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People ex rel. Fisher v. Warden

74 Misc. 2d 820 Court Supreme Court, Special and Trial Term, Bronx County, Decision date 1973-06-12 English

Delivered by *821 Joseph P. Sullivan, J.

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p. 820
The People of the State of New York ex rel. James Fisher, Relator, v. Warden, Penitentiary of the City of New York, Rikers Island, Respondent.
Supreme Court, Special and Trial Term, Bronx County,
June 12, 1973.
Robert Kasanof and Joseph Alan Kaplan for relator. Norman Redlich, Corporation Counsel, for respondent.

The writ is sustained. Buie 4.49, g.(2) of the Bules and Begulations of the Department of Correction provides that in .sentence institutions the disciplinary hoard shall consist of three members, one of whom must be a Deputy Warden. At none of the three disciplinary hearings affecting relator was such an officer present. Instead, a Captain presided as chairman at such hearing. The departmental rule that the board consist of a member who is of the rank of Deputy Warden is mandatory. The board thus was improperly constituted and its action in levying loss of good time as punishment for relator’s infractions is a nullity. Inasmuch as relator’s scheduled release date was June 7, 1973, calculated on no loss of good time, his discharge is ordered forthwith.