New York State Court of Claims

New York State Court of Claims

FELIZ v. THE STATE OF NEW YORK, #2005-015-520, Claim No. 108493


Claimant's proof was inadequate to sustain a finding that he was detained beyond his conditional release date.

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:
Eugene Anthony Feliz, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 28, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim seeking $1,000,000 in damages for alleged excessive unlawful confinement took place in Albany on May 12, 2005. The parties stipulated to the receipt in evidence of claimant's Exhibits 1-7 and defendant's Exhibits A-L.

Claimant was sworn and testified briefly. In substance he alleged that his claim for unlawful imprisonment is supported by documentation submitted to the Court including a writ of habeas corpus which, although initially denied, was later granted by the Honorable Peter C. Patsalos, J.S.C. (
see claimant's Exhibit 2) upon a motion to reargue which was unopposed. Claimant testified that "New York State lost all jurisdictional claims while I was incarcerated at Leavenworth" on bank robbery charges. He further testified that he was arrested for that crime by the State first and his parole was violated. He was then turned over to federal authorities for prosecution. While in federal custody he never received a formal parole revocation hearing despite the State's allegations to the contrary. He alleges that his state sentence continued to run while he was in federal custody and his "federal sentence would not begin to run if not run concurrent ordered by the judge until I was received officially in federal custody." He alleged that he was merely "on loan" to the feds.
When arrested for bank robbery claimant had an outstanding parole warrant for absconding and leaving his official residence. When the federal judge sentenced him to 8 years on the bank robbery charge the sentence was to run consecutive to his state sentence. While at Leavenworth the federal authorities, purportedly realizing their mistake, wrote to Parole Officer Russo in New York and advised him that claimant was available to be picked up by State officials. He alleges that upon the State's refusal (or failure) to pick him up the time remaining on his State sentence continued to run. However, he stated that he is not seeking compensation for that period of incarceration.

Claimant testified that he should have been released on his 1992 sentence on December 26, 2002 (conditional release date) but was not actually released until August 2003. He sought a recomputation of his sentence by filing a state habeas corpus proceeding in Supreme Court based upon the previously mentioned notification of his availability to state officials. Previous requests to Parole for copies of the federal notification of availability were denied on the grounds that they did not exist.

Claimant argues that the Judge assigned to hear his application for the writ of habeas corpus must have agreed with his position because he ordered a recomputation of claimant's sentence. He further alleges that the Attorney General's failure to oppose his motion for reargument constitutes an admission by the State that his sentence was wrongfully computed.

On cross-examination the witness admitted that he was sentenced in 1982 to a term of 2 to 6 years for robbery and was released on parole in December 1983. He was alleged to have absconded from parole and was declared delinquent as of February 1, 1984. Later that year he was convicted of bank robbery in federal court and was sentenced to a term of 8 years to run consecutively with his remaining State sentence. Although purportedly released earlier than August 18, 1989 he was detained by federal authorities pending pick-up by the State. Claimant was returned to DOCS custody on August 18, 1989.

Claimant was re-paroled on December 5, 1989 and arrested in 1991 on another robbery charge. He denied that he was declared delinquent on August 27, 1991. He was sentenced in 1992 on the most recent robbery conviction to two terms of 8-16 years. Claimant disagreed that when he began serving his 1992 sentence he still owed 11 months 5 days on his 1982 state sentence.

The witness acknowledged that Justice Patsalos's order (claimant's Exhibit 2) did not establish claimant's conditional release date nor did it indicate that his conditional release date was December 26, 2002 or that claimant was to be immediately released from custody. The witness admitted that his sentence was in fact recalculated and that he was awarded 4 additional days of parole jail time as a result of Justice Patsalos's order.

Defense counsel requested the Court to take judicial notice of Penal Law § 70.40(3) (a)[1] 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 continue until the return of the person to an institution under the jurisdiction of the state department of correctional services.
and moved to dismiss the claim for claimant's failure to prove a prima facie case. The Court reserved decision and now denies the motion.
The defendant called Richard deSimone as its only witness. Mr. deSimone was sworn and in relevant part testified that he is an attorney employed as an associate counsel in the Department of Correctional Services Office of Sentencing Review. His duties include the calculation of release dates and sentences of imprisonment, time computations of inmate maximum expiration dates and conditional release dates and drafting of legislation affecting these issues.

The witness identified Exhibits A-K and discussed the commitments reflected thereon and the jail time credit for time served in non-DOCS facilities recorded on the reverse sides of those exhibits. Mr. deSimone was then referred to claimant's Exhibit 3 and to his letter appended thereto as Exhibit 1. He explained the calculation of claimant's earliest conditional release date based upon his June 1992 commitment (
see defendant's exhibits B, C and D) set forth on page 2 of the letter. He further explained how after receiving information regarding claimant's parole delinquency his earliest conditional release date was recalculated as described on page 2-3 of the letter.
The witness testified that based solely on claimant's 1992 sentences his earliest conditional release date would have been December 12, 2002. However, the 1992 sentences were to run consecutively[2]
to any time remaining on claimant's January 14, 1982 sentence of 2-6 years for robbery. According to the witness, as of the 1992 sentence claimant owed 11 months and 5 days on that prior sentence. With the claimant's undischarged sentence factored in the witness calculated claimant's earliest conditional release date to be August 9, 2003.
As a result of a habeas corpus proceeding initiated by the claimant Justice Patsalos directed a recalculation of claimant's release date. The judge did not direct claimant's immediate release nor did he set forth in the order either a maximum release or a conditional release date. The witness testified that pursuant to Justice Patsalos's order DOCS did recalculate claimant's release date after receiving an amended parole jail time certificate from the Division of Parole (
see defendant's Exhibit E) crediting claimant with 4 days of jail time for the period from August 14, 1989 to August 17, 1989 inclusive.
The witness using a blackboard offered the following calculations based on the information contained in Exhibits A-K which were recorded in the Court's notes:

6-0-0 maximum term 1982 sentence

- 1-0-4 (369 days of jail time credit)
4-11-26 balance due on sentence

+ 82-1-20 date claimant received by DOCS
87-1-15 maximum expiration of 1982 sentence

84-2-1 sentence interrupted by claimant's parole delinquency

2-11-14 time remaining on 1982 sentence at delinquency

4 days credit per habeas corpus decision and recalculation

2-11-10 time remaining on 1982 maximum sentence

+ 89-8-18 date returned to DOCS on parole violation
92-7-28 maximum release date on 1982 sentence

91-08-27 declared delinquent by parole

00-11-01 delinquent time owed on maximum term

16-00-00 maximum term of consecutive 1992 sentence (Penal Law 70.25 [2][a])

16-11-01 time owed to aggregate maximum term

- 00-2-05 65 days local jail time
16-8-26 net time owed to aggregate maximum term

92-7-02 date claimant returned to DOCS

2009-03-27 maximum term

5-7-20 possible good time credit (1/3 of 16-11-01) Correction Law 803

2003-8-7 earliest conditional release date

On cross-examination the witness acknowledged that his calculations are dependent upon information provided to DOCS by the Division of Parole and that if the information supplied is erroneous the calculations would be in error. The witness stated, however, that he does not work for the Division of Parole and cannot explain why the division did not pick up the claimant from federal custody after being notified of claimant's availability pursuant to letters of Jerry A. O'Brien, Warden of U. S. Penitentiary Leavenworth, Kansas dated January 17, 1985. Nor could the witness explain the undated response of Michael Russo, a New York State Parole Officer, asking Warden O'Brien to treat parole violation warrant #86214 as a detainer against the claimant (
see claimant's Exhibit 2, [Exhibit B, unnumbered page 3]). Additionally, the witness was asked to read from yet another part of Exhibit 2 (Exhibit C unnumbered page 1, "Other Note # 2") which he identified as a form letter from a Mrs. Palmer dated 3/8/01 which in relevant part states that "[w]e have no final revocation papers for 7/23/84" and suggesting that claimant "write to Levenworth [sic]. Perhaps they have what you want".
On redirect examination the witness identified defendant's Exhibit L as a Division of Parole document which indicates the date of claimant's delinquency as 2/1/84. He testified that a declaration of delinquency interrupts the running of one's sentence as of the date of the delinquency until that person is returned to DOCS custody (
see Penal Law § 70.40 [3] [a]).
The witness testified that the letter from the federal authorities indicating claimant's availability does not satisfy any of the statutory requirements of Penal Law § 70.40 (3) (a) or (3)(c) to affect the suspension of a parolee's delinquency.

On re-cross-examination the witness acknowledged that it was his understanding that Exhibit L contains mere allegations which must be proved or disproved at a final revocation hearing and there is no proof that a final revocation hearing was held.

Defendant rested and renewed its prior motion to dismiss for claimant's failure to prove a prima facie case. The Court again reserved decision and as noted previously denies the motion.

In Paragraph 3 of the instant claim claimant described the time, place and manner in which the claim arose as follows:
On or about the 7th day or August, 2003, the claimant was conditionally released from custody of New York State Department of Correctional Services ("DOCS") pursuant to known to be faulty computation of the undersign's lawful conditional release date, predicated upon the Department of Parole's arbitrary and capricious demand that the deponent' origional conditional release date (12/26/02) be extended. Claimant had filed a Writ of Habeas Corpus, which was initially denied; however, on Motion to Renew, pursuant to CPLRR Sec. 2221, was granted upon Attorney General's refusal to oppose, by the Honorable Peter C. Patsalos, J.S.C. Supreme Court, Supreme Court State of New York Goshen New York County of Orange, on or about June 10, 2003, which order was officially served upon both DOCS and Parole, yet willfully ignored. At a minimum claimant was illegally detailed by DOCS from June 10, 2003 through August 7, 2003. Additionally, DOCS and DOP deliberately miscalculated claimants initial mandatory Conditional Release, and maximum expiration dates, which as a matter of law, should have been computed December 26, 2002 and April 26, 2008. Claimant notified both DOCS and DOP on numerous occasions regarding the correct claculation of the undersign's lawful conditional release date of December 26, 2002, and claims of unlawful imprisonment to no advail. Despite full records and full notice, both DOC and DOP failed to release claimant or correct his release date, but held claimant in custody for an additional (aprox) eight months. Furthermore, the Assistant Attorney General, Jeanne Strickland Smith, fully aware of stated injuries failed to insure the claimant's immediate release, in violation of professional and ethical rules of conduct, if not criminal. [sic]

Claimant's proof at trial was limited to his brief testimony presenting the legal argument that he was unlawfully imprisoned as a result of the Division of Parole's actions or inactions following his arrest and conviction in federal court on a bank robbery charge and documentation related to the reargument of a habeas corpus proceeding brought in Supreme Court Orange County in April 2003. Despite claimant's assertions that the writ of habeas corpus supports the instant claim it was only "granted to the extent that a new hearing and/or recalculation of petitioner's release date is ordered." (
See order and judgment of the Hon. Peter C. Patsalos, J.S.C. dated June 10, 2003 [claimant's Exhibit 2]).
Even viewed liberally, claimant's proof is inadequate to sustain a finding that claimant was unlawfully detained beyond his conditional release date and is therefore entitled to recover compensation for unlawful confinement. The documentation offered at trial and on his earlier renewal motion of a habeas corpus application alleges that the Division of Parole failed to conduct a final parole revocation hearing following claimant's conviction in federal court on a bank robbery charge and that such failure allowed his New York sentence to continue to run affecting both the conditional release and maximum expiration dates on his initial New York sentence. In this regard he relies upon the Division of Parole's failure to produce any documentary evidence of a final revocation hearing and determination.

Although there appears to be some merit to claimant's argument that under the attending circumstances he was entitled to a final parole revocation hearing in 1984 and likely was not afforded such a hearing, the appropriate remedy for such denial was a habeas corpus proceeding (
see People ex rel. Harris v Sullivan, 74 NY2d 305). Despite claimant's conclusory assertions that he made numerous attempts to have both the Department of Correctional Services (DOCS) and the Division of Parole correct his conditional release date the trial record contains proof of only a single habeas corpus application and a renewal motion made returnable on May 7, 2003 after the initial application was denied (see claimant's Exhibit 2).
While claimant's initial application for the writ of habeas corpus was opposed the renewal motion was granted without opposition. Notably, even absent opposition, Justice Patsalos did not order claimant's immediate release from custody. He merely directed either a new hearing and/or a recalculation of petitioner's release date. Supreme Court failed to order claimant's release and it is beyond this Court's jurisdiction to review either that Court's determination or Parole's determination of the credit allowed. Without such review in Supreme Court (
see Musto v Sielaff, 194 AD2d 491) it cannot be found that claimant was unlawfully confined beyond his proper conditional release date.
The trial testimony of the defendant's witness Richard deSimone was convincing and demonstrated that claimant's conditional release date was, in fact, recalculated pursuant to Justice Patsalos's order and judgment and claimant was credited by both the Division of Parole and DOCS with 4 additional days of parole jail time. With such credit applied to the time remaining on claimant's unexpired maximum sentence deSimone calculated claimant's conditional release date as August 27, 2003 the date on which claimant was conditionally released from custody as alleged in the claim. Thus, no excessive confinement occurred.

Accordingly, the instant claim is dismissed. The Clerk of the court shall enter judgment in accord with this decision.

September 28, 2005
Saratoga Springs, New York

Judge of the Court of Claims

[1]Penal Law § 70.40 (3) (a) states:

[2]Consecutive sentences are mandated by Penal Law § 70.25 (2-a) of which the Court takes judicial notice and which provides as follows:

2-a. [Eff. until Sept. 1, 2009, pursuant to L. 1995, c. 3, § 74, subd. d. See, also, subd. 2-a below.] When an indeterminate or determinate sentence of imprisonment is imposed pursuant to section 70.04, 70.06, 70.08, 70.10, subdivision three or four of section 70.70 or subdivision three or four of section 70.71 of this article and such person is subject to an undischarged indeterminate or determinate sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence.