IN RE: the Application of Demar Johnson (2026)

This CPLR article 78 proceeding concerns the scope of the statutory right to representation afforded to incarcerated individuals under the Humane Alternatives to Long-Term Solitary Confinement Act (Correction Law § 137 [6] [l]) (hereinafter the HALT Act) during Tier III disciplinary hearings which may result in segregated confinement. Petitioners challenge their Tier III dispositions based on a common procedural ground—that the Department of Corrections and Community Supervision (DOCCS) violated their statutory right to representation under the HALT Act by disregarding and failing to advise petitioners of notices of representation (NORs) submitted by Prisoners' Legal Services (PLS) on their behalf. Petitioners further assert that Michael Wales was relatedly deprived of his right to appear and present a defense. Petitioners contend that these violations render DOCCS's determinations arbitrary and capricious under CPLR 7803 (3), warranting vacatur and expungement of their institutional records.

While the court recognizes that segregated confinement within the parameters of the HALT Act is at times necessary for institutional safety, it finds that, in this case, the governing regulations were applied in a manner inconsistent with the statute's overall purpose, resulting in a deprivation of petitioners' statutory right to counsel. The Legislature's creation of a statutory right to counsel to defend incarcerated individuals against lengthy segregated confinement cannot be reconciled with the procedures implemented here, which left petitioners wholly unaware that counsel was attempting to appear to represent them at their disciplinary hearings. Thus, for the reasons that follow, the petition is granted, the determinations are annulled, and respondent is directed to expunge all references to these matters from petitioners' institutional records.

Procedural Background

Petitioners collectively commenced this CPLR article 78 proceeding by verified petition and notice of petition filed on March 4, 2026, against respondent Daniel F. Martuscello III, as Commissioner of DOCCS, challenging common procedural deficiencies in their Tier III disciplinary hearings. Petitioners allege:

"DOCCS has adopted a policy and practice of disregarding [NORs] and conducting disciplinary hearings in the absence of counsel"; and "[p]ursuant to this policy and practice, DOCCS regularly fails to respond to the [NOR], and does not inform the incarcerated individual that [an NOR] has been filed on their behalf" (NYSCEF Doc No. 56, 13).

For petitioners Johnson and Wales, PLS submitted an NOR before commencement of hearings; for petitioners Lewis, Ortiz, and Smith, PLS submitted an NOR during an adjournment before hearings concluded. None of the five petitioners were informed at any point before their hearing concluded that PLS was attempting to appear.

Petitioners assert two causes of action: (1) denial of the statutory right to outside representation under the HALT Act (Correction Law § 137 [6] [l]); and (2) denial of the right to appear and present a defense, as to petitioner Wales only. Petitioners seek vacatur of their Tier III dispositions, expungement of their institutional records, restoration to the status they held before the hearings, and an order requiring DOCCS to file a sworn statement confirming the expungement.

On April 1, 2026, respondent moved pre-answer to dismiss the petition for failure to state a claim, or, alternatively, to sever petitioners' claims into five separate proceedings. The court denied the motion in a full decision and order entered April 27, 2026 (NYSCEF Doc No. 52). On July 17, 2026, respondent filed an answer to the amended verified petition, accompanied by a sworn affirmation from Anthony Rodriguez, Director of Special Housing and Incarcerated Individual Disciplinary Programs, and exhibits comprising the administrative record for each hearing along with a memorandum in opposition (NYSCEF Doc Nos. 91-120).¹ Respondent argues that petitioners have no constitutional right to counsel in disciplinary hearings; that any statutory right was either waived, not invoked, or not timely secured; that DOCCS complied with all regulations; that petitioner Wales was properly removed from his hearing for disruptive behavior; and that, were petitioners to prevail, expungement is not an available remedy. With the filing of petitioners' reply memorandum, the petition is now fully submitted.

Also before the Court is respondent's motion to seal exhibits C, H, I, O, T, U, and Z to the Rodriguez affirmation, which are part of petitioners' disciplinary hearing records, pursuant to 22 NYCRR 216.1 (NYSCEF Doc No. 124). By letter dated August 31, 2026, respondent's counsel advises that the parties have resolved the motion to the extent that they have agreed to the sealing of all exhibits, with the sole outstanding issue being whether petitioners' counsel should be granted access to exhibits C and T (NYSCEF Doc No. 135).

Factual Background — The Disciplinary Proceedings

Petitioner Demar Johnson

On September 23, 2025, petitioner Johnson was served with two misbehavior reports stemming from incidents that occurred the previous day. On Friday, September 26, 2025, at 4:00 p.m., PLS emailed the disciplinary office at Clinton Correctional Facility—apparently at Johnson's mother's request—and submitted an NOR requesting a hearing adjournment pending a legal call (NYSCEF Doc No. 59). According to PLS, due to the timing of superintendent's hearings and restrictions on incarcerated individual's telephone access, PLS had no way of contacting petitioner Johnson in advance of the hearing, which convened on September 29, 2025.

Petitioner Johnson avers that, prior to the hearing commencing on Monday, September 29, 2025, at 8:19 a.m., he asked for his attorney to be present; however, the hearing officer advised that if he proceeded with an immediate hearing and pled guilty, he would be given a reduced sanction, which he elected to do. The hearing minutes reflect that, at the outset, the hearing officer advised petitioner Johnson that he could either proceed immediately or postpone the hearing to obtain representation. Petitioner Johnson replied, "I want to go forward," and confirmed that he wished to proceed with an immediate hearing (NYSCEF Doc No. 94 at 4-5). The hearing officer then stated, "let the record reflect the I/I is declining tier assistance and legal representation at this time" (id. at 5). The hearing concluded at 1:30 p.m. (id. at 12). Petitioner Johnson was found guilty of all charges and received a sanction that included 358 days in a special housing unit (SHU) or alternative confinement. PLS was never contacted, and petitioner Johnson was never advised that PLS had filed an NOR on his behalf.

After the hearing concluded, on October 20, 2025, PLS spoke with petitioner Johnson in a confidential legal call and first advised him that PLS had submitted an NOR on his behalf prior to the hearing. Petitioner Johnson, through counsel, timely appealed and, on December 11, 2025, respondent affirmed the hearing disposition.

Petitioner Quinjavis Lewis

On November 19, 2025, Petitioner Quinjavis Lewis was served with a misbehavior report arising from an incident earlier that day. Petitioner Lewis asserts that, on November 23, 2025, he sent a letter to PLS requesting representation because he had no other, quicker way of contacting the agency directly. Petitioner Lewis' hearing commenced the next day, on November 24, 2025. The hearing officer advised petitioner Lewis that he could proceed immediately or request a postponement to obtain representation, and petitioner Lewis responded that he wished to contact PLS (NYSCEF Doc No. 98 at 3). The hearing officer responded, "Okay. So, you have forty-eight hours to reach out to PLS. If they don't contact the facility, we are moving forward with your hearing. Alright?" (id.). Petitioner Lewis initially responded, "Alright," but then indicated that he wanted to proceed (id. at 4). Petitioner Lewis avers that he chose to move forward with the hearing because he did not believe that he would be able to meet the 48-hour deadline. Petitioner Lewis thereafter requested witnesses and evidence, prompting an adjournment of the hearing (id. at 10-14). The hearing reconvened on November 26, 2025, and was thereafter adjourned for a written disposition (id. at 15-21).

PLS did not receive petitioner Lewis' letter request for counsel until December 1, 2025—a delay consistent with difficulties faced by incarcerated individuals relying on regular mail. PLS emailed the disciplinary office at Eastern Correctional Facility the same day and filed an NOR requesting an adjournment of the hearing pending a legal call with petitioner Lewis (NYSCEF Doc No. 66). According to PLS, on December 2, 2025, the hearing officer called PLS and advised that the hearing had commenced the week prior and that, while PLS would be allowed to appear as representative, no previously reviewed evidence would be repeated.

On December 2, 2025, the disciplinary office emailed counsel and attached the misbehavior report (NYSCEF Doc No. 101 at 5). PLS responded that it had spoken with the hearing officer and requested copies of video evidence previously viewed at the hearing (id. at 6-7). The facility denied the video request on security grounds (id. at 8-11), instigating an email exchange between PLS and the facility regarding the writers' conflicting interpretation of DOCCS Directive 4932 and counsel's entitlement to the video. PLS stated that it would gladly sign any required non-disclosure agreement for the release of the video, "but if we are not provided the video, I will object to this on the record and will appeal any disposition based on the denial of Mr. Lewis' right to representation and our inability to present a defense."

The hearing officer responded a short while later, stating:

"[A]s the hearing officer, I would like to be clear, the subject was afforded the opportunity at his hearing on 11/24/2025 to request a representative and the subject refused a representative and asked to move forward with an immediate hearing on that day. At this time, the hearing will move forward without a representative. It should be noted that the subject always has the opportunity to utilize the appeal process if he is not satisfied with the disposition."

PLS responded:

"If Mr. Lewis says at this time that he would prefer to proceed without a representative, that is his choice. However, we have entered a notice of representation, based on our receiving a request from him directly to represent him. Our position is that, as we have now given notice of representation, you are required to call us when the hearing reconvenes, and give him the opportunity to refuse our representation on the record. What he does at that point is up to him."

On December 3, 2025, the hearing reconvened and concluded, without counsel or any reference to PLS's attempts to appear. Petitioner Lewis was found guilty of all charges, and the imposed sanction included 136 days in SHU or an alternative. At no point did the hearing officer advise petitioner Lewis of PLS's attempt to intervene. PLS filed an administrative appeal and, on February 5, 2026, DOCCS rendered a determination reversing one charge but otherwise affirming the hearing officer's disposition.

Petitioner Juan Ortiz

On July 31, 2025, petitioner Ortiz was served with a misbehavior report stemming from an incident on July 29, 2025 (NYSCEF Doc No. 103). His hearing commenced on August 11, 2025, but was adjourned to August 21, 2025 upon petitioner's request for a postponement to obtain counsel (NYSCEF Doc No. 104 at 4-7). Petitioner Ortiz was provided with a scheduling notice for a new date and instructions for outside counsel to contact the facility at least two business days in advance (NYSCEF Doc No. 103 at 46).

On August 21, 2025 at 9:30 a.m., PLS emailed the disciplinary office at Upstate Correctional Facility and submitted an NOR requesting an adjournment of the hearing pending a legal call with petitioner Ortiz (NYSCEF Doc No. 71); however, the NOR was backdated to August 15, 2025, and the proposed dates for legal calls had already passed (NYSCEF Doc No. 105 at 3). The disciplinary office acknowledged receipt of the email, noted the dates had passed, and requested new proposed dates for legal calls (id. at 1).

Petitioner Ortiz's hearing reconvened on August 21, 2026, in the absence of counsel. Petitioner Ortiz objected on the record to the denial of his right to representation and identified by name a PLS paralegal with whom he had been in contact (NYSCEF Doc No. 104 at 8). The hearing officer stated on the record that, as of 8:00 a.m., he had not received any contact from counsel and would therefore proceed (id.). Petitioner Ortiz again objected, explaining that he had spoken with PLS as recently as August 12 (id. at 8-9). The hearing officer reiterated that no outside counsel had contacted the facility and continued the hearing (id. at 10-11).

Petitioner Ortiz later renewed his objection to the hearing proceeding without counsel (id. at 48). The hearing officer responded: "I know that you think you should have a representative. Your representative did not contact the facility. I checked myself this morning" (id.). Petitioner Ortiz reiterated that he had spoken with his lawyer on August 12 and provided instructions for contacting the facility (id. at 50-51). The hearing officer replied that counsel "never followed the instructions you gave them," concluding that this was "why you don't have a lawyer at this point," and thereafter proceeded (id. at 51). The hearing officer adjourned the hearing once more to obtain additional evidence requested by petitioner Ortiz (id. at 85). On August 25, 2025, the hearing reconvened and concluded, still without counsel. PLS filed an administrative appeal, and DOCCS affirmed the disposition on November 10, 2025.

Petitioner Shakeem Smith

On September 3, 2025, petitioner Shakeem Smith was served with a misbehavior report stemming from an incident on September 2, 2025. His hearing began on September 4, 2025. The transcript shows that the hearing officer advised petitioner Smith that he could proceed immediately or request a postponement to obtain representation. Petitioner Smith stated that he needed assistance, and the hearing was adjourned (NYSCEF Doc No. 109 at 2-3).

On September 11, 2025, petitioner Smith's family member contacted PLS to request representation. The same day, PLS submitted an NOR by email to the correctional facility and requested an adjournment pending a legal call with petitioner Smith, along with a letter proposing seven possible dates for the call (NYSCEF Doc Nos. 79, 110). On September 15, 2026, having received no response, PLS followed up by email, and the facility responded the next day (NYSCEF Doc No. 110). However, by that time, petitioner Smith's hearing, which reconvened on September 15, 2025, had already concluded. PLS was not contacted, and the hearing officer did not advise petitioner Smith that PLS had filed an NOR. Petitioner Smith was found guilty of all charges and received a sanction that included 13 days of prehearing SHU confinement and 167 days in a residential rehabilitation unit (RRU) (NYSCEF Doc No. 108 at 3). PLS filed an administrative appeal, and DOCCS affirmed the disposition on December 9, 2025.

Petitioner Michael Wales

On November 15, 2025, petitioner Michael Wales was served with a misbehavior report stemming from an incident the previous day. On November 17, 2025, at 3:37 p.m., PLS submitted by email to the correctional facility an NOR with request for an adjournment pending a legal call with petitioner Wales (NYSCEF Doc No. 86).

Petitioner Wales's hearing commenced on November 18, 2025, at 8:16 a.m. The transcript reflects that the hearing officer opened by stating that procedural objections should be raised promptly and that petitioner Wales's "due process rights will be protected," but she did not advise him of his statutory right to counsel or of his option to postpone the hearing to secure representation (NYSCEF Doc No. 116 at 2). She then asked, "do you understand this?", and Wales responded, "I'd like to make an objection." The hearing officer replied that the hearing had not yet begun, so there did not seem to be any grounds for an objection at that point (id.). A verbal exchange followed, portions of which were inaudible. The hearing officer warned petitioner Wales not to speak over her and stated that he would be removed if he continued. At 8:17 a.m., the audio recording stopped. When the recording resumed, the hearing officer stated that petitioner Wales had made threats against her, which petitioner Wales denied, and the recording stopped again (id. at 3). At 9:27 a.m., the hearing officer stated that petitioner Wales had been removed from the hearing, which was proceeding in his absence. According to the hearing officer, petitioner Wales "immediately began arguing and talking over" her and, after being warned of removal, called her a "dirty bitch" and stated he would "hunt [her] down and kill [her]" (id. at 4-5). At the conclusion of the hearing, the hearing officer found petitioner Wales guilty of all charges and imposed a sanction that included 361 days in SHU or alternative confinement. PLS filed an administrative appeal; DOCCS reversed one charge but otherwise affirmed the disposition on January 20, 2026.

Statutory Background — The HALT Act

"[P]rior to the passage of the HALT Act, an incarcerated individual did not have a right to counsel at a disciplinary hearing" (Matter of Wingate v Martuscello, 249 AD3d 14, 17 [3d Dept 2015]). With passage of the HALT Act, the Legislature created a statutory—but not constitutional—right to representation for incarcerated individuals facing segregated confinement (see Matter of Wingate v Martuscello, 249 AD3d at 18 ["the right to counsel during a prison disciplinary hearing has not been seen as a due process right"]; Matter of Spencer v Martuscello, 244 AD3d at 1464 ["an incarcerated individual does not have a constitutional right to either retained or appointed counsel in a prison disciplinary proceeding"]).²

Under the HALT Act, persons facing segregated confinement "shall be permitted to be represented by any attorney or law student, or by any paralegal or incarcerated person unless the department reasonably disapproves of such paralegal or incarcerated person based upon objective written criteria developed by the department" (Correction Law § 137 [6] [l]). "The pertinent regulations have since also been amended to specify that '[w]here an incarcerated individual is placed in, or pending possible placement in, segregated confinement pending a disciplinary hearing or superintendent's hearing, such incarcerated individual shall be permitted to be represented by,' as is relevant here, 'an attorney, having good standing, admitted to practice in any state' " (Matter of Wingate v Martuscello, 249 AD3d at 17, quoting 7 NYCRR 251-5.2 [a] [1]).

DOCCS' implementing regulations provide procedure for outside counsel to submit a required notice of representation and request an adjournment:

"At least two business days before the scheduled hearing, the attorney, law student, or paralegal must contact the facility by email, providing notice of representation, written certification such representative meets all departmental requirements for such representation, and a publicly listed business phone number where they can be reached by the hearing officer at scheduled date and time of the hearing" (7 NYCRR 251-5.3 [a]).

"Outside representatives may make one written request for postponement . . . provided that such request is submitted by email with the notice of outside representation and reasonably describe the assistance sought . . .

"Reasonable postponement requests may be granted dependent upon the scheduling needs of the facility; however, such postponements may not exceed 14 calendar days from the charged initial placement in segregated confinement" (7 NYCRR 251-5.4 [a], [b]).

DOCCS Directive No. 4932 § VII (NYSCEF Doc No. 119) also reiterates that an incarcerated individual facing a Tier III hearing may obtain outside representation and authorizes the hearing officer to grant up to a seven-day postponement to allow the incarcerated individual time to secure counsel (§ VII [A]). The Directive allows for telephone access within 24 hours and makes explicit that it is the incarcerated individual's responsibility to timely secure representation (§ VII [A] [1]). Outside representatives must contact the disciplinary office, by email, at least two business days before the scheduled hearing date and may make one written postponement request (§ VII [A] [2], [3]). The Directive defines the representative's role—to speak on behalf of the individual, enter a plea, present evidence, and request witnesses—and prohibits any represented individuals from participating as co-counsel (§ VII [C]).

The DOCCS regulations and directives implementing the HALT Act overlay the pre-existing statutory timeframes for Tier III disciplinary hearings. Correction Law § 137 (6) (d) (ii) (C) provides that disciplinary hearings for individuals in prehearing segregated confinement "shall occur as soon as reasonably practicable and at most within five days of such placement unless the charged person seeks a postponement of the hearing" (see also 7 NYCRR 251-5.1 [a]). These timeframes are directory, rather than mandatory, however (see Matter of Guerrero v Martuscello, 2026 NY Slip Op 01263, *3 [3d Dept 2026]; Matter of Coggins v Rodriguez, 236 AD3d 1285, 1286 [3d Dept 2025]), and DOCCS regulations further provide for adjournments, upon request, for purposes of seeking employee assistance and/or representation (7 NYCRR 251-5.1 [a], [b]).

Legal Analysis

Standard of Review

Judicial review of DOCCS determinations is limited to whether the agency violated lawful procedure, committed an error of law, acted arbitrarily and capriciously, or abused its discretion (CPLR 7803 [3]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. When a determination is supported by a rational basis, it must be sustained even if the reviewing court would have reached a different result" (Matter of John E. Andrus Mem., Inc. v Commissioner of Health of the NY State Dept. of Health, 225 AD3d 959, 961 [3d Dept 2024], quoting Matter of Evercare Choice, Inc. v Zucker, 218 AD3d 882, 885 [3d Dept 2023]). Where the question presented is one of pure statutory interpretation, courts are to consider the statutory language and legislative history without deference to the agency's interpretation (see Matter of Clean Air Coalition of W.NY, Inc. v New York State Pub. Serv. Commn., 249 AD3d 1446, 1448 [3d Dept 2026], citing Matter of Charter Communications, Inc. v New York State Tax Appeals Trib., 244 AD3d 1634, 1636 [3d Dept 2025]). An agency interpretation that conflicts with a statute's plain language or legislative intent is arbitrary and capricious (id.). However, when applying a statute requires an understanding of agency operations, technical expertise, or the evaluation of factual data and related inferences, courts must generally defer to the agency's institutional knowledge and determination (see Matter of Charter Communications, Inc. v New York State Tax Appeals Trib., 244 AD3d at 1636, citing Matter of Saratoga Economic Dev. Corp. v State of NY Auths. Budget Off., 222 AD3d 1072, 1074 [3d Dept 2023]).

Petitioners claim that DOCCS violated their statutory right to outside representation under the HALT Act (Correction Law § 137 [6] [l]) and its implementing regulations. Petitioners assert that, although PLS submitted NORs on their behalf, DOCCS failed to acknowledge those notices, contact counsel, or inform petitioners that counsel had appeared. As a result, petitioners were compelled to proceed without representation, rendering any purported waivers of counsel unknowing and involuntary. Thus, petitioners argue, respondent violated their statutory rights under the HALT Act, rendering arbitrary and capricious the resulting disciplinary determinations.³

Applying Correction Law § 137 (6) (l) to petitioners' cases, the court holds that respondent's inflexible application of DOCCS' implementing regulations (7 NYCRR 251-5.2, 251-5.3, 251-5.4) and failure to advise petitioners of counsel's filing of an NOR and request for a reasonable adjournment violated their statutory right to counsel under the HALT Act, especially upon consideration of the communication and other practical barriers posed by incarceration, which are further exacerbated in instances of pre-hearing segregated confinement. In creating a statutory right to counsel under the HALT Act, "[t]he Legislature plainly intended representation to be available to incarcerated individuals when faced with the imposition of segregated confinement and [courts] must give effect to that intent" (Matter of Wingate v Martuscello, 249 AD3d at 18). In each petitioner's case, PLS emailed an NOR to the facility along with a reasonable request for an adjournment pending a legal call with its client—before the initial hearing (Johnson, Wales) or during an adjournment (Lewis, Ortiz, Smith)—yet none of the petitioners were so informed. Respondent's failure to, at a minimum, advise petitioners of PLS's attempts to appear undermined the legislative intent of the statute and deprived them of their statutory right to counsel. And proceeding with petitioners' hearings—without consideration for PLS's request for an adjournment pending a legal call—constituted an abuse of discretion. In so holding, the court has considered the statutory and regulatory timelines governing Tier III hearings, counterbalanced by the limited ability of incarcerated individuals to secure and communicate with outside counsel.

Respondent argues in opposition that it was petitioners' burden to arrange for representation and that each of the petitioners waived their statutory right to counsel by proceeding with their hearings. With respect to waiver of statutory rights, as contrasted to constitutional rights, the Court of Appeals has "been more flexible regarding the acceptable form of voluntary waivers" (People v Vargas, 88 NY2d 363, 376 [1996]). However, the waiver of a statutory right must still be made by "a voluntary, knowing and intelligent choice" (People v Vargas, 88 NY2d at 375-376). Under the facts presented, the court finds that respondent's failure to advise petitioners that an attorney was actively attempting to represent them at the contested hearings rendered any purported waiver of their statutory right to counsel unknowingly and involuntarily entered.

Expungement of Institutional Record

Based on the violation of each petitioner's statutory right to counsel under the HALT Act, the court concludes that annulment of all five Tier III dispositions, and the corresponding administrative appeal determinations, is warranted. Expungement is required only when (1) the disciplinary determination is not supported by substantial evidence; (2) there has been a violation of the incarcerated individual's fundamental due process rights, as enunciated in Wolff v McDonnell; or (3) equitable considerations compel such relief (Matter of Wingate v Martuscello, 249 AD3d at 18, citing inter alia Matter of Hillard v Coughlin, 187 AD2d 136, 140 [3d Dept 1993]). Here, substantial evidence is not at issue and, "because incarcerated individuals 'at disciplinary proceedings are not entitled to the full panoply of rights due a criminal defendant or administrative law rules designed for free citizens,' the right to counsel during a prison disciplinary hearing has not been seen as a due process right" (Matter of Wingate v Martuscello, 249 AD3d at 18-19, quoting Matter of Hillard v Coughlin, 187 AD2d at 139). Thus, the sole consideration for this court is whether equitable considerations compel expungement.

In Matter of Wingate v Martuscello, 249 AD3d 14 (2025), the Appellate Division, Third Department held that the equitable remedy of expungement was warranted where the petitioner had been deprived of his statutory right to counsel at the dispositional phase of his disciplinary hearing and had already served a 250-day penalty in SHU, with over 2 ½ years having passed since the initial search giving rise to the disciplinary charges. Here, Lewis and Smith have already served the entirety of their confinement sanctions, and Johnson, Ortiz, and Wales have each served more than nine months of theirs. Accordingly, given the time already elapsed, the court finds that remittal for new hearings would serve no practical purpose and, like in Wingate, equitable considerations warrant expungement.

Petitioner Wales' Constitutional Claim

In light of the foregoing, the court need not reach petitioner Wales' claim that he was further deprived of his constitutional right to appear and present a defense at his hearing, which has been rendered academic by the court's determination on statutory grounds.

Respondent's Motion to Seal Certain Exhibits

22 NYCRR 216.1 provides:

"(a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard."

The seven exhibits respondent seeks to seal were submitted to complete the administrative records of petitioners' disciplinary hearings pursuant to CPLR 7804 (e), for the Court's in camera review. They consist of a portion of a hearing transcript, videos depicting the underlying incidents, and documentary evidence reflecting the facility responses. The exhibits contain statutorily protected mental health and medical information under Mental Hygiene Law § 33.13, HIPAA (Pub L 104-191, 110 Stat 1936), and CPLR 4504, along with sensitive security, safety, and privacy information concerning petitioners and nonparties. None are probative of the procedural issues raised in this proceeding. Accordingly, as agreed to by the parties, the court finds that statutory grounds and good cause exist to seal the exhibits, taking into account the interests of both the public and the parties. And the outstanding issue of whether petitioners' counsel is entitled to access to exhibits C and T has been largely rendered moot, given the court's determination to grant the petition on procedural grounds. Thus, respondent's motion to seal is granted, without a determination on that issue.

Accordingly, it is

ORDERED that the petition is granted to the extent of annulling the following Tier III dispositions and appeal determinations, and vacating all sanctions imposed pursuant thereto:

(i) Demar Johnson's disposition of September 29, 2025; administrative appeal determination of December 11, 2025;

(ii) Quinjavis Lewis's disposition of December 3, 2025; administrative appeal determination of February 5, 2026;

(iii) Juan Ortiz's disposition of August 25, 2025; administrative appeal determination of November 5, 2025;

(iv) Shakeem Smith's disposition of September 15, 2025; administrative appeal determination of December 9, 2025; and

(v) Michael Wales's disposition of November 18, 2025; administrative appeal determination of January 20, 2026; and it is

ORDERED that respondent shall expunge all references to the above-described dispositions, determinations, and sanctions from petitioners' institutional records; and it is

ORDERED that respondent's motion to seal exhibits C, H, I, O, T, U, and Z is granted.

This constitutes the decision and order/judgment of the Court, a copy of which is being uploaded to NYSCEF for filing. The parties are not relieved from the applicable rules respecting filing and service.

Dated: September 10, 2026

Albany, New York

Hon. Andra Ackerman, AJSC

Papers Considered

NYSCEF Doc Nos. 56-120, 124-128, 130-135

FOOTNOTES

1.   An amended verified petition, with exhibits and a memorandum of law, was filed on June 10, 2026 (NYSCEF Doc Nos. 56-90). The court rejects respondent's argument that the absence of a notice of petition accompanying the amended petition—which reflects minor amendments and was filed with respondent's consent—divests the court of jurisdiction.

2.   Segregated confinement is defined as "the confinement of an incarcerated individual in any form of cell confinement for more than [17] hours a day" (Correction Law § 2 [23]). The HALT Act limits such confinement to three consecutive days or six days in a 30-day period unless specified statutory criteria are met (§ 137 [6] [k] [i]). While longer confinement is permitted for certain "heinous or destructive" acts (§ 137 [6] [k] [ii]), even then segregated confinement may not exceed 15 consecutive days or 20 days in a 60-day period (§ 137 [6] [i] [i], [ii]; Matter of Peterkin v New York State Dept. of Corr & Community Supervision, 242 AD3d 26, 31-32 [3d Dept 2025]).

3.   To the extent petitioners claim a constitutional due process violation, the court agrees with respondent that the right to counsel at Tier III disciplinary proceedings does not extend to a constitutional dimension (see Matter of Wingate v Martuscello, 249 AD3d at 18 ["because incarcerated individuals at disciplinary proceedings are not entitled to the full panoply of rights due a criminal defendant or administrative law rules designed for free citizens, the right to counsel during a prison disciplinary hearing has not been seen as a due process right"] [internal quotation marks and citations omitted]).

Andra Ackerman, J.