Matter of Shoga v Broome County Correctional Facility

[*1] Matter of Shoga v Broome County Correctional Facility 2009 NY Slip Op 51276(U) [24 Misc 3d 1206(A)] Decided on June 24, 2009 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 24, 2009
Supreme Court, Broome County

In the Matter of the Application of Alex Shoga, Petitioner,

against

Broome County Correctional Facility, Lieutenant Robert Irwin, Hearing Officer Sgt. Ron Evans, Officer David Newberry, Officer Scott Noyes, Adminstrator Mark Smolinsky, Respondents.



2009-0567



Alex Shoga, Petitioner Pro Se

c/o Broome County Correctional Facility

P.O. Box 2047

Binghamton, NY13902

Counsel for Respondents

Broome County Attorney's Office

By: Aaron J. Marcus, Esq., Assistant County Attorney II, of Counsel

Broome County Office Building

44 Hawley Street, P.O. Box 1766

Binghamton, NY 13902

Ferris D. Lebous, J.

This is a proceeding for a judgment pursuant to Article 78 of the CPLR originated upon the petition of Alex Shoga, verified on January 23, 2009. Petitioner also seeks permission to proceed as a poor person to which the County has no objection.[FN1] Petitioner is an inmate at the Broome County Correctional Facility.

Petitioner commenced this Article 78 proceeding by way of an Order to Show Cause dated March 18, 2009 seeking, among other things, an order: (1) vacating and setting aside his sentence of 40 days keeplock in special housing unit; (2) directing the production of petitioner's mental health records; (3) restoring petitioner to general population; (4) compelling the County's compliance with various disciplinary procedures; (5) compelling the production of an inmate handbook; and (6) reconsideration of his disciplinary sentence.

BACKGROUND

Petitioner has been an inmate in the Broome County Correctional Facility since May 3, 2008 during which time he has been involved in a series of disciplinary matters. The court need not recite petitioner's full disciplinary history, but suffice it to say that in September 2008 petitioner was already serving keeplock detention due to a prior sanction.

On September 8, 2008, petitioner was involved in an incident involving sexual misconduct. A hearing was held on September 23, 2008 and petitioner was given 60 days of keeplock detention in the special housing unit. The 60 day keeplock sentence emanating from the September 23, 2008 hearing resulted in an "out date" of January 7, 2009.

On November 7, 2008, petitioner was involved in yet another incident. A hearing was held on December 2, 2008 and he was given an additional 20 days of keeplock to run consecutively after his prior sentence concluded. Thus, petitioner's "out date" was revised to January 27, 2009 (20 days from January 7, 2009).

On December 21, 2008, petitioner was involved in the incident which is the subject of this petition resulting in eight (8) disciplinary violation charges. A hearing was held on January 2, 2009 and petitioner was given 40 days keeplock detention. The dispute here is whether this detention was scheduled to run concurrently or consecutively. Petitioner alleges that the 40 day keeplock sentence was to run concurrently from the date of the incident (December 21, 2008) which would have resulted in an "out date" of January 30, 2009. Respondent alleges that the 40 day keeplock was to run consecutively from the prior "out date" of January 27, 2009 resulting in [*2]a revised "out date" of March 8, 2009.

Petitioner relies upon a document described as the D-pod "pass down" log book maintained by the facility which states that petitioner's 40 day keeplock detention was to "run concurrent w/ time already being served" (Respondent's Exhibit E). Petitioner argues he was improperly required to serve the 40 day keeplock detention consecutively, rather than concurrently as stated in the log book.

Jail officials concede that the D-pod "pass down" log book does state that petitioner's 40 day keeplock detention arising from the December 21, 2008 incident was to run concurrent. However, respondent argues that the log book entry is incorrect. Respondent submits the official "Incident Disposition/Hearing Report" and "Special Confinement Status Review" sheet establishing that petitioner's sentence was to run consecutively after his completion of his prior sentence resulting in an "out date" of March 8, 2009 (Respondent's Exhibits D & E).

DISCUSSION

Petitioner's Article 78 petition must be dismissed. In the first instance, the court finds this petition to be moot. In the context of this Article 78 proceeding, this court's only remedy, even if the petition were to have merit, would have been a judgment directing the release of petitioner from keeplock detention. The record establishes that petitioner is no longer being confined to keeplock as a result of the December 21, 2008 charge and, as such, the petition is moot (Hearst Corp. v Clyne, 50 NY2d 707 [1980]; Shanholtzer v Selsky, 291 AD2d 588 [2002], lv denied 98 NY2d 607 [2002]).

As a separate and distinct basis for dismissal, the court finds that the petition has no merit. Quite simply, the D-pod "pass down" log book has no official bearing on the sentence imposed as a result of the disciplinary hearing. Respondent has unequivocally established by way of the official "Incident Disposition/Hearing Report" and "Special Confinement Status Review" sheet that petitioner's sentence was to run consecutively resulting in an revised "out date" of March 8, 2009. To the extent that the D-pod "pass down" log book indicated to the contrary, respondent has submitted an affidavit from Officer Noyes who made that entry averring that said entry was in error. Additionally, respondent has submitted affidavits from the two hearing officers confirming the actual and official sentence was 40 days keeplock to run consecutively from petitioner's prior "out date".

The court also finds the petitioner's remaining arguments to be without merit, namely that petitioner's request for his mental health records is premature since he has failed to exhaust his administrative remedies in that regard; respondent has established that petitioner already has an inmate handbook and has access to the Minimum Standards; and that audio recording of inmate disciplinary hearings are not required by said Minimum Standards.

CONCLUSION

Based upon all of the above, petitioner's application for relief pursuant to Article 78 will [*3]be dismissed. It is so ordered.

Dated:June 24, 2009

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Supreme Court Justice Footnotes

Footnote 1:It is well-settled that a court may assign an attorney in a proper case (Matter of Smiley, 36 NY2d 433 [1975]; CPLR § 1102 [a]). The court finds that this matter involving keeplock detention does not equate to one warranting the assignment of counsel because plaintiff is not faced with a "grievous forfeiture or loss of a fundamental right" (Wills v City of Troy, 258 AD2d 849 [1999], lv denied 93 NY2d 1000 [1999]).