New York State Court of Claims

New York State Court of Claims

HOMER v. THE STATE OF NEW YORK, #2001-013-515, Claim No. 97593


Synopsis


Claimant failed to prove that he was subjected to excessive wrongful confinement because two disciplinary sentences that he received ran consecutively rather than concurrently.

Case Information

UID:
2001-013-515
Claimant(s):
ROBERT JAY HOMER
Claimant short name:
HOMER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97593
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
ROBERT JAY HOMER, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 31, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arose at Wende Correctional Facility (Wende) during the summer of 1997 when Claimant received two sentences for disciplinary infractions, one for 90 days and one for 30 days. According to Claimant, these sentences should have run concurrently, but prison officials required that they run consecutively. Claimant seeks to recover money damages for a claimed 31 days of excessive wrongful confinement.

Documentary evidence attached to the claim establishes that on July 7, 1997, Claimant was charged with fighting, violent conduct, disturbing the order of the facility, and refusing to obey a direct order. On July 21, he was sentenced to, among other things, 90 days in keeplock, which the sentencing sheet indicated was to run from July 28 to October 25, 1997. On that same day, July 21, Claimant was charged with a new violation: possession of contraband (a piece of cement). In connection with that charge, he was found guilty on July 28 and sentenced to, among other things, 30 days in keeplock. The sentencing sheet indicated that this sentence was to run from July 28 to August 27, 1997. Claimant was released from keeplock on November 27, 1997, thirty-one days after the latest date listed on his sentencing sheets. Claimant testified that he was never told that the sentences would run consecutively, nor was he given any written notification to that effect. He also testified that in his experience within the prison system, whenever an inmate is subject to two different disciplinary sentences, they run concurrently.

Lt. Conrad Walter, Wende Disciplinary Lieutenant, testified for Defendant. He was the hearing officer at Claimant's July 28th hearing on the contraband charge. He pointed out that the code "B000" was written next to the keeplock sentence on both sentencing sheets. Referring to a document entitled "Statewide Penalties & Abbreviations" (Exhibit A), he explained that this code stands for "Keeplock" and stated that it carries with it the indication that such a sentence is to run consecutively with any other. If a sentence is intended to run concurrently with any other sentence, the code would have been "B100," which the form indicates stands for "Keeplock-Concurrent."

Lt. Walter explained that the dates he wrote in on the July 28th sentencing sheet did not take into account the 90-day sentence imposed by another officer on July 21 because information about the earlier conviction and sentence had not yet been logged into the facility's computer. According to the copy of Claimant's disciplinary record that he had available to him at the time of the hearing, Claimant's latest keeplock sentence -- which had been imposed in May 1997 -- expired on July 28th. He stated that the code identifiers are included on all sentence sheets as a double check which allows hearing officers to clearly indicate whether they intend a sentence to run concurrently or consecutively with any other sentence that might be imposed.

Claimant has provided, and research has disclosed, no authority to suggest that sentences for prison disciplinary charges are intended to run either concurrently or consecutively or that inmates must be informed, verbally or in writing, which is to occur at the time a sentence is imposed. I found Lt. Walter to be a thoroughly credible witness, and I must accept his testimony that this determination is left up to the discretion of the hearing officer and, consequently, that in this instance, Claimant's 30-day sentence properly ran consecutively to his earlier 90-day sentence.

Claimant has failed to prove his claim by a preponderance of the credible evidence. The Chief Clerk is directed to enter judgment dismissing this claim.

All motions not heretofore ruled upon are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.



December 31, 2001
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims