De'Vere v. Reid

• Decision Date: 10 June 1985
• Citation: 111 A.D.2d 811,490 N.Y.S.2d 557
• Parties: In the Matter of Anthony DE'VERE, Appellant, v. Theodore REID, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 557

490 N.Y.S.2d 557

111 A.D.2d 811

In the Matter of Anthony DE'VERE, Appellant, v.Theodore REID, etc., Respondent.

Supreme Court, Appellate Division Second Department.

June 10, 1985.

John F. Clennan, Centereach, for appellant.

Robert Abrams, Atty. Gen., New York City(Maryellen Weinberg and Esther Furman, New York City, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to compel respondent to give him permission to marry, petitioner appeals from a judgment of the Supreme Court, Dutchess County, dated October 12, 1983, which dismissed his petition.

Judgment affirmed, without costs or disbursements.

Petitioner, an inmate at Fishkill Correctional Facility, serving an indeterminate prison sentence of three years to life, commenced the instant article 78 proceeding for a judgment permitting him to be married as soon as possible.Special Term properly dismissed the petition due to petitioner's failure to exhaust available administrative remedies (see, Matter of Patterson v. Smith, 53 N.Y.2d 98, 440 N.Y.S.2d 600, 423 N.E.2d 23;Matter of Hall v. LeFevre, 84 A.D.2d 622, 444 N.Y.S.2d 230).

In any event, we note that, pursuant to Civil Rights Law § 79-a(1), the Superintendent of Fishkill Correctional Facility properly denied petitioner's application to marry.Contrary to petitioner's claim, it is well settled that the prohibition against marriage contained in Civil Rights Law § 79-a for those who have been convicted and sentenced to life imprisonment is neither a denial of equal protection of the laws nor cruel and unusual punishment (see, Matter of Fitzpatrick v. Smith, 90 A.D.2d 974, 456 N.Y.S.2d 902, affd.59 N.Y.2d 916, 466 N.Y.S.2d 318, 453 N.E.2d 547 on mem. at the App.Div., cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 340;Johnson v. Rockefeller, 365 F.Supp. 377, affd. sub nom.Butler v. Wilson, 415 U.S. 953, 94 S.Ct. 1479...