COUNTY OF NASSAU v. CUOMO, 69 N.Y.2d 737 (1987)

512 N.Y.S.2d 362, 504 N.E.2d 689

COUNTY OF NASSAU, Appellant, v. MARIO M. CUOMO, as Governor and Chief Executive Officer of the State of New York, et al., Respondents, and NEW YORK STATE DIVISION OF PAROLE, Intervenor-Respondent.

Court of Appeals of the State of New York.Argued January 13, 1987
Decided January 20, 1987

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, George A. Murphy, J.

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James M. Catterson, Jr., William H. Pauley, III, an Margaret Gibbons-Trefny for appellant.

Robert Abrams, Attorney-General (David A. Smith, O. Peter Sherwood, Ann Horowitz and Howard Zwickel of counsel), for respondents.

MEMORANDUM.

The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed for the reasons stated by the Appellate Division (121 A.D.2d 428).

The Appellate Division declared that the county is obliged to accept for detention all alleged parole violators whose parole is supervised in Nassau County. However, Executive Law § 259-i (3) (a) (i) unambiguously provides that Nassau County is responsible for lodging alleged parole violators arrested within the county. Thus, that portion of the declaration should be modified to compel the county to accept for detention all alleged parole violators who are arrested within Nassau County.

The courts below reached their considered decisions concerning the number of days after which the State must accept prisoners based upon a period measured from sentencing (see, Crespo v Hall, 56 N.Y.2d 856; CPL 430.20 [1]), rather than from the date of State-readiness (see, Correction Law §§ 600-a, 601). Both parties now urge for the first time before this court that

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the State’s obligation to accept a prisoner “forthwith” (CPL 430.20) commences when the prisoner becomes State-ready, rather than upon sentencing, and ask us to determine the lawful period measured from the date of State-readiness. We cannot, however, consider such an issue for the first time on appeal.

Judges SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur; Chief Judge WACHTLER and Judge BELLACOSA taking no part.

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.