New York State Court of Claims

New York State Court of Claims

LAROCCO v. THE STATE OF NEW YORK, #2006-032-044, Claim No. 111720, Motion Nos. M-71214, CM-71306


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:
Dominick Larocco, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 10, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court for an order striking defendant's answer and granting him summary judgment on his claim. In opposing this relief, defendant cross-moves to dismiss the claim.

In December 2005, claimant filed this action seeking damages and alleging negligence and violation of his constitutional rights[1]. Specifically, he alleges that in September 1997, his sentence was improperly calculated. He alleges that he was sentenced to 8 to 16 years and he seeks to have his sentence recalculated and fixed at 1 to 3 years or 2 to 4 years, which would result in his release. Claimant has previously challenged the calculation of his sentence. By Amended Decision and Order, Supreme Court (Berke, J.) denied claimant's request for habeas corpus relief seeking recalculation of his sentence and release. In so doing, the Court recounted that claimant filed two prior unsuccessful writs of habeas corpus and two motions pursuant to article 440 of the Criminal Procedure Law. Supreme Court found that the issues raised by claimant were previously raised in the prior proceedings, and that claimant's sentence, as calculated by Supreme Court, Queens County, had been affirmed on appeal to the Appellate Division - Second Department. Moreover, Supreme Court stated that even if the merits of claimant's application were considered, his sentencing complied with the Penal Law.

In the interest of judicial economy, the Court first addresses defendant's cross-motion.

Defendant argues that the claim should be dismissed because recalculation of his sentence must be addressed through either a CPLR article 78 proceeding or a motion pursuant to article 440 of the Criminal Procedure Law, and such relief has already been denied. This Court agrees.

The Court of Claims is a court of limited jurisdiction (Court of Claims Act §§ 8 and 9), and has no authority to review determinations made by other courts regarding the legality of a criminal sentence or the denial of an application for habeas corpus. Indeed, the appropriate vehicle for relief in either circumstance is a direct appeal from the underlying decision. To the extent that the claim may be read to allege wrongful confinement, claimant must establish that the confinement is not privileged (see Broughton v State of New York, 37 NY2d 451,456 [1975]). Given that claimant's sentence has been upheld on appeal, it cannot be said that his confinement is not privileged.

Accordingly, defendant's cross-motion CM-71306 is granted and the claim is dismissed. All remaining relief is denied.

May 10, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed January 25, 2006;

2. "Affirmation" of Dominick Larocco dated to January 20, 2006; Exhibits 1-13 annexed;

3. Notice of Cross-Motion filed February 21, 2006;

4. Affirmation of Belinda A. Wagner dated February 16, 2006; Exhibits A-D annexed;

5. Reply of Dominick Larocco dated February 22, 2006; with attachments.

[1].The Court notes that claimant filed a similar claim (Claim No. 111615) that was dismissed by Judge Melvin L. Schweitzer by Decision and Order filed March 30, 2006.