Matter of Fama v Artus
Annotate this CaseDecided on June 12, 2007
Supreme Court, Clinton County
In the Matter of the Application of Joseph Fama, Petitioner, For a Judgment Pursuant to Article 78 Of the Civil Practice Laws and Rules
against
Dale Artus, Superintendent, Clinton Correctional Facility, Respondent.
07-0268
S. Peter Feldstein, J.
This proceeding was commenced by the petition for a writ of habeas corpus of Joseph Fama, sworn to on February 13, 2007, and stamped as filed in the Clinton County Clerk's office on February 27, 2007. Petitioner, who is an inmate at the Clinton Correctional Facility Assessment and Program Preparation Unit (APPU), is challenging the determination of the APPU Assessment Committee recommending that he be transferred from the APPU into general population. The Court issued an order to Show Cause on March 6, 2007. As part of that Order to Show Cause the Court directed that this proceeding be converted into a proceeding for judgment pursuant to Article 78 of the CPLR. Also as part of that Order to Show Cause the Court directed that the respondent not transfer the petitioner from the APPU at the Clinton Correctional Facility pending further order of the Court. The Court has since received and reviewed the respondent's Notice of Motion to Dismiss, supported by the affirmation of Robert C. Glennon, Esq., Assistant Attorney General, dated March 29, 2007, as well as by the affidavit of R. Joyce Carver-Jordan, Assistant Director of the DOCS Office of Classification and Movement, sworn to on March 27, 2007. The Court has also received and reviewed petitioner's opposing papers, filed in the Clinton County Clerk's office on April 9, 2007. Finally, in response to the Court's Letter Order of May 14, 2007, the Court has received and reviewed the affidavit of George W. Seyfert, DOCS Deputy Inspector General, sworn to on June 1, 2007.
On June 11, 1990, the petitioner was sentenced in Supreme Court, Kings County, to consecutive, indeterminate sentences of imprisonment of 25 years to life, 1 to 4 years, 1 to 4 years and 2 to 7 years upon his convictions of the crimes of Murder 2º, Riot 1º, Unlawful Imprisonment 1º and Criminal Possession of a Weapon 3º. The petitioner's convictions stem from a highly publicized, racially-charged murder that occurred in the Bensonhurst section of Brooklyn in August of 1989.
The petitioner has been confined for more than 16 years at the Clinton Correctional Facility APPU. The purpose of the APPU is "[t]o provide a special housing [*2]unit environment for those inmates who, for one or more reasons, are considered victim prone. To further provide alternatives to protective housing placement by providing program, security and ancillary services in a separate housing and program area that does not permit exposure to general population inmates." New York State Department of Correctional Services Clinton Correctional Facility Policy and Procedure, FOMP No. 1302 (II). On January 18, 2007, the APPU Assessment Committee recommended that the petitioner be considered for transfer into general population at the Sullivan Correctional Facility. The stated justification for that recommendation was as follows: "Subject has been at APP Unit since 1990 which is an ample time for adjustment." This proceeding ensued.
The petitioner first challenges the composition of the APPU Assessment Committee, alleging that the committee is chaired by Senior Counselor Frederick, rather than the staff psychologist, and further alleging that the APPU Sergeant, who is a member of the Assessment Committee and who allegedly plays an important role with respect to security-related decisions, was not present at the time of petitioner's appearance before the Assessment Committee. The petitioner also alleges that the staff psychologist, although available, never takes an active part in the Assessment Committee's interviews. In addition, the respondent maintains that staff referrals are not included in the Assessment Committee's records and, therefore, that inmates are not able to respond to any such referrals that may be improperly motivated. The petitioner also asserts that he was coerced into signing a double bunk waiver to secure transfer to the Sullivan Correctional Facility, a facility noted for a low level of violence, and that the double bunk waiver is utilized to give the false impression that the petitioner has consented to a transfer into general population. Finally, and most significantly, the petitioner alleges that ". . . the Assessment Committee does not consider all of the factors that they should, the only factors the committee has had considered under Mr. Fredericks' charge is the inmate's time spent in the APPU program. Safety is not an issue. Safety concerns played no part in the Committees determination to submit petitioner for a transfer."
The respondent's motion papers are premised upon the assertion that on March 26, 2007, the general population transfer recommendation of the APPU Assessment Committee was not approved by the DOCS Office of Classification and Movement and that the Assessment Committee will not again review petitioner's record for possible transfer into general population for a period of one year. It also appears that the recommended transfer of petitioner, who is a DOCS Central Monitoring Case, into general population, was rejected by the DOCS Office of the Inspector General and by the DOCS Deputy Commissioner for Correctional Facilities designee pursuant to the provisions of 7 NYCRR §1000.6. The respondent asserts that these various developments have rendered this proceeding moot.
The petitioner opposes the respondent's motion to dismiss, asserting, as follows: "The relief sought by Respondents dismissing the application as moot, does not resolve the problem presented in Petitioner's application, namely that the APPU Assessment Committee is not following transfer procedures, and forcing inmates to sign double bunk waivers in an attempt to show the inmate agrees to the transfer. Respondents would only repeat [*3]their unlawful practice if this matter is not resolved upon petitioner's next Assessment Committee transfer evaluation."
The Court finds that the disapproval of the APPU Assessment Committee's general population transfer recommendation by the DOCS Office of Classification Movement, Office of Inspector General and Deputy Commissioner for Correctional Facilities designee has indeed rendered this proceeding moot. Inasmuch as the issue has not been raised or briefed, the Court will not delve into the issue of whether or not the mere recommendation of the APPU Assessment Committee, which recommendation, almost by definition, constituted a non-final administrative action, was even subject to judicial review in the first place. At this juncture the Court finds it sufficient to note that the aforementioned disapprovals of the Assessment Committee's recommendation have resulted in a situation where the parties would no longer be directly and immediately affected by any judicial ruling as to the propriety, or lack thereof, of such recommendation. See Hearst Corporation v. Clyne, 50 NY2d 707. This Court, moreover, finds no exception to the mootness doctrine applicable to the facts and circumstances of this case. It is sheer speculation to conclude that the Assessment Committee will constitute itself in similar fashion when it considers whether or not to recommend petitioner for transfer out of the APPU in the future or that the committee will again recommend such transfer, based solely upon the amount of time the petitioner has spent in the APPU, in the face of the disapproval of its transfer recommendation this time around. Even if the assessment unit recommends the petitioner for general population transfer at some point in the future, there is no reason to believe that such recommendation, if reviewable, would escape judicial scrutiny. See Id.
Based upon all of the above, it is, therefore, the decision of the Court and it is hereby
ORDERED AND ADJUDGED, that the respondent's motion is granted; and it is further
ORDERED AND ADJUDGED, that the stay included in the Order to Show Cause of March 6, 2007, is vacated; and it is further
ORDERED AND ADJUDGED, that the petition is dismissed.
Dated: June 12, 2007
Indian Lake, New York.__________________________
S. Peter Feldstein
Acting Supreme Court Justice
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