New York State Court of Claims

New York State Court of Claims

GRAHAM v. THE STATE OF NEW YORK, #2000-015-072, Claim No. 102124, Motion No. M-61771


Defendant's motion to dismiss inmate claim relating to denial of good behavior allowance for failure to participate in mandatory sex offender program (MSOP) rendered moot by inmate's failure to pay reduced filing fee as ordered.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Newman, O'Malley & Epstein, P.C.By: Nicholas J. Sciarrino, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 11, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant was convicted of rape and sodomy on June 26, 1996. The conviction was reversed on June 8, 1998 and on March 19, 1999, claimant pled guilty to a reduced charge of sexual abuse in the first degree. The claimant was re-sentenced on May 17, 1999 to a term of one and one-third to four years. At the sentencing, Mr. Justice Silverman stated that since claimant had been unable to complete a mandatory sex offender program (MSOP) he should not be precluded from release on parole in five months when he reached his conditional release date after being credited with all accrued good behavior time. On June 11, 1999, the Oneida Correctional Facility Time Allowance Committee sent a formal notice to claimant that a hearing would be held on June 17, 1999 to determine whether there was sufficient reason to withhold the granting of the total good time allowance authorized for claimant due to his failure to complete the MSOP. On June 14, 1999, claimant received written notice from the Oneida Correctional Facility Guidance Unit that he had been referred to participate in the MSOP but that due to the close proximity of his earliest release date he would be unable to participate in the program. On June 15, 1999, claimant wrote to the Time Allowance Committee advising them that it was through no fault of his own that he was not permitted to participate in the MSOP. On June 25, 1999, the Time Allowance Committee determined that eight months of good behavior allowance should be withheld from the claimant for, among other reasons, his failure to complete the MSOP. Claimant's administrative appeal from that adverse determination was denied on July 2, 1999 and he commenced an article 78 proceeding. Had the Time Allowance Committee not taken away eight months of good behavior allowance time the claimant would have been released on September 19, 1999. On March 9, 2000, the claimant verified the pro se claim which was received by the Attorney General on March 13, 2000. The claim states that it is proceeding upon a negligence theory but alleges as fact that the claimant was confined against his will due to the intentional conduct of employees of the Department of Correctional Services and that the confinement was not legal. The defendant has moved to dismiss the claim for lack of jurisdiction upon the ground that the claim was not received by the Attorney General within 90 days of its accrual. Defense counsel argues that although no specific accrual date is alleged in the claim, the only three potential accrual dates were June 25, 1999, the date that the Time Allowance Committee review took place; July 2, 1999, the date the administrative appeal was denied; or, September 19, 1999, claimant's original conditional release date. Defendant's position is that since all of these dates accrued more than 90 days prior to the date the claim was received it must be dismissed as untimely.

On March 10, 2000, acting Oneida County Supreme Court Justice John G. Ringrose issued a decision granting claimant's article 78 petition upon the ground that it was settled law that an inmate may not be denied conditional release as a result of his failure to fulfill a requirement which is not within his power to perform. Claimant was released from the custody of the Department of Correctional Services on March 17, 2000. The law firm currently representing the claimant filed a notice of appearance with the Clerk of the Court on June 9, 2000.

By order dated April 5, 2000, Presiding Judge Susan Phillips Read directed Claimant to pay a reduced fee of $25.00 pursuant to CPLR 1101(f) and directed claimant to pay the entire fee within 120 days of the date of the order. The 120 day period expired on August 3, 2000. Claimant failed to comply with the order and the Court's file on this claim was closed by the Clerk of the Court on August 31, 2000.

Accordingly, the motion is denied as moot.

September 11, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. The notice of motion dated May 23, 2000;
  2. Affirmation of G Lawrence Dillon dated May 23, 2000, with exhibits;
  3. Affirmation in opposition of Nicholas J. Sciarrino dated June 23, 2000, with exhibit.
  4. Daily Report dated September 1, 2000.