Claimant alleges that on December 3, 2002, he was issued a violation by his
parole officer, resulting in his incarceration from that date through December
19, 2002, although he was supposed to be released on December 10, 2002.
At trial, claimant testified that on November 17, 2002, he had a "discussion"
with his wife, Iris Garcia, and that after the discussion became "too heated,"
the police were called and it was decided that he should no longer stay in the
house. Claimant's parole officer was called on the police officer's cell phone
and it was explained that claimant would be going to his aunt's house in
Brooklyn. He was supposed to see the parole officer two days later. Claimant
stated that his parole officer told him there was no problem, and that he could
report on December 3 rather than on November 19. On December 2, claimant's wife
told him that a parole supervisor had called and said there was a problem
because claimant had not reported. He reported to the parole office on December
3 and learned that a warrant had been issued because of his failure to appear on
November 19. He stated that the supervisor told him he would have to be
incarcerated on Rikers Island for a few days until the warrant "cleared."
Claimant stated that he signed a document indicating that he would have a
hearing on December 13.
Claimant testified that he was never called for a hearing on December 13, 2002.
He asked the officer about his hearing and was told by an officer at Rikers
Island that the parole supervisor had not filed any papers. He stated that his
wife kept inquiring as to why her husband was still incarcerated and that he was
finally released on December 19, 2002. When he saw his parole officer the next
day, the officer told him that his wife was crazy and that she was the one who
had him arrested.
On cross-examination, claimant acknowledged that he has a criminal history
resulting in a number of prior incarcerations, and that he was familiar with the
parole system, specifically with conditional releases. He had been incarcerated
on prior occasions for violating the terms of conditional releases, including in
February 2002. He was incarcerated on that violation until August 1, 2002, when
he married Ms. Garcia. At that time, he was conditionally released, on the
conditions that he have no police contact and did not use drugs, and he began
reporting to a parole officer. On October 23, 2002, his wife called the police
during an argument and they went to the local police precinct, but no charges
were filed and he was not incarcerated at that time. He stated that his wife
told the police at that time that he was using heroin and hanging around with
drug dealers, but he maintained that such was not true.
Claimant conceded that he never gave his parole officer the address in Brooklyn
where he would be staying with his aunt after the November 17, 2002 argument
with his wife. He also conceded that when he met with his parole officer on
, he waived a preliminary hearing, but he maintained that he did not comprehend
what he was doing.
Claimant's wife testified on his behalf. She testified that on November 17,
2002, their neighbors called the police because they were having a loud
argument. She told the police that she preferred that her husband leave the
residence but since he was on parole, he would need permission. She called
Officer Deal, claimant's parole officer, and asked if he could go stay at his
aunt's residence in Brooklyn and he said that was OK. She further testified
that Officer Deal called her and left a message on November 22
and that he called her again on November 25 and told her that he had a warrant
out on her husband for failing to report on November 19 and for failing to
provide his address. He asked her to inform her husband of the warrant and she
told him that he should tell him himself, and hung up the phone. On December 3,
she went with her husband to the parole office where they were advised of
outstanding charges of parole violations. She stated that Officer Pacheco
stated that claimant had to go to jail since there was an outstanding warrant
but that it would probably only be a few days. She became concerned on December
10, 2002, which was the date claimant was supposed to "max out" but he was not
released. She was told not to worry and that a hearing would be held on
December 13, 2002, which did not occur.
In its answer, defendant asserted that the actions taken by its employees,
which form the basis of the claim, were the product of discretionary
determinations made within the scope of their duties as public officials and
that the defendant is therefore immune from any liability arising out of the
subject facts and circumstances. The law in regard to decisions of parole
officers is clear, as was stated by the Appellate Division, First Department, in
Semkus v State of New York
(272 AD2d 74, 75), in language equally
applicable to this case:
Absolute immunity means just that. Even in circumstances
where, unlike here, a decision of the Division of Parole is challenged, and
overturned, such does not give rise to a claim for
The record herein established that claimant was cited for violating parole as
the result of the November 17, 2002 incident in which the police were called
after his wife had told the parole officer that claimant had been associating
with drug dealers the prior month, and as the result of what may have been a
misunderstanding about where he was to live and when he was supposed to report.
The decision to charge claimant with parole violation and his incarceration as
the result of that decision are classic examples of the types of decisions that
are afforded absolute immunity. Additionally, claimant did not establish that
there was any defect in the procedure by which he came to be incarcerated or
that he was entitled to be released prior to December 19, 2002.
Thus, the instant claim must be, and hereby is, dismissed.
Let judgment be entered accordingly.