Opinion
November 9, 1999
Pro Se, for Petitioners-Appellants.
Marion R. Buchbinder and Cheryl Payer, for Respondents-Respondents.
NARDELLI, J.P., TOM, MAZZARELLI, WALLACH, BUCKLEY, JJ.
Order, Supreme Court, New York County (Charles Ramos, J.), entered November 6, 1998, which, in a proceeding seeking declaratory, injunctive and mandamus relief based upon an alleged violation of petitioners prisoners' right under Article 36 of the Vienna Convention on Consular Relations, as foreign nationals, to be advised upon arrest of their right to contact a representative of their country, granted respondents' motions to dismiss the petition for failure to state a cause of action, unanimously affirmed, without costs.
The operative allegation of the petition is that the police "continue to arrest and detain other foreign nationals" in violation of article 36 of the Vienna Convention on Consular Relations (21 UST 77, TIAS No 6821), which provides for notification of a foreign national's consulate upon the arrest of that foreign national. The petition should be dismissed for lack of a justiciable controversy. Mandamus directing respondents to enforce the treaty and an injunction prohibiting respondents from continuing their alleged illegal practices cannot be granted where petitioners do not appear to seek any form of post-conviction relief for themselves. Even if they were, the treaty does not require that such be entertained outside the context of the Criminal Procedure Law (cf., Breard v. Greene, 523 U.S. 371). We note that respondents do not dispute that foreign nationals are entitled to the notice petitioners claim; the absence of a dispute also makes declaratory relief unavailable (see, Goodman Co. v. New York Tel. Co., 309 N.Y. 258, 266).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.