Bailey v. JoyBailey v. Joy
Petitioner Chad Bailey, an inmate currently incarcerated at Altona Correctional Facility, by this proceeding pursuant to CPLR article 78, prays for a judgment enjoining respondent to forthwith transfer him into the Comprеhensive Alcohol and Substance Abuse Treatment (CASAT) program.
From the papers, it appears that petitioner was arrested and charged with criminal sale of a controlled substance in the third degree and related crimes. Petitioner pleaded guilty to attempted criminal possession of a controlled substance in the third degree, committed on June 22, 2004, in full satisfaction of the indictment, and on May 18, 2005 was sentenсed as a second felony offender (Penal Law § 70.06)
Petitioner was received by DOCS on June 15, 2005 and applied to be enrolled in thе CASAT program on or about August 3, 2005.
The CASAT program (Correction Law § 2 [18]) involves the diversion of a DOCS inmate from housing in the general prison population to placement in a dedicated drug treatment annex operated by DOCS fоr a period of six months followed by 18 months in a community-based inpatient facility. The program is administered by DOCS in conjunction with its temporary release programs. Prior to the enactment of Penal Law § 60.04 (6), while a sentencing court could recommend the CASAT program, DOCS made the ultimate decision regarding a defendant’s enrollment into the program (see People v Singletary,
Once again before this court, petitioner argues that pursuant to Penal Law § 60.04 (6) and this court’s order of May 18, 2005, the only eligibility criteria he had to satisfy was that specified in the statute, to wit, that he be within two years and six months of parole eligibility, which he satisfied. Based thereon, petitioner contends that DOCS’ decision to deny him enrollment was no more than a failure to perform a duty enjoined upon it by law.
As an initial matter, DOCS responds that petitioner, having requested that this court recommеnd his enrollment in CASAT, is judicially estopped from arguing that this court’s order of May 18, 2005 was anything more than a recommendation. The doctrine of judicial estoppel holds that a party successfully taking a position in one proceeding may not thereafter assume an inconsistent position in a subsequent proceeding (Kalikow 78/79 Co. v State of New York,
Alternatively, DOCS responds that Penal Law § 60.04 (6) specifically provides for the continued applicability of the department’s regulations governing an inmate’s completion, discipline and removal from the CASAT program, and that since such proviso is “without limitation,” it necessarily includes the continued applicability of the department’s regulation governing eligibility. Moreover, DOCS argues that inasmuch as the CA-SAT program involves the transfer of an inmate to a residential treatment facility, it was surely the intent of the Legislature
By its own terms, Penal Law § 60.04 (6) provides that the court shall decidе whether to enroll a defendant in the CASAT program provided that such defendant will satisfy statutory eligibility criteria. Petitioner was denied enrollment by DOCS based solely on his failure to satisfy its administrative eligibility criteria. The issue which the court must decide, and which is one of first impression with respect to this recently enacted statute, is whether DOCS’ administrative eligibility regulations (7 NYCRR part 1951) remain in full force and effect under Penal Law § 60.04 (6).
In order to decide this matter, the court must construe and interpret Penal Law § 60.04 (6). A statute must be read and given effect as it is written by the Legislature and not as the court may think it should or would have been written if the Legislature had envisioned every problem or complication which might arise in the course of its administration (McKinney’s Cons Laws of NY, Book 1, Statutes § 73, at 148). Courts may not by interpretation add to or take from a clear and positive legislative mandate, or substitute that whiсh must be brought into existence only by legislative expression. (Id.) Instead, the court must take the statute as it finds it and construe it according to the canons of interpretation, neither extending its operation beyond thе bounds of legislative intent nor restricting its obvious application. (Id.)
Applying these rules, the court notes that while CASAT participation under Penal Law § 60.04 (6) is expressly conditioned on DOCS’ administrative regulations governing cоmpletion, discipline and removal from the program, the statute’s only reference to eligibility refers to statutory and not administrative eligibility. Surely, if the Legislature intended to require an inmate to satisfy both statutory and administrative eligibility criteria, the Legislature could and would have said so. It is a canon of statutory interpretation that a court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended to omit (McKinney’s Cons
In addition, and perhaps most importantly, if this court were to accept DOCS’ interpretation, the result would be to return the ultimate decision-making concerning CASAT enrollment to DOCS thereby effectively repealing Penal Law § 60.04 (6). It is a fundamental canon of statutory construction that a court must avoid an interpretation of а statute that renders it a nullity (McKinney’s Cons Laws of NY, Book 1, Statutes § 98, at 223-224; Matter of Yolanda D.,
Finally, to the extent respondent challenges the wisdom of this legislative decision, its argument is more appropriately directed to the Legislaturе than to this court (Pajak v Pajak,
For the foregoing reasons, the petition is granted and respondent is directed to forthwith enroll petitioner in the CASAT program.
Notes
. Petitioner had been convicted of robbery in the first degree on Sеptember 2, 1994.
. Petitioner was sentenced under the law in effect on the date he committed the crime he pleaded to: June 22, 2004.
. In the motion, counsel asked this court to “consider recommending petitioner for court-ordered treatment” in the CASAT program and urged that petitioner “be directed” into the program. At the sentencing, counsel, among other arguments, “implored” the court to make the “recommendаtion” that petitioner “be allowed to go into CASAT.”
. Pursuant to Correction Law § 2 (18) and § 851 (2), an inmate serving an indeterminate sentence is eligible for the CASAT program when within two years and six months of parole eligibility (Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 60.04, 2006 Pocket Part, at 59). DOCS has not disputed that petitioner satisfied this eligibility criteria.
. Penal Law § 60.04 (6) provides:
“When the court imposes a sentence of imprisonment which requires a commitment to the state department of correctional services upon a person who stands convicted of a controlled substance or marihuana offense, the court may, upon motion of the defendant in its discretion, issue an order directing that the department of correctional services enroll the defendant in the comprehensive alcohol and substance abuse treatment program in an alcohol and substance abuse correctional annex as defined in subdivision eighteen of section two of the correction law, provided that the defendant will satisfy the statutory eligibility criteria for participation in such program. Notwithstanding the foregoing provisions of this subdivision, any defendant to be enrolled in such program pursuant to this subdivision shall be governed by the same rules and regulations promulgated by the dеpartment of correctional services, including without limitation those rules and regulations establishing requirements for completion and those rules and regulations governing discipline and removal from the program. No such period of court ordered corrections based drug abuse treatment pursuant to this subdivision shall be required to extend beyond the defendant’s conditional release date.”
. DOCS concludes by asserting that based on petitioner’s criminal history, its decision to deny him enrollment into CASAT was reasonable (Matter of Gonzalez v Wilson,