Supreme Court, Suffolk County, March 16, 2018

Dennis M. Brown, County Attorney, Hauppauge, for defendants/respondents.

Benjamin N. Cardozo School of Law, Yeshiva University, New York City, for plaintiff/petitioner.

In this hybrid CPLR article 78 proceeding and declaratory judgment action, petitioner/plaintiff Andres Felipe Florez Rojas seeks: (1) a declaration that it violates the United States Constitution, the New York State Constitution and New York State law for respondents/defendants to detain him beyond the period authorized for his criminal proceedings for purposes of federal civil immigration enforcement; and (2) an order pursuant to CPLR 7006 annulling respondents'/defendants' decision to detain petitioner/plaintiff for purposes of federal civil immigration enforcement upon the payment of bail and directing respondents/defendants to refrain from detaining him after his payment of bail and release from custody.

By motion dated December 26, 2017, respondents/defendants move for an order pursuant to CPLR 3211 (a) (7) dismissing the complaint and verified petition. The petitioner/plaintiff has opposed this application.

Under Suffolk County District Court docket No. 47698/2017 the petitioner/plaintiff was charged with criminal possession of stolen property in the fourth degree, a class E felony. On December 2, 2017, the petitioner/plaintiff was arraigned on a felony complaint, bail was set and he was remanded to the custody of respondents/defendants. On or about December 4, 2017, the United States Department of Homeland Security (hereinafter DHS), filed an "Immigration Detainer-Notice of Action" against the petitioner/plaintiff.^[FN*]

In relevant part the document stated:

"1. DHS HAS DETERMINED THAT PROBABLE CAUSE EXI[S]TS THAT THE SUBJECT IS A REMOVABLE ALIEN. THIS DETERMINATION IS BASED ON (complete box 1 or 2). Inmate # - 736292 . . .

"[X] Biometric confirmation of the alien's identify and a record check of Federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either{**59 Misc 3d at 709} lacks immigration status or notwithstanding such status is removable under U.S. immigration law; and/or . . .

"IT IS THEREFORE REQUESTED THAT YOU:

"• Notify DHS as early as practicable (at least 48 hours, if possible) before the alien is released from your custody. Please notify DHS by calling [X] U.S. Immigration and Customs Enforcement (ICE) or [ ] U.S. Customs and Border Protection (CBP) at 5165724403. If you cannot reach an official at the number(s) provided, please contact the Law Enforcement Support Center at (802) 872-6020.

"• Maintain custody of the alien for a period NOT TO EXCEED 48 HOURS beyond the [*3]time when he/she would otherwise have been released from your custody to allow DHS to assume custody. The alien must be served with a copy of this form for the rehabilitation, parole, release, diversion, custody classification, work, quarter assignments, or other matters.

"• Relay this detainer to any other law enforcement agency to which you transfer custody of the alien.

"• Notify this office in the event of the alien's death, hospitalization or transfer to another institution."

On December 7, 2017, the petitioner's/plaintiff's bail was reduced to $25 in the Suffolk County District Court. It is alleged the petitioner/plaintiff did not post the bail because he did not want to be taken into DHS custody. On January 29, 2018, the petitioner/plaintiff entered a plea of guilty to the reduced charge of disorderly conduct (Penal Law § 240.20 [7]), in full satisfaction of docket No. 47698/2017 and received a sentence of 15 days. Upon information and belief the petitioner/plaintiff is no longer in the custody of the respondents/defendants.

Preliminarily the court holds that the issues raised herein are not moot notwithstanding the petitioner's/plaintiff's release from the respondents'/defendants' custody.

" 'Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court{**59 Misc 3d at 710} from rendering a decision that would effectively determine an actual controversy' (Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727, 728-729 [2004], quoting Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172 [2002]; see Matter of Olga L.M.A. v Ronald A.B.M., 135 AD3d 741 [2016]). Where a controversy is otherwise moot, a court may nevertheless review it if it presents for review 'important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable' (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). The exception to the mootness doctrine is properly applied where there is '(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues' (id. at 714-715; see Coleman v Daines, 19 NY3d 1087, 1090 [2012]; Matter of Raven K. [Adam C.], 130 AD3d 622, 622-623 [2015])." (Matter of Chang v Maliq M., 154 AD3d 653, 654 [2d Dept 2017].)

Here it cannot be gainsaid that the facts and circumstances in controversy fall within the exception to the mootness doctrine.

In support of the motion to dismiss the respondents/defendants proffer various arguments. The respondents/defendants contend the petitioner's/plaintiff's claim was a legal fiction because his own actions (i.e., not posting bail), were causing him to remain in custody rather than an unconstitutional seizure. Further, the respondents/defendants urge that this court has no jurisdiction to adjudicate the legality of a federal detainer and warrant. The respondents/defendants argue that a writ of prohibition does not lie because their actions are consistent with federal and state law. Finally, the respondents/defendants contend that even if the petitioner/plaintiff had posted bail while in custody his brief detention was reasonable, under color of federal law and not inconsistent with state law.

In opposition, the petitioner/plaintiff contends that the respondents/defendants do not possess authority under state{**59 Misc 3d at 711} law to seize him pursuant to an immigration detainer and administrative warrant. It is urged that the imminent arrest of the petitioner/plaintiff without lawful authority would be violative of the United States and New York State Constitutions. The petitioner/plaintiff suggests that the respondents'/defendants' failure to provide a mechanism to challenge the decision to arrest an individual for a violation of federal immigration law constitutes a violation of due process.

In support of the motion to dismiss this proceeding/action the respondents/defendants have submitted the "DECLARATION" of Deputy Warden Thomas Hennessey dated December 26, 2017, which in relevant part states:

"2. I am aware that the Suffolk County Correctional Facility entered into a Detention Services Intergovernmental Agreement ('Agreement') with the U.S. Department of Justice, United States Marshals Service, in approximately 1994. The Agreement is pursuant to Section 119 of the Department of Justice Appropriations Act of 2001 [Public Law 106-553]. Generally speaking, the Agreement allows the U.S. Marshals Service or other 'authorized agency user' to house federal detainees with the local government at the Suffolk County Correctional Facility, at 100 Center Drive, Riverhead New York.

"3. On or about October 20, 2017, the Agreement was modified, such that the U.S. Immigration and Customs Enforcement ('ICE') was added as an 'authorized agency user,' by way of a 'Rider,' to the current Agreement. The Rider was signed on approximately October 20, 2017, and went into effect approximately October 27, 2017. A copy of the Rider is attached hereto. A copy of the New Agreement, incorporating ICE as an authorized agency user, is attached hereto, as the Agreement.

"4. Pursuant to law and to SCSO policy, the SCSO will not act solely upon a detainer issued by ICE. Rather, the SCSO will act upon a detainer with an accompanying warrant for arrest (I-200) or an accompanying warrant of removal/deportation (I-205).

"5. In sum and substance, the procedure relevant to an inmate upon whom ICE has issued a detainer and accompanying warrant is as follows:

"If an inmate is in custody, under the care and custody of the SCSO for having committed a local{**59 Misc 3d at 712} crime or offense, ICE conducts their own independent investigation to ascertain if the inmate is removable from the United States. If ICE so determines, ICE may request that the SCSO lodge a detainer and an accompanying warrant of arrest (I-200) or accompanying warrant of removal/deportation (I-205) against the inmate. The detainer and accompanying warrant remain on file with the SCSO until such time as the detainer is lifted or withdrawn.

"Once all local charges are satisfied or disposed, the SCSO will run a check on the inmate as it does any other inmate, to process that inmate for release. If the record check reveals a detainer and accompanying warrant is lodged against the inmate, the inmate will be 're-written' into federal custody. For example, an adult male who was in local custody for the commission of a felony will be re-written from 'adult male felony' to 'adult male warrant.' Once the rewrite occurs, the inmate is in the custody of ICE. The inmate is then placed within the cells at the Riverhead facility that are rented by ICE from the SCSO."

The respondents/defendants also submitted copies of the "Detention Services Intergovernmental Agreement" and "Modification of Intergovernmental Agreement" dated October 17, 2017, which were entered into by the United States Marshals Service, Prisoner Operations Division, Office of Detention Services and the respondents/defendants.

Based upon a review of the submissions of the parties, the statement of interest of the United States of America and the memorandum of law submitted on behalf of the New York State Attorney General this court declares that under the circumstances herein, the detention of the petitioner/plaintiff for purposes of federal civil immigration enforcement was not violative of the United States Constitution, the New York State Constitution or New York State law.

With respect to the CPLR article 78 proceeding,

" '[A] petitioner seeking a writ of prohibition must demonstrate that: (1) a body or officer is acting in a judicial or quasi-judicial capacity, (2) that body or officer is proceeding or threatening to proceed in excess of its jurisdiction and (3) petitioner has a clear legal right to the relief requested' (Matter of {**59 Misc 3d at 713}Rachelle v Rice, 112 AD3d 942, 942 [2013], quoting Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 361-362 [2008]). 'The remedy is confined to judicial or quasi-judicial action rather than to legislative, executive, administrative, or ministerial acts' (Matter of Doe v Cuomo, 71 AD3d 889, 889 [2010])." (Matter of Raiser & Kenniff, P.C. v Nassau County Sheriff's Dept., 149 AD3d 1084, 1085 [2d Dept 2017].)

Here, the petitioner/plaintiff has failed to demonstrate that the respondents/defendants were acting in a judicial or quasi-judicial capacity, that the respondents/defendants were proceeding in excess of their jurisdiction or that he had a clear right to the relief requested.

Finally, "[t]he extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought" (Matter of Sullivan v Morgenstern, 127 AD3d 980, 980 [2d Dept 2015]). Under the circumstances of this case the petitioner/plaintiff has failed to demonstrate a clear legal right to the relief sought.

Thus, the CPLR article 78 proceeding is dismissed and any remaining requests for relief are denied.