(concurring in part and dissenting in part). We would affirm Supreme Court’s judgment.
The term "forthwith” is not discretionary (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 430.20, at 309), it means "without delay” (Crespo v Hall, 56 NY2d 856, 858; County of Monroe v State of New York, 123 AD2d 141, 142, lv denied 69 NY2d 612) and not merely whenever the Department of Correctional Services deems it prudent to receive State-ready inmates. By in effect defining "forthwith” to mean promptly, only if the county jail is full, otherwise at the leisure of the Department, the majority has effectively amended CPL 430.20 (1) because the statute does not make overcrowding of a county facility a prerequisite to the transfer of prisoners.
That Supreme Court’s determination that 10 days is the outer limit of time, unless exigent circumstances justify a further limited delay, that the Department can constrain counties to retain State-ready prisoners is rational is borne out by respondents’ acknowledgment in this litigation that this is precisely the period required by the Department to meet its "logistic needs * * * for the receipt of new inmates”, and from the fact that the 10-day limit is not a rigid deadline and the further fact that, under proper circumstances, "forthwith” may entail a much shorter period as occurred in Benjamin v Malcolm (629 F Supp 713, affd 803 F2d 46) where the Department was enjoined to accept "state readies” within 48 *307hours. In our view, Supreme Court’s determination provides the flexibility inherent in the Legislature’s choice of the term "forthwith” (see, Crespo v Hall, supra, at 859) for it allows a delay of more than 10 days where appropriate exigent circumstances—those occasioned by other than overcrowding conditions in the Department’s facilities (see, Matter of County of Monroe v Cuomo, 132 AD2d 1003, lv denied 70 NY2d 608)— are shown to exist. In short, the determination explicitly and rightly recognizes that, where the Department’s claimed exigency is based on the lack of facilities which the State is obligated to furnish, the Department has no more authority to cut off the flow of prisoners into its facilities (see, CPL 430.20) than Sheriffs have to control what prisoners they must take or how many they can accommodate (see, Howell v McGinity, 129 AD2d 60, 66-67, lv denied 70 NY2d 607). Unless and until the Legislature directs otherwise, the Department is not at liberty to shirk its obligation under CPL 430.20 (1) to provide facilities for these inmates by administratively saddling the various counties of this State with the Department’s responsibility.
The interpretation of "forthwith” adopted by the majority is especially discomfiting when considered in conjunction with the authority reposed in the Commission to compel counties faced with overcrowded jails to build or otherwise provide additional cell space. While the courts cannot prohibit the Commission from performing its statutory mandate, they can, of course, prevent it from applying regulations in an arbitrary fashion (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231). The Commission is empowered by Correction Law § 45 (6) to regulate the Department as well as the County Sheriffs in matters pertaining to the well-being of inmates (compare, 9 NYCRR 7000.1 et seq., with 9 NYCRR 7600.1 et seq.). It would be inequitable and capricious, to say the least, to permit the Commission to require counties to expand and construct jails and to retain additional personnel for the purpose of housing inmates who are properly the Department’s charges.
As we read Supreme Court’s decision, it does not prohibit the Commission from enforcing its regulations; it merely prevents the Commission from acting against County Sheriffs to the extent that the reason for doing so lies, not with any failure on the part of the Sheriffs, but on the Department to perform its statutory duty. Insofar as it is the Department’s conduct, in refusing to accept State-ready prisoners, which gives rise to a Commission decision to cause a county to provide additional jail space, the Commission’s action cannot *308be condoned, for it in essence shifts the responsibility to house these prisoners from the Department to the counties in contravention of CPL 430.20. Like any administrative agency, the Commission is powerless to promulgate regulations or enforce them in a way that conflicts with or alters, as here, an unambiguously imposed legislative obligation (see, McNulty v Chinlund, 62 AD2d 682, 688; see also, Servomation Corp. v State Tax Commn., 51 NY2d 608, 612). For these reasons, we find Supreme Court’s restriction of the Commission’s exercise of its authority to enforce 9 NYCRR part 7000 entirely appropriate.
Weiss and Mercure, JJ., concur with Mahoney, P. J.; Yesawich, Jr., and Harvey, JJ., concur in part and dissent in part in an opinion by Yesawich, Jr., J.
Judgment modified, on the law, without costs, by reversing so much thereof as (1) directed respondent Commissioner of Correctional Services to accept custody of State-ready prisoners and adjudicated parole violators within 10 days of becoming State-ready, absent exigent circumstances, and (2) enjoined enforcement of 9 NYCRR part 7000 in any manner; petition dismissed in its entirety; and, as so modified, affirmed.