Alcantara v Annucci

[*1] Alcantara v Annucci 2019 NY Slip Op 29407 Decided on December 20, 2019 Supreme Court, Albany County Hartman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 20, 2019
Supreme Court, Albany County

Richard Alcantara, Lester Classen, Jackson Metellus, Cesar Molina, Carlos Rivera and David Sotomayor, Plaintiffs,

against

Anthony J. Annucci, Acting Commissioner,New York State Department of Corrections and Community Supervision, Tina M. Stanford, Commissioner, New York State Board of Parole, Defendants.



2534-16



Appearances:

The Legal Aid Society

Robert Newman, of Counsel

Attorneys for Plaintiffs

199 Water Street

New York, New York 10038

Willkie Farr & Gallagher llp

Christopher J. McNamara, of Counsel

Attorneys for Plaintiffs

787 Seventh Avenue

New York, New York 10019

Prisoners' Legal Services Of New York

James Bogin, of Counsel

Attorneys for Plaintiffs

41 State Street, Suite M112

Albany, New York 12207

Letitia james

New York State Office of the Attorney General

Mark G. Mitchell, Assistant Attorney General, of Counsel Attorneys for New York State Defendants

The Capitol

Albany, New York 12224-0341
Denise A. Hartman, J.

Plaintiffs commenced this proceeding against defendants Anthony J. Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision (DOCCS), and Tina M. Stanford, Commissioner of the New York State Board of Parole (collectively, State defendants), claiming that they were illegally confined at the Fishkill Correctional Facility, designated a Residential Treatment Facility (RTF), beyond the six-month period prescribed by Penal Law § 70.45 (3); that DOCCS provided inadequate assistance in finding suitable post-release housing; and that the Fishkill RTF is not a community-based facility that provides programming and reintegration opportunities required by Correction Law § 73.

In its decision and order dated February 24, 2017, this Court denied plaintiff's claims that DOCCS unlawfully detained them at the Fishkill RTF and provided them inadequate assistance in finding suitable post-release housing. But the Court held that plaintiffs raised material questions of fact regarding their claim that the Fishkill RTF is not community-based and does not offer programming and reintegration opportunities in compliance with Correction Law § 73. The Court also held that, while moot as to the named plaintiffs, the claim qualifies as an exception to the mootness doctrine. It converted the proceeding to a declaratory judgment action and allowed the remaining claim to proceed to discovery.[FN1]

The parties have now completed discovery. According to plaintiffs, the State defendants produced thousands of pages of documents responsive to their interrogatories and document requests. And plaintiffs deposed thirteen current or former DOCCS employees, including offender rehabilitation counselors (ORCs), parole officers, program directors, and deputy commissioners. Plaintiffs Alcantara and Sotomayor were also deposed. On November 27, 2018, the Court of Appeals decided Matter of Gonzalez v Annucci, 32 NY3d 461 [2018]), which addressed and rejected a similar claim that the Woodbourne RTF failed to comply with statutes governing residential treatment facilities. Plaintiffs have filed a certificate of trial readiness.

Now pending before the Court is the State defendants' motion for summary judgment, which plaintiffs oppose. The Court heard oral argument on the motion on September 25, 2019. For the reasons discussed below, the Court grants the State defendants partial summary judgment. Plaintiffs have not shown that the conditions and program opportunities within the Fishkill RTF are non-compliant with the statute. However, after searching the record, the Court grants partial summary judgment to plaintiffs and declares that DOCCS is failing to provide for RTF parolees adequate community-based work and educational opportunities outside the Fishkill Correctional Facility environs as required by statute.

Background

Plaintiffs Richard Alcantara, David Sotomayor, Jackson Metellus, Cesar Molina, Carlos Rivera, and Lester Classon were convicted of sex offenses that resulted in determinate prison sentences followed by post-release supervision. After completing their determinate terms of imprisonment, they were detained in DOCCS's custody at the Fishkill RTF pursuant to Penal Law § 70.45 (3). Plaintiffs contend that while they were residents in the Fishkill RTF, they were treated as inmates in a prison-like setting, far from the communities where they intend to return; that they were not offered meaningful programming or work opportunities; and that their mandated programs merely repeated the classes offered in prison. They aver that RTF parolees are subject to the same institutional rules and disciplinary proceedings as inmates in general confinement, and share the same gym, exercise yard and mess hall. Plaintiffs assert that the only employment offered to RTF parolees is a "porter pool," where they can perform menial janitorial jobs and a limited ability to work at the Correctional Facility Storehouse. They claim they have no opportunities to participate in work assignments in a community setting.

The State defendants counter that they are committed to providing education and training to RTF parolees, and they point to Directive No. 0051, which lists the programs available at the facility. Defendants assert that they offer RTF parolees work opportunities not available to inmates, where RTF parolees are paid $10 per day, a rate far higher than that paid to inmates. Specifically, they argue, RTF parolees are eligible to participate in a work assignment at the Correctional Facility Storehouse located outside the facility confines and are transported from the facility once each week to visit parole officers.

Statutory Background

The relevant statutes are as follows. Correction Law § 2 (6) defines "residential treatment facility" as:

"6. A correctional facility consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for release on parole who intend to reside in or near that community when released."

And Correction Law § 73 (1), (2), and (3) provide: "1. The commissioner may transfer any inmate of a correctional facility who is eligible for community supervision or who will become eligible for community supervision within six months after the date of transfer or who has one year or less remaining to be served under his or her sentence to a residential treatment facility and such person may be allowed to go outside the facility during reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation and in accordance with the program established for him or her. While outside the facility he or she shall be at all times in the custody of the department and under its supervision.""2. The department shall be responsible for securing appropriate education, on-the-job training and employment for inmates transferred to residential treatment facilities. The department also shall supervise such inmates during their participation in activities outside any such facility and at all times while they are outside any such facility.""3. Programs directed toward the rehabilitation and total reintegration into the community of persons transferred to a residential treatment facility shall be established. Each inmate shall be assigned a specific program by the superintendent of the facility and a written memorandum of such program shall be delivered to him or her."

DOCCS has designated the Fishkill Correctional Facility, a medium security facility located in the City of Beacon in Dutchess County, as a "general confinement facility," a "work release facility," and a "residential treatment facility" (7 NYCRR 100.90 [c] [3]; Directive No. 0051). DOCCS officials have stated that Fishkill Correctional Facility was designated a residential treatment facility based on its relative proximity to New York City and other communities where offenders intend to return, programming availability, and the adequacy of staffing for work crews.

The State Defendants' Summary Judgment Motion

In support of their motion for summary judgment, the State defendants argue that the Court of Appeals decision in Matter of Gonzalez v Annucci (32 NY3d 461 [2018]) is dispositive of plaintiffs' claims. They also proffer evidence in support of their position that the Fishkill RTF provides adequate educational and rehabilitative services geared toward helping RTF parolees reintegrate into the community. The State defendants rely heavily on the affirmation of Beverly Lockwood,[FN2] an ORC who works at the Fishkill RTF, and the deposition testimony of plaintiffs Alcantara and Sotomayor.

Ms. Lockwood averred that DOCCS offers RTF parolees a 28-day RTF Program, attaching the official 2014 Residential Treatment Facility Curriculum. The RTF Program consists of nine modules, entitled: (1) Sex Offender Registration Act Procedures, (2) Employment, (3) Healthy Relationships and Activities, (4) Life Skills, (5) Available Community Resources, (6) Core Values and Beliefs, (7) Understanding Feelings, (8) Problem-Solving, and (9) Relapse Prevention. She explained that the RTF program is delivered in a 16-participant group setting during a three-hour session, four days per week. ORCs provide worksheets, teach techniques, and facilitate discussions in furtherance of each module. Parolees are paid to participate in the Program. The RTF Program is not available to DOCCS inmates and, according to Ms. Lockwood, it differs from other correctional re-entry programs in that it is "tailored to the challenges that sex offenders are likely to face when released to the community." Plaintiffs Alcantara and Sotomayor testified that they attended portions of the 28-day Program, but they found it not useful, not tailored to sex offenders, and duplicative of a re-entry program that they attended before being paroled to the Fishkill RTF.

Ms. Lockwood further averred that some RTF parolees are assigned to crews that work outside the facility at the Facility Storehouse. RTF parolees are paid $50 per week for their work there, 80% of which is automatically saved in a housing fund and cannot be garnished. Only RTF parolees, not inmates, may participate in this work assignment. Parolees who participate in the Facility Storehouse work assignment are transported weekly to meet with their parole officers in Poughkeepsie. Plaintiff Sotomayor admitted that during his confinement at the [*2]Fishkill RTF, he worked on a crew at the Facility Storehouse five days per week from 8 a.m. to 2 p.m., was transported to meet with his parole officer in Poughkeepsie, and was paid $10 per day for his work at the Facility Storehouse. Plaintiff Alcantara testified at his deposition that while he was confined at the Fishkill RTF he worked as a porter five days per week for 3 ½ to 7 hours per day, and that he was paid at a rate higher than prison inmates. He did not apply to work on the Storehouse work crew because working outside of the facility would have caused him to feel frustrated at his lack of freedom.

Plaintiffs oppose the State defendants' motion claiming that the evidence proffered by defendants about the 28-day RTF Program and RTF work opportunities fall far short of demonstrating compliance with the statutes. Regardless, plaintiffs argue, disputed issues of fact about how these programs are implemented preclude summary judgment at this stage of proceedings. Plaintiffs submitted deposition testimony of numerous DOCCS employees, including ORCs, program managers, parole officers, and deputy superintendents, as well as other evidence in support of their claims of non-compliance.

Plaintiffs submitted the deposition testimony of Stephen Urbanski, Deputy Superintendent of Security at Fishkill Correctional Facility, and Mark Heady, a supervising ORC at the Fishkill RTF, who stated that there are virtually no opportunities for RTF parolees for employment, training, or programming outside the facility in Poughkeepsie, Beacon, or other nearby communities. The only exception is a work assignment at the Facility Storehouse, located less than one-tenth of a mile outside the prison fence, but on the Fishkill Correctional Facility property. The work at the Facility Storehouse mainly involves loading and unloading deliveries to the Correctional Facility and groundskeeping. Only eight RTF parolees are assigned to work there at any time, generally from 8 a.m. to 2 p.m. RTF parolees assigned to the Storehouse work crew were being transported to visit parole officers in Poughkeepsie, but that practice may have diminished because parole officers from Poughkeepsie now come to the RTF to meet with them. According to Urbanski, RTF parolees are not permitted to participate in work release or furlough programs in the nearby communities, even though such programs are available to the general inmate population. As for work programs within the Correctional Facility, plaintiffs produced deposition testimony showing limited work opportunities for RTF parolees. Some RTF parolees are assigned porter jobs, which pay $5 per day, but RTF parolees are effectively excluded from many work-related opportunities within the facility available to the general inmate population.

Plaintiffs acknowledge that DOCCS offers a 28-day RTF Program for RTF parolees. But they argue that the deposition testimony shows that the 28-day Program is inadequate and redundant of programming provided to inmates before their release to the RTF as parolees. While the first module of the 28-day Program is specifically designed for sex offenders, plaintiffs submitted the deposition testimony of several ORCs who stated that the other modules were not particularly tailored to issues encountered by sex offender parolees. These and other depositions provided to the Court suggest that discussion of the RTF Program topics as they relate to sex offender paroles is uneven, and depends on the training and orientation of the ORC conducting the classes and facilitating the group discussions, as well as the interests of the attending RTF parolees in discussing the topics during the assigned classes. Relying on the deposition testimony of Jeff McCoy, Deputy Commissioner of Program Services, and Shelly Mallozzi, both of whom were involved in the creation of the RTF Program, plaintiffs contend that the 28-day Program is a duplicative, "condensed version" of the sex offender programs offered to those serving their sentences. Plaintiffs argue further that the modules related to [*3]employment and housing do not include up-to-date materials reflecting current housing and employment opportunities in the communities where RTF parolees intend to reside. According to Ms. Mallozzi, the original housing and employment ads used to facilitate exercises in the relevant modules should have been updated but have not been since the Program's creation in 2014.

Finally, plaintiffs contend that the general conditions of confinement for RTF parolees are the same as inmates. In their words, the Fishkill RTF "is a prison in all but name only." According to the deposition testimony provided by Deputy Superintendent Urbanski and Mark Heady, Supervising ORC, RTF parolees wear green uniform pants, dine and exercise with general population inmates, and are subject to the same rules regarding visitation, discipline, and grievance processes as general population inmates. Although there is a designated dorm that provides housing for about 28 RTF parolees, most RTF parolees live in dorms also housing the general inmate population. According to Mr. Heady, about 85 to 100 RTF parolees were assigned to the Fishkill RTF at the time of his deposition. But the deposition testimony shows that there are few distinctions between the designated sex offender dorm and the dorms occupied by general population inmates.

Analysis

The proponent of a summary judgment motion must "ma[k]e a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d 488, 196 [2019], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "[T]he facts must be viewed in the light most favorable to the non-moving party, and every available inference must be drawn in the non-moving party's favor" (id. [internal quotation marks, brackets, and citations omitted]; see De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). "If the moving party meets this burden, 'the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action'" (id. [internal quotation marks and citations omitted]; see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]; Vega v Restani Constr. Corp., 18 NY3d at 503). And, as plaintiffs suggest, the Court has the authority to search the record and grant summary judgment to the nonmoving party (see CPLR 3212 [b]; Digesare Mech., Inc. v U.W. Marx, Inc., 176 AD3d 1449, __, 2019 NY Slip Op 07668, *4 [3d Dept 2019]; Matter of Shambo, 138 AD3d 1215, 1216 [3d Dept 2016]).

Matter of Gonzalez v Annucci Is Instructive,

But Not Dispositive of Plaintiffs' Claims.

The State defendants contend that the Court of Appeals decision in Matter of Gonzalez v Annucci (32 NY3d 461 [2018]) is dispositive of this case. This Court disagrees. In Gonzalez, petitioner similarly claimed that he was being incarcerated in a facility "that was not community-based as it was well outside of the Manhattan community to which he planned to return"; that "he was confined under the same restrictions as inmates who were serving their prison sentences at that same medium security facility"; and that "he did not receive any rehabilitative programming directed toward his reintegration into the community while at Woodbourne as required by Correction Law § 73" (Matter of Gonzalez v Annucci, 32 NY3d at 467-468). Petitioner conceded that he participated in Woodbourne's RTF Program for a portion of his stay at that facility, but claimed that "the program was no different from the 'Phase Three' program he had already completed as part of his sentence of imprisonment — a program that was required to [*4]be completed by all inmates prior to their release from incarceration" (id. at 468). Petitioner also admitted that he was assigned to an outside work crew for some period of time. The majority at the Court of Appeals concluded that petitioner had not shown a violation of DOCCS's statutory obligations:

[W]e agree with the Appellate Division that there was insufficient record evidence to establish that DOCCS' determination to place petitioner at the Woodbourne RTF was irrational or that the conditions of his placement at that facility were in violation of the agency's statutory or regulatory obligations. Notably, the record adequately establishes that, based on institutional considerations, Woodbourne was the closest available RTF in which to place petitioner. Additionally, the record demonstrates that petitioner was accorded the rights of a resident of an RTF, as opposed to an inmate (id. at 475).

Importantly, however, the majority acknowledged in a footnote that "similar claims relating to Fishkill Correctional Facility as an RTF are pending in discovery proceedings before Albany County Supreme Court," citing this case (id. at 475 n 6). This Court construes the majority's footnote as permitting, not foreclosing, a fuller development of the record in this case concerning conditions and programming at the Fishkill RTF.

The State defendants further argue that the Alcantara plaintiffs "concede[d] that Gonzalez is dispositive" of their claim in their submissions amici curiae to the Court of Appeals in Gonzalez. It is true that plaintiffs argued that the available evidence establishes that the conditions at the two facilities are "almost the same" and that a decision in one would "inevitably" apply to both. But in its prior decision, this Court held, at the State defendants' urging, that petitioners lacked standing to raise their RTF-compliance with regard to the Woodbourne RTF, either individually or in a representative capacity, because the petition lacked allegations that any of the petitioners were confined to the Woodbourne RTF. The Court reasoned that factual questions about conditions at each facility undermine any argument that a decision regarding their Fishkill RTF-compliance claim would be determinative of the Woodbourne RTF-compliance claim and, therefore, dismissed all claims related to the Woodbourne RTF.

In short, preclusion principles do not apply because the Alcantara plaintiffs were not parties to the Gonzalez litigation, only amici, and because the factual record in this case differs from the record before the Court in Gonzalez (see Matter of Dunn, 24 NY3d 699, 704 [2015]; Kaufman v Eli Lilly & Co., 65 NY2d 449, 455-456 [1985]). While the Court of Appeals decision in Gonzalez is not dispositive, however, it constitutes highly instructive authority for analyzing plaintiffs' Fishkill RTF-compliance claim, as discussed below.

Plaintiffs' Claim that DOCCS Unlawfully Treats RTF Parolees

as Inmates Still Serving Their Sentences Lacks Merit.

Correction Law § 2 (6) defines "residential treatment facility" as a "correctional facility consisting of a community-based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for released on parole who intend to reside in or near that community when release" (emphasis added). The Legislature plainly contemplated that a residential treatment facility be a "correctional facility," or an area within a "correctional facility" (see also Correction Law § 70 [6] [b] [ii] [RTF serves a "function" within a correctional facility]). Given the express authorization to locate residential treatment facilities at correctional facilities, the fact that RTF parolees are treated much the same [*5]as general population inmates, particularly within the confines of a medium security correctional facility where parolees are afforded more freedoms than more secure correctional facilities, does not violate the statute.

The record discloses that Fishkill Correctional Facility is a medium security facility. RTF parolees are required to wear the same clothing and are subject to the same disciplinary rules and procedures and constraints as inmates who reside at the medium security facility. Plaintiffs and similarly situated sex offender parolees may, upon notifying appropriate correction officials, visit the library and gym facilities without escort. And while Fishkill contains only 28 beds in the sex offender dorm, the entire facility is classified as medium security and plaintiffs testified at their depositions that some sex offenders prefer to live in the general population to avoid the stigma associated with sex offenders. These facts do not demonstrate that plaintiffs were not accorded the rights of a resident of an RTF (see Matter of Gonzalez v Annucci, 32 NY3d at 474 [finding with respect to similar factual allegations about conditions at Woodbourne RTF that "the record demonstrates that petitioner was accorded the rights of a resident of an RTF, as opposed to an inmate"]; Matter of Allen v Annucci, Sup Ct, Albany County, May 8, 2018, Platkin, J., index No. 8224-17 at p 9 [holding conditions plaintiffs complain about "are inherent in DOCCS's lawful decision to co-locate an RTF within a medium security correctional facility"]).

Nor does the fact that the RTF at Fishkill Correctional Facility is located 60 miles from New York City violate the statute's command that the RTF be "community-based." In Matter of Gonzalez v Annucci, the Court of Appeals rejected petitioners' similar argument that the Woodbourne RTF was not "community-based as it was well outside of the Manhattan community to which he planned to return" (32 NY3d at 468, 474). The Woodbourne RTF is located more than 100 miles from New York City, where most RTF parolees plan to return. Perforce, the Fishkill RTF, which is nearer to New York City than Woodbourne RTF, is not non-compliant merely because of its distance from New York City. Thus, the Court rejects plaintiffs' claim that the RTF at Fishkill Correctional Facility is not community-based in the sense that it is too far from New York City, where RTF parolees intend to return.

Plaintiffs Have Not Raised a Question of Material Fact

as to Whether DOCCS Is Failing to Provide Adequate

Programming to RTF Parolees Within the Facility.

Correction Law § 73 (3) requires DOCCS to establish "[p]rograms directed toward the rehabilitation and total reintegration into the community of persons transferred to a residential treatment facility." Each inmate must be "assigned a specific program by the superintendent of the facility and a written memorandum of such program shall be delivered to him or her." Plaintiffs have not established otherwise or raised a question of fact as to whether DOCCS offers programming for RTF parolees within the Correctional Facility in compliance with the statute.

The evidence provided shows that, upon arriving at the Fishkill RTF, RTF parolees participate in an orientation program and meet with their ORC to discuss program assignments. The ORC then coordinates with programming staff to finalize a program for each parolee. RTF parolees are generally assigned to the 28-day RTF Program for 7 or 8 weeks, simultaneously with or followed by a work assignment. RTF parolees, upon request, may also be assigned to educational programming for college or high school equivalency courses. The evidence shows that working as a porter or on the Facility Storehouse crew are the primary job assignments for RTF parolees. But the testimony shows that RTF parolees can also be assigned to other [*6]vocational programming inside the Fishkill Correctional Facility, although these assignments appear to be available only upon request and some programming available to general population inmates may not be available to RTF parolees. These opportunities provide some amount of training for soon-to-be-released parolees to learn or reinforce their skills related to employment, such as being on time, taking direction, and completing tasks as directed. RTF parolees are paid at significantly higher rates than general population inmates for their participation in programming. Their earnings are set aside for use upon release and not subject to garnishment, reinforcing the value of earning and saving money. And the evidence shows that RTF parolees have access to ORCs and local parole officers, who in turn coordinate with parole officers in the communities where RTF parolees intend to live upon release to the community.

Viewing the programming as a whole, the Court finds that the State defendants have met their burden, prima facie, of establishing that the programs offered to RTF parolees within the facility or on facility grounds are at least minimally adequate and do not violate DOCCS's obligations under the Correction Law. DOCCS must be given substantial leeway to develop and implement programs in furtherance of penological and rehabilitative objectives for inmates and parolees in its custody (see Turner v Safley, 482 US 78, 84-85 [1987]; Matter of Bezio v Dorsey, 21 NY3d 93, 104 [2013]; Matter of Griffin v Coughlin, 88 NY2d 674, 710 [1996], cert denied 519 US 1054 [1997]). And the programming opportunities must be evaluated in the context of the short-term and indefinite duration of most RTF residencies, notwithstanding plaintiffs' evidence that some are required to stay longer when they have difficulty finding SARA compliant housing. The courts are ill-equipped to micromanage the programming offered in correctional facilities. Nor are the courts in a position to oversee the management and training of ORCs and parole officers. Nothing in the Correction Law requires programming tailored to sex offenders, or the use of current newspaper ads for teaching RTF parolees how to find jobs and housing when they are released to the community, or as tools to teach budgeting in a more abstract sense. Thus, plaintiffs' complaints about the efficacy of the 28-day RTF Program, even taken as true, do not raise a question of fact about whether DOCCS is complying with its statutory obligations to establish "[p]rograms directed toward the rehabilitation and total reintegration into the community of persons transferred to a residential treatment facility" (Correction Law § 73 [3]).

DOCCS Does Not Provide Adequate Opportunities

for Reintegration Programs Outside the Facility

The State defendants have not established that DOCCS complies with its statutory obligation to provide community-based opportunities for RTF parolees to help them reintegrate into the community. Reading the controlling sections of the Correction Law together, they reflect an unmistakable legislative intent to provide community-based programming for RTF parolees in furtherance of the statutory objective to help them reintegrate into the community. Correction Law § 2 (6) expressly defines "residential treatment facility" as a correctional facility consisting of a "community-based residence in or near a community where employment, educational and training opportunities are readily available." Correction Law § 73 (1) provides that a person who has been transferred to an RTF "may be allowed to go outside the facility during reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation and in accordance with the program established for him," albeit in "the custody of the department and under its supervision." And Correction Law § 73 (2) provides that DOCCS "shall be responsible for securing appropriate education, on-the-job training and employment for [*7]inmates transferred to residential treatment facilities. The department also shall supervise such inmates during their participation in activities outside any such facility and at all times while they are outside any such facility."

The State defendants argue that the opportunity for RTF parolees to work at the Facility Storehouse satisfies its obligation to provide "community-based" job training and employment. This Court disagrees. The Facility Storehouse is located on the Fishkill Correctional Facility grounds, less than one tenth of a mile outside of the correctional facility fence. Except for the drivers of the delivery trucks, the work crew has no opportunity to interact with non-facility personnel, and certainly not in a community setting. And only eight of the nearly 100 RTF parolees can be assigned to the Facility Storehouse work crew at a time. Assuming a two-month assignment, a maximum of 24 RTF parolees can be assigned to work at the Facility Storehouse in any six-month period — the maximum period of residency unless SARA-compliant housing is not found.

Even if the Facility Storehouse work crew could be considered "community-based," the State defendants have proffered no evidence that RTF parolees can avail themselves of other "employment, educational and training opportunities" in the communities of Fishkill, Beacon, Poughkeepsie, or other nearby communities. According to Mr. Urbanski, the Deputy Superintendent of Security at Fishkill, who oversees the work program for RTF parolees, RTF parolees are never "permitted to work off of the prison grounds" and he has "never seen anybody with official work outside the community project storehouse." The fact that DOCCS must supervise RTF parolees who work or train in the community does not mean that DOCCS has the authority to deny all supervised program assignments. The deposition testimony submitted by both parties shows that RTF parolees cannot even participate in work or training assignments or work furloughs available to the general inmate population.

The Court of Appeals' decision in Matter of Gonzalez does not require the Court to resolve this issue in the State defendants' favor. There, Gonzalez himself had worked on an "outside work crew" (Matter of Gonzalez v Annucci, 32 NY3d 461, 468 [2018]). He claimed that he and the other RTF parolees assigned to the "outside work crew" were stigmatized because it also included inmates serving their original sentences who were aware that RTF parolees were sex offenders being paid at a higher rate than the general population inmates (see Matter of Gonzalez v Annucci, 56 Misc 3d 1203[A], at * 3 [Ct Cl 2015], mod 149 AD3d 256 [3d Dept 2017], affd as mod 32 NY3d 461 [2018]). Gonzalez further alleged that he was never allowed to leave the Woodbourne RTF, but DOCCS replied that he never asked to leave (see Matter of Gonzalez v Annucci, 32 NY3d at 486-487 [Wilson, J., dissenting]). Thus, the record in Gonzalez is factually distinct from the record before this Court, and appears to have been incomplete about the nature and location of the "outside work crew" and the availability of other true, community-based opportunities (see id.). On the other hand, the record here is clear and unequivocal that RTF parolees are not permitted to leave facility grounds for employment and the vast majority of RTF parolees have absolutely no opportunity for community-based "employment, educational and training opportunities."

In short, the State defendants have not met their burden on a motion for summary judgment of showing compliance with their statutory obligation to provide community-based assignments that would further RTF parolees' post-release reintegration into the community where they intend to live. And searching the record, the Court agrees with plaintiffs that summary judgment should be granted in their favor on this aspect of their claim.

Accordingly, it is

Ordered and Adjudged that the State defendants' motion is granted to the extent that the Court declares that plaintiffs have not shown that DOCCS is failing to comply with its obligations under Correction Law § 73 concerning the location, conditions of confinement, and rehabilitative programming within the Fishkill Correctional Facility; and it is

Ordered and Adjudged that the State defendants' motion is denied and summary judgment is granted to plaintiffs to the extent the Court declares that plaintiffs have demonstrated that DOCCS is failing to comply with its obligations under Correction Law § 73 to provide community-based programming and educational, vocational and employment opportunities in the communities outside the Fishkill Correctional Facility environs.

This constitutes the Decision and Judgment of the Court. The original Decision and Judgment is being transmitted to plaintiffs' counsel. All other papers are being transmitted to the County Clerk for filing. The signing of this Decision and Judgment does not constitute entry or filing under CPLR 2220 or 5016, and counsel is not relieved from the applicable provisions of those rules respecting filing and service.

Dated: December 20, 2019

Albany, New York

_____________________________

Denise A. Hartman

Acting Supreme Court Justice

Papers Considered

1. Notice of Motion, dated May 30, 2019;

2. Attorney Affirmation in Support of Defendants' Motion for Summary Judgment, dated May 30, 2019, with Exhibits 1-8;

3. Affidavit of Beverly Lockwood, dated May 30, 2019, with Exhibit A;

4. Memorandum of Law in Support of Defendants' Motion for Summary Judgment, dated May 30, 2019;

5. Affirmation of Christopher J. McNamara, Esq. in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment, dated July 17, 2019, with Exhibits A-X;

6. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, dated July 17, 2019;

7. Reply Affirmation of Mark G. Mitchell, Esq., dated July 31, 2019, with Exhibits 1-5;

8. Reply Memorandum of Law, dated July 31, 2019;

9. Examination Before Trial of Shelley M. Mallozzi, received September 30, 2019.

Footnotes

Footnote 1: The Court in its February 24, 2017 decision and order also denied the petition insofar as it sought relief against the New York City respondents for their failure to provide enough SARA-compliant housing at shelter locations in New York City to accommodate the release of sex offender parolees.

Footnote 2:Plaintiffs complain that DOCCS did not disclose the identity of Ms. Lockwood during discovery, and they had no opportunity to depose her. Defendants assert that Ms. Lockwood was recently hired, and her identity was disclosed during another ORC's deposition testimony well before plaintiffs filed their notice of trial readiness, but plaintiffs chose not to depose her. The Court will consider Ms. Lockwood's affidavit, along with the deposition testimony of other ORCs submitted by plaintiffs and defendants in reply.