N.Y. Comp. Codes R. & Regs. tit. 7 § 201.5

Current through Register Vol. 46, No. 43, October 23, 2024

Section 201.5 - Visitor appeal hearings

(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.

N.Y. Comp. Codes R. & Regs. Tit. 7 § 201.5