IN RE: Rodney BELLONY (2005)

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the enforcement of an ex parte lockdown order of the Supreme Court, Kings County (Chambers, J.), dated September 10, 2004, as amended October 20, 2004 (Gary, J.), which imposed various restrictive terms on his pretrial detention.

ADJUDGED that the petition is denied, and the proceeding is dismissed, without costs or disbursements.

 “Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court-in cases where judicial authority is challenged-acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;  see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170).

As a pretrial detainee, the petitioner has certain due process rights under the United States Constitution and the New York Constitution (see Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447;  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).   Under the more protective state due process requirements (see Cooper v. Morin, supra ), inmates' rights must be balanced against the security concerns of the institution (id. at 81, 424 N.Y.S.2d 168, 399 N.E.2d 1188).   As this court observed in People ex rel. Schipski v. Flood, 88 A.D.2d 197, 452 N.Y.S.2d 652, where it struck a 22-hour blanket lock-in policy for pretrial detainees, “restrictions on the liberties of pretrial detainees [in New York's jails] must meet the exacting standard of compelling governmental necessity in order to be sustained” (id. at 199, 452 N.Y.S.2d 652, quoting Cooper v. Morin, supra at 83, 424 N.Y.S.2d 168, 399 N.E.2d 1188 [Gabrielli, J. dissenting] [internal quotation marks omitted] ).

 In the matter at bar, the People demonstrated a compelling governmental necessity for the ex parte lockdown order, as amended (hereinafter the lockdown order).   Contrary to the petitioner's contentions, he had no right to notice and an opportunity to be heard in the first instance to challenge the People's application (see Alvarez v. Snyder, 264 A.D.2d 27, 702 N.Y.S.2d 5, lv. denied 95 N.Y.2d 759, 714 N.Y.S.2d 709, 737 N.E.2d 951, cert. denied sub nom. Diaz v. Snyder, 531 U.S. 1158, 121 S.Ct. 1110, 148 L.Ed.2d 980;  see also People v. Whitt, 304 A.D.2d 378, 758 N.Y.S.2d 37).   In addition, the People demonstrated that the petitioner's isolation from other prisoners and the restrictions on his visitation and communication were reasonably related to a legitimate government purpose (id.;   cf. United States v. Basciano, 369 F.Supp.2d 344).

We note that in subsequent amendments to the lockdown order dated July 26, 2005, and August 11, 2005, the Supreme Court (Chun, J.), inter alia, permitted the petitioner to receive visits from his attorney's law student intern and to speak by telephone with his mother, wife, and grandmother once per week under certain conditions. Thus, the petitioner's challenges to paragraphs three and four of the lockdown order insofar as they precluded visits from his attorney's law student intern and telephone calls with his mother, wife, and grandmother, have been rendered academic (see Chertok v. Chertok, 150 A.D.2d 327, 543 N.Y.S.2d 315).