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PRISON’S FAILURE TO COMPLY WITH DEPARTMENT OF CORRECTIONS DIRECTIVE RE OPENING INMATES’ MAIL REQUIRED ANNULMENT OF THE MISBEHAVIOR DETERMINATION (THIRD DEPT).

The Third Department annulled the misbehavior determination because there was no proof the superintendent provided written permission to open petitioner’s mail as required by a Department of Corrections directive. All the disciplinary rule violations stemmed from the contents of the mail:

Petitioner’s sole claim is that the Superintendent did not provide written authorization pursuant to Department of Corrections and Community Supervision Directive No. 4422 (III) (B) (9) (see 7 NYCRR 720.3 [e]) for opening the outgoing correspondence that led to the investigation implicating him as the sender. Significantly, such correspondence provided the basis for all of the disciplinary rule violations of which petitioner was found guilty. The directive at issue specifically provides that “[o]utgoing correspondence . . . shall not be opened, inspected, or read without express written authorization from the facility superintendent” … . It further states that “[s]uch written authorization shall set forth the specific facts forming the basis for the action” … . Here, there was no proof presented that the Superintendent issued a written authorization supported by specific facts permitting the correction official to open the correspondence. Rather, the record suggests that the authorization was verbal, as no written instrument was ever produced and the Superintendent did not testify at the hearing. Under these circumstances, the determination of guilt must be annulled … . Matter of Sudler v Annucci, 2018 NY Slip Op 04629, Third Dept 6-21-18

​DISCIPLINARY HEARINGS (INMATES) (PRISON’S FAILURE TO COMPLY WITH DEPARTMENT OF CORRECTIONS DIRECTIVE RE OPENING INMATES’ MAIL REQUIRED ANNULMENT OF THE MISBEHAVIOR DETERMINATION (THIRD DEPT))/MAIL (DISCIPLINARY HEARINGS (INMATES), PRISON’S FAILURE TO COMPLY WITH DEPARTMENT OF CORRECTIONS DIRECTIVE RE OPENING INMATES’ MAIL REQUIRED ANNULMENT OF THE MISBEHAVIOR DETERMINATION (THIRD DEPT)

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DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED... DEFENDANT OFFERED TWO NON-NEGLIGENT EXPLANATIONS FOR THE REAR-END COLLISION...