New York State Court of Claims

New York State Court of Claims
PICKENS v. THE STATE OF NEW YORK, # 2009-015-171, Claim No. 113931, Motion No. M-76024, Cross-Motion No. CM-76350

Synopsis

Defendant's motion to dismiss claim for failure to sate a cause of action was granted. Confinement for violations of administratively imposed period of postrelease supervision was privileged. In any event, State is immune from liability and alleged error was not the cause-in-fact of claimant's injuries. Claimant's cross-motion for summary judgment was denied.

Case information

UID: 2009-015-171
Claimant(s): FREDDIE PICKENS
Claimant short name: PICKENS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113931
Motion number(s): M-76024
Cross-motion number(s): CM-76350
Judge: FRANCIS T. COLLINS
Claimant's attorney: Ofodile & Associates, P.C.
By: Anthony Ofodile, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 13, 2009
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (7). The claimant cross-moves for partial summary judgment on the issue of liability pursuant to CPLR 3212.

Claimant alleges causes of action for false imprisonment and violations of his rights under the New York State Constitution arising from his imprisonment for a violation of the conditions of postrelease supervision (PRS) imposed upon him by the Department of Correctional Services (DOCS).

The claim states in pertinent part the following:

"6. On April 25, 2001 Claimant was sentenced to a determinate prison sentence of 5-1/2 years on a plea of guilty for attempted robbery in satisfaction of indictment #10100/99 as promised in the plea agreement before Greenberg J, at plea and sentence.

7. Claimant was initially released on May 24, 2005, the date of his conditional release date and was later re-arrested for parole violation and maxed out his sentence on March 10, 2006.

8. However, Claimant was not released from jail until March 9, 2007, one ear past the maximum expiration date on his sentence.

9. Defendant State held Claimant because the Department of Corrections added years of post-release supervision that was not part of the plea agreement or sentence and that the Claimant never agreed to.

10. Claimant was released from prison after bringing a habeas corpus proceeding before Judge Raymond Guzman, (JSC, Kings County), who, on a decision dated February 27, 2007, held that the State was holding Claimant illegally."

By Decision and Order of the Honorable Raymond Guzman, J. S. C., dated February 27, 2007 claimant's motion pursuant to CPL 440.10 for an order vacating the judgment of conviction or modifying his sentence was treated as a petition for a writ of habeas corpus and DOCS was ordered "to release the defendant from custody and from any obligations deriving from administratively-imposed post-release supervision" (defendant's Exhibit B, p. 17). Citing, inter alia, Earley v Murray (451 F3d 71 [2d Cir 2006], reh denied, 462 F3d 147 [2d Cir 2007], cert denied 127 S Ct 3014 [2d Cir 2007]). The Court held that absent any mention of postrelease supervision in the plea colloquy, the sentencing minutes or the commitment papers, claimant's confinement on a parole violation past the period of his maximum release date of March 10, 2006 was illegal. In reaching this conclusion, Judge Guzman noted that DOCS computed his original release date [May 24, 2005] based upon a "sentence of 5-1/2 years, net of credit for 258 days spent in jail while the case was pending, and 9 months and 16 days 'good time' earned in prison . . ." (defendant's Exhibit B, p.4). Judge Guzman went on to note the following:

"[T]he defendant was 'declared delinquent' [by the Division of Parole] on November 30, 2005, during the period (May 24, 2005 to March 10, 2006) he would have been under Parole supervision pursuant to 'conditional release,' even if the Legislature had never created post-release supervision. However, it also appears that if the defendant had been re-incarcerated for a parole violation under 'conditional release' only, he would have been released on or about October 29, 2006, the date on which his full 5-1/2 year sentence expired. . ." (Id. at pp. 15-16).

Thus the period of confinement at issue in this case is limited to that which allegedly resulted from the improperly imposed period of postrelease supervision by DOCS - October 29, 2006 through March 9, 2007.

In support of its motion for dismissal, defendant argues that the administrative imposition of PRS by DOCS was privileged because a term of PRS was statutorily mandated and therefore DOCS acted "under color of law or regulation" (see affirmation in support of Michael Krenrich, 8, citing Gittens v State of New York, 132 Misc 2d 399, 402 [1986]). Defendant also argued DOCS is immune from liability because DOCS was acting in a discretionary, quasi-judicial capacity at the time PRS was imposed and claimant has no private right of action under Penal Law 70.45 because the intent of the Legislature in enacting the statute was for the protection of the public-at-large and the claimant was not "one of the class of people Jenna's Law was designed to protect"(affirmation of Michael Krenrich dated December 18, 2008, 14).

In support of his cross-motion for summary judgment, claimant cites, inter alia, Earley v Murray, (supra) for the proposition that " 'the sentence imposed by the sentencing judge is controlling; it is this sentence that constitutes the court's judgment and authorizes the custody of a defendant' " (affirmation in support of cross-motion dated March 3, 2009, 19, quoting Earley v Murray, 451 F3d at 75). Inasmuch as DOCS is conclusively bound by the contents of the commitment papers accompanying a prisoner, and the commitment papers at issue here contained no mention of PRS, claimant argues that his confinement for a violation of the conditions of his parole was not privileged and summary judgment in his favor on the issue of liability is warranted (citing, inter alia, Matter of Murray v Goord, 1 NY3d 29 [2003]; Middleton v State of New York, 54 AD2d 450 [1976], affd 43 NY2d 678 [1977]).

On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court is required to

"accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Thus, the determination is made by reference to whether "the proponent of the pleading has a cause of action, not whether he has stated one" (Id. at 88).

To establish a cause of action for false imprisonment a claimant must show that "(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], cert denied sub nom., Schanbarger v Kellogg, 423 US 929 [1975]). While the first three factors are not disputed, it is the fourth which poses the most difficulty in this case.

In Matter of Garner v New York State Dept. of Correctional Servs.(10 NY3d 358 [2008]) the Court of Appeals held that a term of PRS "is not automatically included in the pronouncement of a determinate sentence, and thus a defendant has a statutory right to have that punishment imposed by the sentencing judge" (Id. at 363). The Court noted that its holding was "without prejudice to any ability that either the People or DOCS may have to seek the appropriate resentencing of a defendant in the proper forum" (Id. at 363, n 4). Decided the same day as Matter of Garner, People v Sparber (10 NY3d 457 [2008] rejected the argument that expungement is the proper remedy for a term of PRS improperly imposed by DOCS. Rather, the Court stated that "[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement . . ." (10 NY3d at 471). The Court specifically noted that "there exists no procedural bar to allowing the sentencing court to correct its PRS error . . . [T]he failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy . . ." (Id. at 472). The orders in each of the five cases reviewed on appeal in Sparber were therefore modified to the extent of remitting the cases to the Supreme Court for resentencing (see also People v Collado, 11 NY3d 888 [2008]).

Nevertheless, for one reason or another, the statutorily mandated period of PRS has not been included in the resentencing of many defendants whose initial term of postrelease supervision was improperly imposed by DOCS rather than the sentencing court (see e.g. People v Faulkner, 55 AD3d 924 [2008]; People ex rel. Foote v Piscotti, 51 AD3d 1407 [2008]; People ex rel. Pamblanco v Warden, Rikers Island Correctional Facility, 22 Misc 3d 776 [2008]; People v Washington, 21 Misc 3d 349 [2008]; Matter of Capron v Virts, 2008 NY Slip Op 32517 [U] [2008]; compare People v Aguirre, 55 AD3d 846 [2008]; People v Craig, 51 AD3d 559 [2008]; People v Edwards, 51 AD3d 540 [2008], lv denied 11 NY3d 787 [2008]; People ex rel. Lewis v Warden, Otis Baum Correctional Ctr., 51 AD3d 512 [2008]).(1)

Notwithstanding this fact, however, for the reasons which follow the Court holds that absent either an allegation or inference that the parole warrant or order directing the claimant's confinement for parole violations was invalid on its face, the arrest and confinement for the parole violations was privileged and "sufficient to protect officials who carried out its mandates" from liability for false imprisonment (Nuernberger v State of New York, 41 NY2d 111, 116 [1976]). Even if this were not the case, however, the defendant is immune from liability and, in any event, the conduct complained of was not tortious or the cause-in-fact of the claimant's alleged injuries.

It is well settled that "where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged and everyone connected with the matter is protected from liability for false imprisonment" (Holmberg v County of Albany, 291 AD2d 610, 612 [2002] (citation omitted), lv denied 98 NY2d 604 [2002]); see also Nuernberger v State of New York, supra; Nastasi v State of New York, 275 App Div 524 [1949], affd 300 NY 473 [1949]). Likewise, an arrest and imprisonment are privileged where the arrest is "made pursuant to a warrant valid on its face and issued by a court having jurisdiction of the crime and person . . . and this is so even though the process may have been erroneously or improvidently issued" (Boose v City of Rochester, 71 AD2d 59, 66 [1979]; Middleton v State of New York, 54 AD2d 450 [1976], affd 43 NY2d 678 [1977]; Broughton v State of New York, 37 NY2d at 457-458). Absent an allegation in the claim, "express or inferable", that the parole warrant or order of commitment was invalid on its face or that the issuing entity lacked jurisdiction to issue the warrant, a claim for false imprisonment lacks merit as a matter of law (Ferrucci v State of New York, 42 AD2d 359, 361 [1973], affd 34 NY2d 881 [1974]; Boose v City of Rochester, supra; Mullen v State of New York, 122 AD2d 300 [1986], lv denied 68 NY2d 609 [1986], cert denied 480 US 938 [1987]).

Importantly, the confinement is no less privileged where a defendant has been successful in procuring his release from prison in a habeas corpus proceeding. Thus, the fact that the detainer has been determined to be illegal in a habeas corpus proceeding does not render the State liable in a subsequent claim for false imprisonment (Nuernberger v State of New York, supra; Harty v State of New York, 29 AD2d 243 [1968], affd 27 NY2d 698 [1970]). There is simply "no remedy against the State for an illegal confinement if it is made pursuant to an order valid on its face when issued" (Jones v State of New York, 31 AD2d 992, 993 [1969]; see also Corcoran v State of New York, 30 AD2d 991 [1968], affd 24 NY2d 922 [1969]).

The facts in Holmberg v County of Albany (supra) and Nastasi v State of New York (supra) are analogous to those in the case at bar and illustrate the point well. In Holmberg, the plaintiff argued that the County mistakenly added three days of additional confinement in calculating the length of his jail term as reflected in his sentencing minutes and the certificate of conviction. Plaintiff alleged that had he been released on his correct release date, he would not have violated the conditions of his work release program when he failed to appear for work following his arrest for driving while intoxicated and would not have spent additional time in jail. The Court found the order at issue herein was valid on its face and " 'sufficient to protect officials who carried out its mandates' from liability for false imprisonment" (Holmberg v County of Albany, 291 AD2d at 613, quoting Nuernberger v State of New York, 41 NY2d at 116).

Similarly in Nastasi v State of New York (supra) the claimant was declared delinquent while on parole and a warrant was issued for his arrest. Claimant was released to parole authorities and returned to prison in New York five years later after serving a sentence of imprisonment in another state. He thereafter secured his release in a habeas corpus proceeding upon a finding that his maximum sentence had expired prior to his return to prison in New York. Notwithstanding the finding in the habeas corpus proceeding that the confinement was illegal, the Court stated the following (275 App Div at 525 - 526):

"[I]t does not necessarily follow . . . that a determination of illegality of imprisonment gives rise ipso facto to a claim for damages for false arrest and imprisonment. Since parole was not permissible under the circumstances presented, the declaration of delinquency for parole violation and the acts of the authorities in retaking claimant . . . and in detaining him . . . were improper. There is nothing in the record, however, to indicate that the declaration of delinquency and the warrant for claimant's arrest were not entirely valid on their face when issued. . . The arresting officers and the confining authorities were under a duty to comply with this declaration and warrant, the invalidity of which was not determined until the decision in the habeas corpus proceeding had been handed down. They were not obliged to institute an inquiry in order to satisfy themselves that no error had been committed. They were confronted with what appeared to be a valid directive for the arrest and incarceration of the claimant, and in yielding obedience to it they did not subject themselves or the State to an action for false arrest and imprisonment."

The above-cited cases illustrate the point that even where the confinement is determined to be illegal, as it was here, liability for false imprisonment may not follow where the warrant authorizing the arrest and confinement was valid on its face when issued. As noted by the Court of Appeals in Broughton v State of New York (supra) "an unlawful detention gives rise to a cause of action for false imprisonment 'except where the confinement was by arrest under a valid process issued by a court having jurisdiction' " (37 NY2d at 457, quoting Restatement, 2d, Torts [4th ed], 35; cf. Lynn v State of New York, 33 AD3d 673 [2006]). Conversely, the Court made clear in Broughton that "where the arrest or imprisonment is extrajudicial, that is, without legal process or color of legal authority" the burden is on the defendant to prove probable cause in an action for false imprisonment (Broughton v State of New York, 37 NY2d at 458).

Here, there is no allegation that the parole warrant or order of commitment relating to the claimant's parole violation were invalid on their face. Indeed, although parole revocation hearings are classified as administrative proceedings, certain constitutional protections must be observed because of the serious consequences which may befall a parolee if the charges of misconduct are sustained (People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76 [1979]; People v Brooks, 308 AD2d 99 [2003]; Executive Law 259-i [3] [c] [d][f]). Executive Law 259-i (3) (a) (i) authorizes the issuance of a warrant for retaking a person "presumptively released, paroled or conditionally released or a person released to postrelease supervision" following a report by a parole officer that he or she reasonably believes such person has either "lapsed into criminal ways or company, or has violated one or more conditions of his . . . conditional release or post-release supervision." "[S]uch parole officer shall report such fact to a member of the board of parole, or to any officer of the division designated by the board, and thereupon a warrant may be issued for the retaking of such person" (id.; see also 9 NYCRR 8004.2 [a] [c]). This subsection specifically provides that "[a] warrant issued pursuant to this section shall constitute sufficient authority to the superintendent or other person in charge of any jail, penitentiary, lockup or detention pen to whom it is delivered to hold in temporary detention the person named therein . . ." A preliminary hearing is required unless waived and the standard of proof required is "probable cause to believe that the . . . person under post-release supervision has violated one or more conditions of his or her . . . post-release supervision in an important respect" (Executive Law 259-i [3] [c] [iv]). At the preliminary hearing, the hearing officer is required to "review the violation charges with the alleged violator, direct the presentation of evidence concerning the alleged violation, receive the statements of witnesses and documentary evidence on behalf of the prisoner, and allow cross-examination of those witnesses in attendance" (Executive Law 259-i [3] [c] [v]). If the hearing officer finds probable cause exists, he may declare such person delinquent and a revocation hearing with respect to the charge[s] is required (Executive Law 259-i [3][d][e]). At the revocation hearing the alleged violator is permitted representation by counsel, the right to confront witnesses and may present witnesses and documentary evidence both in defense of the charges and on the issue of whether reincarceration is appropriate (Executive Law 259-i [3] [f][v]). The presiding officer at the hearing may sustain the charge only if it is supported by a "preponderance of the evidence adduced" (Executive Law 259-i [3] [f] [viii]).

The statutory scheme for retaking a person subject to parole or postrelease supervision makes clear that an arrest is preceded by the issuance of a parole warrant which constitutes sufficient authority for holding the person in temporary detention. Further confinement may follow only after the parolee is provided the opportunity for both a preliminary and final revocation hearing. Absent an allegation that either the warrant authorizing the claimant's arrest or the order of authorizing his commitment were invalid on their face or that the issuing entity lacked jurisdiction to issue the warrant or order (see Ferrucci v State of New York, 42 AD2d at 361) the confinement is privileged and no claim for false imprisonment is stated.

With regard to the issue of immunity, inasmuch as the determination to revoke the claimant's parole was made by the Parole Board, such determinations are judicial in nature and protected by the cloak of absolute immunity (see Executive Law 259-i (5); cf. Tarter v State of New York, 68 NY2d 511 [1986]). Immunity applies notwithstanding the fact that "the decision of the Parole Board revoking claimant's parole was eventually determined to have been in error, since the action of the Parole Board was not thereby deprived of its quasi-judicial character" (Semkus v State of New York, 272 AD2d 74, 75 [2000], lv denied 95 NY2d 761 [2000]).

To the extent the conduct complained of is that of DOCS in improperly imposing the term of PRS, the result is the same. The law is settled that when official conduct involves the exercise of discretion, a government officer is not liable for the injurious consequences of his or her actions even if resulting from tortious conduct or malice (Tango v Tulevech, 61 NY2d 34, 40 [1983]; see also Lauer v City of New York, 95 NY2d 95, 115 [2000]). Immunity attaches "for those governmental actions requiring expert judgment or the exercise of discretion" (Arteaga v State of New York,72 NY2d 212, 216 [1988]; see also Mosher-Simons v County of Allegany, 99 NY2d 214 [2002]; Swain v State of New York, 294 AD2d 956 [2002], lv denied 99 NY2d 501 [2002]). As stated by the Court of Appeals in Arteaga :

"Whether an action receives only qualified immunity, shielding the government except when there is bad faith or the action is taken without a reasonable basis . . . or absolute immunity, where reasonableness or bad faith is irrelevant . . . requires an analysis of the functions and duties of the particular governmental official or employee whose conduct is in issue . . . The question depends not so much on the importance of the actor's position or its title as on the scope of the delegated discretion and whether the position entails making decisions of a judicial nature - i.e., decisions requiring the application of governing rules to particular facts, an 'exercise of reasoned judgment which could typically produce different acceptable results' " (Id. at 216 quoting Tango v Tulevech, 61 NY2d at 41)."

It has long been recognized that public officials regardless of their job title are entitled to absolute immunity for discretionary or quasi-judicial determinations involving the construction and application of governing law in the performance of their official functions (see Rottkamp v Young, 21 AD2d 373 [1964], affd for reasons stated below 15 NY2d 831 [1965]; Santangelo v State of New York, 101 AD2d 20 [1984]). In Rottkamp, for example, the Court held that a building inspector was immune from suit for his determination that the plaintiff was not entitled to a building permit. Although the denial of the permit was later determined in an article 78 proceeding to have been erroneous, the conduct of the inspector in denying the permit was discretionary and quasi-judicial in nature because it "involved the construction of the zoning ordinance and a consideration of the facts before him - - an act which a building inspector must perform as part of his responsibilities" (Rottkamp v Young, 21 AD2d at 376; see also Arteaga v State of New York, supra; Miller v State of New York, 125 AD2d 853 [1986], lv denied 69 NY2d 608 [1987]).

Here, claimant's confinement for a parole violation occurred prior to the Court of Appeals' decisions in Garner and Sparber in April 2008 and pursuant to what had been a longstanding practice by DOCS of implementing the statutorily mandated terms of postrelease supervision. At the time of the administrative application of PRS in this case, the courts generally viewed RPS as an "automatic" consequence of a conviction resulting in a determinate sentence (see e.g. Matter of Deal v Goord, 8 AD3d 769 [2004]; People v Hollenbach, 307 AD2d 776 [2003], lv denied 100 NY2d 642 [2003] ; People v Crump, 302 AD2d 901 [2003], lv denied 100 NY2d 537 [2003]; People v Thweatt, 300 AD2d 1100 [2002]; People v Bloom, 269 AD2d 838 [2000], lv denied 94 NY2d 945 [2000]). This conclusion was based upon the then-existing statutory direction contained in Penal Law 70.45 (1) that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision" (emphasis added). It was not until Matter of Dreher v Goord ,(46 AD3d 1261 [2007]) was decided in December 2007 that the Appellate Division, Third Department, abrogated its prior holdings in Matter of Deal v Goord (supra) and Matter of Garner v New York State Dept. of Correctional Servs., (39 AD3d 1019 [2007], revd 10 NY3d 358 [2008]), both of which had determined that PRS was automatically included as part of a determinate sentence. In Matter of Deal, the Court had held " 'a period of post-release supervision [was] automatically included' in [petitioner's] sentence by statute" and that in subjecting the petitioner in that case to PRS, DOCS was merely "enforcing a statutorily required part of petitioner's sentence" (Matter of Deal v Goord, 8 AD3d at 769-770). In Matter of Garner, the Third Department found that in imposing a term of PRS upon the petitioner, who had not been advised by the Court at sentencing that he would be subject to PRS, DOCS was "only enforcing, not imposing, a part of petitioner's sentence which was automatically included by statute" (Matter of Garner, 39 AD3d at 1019). Thus, at the time of the conduct complained of by the claimant, both the plain language of the statute and the then prevailing decisional law addressed PRS as an integral part of a determinate sentence arising by operation of law. Consistent with this premise, DOCS construed Penal Law 70.45 (1) to apply to all individuals sentenced to a determinate sentence of imprisonment and designated such persons as subject to PRS upon their release from confinement. In interpreting the statute and determining the actions required to be taken thereunder, DOCS was acting within "the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based" (Santangelo v State of New York, 101 AD2d at 26 [internal quotation marks and citations omitted]). That hindsight proved this discretionary determination erroneous provides no basis for defeating the privilege.

In Tango v Tulevech (supra), in which a probation officer's refusal to relinquish custody of two children to the plaintiff was later determined to be erroneous, the Court of Appeals found that absolute immunity shielded the municipal actor from liability because "even if [the probation officer's] ultimate determination was incorrect . . . she acted within the scope of her discretionary authority . . ." (61 NY2d at 41-42). The Court went on to state that because "she was exercising her judgment in determining the proper conduct of her office and given the discretionary nature of her acts, the question of bad faith or malice becomes irrelevant under the rule stated in Rottkamp" (61 NY2d at 42). While DOCS obviously has no discretion to alter a sentence, its interpretation of the statute as mandating PRS for those individuals meeting the statutory criteria, and the subsequent determination to administratively apply a period of PRS supervision to all such individuals, though incorrect in hindsight, was a discretionary quasi-judicial function for which DOCS is entitled to absolute immunity. Thus, the State is immune from liability for DOCS' determination to impose the statutorily mandated period of PRS administratively.

This determination is amply supported by public policy considerations underlying application of the immunity doctrine. "A public officer, haunted by the specter of a lawsuit, may well be subject to the twin tendencies of procrastination and compromise to the detriment of the proper performance of his duties" (Rottkamp v Young, 21 AD2d at 376). Balancing an individual's interest in procedural regularity (see Sparber at 10 NY3d at 471) against the public interest in fostering official conduct unhampered by the fear of retaliatory lawsuits, public policy supports application of absolute immunity in the circumstances of this case.

Moreover, even if the immunity is qualified rather than absolute, the State is shielded from liability in the absence of any allegation or inference that the conduct of DOCS was undertaken in bad faith or without a reasonable basis (see Arteaga v State of New York, 72 NY2d at 216; Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960]). As related above, at the time DOCS administratively imposed a period of postrelease supervision upon the claimant it acted against the background of a statute which directed that "[e]ach determinate sentence also includes, as a part thereof, an additional period of postrelease supervision" (Penal Law 70.45 [1]). Given the declaratory nature of the statutory language at the time the allegedly tortious action occurred, the statute's lack of clarity with regard to the mechanisms by which postrelease supervision was to be applied and the apparent illegality of a determinate sentence not including a period of postrelease supervision (see People ex rel. Lewis v Warden, Otis Baum Correctional Ctr., 51 AD3d 512 [2008]), DOCS applied its judgment and exercised its discretion in determining what actions were required to be taken in carrying out both the requirements of the statute and its own official duties. Under such circumstances, the type of discretionary, governmental decision-making involved in this case and the actions taken in furtherance thereof are immune from liability in a civil action for money damages.

Additionally, even if the conduct of DOCS was exclusively ministerial, no liability may be imposed because the conduct was not otherwise tortious (Tango v Tulevech, 61 NY2d at 40; see also Lauer v City of New York, supra). Had the sentencing Court informed the claimant of the term of PRS there would be no cause of action as PRS was mandatory for individuals subject to a determinate sentence. Under these circumstances it cannot be said that the conduct complained of was tortious or the cause-in-fact of the claimant's injuries. As made clear by the Court in Sparber (10 NY3d at 469) the error was that of the sentencing judge who failed to advise the defendant of the statutorily mandated term of postrelease supervision. Had this error not occurred, the claimant would have been legally detained and imprisoned. As a result, the alleged malfeasance of DOCS was not the cause-in-fact of the claimant's alleged injuries as a matter of law (cf. Vasquez v State of New York, 10 AD3d 825 [2004]; Rivera v State of New York, UID #2006-028-008, Claim No. 102781 [Ct Cl Feb. 8, 2006], Sise, P.J.).

Lastly, to the extent the claim alleges causes of action for a violation of the claimant's New York State constitutional rights, it lacks merit. A cause of action for a violation of the State Constitution may give rise to a tort cause of action only where it is necessary to ensure the full realization of the claimant's constitutional rights (Brown v State of New York, 89 NY2d 172 (1996); Martinez v City of Schenectady, 97 NY2d at 83-84 [2001]). Here, invocation of a constitutional tort cause of action is unnecessary as the claimant clearly had alternative avenues of redress available, including habeas corpus relief which he successfully pursued (id.; Waxter v State of New York, 33 AD3d 1180 [2006]; Bullard v State of New York, 307 AD2d 676 [2003]). Thus, to the extent the claim asserts causes of action under the New York State Constitutions, it must be dismissed.

Based on the foregoing, the Court finds that the claim fails to state a cause of action. Accordingly, defendant's motion is granted and the claim is dismissed. Claimant's motion for summary judgment is denied.

May 13, 2009

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated December 18, 2008;
  2. Affirmation of Michael T. Krenrich dated December 18, 2008 with exhibits;
  3. Notice of cross-motion dated March 3, 2009;
  4. Affirmation of Anthony C. Ofodile dated March 3, 2009;
  5. Affirmation of Michael T. Krenrich dated March 12, 2009.

1. Even when a defendant is resentenced so as to impose the statutorily mandated term of PRS, the Appellate Division, Third Department, has recently made clear that "[t]he court's later resentencing of respondent did not operate retroactively to cure the illegal imposition of postrelease supervision . . . meaning respondent could not validly be punished for violating the terms of postrelease supervision until after it was imposed by a court" (Matter of State of New York v Randy M., 57 AD3d 1157, 1159 [2008]).