N.Y. Comp. Codes R. & Regs. tit. 7 § 721.3

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

Section 721.3 - Procedure

Note:

Unless otherwise provided for in this directive, the general correspondence procedures set forth in Part 720 of this Title, "Inmate Correspondence Program," (such as the requirement to put return addresses on the front and back of outgoing envelopes) shall be followed.

(a)Outgoing privileged correspondence.

(1) For the purpose of this directive, outgoing mail will not be considered to be privileged correspondence until it has been placed in the control of the facility administration for processing.

(2) Outgoing privileged correspondence may be sealed by the inmate, and such correspondence shall not be opened, inspected, or read without express written authorization from the facility superintendent as specified in subdivision (c) of this section. Notwithstanding the foregoing or any other provision of this Chapter, outgoing mail to the Secretary of State, Department of State, corporation division or uniform commercial code unit of any state shall be submitted by the inmate unsealed and is subject to inspection.

(3) Postage for privileged correspondence.

(i) Inmate letters addressed to the commissioner or other central office staff shall be mailed by the facility at no cost to the inmate. This service shall only apply to regular letters; special handling charges for services such as certified mail, return-receipt, or express mail must be paid for by the inmate.

(ii) Each inmate will receive a weekly free postage allowance equivalent to five domestic first class one ounce letters to pay for first class postage on outgoing privileged correspondence.

(a) This allowance may not be used to pay for any special handling charges such as for certified, return-receipt, express mail, etc., unless such mail services are required by statute, court rule or court order.

(b) Any unused allowance will not be accumulated from week to week. Inmates will have to pay for postage costs which exceed this weekly allowance.

(iii) A postage-prepaid envelope received within correspondence from a court or an attorney which has been pre-addressed by the court or attorney may be received (subject to inspection by the security staff) and used by the inmate for the intended return correspondence.

(iv) To ensure that indigent inmates maintain their right of access to the courts, the facility shall approve and IAS 2708 advance request to pay for first class mail postage if the inmate has insufficient funds and if the following conditions are met:

(a) the mail is legal mail (e.g., it is addressed to a judge, clerk of court, attorney, or authorized legal representative; or is directly related to a potential or ongoing legal matter);

(b) any balance of the inmate's free weekly postage allowance is applied to the legal mail postage costs; and

(c) the requested advance and the balance of unpaid previous advances for legal mail postage do not exceed $20, except as may be approved under subparagraph (vi) of this paragraph.

(v) Advances for "special handling" (e.g., certified mail, return receipt, express mail, etc.) will not be approved unless required by a statute, court rule or court order.

(vi) Exceeding the $20 limit shall only be approved if the inmate can show by court rule, court order, a statute of limitations, or other legal deadline applicable to his or her individual circumstance that the legal mail must be sent prior to receipt of the next week's free postage allowance. The inmate must provide justification for such advance.

(vii) No request for a legal mail advance will be denied by facility staff without prior consultation with the department's office of counsel. Any question whether a particular item qualifies as "legal mail," or whether an advance is allowable should be directed to such office.

(b)Incoming privileged correspondence.

(1) Incoming privileged correspondence shall not be opened outside the presence of the inmate to whom it is addressed, and shall not be read without express written authorization from the facility superintendent (see subdivision [c] of this section).

(2) A log entry should document any incoming privileged correspondence erroneously opened outside the presence of the inmate to whom it is addressed (see paragraph [3] of this subdivision). If appropriate, a photocopy of an erroneously opened envelope shall be included.

(3) Incoming privileged correspondence shall be given priority handling and shall be delivered in a consistent manner at a time when the inmates are available to receive it and which does not interfere with programming. If the inmate to whom privileged correspondence is addressed is not currently at the facility, the provisions of Part 722 of this Title shall be followed.

(4) A log shall be created to record receipt and delivery of incoming privileged mail. It shall identify the sender and include the inmate's name and number, the delivery date and time, the title of the delivery person, and note if the inmate refused to sign a receipt, refused delivery of the mail, or would not respond to delivery calls. If privileged mail is erroneously opened outside the presence of the inmate, that fact and any relevant explanation shall be noted in the log.

(5) Inspection.

(i) Where x-ray capability exists, incoming privileged correspondence should be x-rayed prior to being opened.

(ii) Except as provided in subdivision (c) of this section, all incoming privileged correspondence shall be opened and inspected, in the presence of the inmate to whom it is addressed, for the presence of cash, checks, money orders, and contraband and to verify, as unobtrusively as possible, that the correspondence does not contain material that is not entitled to the privilege.

(iii) When, in the course of inspection, cash, checks, or money orders are found, they shall be removed and credited to the inmate's account.

(iv) When, in the course of inspection, contraband is found, it shall be removed and forwarded to the security office, with appropriate chain-of-custody documentation. When appropriate, the State Police shall be notified.

(v) When, in the course of inspection, material is found that does not appear to be entitled to the privilege, all parts of the correspondence shall be forwarded directly to the superintendent without further inspection, and a report from the person opening and inspecting shall detail the circumstances.

(vi) A postage-prepaid envelope received within correspondence from a court or an attorney which has been pre-addressed by the court or attorney may be received (subject to inspection by the security staff) and used by the inmate for the intended return correspondence.

(6) Receipt.

(i) The inmate to whom privileged correspondence is addressed shall sign a receipt for such correspondence. All receipts for incoming privileged correspondence shall be retained in an appropriate file.

(ii) If the inmate refuses to sign a receipt, the delivering employee shall so indicate on the receipt, note the date and time of the refusal to sign, and deliver the correspondence to the inmate.

(7) Refusal.

(i) If the inmate refuses to accept the privileged correspondence when it is offered, the delivering employee shall note the refusal in the log and any known reason for non-acceptance. The privileged correspondence should be returned to the sender stamped "addressee refused to accept."

(ii) If the inmate refuses to respond to the privileged mail delivery call, a second attempt should be made to deliver the letter. If the inmate again refuses to respond, note the date and time, and any known reason for not responding to privileged mail calls in the privileged mail log. The receipt with this information shall be retained in an appropriate file. The privileged correspondence should be returned to the sender stamped "addressee refused to accept."

(8) Privileged correspondence originally sent out of the facility by an inmate, but subsequently returned to the inmate sender by the postal service, shall be processed as incoming privileged correspondence in accordance with the procedures as set forth in paragraphs (1) and (2) of this subdivision.

(c)Authorization to read privileged mail.

(1) The superintendent shall not authorize the reading of incoming or outgoing privileged correspondence unless there is a reason to believe that the provisions of this or any directive or rule or regulation have been violated, that any applicable State or Federal law has been violated, or that the content of such correspondence threatens the safety, security, or good order of a facility or the safety or well being of any person. Such authorization by the superintendent shall be in writing and shall set forth facts forming the basis for the action.

(2) The superintendent is advised to consult with the department's office of counsel before issuing such authorization. If the facility superintendent authorizes the reading of privileged correspondence, it shall be read only by the superintendent, a deputy superintendent or central office staff.

(3) If after reading the contents of privileged correspondence there is reason to believe that the provisions of this or any directive or rule or regulation have been violated, or that any State or Federal law has been violated, or that the content of such correspondence threatens the safety, security good order of a facility or the safety or well-being of any person, then the correspondence may be confiscated, and the inmate must be given written notice of the confiscation, unless doing so would be inconsistent with the need to safeguard an investigation. The notice must include the reason(s) for the confiscation, and it must inform the inmate of the right to appeal the confiscation to the deputy commissioner for program services. In the case of incoming correspondence, the correspondent must also be given a copy of such notice and accorded the right to appeal, unless doing so would be inconsistent with the need to safeguard an investigation. Reason to believe that privileged correspondence is being used to introduce contraband or other materials not entitled to the privilege shall be sufficient reason for confiscation.

(4) This subdivision shall not be deemed to require the express written authorization of the superintendent to inspect incoming privileged correspondence, in the presence of the inmate, to ensure that the materials contained in the correspondence are entitled to the privilege.

N.Y. Comp. Codes R. & Regs. Tit. 7 § 721.3