New York State Court of Claims

New York State Court of Claims

SANTOS v. THE STATE OF NEW YORK, #2008-038-533, Claim No. 115252, Motion No. M-75703


Defendant’s motion for summary judgment in claim for wrongful confinement due to DOCS’s unauthorized imposition of post-release supervision denied for failure of proof on defense of privilege. Motion granted with respect to federal constitutional claim, as such claims must be pursued in federal court under 42 USC § 1983, and are outside the subject matter jurisdiction of the Court of Claims.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim seeks damages for injuries allegedly sustained as a result of defendant’s unauthorized addition of a period of post-release supervision (PRS) to claimant’s sentence of incarceration. Defendant moves pursuant to CPLR 3212 for summary judgment dismissing the claim. Claimant opposes the motion. The facts relating to claimant’s conviction, his sentencing, the imposition of a period of PRS, and his re-incarceration upon a violation of that PRS are concededly undisputed (see Krenrich Affirmation, ¶ 3). On January 7, 2000, claimant entered a plea of guilty to a count of rape in the first degree, and was sentenced as a first time felony offender to a determinate term of seven years of incarceration (see Verified Claim, ¶¶ 6, 7). Although claimant was advised by the sentencing court that he would be subject to a five-year period of PRS (see Verified Claim, Exhibit B, People ex rel. Santos v Warden, 17 Misc 3d 1120[A] **1, fn 1 [Sup Ct, Bronx County 2007]), the judgment of conviction did not include a period of PRS. Upon claimant’s release at the completion of his sentence on December 6, 2005, a five-year period of PRS was imposed upon claimant by the Department of Correctional Services (DOCS) (see Krenrich Affirmation, ¶ 3[c]).[1] On or about July 9, 2006, claimant was violated on his PRS. He was re-incarcerated and ordered to be held until December 15, 2010, the maximum expiration of his PRS. On August 30, 2007, claimant was resentenced by Supreme Court, Bronx County to a determinate term of seven years of incarceration and five years of PRS (see Verified Claim, Exhibit B, People ex rel. Santos v Warden, supra). Claimant was released pursuant to a writ of habeas corpus dated October 23, 2007 (see id. ), which was based upon decisional law holding that a period of PRS may be imposed upon claimant only by the sentencing judge, that DOCS illegally imposed the period of PRS, and that the resentencing by Supreme Court did not retroactively correct the illegality of DOCS’ action (see Verified Claim, Exhibit B, People ex rel. Santos v Warden, supra at **4 - **5). The instant claim asserts a cause of action alleging violations of state statutory law (Verified Claim, ¶ 24) and a second cause of action sounding in federal constitutional violations (Verified Claim, ¶ 27). The claim seeks compensatory damages for injuries sustained during the period of approximately seven months during which claimant was in the community under PRS, as well as a period of nearly sixteen months during which he was re-incarcerated due to the violation of the PRS (see Verified Claim, ¶¶ 13, 20-22).

This claim is one of many that has arisen from DOCS’ administrative imposition of PRS that is authorized by the provisions of “Jenna’s Law” (L 1998, ch 1).[2] Jenna’s Law, among other things, mandates that all violent felony offenders be subject to a period of PRS after completion of a determinate sentence of incarceration in the custody of DOCS. In many cases, including this one, sentencing courts did not expressly impose a period of PRS when sentencing individuals upon convictions that were subject to periods of PRS. After years of litigation in untold numbers of cases arising from the omissions of sentencing courts to pronounce PRS as part of sentences, the Court of Appeals last year held that, as a matter of State statutory law, DOCS lacked the authority to impose a period of PRS because such authority is reposed exclusively in the sentencing judge (see Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 362 [2008]; see also People v Sparber, 10 NY3d 457, 469-470 [2008] [holding that sentencing court must pronounce PRS as part of the sentence]).

The claim is characterized by the parties as asserting a cause of action for false or illegal imprisonment (see Krenrich Affirmation, Point II; Berger Affirmation, ¶ 12). Defendant moves to dismiss the unlawful confinement cause of action on the ground that claimant’s confinement was privileged. Defendant argues that it is entitled to judgment as a matter of law because claimant cannot satisfy all of the elements of a cause of action for unlawful confinement, which are that: “(1) the defendant intended to confine [claimant], (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], cert denied sub nom Schanbarger v Kellogg, 423 US 929 [1975]; see Gittens v State of New York, 132 Misc 2d 399, 402 and 407 [wrongful confinement is a “species” of false imprisonment]).[3] Specifically, defendant contends that DOCS’ action in discharging claimant to a five-year period of PRS was privileged because DOCS’ conduct in doing so “was under color of law” (Gittens v State of New York, supra at 402), and therefore, claimant cannot prevail on the fourth element of his cause of action. The gravamen of defendant’s argument is that because claimant was required by Jenna’s Law to be subject to a period of PRS, DOCS was merely following the law by imposing a period of PRS when the sentencing court had not done so, and its imposition of a period of PRS was therefore privileged. Defendant’s motion cannot be granted, for the reasons that follow.

First and foremost, defendant has noticed and argued its motion as one for summary judgment pursuant to CPLR 3212, yet the motion is unsupported by an affidavit by a person having knowledge of the facts, as required by CPLR 3212(b). Manifestly, counsel’s affirmation – to the extent that it asserts facts relevant to the legal theory posited in the motion – is insufficient to support the motion (see Salas v Town of Lake Luzerne, 265 AD2d 770, 770-771 [3d Dept 1999]). To the extent that a verified pleading may be used as an affidavit setting forth the proof in support of a motion (see CPLR 105 [u]), the verified answer in this claim is insufficient because while privilege and immunity are apparently asserted together as defenses (see Verified Answer, ¶ Seventh), the verified answer contains no facts in support thereof. Moreover, even if the verified answer provided sufficient facts in support of the motion, counsel has not submitted the affidavit of a person with personal knowledge of the relevant facts “to attest that ... the attacked claim ... has no merit, a pro forma recitation exacted of all summary judgment movants under CPLR 3212(b)” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:15, at 26).

Secondly, even if the failure to submit supporting proof in admissible form may be overlooked, the Court is of the view that defendant has misapprehended the question of privilege in this motion. In arguing the motion, counsel has blended the related, but distinct, theories of immunity and privilege (see Krenrich Affirmation, ¶¶ 12 and 13). Immunity – whether absolute or qualified – insulates the defendant from liability, and derives from the nature of the governmental actor’s responsibility and the public policies to be protected by affording an actor immunity (see Arteaga v State of New York, 72 NY2d 212, 216 [1988]; Tarter v State of New York, 68 NY2d 511, 518-519 [1986]). In contrast, “privilege” is a defense in the nature of justification, i.e., that the actor’s decision, though later proven to be wrong, was nevertheless reasonable and justified when made (see Restatement [Second] of Torts: Immunities § 895D, Comment e). In the instant motion, defendant’s invocation of the defense of privilege – as opposed to claiming immunity – requires defendant to demonstrate that DOCS was acting in an objectively reasonable manner when it administratively imposed a period of PRS or determined that a period of PRS was automatically included in a determinate sentence (see Arteaga v State of New York, supra at 226 [Simons, J., dissenting] [the “defense of privilege shield[s] the officer from liability for objectively reasonable but mistaken exercises of judgment”]; cf. Pierson v Ray, 386 US 547, 555 [1967] [officers should not be held liable for “acting under a statute that [was] reasonably believed to be valid but that was later held unconstitutional”]).

In asserting the defense of privilege and arguing that defendant was acting under color of law, defendant mischaracterizes the issue to be resolved. The issue is not whether DOCS was acting lawfully because Jenna’s Law mandated that claimant serve a period of PRS, as the Court of Appeals has already decided that DOCS did not have the authority to administratively impose a period of PRS (see Matter of Garner, supra). Rather, the existence of privilege turns on whether DOCS was acting in an objectively reasonable manner when it determined that it could lawfully add the PRS term that was required by statute, or that the PRS term was automatically included in claimant’s sentence. In support of its motion, defendant cites no express statutory or regulatory authority allowing DOCS to impose PRS (compare Gittens, supra, at 402 [DOCS’ determination “was privileged to the extent that it was under color of law or regulation, specifically in accordance with regulations [7 NYCRR 251-1.6 (a)]” [emphasis supplied]), nor does it expressly claim any inherent power to step in and fill the gap that was created between the PRS mandate of Jenna’s Law and the sentencing court’s omission to pronounce the period of PRS and include it in claimant’s sentence and commitment document. Thus, to establish that it was acting under color of law, this Court is of the view that defendant must demonstrate that DOCS was acting in an objectively reasonable manner when it concluded that it could administratively add the period of PRS to claimant’s sentence or that the PRS term was automatically included therein.[4] On this motion for summary judgment as a matter of law, defendant has not made such a demonstration, and thus, the motion to dismiss the claim on the ground of privilege cannot be granted.

Defendant’s contention that the claim must be dismissed because claimant has no private right of action under Penal Law § 70.45 (see Krenrich Affirmation, Point III) is based upon a misapprehension of the legal foundation of the claim. Defendant correctly recognizes that the claim seeks damages for the tort of unlawful confinement which arose from defendant’s violations of statutory law that require the courts to impose sentence and do not authorize DOCS to do so (see Krenrich Affirmation, Point II). Simply stated, the claim is not capable of being construed as asserting a private right of action under Jenna’s Law. Further, the Court is unpersuaded by defendant’s contention that resentencing is claimant’s exclusive remedy for the unauthorized imposition of PRS by DOCS (see Krenrich Affirmation, ¶¶ 19-21). While resentencing may be the sole procedural remedy available to correct the sentencing court’s omission, nothing in People v Sparber (supra) or Penal Law § 70.45 expressly suggests that a tort claim for damages in the nature of unlawful confinement is unavailable to claimant.

To the extent that defendant seeks partial summary judgment dismissing claimant’s second cause of action asserting federal constitutional violations (see Krenrich Affirmation, Point I), that part of defendant’s motion must be granted. It is well established that the Court of Claims lacks subject matter jurisdiction over claims seeking damages for alleged violations of claimant’s rights under the United States Constitution, because such claims must be brought in federal court pursuant to 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172, 185 [1996]; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Ferrer v State of New York, 172 Misc 2d 1, 5 [Ct Cl 1996]).

Accordingly, it is

ORDERED, that defendant’s Motion No. M-75703 is GRANTED IN PART, and the “Second Claim for Relief” is DISMISSED, and it is further

ORDERED, that defendant’s motion is DENIED in all other respects, without prejudice.

March 30, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Verified Claim, with Exhibits A-C, filed May 15, 2008;

(2) Verified Answer, filed June 24, 2008;

(3) Notice of Motion, dated October 20, 2008;

(4) Affirmation of Michael T. Krenrich, AAG, dated October 20, 2008, with Exhibits A-D;

(5) Affirmation in Opposition of Joel Berger, Esq., dated October 31, 2008.

[1]. Defendant contends that because claimant had been sentenced upon a class B felony sex offense, he was exposed to a period of PRS of not less than five years nor more than twenty years pursuant to Penal Law § 70.45 (2-a)(c) (see Krenrich Affirmation, fn 1). Subdivision 2-a of section 70.45 was not enacted until 2007 (L 2007, ch 7, § 33) and applied only to crimes committed after April 13, 2007 (see L 2007, ch 7, § 52[a]). As claimant’s crime was committed long before this date, it would appear that – contrary to defendant’s contention – that Supreme Court, Bronx County correctly stated that claimant was subject to a discretionary period of PRS of not less than two and a half years and not more than five years. Thus, defendant’s contention that DOCS imposed on claimant the minimum period of PRS is incorrect. Because this motion will be denied for a failure of proof as discussed infra, the period of PRS that was authorized by Penal Law § 70.45 for claimant’s crime of conviction need not be addressed.
[2]. The instant claim is one of more than twenty claims seeking compensation for unlawful PRS that have been assigned to date to the undersigned alone. The arguments presented by defendant in the instant motion are identical to numerous motions by defendant pursuant to CPLR 3212 that are pending before the undersigned in other PRS claims.
[3]. To the extent defendant argues that claimant must demonstrate that his confinement was not privileged (see Krenrich Affirmation, ¶ 14), defendant misapprehends the burden of proof on that issue. As the party charged with the tort of wrongful confinement, defendant bears the burden of setting forth the defense that the confinement was privileged (see Hollender v Trump Vil. Coop., 58 NY2d 420, 425 [1983]; Gonzalez v State of New York, 110 AD2d 810, 812 [1985], appeal dismissed 67 NY2d 647 [1986]; Fernandez v State of New York, 2002 NY Slip Op 50510[U], *9 [Ct Cl 2002]).
[4]. Indeed, claimant argues that defendant has ignored clearly established federal law holding that DOCS lacked the authority to impose the PRS component of claimant’s sentence (see Berger Affirmation, ¶ 6). In support of its motion, defendant has offered no facts that it consulted or considered this or any other legal authority in deciding that it should impose PRS where the sentencing court failed to do so.