Claimant's proof at trial was limited to his brief testimony in which he
asserted that he was wrongfully confined for a period of 4 months and 18 days
due to the negligence of his parole officer. Claimant testified that while
under parole supervision he was arrested on August 13, 2004. Although he
notified his parole officer within four days of his arrest, his parole officer
failed to timely prepare the paperwork concerning the parole violation. As a
result, when the claimant went before the Judge for sentencing on the subsequent
criminal charge, she had no paperwork reflecting the fact that the claimant was
on parole and therefore could not pronounce that his sentence was to run
concurrently rather than consecutively with the prior sentence.
On cross-examination the claimant testified that he was arrested in New York
City on March 24, 2001. He was convicted upon a plea of guilty to second degree
assault and on January 23, 2002 he was sentenced to a term of imprisonment of
1⅓ to 4 years. Claimant was received by the Department of Correctional
Services on February 8, 2002. For the period he was awaiting sentencing (March
24, 2001 through February 7, 2002), he received 321 days of jail time credit.
On November 14, 2003 the claimant was conditionally released to parole
supervision. He was arrested again on August 13, 2004, this time for criminal
possession of a weapon. He pled guilty to that charge on October 5, 2004 and
was sentenced on October 28, 2004. Because the Judge did not have the
paperwork concerning the parole violation at the time of sentencing, she was
unable to specify whether the new sentence was to run consecutively or
concurrently with the time remaining on the prior unserved sentence.
Exhibit 1 was received in evidence without objection. It consists of the
claimant's notes, a copy of the Violation of Release Report, a Case Summary
prepared by the Division of Parole, a copy of Penal law § 70.25, a Notice
of Violation dated November 2, 2004 and a copy of 9 NYCRR § 8005.3.
Claimant contends in Exhibit 1 that his parole officer lied on the Violation
Release Report when he indicated that on October 28, 2004 the claimant pled
guilty (to the charge of criminal possession of a weapon) and was sentenced on
that same date. In fact, according to the claimant, he pled guilty on October
5, 2004 and advised his parole officer of this fact within four days thereafter.
He also indicates in Exhibit 1 that the parole officer lied about the date the
warrant for his detention was issued. He claims that the warrant for his
detention on the parole violation was issued on October 27, 2004 and that his
parole officer lied on the Violation of Release Report by indicating that the
warrant was issued on October 30, 2004.
The reason for the "lie", according to the claimant, is that the Notice of
Violation is required to be presented to the alleged violator within three days
after the execution of the warrant pursuant to 9 NYCRR § 8005.3, which was
not done in his case.
Defendant called Richard DeSimone as its only witness. Mr. DeSimone is
employed by the Department of Correctional Services (DOCS) as the Associate
Counsel in charge of the Office of Sentencing Review. He has been employed in
this capacity since 1995. His duties include overseeing the unit responsible
for reviewing sentences of imprisonment and release date computations. During
his tenure with DOCS he has also assisted in drafting statutes relating to
sentence computation and has performed tens of thousands of such computations
during his professional career.
Mr. DeSimone testified that although Penal Law § 70.25 (1) (b) indicates
that a sentence is to run consecutively if not otherwise stated, the alleged
failure to advise the sentencing court of the pending release revocation hearing
in this case had no effect on the sentence computation. In this regard Mr.
DeSimone testified that parole jail time credit is governed by Penal Law §
70.40. This statute provides three ways of earning jail time credit, according
to this witness. The first is where a person is detained solely on a parole
warrant and there is no new arrest (Penal Law § 70.40  [c] [i]). The
second applies when a person is arrested for a new crime which culminates in a
dismissal (Penal Law § 70.40  [c] [ii]) and the third, applicable here,
is when the person is arrested for a new crime which culminates in a conviction
(Penal Law § 70.40  [c] [iii]). In the latter instance a person can
only receive a jail time credit toward the prior state prison sentence for the
time spent in local custody that exceeds the length of the new sentence. As a
result, if the new sentence were a definite sentence of one year, credit toward
the interrupted prior state jail time sentence could not begin until day 366.
The witness testified that credit can be given to the old sentence or the new
sentence but not both.
Mr. DeSimone computed the claimant's sentence in Court on a blackboard (see
also defendant's Exhibit F). The witness concluded that the date the
claimant was released from prison - August 31, 2005 - was the correct release
Mr. DeSimone testified that as of October 28, 2004 four months and eighteen
days remained to be served on the claimant's maximum sentence. Fifteen days of
local jail time was credited pursuant to a certification from the Division of
Parole leaving a net balance to be served of four months and three days on the
prior interrupted sentence. The sentence resumed on April 28, 2005, the date he
was returned to State custody. Pursuant to Penal Law § 70.40, the maximum
release date was August 31, 2005.
On cross-examination the witness testified that presumably the sentencing Judge
would obtain a copy of a criminal defendant's RAP sheet and therefore be aware
of the fact he was on parole even without notification from the Division of
Parole. He testified that a delinquency date is the date a sentence stops
running. Claimant here was returned to prison on April 28, 2005 so the time
remaining on the prior sentence resumed as of that date.
On redirect examination the witness testified that although the "technical"
delinquency date in this case was the date of claimant's arrest on August 13,
2004, these dates are provided to DOCS by the Division of Parole and are
frequently subject to change. Here, the delinquency date was modified to
October 28, 2004 (the date of sentencing) thereby affording the claimant the
benefit of additional credit toward the prior sentence. In other words, the
claimant's sentence from the prior conviction did not stop running until October
28, 2004 instead of August 13, 2004, thereby reducing the time remaining to be
served by some 2½ months. The witness reiterated that whether or not the
sentencing Judge specified that the sentence for the 2004 conviction was to run
consecutively or concurrently, claimant's maximum release date would have been
the same, August 31, 2005. Defendant's Exhibits A through G were admitted
into evidence without objection. Exhibit A is the Sentence & Commitment
sheet relative to the claimant's conviction for second degree assault, which
reflects that the claimant was adjudicated a youthful offender and sentenced to
an indeterminate term of 1⅓ to 4 years in prison. Exhibit B is Jail Time
Certification from the City of New York Department of Correction reflecting 321
days of total jail time. Exhibit C is the Legal Date Computation as of
February 11, 2002 reflecting that claimant had a conditional release date (on
the prior conviction) of November 16, 2003. Exhibit D is the Chronological
History Display reflecting that claimant was returned to state custody on April
28, 2005 and discharged on August 31, 2005. Exhibit E is a report from the
Division of Parole indicating an official delinquency date of October 28, 2004.
Exhibit F is a Legal Date Computation sheet as of May 2, 2005 indicating a
maximum expiration date of August 31, 2005. Exhibit G is the Repository
Inquiry (RAP sheet) which, as relevant here, indicates that the claimant was
convicted on October 5, 2004 upon a plea of guilty to criminal possession of a
loaded firearm in the third degree.
The defendant requested the Court take notice of Matter of Edwards v
Preiser, 51 AD2d 888 , People ex rel. Batsford v State of New York
Div. of Parole, 91 AD2d 1112 , lv denied 58 NY2d 611 ,
and Matter of Blake v Travis, 35 AD3d 925 .
The first issue for determination is whether this court has subject matter
jurisdiction to entertain a claim for excessive wrongful confinement where
claimant failed to pursue his available administrative remedies or otherwise
seek judicial review in the Supreme Court pursuant to either CPLR articles 70 or
78. It is well settled that "where statutes provide a method for review of
adjudications by administrative agencies, they must be followed. A collateral
review may not be sought under the guise of a claim for money damages"
(Lublin v State of New York, 135 Misc 2d 419, 420 [Ct Cl 1987],
affd 135 AD2d 1155 , lv denied 71 NY2d 802 ). As
noted by the Court in Lublin v State of New York, supra,
administrative review of parole revocation determinations may be sought pursuant
to Executive Law § 259-i (4) and 9 NYCRR part 8006. Habeas corpus relief
or judicial review of the administrative determination is thereafter available
pursuant to CPLR articles 70 or 78. The failure to exhaust available
administrative remedies, however, precludes judicial review (see
e.g. People ex rel. Webster v Travis, 277 AD2d 546 ).
Appellate Division authority reveals that the same allegations which the
claimant makes here, the failure to effect timely service of the Notice of
Violation pursuant to 9 NYCRR § 8005.3 or Executive Law § 259-i (3)
(c), has often been the subject of either a habeas corpus proceeding pursuant to
CPLR article 70 or a proceeding to review an administrative determination in the
Supreme Court pursuant to CPLR article 78 (see People ex rel. Thompson
v Warden of Rikers Is. Correctional Facility, 41 AD3d 292 ; Matter
of Bolden v Dennison, 28 AD3d 1234 ; People ex rel. Washington v
New York State Div. of Parole, 279 AD2d 379 ; People ex rel. McKay
v Sheriff of County of Rensselaer, 152 AD2d 786 ). Likewise, a claim
involving an improperly computed release date is properly the subject of review
pursuant to either CPLR articles 70 or 78 (see Matter of Davidson v
State of New York, ___AD3d ___, 2008 N.Y. Slip Op 06002 ; Matter of
Blake v Travis, 35 AD3d 925 , supra; People ex rel. Ternaku
v LeFevre, 58 AD2d 932 ; Matter of Edwards v Preiser, 51 AD2d
888 , supra; People ex rel. Batsford v State of New York, 91
AD2d 1112 , supra). "Where a relevant statutory provision calls
for judicial review by way of an Article 78 proceeding . . . in the Supreme
Court, most courts agree that the Court of Claims cannot have jurisdiction under
any circumstances" (Safety Group No. 194 v State of New York, 2001 WL
939747 [Ct Cl, 2001], 2001 NY Slip Op 40099[U], affd 298 AD2d 785
). Likewise, where the claim "would require review of an administrative
agency's determination . . . the Court of Claims has no subject matter
jurisdiction . . ." (City of New York v State of New York, 46 AD3d 1168,
1169 ; see generally Psaty v Duryea, 306 NY 413 ;
see also Feliz v State of New York, [UID # 2005-015-520, Claim No.
108493, Ct Cl, September 28, 2005 Collins, J.]; Ouziel v State of New
York, 174 Misc 2d 900 ).
Here, the claimant failed to pursue his administrative remedies pursuant to
Executive Law § 259-i (4) and 9 NYCRR part 8006 and was therefore precluded
from obtaining either habeas corpus relief or review of the administrative
determination in Supreme Court (see People ex rel. Webster v
Travis, supra). As this claim for money damages would require review
of an administrative agency's decision, this Court lacks jurisdiction to
entertain the claim. Had claimant exhausted his administrative remedies and
successfully pursued review of an adverse determination in the Supreme Court,
jurisdiction would properly lie in this Court (see e.g. Jackson
v State of New York, UID # 2008-038-597, Claim No. 114376, Motion No.
M-74354 [Ct Cl, May 28, 2008] DeBow, J.). He failed to do so however and this
Court therefore lacks subject matter jurisdiction to entertain the claim.
Even if the Court were to address the merits of the claim, dismissal would be
required. Parole officers who recommend the issuance of a parole revocation are
performing an investigatory rather than a prosecutorial function and are
entitled to qualified immunity (Best v State of New York
, 264 AD2d 404
). Assuming arguendo
that the parole officer lied as claimant
alleges regarding the date the warrant for his detention was
and the Notice of Violation was not
timely served in accordance with 9 NYCRR § 8005.3, these errors had no
effect on the sentence computation. Mr. DeSimone's testimony that the release
date would remain the same whether or not the sentencing judge pronounced that
the sentence on the new crime should run concurrently with the old is in
conformity with the applicable statute and case law (see
Penal Law §
70.40  [c]; Matter of Davidson v State of New York
___AD3d ___, 2008 N.Y. Slip Op 06002 ; Matter of Blake v Travis
AD3d 925 , supra
; People ex rel. Ternaku v LeFevre
, 58 AD2d
932 , supra
; Matter of Edwards v Preiser
51 AD2d 888
). Thus, the alleged negligence of the parole officer in
failing to timely serve the Notice of Violation, even if true, had no effect on
the sentence computation of claimant's sentence.