New York State Court of Claims

New York State Court of Claims

McCANTS v. THE STATE OF NEW YORK, #2006-028-578, Claim No. 103533, Motion No. M-71351


A subsequent appellate court decision holding that Claimant’s sentence was unlawful, because Claimant was not a person qualified to receive that alternative sentence, does not provide a basis for restoration of his claim alleging that his period of confinement had been improperly computed.

Case Information

1 1.The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
ANDRE T. McCANTS, pro se
Defendant’s attorney:
BY: Glenn C. King, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion for an order restoring his claim:

1. Notice of Motion, Preliminary Statement and Argument, and Supporting Affidavit of Andre T. McCants, pro se,

2. Letter indicating no service from Glenn C. King, AAG

3. Letter from Andre T. McCants, pro se

Filed papers: Claim; Answer

In April 1999, Claimant was sentenced, pursuant to Criminal Procedure Law § 410.91(1), to parole supervision, which is an alternative, indeterminate sentence that can result in an earlier than usual release date. He had been convicted of criminal possession of a control substance and originally sentenced to 2 1/2 to 5 years. The statute provides, in relevant part, that an individual placed on parole supervision must be remanded to a Department of Correctional Services’ (DOCS) reception center “for a period not to exceed ten days” and then transferred to a drug treatment campus for an initial placement of 90 days. Claimant entered DOCS’ custody at Cayuga Correctional Facility on May 12, 1999, but it was not until June 1, 1999 – 20 days later – that he was transferred to the Willard Drug Treatment Campus (“Willard”). He commenced an action for false imprisonment, alleging that because of the delay in transferring him to Willard, he served more time at that facility that he was required to do by law.

Neither the Claim nor Claimant’s submissions in support of his motion identify the dates of his alleged excessive confinement, but he does state that he could lawfully be held only one hundred days as a result of his sentence (McCants Argument, ¶ 1). If Claimant had been transferred to Willard ten days after being taken into DOCS’ custody, the 90 days that he could be held at Willard would have expired on August 20, 1999. In fact, as related below, Claimant was transferred from Willard on August 26, 1999.

Claimant does not deny or challenge any of the facts contained in the decision and order of former Presiding Judge Susan Phillips Read of this Court, the facts on which she based dismissal of the Claim (Claim No. 103533, Motion Nos. M-63682, CM-63834, Oct.12, 2001, Read, J. [UID # 2001-001-065]). That decision recites that on August 2, 1999, before any 90-day period would have expired, Claimant received an unsatisfactory evaluation of his participation in the program. He subsequently agreed, in writing, that he would be “recycled” in the drug treatment program (i.e., that he would repeat the first 30 days of the program). This agreement, which moved Claimant’s anticipated release date to October 5, 1999, also provided that if Claimant again failed to complete the program or was involved in other violations, his parole would be violated and he would be returned to prison to serve his original sentence.

A parole violation occurred on August 26, 1999, at which time Claimant was removed from the Willard program and returned to a correctional facility to serve the original sentence. Based on these facts, Judge Read concluded that it was Claimant’s own acts, not any action on the part of the State, that caused his release date to be extended and dismissed the Claim.

By the instant motion, Claimant seeks to “renew” his claim on the basis of an appellate decision in People v McCants (15 AD3d 892 [4th Dept 2005]), a decision that, he asserts, supports his position that he was illegally detained (McCants Affidavit, ¶ 6). The appellate court’s memorandum decision reads, in relevant part, as follows:
As the People correctly concede, defendant was illegally sentenced to a term of imprisonment of 2 1/2 to 5 years, to be served under parole supervision at the Willard Drug Treatment Campus, inasmuch as at the time of sentencing he was subject to an undischarged term of imprisonment (see CPL 410.91 [2]; cf. People v Carlton, 2 AD3d 1353, 1354 [2003], lv denied 1 NY3d 625 [2004]).
This ruling bears no relation to the statutory provision on which Claim No. 103533 was based: CPL § 410.91(1)'s requirement that individuals sentenced to parol supervision must be transferred to a drug treatment program within ten days of entering DOCS’ custody. Instead, it references the requirement contained in subdivision (2) of that section, which provides that a sentence of parole supervision is not available to, inter alia, persons who are subject to an “undischarged term of imprisonment.”

Because Claim No. 103533 did not challenge the legitimacy of the sentence of parole supervision, the Fourth Department’s ruling has no effect on the earlier decision to dismiss this Claim and thus cannot provide a basis for its restoration. In addition, this Court agrees that any period of time Claimant spent at Willard beyond August 20, 1999 resulted from his own actions, not those of the State.

Claimant’s motion is DENIED.

July 27, 2006
Albany, New York

Judge of the Court of Claims