Bugliaro v. Wilmot
| Citation | 108 Misc.2d 425,437 N.Y.S.2d 551 |
| Parties | In the Matter of the Application of Robert BUGLIARO, Donna Bugliaro and Blanche Bugliaro, Petitioners, for a Judgment pursuant to Article 78 of the CPLR v. John WILMOT as Superintendent of Elmira Correctional Facility, and William Kirk as Deputy Superintendent of Security, Respondents. |
| Decision Date | 13 March 1981 |
| Court | United States State Supreme Court (New York) |
As refined by the parties, we perceive the sole issue in this Article 78 proceeding to be whether respondents had discretion to terminate for six months petitioner Robert Bugliaro's visiting privileges in addition to other punishments on his plea of guilty at a Superintendent's proceeding for, inter alia, possession of contraband (marijuana) discovered on petitioner's body following his participation in the Heritage Day Feast where visitors to the facility were present. Since there is automatic review of the Superintendent's Proceeding for loss of privileges (7 NYCRR § 270.2), we deem all administrative remedies to have been exhausted. Petitioner having been returned to general population prior to the initiation of this proceeding after thirty days confinement in the Special Housing Unit, we address this issue in relation to petitioner's present status in general population.
Initially we observe that the only statute of which we are aware concerning visitors at a correctional facility, authorizes named public officials and clergymen unlimited access. As to other visitors, it provides:
"No other person not otherwise authorized by law shall be permitted to enter a correctional facility except by authority of the Commissioner of Correction under such regulations as the Commissioner shall prescribe." (Correction Law § 146; emphasis supplied)
Before such regulations become effective, the New York State Constitution requires that they be filed in the Office of the Department of State (Art. IV, § 8). In turn, the Executive Law (§§ 102-106) requires the Secretary of State to compile and publish all such regulations (except those relating to internal management not applicable here) in the "official compilation of codes, rules and regulations of the State of New York." This compilation "presumptively establish(es)" the validity of such regulations (§ 102), affording them "the full force and effect of law" and permitting them to be read into evidence (§ 106).
To support the revocation of visitation, the Attorney General relies upon "Directive # 4403" (eff. 6/18/79), and advises that this directive affords respondents authority to suspend "visitation privileges for a specific period of time" ). Accepting the Attorney General's description and characterization of that document (which has not been submitted here), our review of the Secretary of State's official compilation of regulations fails to disclose the Directive. " Since we view Correction Law § 146 as requiring visitation privileges to be governed solely by regulations, we do not deem that directive which has not met the constitutional and statutory requirements of a regulation to be controlling, and therefore look to regulation in the official compilation for a resolution of this issue (cf. Matter of Chambers v. Coughlin, 76 A.D.2d 980, 981, 429 N.Y.S.2d 74 (case 25) where the court assumed the validity of the noted directive, and concluded that the disciplinary measures were in conflict).
Search of Title 7, NYCRR the regulations of the Department of Correctional Services fails to disclose any regulation which directly treats of deprivation of visitation affecting inmates in general population. Rather, the sole regulations addressing this issue 1 appear in Part 300 of Title 7 NYCRR entitled: "Special Housing Units." 2
"301.6 Correspondence and Visiting.
(a) No inmate shall be deprived of the correspondence or visiting privileges available to inmates in the general population.
To continue reading
Request your trial
-
Kozlowski v. Coughlin, 81 Civ. 5886(CES)
......Ct.1981) (no rational basis for denying contact visitation privileges mandated in Cooper to sentenced prisoners); Bugliaro v. Wilmot, 108 Misc.2d 425, 428, 437 N.Y.S.2d 551, 553 (Sup.Ct.1981) (Cooper recognizes a state constitutional right to prison visitation). While ......
-
Kozlowski v. Coughlin
...... See McNulty v. Chinlund, 108 Misc.2d 707, 438 N.Y.S.2d 734, 736 (Sup.Ct.Alb.Co.1981); Bugliaro v. Wilmot, 108 Misc.2d 425, 437 N.Y.S.2d 551, 553 (Sup.Ct. Chemung Co. 1981). Although McNulty was subsequently reversed on appeal, the Appellate ......
-
Jones v. Smith
...... Other Courts have indicated that the Department of Correctional Services is subject to the filing requirement (see Matter of Bugliaro v. Wilmot, 108 Misc.2d 425, 437 N.Y.S.2d 551). The Third Department has indicated that a directive authorizing the suspension of visitation rights ......
-
Sebastiano v. State
......Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168, 399 N.E.2d 1188; Matter of Bugliaro v. Wilmot, 108 Misc.2d 425, 437 N.Y.S.2d 551). The terms and provisions for discovery rest in the sound discretion of the court to which ......