New York State Court of Claims

New York State Court of Claims

O’NEAL v. THE STATE OF NEW YORK, #2008-015-506, Claim No. 112354


Synopsis


Court of Claims lacked subject matter jurisdiction to review the determination of the Board of Parole.

Case Information

UID:
2008-015-506
Claimant(s):
DAHMONI O'NEAL
Claimant short name:
O'NEAL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112354
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Dahmoni O'neal, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael Rizzo, 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

This claim proceeded to trial on May 13, 2008. Claimant, proceeding pro se, alleges that due to the negligence or improper conduct of his parole officer he was improperly sentenced to a term of imprisonment which ran consecutively rather than concurrently with the time remaining on his prior interrupted sentence. The claim alleges the following in this regard:
"I was arrested on August 13, 200[4]. At the time I had remaining seven (7) months and three (3) days of supervised parole from a prior arrest. I was convicted on the second charge and scheduled to be released on April 13, 2005.

Due to the negligence and improper conduct of my assigned parole officer Parrish of Queens 2 at Jamaica, Queens, I was caused to spend an additional four (4) months and eighteen (18) days in jail. Instead of being released on my original max date of April 13, 2005, I was released August 31, 2005.

My parole officer violated Executive Law and failed to give criminal court timely information regarding my outstanding parole as he was required to do. As a result the criminal court in sentencing me on other charges did not make a ruling regarding my outstanding parole. Instead of my serving my outstanding parole time concurrently with the jail sentence of my second charge, the parole time was added on after the second jail sentence. This was a violation of Penal Law § 70.25."
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 [3] [c] [i]). The second applies when a person is arrested for a new crime which culminates in a dismissal (Penal Law § 70.40 [3] [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 [3] [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 date.

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 [1976], People ex rel. Batsford v State of New York Div. of Parole, 91 AD2d 1112 [1983], lv denied 58 NY2d 611 [1983], and Matter of Blake v Travis, 35 AD3d 925 [2006].

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 [1987], lv denied 71 NY2d 802 [1988]). 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 [2000]). 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 [2007]; Matter of Bolden v Dennison, 28 AD3d 1234 [2006]; People ex rel. Washington v New York State Div. of Parole, 279 AD2d 379 [2001]; People ex rel. McKay v Sheriff of County of Rensselaer, 152 AD2d 786 [1989]). 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 [2008]; Matter of Blake v Travis, 35 AD3d 925 [2006], supra; People ex rel. Ternaku v LeFevre, 58 AD2d 932 [1977]; Matter of Edwards v Preiser, 51 AD2d 888 [1976], supra; People ex rel. Batsford v State of New York, 91 AD2d 1112 [1983], 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 [2002]). 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 [2007]; see generally Psaty v Duryea, 306 NY 413 [1954]; 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 [1997]).

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 [1999]). Assuming arguendo that the parole officer lied as claimant alleges regarding the date the warrant for his detention was issued[1] 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 [3] [c]; Matter of Davidson v State of New York, supra ___AD3d ___, 2008 N.Y. Slip Op 06002 [2008]; Matter of Blake v Travis, 35 AD3d 925 [2006], supra; People ex rel. Ternaku v LeFevre, 58 AD2d 932 [1977], supra; Matter of Edwards v Preiser, 51 AD2d 888 [1976], supra). 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.
Despite the claimant's commendable efforts in the prosecution of this claim, it must be

dismissed as a matter of law.

Based on the foregoing, the claim is dismissed.

Let judgment be entered accordingly.

July 28, 2008
Saratoga Springs, New York

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




[1]. Notably the claim fails to allege that the parole officer acted in bad faith or acted without a reasonable basis so as to defeat the qualified privilege (see Arteaga v State of New York, 72 NY2d 212, 216 [1988]).