Victory v. Coughlin

• Citation: 568 N.Y.S.2d 186,165 A.D.2d 402
• Parties: In the Matter of Albert VICTORY et al., Appellants, v. Thomas COUGHLIN, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
• Decision Date: 04 April 1991
• Court: New York Supreme Court — Appellate Division

Page 186

568 N.Y.S.2d 186

165 A.D.2d 402

In the Matter of Albert VICTORY et al., Appellants, v. Thomas COUGHLIN, as Commissioner of the New York State

Department of Correctional Services, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

April 4, 1991.

David C. Leven and Patricia M. Kennedy, New York City, for appellants.

Robert Abrams, Atty. Gen. (Patrick Barnett-Mulligan and Peter G. Crary, of counsel), Albany, for respondents.

Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and CREW, JJ.

WEISS, Justice.

While outside Greenhaven Correctional Facility in Dutchess County for dental treatment in 1978, petitioner Albert Victory, who was serving a 25-year to life sentence for the felony murder of a policeman, persuaded his guards to remove the shackles and permit him to enter a hotel room with his wife, petitioner Susan Black, for "some private time". Victory and Black escaped and remained at large until he was apprehended in California in 1981. While they were fugitives, a child was born to them in 1980. Black surrendered in 1984, pleaded guilty to the charge of obstructing governmental administration and was sentenced to a term of five years' probation. In July 1984, upon learning of the role Black played in the 1978 escape, the Superintendent of Auburn Correctional Facility in Cayuga County, where Victory was then located, determined that Black posed a security risk to the facility and denied permission for her to visit Victory. The determination was upheld on administrative appeal and affirmed after de novo review by respondent Commissioner of Correctional Services. No judicial review of the revocation of visitation privileges was sought. However, Victory's child has at all times been permitted to visit while escorted by an approved adult.

In a letter dated June 27, 1988 to respondent Superintendent of Shawangunk Correctional Facility in Ulster County, where Victory is currently located, Black sought reconsideration of the revocation of visiting privileges (7 NYCRR 200.5[d]. The request to restore visiting privileges was denied but visitation by the child was continued. On appeal, respondent Deputy Commissioner of Correctional Services held that there was no right to appeal a determination upon reconsideration by the Superintendent which denied restoration of visiting privileges but advised that the regulations provided for reconsideration annually (7 NYCRR 200.5[d]. Petitioners then commenced this CPLR article 78 proceeding seeking a declaration that respondents' conduct was violative of Victory's constitutional rights and for an order permitting visitation with Black and their child. Supreme Court dismissed the petition, finding that the denial was not irrational, and declined to reach the constitutional claims, noting that convicted felons had no fundamental constitutional right to visitation. This appeal followed.

Petitioners initially assert they have a fundamental right to visitation protected by the State Constitution. ¹ They rely principally on Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168, 399 N.E.2d 1188, cert. denied sub nom. Lombard v. Cooper, 446 U.S. 984, 100 S.Ct. 2965, 64 L.Ed.2d 840. The Cooper case held that a policy of noncontact visitation with respect to pretrial detainees is unreasonable unless supported by a strong showing of necessity (see, McNulty v. Chinlund, 87 A.D.2d 707, 708, 448 N.Y.S.2d 895). This court has recognized that there is a clear distinction between the rights of pretrial detainees and those of inmates involuntarily incarcerated for having been convicted of a crime (Oakknoll v. Coughlin, 101 A.D.2d 931, 932, 475 N.Y.S.2d 644). The holding in Cooper was explicitly limited to pretrial detainees who, unlike Victory, enjoy the presumption of innocence. We find no basis for a claim that convicted felons have a right to visitation protected by the State Constitution. Nor do we find that visitation privileges which are generally permitted within the State's correctional facilities give rise to a "legitimate expectation" which in turn attains to the level of a "protected interest" under the State Constitution (see, Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 73-74, 427 N.Y.S.2d 982, 405 N.E.2d 225). When access to a program is based upon objective criteria and enjoyment of participation is contingent upon subjective factors, a "legitimate expectation" is not warranted and no constitutional right arises(Matter of Doe v. Coughlin, 71 N.Y.2d 48, 55, 523 N.Y.S.2d 782, 518 N.E.2d 536). Petitioners next contend that Supreme Court erred in denying their specific request for a hearing on what they characterize to have been controverted facts (CPLR 7804[h]; see, Matter of Church of Scientology of N.Y. v. Tax Comm. of City of N.Y., 120 A.D.2d 376, 501 N.Y.S.2d 863, appeals dismissed 68 N.Y.2d 807, 506 N.Y.S.2d...