De'Vere v. Reid

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 (Jiudice, J.), 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 NY2d 98; Matter of Hall v LeFevre, 84 AD2d 622).

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 AD2d 974, affd 59 NY2d 916, on mem at App Div, cert denied 464 US 963, 104 S Ct 300; Johnson v Rockefeller, 365 F Supp 377, affd sub nom. Butler v Wilson, 415 US 953; Fuchs v Fuchs, 104 Misc 2d 1143; Muessman v Ward, 95 Misc 2d 478). Thompson, J. P., Bracken, Weinstein and Niehoff, JJ., concur.