Opn. No. ( 1980 )

Owen B. Walsh, Esq. Second Chief Deputy Attorney Nassau County

You inquire whether a county may contract with a private firm for the transportation to and from correctional facilities of prisoners and others being detained. It is proposed that the sheriff surrender custody of the prisoners and others being detained to the private firm.

Under section 500-c of the Correction Law, sheriffs, except in the City of New York and the Counties of Westchester and Monroe, have custody of county jails and must receive and safely keep every person lawfully "committed" to their custody. A "principal" (includes defendant, material witness or other person involved in a criminal action) is committed to the custody of the sheriff when a court, having acquired control over the principal, orders that he be confined in the custody of the sheriff during the pendency of the criminal action. (Criminal Procedure Law, § 500.10 [1] [4].) Custody of a principal passes to the sheriff upon issuance of a commitment by a court. The sheriff takes custody at that time and is responsible for transportation of the principal for detainment (1977 Op Atty Gen 280). It is the duty of the sheriff to deliver the defendant promptly to the proper institution in accordance with the commitment (Criminal Procedure Law, §430.30). The sheriff has exclusive responsibility for custody and control of all prisoners and no other persons in county government may exercise this responsibility (Edwards v County of Onondaga, 39 Misc.2d 443 [Sup Ct, Cayuga Co, 1963]).

In many other provisions of law responsibility of the sheriff as custodian of prisoners and other detainees is recognized. The sheriff is given the duty to take custody of, deliver and release these persons in accordance with court direction (see for example Criminal Procedure Law, §§ 510.40, 510.50, 520.15, 530.40, 530.60, 550.10, 620.50).

Contracting with a private firm to transport prisoners would deprive the sheriff of custody and control. We conclude that in light of the many specific statutory provisions imposing the duty of custody and control on the sheriff, there is no basis in law for transferring that duty to a private firm.