Fitzpatrick v. Smith

90 A.D.2d 974, 456 N.Y.S.2d 902, 1982 N.Y. App. Div. LEXIS 19252

Opinion

Judgment unan imously reversed and petition dismissed. Memorandum: Special Term erred in granting the application of the petitioner, an inmate serving a life sentence, to marry. Section 79-a of the Civil Rights Law prohibits marriages by inmates serving sentences of life imprisonment. Nevertheless, petitioner contends that the right to marry is a fundamental right and that section 79-a should be reexamined in view of the recent decision in Zablocki v Redhail (434 US 374). We find nothing in the rationale of Zablocki v Redhail (supra) which would invalidate the continued ban on marriage as an additional punishment for crimes of the most serious nature. Those courts which have heretofore scrutinized the statute have found it to be constitutional in factually similar cases (Johnson v Rockefeller, 365 F Supp 377, affd sub nom. Butler v Wilson, 415 US 953; Muessman v Ward, 95 Misc 2d 478). (Appeal from judgment of Supreme Court, Wyoming County, Mattina,. J. — art 78.) Present — Dillon, P. J., Callahan, Denman, Boomer and Schnepp, JJ.