Hirsch v. Suffolk Cnty.

• Decision Date: 18 March 2015
• Docket Number: 08-CV-2660(JS)(AKT)
• Parties: JOSEPH S. HIRSCH, Plaintiff, v. SUFFOLK COUNTY, KATHERINE PERNAT, and JOSEPH TORTORA, Defendants.
• Court: U.S. District Court — Eastern District of New York

JOSEPH S. HIRSCH, Plaintiff, v. SUFFOLK COUNTY, KATHERINE PERNAT,and JOSEPH TORTORA,¹ Defendants.

08-CV-2660(JS)(AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 18, 2015

MEMORANDUM & ORDER

APPEARANCES

For Plaintiff:

Philip M. Smith, Esq.

Seyfarth Shaw LLP

620 Eighth Avenue

New York, NY 10018

For Defendants:

Suffolk County

Brian C. Mitchell, Esq.

Suffolk County Attorney's Office

100 Veterans Memorial Highway

P.O. Box 6100

Happauge, NY 11788

Katherine Pernat

and Joseph Tortora

Toni Logue, Esq.

New York State Attorney General's Office

200 Old Country Road, Suite 460

Mineola, NY 11501

SEYBERT, District Judge:

Plaintiff Joseph S. Hirsch ("Hirsch" or "Plaintiff") commenced this action pursuant to 42 U.S.C. § 1983 on June 25, 2008, against Suffolk County (the "County"), Katherine Pernat ("Pernat") and Joseph Tortora ("Tortora," and together with Pernat, the "State Defendants"), alleging violations of his federal constitutional rights in connection with the assignment of his post-conviction sex offender designation and his loss of good time credits while incarcerated. Presently before the Court are: (1) the County's motion for summary judgment (Docket Entry 114); (2) the State Defendants' motion for summary judgment (Docket Entry 115); and (3) Plaintiff's motion to revise the Court's prior holding that Hirsch has no constitutional interest in earning good time credits during his incarceration (Docket Entry 106). For the following reasons, Plaintiff's motion to revise is DENIED, and the County's and the State Defendants' motions for summary judgment are GRANTED.

BACKGROUND

I. Factual Background²

A. Hirsch's Arrest, Trial, and Conviction in Suffolk County

In March of 1999, Hirsch was indicted in Suffolk County Criminal Court for one count of Aggravated Sexual Abuse in theSecond Degree, in violation of New York Penal Law § 130.67; six counts of Sexual Abuse in the First Degree, in violation of New York Penal Law § 130.65; two counts of Assault in the Second Degree, in violation of New York Penal Law § 120.05; and one count of Unlawful Imprisonment in the Second Degree, in violation of New York Penal Law § 135.05. (See Hirsch Decl., Docket Entry 120, Ex. 2.) After a jury trial, Hirsch was convicted of two counts of Sexual Abuse in the First Degree, two counts of Assault in the Second Degree, and one Count of Unlawful Imprisonment in the Second Degree. (County's 56.1 Stmt. ¶ 1.) He was acquitted of the Aggravated Sexual Abuse in the Second Degree charge. (County's 56.1 Stmt. ¶ 1.) Under the New York Penal Law, a person is guilty of Aggravated Sexual Abuse in the Second Degree when "he or she inserts a finger in the vagina, urethra, penis, rectum, or anus, of another person . . . . when the other person is incapable of consent." N.Y. PENAL LAW § 130.67(1)(b).

In contemplation of Hirsch's sentencing, the Suffolk County probation department prepared a Pre-Sentence InvestigationReport ("PSIR"). New York State rules require a PSIR to be "impartial, fair, factual, analytical, pertinent, and relevant to the objective of the report," which is "to provide the court with relevant and reliable information." N.Y. COMP. CODES R. & REGS., tit. 9, §§ 350.3-350.5. As a result, "the report [must] contain relevant and reliable information." N.Y. COMP. CODES R. & REGS., tit. 9, § 350.7(a). Generally, in preparing a PSIR, the probation officer contacts the assistant district attorney who prosecuted the case, the police officers, and the victim, and includes in the PSIR a statement from each. (Gilson Dep. Tr. at 15:3-22:6.)³ Only in rare cases would the probation officer question or investigate the verity of the victim's statement. (Gilson Dep. Tr. at 24:14-25:21; Iaria Dep. Tr. at 35:7-37:16.) In fact, according to the probation officer that prepared Hirsch's PSIR, the fact that a defendant is acquitted of a certain charge would not cause her to investigate or question a victim's statement that insisted that the charged crime occurred. (Gilson Dep. Tr. at 24:14-25:21.)

As a result of the probation department's policy of including a victim's unverified account of events, Hirsch's victim's allegation that he penetrated her rectum was included in his PSIR.⁴ (Hirsch Decl. Ex. 1.) Specifically, Hirsch's PSIR states:

[C]ontact was made with . . . the victim in this case. She explained she met the defendant through a personal ad . . . . When she returned [from the bathroom], she questioned the defendant about what he put in her drink. It was at this time the room began to spin. She recalled running for the front door, which she found to be closed and locked. The last thing she recalled at this time was the defendant saying, "Bitch sit here." [The Victim] said she woke up to find the defendant penetrating her rectum and beating her about the head.

(Hirsch. Decl. Ex. 1 (emphasis added).) Thus, although Hirsch had been acquitted of the charge arising from the allegation that he penetrated the victim, the victim's allegation was nonetheless included in the PSIR.

B. Hirsch's Incarceration in New York State

The first effect of the inclusion of the victim's statement in Hirsch's PSIR occurred immediately after his transfer into state custody. His first stop was the Downstate Correctional Facility, a reception facility in which all inmates are initially housed. (State Defs.' 56.1 Stmt. ¶ 25.) Here, Hirsch met Defendant Tortora, an Offender Rehabilitation Coordinator. (State Defs.' 56.1 Stmt. ¶ 26.) Tortora conducted Hirsch's "Intake Interview," a roughly twenty-minute meeting where Tortora would recommend certain rehabilitation programs and determine Hirsch's ultimate placement within the New York State prison system. (State Defs.' 56.1 Stmt. ¶¶ 26, 29, 30.) Tortora, using both his interview with Hirsch and documentation provided by the County (including the PSIR), entered into the New York State Department of Corrections and Community Supervision ("DOCCS") database a "Description of Criminal Behavior." (State Defs.' 56.1 Stmt. ¶¶ 27-28.) Relying upon the victim's statement in the PSIR that Hirsch penetrated her rectum, Tortora wrote:

In the instant offense the subject on Jan. 14, '99 after meeting a woman through a personal ad in a newspaper, met said woman, bringing her to his apartment under the premise of making a phone call. Subject then administered to the female, a drug in a drink, which caused stuper & consciousness & physical impairment. When the female victim succumbed to said drug, the subject penetrated her rectum with his penis & beat her about the head [sic throughout] . . . .

(Pl.'s Counterstmt. to County's 56.1 Stmt. Ex. 7. (emphasis added).) Tortora explained that because the PSIR did not indicate that Hirsch penetrated the victim's rectum with a certain object, he assumed that he did so with his penis. (Tortora Dep. Tr. at 23:14-25:14.) Tortora did not explain, nor did counsel inquire at his deposition, why Tortora changed this clause from a recitation of the victim's statement--it was preceded by "[victim] states" in the PSIR--to a statement of fact in his description.

During his incarceration, Hirsch was required to enter into the Sex Offender Counseling Program ("SOCP") as a condition of earning good time credits toward early release. (Pl.'s Counterstmt. to State Defs.' 56.1 Stmt. at 22.) The SOCP endeavors to rehabilitate the offender by encouraging him to (1) accept responsibility for his behavior, (2) understand his cycle of sexually offending behavior, and (3) develop appropriate relapse prevention strategies. (Pernat Aff., Docket Entry 115-4, Ex. B at 3.) Therefore, a key tenet of the SOCP is that offenders be required to accept responsibility for their crimes. (Logue Decl., Docket Entry 115-7, Ex. 7 at 4.) Additionally, a participant in the SOCP must sign a "Waiver of Partial Confidentiality" form that allows counselors to report confessions made during counseling to the appropriate law enforcement agency. (Pl.'s Counterstmt. to State Defs.' 56.1 Stmt., Ex. 5 at 58.) Hirsch refused to participate in the SOCP, and signed multiple forms indicating hisunderstanding that his refusal would disqualify him from earning good time credits. (See Pernat Aff. Ex. F.)

The parties dispute why Hirsch refused to participate in the SOCP. According to Hirsch, Defendant Pernat, a Program Counselor, insisted that Hirsch could not participate without admitting to the conduct outlined in Tortora's intake form--penetrating the victim's rectum with his penis. (Pl.'s Counterstmt. to State Defs.' 56.1 Stmt. at 23.) Hirsch maintains that he was prepared to accept responsibility for the conduct of which he was convicted, but Pernat conditioned his participation on confessing to a "rape" that he did not commit. (Pl.'s Counterstmt. to State Defs.' 56.1 Stmt. at 23.) Aware that counselors would report any confessions to law enforcement, Hirsch explains that he was left with the dilemma of either incriminating himself by admitting to a crime he did not commit or refusing to enter the SOCP. (Pl.'s Counterstmt. to State Defs.' 56.1 Stmt. at 23.) According to the State Defendants, Hirsch elected not to enter the SOCP because he maintained his innocence of all charges and was in the process of appealing his sentence. Though Pernat does not recall why Hirsch chose not to enter the SOCP, (Pernat Aff. ¶ 12), the State Defendants rely upon Hirsch's own explanation in multiple refusal forms. In January 2006, Hirsch wrote that he was refusing to participate in the SOCP because, "I have [two] appeals pending and the SOCP requirement that I confess to a crimeI didn't commit and fabricate sordid details to events that never happened violates my Fifth Amendment right against self-incrimination." (Pernat Aff. Ex. F.) In a later refusal form (June 2006), Hirsch indicated that he was refusing to participate in SOCP because he "ha[s] appeals pending in this case." (Logue Decl. Ex. 8.).

C. Denial of Hirsch's Good Time Credit

With his release date approaching and still having not...