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By Nedra James and Nicholas Zimmerman
Never before has a New York State prisoner been sentenced to more than 40 years of “no physical contact,” but if Superintendent Graham of Auburn Correctional Facility has his way, Nicholas Zimmerman will be the first.
Since 2005, Zimmerman has been on a “non-contact visit status.” Under these conditions any friend, family or even attorney that wishes to visit Zimmerman must be separated by a two-inch thick Plexiglas partition, eliminating the opportunity to embrace him. Non-Contact visits are not an unusual restriction placed on New York State prisoners; however, it is the unusually long length of time and the reasons why Graham imposed the limitation that has legal spectators questioning the Superintendent’s actions.
On June 8, 2005, Zimmerman was convicted of attempting to escape from Sing Sing C.F. The fanciful allegations that arose at trial was not that Nicholas made any concentrated effort towards actually “attempting” to escape, but that an estranged man, Tony Dubose, dressed up in a phony correctional officer’s uniform, concealed two guns in his duffel bag, and attempted to waltz into the heavily guarded prison in search of Zimmerman to help him escape. According to New York State Detective, Darren Daughtry, “Dubose almost made it.” Had it not been for a slight error in the counterfeit corrections officer’s I.D. that Dubose presented for entrance into Sing Sing, Zimmerman would have been absent for the 3:00 pm prison count. However, not too many people are quick to jump at the idea that this “attempted escape” actually took place. High profile Civil Rights Attorney and WABC talk radio show host, Ron L. Kuby, testified on Zimmerman’s behalf. Mr. Kuby asserted that it is highly unlikely that Nicholas would have escaped or even attempted to escape around the time the Westchester D.A. alleged because Nicholas’ family and friends had just paid Mr. Kuby more than $15,000 to appeal his original charge of criminal possession of a weapon.
Because of Kuby’s long standing career as a criminal defense attorney and his bar certifications that allow him to practice law in numerous states, Judge Robert Dibella designated Kuby an “expert witness.” In Kuby’s expert opinion, Nicholas’ case stood a high probability of being overturned. Kuby said that “Zimmerman was optimistic about his chances on appeal” and that “he even helped draft and edit the appellate brief” that Kuby filed in court. In his opinion, Kuby stated that Nicholas is more than likely innocent of his original charges that landed him in prison for 15 years.
Notwithstanding the above conflicting testimony, and despite Zimmerman’s virtually non-existent disciplinary history, Superintendent Graham has denied Nicholas’ most recent request for restoration of contact visits, finding that “In my opinion, you still represent a risk to the safety and security of the facility as well as the general public.”
However, Graham’s assessment of Nicholas clashes with other State Employee’s that says Nicholas is “no threat at all.” Two correctional officers that work at Auburn, but asked not to be named in this article out of fear of losing their jobs, said that “Zimmerman is a quiet prisoner; he barely even talks unless you talk to him. He doesn’t bother anybody; he just works on his case and prepares legal documents all day. In comparison to other prisoners in solitary confinement, Nicholas is probably the most respectful.” The two officer’s opinion of Nicholas seem to be more credible than Graham’s, based on the fact that they are in direct contact with Zimmerman eight hours a day, five days a week. Zimmerman and Graham have never met.
Although Zimmerman contends that Graham violated moral principles when he imposed the non-contact visits, he also argues in Federal court that Graham breached the most basic rules of prison law. In a letter dated March 29, 2007, Zimmerman points out that New York Corrections Rules and Regulations, Directive 4403, Section VII-B (1) states “A Superintendent may suspend a prisoner’s contact visitation, but the grounds for suspension must be limited to the following reasons: A) the passing or attempted passing of contraband between an inmate and visitor or B) socially unacceptable physical contact between an inmate and a visitor.” According to Auburn’s own documents, Nicholas has never been found guilty of any of the above. Even more, Section VII D (3) gives Nicholas, as well as his family, the right to have a hearing to challenge the Superintendent’s decision to impose the non-contact visits. Graham refused Zimmerman’s request for said hearing. “It’s like being put in prison without having a trial by jury,” Zimmerman said. “In Auburn, Graham is the Judge, Jury and the Executioner!
He doesn’t follow any directive or law handed down by the Supreme Court. He doesn’t want to appear ‘soft’ to the other employees at Auburn. Therefore, he would rather be sued by a prisoner before he attempts to reason with them. It’s the general attitude of any Superintendent in the State of New York.”
Zimmerman has filed a one million dollar law suit against Graham in the Northern District Court. Federal District Judge, George H. Lowe has accepted Nicholas’ pro-se claims and is expected to make a ruling soon. Among other things, Nicholas claims that Graham inflicted “Cruel and Unusual Punishment” upon him by not allowing him to hug his family for more than two years and that Graham violated his rights to “Due Process of Law” by not allowing Zimmerman’s family to have a hearing to challenge the Superintendent’s decision.
One might question why Graham would blatantly violate Nicholas’ rights, but take a closer look at Zimmerman’s history with the Department of Corrections and some things become obvious. Most recently released by Madison Avenue Entertainment Group is a book that sheds an entirely different light on the “mission: impossible” escape attempt that allegedly took place at Sing Sing. Nicholas takes center stage in the over 500 page tell-all book and explains that he “can’t tell you what happened on the other side of Sing Sing’s walls. I don’t know if Dubose broke into Sing Sing or not. All I know is, if Dubose would have approached me and asked me to escape with him I would have looked at him like he was crazy.” Based on numerous derogatory comments Nicholas makes about named high ranking State officials, Graham’s refusal to allow Zimmerman to hug his family seems like retaliation. “Of course his actions are retaliatory,” Zimmerman said. “He didn’t… restrict my visits because I am a threat; he did so because he didn’t like what I had to say about his friends in Albany.”
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