New York State Court of Claims

New York State Court of Claims

PETERSON v. THE STATE OF NEW YORK, #2008-015-060, Claim No. None, Motion No. M-74902


Synopsis


Defendant's motion to dismiss claim as untimely was granted and claimant's cross-motion for late claim relief was denied without prejudice to a further motion establishing a meritorious cause of action.

Case Information

UID:
2008-015-060
Claimant(s):
ALVIN PETERSON
Claimant short name:
PETERSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74902
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Alvin Peterson, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 28, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By Decision and Order of this Court filed May 15, 2007 defendant's pre-answer motion to dismiss was granted for the claimant's failure to timely serve and file the claim. Claimant's cross-motion to file a late claim pursuant to Court of Claims Act § 10 (6) was denied without prejudice to a further motion upon proper proof establishing a meritorious cause of action (see Peterson v State of New York, UID # 2007-015-161, Claim No. 112700 [Ct Cl, March 20, 2007] Collins, J.). The claim previously filed was treated by the Court as the proposed claim for the purpose of the cross-motion for late claim relief. The (proposed) claim alleged in substance the following:
“2. The claimant was arrested on January 8, 2006 for driving with a suspended license. In checking on his license it was discovered that claimant was wanted by the New York State Division of Parole for failure to report. Based on this information the claimant was incarcerated and brought before the Administrative Law Judge Grace Bernstein who sentenced the claimant to four months for violating his parole.

The violation of parole was baed [sic] on a 1994 conviction which was unconstitutionally obtained and which the United States District Court for the Southern District had overturned in the case entitled Peterson v. New York 00-cv-4777(RPP/KNF)

This information was given to the Court which nonetheless was disregarded and the claimant was sentenced for violating parole on an overturned felony conviction.

Claimant then brought a writ of habeas Corpus petition and by order of Hon. Denis Boyle dated May 3, 2006 the Writ was sustained and the parole violation was vacated and dismissed with prejudice and the claimant was released on May 11, 2006.

3. The claimant was unlawfully arrested, and unlawfully detained at Rikers Island at 18-18 Hazen Street, East Elmhurst, New York from the time of his arrest on January 8, 2006 until his release on May 11, 2006.

4. The claim occurred on January 8, 2006.”
In its prior decision the Court found that the movant failed to establish the potential merit of the claim (see Savino v State of New York, 199 AD2d 254 [1993]). Although the filed claim made clear that the movant was incarcerated for a violation of a condition of parole relating to a conviction which had been overturned, it was unclear whether the claimant attributed the error to a ministerial act of negligence on behalf of the State, its officers or employees. As a result, the court denied movant's motion without prejudice to a further motion establishing a meritorious cause of action.

On the instant motion the movant, now acting pro se, details in his affidavit in support the circumstances which led to his allegedly unlawful incarceration and submits in further support of the application orders of the Honorable Martin Marcus, J.S.C., dated May 2, 2006, granting his petition to vacate a parole warrant and for a writ of habeas corpus. Movant also submitted a subsequent order of the same court dated June 13, 2006 adhering to its prior determination.

In granting the movant's petition to vacate the parole warrant and for a writ of habeas corpus, Judge Marcus noted the "long and torturous" procedural history of the movant's criminal prosecutions (movant's Exhibit 1, p. 2). As gleaned from Judge Marcus' decision and order, in 2001 movant was convicted in the Supreme Court, New York County of two counts of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fifth degrees for acts committed in 1999. Although he contested his status as a second felony offender on the ground that a 1997 conviction had been unconstitutionally obtained, he was adjudicated a second felony offender and sentenced to three indeterminate terms of six to twelve years imprisonment and one indeterminate term of two to four years imprisonment which were to run concurrently. Because of a protracted delay in sentencing the movant in State court, the Federal District Court found that petitioner's right to a speedy trial, including his sentencing, had been violated (see movant's Exhibit 1, pp. 5-6, citing Peterson v State of New York, 2005 WL 1278516 [S.D.N.Y. May 26, 2005]; Peterson v State of New York, Docket No. 00 Civ. 4777, p. 1 [Patterson, J.] [S.D.N.Y. June 30, 2005])). As stated by Judge Marcus in his decision and order (movant's Exhibit 1, p. 6, quoting Peterson v State of New York, Docket No. 00 Civ. 4777, p. 2):
"Thus, after the petitioner had been adjudicated a second felony offender, and after he had filed his direct appeal on the conviction on which he is under parole supervision, the District Court granted the petitioner habeas corpus relief on the ground that his sentencing on the predicate felony had been unconstitutionally delayed, and ordered that he was to be 'released from any remaining constraints upon his liberty that stem from the judgment of conviction.' Based on the District Court's decision, the petitioner's 1997 felony conviction cannot lawfully serve as the basis for enhanced punishment as a second felony offender."
On this basis Judge Marcus ordered that the petitioner be released from custody.

Unbeknownst to Judge Marcus at the time he granted the movant's habeas corpus petition, movant had filed a motion pursuant to CPL § 440.20 for resentencing on the 2001 conviction for which he was under parole supervision. As a result of the motion he was resentenced on March 9, 2006 as a predicate offender to the same terms of imprisonment that had previously been imposed. Based on this newly discovered information, the Division of Parole moved to renew the prior motion in which Judge Marcus had granted the movant's petition for a writ of habeas corpus. Although Judge Marcus noted that new facts had been submitted to warrant renewal, he adhered to his prior determination, stating (movant's Exhibit 3, p. 4):
“Because both the alleged violation of parole and the detention based upon it preceded the petitioner's resentencing, he was being held for violation of the conditions of parole that resulted from an illegal sentence from which a federal court had ordered his release. That he was subsequently lawfully resentenced made no change in the status of his parole from the prior unlawful sentence. The parole hold, which resulted from an illegal sentence, was illegal from the time of its issuance, continued to be so after his resentence, and continued to constitute an illegal 'remaining constraint upon his liberty.' Therefore, the writ was properly granted, and the Court properly ordered that the petitioner be released from custody based upon the parole hold.”
Importantly, however, the Court noted the propriety of the confinement based upon the new sentence (movant's Exhibit 3, p. 4):
"Nothing in the Court's previous decision, however, required that the defendant be released prior to completing service of his new sentence (or from being released on parole from that sentence), and nothing in this decision relieves the defendant from service of any remaining portion of his new sentence, or, from being returned to parole upon release from that sentence, to the extent otherwise required or permitted by law."
Movant attributes his four- month confinement to the negligence of the Administrative Law Judge and the Division of Parole following his January 8, 2006 arrest for driving with a suspended license:
“This claim arises from the acts or omissions of the defendant. Details of said acts are as follows: claimant was arrested on January 8, 2006 for driving with a suspended license. In checking his license it was discovered that claimant was wanted by the NYS Div. of Parole for failure to report. Based on this information claimant was incarcerated and brought before Administrative Law Judge Grace Bernstein, who without legal authority or valid order, as claimant's sentence had been declared illegal, sentenced claimant to 4 months on the alleged parole violation which resulted from an illegal sentence and term of parole supervision.

The violation of parole was based upon a 2001 conviction which was declared illegal as a result of his 1994 predicate conviction which was unconstitutionally obtained and which the United States District Court, SDNY had overturned and ordered that claimant be released from any remaining constraints upon his liberty in the underlying conviction, in the case entitled Peterson v New York, # 00-CV-4777 (RPP/KNF).

This information was given to claimant's parole officer's supervisor in October 2005, as well as Judge Bernstein, on January 23, 2006, at his parole revocation hearing. Nonetheless, Judge Bernstein totally disregarded the federal court order over claimant's objections and sentenced him to 4 months on an illegal sentence” (See affidavit of Alvin Peterson submitted in support of the motion).
The Court finds that the State is immune from liability for the alleged conduct complained of in this case. It is well settled that "[d]eterminations pertaining to parole and its revocation . . . are deemed strictly sovereign and quasi-judicial in nature and, accordingly, the State, in making such determinations, is absolutely immune from tort liability" (Semkus v State of New York, 272 AD2d 74, 75 [2000], citing Lublin v State of New York, 135 Misc 2d 419, 420, affd 135 AD2d 1155, lv denied 71 NY2d 802). Since movant seeks damages attributable to the State's decision to revoke his parole, his claim is barred (see generally Tarter v State of New York, 68 NY2d 511 [1986]). This conclusion is not altered by the fact that the movant's petition to vacate the parole warrant and issue a writ of habeas corpus was granted, since the action of the Parole Board was not thereby deprived of its quasi-judicial character (Semkus v State of New York, 272 AD2d at 75).

Moreover, as noted in this Court's prior Decision and Order, movant was confined for the alleged parole violation pursuant to a facially valid order. The confinement was therefore privileged and everyone connected with the matter is protected from liability for false imprisonment (Holmberg v County of Albany, 291 AD2d 610, 612 [2002], lv denied 98 NY2d 604 [2002]; see also Nuernberger v State of New York, 41 NY2d 111 [1976]).

Additionally, although movant was arrested on January 8, 2006 and confined until his release on May 11, 2006, he was resentenced on March 9, 2006. Inasmuch as the new sentence made no change in the status of movant's parole from the prior unlawful sentence, at least part of the confinement was privileged for this additional reason as well.

It is well recognized that of the six statutorily enumerated factors to be considered on a motion for late claim relief pursuant to Court of Claims Act § 10 (6), the requirement that the claim appears to be meritorious is the most crucial as it would be futile to permit the filing of a legally deficient claim (Prusack v State of New York, 117 AD2d 729 [1986]). On this basis alone therefore denial of a late claim application may be warranted (Savino v State of New York, 199 AD2d 254 [1993], supra; McCarthy v New York State Canal Corp., 244 AD2d 57 [1998], lv denied 92 NY2d 815 [1998]). In the instant matter the Court finds that it would be a futile effort to permit the filing of a late claim as the proposed claim is deficient as a matter of law.

For the foregoing reasons, movant's application for late claim relief is denied.

July 28, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion filed April 30, 2008;
  2. Statement of claimant, verified April 21, 2008 with Exhibits;
  3. Affirmation of Michael T. Krenrich dated May 30, 2008.