Hatzman v. Reid

• Decision Date: 10 February 1975
• Citation: 364 N.Y.S.2d 396,80 Misc.2d 808
• Parties: Application of Kevin Lee HATZMAN, #23406, Petitioner, for a Judgment Pursuant to Article 78, of the Civil Practice Law and Rules, in the Nature of Mandamus Relief, v. Theodore REID, Individually, and as Superintendent of the Albion Correctional Facility, et al., Respondents.
• Court: New York Supreme Court

Page 396

364 N.Y.S.2d 396

80 Misc.2d 808

Application of Kevin Lee HATZMAN, #23406, Petitioner, for a Judgment Pursuant to Article 78, of the Civil Practice Law and Rules, in the Nature of Mandamus Relief, v. Theodore REID, Individually, and as Superintendent of the Albion Correctional Facility, et al., Respondents.

Supreme Court, Orleans County.

Feb. 10, 1975.

Orleans Legal Aid, Inc. by Stephen Jay Lacher, Albion, for petitioner.

Louis J. Lefkowitz, Atty. Gen., by Bedros Odian, Asst. Atty. Gen., for respondents.

HAMILTON DOHERTY, Justice.

MEMORANDUM DECISION

This is an Article 78 proceeding in which the petitioner seeks relief from the Court directing his return from the Attica Correctional Facility (Attica) to the Albion Correctional Facility (Albion) on the ground that his transfer from Albion to Attica violated his constitutional right to due process.

The respondents have denied (Paragraph Second of the respondents' answer and return) any knowledge or information sufficient to form a belief as to the facts outlined in the petition. Upon the hearing held hereon the Assistant Attorney General in answer to the Court's inquiry advised the Court that he was unable to verify the allegations nor would he be able to do so if given an adjournment for that purpose. For the purposes of this proceeding, therefore, the allegations of the petition relative to the factual situation are, except as specifically denied by the respondents, accepted by the Court as being true.

According to the affidavit of Theodore C. Reid, Superintendent at Albion, which forms a part of the respondents' answer, the petitioner was received at the Reception Center at Elmira on November 3, 1967 having been convicted of the following crimes:

1. Robbery First Degree for which he was sentenced to a term of 15 to 20 years

2. Robbery First Degree, 15 to 20 years

3. Assault First Degree, 5 to 10 years, such three sentence to run concurrently

4. Assault Third Degree, 2 1/2 to 5 years consecutively and

5. Illegal possession of a weapon, 5 to 10 years consecutive with all of the foregoing.

Pursuant to Chapters 343 and 344 of the Laws of 1972 (Correction Law § 212--a) all these sentences were compacted into one sentence of 8 years, 4 months to 35 years. This made the petitioner's maximum sentence expire on January 19, 2002, gave him a conditional release date of May 19, 1990 and a statutory release date of March 19, 1996. He does however become eligible for parole May 19, 1975 and is scheduled to meet the April, 1975 Parole Board.

By August, 1974 the petitioner had been transferred to Attica, a maximum security facility and from there submitted his request for transfer to Albion, a minimum security facility where the opportunities for rehabilitation and work both inside and outside the facility grounds are more varied. His application went through a Correction Counselor, a Program Committee at Attica, the Superintendent at Attica and the Central Office of the Division of Inmate Classification and Movement at Albany. On September 13, 1974 the petitioner was advised that he had been found unacceptable by the Albany Office because he was considered a security risk due to his lengthy minimum sentence. He sought and was given another interview with the Service Unit at Attica, explained the compacting of his sentences which resulted in the reduction of his minimum sentence, which information, he was informed, was passed along to the Head Clerk, the Senior Parole Officer and ultimately to the Central Office of the Division of Inmate Classification and Movement. The people at Attica agreed to review his situation and make further recommendation to Albany which was done and on November 4th the petitioner was transferred to Albion.

At Albion he sought and secured his own employment in the garage at the Albion facility, where, according to Mr. Reid's affidavit, his work record was good, and from all the information before the Court he had no trouble complying with the requirements of the facility so far as discipline and behavior were concerned.

On November 19, 1974, the petitioner was taken from his work at the garage, locked in a cell in the only maximum security section at Albion, advised that he was being returned to Attica, put into leg irons, handcuffs and a restraint belt and in 30 minutes was summarily returned to Attica. He was told by one of the Correction Officers that a phone call had been received from the Albany office which had reviewed the petitioner's record and decided he was unsuitable for Albion.

The petitioner was given no notice of the impending transfer nor any hearing relating to it. He alleges that this constitutes a violation of his constitutional right to due process, citing Newkirk v. Butler, D.C., 364 F.Supp. 497, mod. 499 F.2d 1214.

it is clear from Newkirk v. Butler, Supra, that the petitioner was entitled to 'rudimentary due process' before his transfer from a minimum security facility to a maximum security facility could be effected. There is no doubt that the loss suffered by Hatzman is more severe than that suffered by Newkirk, since he was transferred from minimum security to maximum security whereas Newkirk was transferred merely from medium security to maximum.

There can be no question that the transfer from Albion to Attica constituted a 'grievous loss' within the meaning of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484...