D.G. v Rodriguez

Holding The court annulled the disciplinary determination and ordered the expungement of the record because the possession of cellular phones does not meet the HALT Act’s statutory requirement of being a ‘heinous or destructive’ act that poses an imminent risk of serious physical injury. The court found that the hearing officer relied on speculative testimony and a prohibited policy of ‘inherency’ rather than specific facts to justify extended segregated confinement.

The court’s words

the possession of contraband, specifically cellular telephones, is not remotely within the general category of offenses outlined in Correction Law § 137 (6) (k) (ii) (A)-(G)

89 Misc 3d 988, at the official text

hearing officers have no authority to disregard the HALT Act’s statutory limitations and requirements by substituting their own judgment and imposing penalties beyond those which the law allows

89 Misc 3d 988, at the official text

the finding of imminency in this case is insufficient as it is based on speculation and conjecture

89 Misc 3d 988, at the official text

the acts of petitioner, specifically, the possession of multiple cellular phones, is not, absent more specific testimony, by its nature, heinous nor destructive

89 Misc 3d 988, at the official text