CHAPTER 33 - Columbia Law School

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906 A JAILHOUSE LAWYER’S MANUAL Ch. 33 1. Denial of Temporary Release (a) Appeals Within the Department E. What to Do If Your Temporary Release Application Is Denied or Revoked You can appeal your point score if the interviewer calculates your point score inaccurately and disqualifies you on that basis, or if the information he uses is wrong. You can also appeal the decision of the TRC or the decision of the Central Review Office. To appeal your point score or the decision of the TRC, you must submit Form 4145 and any other relevant information within ten working days of the date that the notice of denial of your application is sent to the TRC chairperson. A completed appeal must be received by the chairperson within thirty days of the denial. If your appeal application is made within the thirty-day limit, the chairperson will send your appeal package to the Central Office, including any information not available in Central Office files. The Central Office reviewer will notify you and the TRC of his or her findings. 78 To appeal a decision by the Central Review Office, you must apply to the Director of the Central Office to review your case if you think the disapproval was unfair or unreasonable. You should only do this when TRC accepted, but Central Office denied, your application. All denials by the superintendent must be referred directly, as explained in Part D(2)(b) above, to the Central Office for an automatic Commissioner review. You do not have to do anything. 79 If the Deputy Commissioner or the Commissioner denies your application at any point in the proceeding, your administrative remedies are exhausted. 80 If your case has been designated a “central monitoring” case, you may only appeal by using existing departmental policy. CMC appeals are not handled by Central Office temporary release staff. 81 You cannot re-apply for the same program until the appeals process on a prior application is complete. You may withdraw a pending appeal at any time. 82 (b) Other Forms of Review if Your Application is Denied If your application is denied, you can appeal to the courts under Article 78 of the New York Civil Practice Law and Rules (“C.P.L.R.”). See JLM Chapter 21, “How to Challenge Administrative Decisions Using Article 78 of the New York Civil Practice Law and Rules.” However, New York courts have addressed this question often and now apply a test that makes it difficult for a claim to be successful. In Grant v. Temporary Release Committee, the court said that because participation in temporary release programs is a privilege, the courts would only look at claims where the temporary release committee either violated a statutory requirement (such as failing to give you an interview if you have the right amount of points, or failing to inform you of the committee’s decision), or if its decision was affected by “irrationality, bordering on impropriety.” 83 Because the TRC has such enormous discretionary power, it is very difficult to convince a court that its decision was irrational and unfair. The TRC only has to say that it thinks you might pose a threat to society, or that it does not think you will work hard, and the court will accept its findings. You also do not have the right to 78. N.Y. Comp. Codes R. & Regs. Tit. 7, § 1900.6 (2001). 79. N.Y. Comp. Codes R. & Regs. Tit. 7, §§ 1900.6(a)(2), (b) (2001). 80. N.Y. Comp. Codes R. & Regs. Tit. 7, § 1900.6(c) (2001). 81. N.Y. Comp. Codes R. & Regs. Tit. 7, § 1900.6(e) (2001). 82. N.Y. Comp. Codes R. & Regs. Tit. 7, § 1900.6(f) (2001). 83. Grant v. Temporary Release Comm., 209 A.D.2d 617, 617, 619 N.Y.S.2d 106, 106 (2d Dept. 1994) (quoting Young v. Temporary Release Comm., 122 A.D.2d 606, 606, 505 N.Y.S.2d 279, 280 (4th Dept. 1986)).
Ch. 33 TEMPORARY RELEASE PROGRAMS 907 challenge the legislature or executive’s decision to make you ineligible for temporary release based upon the crime for which you were convicted, if you have not yet participated in the program. 84 However, it is possible to win, as seen in Lopez v. Coughlin. 85 In that case, an HIV-positive prisoner applied for work release. The TRC approved the application because the facility doctor, who was familiar with the prisoner’s condition, said his medical condition would not affect his ability to be in work release. Central Office reversed and denied the application solely on the basis of the prisoner’s condition. The Albany County Supreme Court held that this was completely irrational since the doctor had already given his approval. The court said that Central Office’s findings “were based on generalizations and possibly inaccurate assumptions” and ordered the TRC to reevaluate its decision. 86 In Flaherty v. Coughlin, the prisoner alleged that he had been denied temporary release privileges in retaliation for filing a class action suit. 87 His class action challenged a statewide prison lockdown, and shortly after filing the suit, Flaherty applied for temporary release privileges. The TRC accepted him, but the Commissioner of Corrections, whose approval was legally required in 1983 (the time of the suit), reversed the TRC recommendation. Flaherty alleged retaliation and asked for TRC and Commissioner office documents. The district court dismissed his request, but the Second Circuit said that because factual evidence existed that retaliation may have been a factor, the documents Flaherty needed should be given to him so that he could prepare his case. 88 2. Revocation of Temporary Release (a) How Your Temporary Release Can Be Revoked Your temporary release may be suspended or revoked by the superintendent or director of your correctional institution upon recommendation of the TRC or the Commissioner of the Department of Correctional Services. 89 This suspension or revocation can be made at any time if the superintendent or director has information that: (1) Your continued participation in the program is not in the interest of community safety and goes against your best interests; or (2) There is a substantial likelihood that you cannot successfully complete the temporary release program. 90 Some factors which will be considered indicators that you are unsuited for temporary release include: (1) Arrest and/or convictions for crimes committed while participating in the program; 84. Lee v. Governor of New York, 87 F.3d 55, 59–60 (2d Cir. 1996) (finding neither an interest in participation in the temporary release programs for prisoners excluded based on their crime, nor an equal protection or a retroactive punishment violation); see also Moore v. N.Y.S. Dep’t of Corr. Servs., 26 F.App’x. 32, 33, 2001 U.S. App. LEXIS 23192, at *2 (2d Cir. 2001) (unpublished) (holding that the nature of a prisoner’s crime and his failure to accept full responsibility for it were rational bases for denying petitioner participation in family reunion program and that such denial was therefore not a violation of due process). 85. See Dorst v. Pataki, 167 Misc. 2d 329, 337, 633 N.Y.S.2d 730, 735 (2d Cir. 2001) aff’d, 90 N.Y.2d 696, 699, 687 N.E.2d 1348, 1349, 665 N.Y.S.2d 65, 66 (1997) (holding that executive order flatly eliminating all felons from participation in temporary release programs was unconstitutional, although upholding power of executive to impose other limits on temporary release participation); see also Flaherty v. Coughlin, 713 F.2d 10, 14 (2d Cir. 1983); Lopez v. Coughlin, 139 Misc. 2d 851, 529 N.Y.S.2d 247 (Sup. Ct. Albany County 1988). 86. Lopez v. Coughlin, 139 Misc. 2d 851, 854, 529 N.Y.S.2d 247, 249 (Sup. Ct. Albany County 1988). 87. Flaherty v. Coughlin, 713 F.2d 10, 11 (2d Cir. 1983). 88. Flaherty v. Coughlin, 713 F.2d 10, 14 (2d Cir. 1983). 89. N.Y. Comp. Codes R. & Regs. Tit. 7, § 1904.1(a) (2001). 90. N.Y. Comp. Codes R. & Regs. Tit. 7, § 1904.1(b) (2001).
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CHAPTER 33 - Columbia Law School

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