New York State Court of Claims

New York State Court of Claims

HARDING v. THE STATE OF NEW YORK, #2008-030-011, Claim No. 109786


After liability trial, claimant established that he was wrongfully detained in parole hold at the direction of the State defendant for the period from July 2, 2004 until July 21, 2004, and the defendant is therefore liable for any pecuniary loss suffered as a result of this wrongful detention. The division of parole’s failure to follow their own regulations in addressing claimant’s confinement by re-scheduling a preliminary hearing, and scheduling and holding a final hearing, does not fall under the shield of immunized discretionary conduct. Such failures were ministerial, and prevented consideration in the parole hearing process of whether alleged parole violations - largely undocumented - actually occurred, whether claimant was given proper notice, and whether issuance of parole warrant was authorized. Damages trial to follow

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:
Third-party defendant’s attorney:

Signature date:
May 13, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Arnold Joseph Hardy, also known as Joseph Harding, alleges in his claim that he was illegally confined pursuant to a parole hold at Rikers Island from March 31, 2004 through July 21, 2004. He asserts that he had been a parolee under State supervision from October 20, 2000 until October 20, 2003, when he was discharged from such supervision. Thereafter, parole officers took action ultimately resulting in the issuance of an arrest warrant, purportedly based upon false information. He alleges he was then wrongfully detained without a hearing, and without any lawful basis, for the period asserted above, suffering injury. This decision, rendered after a bifurcated trial of the matter, relates only to liability.

Claimant’s theories of State liability stem from two separate series of activities by the Division of Parole evidenced in the record. First he appears to be claiming that he never violated conditions of parole in September 2003, his parole supervision had expired by its terms on October 20, 2003, and that the issuance of a warrant based on such alleged violation was not authorized, primarily because Mr. Hardy had satisfied the conditions of his parole. The second series of activities involve the failure to provide a preliminary hearing and final hearing after his detention in 2004 based upon the allegedly flawed parole warrant, resulting in Mr. Hardy’s continued incarceration past the sentence provided for with respect to a new marijuana possession conviction.

The causes of action derived from these allegations appear to be constitutional tort, negligence and false imprisonment/wrongful confinement. In that connection, it is well settled that a claim does not need to refer to a specific tort theory in order to allow recovery under modern rules of pleading. See e.g. Della Pietra v State of New York, 125 AD2d 936, 937 (4th Dept 1986) affd 71 NY2d 792 (1988).

Mr. Hardy testified that he had been initially incarcerated after his conviction for attempted robbery and weapons possession in 1999 and was released to parole supervision on October 20, 2000. As Mr. Hardy recalled it, he was to remain under parole supervision for three years until October 20, 2003, reporting weekly to his parole officer. The original certificate of release to parole supervision form confirms the maximum expiration date for his parole supervision, and sets forth the usual requirements for complying with the assigned parole officer’s directives, reporting any address changes, and submitting to random drug testing. [See Exhibit A, page 6]. He testified that he had lived at 485 Fountain Avenue in Brooklyn, New York - listed on the form entitled “arrival/assignment report” as his mother’s address [Exhibit A, page 49] - “on and off” for the past twelve years. [T1-12].[1] Since he was released from incarceration in 2000 he had also resided at “301 Tompkins” with his brother and, until her death in 2005, his grandmother. [Id.]. Other addresses appearing throughout the parole file submitted in evidence include 244 Tompkins Avenue and 249 Tompkins Avenue. [See Exhibit A]. Mr. Hardy indicated at trial that he was currently employed driving a forklift truck, and had performed such work and general labor since his release into parole custody in 2000. The parole records submitted, however, show a far sketchier employment history, and extended periods of unemployment. [Exhibit A].

Early parole violations are well documented in claimant’s parole file, and include failures to report to his parole officer; failures to attend a drug treatment program; changing his approved residence without advising his parole officer, and urinalysis tests finding him positive for marijuana use. All these resulted in the issuance of a warrant on July 5, 2001. [Exhibit A, page 39]. He voluntarily surrendered on July 10, 2001, was served with a Notice of Violation of Parole dated July 11, 2001 and, after a final hearing, his maximum expiration date was recomputed to November 11, 2003. [Exhibit A, page 47]. Mr. Hardy’s signature appears on the Supplement to Conditions of Release Form, acknowledging his receipt on October 10, 2001, and suggesting his awareness that his maximum expiration date had been extended to November 11, 2003. [Id.].

Other conduct that might potentially have subjected him to the violation process is noted in the parole file, including a positive finding for THC in a urinalysis in February 2002 [Exhibit A, page 28], “sporadic” attendance at his drug program in February and March 2002 [Exhibit A, page 29], and continued unemployment throughout the documented periods.

At trial, claimant would not acknowledge initially any earlier violation, and insisted that his maximum expiration was never changed from October 20, 2003, despite his signature on the Supplement to Conditions of Release form acknowledging the change. [Exhibit A, page 47]. He insisted that he “graduated” from a required drug treatment program and had attended all drug counseling appointments. [T1-34]. He testified that he did not change his approved residence without notifying his parole officer, he did not recall failing to report to his parole officer on June 27, 2001, nor did he recall being “violated” based upon such failure to report. He claimed that the only violation he had was the “initial drug usage” violation. [T1-35]. Mr. Hardy denied failing to report for Access appointments after September 3, 2003 - a drug counseling program that he first denied knowing anything about - and then stated that he was not “in Access.” [T1-38].

Lawrence King had been Mr. Hardy’s last parole officer. On October 3, 2003 - when Mr. Hardy reported to the officer - he recalled the officer telling him that he “was being discharged

. . . [and] didn’t have to report anymore.” [T1-30]. Thereafter, he claimed to have received no other communications from Mr. King or the Division of Parole. Indeed, he insisted he was told he was discharged by Mr. King, and never advised of any extension beyond the original October 20, 2003 expiration date. In September 2003 he stated he was residing at “301 Tompkins.” [T1-31].

Mr. Hardy testified that he was never served with an arrest warrant dated October 29, 2003 - premised upon an alleged parole violation in September 2003 - that formed the basis of his subsequent detention in April 2004. [Exhibit A, page 1]. He would not agree that his maximum expiration date had been adjusted to February 5, 2004 based on parole violations. He said he never received Mr. King’s letter addressed to him at 301 Tompkins warning him about his alleged failures to abide by parole conditions. [Exhibit B]. He later conceded that he had seen the letter, but only after he “came home from jail . . .” sometime in September 2004, but not when he “came from East New York” as he had testified to during deposition testimony. [T1 - 37].

On March 31, 2004 Mr. Hardy was arrested on “weapons possession and marijuana possession” charges. [T1-14]. After staying overnight in the 79th precinct in Brooklyn, he was moved on April 1, 2004 to the “Brooklyn courthouse.” [Id.]. He testified that prior to being arraigned on the criminal charge, he was served with a parole warrant containing a notice of parole violation by a parole officer he was not familiar with, and transported to Rikers Island. [Exhibit A, page 4]. Mr. Hardy signed the notice of parole violation form, and requested a preliminary hearing. [Ibid.]. Although the notice indicates that a preliminary hearing would be held on April 12, 2004, it is not disputed that no preliminary hearing was held on that date, or on any other subsequent date.

“Twenty days after” his transfer to Rikers Island he entered a plea related to the marijuana charge, and the weapons charge was dismissed. [T1-20]. He was sentenced to “fifteen days” on the charge, he testified, amounting to time served. [T1-21]. Nonetheless, he was returned to Rikers Island as a “parole hold.” [T1-23]. No documentation of the charges and their disposition was submitted in evidence, but his testimony regarding the charges and their disposition was not rebutted by documentation or a person with knowledge in any event.

Mr. Hardy filed a petition for a writ of habeas corpus while in custody at Rikers Island “in May or June, 2004.” [T1-25] [see Exhibit 1]. At some point after filing the petition, a hearing was scheduled but the matter was adjourned at least twice. Sometime near the end of “early to mid August”, he was told by a correction officer to “pack up. . . [his] things and go home.” [T1-28]. No judicial determination or order based upon the petition for a writ of habeas corpus was submitted in evidence, nor was Mr. Hardy’s contention, that hearings on the petition were scheduled, rebutted in any fashion.

In terms of a time frame, the petition for a writ of habeas corpus was sworn to on May 25, 2004. [See Exhibit 1]. Claimant attested therein that he “was unable to make his parole appearance” on April 12, 2004, because he was scheduled to appear with regard to the pending criminal charges on the same date. [See id.]. In an additional form, ASU Report of Investigation, signed by Mr. Hardy on April 1, 2004 he acknowledged not having reported to his parole officer since September 2003, and noted that he was told that he did not have to report by his parole officer. [Exhibit A, page 5]. This same form also includes the preliminary hearing date of April 12, 2004 and a final hearing date of April 22, 2004. [Ibid.].

Although a document dated July 17, 2004 indicating that he had been “discharged from the further jurisdiction of the Board of Parole” was submitted, Mr. Hardy indicated he had never seen such a document until discovery proceedings in connection with this claim. [Exhibit A, page 66]. The evidence established that he was released from custody on July 21, 2004.

Lawrence King, was claimant’s parole officer in 2003, and had supervised Mr. Hardy since December 2001. As required by his job, Mr. King recalled keeping chronological records of his supervision of Mr. Hardy in the regular course of business, and identified records covering a period from December 2001 to July 2002 as his own. [Exhibit A, pages 19-33]. The records do not contain notations after July 2002 [Exhibit A, page 24] - except for the notations made with regard to the 2003 violation and the issuance of the parole warrant [Exhibit A, pages 9 - 14] - and Mr. King could not offer an explanation as to why there were no chronological records after that time period.

Mr. King explained generally that a parolee’s maximum expiration date may be extended when he violates conditions of parole and is found to be delinquent after a hearing. A person found in violation is served with charges of same, apprehended, and one or more hearings - a preliminary and a final hearing - are scheduled. A preliminary hearing may be waived. At the final hearing, a determination of guilt is made, and the maximum expiration date may be changed by way of disposition.

As a parole officer he said, however, he could not “unilaterally” change a parole expiration date, and that such change could be made only after a parole violation hearing. He denied advising Mr. Hardy that he no longer had to report to the parole office and stated also that just as he could not change a parole expiration date, he could not simply inform a parolee that he could stop reporting prior to a given maximum expiration date.

Mr. King identified the letter he wrote to Mr. Hardy dated October 6, 2003, addressed to claimant at 301 Tompkins Avenue, indicating that Mr. Hardy had not reported to parole since August 27, 2003. [Exhibit B]. He described the contents therein as a draft of potential charges to be brought against Mr. Hardy. The letter also indicates that Mr. Hardy failed to report on September 10, 2003, and that on September 17, 2003 Mr. King contacted claimant’s grandmother and informed her of claimant’s maximum expiration date of February 5, 2004. The letter further warns claimant that if he did not report by October 15, 2003 a violation of parole proceeding would be commenced. Mr. King was unaware of any other notice to Mr. Hardy regarding the draft charges asserted in this letter, nor was he aware of any other attempts to notify Mr. Hardy that he was allegedly in violation of parole conditions.

Mr. King could not “say exactly” when claimant’s maximum expiration date had changed, but recalled that he had utilized division of parole computer records when he drafted this letter asserting violations of parole conditions, and based his indication that claimant’s parole had a maximum expiration date of February 5, 2004 upon such records. [T2- 15]. Additionally, although he could not say off-hand when a hearing took place, he knew that there had been a parole violation hearing sometime prior to October 6, 2003, premised upon one or more earlier violations, after which claimant’s maximum expiration date was extended. He stated that there were records concerning claimant’s prior supervision under a different parole officer that made reference to prior violations, including the one occurring on June 20, 2001.

More generally, Mr. King said that if claimant were taken into custody, and given a notice of violation, claimant would either request or decline a preliminary hearing, at that time. Mr. King would be told if a preliminary hearing was requested as his parole officer. Additionally, the request for a preliminary hearing - and the parolee’s signed response - should appear on the notice of violation form. Mr. King acknowledged that prior to the commencement of this lawsuit, he was unaware that Mr. Hardy had been arrested on March 31, 2004 and then detained pursuant to a parole warrant, or that any request for a preliminary hearing had been made.

Once a parole warrant is issued, Mr. King said, it is in effect “until the person is captured.” [T2-20]. Mr. King said that when a person violates parole, and is subsequently “revoked and restored to supervision,” officers may be given supplemental conditions of release, outlining whatever new conditions may have been imposed. [T2-26]. As noted, in claimant’s file a supplemental form references the delinquency date of June 20, 2001, and contains a modification to the maximum expiration date to November 11, 2003. [Exhibit A, page 47]. Mr. King agreed that when a parolee’s maximum expiration date is extended, there should be a Supplement to Conditions of Release Form reflecting any changes, and could not offer any explanation as to why such a form was not in the file produced in discovery to reflect an extension of Mr. Hardy’s maximum expiration date to February 5, 2004.

In addition to sending Mr. Hardy the October 6, 2003 letter [Exhibit B], Mr. King said that he made a home visit to the claimant’s residence, where he was advised that Mr. Hardy was no longer there. No alternate address was provided, nor had Mr. Hardy provided an alternate address prior to Mr. King sending the October 6, 2003 letter. Mr. King could not recall who accompanied him from his department when he then made a home visit, nor could he explain why there were no entries concerning such visit in the chronological records submitted, despite the normal process of noting such matters in the parolee’s records. [Exhibit A, pages 19-33]. He did explain, however, that the entries made in the paperwork surrounding issuance of the parole warrant, wherein he notes the visit, his meeting with the grandmother, and her indication that Mr. Hardy “did not stay at the approved residence on a regular basis,” [see Exhibit A, page 11], could be considered an entry in the parole file. It was his recollection that the parole warrant was issued after a case conference with his supervisor, Senior Parole Officer Preston.

Alan Eugene Preston, Mr. King’s supervisor, testified that he was “part of the delinquency team trying to enforce the parole warrant” at Mr. Hardy’s residence, but had “no independent recollection of who comprised the team,” [T2-55] although as the Case Officer Mr. King was likely there. Mr. Preston did not generally speak with family members when at a residence, nor did he recall anyone from the family being there.

He confirmed that while generally extension of a maximum expiration date would require completion of a Supplement to Conditions of Release Form, notification of such extension could also come from “another part of the Division of Parole, most likely our Quality and Assurance Unit, and they will send down a corrected release sheet.” [T2-49]. When asked to review the parole file [Exhibit A] Mr. Preston agreed that neither form was in the file reflecting a change in the maximum expiration date to February 5, 2004.

Mr. Preston had no independent recollection of what Mr. Hardy’s maximum expiration date was, nor did he specifically recall reviewing the “violation of release report” prepared by Mr. King before signing the parole warrant, although he generally reviewed same on the same date. [T2-51][Exhibit A, page 9].

With regard to the notice of violation form served on Mr. Hardy in 2004, Mr. Preston agreed that although a preliminary hearing was requested, none was provided. He confirmed that granting such preliminary hearing is not discretionary, except in the one instance where the parolee is “. . . convicted of a misdemeanor conviction and a preliminary hearing was scheduled, it would be cancelled.” [T2-53-54]. No notice of such cancellation is given to the parolee. A final hearing has to be scheduled and completed within ninety (90) days of service of the parole warrant, he said.

Documentation of division of parole actions while claimant was in the custody of the City of New York from March 31, 2004 to July 21, 2004 is sparse. Other than Mr. Hardy’s initial request for a preliminary hearing, scheduled to occur on April 12, 2004 [Exhibit A, page 4], and a notation that same was “scheduled with Albany” [Exhibit A, page 5]; there is a form entitled “Supplementary Parole Revocation Specialist Recommendation” signed on June 23, 2004, noting the request for a preliminary hearing and that “this hearing was not granted,” and that “following a conference with my supervisor it was determined that a cancellation of delinquency should be submitted.” [Exhibit A, page 3]. In a different handwriting on the same page, it is noted: “No hearing within 90 days.”

Another document signed by the same parole revocation specialist on June 23, 2004, and then also signed by a supervisor on July 2, 2004, entitled “Supplementary Parole Revocation Specialist Recommendation,” states the following in the “reason for recommendation” to cancel delinquency:
“On January 15, 2004 this writer received information stating that the above P was in custody. following an investigation it was determined that P was not in custody but his warrant number had been entered in error. Contact with all necessary supervisor was done and a call to Albany was made requesting that P be placed once again into the wanted system. On June 18, 2004 I was informed that P was in custody and the folder was delivered to me. This subject was taken into custody via a new arrest for CPW 3....” [Exhibit A, page 2].

The recommendation was that the delinquency be cancelled, and boxes saying “close by maximum expiration” and “untimely hearing or non-curable service defect” are checked on the form. [Id.]. Under the “board action” portion of the form, three commissioners signed off on the cancellation of the delinquency, and checked the same boxes on July 15, July 16 and July 17, 2004, respectively. [Id.]. There are three time-dated stamps on this form. [Id.]. First there is one indicating receipt by the commissioners in the Executive Department of the Division of Parole on July 13, 2004. [Id.]. Then there are two stamps dated July 21, 2004 indicating that the form was “received” and “entered” in the violator’s unit. [Id.].

As noted, claimant was released on July 21, 2004.
As an initial matter, given the negligence and false imprisonment/wrongful confinement causes of action apparently asserted herein, potentially providing at least these alternative damage remedies, no constitutional tort remedy need be implied. Brown v State of New York, 89 NY2d 172 (1996); see also Waxter v State of New York, 33 AD3d 1180, 1191-1182 (3d Dept 2006).[2]

With respect to any other cause of action derived from the facts alleged, resolution is problematic, because the alleged conduct by the state officers falls along the spectrum of what constitutes governmental, quasi-judicial activity protected by absolute immunity, and ministerial acts that may subject the state to liability.

To establish a prima facie case of false imprisonment/wrongful confinement, 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 . . .” Broughton v State of New York, 37 NY2d 451, 456 (1975). Notably, an arrest made pursuant to a warrant that is valid on its face is privileged. see Boose v City of Rochester, 71 AD2d 59, 65 (4th Dept 1979). Detention stemming from the facially sufficient parole warrant could be viewed as privileged initially, with the remaining conduct thereafter, however, inviting consideration of more elastic causes of action.

When acting in a governmental, discretionary role, neither the state or its political subdivisions may be held liable for injuries arising from its acts of commission or omission, even if they are performed negligently. In that connection, parole release and revocation decisions are governmental, discretionary acts that are quasi-judicial, and render the State absolutely immune from tort actions arising from such decisions. Tarter v State of New York, 68 NY2d 511 (1986); Semkus v State of New York, 272 AD2d 74, 75 (1st Dept 2000), lv denied 95 NY2d 761 (2000); Lublin v State of New York, 135 Misc 2d 419, affd 135 AD2d 1155 (1s Dept 1987), lv denied 71 NY2d 802 (1988). “. . . [T]he rule to be derived from the cases is that discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result.” Tango by Tango v Tulevech, 61 NY2d 34, 41 (1983).

Not every official act involving discretion will be considered a judicial function conferring absolute immunity however. If a discretionary governmental act is quasi-judicial in nature, absolute immunity obtains, but if not, there is still qualified immunity shielding the state from liability except where there is bad faith or action is taken without reasonable basis. “Nor does the qualified immunity applicable to the prosecutorial function apply where officials act in an investigatory manner and in doing so step outside the scope of their authority . . .” (citation omitted). Della Pietra v State of New York, 125 AD2d 936, 938 (4th Dept 1986) affd 71 NY2d 792 (1988).[3]

Qualified immunity would apply to the actions of the parole officers here with regard to their issuance of a parole warrant in October 2003 [see Best v State of New York, 264 AD2d 404 (2d Dept 1999)] - versus a parole board’s finding after a hearing that parole should be revoked, for example - and also with respect to the parole warrant’s execution in 2004. The issuance of a parole warrant in 2003, and its initial execution in 2004, clearly involve the exercise of discretion and are privileged. This is said despite the arguably negligent failures to ascertain claimant’s location in 2003, to serve him at that time, or to adequately document his reported failures to abide by parole conditions. Mr. King’s recollections were sketchy, and his record keeping was abysmal, but what he did recall from his supervision of Mr. Hardy some five (5) years earlier, and what he credibly represented at trial - borne out by a review of the parole file presented containing no less than three (3) addresses for claimant, two (2) different names, failures to abide by parole conditions involving drug use, and employment, on more than one documented occasion - was that this claimant was not as easily found as claimant would maintain. Additionally, the documentation shows that although claimant could have been “violated” on other occasions not discussed during the trial of this claim, the parole officer apparently exercised discretion and chose not to do so.

It is axiomatic that it is claimant’s burden to establish his claim by a preponderance of the credible evidence. It is his burden to establish that non-discretionary actions by the agents of the Division of Parole constituted negligence sufficient to sustain a finding of liability. Defendant argues that the claimant has not satisfied his burden of showing that any error committed by the Division of Parole was the result of ministerial neglect. The court disagrees.

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has established an adequate basis for the state's liability by a preponderance of the credible evidence.

The record credibly establishes that as part of a disposition of a 2001 parole violation Mr. Hardy’s maximum expiration date was at least extended to November 11, 2003, from October 20, 2003, and likely to February 5, 2004 despite Mr. King’s lack of documentation. Whatever Mr. Hardy’s protestations at trial as to his knowledge of an extension of his maximum expiration date to at least November 11, 2003 - made after the required notice of violation and hearing to dispose of same - are simply not credited given the presence of his signature on the form, and the less than credible statements he made with regard to the underlying activities that resulted in the earlier parole violation evincing a somewhat selective memory.

Thereafter, however, in a department wherein record keeping and reporting is part of the job [see e.g. 9 NYCRR §8000.5], Mr. Hardy’s alleged violations in September 2003 were apparently recorded after the fact. When claimant was violating conditions of parole, his parole officer apparently made no contemporaneous notes, and could only very generally testify based upon present knowledge - understandably, given any number of parolees Mr. King may have been supervising at the time - as to exactly what the alleged violations were. While Mr. King could not explain why he had no chronological notes after July 2002, and could only generally say that he derived a new maximum expiration date of February 5, 2004 from a review of computer records, these errors are merely negligent, and do not appear to be based on bad faith or malice sufficient to pierce the qualified immunity which shields them. [See Best v State of New York, supra]. Indeed, the lack of chronological notes as early as after July 2002 - a time period not altogether relevant to the issues of September 2003 - would appear to support the idea that Mr. King simply did not keep good notes.

However sloppy Mr. King’s record keeping was, what is significant is that whether the alleged violations of September 2003 occurred and whether claimant was given proper notice of same, and whether issuance of a parole warrant was authorized, would all have been addressed in the parole hearing process had a preliminary hearing been held within fifteen (15) days [see 9 NYCRR §8005.6] or, if the preliminary hearing were waived, if a final hearing were timely held within ninety (90) days of his being held in custody pursuant to the parole hold, that is by July 1, 2004. [See 9 NYCRR §8005.17]. At a preliminary hearing there would have been consideration of whether there was probable cause to assert that claimant had violated conditions of parole in 2003 that formed the basis of the parole warrant executed in 2004. [See 9 NYCRR §8005.7].

Mr. Preston testified that he knew of “one exception” allowing cancellation of a preliminary hearing without notice. He said that if the parolee was arrested on a criminal charge the preliminary hearing could be cancelled without notice. The court has perused the statute, regulations and case law for this precept, and has not found authority for this precise exception. [See generally Executive law §259-i, 9 NYCRR §8000.1 et seq]. Indeed, the closest authority found seems to suggest that unless specifically waived, or circumstances not applicable here are present, a preliminary hearing should be held.[4] Notably, even with this exception, when Mr. Hardy was served with the notice of violation on April 1, 2004 and requested a preliminary hearing he was already in the custody of the city on an unrelated criminal charge making this exception somewhat irrelevant.

Thereafter, it appears that claimant was essentially lost in the system, until the final discharge from parole pursuant to the certification dated July 17, 2004, [Exhibit A, page 66], and his release on July 21, 2004.

Citing to cases involving misidentification of an individual held pursuant to an arrest warrant, defendant argues that the standards set forth therein should apply. Pinkney v State of New York, UID # 2005-014-005, Claim No. 97924 (Nadel, J., May 13, 2005); see also Ostrowski v State of New York, 186 Misc 2d 890 (Ct Cl 2001). In one case, the trial court said that “the guiding principle is whether law enforcement personnel, once apprised of the possibility that the wrong person was in custody, acted reasonably and diligently, to ascertain the actual identity of the person in custody.” Pinkney v State of New York, supra. Thus the court there found that the efforts made to properly identify the person held in custody vitiated the claim of negligence.[5]

Here, between the failure to afford claimant a preliminary hearing or a final hearing and his eventual release, however, is presented the question of whether the department acted expeditiously and diligently to correct its error, once apprised of claimant’s retention in custody on arguably nebulous grounds, and what aspects of parole action was discretionary and immunized, and what portion ministerial.

Based on this record, when claimant was served with the violation while in custody on April 1, 2004, he immediately said (apparently accurately) that he was no longer subject to parole supervision, but simultaneously indicated that he had not been reporting to his parole officer since September 2003. [See Exhibit A, page 5]. Unlike the claimant in Pinkney v State of New York, supra, Mr. Hardy was not represented by counsel. While claimant testified that he had no more contact with the Division of Parole after noting his request for a preliminary hearing on April 1, 2004, there is no evidence that prior to filing the petition for a writ of habeas corpus in or about “May or June, 2004,” as he described it, that he did anything to further alert the department. The parole records themselves do not indicate clearly when the department actually began the process of assessing whether he should or should not be detained and are somewhat ambiguous as to a rationale for his release. [See Exhibit A, pages 2, 3, 4, 5, 66]. Had the matter been addressed by the hearing process provided under the regulations, however, claimant might have been released earlier. Because the State did not follow its own regulations and put itself in the position thereby to actually exercise its quasi-judicial authority, its conduct is not immunized. Cf. Semkus v State of New York, supra; Lublin v State of New York, supra.

The record supports a finding that the initial preliminary hearing could not take place because of claimant’s appearance elsewhere with regard to the pending criminal charges. [See Exhibit 1]. Additionally, in the parole record provided there are notations suggesting that an official in the division of parole determined that the preliminary hearing would not be held, i.e.; suggesting that discretion was exercised,[6] but the only mention of the required ninety (90) day hearing is a notation to the effect that it was not held, in the recommendations for cancellation of the asserted delinquency made sometime after claimant began the process of petitioning for a writ of habeas corpus. [See Exhibit A, page 3]. Thus while the evidence marginally supports a rationale for the preliminary hearing not to have been held, and other evidence suggests that the limited burden of establishing probable cause required in a preliminary hearing could have been met, the failure to hold the mandatory final hearing is not justified.

If defendant had been following its own agency’s regulations, a mandated final hearing would have been held within ninety (90) days of Mr. Hardy’s confinement. [See 9 NYCRR §8005.17]. This failure to follow the agency’s own regulations, subjects the State to a finding of liability for the claimant’s illegal confinement from the period after the required ninety (90) day final hearing should have been held - or July 2, 2004 - until his release on July 21, 2004.

While it is true that the commissioners ultimately “signed off” on the recommended action to cancel the delinquency, the division of parole’s initial failures to follow their own regulations in addressing claimant’s confinement pursuant to a parole hold by re-scheduling a preliminary hearing, and more significantly scheduling and holding a final hearing, does not fall under the shield of immunized discretionary conduct.

Accordingly, claimant has met his burden of establishing that he was wrongfully detained in custody at the direction of the defendant for the period from July 2, 2004 until July 21, 2004, and the defendant is therefore liable to the claimant for any loss suffered as a result of this wrongful detention. All motions not otherwise addressed herein are hereby denied.

Let interlocutory judgment be entered herein. Trial on the issue of damages shall be held as soon as is practicable.

May 13, 2008
White Plains, New York

Judge of the Court of Claims

[1].References to “T1” and “T2” are to the transcript of the trial held on September 12, 2007 and October 29, 2007, respectively.
[2].A claim alleging denial of due process, if based upon a violation of the Federal Constitution, should be pursued pursuant to 42 USC §1983. No cause of action against the State of New York exists for alleged violations of an individual’s rights under the United States Constitution [See Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989)], in that the State is not a “person” amenable to suit pursuant to 42 USC §1983. With respect to alleged violation of the New York State Constitution, the Court must consider certain factors, not present here, to determine if a cause of action for a State constitutional tort is properly brought in the Court of Claims. See generally Brown v State of New York, 89 NY2d 172 (1996). In New York, constitutional provisions are presumptively self-executing. Brown v State of New York, supra at 186. Violation of every self-executing provision will not always support a claim for damages however. Only where it is necessary to ensure the effectiveness and promote the purposes of the allegedly violated provision will a constitutional tort remedy be implied. Brown v State of New York, supra at 191; Lyles v State of New York, 2 AD3d 694 (2d Dept 2003) affd 3 NY3d 396 (2004).
[3].Claimant tried to buy out his business partner in a successful theater business, but negotiations went sour, and the partner went to the New York State Organized Crime Task Force, and asserted that the business was engaged in organized crime. The Task Force obtained a search warrant and seized a large number of documents, including many involving the day-to-day running of the business, later found invalid. No further criminal prosecution ever took place but because of the bad publicity resulting from the illegal search and seizure, business was caused to plummet. The court majority rejected the state’s immunity defense, saying that “. . . Tango v. Tulevech (61 NY2d 34) does not apply to the facts of this case, since Task Force officials were not exercising their discretion in conducting an unlawful search. Nor does the qualified immunity applicable to the prosecutorial function apply where officials act in an investigatory manner and in doing so step outside the scope of their authority (Teddy's Drive In v. Cohen , 47 NY2d 79, 82)." Della Pietra v State of New York, supra, at 938.
[4].See Executive Law §259-i(3)(c)(i), wherein it is stated in pertinent part: ‘within fifteen days after the warrant for retaking and temporary detention has been executed, unless the releasee has been convicted of a new crime committed while under . . . parole . . . the board shall afford the . . . parolee . . . a preliminary revocation hearing before a hearing officer designated by the board of parole.” As noted by claimant’s counsel, assuming maximum expiration dates of October 20, 2003, November 11, 2003 or even February 5, 2004, claimant’s arrest on March 31, 2004 would not have occurred during his parole period.
[5].This was partly because based on the claimant’s protestations in Pinkney v State of New York, supra, that he was not the subject of the parole warrant, he was fingerprinted five times and conferences were held with department supervisors to determine a course of action. The court also identified his representation by counsel at two hearings during which the identity protests were raised, as well as the presence of family members who might have accurately identified him, as additional factors suggesting that the state’s non-discretionary acts were not sufficient to impose liability.
[6].The exact language used by the parole revocation specialist is “. . . This hearing was not granted.” [Exhibit A, page 3].