People ex rel. Rockey v. Krueger

• Decision Date: 09 December 1969
• Citation: 62 Misc.2d 135,306 N.Y.S.2d 359
• Parties: The PEOPLE of the State of New York ex rel. Hal ROCKEY, Petitioner, v. Arthur E. KRUEGER, Warden, Nassau County Jail, Respondent.
• Court: New York Supreme Court

Page 359

306 N.Y.S.2d 359

62 Misc.2d 135

The PEOPLE of the State of New York ex rel. Hal ROCKEY, Petitioner, v. Arthur E. KRUEGER, Warden, Nassau County Jail, Respondent.

Supreme Court, Special Term, Nassau County, Part II.

Dec. 9, 1969.

[62 Misc.2d 136] James J. McDonough, Mineola, for petitioner.

Morris Schneider, County Atty., Mineola, for respondent.

MEMORANDUM

BERNARD S. MEYER, Justice.

Relator was confined in the Nassau County Jail on October 31, 1969. By pro se petition entitled as a writ of habeas corpus, he alleges that he has since he entered the jail been held in solitary confinement because he refused to shave his beard off, that he is a musician and a Muslim by faith and both for religious and professional reasons does not want to be clean shaven. He asks that he be released from solitary confinement and given the normal privileges of a prisoner awaiting trial. Notwithstanding that relator does not contest the propriety of his confinement on the underlying charge, he may be a writ raise the issue whether restraint in excess of that permitted is being imposed upon him, People ex rel. Brown v. Johnston, 9 N.Y.2d 482, 215 N.Y.S.2d 44, 174 N.E.2d 725. Were that not the case, the issue could properly be presented in an Article 78 proceeding, Matter of Brown v. McGinnis, 10 N.Y.2d 531, 225 N.Y.S.2d 497, 180 N.E.2d 791; Matter of Diocese of Rochester v. Planning Board, 1 N.Y.2d 508, 154 N.Y.S.2d 849, 136 N.E.2d 827. In light of that fact and of CPLR 103(c), there is no question that the matter is properly before the court.

Respondent points to the Minimum Standards adopted by the Commissioner of Corrections (7 NY CRR § 100.13(e) which states that 'Prisoners * * * must be clean shaven * * *') and urges that such a regulation is reasonable since heavy hair may conceal contagious skin conditions, and that the court should not interfere with administration of the jails. It is not necessary for the court to determine whether a regulation against facial hair applied to all prisoners equally is valid, for the testimony reveals a constitutionally invalid discrimination against relator.

'Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with * * * an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution,' Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; accord: Matter of Diocese of Rochester v. Planning Board, 1 N.Y.2d 508; Matter of Zorach v. Clauson, 303 N.Y. 161, 100 N.E.2d 463, affd. 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954. The jail supervisory officer, Captain Clark, testified that relator stated when he was admitted that he belonged to the Islamic religion and that he told relator that that was not recognized as a religion in the institution. He further testified that there was no formal regulation about hair at the Nassau County Jail, but that the order to the staff was that inmates were only permitted to wear a mustache (and that only if...