N.Y. Comp. Codes R. & Regs. Tit. 7 § 1904.2 - Removal procedure
(a) Any
facility employee of the Department of Correctional Services or the Division of
Parole who is assigned to the facility where the inmate is confined and who has
knowledge of an inmate's unsatisfactory adjustment may file a written statement
to the chairperson of the temporary release committee requesting that the
committee review the inmate's adjustment to the Temporary Release Program. Upon
completion of its review, the committee will forward a recommendation regarding
the inmate's continued participation to the facility superintendent.
(b) If a temporary release inmate violates
any provision of the program, or any rule or regulation promulgated by the
commissioner for conduct of inmates participating in temporary release
programs, such inmate shall be subject to disciplinary measures to the same
extent as if he or she violated a rule or regulation of the commissioner for
conduct of inmates confined in a general confinement facility.
(c) An inmate who is considered a security
risk may be immediately transferred to a more secure correctional facility
prior to the initiation of disciplinary proceedings or an appearance before the
temporary release committee if:
(1) he is
violent;
(2) he presents a danger
to himself, to others, to property or to facility security;
(3) there is an immediate threat to his
safety;
(4) there is reasonable
cause to believe that he may try to abscond; or
(5) the inmate has been arrested.
(d) An inmate may be transferred
to another correctional facility for medical purposes prior to an evaluation by
the temporary release committee.
(e) A transfer order to move an inmate out of
a work release facility shall be obtained from the director of the temporary
release program.
(f) Upon
completion of Tier I and II hearings, the hearing officer may refer the case to
the temporary release committee for review. All Tier III hearings however must
be referred to the temporary release committee by the hearing officer for
review. The hearing officer may not impose as a penalty removal from the
temporary release program. Only the temporary release committee can remove an
inmate from the program. Regardless of the outcome of any disciplinary hearing,
the temporary release committee retains the right to review an inmate's
behavior and remove the inmate from the program based on the factors delineated
in section
1904.1(b)
of this Part. If the temporary release committee does conduct a review of an
inmate's program adjustment, the temporary release committee must submit a
recommendation to the superintendent concerning the inmate's continued
participation in the temporary release program.
(g) The temporary release committee may not
use a misbehavior report as a basis for recommending that an inmate be removed
from the temporary release program when the violation has not been
sustained.
(h) When the temporary
release committee is reviewing an inmate's appropriateness for continued
participation in a temporary release program, the temporary release committee
shall conduct a full hearing to ensure that the inmate has been afforded due
process. The following procedures are to be followed:
(1) An inmate should be provided with a
notice of specific reasons for the referral at least 24 hours prior to the
temporary release committee meeting. A non-English speaking inmate who cannot
read and understand English must be given a translated notice and a translator
shall be present at the hearing.
(2) The inmate shall make a personal
appearance before a temporary release committee unless he or she refuses to
attend, or is excluded for reasons of institutional safety or correctional
goals.
(3) An electronic recording
of the entire hearing shall be made.
(4) An opportunity for an inmate to request
an inmate assistant if the inmate is illiterate, non-English speaking, the
issues are complex, the inmate is "keeplocked" or in SHU and unable to prepare
a defense, or the inmate is sensorially disabled (in which case the inmate will
be provided reasonable accommodations including, but not limited to, the
provision of a qualified sign language interpreter for a deaf and
hard-of-hearing inmate who uses sign language to communicate).
(5) An opportunity for the inmate to call
witnesses and to proffer questions to be asked of witnesses called.
(6) An opportunity to reply and produce
documentary evidence.
(7) A written
statement setting forth the decision and the evidence relied on, following the
superintendent's review of the temporary release committee's recommendation. A
non-English-speaking inmate who cannot read and understand English must be
given a translated statement.
(8)
Form 4187 must then be completed and a copy kept on file.
(i) The superintendent shall either approve
or disapprove a recommendation made by the temporary release committee. If the
superintendent disapproves a temporary release committee recommendation, he/she
shall submit a written statement to the temporary release committee.
(j) Where the superintendent revokes an
inmate's privilege to participate in the temporary release program, he will
immediately decide whether or not the inmate's removal from the temporary
release committee makes him unsuitable to remain at his present facility. If
the superintendent determines that the inmate should not remain at his present
facility, he shall contact the director of the temporary release program to
obtain a transfer order to a more secure facility.
(k) When a superintendent revokes an inmate's
privilege to participate in the temporary release program, he will immediately
advise the chairperson of the temporary release committee. The chairperson of
the temporary release committee will forward to the inmate a written statement
briefly advising the inmate that the superintendent has ordered him removed
from the temporary release program and stating the reasons why the temporary
release committee recommends that the action be taken. This statement should be
forwarded to the inmate within a week of his removal. Copies of this statement
should be forwarded to the guidance unit and parole officer at any institution
where the inmate has been transferred.
Notes
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No prior version found.