N.Y. Comp. Codes R. & Regs. tit. 7 § 201.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 201.4 - Termination, term of suspension and indefinite suspension

(a)General.

Pursuant to the procedures set forth in this section, a superintendent may deny, limit, suspend for a term or indefinitely suspend the visitation privileges of any visitor if the superintendent has reasonable cause to believe that such action is necessary to maintain the safety, security, and good order of the facility. A loss of visiting privileges may be imposed for an inmate pursuant to the procedures for implementing the standards of inmate behavior under Chapter V of this Title and as set forth in subdivision (d) of this section.

(1) A visit may be terminated at the discretion of the superintendent or his or her designee if objectionable behavior is displayed during such visit.

(i) Objectionable behavior may consist of loud, abusive, or boisterous actions, disruptive behavior, or sexual activities which constitute unacceptable physical contact. Facility staff supervising visiting areas should give inmates and visitors instructions on proper behavior and admonitions if they observe improper behavior prior to giving out an official warning.

(ii) Before termination of a visit, a verbal warning must be issued by the visiting room officer to the visitor and the inmate that the objectionable behavior is prohibited and that failure to cease such behavior will result in termination of the visit. Such warning will be noted on the visitor's record.

(2) A visit will be terminated without a warning if one or more of the following misconduct takes place:

(i) a visitor or inmate becomes apparently under the influence of alcohol or drugs during a visit;

(ii) unapproved parties continue to cross visit after a warning is given by facility staff;

(iii) a visitor or inmate refuses to follow instructions given by facility staff or posted facility rules;

(iv) visitor or inmate attempts to introduce or pass contraband to the other, as defined in section 200.3 of this Title;

(v) assault on facility staff, inmate, or other visitors;

(vi) a visitor and/or inmate engages in unacceptable physical conduct.

(3) Termination.

(i) The decision to terminate a visit is within the discretion of the superintendent, or his or her designee, who must be the watch commander or higher ranking official. If a visit is terminated on the weekend, the watch commander shall promptly notify the officer of the day.

(ii) If a visit is terminated, the area supervisor will advise the visitor and the inmate that his or her visiting privileges are suspended for a period not to exceed one week or until such time as the visitor receives written notification from the superintendent which reinstates, limits, suspends for a term, or indefinitely suspends the visitor's visiting privileges.

(iii) The watch commander will cause an entry to be made on the computerized visitor record imposing an interim suspension for one week and make an appropriate entry into the watch commander's log book.

(iv) Within one week, the superintendent shall issue a written notification reinstating visiting privileges, limiting visiting privileges, suspending visiting privileges for a term, or indefinitely suspending visiting privileges in accordance with subdivision (b) or (c) of this section.

(4) Limitation to non-contact visiting. Contact visiting privileges of either an inmate or a visitor may be suspended (i.e., an inmate or a visitor may be limited to non-contact visiting) by the superintendent for a violation of visiting rules and regulations, or for conduct which represents a threat to the safety, security, and good order of the facility. An inmate may also be limited to non-contact visiting as a penalty pursuant to a disciplinary disposition resulting from a superintendent's proceeding as set forth in section 254.7 of this Title.

(i) Contact visiting privileges may be suspended or indefinitely suspended as an alternative to the term of suspension or indefinite suspension of all visiting privileges for either a visitor or an inmate depending upon who committed the misconduct. The determination to limit a visitor or an inmate to non-contact visiting in lieu of a term of suspension or indefinite suspension of all visiting privileges is within the discretion of the superintendent or his or her designee.

(ii) A visitor or inmate will be limited to non-contact visiting in the area of the facility designated for that purpose during the suspension of contact visitation privileges.

(b)Visitor suspension for a term of less than six months.

A superintendent may suspend a visitor's visitation privileges for any term less than six months for a violation of visiting rules and regulations, which represents a threat to the safety, security, and good order of the facility as set forth in subdivision (e) of this section pursuant to the following procedures:

(1) Upon imposing a term of suspension, the superintendent shall notify the visitor in writing of his or her action.

(i) The notice shall contain:

(a) the reason for the suspension;

(b) the duration of the suspension; and

(c) copies of all charges and reports of misconduct relating to the charges.

(ii) The visitor shall also be notified of his or her right to appeal the decision of the superintendent and the manner in which to do so, including notification that such an appeal must be taken within 60 days of receipt of the notice.

(iii) A copy of such notice and related documents must be sent to the inmate.

(2) An appeal may be taken by the visitor.

(i) Such an appeal shall be addressed to the commissioner and shall be in writing. The visitor may submit any written material he/she wishes to be considered.

(ii) The commissioner, or his or her designee, shall render a written decision within 45 days of receipt of the appeal as follows:

(a) the decision shall affirm, reverse or modify the determination of the local facility;

(b) an affirmance shall be supported by a preponderance of the evidence; and

(c) the decision shall contain a statement of the evidence relied upon and a statement of the reasons therefor.

(c)Visitor suspension for a term of six months or more, up to and including an indefinite suspension pending reinstatement.

A superintendent may suspend a visitor's visitation privileges for a term of six months or more, or indefinitely suspend a visitor's visiting privileges (subject to reinstatement under section 201.6 of this Part), for misconduct that represents a serious threat to the safety, security, and good order of the facility as specified in subdivision (e) of this section pursuant to the following procedures:

(1) Upon imposition of such a term of suspension or indefinite suspension, the superintendent shall notify the visitor in writing of his action.

(i) The notice shall contain:

(a) the reason for the term of suspension or indefinite suspension;

(b) for a term of suspension of visiting privileges, the duration of such term;

(c) copies of all charges and reports of misconduct relating to the charges; and

(d) the reason for imposing the maximum penalty, if imposed.

(ii) The visitor shall also be notified of his or her right to a hearing to appeal the decision of the superintendent within 60 days of such notice.

(iii) Only the visitor may request a hearing.

(iv) If a hearing is not requested, a review based upon written submissions may be had as outlined in paragraph (b)(2) of this section.

(v) A copy of the notice and related documents shall be sent to the inmate.

(2) If a visitor requests a hearing, the commissioner shall appoint an impartial individual from outside the facility to conduct the proceeding and a hearing shall be conducted pursuant to section 201.5 of this Part.

(d)Inmate suspension.

A hearing officer may impose a loss of visiting privileges, including a limitation to non-contact visiting, on an inmate as a penalty pursuant to a disciplinary disposition resulting from a superintendent's proceeding based on visit related misconduct as set forth in section 254.7 of this Title. An inmate may appeal such a loss of visiting privileges in accordance with the provisions of Chapter V of this Title.

Note: The visiting privileges of an inmate in SHU may be subject to special precautions imposed by the superintendent under section 302.2(i)(1) of this Title.

(e)Visit related penalties.

(1) Effect of visiting penalty.

(i) A penalty imposed with respect to the visiting privileges of any visitor applies at all department facilities and to all inmates visited.

(ii) A loss of visiting privileges imposed on an inmate as a penalty pursuant to Chapter V of this Title applies at all department facilities and prohibits the inmate from visits with all visitors unless otherwise specified pursuant to the hearing disposition.

(iii) A visitor or inmate serving any limitation, term of suspension or indefinite suspension of visiting privileges, including a limitation to non-contact visiting, is also prohibited from participating in the family reunion program or a special events program that is attended by members of the general public.

(2) Types of visiting penalties.

(i) Termination. A visit may be ended before the end of the visiting period by staff for objectionable behavior or misconduct as set forth in subdivision (a) of this section.

(ii) Denial. A denial of visiting privileges may be for a specific visit (e.g., visitor fails to possess proper identification or clear a metal detector or an incident occurred inside the facility), for two days for a confirmed positive substance detection/ion scan test or refusal (see section 200.2[e] of this Title), or until a certain condition is satisfied (e.g., resolution of pending criminal charges).

(iii) Suspension. A suspension of visiting privileges must be set for a specific term. At the conclusion of the term of suspension, visiting privileges are automatically reinstated.

(iv) Indefinite suspension. An indefinite suspension of visiting privileges has no predetermined end date. An indefinite suspension is subject to review on an annual basis and restoration in accordance with section 201.6 of this Part, Reconsideration of indefinite suspension.

(3) The authorized visit related penalties are as follows:

Note: The following penalties are intended as maximum penalties for egregious conduct. When determining the appropriate penalty, the surrounding circumstances or the nature of the incident; the severity or egregiousness of the conduct; and/or past instances of misconduct should be considered.

Type of misconduct	Initial offense	Maximum penalty
Failure of visitor to possess proper identification	Visit denied	N/A
Presentation of false identification
(a) Regular visiting room or special events program		Up to six months suspension of visiting privileges
(b) Family reunion program		Up to one year suspension of visiting privileges
Search failure (i.e., metal detector)	Visit denied	N/A
Substance detection test failure or refusal (i.e., metal detector)	Visit denied for two calendar days	N/A
Visitor apparently under influence of alcohol or drugs	Visit denied	N/A
Failure to comply with instructions at gate area (e.g., refusal to undergo search)	Visit denied	N/A
Visitor fails to follow instructions of facility staff and facility rules	Visit denied or immediately terminated AND	Up to three months suspension of visiting privileges
Inmate fails to comply with frisk procedures or instructions of facility staff and facility rules during processing before or after visit	Visit denied AND	Up to one year suspension of visiting privileges
Visitor or inmate becomes apparently under the influence of alcohol or drugs during visit	Immediate termination of visit AND	Up to one year suspension of visiting privileges
Cross-visiting by unapproved parties	Immediate termination of visit AND	Up to three months suspension of visiting privileges
Visitor and/or inmate engage in unacceptable physical contact (i.e., prolonged kissing, necking)	Warning if misconduct continues, termination of visit AND	Up to six months suspension of visiting privileges
Visitor and/or inmate engage in unacceptable physical conduct (intercourse, sodomy, touching the sexual and or other intimate parts of another person, masturbation, exposure)	Immediate termination of visit AND	Visitor - up to indefinite suspension of visiting privileges depending on the surrounding circumstances or the nature of the incident; the severity or egregiousness of the conduct; and/or past instances of misconduct Inmate - up to indefinite suspension of visiting privileges, however, the superintendent must review any disposition of a term of suspension for two years or longer of visiting privileges with all visitors. A term of suspension or Indefinite suspension shall be limited to the involved visitor if the visitor was the only direct participant in the misconduct, however, if other visitors, in particular children, were subjected to exposure then the term of suspension or Indefinite suspension may be imposed with all visitors.
Visitor and/or inmate assault on facility staff, Inmate or visitor/fighting	Immediate termination of visit AND	Visitor - up to indefinite suspension of visiting privileges depending upon assault, injuries sustained and relationship of visitor to inmate and perpetrator to visitor Inmate - up to indefinite suspension of visiting privileges depending upon assault/fight, injuries sustained and relationship of inmate to victim, however, the superintendent must review any disposition of a term of suspension for two years or longer of visiting privileges with all visitors
Attempt to introduce contraband/smuggling
(a) Money	Visit denied or immediately terminated AND	Visitor - up to indefinite suspension of visiting privileges depending on the surrounding circumstances or the nature of the incident; the severity or egregiousness of the conduct; and/or past instances of misconduct Inmate - up to indefinite suspension of visiting privileges, however, the superintendent must review any disposition of a term of suspension of two years or longer of visiting privileges with all visitors. A term of suspension or indefinite suspension shall be limited to the involved visitor or visitors where the misconduct involved only the inmate and the specified visitor or visitors and the inmate did not attempt to remove the contraband from the visiting room
(b) Alcohol	Visit denied or immediately terminated AND	Visitor - up to indefinite suspension of visiting privileges depending on the surrounding circumstances or the nature of the incident; the severity or egregiousness of the conduct; and/or past instances of misconduct Inmate - up to indefinite suspension of visiting privileges, however, the superintendent must review any disposition of a term of suspension of two years or longer of visiting privileges with all visitors. A term of suspension or Indefinite suspension shall be limited to the involved visitor or visitors where the misconduct involved only the inmate and the specified visitor or visitors and the inmate did not attempt to remove the contraband from the visiting room
(c) Non-narcotic drugs	Visit denied or immediately terminated AND	Up to three months suspension of visiting privileges
(d) Marijuana	Visit denied or immediately terminated AND	Visitor - up to indefinite suspension of visiting privileges depending on the surrounding circumstances or the nature of the incident; the severity or egregiousness of the conduct; and/or past instances of misconduct Inmate - up to indefinite suspension of visiting privileges, however, the superintendent must review any disposition of a term of suspension of two years or longer of visiting privileges with all visitors
(e) Narcotic and other dangerous drugs	Visit denied or immediately terminated AND	Visitor - up to indefinite suspension of visiting privileges depending on the surrounding circumstances or the nature of the incident; the severity or egregiousness of the conduct; and/or past instances of misconduct Inmate - up to indefinite suspension of visiting privileges, however, the superintendent must review any disposition of a term of suspension of two years or longer of visiting privileges with all visitors
(f) Item which is readily capable of being used to cause death or serious injury (except dangerous drugs)	Visit denied or immediately terminated AND	Visitor - up to indefinite suspension of visiting privileges Inmate - up to indefinite suspension of visiting privileges, however, the superintendent must review any disposition of a term of suspension of two years or longer of visiting privileges with all visitors
(g) Item which may be used to aid in escape (e.g., cellular telephone, portable electronic storage media containing information which may be used to aid in escape)	Visit denied or immediately terminated AND	Visitor - up to indefinite suspension of visiting privileges Inmate - up to indefinite suspension of visiting privileges, however, the superintendent must review any disposition of a term of suspension of two years or longer of visiting privileges with all visitors
(h) Any item not permitted to be possessed within a correctional facility under section 200.3(c)(1) of this Title (e.g., portable electronic storage media)	Immediate termination of visit AND	Visitor - up to one year suspension of visiting privileges if possessed by the visitor; up to indefinite suspension of visiting privileges if any such prohibited item is transferred to an inmate or possessed under circumstances indicative of an attempt to transfer the item to an inmate Inmate - up to indefinite suspension of visiting privileges, however, the superintendent must review any disposition of a term of suspension of two years or longer of visiting privileges with all visitors
(i) Any other item not permitted to be possessed in the visiting room by either the visitor or the inmate (e.g., tobacco)	Immediate termination of visit AND	Up to six months suspension of visiting privileges

N.Y. Comp. Codes R. & Regs. Tit. 7 § 201.4