SAXE, J.P. (dissenting).

This CPLR article 78 proceeding raises the question of whether a trial court possesses the authority, postsentencing, to direct the Department of Correctional Services (DOCS) to take the necessary measures to ensure that a convicted criminal defendant will be unable to continue victimizing targeted members of the public and the justice system while he is incarcerated. I would hold that where a clear showing has been made that the inmate will continue, while in custody, his longstanding criminal practice of mailing fraudulent financial filings, falsely naming members of the public as debtors, thereby wreaking substantial havoc in each of these people's lives, and where DOCS takes the position that it is unable to prevent him from continuing this practice with the use of inmate-accomplices, the court must have the authority to protect its own integrity, and to protect the public from further victimization. It can only do so if it has the ability to direct DOCS to take such steps as are necessary to ensure that protection. This must include the authority to direct that the inmate whose crimes cannot otherwise be stopped be housed in a segregated housing unit, and other necessary protective measures. Because a showing of such unchecked ongoing criminality was made here, I would not disturb the court's assertion of authority

Facts

Petitioner Jovan Fludd is an inmate currently serving three consecutive terms of 2 to 4 years' imprisonment in the custody of the New York State Department of Correctional Services. He was tried and convicted on January 20, 2006 of three counts of offering a false instrument for filing in the first degree (Penal Law § 175.35), three counts of falsifying business records in the first degree (Penal Law § 175.10), and one count of obstructing governmental administration in the second degree (Penal Law § 195.05), and sentenced by respondent Justice on March 14, 2006. These convictions were based upon petitioner's actions" undertaken while in prison on a prior conviction — involving the filing of UCC-1 financing statements falsely naming as debtors various prosecutors, judges, clerical staff, court reporters and defense counsel who had been involved with prior prosecutions against him.

Apparently, making such false filings is a practice employed with some regularity by inmates, criminal defendants and disgruntled litigants against public officials as a means of harassment ( see United States v Gordon, 2005 WL 2237640, *1-2, 2005 US Dist LEXIS 20737, *3-5 [SD Ga 2005]; Hudson v Caruso, 2005 WL 1689640, 2005 US Dist LEXIS 22645 [WD Mich 2005]; United States v Brum, 2005 WL 1606584, 2005 US Dist LEXIS 21208 [ED Tex 2005]; United States v Orrego, 2004 WL 367706, 2004 US Dist LEXIS 28608 [ED NY 2004]). Although these baseless filings are not legally effective to create an enforceable lien ( see United States v Rodriguez Ramirez, 291 F Supp 2d 266, 269 [SD NY 2003]), and indeed, the filer may be subject to civil and criminal sanctions and penalties ( see UCC 9-509 [a]; 9-625), nevertheless a record of the filing exists in the public database. Since there appears to be no means for the victim of a bogus lien to completely remove or expunge the unauthorized UCC-1 statement, the filing, though false, may be found by an entity conducting a lien search, and may interfere with the named individual's ability to obtain credit or conduct other financial affairs such as the purchase and sale of property ( see United States v Gordon, 2005 WL 2237640, 2005 US Dist LEXIS 20737, supra).

On May 19, 2005, based upon a clear and convincing showing of petitioner's repeated and continuing pattern of falsely filing such financial statements while in custody, the arraignment justice (Ambrecht, J.) granted the People's application for an order imposing conditions on petitioner's incarceration. The order prohibited petitioner from filing UCC-1 statements or other specified UCC forms, or other civil litigation (except habeas corpus petitions) without leave of the court, and further limited his ability to make telephone calls, send letters, give materials to visitors, and obtain funds from his commissary account; it also provided for appointment of a Special Master to monitor petitioner's correspondence. By its terms, the order would remain in effect during the pendency of the criminal case.

Following petitioner's conviction on January 20, 2006, and prior to his sentencing on March 14, 2006, the People sought a new order continuing the specific terms of petitioner's incarceration, in the interests of protecting the witnesses who testified in the case, the public servants involved in the prosecution, and the jurors. On March 13, 2006, in the context of the criminal prosecution, respondent Justice issued the requested order, containing similar provisions to those of the prior order.

After he was sentenced and committed to the custody of DOCS, petitioner continued his practice of attempting to use the mails to injure any individuals who took part in his prosecution. When this was prevented by the screening of his own mail by the court-appointed Special Master, he attempted to continue the practice by using other inmates, whose names were used for the envelopes' return addresses, to mail a number of letters seeking information against seven judges, three assistant district attorneys, and his defense counsel. When these actions were uncovered, petitioner was found guilty of the disciplinary offense known as "kiting" following hearings held on August 2, 2006 and August 8, 2006.

In September 2006, officials at the correctional facility placed petitioner in the prison's segregated housing unit (SHU). However, following an automatic administrative hearing on September 11, 2'006, a hearing officer directed that DOCS could not continue to keep petitioner in the SHU, because applicable regulations regarding placement of inmates in segregated housing only allow for such placement where the inmate poses a threat or danger to the safety or security of the facility ( see 7 NYCRR 301.4 [b]). DOCS thereupon informed respondent Justice that it could not effectively enforce the prior order unless petitioner was placed in restrictive confinement, but that it could not properly do so without a further directive from the court.

Confronted with the apparent helplessness of DOCS to prevent its inmates from continuing to commit this type of crime through the mails, respondent Justice therefore granted the application to issue a supplemental order. Its order, dated September 29, 2006, was denominated an order for restrictive confinement, and directed, inter alia, that

"DOCS shall take such steps that it deems necessary, including placement of this defendant in restrictive housing, in order to limit his ability to have contact with other inmates through whom he may attempt to send out additional correspondence or whom he may convince to write to other persons on his behalf asking them to send out impermissible materials on his behalf."

This order was thereafter modified by the court on December 5, 2006, to respond to protests by appellate counsel that the foregoing orders prevented attorney-client communications, by making provision for mail to be sent and telephone calls made by petitioner to counsel.

Assigned appellate counsel brought an order to show cause on December 11, 2006, seeking vacatur and modification of the March and September orders, on the ground that the court lacked jurisdiction to issue the order of September 29, 2006, and that the March order was unlawfully restrictive. That motion was denied by decision and order dated February 15, 2007, the court noting that it had taken pains to avoid ordering DOCS to take any particular steps, and that any claim of denial of due process or other violations in his treatment while imprisoned was reviewable through article 78 proceedings against DOCS and the correctional facility.

The instant article 78 proceeding ensued, in which petitioner named as respondents the issuing Justice, the New York County District Attorney, the Commissioner and Counsel for the Department of Correctional Services, and the Superintendent of the correctional facility housing petitioner.

Discussion

As the majority holds, an article 78 proceeding is the appropriate vehicle to challenge the court's assertion of continued authority over petitioner following conviction and sentencing, inasmuch as an appeal would be from the conviction itself, and the issue raised here is the court's jurisdiction to issue the challenged orders.

Further, it is true that there is no statutory basis for the court's assertion of jurisdiction. The Criminal Procedure Law provides that a criminal action "terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case" (CPL 1.20 [c]). Postjudgment interference in the sentence is prohibited "[e]xcept as otherwise specifically authorized by law" (CPL 430.10). Circumstances in which a trial court continues to exert authority over a case after sentencing are normally limited to those where a statute so provides, such as where the defendant was sentenced to a term of probation or a conditional discharge (CPL 410.20; 410.50; see also People v Panesga, 160 Misc 2d 1063, 1067).

In People v Purley ( 297 AD2d 499, lv denied 99 NY2d 503), this Court reversed a supplemental order issued by the sentencing court, in which the Department of Correctional Services had been directed to implement specific measures concerning the medical care of the defendant during his incarceration. We observed that once a court commits a defendant to the custody of DOCS, thereafter, "prison services, including health care, are the responsibility of DOCS ( see 9 NYCRR 7600.1 et seq.)" (id. at 501). Similarly, it has been held that the trial court has no authority to order DOCS to commit a convicted criminal defendant to a specific correctional facility ( see Correction Law §§ 23, 71; see also People v Sass, 182 AD2d 861, lv denied 80 NY2d 837).

Yet, faced with DOCS's protestations that it lacked the regulatory authority to take the steps necessary to prevent its own inmates from continuing petitioner's criminal conduct while incarcerated, respondent Justice understandably, and appropriately, looked to the court's inherent powers to remedy this incomprehensible failure of responsibility.

The concept of the inherent power of the court is an assertion of authority which "must be invoked with great restraint," because it is not subject to direct democratic controls ( Gabrelian v Gabrelian, 108 AD2d 445, 454, appeal dismissed 66 NY2d 741). Such power should only be exercised "when a Judge must discharge a responsibility, but lacks guidance from explicit legislative or decisional authority" ( Alvarez v Snyder, 264 AD2d 27, 35, lv denied 95 NY2d 759, cert denied sub nom. Diaz v Snyder, 531 US 1158).

The court's inherent powers have previously been held properly relied upon in circumstances where it had to take action in the absence of explicit authority, during the pendency of a case, "so that the adjudicative process can function" ( People v Green, 170 Misc 2d 519, 524 [citation and internal quotation marks omitted]). This reasoning was used by this Court in Alvarez v Snyder to uphold a series of lockdown orders issued by a trial judge in the context of pending indictments against multiple defendants, with the recognition that the court, having responsibility for avoiding any interference with pending cases, has an inherent power "governed by the need to reasonably enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective" ( 264 AD2d at 35).

Of course, here, the order was not issued during the pendency of the case, and was geared toward performing a responsibility which we would expect to have been performed by DOCS. Decisions regarding an inmate's imprisonment are the responsibility of DOCS ( cf. People v Purley, 297 AD2d at 501). Indeed, DOCS, and specifically its use of special housing units, is covered by a wide array of regulations regarding inmate misconduct ( see 7 NYCRR ch VI). The challenged orders were sought and issued only when DOCS had reported that it lacked the authority to take the actions necessary to prevent the continued criminal conduct it had found to be taking place.

Respondent Justice was presented with a complete vacuum of authority, in the face of findings made both by herself and by DOCS that petitioner had the intent, the means and the ability to arrange for his criminal misconduct to continue, if not by his own hands then through his fellow inmates. Petitioner, by his continued conduct, was not only thumbing his nose at our system of justice, he was in fact wreaking havoc with that system, by successfully creating an ongoing threat to every individual who crossed his path in the course of his prosecutions, possibly making people hesitate to carry out their assigned tasks in his cases. Respondent Justice was therefore presented with a Hobson's choice; she really had no other option than to invoke the inherent authority of the court. If she declined to do so, and by inaction allowed an inmate convicted of this type of crime to continue the same conduct during his years of incarceration, against scores of new victims, the court would in very short order be hobbled in its performance of its judicial functions.

Furthermore, we should consider that a convicted and imprisoned defendant who is enabled to continue to commit, while in custody, the very same crime for which he was convicted, is not really being punished, or serving the sentence, as was contemplated. Where that is the case, the assertion of the court's inherent power to remedy the situation may be unusual, but it is not unjust.

The majority suggests that the proper manner of handling this situation is to prosecute petitioner for each additional false filing. While it is irrefutable that petitioner should be prosecuted for each crime, that course of conduct will do nothing to prevent petitioner's continued criminal conduct while in prison. It would merely lengthen the time he would spend in prison, and widen the circle of victims on whom to make renewed attacks with increasing vigor. What is necessary is to prevent petitioner from continuing the same criminal conduct while he is in the custody of DOCS. If DOCS understands itself to be so powerless as to be unable to prevent this, and if the court system is unable to prevent it as well, petitioner will have succeeded in making a mockery of our justice system.

This assertion of inherent authority in such circumstances is admittedly unique. However, it arises in the context of a highly unusual dilemma. The only other way to avoid this problem in the future would be to ensure that the governing regulations regarding the handling of DOCS inmates authorize the Department to provide the necessary protection to the public from the types of crimes petitioner has continued to commit while in custody, using fellow inmates as accomplices. A modification or clarification of those regulations ought to be adopted, sufficient to protect the public from victimization by continuing criminal conduct on the part of prison inmates.

Petition brought pursuant to article 78 of the Civil Practice Law and Rules seeking to vacate and set aside orders, Supreme Court, New York County, entered March 13, 2006, September 29, 2006, December 5, 2006 and February 15, 2007, granted, and it is directed that petitioner be released from indefinite confinement in the special housing unit of Wende Correctional Facility.