Articles Posted in CRIMINAL PROCEDURE

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.

Experienced New York Criminal Attorney’s who are familiar with the New York Criminal Procedure Law are familiar with CPL § 210.40 which authorizes Judges to dismiss cases in the “Interest of Justice” and the 10 factors that Judges need consider when deciding whether to grant such a motion. The Motion to Dismiss in the Interest of Justice is also known to many New York lawyers as a “Clayton” motion after the 1973 case that originally discussed the parameters of this type of motion. At Tilem & Campbell, our criminal lawyers have successfully used Clayton Motions to resolve difficult cases and protect the interests of our clients.

Our experienced criminal attorney’s have also used the factor delineated in CPL §210.40 to resolve serious criminal cases by addressing the factors in letters to prosecutors. By using the Clayton factors to show a prosecutor that a Judge might dismiss the case, we are sometimes able to convince a prosecutor to offer an ACD or a Violation when they had previously refused to do so. This strategy has been used by lawyers at this firm to resolve cases such as Assault, Insurance Fraud and Gun Possession.

Recently Judge Rory Bellantoni, of the Westchester County Court in White Plains, after an analysis of all of the factors delineated in CPL §210.40 dismissed a felony Sexual Abuse case in the interest of justice. In that case, prosecutors were offering an ACD or a dismissal of the charges and then suddenly withdrew the offer. A number of other factors also supported the dismissal. The case demonstrates that even very serious felony cases can be dismissed under Clayton and not only less serious misdemeanors.