial, the defendant must be accorded a warning indicating that the defendant will be removed from the courtroom if he or she continues to act in a disruptive and disorderly manner. CPL § 340.50(2).
In reality, it is common place for defendants not to appear for traffic violation trials but instead to hire an attorney who appears with a signed and notarized “Authorization to Appear”. The written notice requirement is very often overlooked by the court and the prosecutor. However, there are some courts that require the formality of a written motion where the defendant chooses to go to trial on a traffic violation but not where the defendant chooses instead to have his attorney plead guilty to a reduced charge.
One judge who employs this policy is J. Glenn Galbreath of the Cayuga Heights Village Court. J. Galbreath has no problem waiving a traffic violator’s appearance at trial and taking pleas from attorneys with authorizations to appear signed by their clients. However, where a defendant chooses instead to proceed to trial on his or her traffic matter, J. Galbreath requires a written motion. Did somebody say coercive? Take a plea and save a trip to court or proceed to trial and either come to court or pay a lawyer to draft a motion. Sounds a bit coercive to me.
Not only does a defendant have a right to be present at trial, both the United States Constitution and the New York State Constitution grant a defendant the right to be present at all material stages of trial. Therefore, reversal of conviction was required where a defendant was not present during closing arguments and had not waived his presence or waived his presence by disorderly conduct. Benn v. Stinson, 917 F.Supp. 202 (1995).

Continue reading "GOING TO TRIAL IN A NEW YORK LOCAL CRIMINAL COURT – MUST DEFENDANT BE PRESENT?" »

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So you’ve decided to take your New York criminal case to trial. The People’s plea offer is unacceptable and your attorney, after carefully weighing the odds and risks, has advised you to reject the People’s offer and go to trial. As I said in my last blog, at the New York criminal defense law firm of Tilem & Campbell, if we take a New York criminal case to trial, we generally advise our clients to have a jury trial instead of a being tried by a single judge. So what happens next? How does a New York criminal trial proceed in a local criminal court?

Where a defendant is charged in a local criminal court with a misdemeanor, he or she is entitled to a jury trial. However, within New York City, one charged with a misdemeanor is only entitled to a jury trial if the potential sentence is more that six months. CPL § 340.40(2). The right to a jury trial in misdemeanor cases is statutory only as the New York State Constitution does not provide a right to a jury trial where the charges are less than a felony. People v. Erickson, 302 N.Y. 461, 99 N.E.2d 240 (1951); see also Article I, § 2 and Article VI, § 18 of the NYS Constitution; NY Civil Rights Law § 12 (In all criminal prosecutions, the accused has a right to a speedy and public trial, by an impartial jury. However, it has been held that this section only guarantees the same right to trial found in the Sixth Amendment to the federal constitution and that right only applies where a defendant is facing more than six months incarceration).

However, the statutory right to a jury trial in misdemeanor cases in New York was passed by the Legislature in response to the United States Supreme court’s 1970 ruling in Baldwin v. New York, which essentially held that the Sixth Amendment to the
federal constitution requires a jury trial where the defendant is facing more than six months imprisonment. 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Therefore, the right to a jury trial in New York where the defendant is facing more than six months incarceration is mandated by the Sixth Amendment to the federal constitution. To summarize, New York provides for a jury trial in all misdemeanor and felony cases. Except, in New York City, where one is only entitled to a jury trial on a misdemeanor where one is facing more than six months incarceration.

At any time before trial, a defendant may waive his or her right to a jury trial and consent to be tried by a single judge. CPL § 340.40(2). A defendant in local criminal court is not entitled to a jury trial if the charge is only a violation such as most traffic infractions and disorderly conduct. However, if a defendant is charged with both a misdemeanor and a violation and chooses a jury trial, then both the misdemeanor and the violation will be heard by the jury. In such a circumstance, the judge does not decide the violation while the jury decides the misdemeanor. Instead, the jury will decide both. CPL § 340.40(3).

There is one exception to a defendant’s right to a jury trial in local criminal court where the charge is a misdemeanor. Where the defendant is eligible for a youthful offender adjudication and has never been previously convicted of a crime or been adjudicated a youthful offender, the case must be tried by a single judge; not a jury. CPL § 340.40(7).

If you are charged in a local or city court such as those found in Yonkers, Mamaroneck, Harrison, Larchmont, Eastchester, New Rochelle, White Plains, Tarrytown, Dobbs Ferry and others, contact Tilem & Campbell for a free consultation.

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While some New York Criminal Attorneys will waive your right to a jury trial in a New York local justice court, instead opting for a trial before the judge, at Tilem & Campbell, we think that is usually a mistake. At Tilem & Campbell, our policy is that if our client is charged with a misdemeanor and the People (the prosecution) will not reduce the charge below a misdemeanor, we often advise our clients to choose a jury trial. Why? Unfortunately, at the local court level in New York, far too many Judges work hand-in-hand with the prosecution to ensure a defendant’s conviction. That is the simple truth.

Judges at the local level in New York need not be attorneys and many are not. Whether they are attorneys or not, far too many local court judges simply have no apparent understanding about the defendant’s presumption of innocence and the People’s burden to prove a defendant’s guilt beyond a reasonable doubt. In many small villages and towns in New York, the police station and Courthouse are in the same building. The local police and the Judge share the same parking lot, ride the elevator together and see each other regularly in the building. Therefore, only on the rarest occasion will a Judge at the local court level find that a police officer lacked probable cause at a suppression hearing or that an accusatory instrument is insufficient or otherwise rule in a defendant’s favor on a meaningful issue. It would be very hard for the same judge that sees that police officer in the building to now decide that he didn't tell the truth at your trial.

Trials before judges in local criminal courts are far too often nothing more that an exercise in futility. The defendant’s guilt is a foregone conclusion. Do you really think a local judge is going to go against the local police and prosecutor that he or she must deal with on a regular basis?

For a local court judge to rule against the prosecution, the prosecution’s case must implode. And even when the prosecution’s case does implode, many times a local judge will bend over backwards to rationalize and legitimize law enforcement and prosecutorial misconduct. If your criminal case in a local justice court is proceeding to trial, you should seriously consider a jury trial and you should retain counsel who is experienced with jury trials.

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If you have been convicted of an offense in New York or elsewhere that triggers New York State’s sex offender registration laws, your criminal defense attorney must be familiar with the New York Sex Offender Registration Act (hereinafter "SORA"). Registration as a sex offender in New York is governed by Article 6-C of the New York Correction Law. Article 6-C is referred to and cited as the Sex Offender Registration Act. NY Corr. Law 168. The New York State Legislature's passage of SORA brought New York into compliance with the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (hereinafter the Wetterling Act) (42 U.S.C.A. ' 14071). Any state that failed to comply with the Wetterling Act would lose ten percent of its Omnibus Crime Control and Safe Streets Act funding. 42 U.S.C.A. 14071(g)(1)(A).

Under the Wetterling Act, the United States Attorney General shall establish guidelines for State programs that require a person who is convicted of a criminal offense against a minor or of a sexually violent offense or who is considered a sexually violent predator to register a current address with the local chief law enforcement officer.. 42 U.S.C.A. ' 14071(a)(1). One required to report in one state must inform that state when they move to another state and must also inform their new state of residence that they were required to report in their old state. The state they are leaving must also have procedures in place to inform the state the offender is moving to that the offender was required to register in their state. 42 U.S.C.A. ' 14071(b)(5).

The Wetterling Act also set forth guidelines establishing the length of time an offender must register for. The length of registration is either 10 years or life depending on the offense. The registration period commences on the date the offender is either released from incarceration, placed on parole or placed in supervised release. 42 U.S.C.A. ' 14071(b)(6).

The list of registerable offenses under SORA is quite lengthy and will be discussed in a future blog. Suffice it to say that New York can and does make mistakes about who must register. In addition, your level as determined by the Court, can greatly impact your life. If you are charged with any sex offense in New York or are moving to New York and are currently registered in the state where you currently live, consult an experienced New York Criminal Lawyer familiar with New York’s Sex Offender Registration Act.

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A New York State Prison inmate retains some basic due process rights despite being imprisoned. An inmate charged with a serious violation faces substantial punishment and should seek the advise of an experienced New York lawyer. When serious violations are alleged against the inmate, a Superintendent’s Hearing will be held. If the inmate is found guilty at the hearing, he must first file an administrative appeal. If his administrative appeal is denied, he can then file an Article 78 petition. An experienced New York attorney should be retained to represent the inmate on his or her Article 78 petition. One due process violation that should result in the reversal and even expungement of a guilty finding is the failure of the prison officials to tape record the hearing. All Superintendents’ Hearings must be “electronically recorded”. 7 NYCRR 254.6(a)(2).

The absence of the tape of the evidence relied upon by a hearing officer in a disciplinary hearing is a violation of the prisoner's fundamental due process rights. Scott v. Coughlin, 161 Misc.2d 777, 615 N.Y.S.2d 828 (Dutchess Cnty 1994).

The Scott case involved a Tier III Superintendent’s Hearing where Michael Scott was found guilty of assault and was sentenced to 365 days in the Special Housing Unit and six months loss of good time. Scott’s administrative appeals were denied.

Scott then filed an Article 78. While preparing Scott’s Article 78 papers, his attorney learned that several portions of the tape of the hearing were blank. One witnesses’ testimony was cutoff after only two minutes and another inmate’s testimony was not recorded at all. Because of the problem with the tape, prison officials conceded that reversal was required.
The issue in Scott then became whether the guilty findings should be reversed and the case remanded for a new hearing or whether the guilty findings should be reversed and expunged without a remand for a new hearing. The Scott Court agreed with the Petitioner and ordered that (1) the guilty findings be reversed and annulled; (2) all references regarding the proceeding expunged from Petitioner’s departmental and institutional files; and (3) all lost good behavior allowances be restored.

The Court then opined that the failure to record the hearing “violate[d] one of petitioner’s fundamental due process rights and not merely a procedural right.”

If you are an inmate who was found guilty at a prison disciplinary hearing, the very first thing you should do is immediately obtain a copy of the tape of the hearing. If it is blank or if you cannot understand what is being said (inaudible), you should raise this in your administrative appeal. Get a New York lawyer or New York law firm involved in the case as early as possible.

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