New York State Court of Claims

New York State Court of Claims

PELLOT v. THE STATE OF NEW YORK, #2005-030-951, Claim No. 108491


Case Information

ADALBERTO PELLOT The court has sua sponte amended the caption to properly reflect the defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has sua sponte amended the caption to properly reflect the defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Adalberto Pellot, pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Janet Polstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 29, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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" [1]
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 December 3
, 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:
"Claimant seeks damages for his alleged ‘illegal incarceration' when the Division of Parole improperly classified him as a ‘category 2' violator and revoked his parole. Determinations pertaining to parole and its revocation, however, are deemed strictly sovereign and quasi-judicial in nature and, accordingly, the State, in making such determinations, is absolutely immune from tort liability (Lublin v State of New York, 135 Misc 2d 419, 420, affd 135 AD2d 1155, lv denied 71 NY2d 802). Since claimant seeks damages attributable to the State's decision to revoke his parole, his claim is barred (Tarter v State of New York, 68 NY2d 511)."
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 damages.
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.

December 29, 2005
White Plains, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, all quotations are from the taped record of the trial.