N.Y. Comp. Codes R. & Regs. tit. 7 § 254.6

Current through Register Vol. 46, No. 16, April 17, 2024

Section 254.6 - Method of determination

(a) Generally. Upon receipt of a misbehavior report from the review officer, the hearing officer shall commence the superintendent's hearing as follows:

(1) The misbehavior report shall be served on the inmate at least 24 hours before the superintendent's hearing. If the inmate is confined and requests an assistant, the hearing may not start until 24 hours after the assistant's initial meeting with the inmate.

(2) The inmate shall be present at the hearing unless he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals. The entire hearing must be electronically recorded.

(3) The inmate when present may reply orally to the charge and/or evidence and shall be allowed to submit relevant documentary evidence or written statements on his or her behalf.

(4) When applicable, the information identified in subparagraphs (b)(1)(i), (ii), (iv), (v), and (2)(i), (ii) , (iii), and subdivision (h) of this section, derived from the department's electronic databases, shall automatically appear on a computer generated hearing record sheet that shall be provided to the hearing officer for use at the hearing.

(b) Mental state or intellectual capacity. When an inmate's mental state or intellectual capacity is at issue, a hearing officer shall consider evidence regarding the inmate's mental condition or intellectual capacity at the time of the incident and at the time of the hearing in accordance with this section.

(1) For the purposes of this section, an inmate's mental state shall be deemed at issue when:

(i) the inmate is classified as level 1 by the Office of Mental Health (OMH), as indicated on the hearing record sheet;

(ii) the inmate is designated as an "S" by OMH, as indicated on the hearing record sheet;

(iii) the inmate is charged with engaging in an act of self-harm in violation of rule 123.10 (section 270.2[B][23][i] of this Title), as indicated on the misbehavior report;

(iv) the incident occurred while the inmate was being transported to or from the Central New York Psychiatric Center (CNYPC), as alleged in the misbehavior report;

(v) the inmate was an inpatient at the CNYPC within nine months prior to the incident, as indicated on the hearing record sheet;

(vi) the incident occurred while the inmate was assigned to an OMH satellite unit or intermediate care program, as indicated on the hearing record sheet;

(vii) the incident occurred while the inmate was being escorted to or from an OMH satellite unit or intermediate care program, as alleged in the misbehavior report;

(viii) the hearing was delayed or adjourned, after an extension of time was obtained in accordance with section 251-5.1 of this Title, because the inmate became an inpatient at the CNYPC or was assigned to the OMH satellite unit; or

(ix) it appears to the hearing officer, based on the inmate's testimony, demeanor, the circumstances of the alleged offense or any other reason, that the inmate may have been mentally impaired at the time of the incident or may be mentally impaired at the time of the hearing.

(2) For the purposes of this section an inmate's intellectual capacity shall be deemed at issue when:

(i) the incident occurred while the inmate was assigned to the special needs unit (SNU) at Wende, Arthurkill or Sullivan Correctional Facilities, as indicated on the hearing record sheet;

(ii) the inmate has not scored above a 69 on any intelligence testing instrument administered to the inmate by the department and has not scored above a 3.0 grade level in any reading comprehension testing instrument administered to the inmate by the department, as indicated on the hearing record sheet; or

(iii) it appears to the hearing officer, based on the inmate's testimony, demeanor, the circumstances of the alleged offense or any other reason, that the inmate may have been intellectually impaired at the time of the incident or may be intellectually impaired at the time of the hearing.

(c) When an inmate's mental state or intellectual capacity is at issue, pursuant to subdivision (b) of this section, the hearing officer shall:

(1) ask the inmate whether he or she understands the disciplinary charge, the purpose of the hearing and the role of the participants in the hearing;

(2) inquire of other witnesses to the incident, as may be called in accordance with section 254.5 of this Part, concerning any observations that they may have regarding the inmate's mental condition or intellectual capacity at the time of the incident; and

(3) where an inmate's mental state is at issue, out of the presence of the inmate and on a confidential tape, interview an OMH clinician as may be available concerning the inmate's mental condition at the time of the incident and the time of hearing; or

(4) where an inmate's intellectual capacity is at issue, out of the presence of the inmate and on a confidential tape, interview a correction counselor or teacher as may be available concerning the inmate's intellectual capacity at the time of the incident and the time of the hearing.

(d) If it is determined that the inmate is unable to participate in the hearing process because the inmate does not understand the disciplinary charge, the purpose of the hearing and the role of the participants in the hearing, the hearing shall be adjourned until such time as the inmate is able to participate in the hearing process and, if necessary, a request for a time extension shall be made in accordance with section 251-5.1 of this Title.

(e) If it is determined that the inmate is able to participate in the hearing process but is in need of assistance, the hearing shall be adjourned and the inmate shall be offered an assistant in accordance with section 251-4.1 of this Title. Pursuant to section 251-4.2 of this Title, the assistant may be required by the hearing officer to be present at the hearing.

(f) If it is determined that the inmate is capable of proceeding with the hearing and a finding of guilt is subsequently made with regard to one or more of the charges, the hearing officer shall consider the inmate's mental condition or intellectual capacity at the time of the incident, if at issue in accordance with paragraph (b)(l) or (2) of this section, respectively, in determining the appropriate penalty to be imposed under section 254.7 of this Part. In addition, if in light of the inmate's mental condition or intellectual capacity, the hearing officer believes that a penalty with regard to one or more of the charges would serve no useful purpose, the hearing officer may dismiss the charge or charges altogether. The written statement of the disposition of the charges, if any, shall, in accordance with section 254.7(a)(5) of this Part, reflect how the inmate's mental condition or intellectual capacity was considered.

(g) A copy of a written statement of the disposition of the charges issued in accordance with subdivision (f) of this section shall, if the disposition includes confinement to SHU and the inmate is housed in a correctional facility designated by OMH as level 1 or 2, be provided to the OMH unit at the facility for use in connection with any mental health assessments. In a correctional facility designated by OMH as level 1, the inmate's status shall also be the subject of the next scheduled meeting of the facility's special housing unit case management committee in accordance with Part 310 of this Title.

(h) Juveniles. When an inmate is under the age of 18 at the time of the incident, as indicated on the hearing record sheet, the hearing officer shall consider the inmate's age as a mitigating factor. The written statement of the disposition of the charges, if any, shall, in accordance with section 254.7(a)(5) of this Part, reflect how the inmate's age affected the disposition (e.g., reduction of a penalty, alternative to a confinement penalty, dismissal of one or more charges).

N.Y. Comp. Codes R. & Regs. Tit. 7 § 254.6

Amended New York State Register August 19, 2015/Volume XXXVII, Issue 33, eff. 8/19/2015