139 Misc. 2d 1087 | N.Y. Sup. Ct. | 1988
OPINION OF THE COURT
In this proceeding, the New York State Commission of Correction, a three-member body appointed by the Governor, seeks judgment compelling Broome County, and its Sheriff, to build an outdoor recreation area for inmates of the Broome County Jail, located in downtown Binghamton, and to transport inmates to the county’s other jail facility, the Front Street facility, for daily recreation while the new outdoor recreation area is being built.
Through section 217 of the County Law, the Legislature has mandated that each county shall maintain a county jail. By section 500-c of the Correction Law, the same body has given custody and control of the county jails to Sheriffs. Subdivision (6) of section 45 of the Correction Law authorizes the Commission of Correction to promulgate, "rules and regulations establishing minimum standards for the care, custody, correction, treatment, supervision, discipline, and other correctional programs for all persons confined in correctional facilities”. Pursuant to that authority, the Commission has adopted 9 NYCRR 7028.2 which requires county jails, as a minimum, to establish indoor play areas of sufficient size to enable prisoners to engage in billiards, table tennis, movies, arts and crafts programs, and other recreational activities. The regulation further requires county jails to provide an outdoor play area of a minimum of 1,500 square feet to enable prisoners to engage in basketball, jogging, handball, weightlifting, calisthenics and other active recreation. Each prisoner must be allowed to use the recreation areas for a minimum of one hour per day.
Broome County has two jail facilities, the Broome County Jail located adjacent to the courthouse in downtown Binghamton, and a newer facility known as the Jail Barracks. While
Respondents concede their failure to provide an outdoor recreation area at the county jail, and, instead, attack the regulation and the statute authorizing it. Additionally, the respondents have moved to convert the proceeding to an action, and raise as an affirmative defense that the petition fails to state a viable claim against respondents Young, Lacatena, and the Broome County Legislature. That motion and defense will be addressed first.
Petitioner’s response to the dismissal motion is that the proceeding is in the nature of mandamus to compel public officials to perform a duty enjoined by law and is specifically authorized by subdivision (4) of section 46 of the Correction Law. In Martin v City of Cohoes (37 NY2d 162, 165), the Court of Appeals stated that, "parties to a civil litigation, in the absence of a strong countervailing public policy, may consent, formally or by their conduct, to the law to be applied”. Here, the affirmation of Assistant Attorney-General Martha Keeler Macinski, dated May 11, 1988, and her memorandum of law of the same date, establishes that the Commission is limiting this proceeding to one in the nature of mandamus brought pursuant to subdivision (4) of section 46 of the Correction Law, and there is no strong countervailing public policy prohibiting the Commission from so doing. With that in mind, subdivision (4) of section 46 must be examined to see if it places a duty upon County Executive Young, Broome County Legislative Chairman Lacatena, and Broome County or its Legislature. The statute provides in pertinent part as follows: "In any case where any rule or regulation promulgated by the commission
The only person against whom a special proceeding is authorized by subdivision (4) of section 46 of the Correction Law is the "person in charge or control of the facility”. The issue then distills as to which of the respondents has charge and control of the Broome County Jail. That question has been answered by the Third Department in McNulty v Chinlund (62 AD2d 682, 687), as follows: "The function of maintaining county jails was imposed upon each county by the Legislature pursuant to section 217 of the County Law, and custody and control of the county jails was conferred upon the Sheriffs by section 500-c of the Correction Law”. (Emphasis supplied.)
Thus, Sheriffs have custody and control (charge) of county jails. Hence, a county, its legislature and county executive, not having charge or control of the facility, is not a person against whom a proceeding is authorized by subdivision (4) of section 46 of the Correction Law, and the petition must be dismissed as to those respondents. That 'is not to say that a county has no obligation to maintain a county jail as required by section 217 of the County Law, but the duty of providing maintenance is a far cry from having control or charge. Moreover, the Commission expressly recognized at page 27 of its 1973 Annual Report that while it could close jails that were unsafe, unsanitary or inadequate, "there is no statutory provision under which the Commission can compel the authorities of a county or municipality to construct a new facility”.
With Sheriff Ruffo the only remaining respondent, it is time to turn to the merits. The primary contention raised in
The next question is what remedy is available. Since Sheriff Ruffo is not authorized by law to build a new jail, or to raise taxes to fund a major renovation, he cannot be ordered to do that which is not within his power as an elected Sheriff. Thus, petitioner’s relief will be limited to directing Sheriff Ruffo to transport prisoners from the Broome County Jail to the Front Street facility each day and allow each inmate one hour of outdoor recreation. The Commission’s remedy in the event of noncompliance would be an application to hold Sheriff Ruffo in contempt, or to pursue a criminal charge. The Commission’s other recourse is to take proceedings to close the Broome County Jail due to the failure to provide a playground for prisoners.
The motion of the respondents for an order converting the proceeding to an action will be denied, without costs. The
Apparently, the Commission has foreseen that prison inmates have a constitutional right to participate in recreational sports.