Opinion
Argued November 18, 1986
Decided December 19, 1986
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Charles R. Newman, J.
Leigh E. Anderson and Norman P. Effman for appellant.
Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, without costs.
Petitioner, an inmate at Attica Correctional Facility, commenced a habeas corpus proceeding, contending that respondent had illegally ordered his confinement for a period of 24 months in the special housing unit following a Tier III disciplinary hearing in which petitioner had been found guilty of violating various institutional rules prohibiting murder, assault and violent conduct. In his petition he asserted that the determination was invalid because the regulations had not been filed as required by New York State Constitution and the Executive Law (NY Const, art IV, § 8; Executive Law § 102) (see, Matter of Jones v Smith, 64 N.Y.2d 1003). We agree with the Appellate Division that a writ of habeas corpus is not the correct vehicle for reviewing the legality of a prisoner's confinement following a superintendent's proceeding. Accordingly, the Appellate Division properly reversed Special Term, converted the habeas corpus to an article 78 proceeding (see, People ex rel. Corcoran v Smith, 105 A.D.2d 1142, 1143, mod on other grounds 66 N.Y.2d 130) and dismissed the proceeding as time-barred (CPLR 217; see, People ex rel. Jelich v Smith, 105 A.D.2d 1125, 1126, lv denied 64 N.Y.2d 606).
Although the petition, in addition to seeking release from confinement, seeks expungement of the offense from petitioner's record, the habeas corpus proceeding is technically moot since petitioner is no longer in confinement in the special housing unit. Nevertheless, we address the issue presented because it is a question of public importance and one which is likely to reoccur and to evade review (see, Matter of Jones v Berman, 37 N.Y.2d 42, 57).
People ex rel. Brown v Johnston ( 9 N.Y.2d 482), relied on by petitioner, is not to the contrary. There, we held that the writ of habeas corpus was properly employed by petitioner, an Attica inmate, in seeking his release from an allegedly illegal confinement in Dannemora State Hospital, an institution for custody of prisoners who are declared insane. The confinement in People ex rel. Brown v Johnston (supra) was in an institution separate and different in nature from the correctional facility to which petitioner had been committed pursuant to the sentence of the court, and was not within the specific authorization conferred on the Department of Correctional Services by that sentence. Here, by contrast, petitioner does not seek his release from custody in the facility, but only from confinement in the special housing unit, a particular type of confinement within the facility which the Department of Correctional Services is expressly authorized to impose on lawfully sentenced prisoners committed to its custody (Correction Law § 137, [5], [6]; 7 N.Y.CRR 251-1.7; 254.7 [3], [4]; 304.1 [d]; 304.2 [c]; see, Hewitt v Helms, 459 U.S. 460, 468; People ex rel. France v Coughlin, 99 A.D.2d 599). Such disciplinary confinement and the proceedings leading to it must comply with applicable statutes and regulations which, of course, must meet due process standards (see, Matter of Jones v Smith, supra, p 1005), and the proper procedure for review is under CPLR article 78.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER and HANCOCK, JR., concur; Judge MEYER dissents and votes to reverse in an opinion in which Judge TITONE concurs.
Order affirmed, without costs, in a memorandum.
Respectfully I dissent. I cannot accept the majority's distinction between this case and People ex rel. Brown v Johnston ( 9 N.Y.2d 482). Defendant was committed to a correctional institution for incarceration in the normal prison setting, except as his conduct, proscribed by valid regulations, permits his confinement in more restricted detention (Correction Law § 137; see, 7 N.Y.CRR 254.7 [3]). To permit solitary confinement on the basis of invalid regulations is to confine defendant in a manner "different in nature and separate from the correctional facility to which" he was committed, just as it was in Brown. Habeas corpus, therefore, lies.
By definition, inmates placed in a special housing unit (SHU) are not permitted to "commingle with the general inmate population" (7 N.Y.CRR 300.2 [b]) and inmates, such as relator, whose SHU confinement was part of a segregation unit, are not permitted to "commingle with each other" (7 N.Y.CRR 300.2 [c]). The State does not dispute, moreover, the statements in relator's brief that he was confined to a solitary cell for 23 hours per day, that he was permitted to exercise daily for one hour in a single, empty cell (see, 7 N.Y.CRR 301.5 [b]) and to shower once each week (see, 7 N.Y.CRR 301.5 [a]) and that his visitation privileges were subject to restrictions (see, 7 N.Y.CRR 301.6) .