New York Codes, Rules and Regulations
Title 7 - DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
Chapter VIII - Institutional Programs
Part 721 - Privileged Correspondence
Section 721.3 - Procedure
Universal Citation: 7 NY Comp Codes Rules and Regs ยง 721.3
Current through Register Vol. 45, No. 52, December 27, 2023
Note:
Unless otherwise provided for in this directive, the general correspondence procedures set forth in Part 720 of this Title, "Inmate Correspondence Program," (such as the requirement to put return addresses on the front and back of outgoing envelopes) shall be followed.
(a) Outgoing privileged correspondence.
(1) For the purpose of
this directive, outgoing mail will not be considered to be privileged
correspondence until it has been placed in the control of the facility
administration for processing.
(2)
Outgoing privileged correspondence may be sealed by the inmate, and such
correspondence shall not be opened, inspected, or read without express written
authorization from the facility superintendent as specified in subdivision (c)
of this section. Notwithstanding the foregoing or any other provision of this
Chapter, outgoing mail to the Secretary of State, Department of State,
corporation division or uniform commercial code unit of any state shall be
submitted by the inmate unsealed and is subject to inspection.
(3) Postage for privileged correspondence.
(i) Inmate letters addressed to the
commissioner or other central office staff shall be mailed by the facility at
no cost to the inmate. This service shall only apply to regular letters;
special handling charges for services such as certified mail, return-receipt,
or express mail must be paid for by the inmate.
(ii) Each inmate will receive a weekly free
postage allowance equivalent to five domestic first class one ounce letters to
pay for first class postage on outgoing privileged correspondence.
(a) This allowance may not be used to pay for
any special handling charges such as for certified, return-receipt, express
mail, etc., unless such mail services are required by statute, court rule or
court order.
(b) Any unused
allowance will not be accumulated from week to week. Inmates will have to pay
for postage costs which exceed this weekly allowance.
(iii) A postage-prepaid envelope received
within correspondence from a court or an attorney which has been pre-addressed
by the court or attorney may be received (subject to inspection by the security
staff) and used by the inmate for the intended return correspondence.
(iv) To ensure that indigent inmates maintain
their right of access to the courts, the facility shall approve and IAS 2708
advance request to pay for first class mail postage if the inmate has
insufficient funds and if the following conditions are met:
(a) the mail is legal mail
(e.g., it is addressed to a judge, clerk of court, attorney,
or authorized legal representative; or is directly related to a potential or
ongoing legal matter);
(b) any
balance of the inmate's free weekly postage allowance is applied to the legal
mail postage costs; and
(c) the
requested advance and the balance of unpaid previous advances for legal mail
postage do not exceed $20, except as may be approved under subparagraph (vi) of
this paragraph.
(v)
Advances for "special handling" (e.g., certified mail, return
receipt, express mail, etc.) will not be approved unless required by a statute,
court rule or court order.
(vi)
Exceeding the $20 limit shall only be approved if the inmate can show by court
rule, court order, a statute of limitations, or other legal deadline applicable
to his or her individual circumstance that the legal mail must be sent prior to
receipt of the next week's free postage allowance. The inmate must provide
justification for such advance.
(vii) No request for a legal mail advance
will be denied by facility staff without prior consultation with the
department's office of counsel. Any question whether a particular item
qualifies as "legal mail," or whether an advance is allowable should be
directed to such office.
(b) Incoming privileged correspondence.
(1) Incoming privileged
correspondence shall not be opened outside the presence of the inmate to whom
it is addressed, and shall not be read without express written authorization
from the facility superintendent (see subdivision [c] of this
section).
(2) A log entry should
document any incoming privileged correspondence erroneously opened outside the
presence of the inmate to whom it is addressed (see paragraph [3] of this
subdivision). If appropriate, a photocopy of an erroneously opened envelope
shall be included.
(3) Incoming
privileged correspondence shall be given priority handling and shall be
delivered in a consistent manner at a time when the inmates are available to
receive it and which does not interfere with programming. If the inmate to whom
privileged correspondence is addressed is not currently at the facility, the
provisions of Part 722 of this Title shall be followed.
(4) A log shall be created to record receipt
and delivery of incoming privileged mail. It shall identify the sender and
include the inmate's name and number, the delivery date and time, the title of
the delivery person, and note if the inmate refused to sign a receipt, refused
delivery of the mail, or would not respond to delivery calls. If privileged
mail is erroneously opened outside the presence of the inmate, that fact and
any relevant explanation shall be noted in the log.
(5) Inspection.
(i) Where x-ray capability exists, incoming
privileged correspondence should be x-rayed prior to being opened.
(ii) Except as provided in subdivision (c) of
this section, all incoming privileged correspondence shall be opened and
inspected, in the presence of the inmate to whom it is addressed, for the
presence of cash, checks, money orders, and contraband and to verify, as
unobtrusively as possible, that the correspondence does not contain material
that is not entitled to the privilege.
(iii) When, in the course of inspection,
cash, checks, or money orders are found, they shall be removed and credited to
the inmate's account.
(iv) When, in
the course of inspection, contraband is found, it shall be removed and
forwarded to the security office, with appropriate chain-of-custody
documentation. When appropriate, the State Police shall be notified.
(v) When, in the course of inspection,
material is found that does not appear to be entitled to the privilege, all
parts of the correspondence shall be forwarded directly to the superintendent
without further inspection, and a report from the person opening and inspecting
shall detail the circumstances.
(vi) A postage-prepaid envelope received
within correspondence from a court or an attorney which has been pre-addressed
by the court or attorney may be received (subject to inspection by the security
staff) and used by the inmate for the intended return correspondence.
(6) Receipt.
(i) The inmate to whom privileged
correspondence is addressed shall sign a receipt for such correspondence. All
receipts for incoming privileged correspondence shall be retained in an
appropriate file.
(ii) If the
inmate refuses to sign a receipt, the delivering employee shall so indicate on
the receipt, note the date and time of the refusal to sign, and deliver the
correspondence to the inmate.
(7) Refusal.
(i) If the inmate refuses to accept the
privileged correspondence when it is offered, the delivering employee shall
note the refusal in the log and any known reason for non-acceptance. The
privileged correspondence should be returned to the sender stamped "addressee
refused to accept."
(ii) If the
inmate refuses to respond to the privileged mail delivery call, a second
attempt should be made to deliver the letter. If the inmate again refuses to
respond, note the date and time, and any known reason for not responding to
privileged mail calls in the privileged mail log. The receipt with this
information shall be retained in an appropriate file. The privileged
correspondence should be returned to the sender stamped "addressee refused to
accept."
(8) Privileged
correspondence originally sent out of the facility by an inmate, but
subsequently returned to the inmate sender by the postal service, shall be
processed as incoming privileged correspondence in accordance with the
procedures as set forth in paragraphs (1) and (2) of this
subdivision.
(c) Authorization to read privileged mail.
(1) The superintendent shall not authorize
the reading of incoming or outgoing privileged correspondence unless there is a
reason to believe that the provisions of this or any directive or rule or
regulation have been violated, that any applicable State or Federal law has
been violated, or that the content of such correspondence threatens the safety,
security, or good order of a facility or the safety or well being of any
person. Such authorization by the superintendent shall be in writing and shall
set forth facts forming the basis for the action.
(2) The superintendent is advised to consult
with the department's office of counsel before issuing such authorization. If
the facility superintendent authorizes the reading of privileged
correspondence, it shall be read only by the superintendent, a deputy
superintendent or central office staff.
(3) If after reading the contents of
privileged correspondence there is reason to believe that the provisions of
this or any directive or rule or regulation have been violated, or that any
State or Federal law has been violated, or that the content of such
correspondence threatens the safety, security good order of a facility or the
safety or well-being of any person, then the correspondence may be confiscated,
and the inmate must be given written notice of the confiscation, unless doing
so would be inconsistent with the need to safeguard an investigation. The
notice must include the reason(s) for the confiscation, and it must inform the
inmate of the right to appeal the confiscation to the deputy commissioner for
program services. In the case of incoming correspondence, the correspondent
must also be given a copy of such notice and accorded the right to appeal,
unless doing so would be inconsistent with the need to safeguard an
investigation. Reason to believe that privileged correspondence is being used
to introduce contraband or other materials not entitled to the privilege shall
be sufficient reason for confiscation.
(4) This subdivision shall not be deemed to
require the express written authorization of the superintendent to inspect
incoming privileged correspondence, in the presence of the inmate, to ensure
that the materials contained in the correspondence are entitled to the
privilege.
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