New York State Court of Claims

New York State Court of Claims

HARVEY v. THE STATE OF NEW YORK, #2006-036-014, Claim No. 99724


No civil liability can result from the decision to charge claimant with parole violation or the decision to incarcerate him pending resolution of the charge. The State has absolute immunity for actions of the Parole Board.

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:
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Joseph Paterno, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 11, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for “false arrest, false imprisonment, malicious prosecution, deprivation of liberty in the absence of due process . . . and unreasonable search and seizure” arising out of his arrest. He was arrested on May 27, 1998, on the charge of parole violation and was incarcerated after a June 4, 1998 hearing before the Division of Parole, until December 10, 1998. He alleges that his incarceration was the result of false testimony at the parole violation hearing.
Claimant testified that the subject events began on May 15, 1998, when he received a phone call from the police requesting that he come to the station, and when he arrived there he was accused of having assaulted Sharon Commodore, mother of his child. Claimant explained he had not seen Ms. Commodore, but rather had arranged for an acquaintance to serve a Family Court petition on her on April 20, 1998 seeking visitation and a protective order. The police told claimant to come back a week later, and he then called the parole office to advise them of the incident. When he returned to the police station the following week, his parole officer, Patricia Walsh, had him arrested for violating one of the conditions of his parole, to wit, no contact with Ms. Commodore. He protested that he had not had any contact with her, and that he simply had her served with legal papers; but Ms. Walsh “did not want to hear it.”
Claimant requested a preliminary hearing, which was held on June 4, 1998 with both Ms. Walsh and Ms. Commodore present (see Exhibit “1,” transcript of hearing before Hearing Officer Richard Albano).
The transcript reflects that claimant, who was represented by counsel at the parole hearing, was charged with violating one of the conditions of his parole: “that he have no contact with the mother of his child, Sharon Commodor (sic), except via the Family Court” (id., 4). At the hearing, Ms. Commodore testified that claimant, in fact, was present when she was served with the Family Court petition, and that he forced his way into her apartment, grabbed her, picked her up and pushed her on her bed (id., 13-14). Ms. Commodore testified she was still “seeing” claimant two weeks prior to the subject incident. After claimant left the apartment, Ms. Commodore telephoned the police, and thereafter, on May 8, 1998, she spoke with someone from the District Attorney’s office and signed a domestic violence complaint. This resulted in claimant being contacted by the police and subsequently being arrested on the parole violation charge.
Virgil Fultz, claimant’s acquaintance who served Ms. Commodore with the Family Court petition on April 20, 1998, testified that claimant was not with him and that he was by himself. Claimant also testified that he was not present when the petition was served and had not had any contact with Ms. Commodore. The hearing officer, nevertheless, found probable cause for the charge of parole violation and scheduled a full hearing for July 21, 1998.
Despite the scheduled hearing date, claimant testified he had to wait six months until the hearing was held. The trial exhibits show that claimant brought a petition for a writ of habeas corpus in Supreme Court, Bronx County (see Exhibits “3” and “B”) and that on February 17, 1999, charges against claimant (presumably including the subject parole violation charge) were dismissed pursuant to “speedy trial provisions” (Exhibit “4,” Certificate of Disposition). As noted, the Claim herein states he was released on December 10, 1998.
At trial, the court reserved decision on defendant’s motion to dismiss the claim for failure to establish a prima facie case. The court now grants that motion.
Claimant alleged in his claim that his incarceration was improper for two reasons: (i) the special condition of his parole that he have no contact with Ms. Commodore was “improperly imposed” (Claim, ¶ 41), and (ii) his incarceration was based on perjured testimony. Regardless of the theory under which claimant seeks compensation for his incarceration, the claim must fail because the principle of absolute immunity bars a claim for damages under either theory.
As was held in In re M.G. v Travis (236 AD2d 163, 167 [1st Dept 1997]): “There is no Federal or State constitutional right for an inmate to be released before serving his full sentence . . . and the State has the discretion to place conditions on parole release.” Thus, claimant’s allegation that a sufficient factual predicate did not exist for the imposition of the special condition cannot be the basis of a claim for damages. Moreover, on cross-examination claimant acknowledged that he had agreed in writing on November 19, 1997 to avoid contact with Ms. Commodore as a special condition of his parole.
Even more fundamental, it has long been the law in this state that decisions of the parole board are entitled to absolute immunity, as set forth, for example, in the decision in Semkus v State of New York (272 AD2d 74 [1st Dept 2000]):
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). This conclusion is not altered by the circumstance that the decision of the Parole Board revoking claimant's parole was eventually determined to have been in error, since the action of the Parole Board was not thereby deprived of its quasi-judicial character (supra, at 517-518).
See also Quartaroro v Catterson (917 F. Supp. 919 [EDNY 1996]) and Jackson v State of New York (7 Misc 3d 1027[A] [2005]) and cases cited therein. These decisions are dispositive of the claim herein. Claimant’s incarceration was the result of the Parole Board hearing officer’s finding that there was probable cause to sustain the parole violation charge. Whether claimant ultimately was convicted of the charge has no bearing on the conclusion that absolute immunity applies to the decision to incarcerate him pending resolution of the charge, nor does the fact that the charge apparently was dismissed on speedy trial grounds. The law is clear that no civil liability can result from the decision to charge claimant with parole violation or the decision to incarcerate him pending resolution of the charge.
Accordingly, since defendant is absolutely immune from liability arising from the events at issue at this trial, the court is required to dismiss the claim. The Clerk of the Court will enter judgment accordingly.

August 11, 2006
New York, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the tape-recorded trial proceedings.