Opinion
November 4, 1983
Appeal from the Supreme Court, Onondaga County, O'Donnell, J.
Present — Dillon, P.J., Callahan, Doerr and Moule, JJ.
Judgment unanimously reversed, without costs, and petition dismissed. Memorandum: CPL 430.20 (subd 1) requires that "[w]hen a sentence of imprisonment is pronounced * * * the defendant must forthwith be committed to the custody of the appropriate public servant and detained until the sentence is complied with" (see, also, CPL 430.30). It is equally clear, however, that the limitation contained in the statute "should yield in a particular case when there is a demonstrated need for flexibility" ( Crespo v Hall, 56 N.Y.2d 856, 859). The record establishes that at the time these proceedings were commenced, the Department of Correctional Services was operating its facilities at 114.2% of its designed capacity. It is further established that sentenced felons in petitioner's facility who fall within the ambit of CPL 430.20 (subd 1) remain with petitioner for an average of six days before respondent accepts them. It is not alleged, nor has there been any proof, that respondent's failure to comply with CPL 430.20 (subd 1) is the result of indifference or an unexplained unwillingness on the part of the Department of Correctional Services to receive into its custody those inmates for whom it has responsibility. Under these circumstances, it is not the province of the courts to assign arbitrary periods of time which further define "forthwith". Considering the facts of this particular case, "forthwith" must be read to mean "within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch" (Black's Law Dictionary [5th ed]). We further observe that petitioners may not recover money damages in this proceeding. While the damages sought might arguably be incidental to the primary relief prayed for in the petition (CPLR 7806), the action for monetary damages is not suable in the Supreme Court. Petitioners must resort to an action in the Court of Claims if they seek to recover money from the State ( Matter of Dubner v Ambach, 74 A.D.2d 949, 951; Siegel, N Y Prac, § 570, p 801).