Matter of Rojas v Suffolk County Sheriff's Off.
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Matter of Rojas v Suffolk County Sheriff's Off. 2018 NY Slip Op 30596(U) March 16, 2018 Supreme Court, Suffolk County Docket Number: 06316/2017 Judge: Joseph A. Santorelli Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. CAL No. SHORT FORM ORDER 06316/2017 SUPREME COURT - STATE OF NEW YORK I.AS. PART 10 - SUFFOLK COUNTY PRESENT: Hon. -----=-J-=O=SE=P"-"H~A"""'.SA-=N-'-T O=RE=LL=-1= """' = Justice of the Supreme Court ---------------------------------------------------------x In the Matter of the Application of ANDRES FELIPE FLOREZ ROJAS, Plaintiff-Petitioner, for a Declaratory Judgment Pursuant to Article 3001 of the Civil Practice Law and Rules and a judgment Pursuant to Article 78 of the Civil Practice Law and Rules, MOTION DATg 12 SUBMIT DATE _. ~~ \~ Mot. Seq. # 01 - MD # 02- MD BENJAMIN N. CARDOZO SCHOOL OF LAW YESHIVA UNIVERSITY Attorneys for Plaintiff-Petitioner 55 Fifth Avenue, Room 1108 New York, New York I 0003 SUFFOLK COUNTY DEPARTMENT OF LAW Attorneys for Defendants-Respondents H Lee Dennison Building 100 Veterans Memorial Highway P.O. Box 6 100 Hauppauge, New York I 1788 - against SUFFOLK COUNTY SHERIFF'S OFFICE and VINCENT F. DeMARCO, in his official capacity as Sheriff of Suffolk County, Defendants-Respondent. ---------------------------------------------------------x Upon the following papers numbered 1 to ..1H__ read on this motion for Article 78; ; Notice of Motion/ Order to Show Cause and supporting papers {# I) 1 - 51 : (#2) 52 - 91 ; ~fotiee of 61 oss Motion 1111d snppol'ti11g pape1 ~ = ; Answering Affidavits and supporting papers(# I) 92 - 173; (#2) 174 - 208; Replying Affidavits and supporting papers (#2) 209 - 2 14: Other_; (and after hearing counsel in support and opposed to the motion) it is, In this hybrid CPLR Article 78 proceeding and declaratory judgment action, petitioner/plaintiff Andres Felipe Florez Rojas seeks: (1) a declaration that it violates the United States Constitution, the New York State Constitution and New York State law for respondents/defendents to detain him beyond the period authorized for his criminal proceedings for purposes of federal civil immigration enforcement; and (2) an order pursuant to CPLR 7006 annulling respondents'/defendants' decision to detain petitioner/plaintiff for purposes of federal [* 2] Matter of Rojas v Suffolk County Sheriff's Office Index No. 6316/2017 Page2 civil immigration enforcement upon the payment of bail and directing respondents/defendants to refrain from detaining him after his payment of bail and release from custody. By motion dated December 26, 2017, respondents/defendants move for an order pursuant to CPLR (A)(7) dismissing the complaint and verified petition. The petitioner/plaintiff has opposed this application. Under Suffolk County District Court Docket 47698/2017 the petitioner/plaintiff was charged with Criminal Possession of Stolen Property in the Fourth Degree, a Class E Felony. On December 2, 2017, the petitioner/plaintiff was arraigned on a felony complaint, bail was set and he was remanded to the custody of respondents/defendants. On or about December 4, 2017, the United States Department of Homeland Security, (hereinafter OHS), filed an "Immigration Detainer-Notice of Action" against the petitioner/plaintiff. 1 In relevant part the document stated: "l. OHS HAS DETERMINED THAT PROBABLE CAUSE EXITS THAT THE SUBJECT IS A REMOVABLE ALIEN. THIS DETERMINATION IS BASED ON (complete box 1 or.2). Inmate# - 736292 * * ... ~Biometric confirmation of the alien's identify and a record check of Federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law; and/ or * * .. IT IS THEREFORE REQUESTED THAT YOU: Notify OHS as early as practicable (at least 48 hours, if possible) before the alien is released from your custody. Please notify DHS by callin~ U.S. Immigration and Customs Enforcement (ICE) o{] U.S. Customs and Border Protection (CBP) at 5165724403. If you cannot reach an official at the number(s) provided, please contact the Law Enforcement Support Center at (802) 872-6020. 1 At that time a " Warrant for Arrest of Alien" was lodged against the petitioner/plaintiff. [* 3] Matter of Rojas v Suffolk County Sheriff's Office Index No. 6316/2017 Page 3 • Maintain custody of the alien for a period NOT TO EXCEED 48 HOURS beyond the time when he/she would otherwise have been released from your custody to allow DHS to assume custody. The alien must be served with a copy of this form for the rehabilitation, parole, release, diversion, custody classification, work, quarter assignments, or other matters. Relay this detainer to any other law enforcement agency to which you transfer custody of the alien. Notify th is office in the event of the alien's death, hospitalization or transfer to another institution." On December 7, 2017, the petitioner's/plaintiffs bail was reduced to $25.00 in the Suffolk County District Court. It is alleged the petitioner/plaintiff did not post the bail because he did not want to be taken into OHS custody. On January 29, 2018, the petitioner/plaintiff entered a plea of guilty to the reduced charge of Disorderly Conduct, (Penal Law 240.20[7]), in full satisfaction of Docket 47698/2017 and received a sentence of 15 days. Upon information and belief the petitioner/plaintiff is no longer in the custody of the respondents/defendants. Preliminarily the Court holds that the issues raised herein are not moot notwithstanding the petitioner's/plaintiffs release from the respondents' /defendants' custody. "Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy"' (Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727, 728-729 [2004), quoting Matter of Dreikausen v Zoning Bd. ofAppeals of City of Long Beach, 98 NY2d 165, 172 [2002]; see Matter of Olga L.MA. v RonaldA.B.M. 135 AD3d 741 [20 16)). Where a controversy is otherwise moot, a court may nevertheless review it if it presents for review "important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable" (Matter of Hears/ Corp. v Clyne, 50 NY2d 707, 714 [ 1980]). The exception to the mootness doctrine is properly applied where there is "(l) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" (id. at 714-715; see Coleman v Daines 19 NY3d 1087. 1090 [2012]; Matter of Raven K. [Adam C. l, 130 AD3d 622, 622-623 [2015])." (Matter of Chang v Maliq M, 154 AD3d 653, 654 [2d Dept. 2017]). Here it cannot be gainsaid that the facts and circumstances in controversy fall within the exception to the mootness doctrine. In support of the motion to dismiss the respondents/defendants proffer various arguments. The respondents/defendants contend the petitioner's/plaintiffs claim was a legal fiction because [* 4] Matter of Rojas v Suffolk County Sheriff's Office Index No. 6316/2017 Page4 his own actions (i.e. , not posting bail), were causing him to remain in custody rather than an unconstitutional seizure. Further, the respondents/defendants urge that this Court has no jurisdiction to adjudicate the legality of a federal detainer and warrant. The respondents/defendants argue that a writ of prohibition does not lie because their actions are consistent with federal and state law. Finally, the respondents/defendants contend that even if the petitioner/plaintiff had posted bail while in custody his brief detention was reasonable, under color of federal law and not inconsistent with state law. In opposition, the petitioner/plaintiff contends that the respondents/defendants do not possess authority under state law to seize him pursuant to an immigration detainer and administrative warrant. It is urged that the imminent arrest of the petitioner/plaintiff without lawful authority would be violative of the United States and New York State Constitutions. The petitioner/plaintiff suggest that the respondents'/defendants' failure to provide a mechanism to challenge the decision to arrest an individual for a violation of federal immigration law constitutes a violation of due process. In support of the motion to dismiss this proceeding/action the respondents/defendants have submitted the "DECLARATION" of Deputy Warden Thomas Hennessey dated December 26, 2017, which in relevant part states: "2. I am aware that the Suffolk County Correctional Facility entered into a Detention Services Intergovernmental Agreement ("Agreement") with the U.S. Department of Justice, United States Marshals Service, in approximately 1994. The Agreement is pursuant to Section 119 of the Department of Justice Appropriations Act of2001 [Public Law 106-5 53]. Generally speaking, the Agreement allows the U.S. Marshals Service or other "authorized agency user" to house federal detainees with the local government at the Suffolk County Correctional Facility, at 100 Center Drive, Riverhead New York. 3. On or about October 20, 2017, the Agreement was modified, such that the U.S. Immigration and Customs Enforcement ("ICE") was added as an "authorized agency user," by way of a "Rider," to the current Agreement. The Rider was signed on approximately October 20, 2017, and went into effect approximately October 27, 2017. A copy of the Rider is attached hereto. A copy of the New Agreement, incorporating ICE as an authorized agency user, is attached hereto, as the Agreement. 4. Pursuant to law and to SCSO policy, the SCSO will not act solely upon a detainer issued by ICE. Rather, the SCSO will act upon a detainer with an accompanying warrant for arrest (I-200) or an accompanying warrant of removal/deportation (1-205). [* 5] Matter of Rojas v Suffolk County Sheriff's Office Index No. 6316/201 7 Page 5 5. In sum and substance, the procedure relevant to an inmate upon whom ICE has issued a detainer and accompanying warrant is as follows: If an inmate is in custody, under the care and custody of the SCSO for having committed a local crime or offense, ICE conducts their own independent investigation to ascertain if the inmate is removable from the United States. IfICE so determines, ICE may request that the SCSO lodge a detainer and an accompanying warrant of arrest (1-200) or accompanying warrant of removal/deportation (I-205) against the inmate. The detainer and accompanying warrant remain on file with the SCSO until such time as the detainer is lifted or withdrawn. Once all local charges are satisfied or disposed, the SCSO will run a check on the inmate as it does any other inmate, to process that inmate for release. If the record check reveals a detainer and accompanying warrant is lodged against the inmate, the inmate will be "re-written" into federal custody. For example, an adult male who was in local custody for the commission of a felony will be rewritten from "adult male felony" to " adult male warrant." Once the rewrite occurs, the inmate is in the custody ofICE. The inmate is then placed within the cells at the Riverhead facility that are rented by ICE from the SCSO." The respondents/defendants also submitted copies of the "Detention Services Intergovernmental Agreement" and "Modification of Intergovernmental Agreement" dated October 17, 2017, which were entered into by the United States Marshals Service, Prisoner Operations Division, Office of Detention Services and the respondents/defendants. Based upon a review of the submissions of the parties, the Statement of Interest of the United States of America and the Memorandum of Law submitted on behalf of the New York State Attorney General this Court declares that under the c ircumstances herein, the detention of the petitioner/plaintiff for purposes of federal civil immigration enforcement was not violative of the United States Constitution, the New York State Constitution or New York State law. With respect to the CPLR Article 78 proceeding, '" [A] petitioner seeking a writ of prohibition must demonstrate that: ( 1) a body or officer is acting in a judicial or quasi-judicial capacity, (2) that body or officer is proceeding or threatening to proceed in excess of its jurisdiction and (3) petitioner has a clear legal right to the reliefrequested"' (Matter of Rachelle v Rice, 112 A.D.3d 942. 942. 976 N.Y.S.2d 888, quoting Matter of Garner v New York State Dept. of Correctional Servs., 10 N.Y.3d 358, 361-362, 859 N.Y.S.2d 590. 889. N.E.2d 467). "The remedy is confined to judicial or quasi-judicial action rather than to legislative, executive, administrative, or ministerial acts" (Matter of Doe v. Cuomo, 71A.D.3d 889. 889. 895 N.Y.S.2d 833)." [* 6] Matter of Rojas v Suffolk County Sheriff's Office · Index No. 6316/2017 Page6 (Raiser & Kenniff. P. C. v. Nassau County Sheriff's Dept., 149 AD3d 1084, 1085 [2d Dept. 2017]). Here, the petitioner/plaintiff has failed to demonstrate that the respondents/defendants were acting in a judicial or quasi-judicial capacity, that the respondents/defendants were proceeding in excess of their jurisdiction or that he had a clear right to the reliefrequested. Finally, "[t]he extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought" (Matter of Sullivan v. Morgenstern , 127 AD3d 980 [2d Dept. 2015]). Under the circumstances of this case the petitioner/plaintiff has failed to demonstrate a clear legal right to the relief sought. Thus, the CPLR Article 78 proceeding is dismissed and any remaining requests for relief are denied. The foregoing shall constitute the decision and order of this Court. Dated: Suffolk County, New York March 16, 2018 PH A. SANTORELLI J.S.C. X FINAL DISPOSITION NON-FINAL DISPOSITION
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