ROBINSON v. THE STATE OF NEW YORK, #2003-015-584, Claim No. 105597
After trial Court found claimant had not been subjected to unlawful confinement
and dismissed the claim.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Lite & RussellBy: Timothy Nugent, Esquire
Honorable Eliot Spitzer, Attorney General
Michael C. Rizzo,
EsquireAssistant Attorney General
January 6, 2004
See also (multicaptioned
The trial of this claim seeking money damages for alleged unlawful confinement
in a state correctional facility took place in Albany on September 25,
Claimant Anthony Robinson was called to testify as claimant's sole witness
following the stipulated receipt in evidence of certified records of the New
York State Division of Parole (Exhibits A-H) . On his direct examination Mr.
Robinson testified that he was convicted of robbery in the first and second
degree and sentenced to an indeterminate sentence of 7½ to 15 years
following an arrest on November 8, 1986 in Babylon, Suffolk County. Claimant
asserted that except for periods during which he was released on parole he
remained in the custody of the New York State Department of Correctional
Services (DOCS) until December 14, 2001. Claimant contends that he should have
been released on November 8, 2001, fifteen years subsequent to his date of
arrest, and that he is therefore entitled to compensation for unlawful
confinement from the stated maximum release date (November 8, 2001) to the date
of his actual release by DOCS on December 14, 2001.
Claimant testified that although he was paroled and violated several times
during the period from November 8, 1986 to December 14, 2001 he was unaware of
"having lost any time" against his maximum release date. He denied having been
violated in 1997 but recalled having violated parole on January 4, 1998 when he
was charged with criminal possession of a weapon in the fourth degree. Mr.
Robinson also related that he violated his parole on August 18, 2001. He
denied being "delinquent" while on parole and stated that he associated that
word with failing to keep appointments with his parole officer rather than
delinquency arising from a violation of the conditions of his
The witness repeatedly denied having been violated on November 17, 1997
alleging that there was no proof of any violation occurring on that date.
With reference to the certified records of the Division of Parole and
specifically page 8 of Exhibit A, the witness alleged that after being notified
of the charges contained therein he requested a hearing. He alleged further
that at the hearing he admitted guilt to a charge of criminal possession of a
weapon in the fourth degree only. After initially asserting that he had not
entered a plea of guilty to either charge number one alleging a violation of
Rule No. 11 of the conditions governing parole (use of a controlled substance)
or to charge number two which alleged a violation of Rule No. 8 of the
conditions governing parole (violation of law) the witness equivocated stating
he was not sure to which of the three charges he pled. Both of the first two
charges alleged unauthorized use of cannabinoids on November 17, 1997 while the
third charge alleged possession of a shotgun on January 4, 1998.
Mr. Robinson could not recall having discussed his use of marijuana with his
parole officer and insisted that he attended drug counseling as required in his
conditions of parole and went to all required sessions. He maintained that
after admitting guilt to possession of a weapon (shotgun) he received a 90 day
criminal sentence to run concurrently with his parole sentence. The witness
testified that he admitted to the weapons charge contained in the parole
violation in September, 1998.
Claimant also offered confusing testimony concerning having been charged with
an unspecified violation by his parole officer in late August or early
September, 1997. He alleged that the parole officer refused to grant a
preliminary parole violation hearing on this non-specified charge and yet
testified that he attended such a hearing 30 days later. He alleged further
that an unnamed administrative law judge advised him to submit a writ of habeas
corpus. He indicated that he did so and that his application for a writ was
granted. Claimant contends that he was not credited time against his sentence
for the six week period between this particular (although unspecified) parole
violation charge and his release following the granting of his habeas corpus
On cross-examination claimant testified that following his initial arrest in
November 1986 he spent 236 days in the Suffolk County Jail and was transferred
to DOCS on July 2, 1987. He acknowledged that he was conditionally released on
parole on May 5, 1994 and thereafter declared delinquent on July 18, 1994 when
he was charged with driving a motor vehicle while under the influence of
cocaine. He spent 85 days in a local jail and was returned to the custody of
DOCS in October 1994.
Mr. Robinson further acknowledged that when he was conditionally released on
parole he agreed in writing to certain conditions (see, page 12 of
Exhibit A). He stated that he did not recall testing positive for marijuana on
November 17, 1997 but did recall that he was not in DOCS custody or in the
custody of any local jails from November 17, 1997 to January 4, 1998.
The witness recalled being admitted to a drug detox facility (Talbot House) on
November 24, 1997 but denied voluntarily discharging himself from that facility
on November 25, 1997. He also acknowledged participation in the Passages
Outreach Program but admitted being absent from the program on December 8, 10,
12 and 16, 1997. His arrest on a parole violation occurred on January 4, 1998
and he was confined to local or county jails from that date until December 2,
1998 when he was returned to DOCS custody. That period of local incarceration
earned him a credit of 332 days applied against his maximum release date. After
the January 4, 1998 arrest claimant was again conditionally released on parole
on March 13, 2000 but was violated again on August 28, 2001.
Claimant was ultimately released from his original sentence on December 14,
2001. He was, however, subsequently arrested and convicted for possession of a
controlled substance (cocaine) and is currently serving an indeterminate
sentence of 1½ to 3 years.
At the conclusion of Mr. Robinson's testimony the claimant rested. Defense
counsel moved to dismiss the claim for failure to present a prima facie case.
The Court reserved decision and now denies the motion choosing instead to
address the merits of the case.
Defendant's one and only witness was Richard DeSimone, DOCS Associate Counsel
in the Office of Sentencing Review. Mr. DeSimone testified that his job duties
include the computation of inmate release dates and that he had reviewed and was
familiar with the claimant's records in that regard.
The witness specifically identified the various Exhibits stipulated to by the
parties at the commencement of trial. He then proceeded to testify as to the
manner by which claimant's maximum release date was initially set and how that
date was affected by claimant's subsequent conditional releases and parole
violations. He explained that the maximum time remaining on one's sentence is
interrupted by a violation as of a stated delinquency date pursuant to Penal Law
§ 70.40. He further explained that once interrupted a parolee's remaining
sentence would not commence running again until the parolee was returned to
DOCS custody although he or she would receive credit for time spent in a local
or county jail while awaiting transfer to DOCS. Mr. DeSimone testified in
significant detail regarding the manner by which DOCS computed claimant's
maximum expiration date to be December 15, 2001. He concluded that because
December 15th was a Saturday claimant was appropriately released from DOCS
custody on December 14, 2001.
Section 70.40 of the Penal Law in relevant part provides:
1. Indeterminate sentence.
(a) [For expiration and applicability of amendments by L. 1992, c. 55, eff.
until Sept. 1, 2005, and L. 1995, c. 3, eff. until Sept. 30, 2005, see notes
below.] Release on parole shall be in the discretion of the state board of
parole, and such person shall continue service of his sentence or sentences
while on parole, in accordance with and subject to the provisions of the
(i) [Eff. until Sept. 1, 2005, pursuant to L. 1997, c. 435, § 76, subd.
6, par. a. See, also, subpar. (i) below.] A person who is serving one or more
than one indeterminate sentence of imprisonment may be paroled from the
institution in which he is confined at any time after the expiration of the
minimum or the aggregate minimum period of the sentence or sentences or, where
applicable, the minimum or aggregate minimum period reduced by the merit time
allowance granted pursuant to paragraph (d) of subdivision one of section eight
hundred three of the correction law.
* * *
(ii) A person who is serving one or more than one determinate sentence of
imprisonment shall be ineligible for discretionary release on parole.
* * *
(b) [Eff. until Sept. 30, 2005. See, also, par. (b) below.] A person who is
serving one or more than one indeterminate or determinate sentence of
imprisonment shall, if he so requests, be conditionally released from the
institution in which he is confined when the total good behavior time allowed to
him, pursuant to the provisions of the correction law, is equal to the unserved
portion of his term, maximum term or aggregate maximum term * * * The
conditions of release, including those governing post-release supervision, shall
be such as may be imposed by the state board of parole in accordance with the
provisions of the executive law.
* * *
(a) When a person is alleged to have violated the terms of presumptive release
or parole and the state board of parole has declared such person to be
delinquent, the declaration of delinquency shall interrupt the person's sentence
as of the date of the delinquency and such interruption shall continue until the
return of the person to an institution under the jurisdiction of the state
department of correctional services.
(b) [Eff. until Sept. 1, 2005, pursuant to L. 1989, c. 79, § 7. See,
also, par. (b) below.] When a person is alleged to have violated the terms of
his conditional release or post-release supervision and has been declared
delinquent by the board having supervision over such person or the local
conditional release commission, the declaration of delinquency shall interrupt
the period of supervision or post-release supervision as of the date of the
delinquency. For a conditional release, such interruption shall continue until
the return of the person to the local correctional facility located in the
jurisdiction of the commission having custody of such person or, if he was
released from an institution under the jurisdiction of the state department of
correctional services, to an institution under the jurisdiction of that
department. Upon such return, the person shall resume service of his sentence.
For a person released to post-release supervision, the provisions of section
70.45 shall apply.
* * *
(c) Any time spent by a person in custody from the time of delinquency to the
time service of the sentence resumes shall be credited against the term or
maximum term of the interrupted sentence, provided:
(i) that such custody was due to an arrest or surrender based upon the
(ii) that such custody arose from an arrest on another charge which culminated
in a dismissal or an acquittal; or
(iii) that such custody arose from an arrest on another charge which culminated
in a conviction, but in such case, if a sentence of imprisonment was imposed,
the credit allowed shall be limited to the portion of the time spent in custody
that exceeds the period, term or maximum term of imprisonment imposed for such
Mr. DeSimone explained in his testimony that DOCS uses a 30 day month when
computing time remaining on a parolee's unexpired maximum sentence notated as
years-months-days. Thus, for example, the 236 days during which claimant was
confined to the Suffolk County Jail following his initial arrest on November 8,
1986 translated into a period of 7 months 26 days and that period was applied
against his maximum sentence of 15-0-0. At the time claimant was received by
DOCS on July 2, 1987 his maximum expiration date was November 5, 2001.
The records stipulated into evidence demonstrate that claimant was
conditionally released on parole on May 5, 1994 but was violated and declared
delinquent on July 18, 1994. As of that violation date claimant's unsatisfied
maximum sentence stood at 7 years 3 months and 17 days. Against that balance
claimant was credited for 2 months 25 days spent in a local or county facility
prior to his return to DOCS on October 11, 1994. As of the date of his return
claimant's maximum expiration date was November 3, 2001.
Claimant was again conditionally released on parole on June 14, 1995 but was
rearrested and declared delinquent on November 17, 1997. Following this arrest
he remained in a non-DOCS facility for 332 days and did not return to DOCS
custody until December 2, 1998.
Although claimant asserted on his direct case that there was no substantiated
violation of parole as of November 17, 1997, page 10 of exhibit A in evidence
contradicts claimant's assertion and establishes that contrary to his testimony
Robinson admitted the use of marijuana on November 17, 1997 rather than
admitting the possession of a weapon on January 4, 1998 as he claimed in his
trial testimony. The court is satisfied that claimant was mistaken in his trial
testimony and that his recorded admission on page 10 of Exhibit A was made with
reference to the use of marijuana on November 17, 1997.
As of November 17, 1997 claimant's unexpired term was 3 years 11 months 16
days. He was credited with 11 months 2 days of local time following his arrest
and prior to his return to DOCS on December 2, 1998 and his maximum expiration
date was adjusted to December 16, 2001.
Claimant was conditionally released on parole yet again on March 13, 2000 and
subsequently rearrested and declared delinquent on August 28, 2001. He was
housed in a local facility for 79 days (2 months 19 days) before being returned
to DOCS custody on November 16, 2001.
As of the date of this delinquency claimant had an unexpired term of 3 months
18 days remaining on his maximum sentence. Against this amount he was credited
with parole jail time of 2 months 19 days leaving an unexpired term of 29 days.
Claimant was returned to DOCS custody on November 16, 2001 and his final maximum
expiration date was thus established as December 15, 2001. Since December 15,
2001 was a Saturday claimant was released from DOCS custody on Friday December
14, 2001, one day prior to the actual expiration of sentence date.
Upon the trial record it is clear that there was no unlawful confinement
demonstrated by claimant at trial and his claim is therefore dismissed. The
Clerk shall enter judgment in accord with this decision.
January 6, 2004
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
.See 9 NYCRR § 8004.3.