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October 26, 1972

Philip AQUAFREDDA et al., Plaintiffs,
Howard A. JONES et al., Defendants

The opinion of the court was delivered by: BRIEANT

BRIEANT, District Judge.

Plaintiffs, persons who have been certified to the New York Narcotics Addiction Control Commission pursuant to § 208 et seq., New York Mental Hygiene Law, McKinney's Consol.Laws c. 27, following criminal convictions, on May 5, 1972 brought this action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201. Each plaintiff has been certified for the full permissible period of 36 months provided by the statute. Each has been held in pre-trial and pre-sentence detention for varying periods of time in lieu of bail; six months in the case of Aquafredda, 175 days for Martinez and 12 days for Crosby.

Defendants are the members of the Narcotics Addiction Control Commission of the State of New York, state officials responsible for the administration and direction of New York's Narcotic Addiction Program (New York Mental Hygiene Law, § 200 et seq.).

 Plaintiffs assert that they and others similarly situated, for whom they seek leave to bring this litigation as a class action under Rule 23(b)(2), F.R.Civ.P., have been deprived of liberty by defendants under color of state law, in that defendants have, in violation of the Fifth and Fourteenth Amendments of the United States Constitution, denied plaintiffs and members of the class which they seek to represent of "credit for presentence jail time towards the term of their ultimate sentence to the Narcotic Addiction Control Commission." (Plaintiffs' Memorandum, p. 1)

 This statutory court, pursuant to 28 U.S.C. § 2281, has been convened pursuant to an order dated July 17, 1972, made by Hon. Irving R. Kaufman, Acting Chief Judge of the Court of Appeals for the Second Circuit.

 No contested issues of fact exist. It is alleged, and not denied, that each plaintiff was held in pre-trial detention for want of bail solely because of indigency; he was unable to afford the bail set by the state trial court. *fn1"

 By chapter 192 of the laws of 1966, effective April 1, 1966, the State of New York enacted Article 9 of the Mental Hygiene Law entitled "Drug Addiction". The legislature made findings of fact. *fn2"

 The legislative purpose was stated as "to provide a comprehensive program of human renewal of narcotic addicts in rehabilitation centers and aftercare programs." (§ 200(3), Mental Hygiene Law.) That program applies equally by its terms to addicts who are not accused of crime, to addicts accused of crimes, and to those convicted. The program is further designed to "protect society against the social contagion of narcotic addiction and to meet the need of narcotic addicts for medical, psychological and vocational rehabilitation . . . ." (§ 200(3), ibid.)

 By § 205 of the Act, provision was made for the establishment, operation and control by defendants of one or more institutions for confinement, care, treatment, cure and rehabilitation of addicts. A narcotic addict may be committed by civil certification to such facilities (§ 206) after a hearing. Section 208 of the Act provides in substance that where a defendant has been examined medically in accordance with § 207, found to be an addict, and has, in addition, been found guilty of a misdemeanor or the offense of prostitution, he shall be sentenced by the trial court, after a certain procedure therein provided to litigate the issue of addiction, to "the care and custody of the commission for an indefinite period which shall commence on the date the order of certification is made and shall terminate upon the first to occur of (1) the discharge of such defendant by the commission as rehabilitated, or (2) the expiration of a period of thirty-six months from the date such period commenced." *fn3" Felons so sentenced, may, under § 208(4)b, be sentenced to a similar commitment, limited to sixty months.

 The statute is clear, and has been construed by the highest court of New York to grant no credit for pre-trial detention against the maximum term of the commitment. *fn4" It is claimed (Amended Complaint, para. 13) that § 208(4) denies plaintiffs equal protection of the law in that, solely because of indigency and resulting inability to make bail prior to certification, they may be deprived of liberty for a total period greater than the maximum certification period. Plaintiffs also claim a denial of due process of law, to members of the class, in that they are penalized for their indigency should they seek to contest the issue of addiction after having been convicted of the predicate misdemeanor. Such injury is said to arise because, should they not prevail, the extra time spent in detention pending adjudication of that post-conviction issue would be, as characterized in the amended complaint (para. 14), "dead time".

 We do not reach the merits of the controversy. Nor do we grant leave to maintain this cause as a class action. Helidor Martinez, a plaintiff in this action, raised the same issue on direct appeal from the New York Court of Appeals to the Supreme Court of the United States. His appeal was dismissed on October 12, 1971, sub nom. Haynes v. New York, 404 U.S. 804, 92 S. Ct. 159, 30 L. Ed. 2d 37 *fn5" "for want of substantial federal question". Similarly, plaintiff Philip Aquafredda appealed directly from App.Term, Sup.Ct.N.Y., 1st Jud. Dept. to the Supreme Court of the United States (Aquafredda v. New York, 404 U.S. 878, 92 S. Ct. 218, 30 L. Ed. 2d 159), and his appeal was also dismissed for want of a substantial federal question.

 Plaintiff Willis Crosby's situation is factually indistinguishable from that of Aquafredda and Martinez, except that Aquafredda and Martinez are presently at liberty under the continued supervision of defendants and subject to return to the institutions should they violate the conditions of their release. Crosby remains actually confined to one of defendants' facilities. It is said that Crosby, who, unlike the others, did not appeal his conviction, has not exhausted his state remedies, but we find it unnecessary to reach this issue.

 In the jurisdictional statement filed in Haynes v. New York, supra, Martinez, plaintiff herein, raised issues indistinguishable from those presently before this Court. *fn6" Similarly, in Aquafredda v. New York, supra, the jurisdictional statement submitted to the Supreme Court raised the same issues. *fn7"

 We find that the constitutional issues tendered us in this action were tendered to the Supreme Court for disposition in Haynes and Aquafredda, supra. We consider our inquiry foreclosed by those two Supreme Court determinations, little more than a year ago, that the question sought to be raised is not a substantial federal question. ...

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