New York State Court of Claims

New York State Court of Claims

COLLINS v. THE STATE OF NEW YORK, #2008-015-050, Claim No. NONE, Motion No. M-74674


On a motion to renew, Court adhered to its prior decision denying late claim relief for improperly imposed period of post-relief supervision. The remedy for improperly imposed period of post-release supervision is not expungement but resentencing.

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:
Louis Rosado, Esquire and AssociatesBy: Louis Rosado, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 16, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movants, Evan Collins and Felicia Collins, move for renewal of this Court’s prior determination (see Collins v State of New York, UID #2007-015-252, [Ct Cl, December 31, 2007] Collins, J.) denying their motion for permission to late file a claim for damages allegedly arising from the imposition of an unlawful period of postrelease supervision (PRS) upon Mr. Collins' release from prison. Movants’ request for renewal is granted and, upon reconsideration, the Court adheres to its prior decision denying movants' motion for late claim relief. Movant Evan Collins (hereinafter “movant”) alleges that the New York State Division of Parole unlawfully subjected him to a period of PRS following his release from prison in May 2003. Movant asserts that imposition of the period of PRS gives rise to causes of action for unlawful imprisonment, invasion of privacy, abuse of process, intentional infliction of emotional distress and a derivative claim for loss of consortium. The proposed claim alleges the following in this regard:
"9. The underlying five (5) year period of post-release supervision administratively imposed upon Claimant, Evan Collins, by respondent NYS Division of Parole and its attended consequences (i.e., restrictions on liberty and imprisonment ) is what forms the basis of the instant claim.

10. Upon information and belief, Claimant, Evan Collins' four (4) year sentence of imprisonment imposed by Erie County Supreme Court (Rossetti, J.) was satisfied in its entirety on or about, but no later than May 29, 2003. Nevertheless, Claimant, Evan Collins, was unlawfully placed on post-release supervision until the November 8, 2006 grant of writ of habeas corpus in his (Claimant, Evan Collins) favor."
The habeas corpus proceeding was commenced by movant's former attorney, Richard

Baumgarten, Esq., in the Supreme Court, Erie County pursuant to Article 70 of the CPLR. The petition was granted by decision of the Honorable M. William Boller, A.J.S.C., on November 6, 2006 with the direction to submit an order consistent with the Court's decision[1].

This Court denied the movants’ prior application for late claim relief, finding that the claim lacked merit and that the movants failed to establish a reasonable excuse for the delay in filing the claim. The Court noted that Penal Law § 70.45 (1) provides that every determinate sentence includes “as a part thereof, an additional period of postrelease supervision”, generally five years subject to certain exceptions. The Court stated in this regard:
[T]he movants do not allege the postrelease supervision imposed upon Mr. Collins was wrongful other than the sentencing court failed to advise him that the two year determinate felony sentence included a five year period of postrelease supervision. Had the Court so advised the movant there would be no cause of action as, under such circumstances, the period of postrelease supervision prescribed in Penal Law § 70.45 automatically applies to individuals subject to a determinate sentence” (citations omitted).
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e] [2]; see also Khan v Levy, ___AD3d ___ [2008], 2008 NY Slip Op 04989, 2008 WL 2278119 [2008]). Movants argue that a change in the decisional law since the date of this Court’s Decision and Order denying their motion for late claim relief warrants renewal and permission to late file their claim. The Court disagrees.

In support of their motion movants cite Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358 [2008] and Matter of Dreher v Goord, 46 AD3d 1261 [2007], both of which held that only the sentencing court had authority to impose a period of PRS. In Matter of Garner the Court of Appeals made clear that “PRS represents a significant punishment component that restricts an individual’s liberty . . . It is not automatically included in the pronouncement of a determinate sentence, and thus a defendant has a statutory right to have that punishment imposed by the sentencing judge” (Matter of Garner, 10 NY3d at 362-363). Importantly, the Court noted that this holding was “without prejudice to any ability that either the People or DOCS may have to seek the appropriate resentencing of a defendant in the proper forum” (Id. at 363, n 4). The same day Matter of Garner, supra, was decided, the Court of Appeals decided People v Sparber, (10 NY3d 457 [2008]). In Sparber, the Court rejected the argument that expungement is the proper remedy for a term of PRS improperly imposed by the Department of Correctional Services (DOCS) rather than the sentencing judge, holding “[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement . . .” The Court specifically noted that “there exists no procedural bar to allowing the sentencing court to correct its PRS error . . . [T]he failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy . . . (Id. at ___). The orders in each of the five cases reviewed on appeal in Sparber were therefore modified to the extent of remitting the cases to the supreme court for resentencing.

In Matter of Dreher v Goord, supra, decided shortly before Sparber, the Appellate Division, Third Department made clear that although DOCS has some role in correcting an unlawful sentence (comparing Correction Law § 601-a), the ultimate responsibility for imposing a correct sentence remains with the courts (overruling Matter of Garner v New York State Dept. of Correctional Servs., 39 AD3d 1019 [2007] and Matter of Deal v Goord, 8 AD3d 769, 769-770 [2004], appeal dismissed 3 NY3d 737 [2004]; see also Matter of Gonzalez v Fischer, ___AD3d ___, 2008 NY Slip Op 04979, 2008 WL 22278080 [June 5, 2008]; Matter of Prendergast v New York State Dept. of Correctional Servs., ___AD3d ___, 856 NYS2d 725, 2008 NY Slip Op 04038, [May 1, 2008]; Matter of Donhauser v Goord, 48 AD3d 1005 [2008]; People ex rel. Burch v Goord, 48 AD3d 1306 [2008], lv denied 50 AD3d 1630 [2008]; People ex rel. McBride v Alexander, 46 AD3d 849 [2007]). Thus, “[i]nstead of usurping the power of the courts, upon discovering an illegal sentence DOCS should inform the prosecuting attorney or the sentencing court and allow the sentence to be corrected judicially” (People ex rel. Gill v Greene, 48 AD3d 1003, 1005 [2008]; People v Craig, ___AD3d ___, 2008 NY Slip Op 04740 [May 27, 2008]).

The foregoing establishes that although a period of PRS is statutorily mandated in certain cases (see Penal Law § 70.45 [1]), sentencing remains the province of the courts. However, the remedy for an improperly imposed term of PRS is not expungement, but modification of the sentence by the sentencing judge to include a period of PRS.

The Unlawful Imprisonment Claim

A claim for unlawful imprisonment is generally available to protect "the personal interest of freedom from restraint of movement" (Broughton v State of New York, 37 NY2d 451, 456 [1975]). In order to establish a prima facie case of unlawful imprisonment, a claimant must show "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged . . . " (Id. at 456; see also Lorensen v State of New York, 249 AD2d 762, 763 [1998], lv denied 92 NY2d 807 [1998]). Here, movants cannot establish the fourth requirement set forth above, that the confinement and/or the restrictions imposed upon his liberties were not privileged.

While it is now settled that an administratively imposed period of PRS is improper, this fact alone provides no basis for a claim of unlawful imprisonment. As noted by the Court of Appeals in both Matter of Garner, supra, and People v Sparber, supra, no procedural impediment exists to correcting a sentence to include the mandatory period of PRS. Indeed, the defendant need only be returned to court for resentencing. As it is now settled that expungement is not the appropriate remedy in this situation, any confinement arising from an improperly imposed period of PRS is privileged. Stated otherwise, the period of PRS was not wrongful because it was required by § 70.45 (1) of the Penal Law. The unlawful imprisonment claim is therefore meritless.

The Cause Of Action For Invasion Of Privacy

The law is settled that New York does not recognize a cause of action for invasion of privacy beyond the protection from commercial misappropriation expressed in Civil Rights Law §§ 50 and 51(D'Agostino v Pan Am. World Airways, 79 AD2d 646 [1980], citing Wojtowicz v Delacorte Press, 43 NY2d 858 [1978]). Accordingly, this cause of action is patently meritless.

The Cause Of Action For Abuse of Process

A cause of action for abuse of process has three essential elements: "(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116 [1984]; Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 403 [1975]; Hornstein v Wolf, 67 NY2d 721 [1986]; Panish v Steinberg, 32 AD3d 383 [2006] ). Here, the second and third elements are neither alleged in the proposed claim nor may they be inferred from the facts giving rise to the claim. In addition, it was neither alleged nor does it appear that the movants suffered special damages as is required to support a claim for an abuse of process (see Jaroslawicz v Cohen, 12 AD3d 160 [2004]; Silberman v Flaum, 225 AD2d 985 [1996]). Accordingly, movants failed to establish that this cause of action has the appearance of merit.

The Cause Of Action For Intentional Infliction Of Emotional Distress

The cause of action for intentional infliction of emotional distress is patently meritless as public policy prohibits recovery against the State on such claims (Lynn v State of New York, 33 AD3d 673 [2006]; Wyllie v District Attorney of County of Kings, 2 AD3d 714 [2003]; Wheeler v State of New York, 104 AD2d 496 [1984]).

The Delay In Filing The Claim

Lastly, no new facts were submitted in support of the renewal motion to affect the Court’s prior determination that movants failed to establish a reasonable excuse for the delay in filing their claim (see CPLR 2221 [e]). According to the proposed claim, the movant was unlawfully placed on PRS until November 8, 2006 when his petition for habeas corpus relief was granted. Movants’ former attorney, Richard L. Baumgarten, Esq., died on April 27, 2007 yet no action was taken until some three months later when the motion to file a late claim was filed and served. No excuse or explanation was offered for this delay on the prior motion nor do movants offer an excuse for this delay now.

Relying on CPLR 321 (c) movants argue for the first time in support of this motion that “Claimants [sic] action was stayed during the entire period that Claimants did not have an attorney to protect their legal interest in filing the notice of claim” (Affirmation In Support Of Motion To Renew, ¶ 12 [emphasis in original]). This new argument provides no basis for a renewal motion as it represents neither new facts nor a change in the law (CPLR 2221 [e] [2]).

Nor does it provide a basis for a motion to reargue as movants failed to identify the instant motion as such (CPLR 2221 [d] [1]), the argument was not made on the prior motion (CPLR 2221 [d] [2]) and it lacks merit. CPLR 321 (c) stays a pending action upon the death or disability of an attorney for a party - it does not toll the limitation periods set forth in Court of Claims Act § 10. Here, no action was pending upon the death of movants’ attorney. At that point they were free to seek counsel to represent their interests or otherwise file a claim on their own behalf.

Based on the foregoing, the Court adheres to its prior determination denying movants application for late claim relief pursuant to Court of Claims Act § 10 (6).

June 16, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 11, 2008;
  2. Affirmation of Louis Rosado affirmed March 11, 2008;
  3. Affirmation of Michael T. Krenrich dated April 9, 2008.

[1]. The decision was based on the Second Circuit decision in Earley v Murray (451 F3d 71 [2d cir 2006], rehearing denied 462 F3d 147 [2006], cert denied 127 S Ct 3014 [2007]), which held that "[o]nly the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty" (id. at 75). As a result, the Court in Earley held that New York's Department of Correctional Services had no power to impose a statutorily mandated period of postrelease supervision that was not part of the judgment of the sentencing Court.