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Challenging Disciplinary Decisions in DOC Custody Self-Help Manual, Bing, 2016

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Disciplinary Tickets in DOC Custody
Do NOT Plead Guilty!
Pleading guilty waives your right to appeal your disciplinary infraction.
Do NOT Plead “Guilty with an Explanation”
This is the same as pleading guilty – you will be found guilty and will have waived your
right to appeal.

Get a Copy:
Be sure you receive a copy of the infraction and have had time to review it.
If you are called to a disciplinary hearing and have not received a copy of the ticket,
state on the record during the hearing that you did not receive a copy of the ticket. If
the hearing officer claims that you signed a refusal, state on the record that you did not
refuse, and were not given a copy of the ticket.
If you are receiving your copy of the infraction for the first time at the hearing, ask for
24 hours to prepare. If the hearing officer denies you 24 hours to prepare for the
hearing, simply state that you object - this may be grounds for successful appeal. Do
NOT throw a fit, or your will be removed from the hearing and it will be held without
you.
Preparing for the Hearing:
Accommodations:
If you have a mental health diagnosis, be sure to say this out loud at the
beginning of the hearing. Ask if you have been cleared by mental health for the
hearing.
If you cannot read, write or prepare for the hearing on your own, you may be
provided with a hearing facilitator. This person is NOT an advocate, they are
only available to help you gather materials. The Hearing Captain may serve this
role as well.
If you need an interpreter for the hearing, ask for one right away.

Reviewing the Ticket:
Review the ticket and consider all the types of evidence which may be used against you
or in your favor:
- Video or Photo evidence
- Documentation
- Physical Evidence (alleged weapons, damaged property etc.)
- Witnesses - both staff and detainee witnesses are important
At the Hearing:
Remember, the disciplinary process may feel unfair, and you may be found guilty
despite what you perceive to be inadequate or contrary evidence. The tools below will not only
help you navigate the hearing process, but will also increase your chances of beating the ticket
on appeal.
Miranda Rights:
If the infraction is for an arrestable offense (violence against staff or other
prisoners, weapons, etc.) you may be read Miranda Rights during the hearing. If
you are Mirandized, DO NOT TESTIFY on your own behalf, as what you say WILL
be used against you in any future criminal case regarding this incident. You may
call witnesses to testify on your behalf even if you do not testify. If you are NOT
Mirandized, your testimony during the disciplinary hearing cannot be used
against you.
Request ALL Evidence:
Be sure to request review of all possible evidence in your case during the
hearing. You CANNOT request new evidence during the appeal process, so the
hearing is your only opportunity.
Video and Photo Evidence: You have the right to request review of any
video and photo of the incident. If the video or photo evidence will show
you are guilty, DO NOT request it.
Physical Evidence: Request to see any physical evidence noted in the
infraction, including weapons allegedly in your possession.

Witnesses: Request as many witnesses as possible. You are entitled to
have witnesses testify in your presence so long as it does not disrupt
safety or institutional goals and the witness is “reasonably available.” If
you are denied witnesses this may be grounds for a successful appeal.
Detainee Witnesses: You may call any witnesses who were
present during an alleged incident. If you do not know the names
of people, be as descriptive as possible, noting any characteristics
you remember, the location where they were at the time, where
they are housed, etc. You can be as general as “Any detainees
present in intake on May 10, 2014 at 9:04 am.”
Staff Witnesses: It is very important to call staff witnesses even if
you believe they will testify against you. Be sure to call any staff
who were present at the time of the incident, especially the staff
who wrote the infraction. Ask them detailed questions about the
incident. If staff witnesses are not provided, it may be grounds
for successful appeal.
Your Testimony: You have the right to testify during the infraction
hearing. If your defense is based on self-defense, DOC must
consider your testimony during the hearing. Remember, if you are
read Miranda Rights, what you say WILL BE USED AGAINST YOU if
you are arrested and criminal charges are brought against you for
this incident.
If You Are Found Guilty
Within 2 Days - Appeal to the Warden:
If you are found guilty and given and given a Bing sentence of 30 days or less, place a
letter in the Warden’s box at your institution stating that you would like to appeal the
guilty finding.
Article 78 Appeal
Wait 10 days after submitting the letters described above. Then you may submit an
Article 78 appeal, which will be heard at writ court. An Article 78 Template is attached

to this guide with instructions. An Article 78 with instructions in red is included if you
find it easier to follow along as you fill out your own writ.
Once you have submitted an Article 78, you will be appointed an attorney from the
Legal Aid Society who will represent you during the appeal process.

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-----------------------------------------------------------------------_____________________________,

PETITIONER,
For a Judgement under Article 78 of the
Civil Practice Law and Rules
-AGAINSTNYC DEPARTMENT OF CORRECTION,
WARDEN OF ____________________,
RESPONDENT.

NOTICE OF MOTION
TO

CHALLENGE
DISCIPLINARY
DECISIONS
PURSUANT TO

CPLR §7800

NYSID No. _____________
B & C No. ______________

-----------------------------------------------------------------------STATE OF NEW YORK
}
COUNTY OF THE BRONX } ss:
PLEASE TAKE NOTICE, that upon the annexed petition of ________________
_________________, verified on the _____ day of ___________, 20____ and upon the petition and
affidavit, an application hereby made challenging petitioner’s Disciplinary Decision pursuant to
subdivision(s) of the CPLR 7800 to the Bronx County Supreme Court, First Judicial Department, located
at 851 Grand Concourse, Bronx, New York 10451, on the ____ day of ____________, 20___, at 9 o’
clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for a judgement releasing
petitioner from Central Punitive Segregation Unit and dismissal of the Disciplinary decision rendered on
the _________ day of ________________, 20_____, judgment made and entered by the Disciplinary
Hearing Judge of the Rikers Island Judicial Center, convicting him the hereafter listed disciplinary
infractions.
Yours, etc…
_______________________

PETITIONER

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-----------------------------------------------------------------------_____________________________,
PETITIONER,
For a Judgement under Article 78 of the
Civil Practice Law and Rules

AFFIDAVIT IN SUPPORT

TO
CHALLENGE
DISCIPLINARY
DECISION
PURSUANT TO

-AGAINSTNYC DEPARTMENT OF CORRECTION,
WARDEN OF ___________________,
RESPONDENT.

CPLR §7800

NYSID No. _____________
B & C No. ______________

-----------------------------------------------------------------------STATE OF NEW YORK }
COUNTY OF THE BRONX} ss:
I, _________________________, being duly sworn, deposed and state:
I am the Petitioner in the above-entitled action, and am personally familiar with the facts
and circumstances herein stated.
I am a detainee presently being detained at _____________, listed hereunder the
mailing address of _________ Hazen Street, Rikers Island, East Elmhurst, New York 11370,
herein considered the County of the Bronx.
Whereupon, although I am personally familiar with all of the facts and statements
hereinafter stated to the best of my knowledge, information and belief, I am a layperson in
matters of the law and seek this Court’s indulgence for errors, defects and faults pursuant to sec.
2101(f) of the Civil Practice Law and Rules.

On the ________ day of ___________________, 20____, an Infraction was written
against me for allege violation of the following Department of Correction Detainee Conduct
rule(s):
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
No previous application for the relief herein prayed for has been made.
Whereupon, this petitioner respectfully request the Court to order the petitioner’s
immediate release from the Punitive Segregation Unit and dismissal of the disciplinary decision
rendered on the _________ day of ________________, 20_____, made and entered by the
Disciplinary Hearing Judge of the Rikers Island Judicial Center, pursuant to the laws, statutes,
and arguments annexed herein.

STATEMENT OF FACTS

LEGAL ARGUMENT
In addition to the above stated facts, the following situations MAY apply and warrant
dismissal of the infraction pursuant to Directive 6500, paragraph III.B.4.
A) There is no proof of service to show that the inmate received the Notice of Infraction because
the inmate did not sign the Notice and there is no acknowledgement by a staff member that
the inmate refused to sign it.
B) There is contradictory information and/or inconsistent allegations of facts recited in the
Report and these are material or important facts.
C) The “Statement of Infraction Details” are so vague as to not give notice to the inmate of the
charges against him.
D) There is incorrect material information within the body of the charges.
E) The supervising Officer or Captain who investigated the incident was a participant in the
incident, which formed the basis for the charges.
F) The investigation of the infraction was not commenced within twenty-four (24) hours of the
incident.
G) The witnesses requested by the inmate were not allowed to testify.
H) The inmate was not allowed to review relevant documentary or physical evidence introduced
at the hearing and therefore was unable to dispute the evidence.
I) The inmate was not allowed to be present during witnesses’ testimony and no or inadequate
reasons were given for excluding the inmate.
J) The inmate was not allowed to ask the witnesses any questions and dispute the testimony.
K) The Hearing Officer did not summarize the testimony setting forth specific reasons for his
finding of guilt.
L) The inmate was denied the assistance of an interpreter.
M) The records of the hearing are incomplete because the Hearing Officer failed to tape record
the proceeding.
N) The Hearing Officer considered evidence outside the record or which was not presented at
the hearing.
O) The inmate was not allowed to appear at the hearing and no good reason was given for
excluding the inmate.

The Petitioner respectfully requests the right to make any and all further motions as may
be necessary as a result of information and disclosure from the granting of the requests made
herein and/or information received from any record within a reasonable time.
WHEREFORE, this Petitioner respectfully prays that an order be issued granting this
motion pursuant to the aforesaid sections of the New York State Civil Procedure Law & Rules,
and taking into consideration the facts and argument annexed herein, or, in the alternative, an
order be issued granting partial relief, or whatever relief the Court sees and deems fit and
appropriate to insure the swift and proper administration of justice.

Yours, etc…

_____________________________
PETITIONER

Sworn to before me this

_____ day of _______________, 20___.

____________________________________
NOTARY PUBLIC / COMMISSIONER OF DEEDS

AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
COUNTY OF BRONX ) ss:

I, ______________________________, being duly sworn deposed and states:
That I have on the _____ day of ____________________, 20____, placed and submitted
the original and copies of this motion to be duly mailed via the United States Postal Service,
through the institutional mailroom of______________________ the papers were mailed to the
following concerned parties:

Bronx County Hall of Justice
Supreme Court – Criminal Division
Writ Court Clerk
265 East 161st Street
Bronx, New York 10451
Appeals Attorney
Department of Correction, Legal Division
75 – 20 Astoria Boulevard
East Elmhurst, New York 11370
Yours, etc…
______________________________
PETITIONER
Sworn to before me this
_____ day of _____________, 20____.

____________________________________
NOTARY PUBLIC / COMMISSIONER OF DEEDS

INSTRUCTIONS

ARTICLE 78

BING WRIT
The attached motion is blank and is to be completed by YOU with the particulars of your case. The information
below instructs you on what is to go in the blank spaces on each page. The explanations are numbered to coincide
with the line number on that particular page. For example: explanation # 6 goes on the blank space on the 6 th line of
that page. Start counting lines at the very top of the page.
PAGE # 1 – NOTICE
3) Print your name.
13) Print your first name.
14) Print your last name; Day, Month, & Year you completed this motion.
17) Day two weeks from day on line # 14.
18) Month & Year two weeks from the date on line # 14.
20) Day & Month your disciplinary decision was made.
21) Year your disciplinary decision was made.
23) Sign your name!
PAGE # 2 – AFFIDAVIT
3) Print your full name.
13) Print your full name.

PAGE # 3 – AFFIDAVIT CONTINUED
3)
Day, Month, & Year your infraction was written.
6-10) List the infraction charges against you, number and description.
14) Day, Month, & Year infraction decision made.
PAGE # 4 – STATEMENT OF FACTS
1) Write out the facts of your case and why you feel your rights have been violated. Explain why you think your
infraction should be dismissed or the days should be reduced. Use additional paper if need. DO NOT write on
the back of any pages!
PAGE # 5 – LEGAL ARGUMENT
1) Review argument if included. Use additional paper to add any new law if applicable. DO NOT write on the
back of pages!
PAGE # 6 – NOTARY PAGE
13) Sign your name!
PAGE # 7 – AFFIDAVIT OF SERVICE
4) Print your name.
5) Day, Month, & Year the motion is notarized.
20) Sign your name!

FOLLOW ALONG

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-----------------------------------------------------------------------_____

Your Name Here______,
PETITIONER,

For a Judgement under Article 78 of the
Civil Practice Law and Rules
-AGAINSTNYC DEPARTMENT OF CORRECTION,
WARDEN OF ____Jail Where Incident Occured____,
RESPONDENT.

NOTICE OF MOTION
TO

CHALLENGE
DISCIPLINARY
DECISIONS
PURSUANT TO

CPLR §7800

NYSID No. _Your NYSID_
B & C No. Book + Case _

-----------------------------------------------------------------------STATE OF NEW YORK
}
COUNTY OF THE BRONX } ss:
PLEASE TAKE NOTICE, that upon the annexed petition of _Your Name Here__
_________________, verified on the _Today’s Date_ day of _Month_, 20Year_ and upon the petition
and affidavit, an application hereby made challenging petitioner’s Disciplinary Decision pursuant to
subdivision(s) of the CPLR 7800 to the Bronx County Supreme Court, First Judicial Department, located
at 851 Grand Concourse, Bronx, New York 10451, on the 14 Days after today’s date

day of Month

(if 14 days later is the next month, write the next month), 20Year, at 9 o’ clock in the forenoon of that
day, or as soon thereafter as counsel can be heard, for a judgement releasing petitioner from Central
Punitive Segregation Unit and dismissal of the Disciplinary decision rendered on the Date you were found
guilty

day of _Month_, 20_Year_, judgment made and entered by the Disciplinary Hearing Judge of the

Rikers Island Judicial Center, convicting him the hereafter listed disciplinary infractions.
Yours, etc…
___Sign Here______

PETITIONER

FOLLOW ALONG

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-----------------------------------------------------------------------_____

Your Name Here______,
PETITIONER,

NOTICE OF MOTION
TO

CHALLENGE
DISCIPLINARY
DECISIONS
PURSUANT TO

For a Judgement under Article 78 of the
Civil Practice Law and Rules

CPLR §7800

-AGAINSTNYC DEPARTMENT OF CORRECTION,
WARDEN OF ____Jail Where Incident Occured____,
RESPONDENT.

NYSID No. _Your NYSID_
B & C No. Book + Case _

-----------------------------------------------------------------------STATE OF NEW YORK }
COUNTY OF THE BRONX} ss:
I, _Your Name___, being duly sworn, deposed and state:
I am the Petitioner in the above-entitled action, and am personally familiar with the facts
and circumstances herein stated.
I am a detainee presently being detained at _Jail where you are housed__, listed
hereunder the mailing address of _Jail Address_ Hazen Street, Rikers Island, East Elmhurst,
New York 11370, herein considered the County of the Bronx.
Whereupon, although I am personally familiar with all of the facts and statements
hereinafter stated to the best of my knowledge, information and belief, I am a layperson in
matters of the law and seek this Court’s indulgence for errors, defects and faults pursuant to sec.
2101(f) of the Civil Practice Law and Rules.

FOLLOW ALONG

On the Date of Infraction

day of Month_, 20Year, an Infraction was written against

me for allege violation of the following Department of Correction Detainee Conduct rule(s):
_

List the charges on your infraction

______________________________________
______________________________________
______________________________________
______________________________________
No previous application for the relief herein prayed for has been made.
Whereupon, this petitioner respectfully request the Court to order the petitioner’s
immediate release from the Punitive Segregation Unit and dismissal of the disciplinary decision
rendered on the Date you were found guilty

day of Month, 20Year, made and entered by

the Disciplinary Hearing Judge of the Rikers Island Judicial Center, pursuant to the laws,
statutes, and arguments annexed herein.

FOLLOW ALONG

STATEMENT OF FACTS

2)

State that you were not guilty of the infraction. Write out the facts of your case and why you
feel your rights have been violated – if you were denied time to prepare for the hearing, if
you were denied witnesses you requested, or the opportunity to view evidence used against
you (video, weapons recovered, etc.). Explain why you think your infraction should be
dismissed or the days should be reduced. Use additional paper if need. DO NOT write on the
back of any pages.

FOLLOW ALONG
LEGAL ARGUMENT
This section of the template describes all possible challenges to your ticket to be sure your
challenge is complete – you do not need to add or remove anything from this section.
In addition to the above stated facts, the following situations MAY apply and warrant
dismissal of the infraction pursuant to Directive 6500, paragraph III.B.4.
P) There is no proof of service to show that the inmate received the Notice of Infraction because
the inmate did not sign the Notice and there is no acknowledgement by a staff member that
the inmate refused to sign it.
Q) There is contradictory information and/or inconsistent allegations of facts recited in the
Report and these are material or important facts.
R) The “Statement of Infraction Details” are so vague as to not give notice to the inmate of the
charges against him.
S) There is incorrect material information within the body of the charges.
T) The supervising Officer or Captain who investigated the incident was a participant in the
incident, which formed the basis for the charges.
U) The investigation of the infraction was not commenced within twenty-four (24) hours of the
incident.
V) The witnesses requested by the inmate were not allowed to testify.
W) The inmate was not allowed to review relevant documentary or physical evidence introduced
at the hearing and therefore was unable to dispute the evidence.
X) The inmate was not allowed to be present during witnesses’ testimony and no or inadequate
reasons were given for excluding the inmate.
Y) The inmate was not allowed to ask the witnesses any questions and dispute the testimony.
Z) The Hearing Officer did not summarize the testimony setting forth specific reasons for his
finding of guilt.
AA)

The inmate was denied the assistance of an interpreter.

BB) The records of the hearing are incomplete because the Hearing Officer failed to tape
record the proceeding.
CC) The Hearing Officer considered evidence outside the record or which was not presented
at the hearing.
DD) The inmate was not allowed to appear at the hearing and no good reason was given for
excluding the inmate.

FOLLOW ALONG

The Petitioner respectfully requests the right to make any and all further motions as may
be necessary as a result of information and disclosure from the granting of the requests made
herein and/or information received from any record within a reasonable time.
WHEREFORE, this Petitioner respectfully prays that an order be issued granting this
motion pursuant to the aforesaid sections of the New York State Civil Procedure Law & Rules,
and taking into consideration the facts and argument annexed herein, or, in the alternative, an
order be issued granting partial relief, or whatever relief the Court sees and deems fit and
appropriate to insure the swift and proper administration of justice.

Yours, etc…

____Sign Here_______
PETITIONER
Your petition must be notarized. Notaries Are Available in the Law Library or you can ask your
attorney for help.
Sworn to before me this

_____ day of _______________, 20___.

____________________________________
NOTARY PUBLIC / COMMISSIONER OF DEEDS

FOLLOW ALONG
You must sign an affidavit of service – this swears that you sent copies of your petition to the
appropriate places. Have your signature notarized by Social Services or in the Law Library when
you send your petition.
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
COUNTY OF BRONX ) ss:

I, __Your Name____, being duly sworn deposed and states:
That I have on the _Date you send your petition

day of Month__, 20Year_, placed

and submitted the original and copies of this motion to be duly mailed via the United States
Postal Service, through the institutional mailroom of_Jail where you are housed
were mailed to the following concerned parties:

Bronx County Hall of Justice
Supreme Court – Criminal Division
Writ Court Clerk
265 East 161st Street
Bronx, New York 10451
Appeals Attorney
Department of Correction, Legal Division
75 – 20 Astoria Boulevard
East Elmhurst, New York 11370
Yours, etc…
___Sign Here
_____
PETITIONER
Sworn to before me this
_____ day of _____________, 20____.

____________________________________
NOTARY PUBLIC / COMMISSIONER OF DEEDS

___ the papers

PLEASE BE ADVISED
The courts favor motions from your
attorney, unless you are officially Pro Se.’
You should always consult your attorney
before submitting a motion on your own
behalf. If you choose to submit a motion on
your own, please remember,
LAW LIBRARY
SAMPLES.

MOTIONS

ARE

TEMPLATE

They are broad and blank, only providing
the general format of the particular motion.
Motions should be tailored specifically for
your case with specific facts and relevant
laws. You should check to make sure all the
law cited is up to date. Remember, you are
responsible for anything you sign and
submit to the courts.

 

 

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