New York Codes, Rules and Regulations › Title 7 - DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION › Chapter IV - Visitation › Part 201 - Visitation › Section 201.5 - Visitor appeal hearings

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
				Hearings.
(1) If a visitor requests a
				hearing, the commissioner shall appoint a hearing officer from outside the
				correctional facility to conduct the proceeding.
(2) The formal charge shall consist of the
				superintendent's notice to the visitor.
(3) The visitor may be represented by
				counsel.
(4) The visitor may call
				witnesses on his or her behalf provided they are material, their testimony is
				not redundant, and so doing does not jeopardize facility safety, security, and
				the good order of the facility, or correctional goals.
(i) A visitor shall advise the hearing
				officer of any witnesses the visitor intends to offer at the hearing no later
				than five days prior to the hearing.
(ii) If permission to call a witness is
				denied, the hearing officer shall provide a written statement of the reasons
				for such denial, including the threat to the facility safety, security, the
				good order of the facility, or correctional goals or why the proffered
				testimony was immaterial or redundant.
(iii) Any witness shall be allowed to testify
				at the hearing in the presence of the visitor unless the hearing officer
				determines that so doing would jeopardize facility safety, security, the good
				order of the facility, or correctional goals.
(a) If permission to be present during the
				testimony of a witness is denied, the hearing officer shall provide a written
				statement setting forth the reasons for such denial, including the threat to
				facility safety, security, the good order of the facility, or correctional
				goals.
(b) Where a visitor is not
				permitted to have a witness present, such witness shall be interviewed out of
				the visitor's presence and such interview recorded.
(c) The witness's statement is to be made
				available to the visitor at the hearing unless the hearing officer determines
				that so doing would jeopardize facility safety, security, the good order of the
				facility, or correctional goals.
(d) If the witness's statement is not to be
				made available, the hearing officer shall provide a written statement setting
				forth the reasons for such denial, including the threat to facility safety,
				security, the good order of the facility, or correctional goals.
(iv) A visitor may cross-examine
				adverse witnesses unless the hearing officer determines that so doing will
				jeopardize facility safety, security, the good order of the facility, or
				correctional goals. If permission to cross-examine is denied, the hearing
				officer shall provide a written statement stating the reasons for such denial,
				including the threat to facility safety, security, the good order of the
				facility, or correctional goals.
(v) The visitor shall be present at the
				hearing unless he or she refuses to attend. The inmate shall be present at the
				hearing if he or she is to be a witness, unless the hearing officer determines
				so doing will jeopardize facility safety, security, the good order of the
				facility, or correctional goals.
(a) If the
				inmate is denied permission to attend the hearing, the hearing officer shall
				provide a written statement setting forth the reasons for such denial,
				including the threat to facility safety, security, the good order of the
				facility, and correctional goals.
(b) If an inmate is denied permission to
				attend the hearing as a witness, he or she shall be interviewed. The interview
				shall be recorded and made available to the visitor at the hearing unless the
				hearing officer determines that so doing would jeopardize facility safety,
				security, the good order of the facility, or correctional goals. In such
				instance, the hearing officer shall provide a written statement setting forth
				the reasons for such denial, including the threat to facility safety, security,
				the good order of the facility, and correctional goals presented.
(5) The hearing shall
				be electronically recorded.
(6) The
				hearing officer shall issue a written decision within 60 days of the completion
				of the hearing. The decision of the superintendent shall be affirmed upon a
				finding supported by a preponderance of the evidence. The hearing officer shall
				set forth his or her decision in writing, stating the reasons therefore and the
				evidence relied upon. Such decision shall be effective 60 days after issuance
				unless appealed. The decision shall also notify the visitor and inmate of
				appeal procedures.
(7) The visitor
				may appeal the decision of the hearing officer to the commissioner. Such appeal
				must be taken within 60 days of the date the decision was issued and must be in
				writing.
(i) The commissioner shall issue a
				written decision within 60 days of the filing of an appeal.
(ii) Such decision must contain a statement
				of the reasons for the affirmance, modification, or reversal of the hearing
				officer.