New York State Court of Claims

New York State Court of Claims

HEMINGWAY v. THE STATE OF NEW YORK, #2009-015-185, Claim No. 115931, Motion Nos. M-76391, CM-76429


In an action for damages arising out of the improper imposition of PRS by DOCS, claimant’s motion for partial summary judgment on liability was denied and defendant’s cross-motion for summary judgment dismissing the claim was granted.

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:
Katy Karlovitz, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for partial summary judgment on the issue of liability and defendant cross-moves for summary judgment dismissing the claim pursuant to CPLR 3212. Claimant seeks damages for false imprisonment and loss of liberties arising from the administrative imposition of postrelease supervision (PRS) by the Department of Correctional Services (DOCS). The claim states in pertinent part the following:
"4. On June 25th, 1999, Claimant was sentenced in Onondaga County based upon a plea agreement wherein he agreed to plea to one count of robbery in the second with an agreed-upon sentence of five years. No discussion of any term of post-release supervision was had at any time, nor did the Court ever mention, much less impose, a period of post-release supervision (the plea and sentencing minutes are attached hereto as Exhibits 1 and 2).[1]

5. Claimant served his sentence of imprisonment and was released in or around September, 2003. Despite the fact that the Onondaga County Court Judge never sentenced the Claimant to a period of post-release supervision, the Department of Corrections, without seeking Court authorization to do so, imposed a period of post-release supervision upon the Claimant and he was ordered to report to the Division of Parole.
6. In or around December, 2005, or January, 2006, Claimant was found in violation of the terms of the administratively imposed post-release supervision and was incarcerated in the Onondaga County Justice Center for completion of the HIIP program. Claimant was subsequently found in violation of the administratively imposed post-release supervision in or around January, 2007, and a twelve month time assessment was imposed... Around September, 2007, Claimant was again found in violation of the terms of his post-release supervision. Following a revocation hearing, Claimant was incarcerated on that violation. As a result of that violation, Claimant was incarcerated from September, 2007 until August 15th, 2008, at which time the Hon. John J. Brunetti, ordered Claimant released and resentenced the defendant, pursuant to Penal Law § 70.85, to the original sentence without any term of post-release supervision..." (claimant's Exhibit A).

Claimant argues in support of his motion that the only valid sentence imposed by the sentencing Judge and that DOCS exceeded the scope of its authority in administratively imposing a term of PRS (citing Donald v State of New York, ___Misc 3d ___, 2009 NY Slip Op 29113 [2009]). Claimant concludes that summary judgment on the issue of liability is warranted for both the periods he was confined for violations of the administratively imposed term of PRS (a total of 776 days) and the loss of liberty during the entire term of PRS from September, 2003 through August 15, 2008.

In support of its cross-motion for summary judgment, 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, ¶ 10, citing Gittens v State of New York, 132 Misc 2d 399, 402 [1986]). Defendant also argues that DOCS is immune from liability because it was acting in a discretionary, quasi-judicial capacity at the time PRS was imposed. Defendant argues alternatively that claimant has no private right of action under Penal Law § 70.45 because the intent of the Legislature in enacting the statute was to benefit 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 March 24, 2009 ¶ 21).

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]).[2] 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. Moreover, claimant was subject to the statutorily mandated term of PRS had no error in sentencing occurred. As a result, the conduct complained of was not 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 therein 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 violations 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 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, both the imposition of PRS and claimant's confinement for parole violations 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 PRS as an automatic consequence of a conviction resulting in a determinate sentence (see e.g. People v Sparber, 34 AD3d 265 [2006]; 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, under the circumstances of this case no liability may be imposed because the conduct complained of was not the cause-in-fact of claimant's injuries. An essential element of every tort is a reasonable nexus between the act or omission and the damages allegedly suffered (see Laub v Faessel, 297 AD2d 28, 31 [2002]). Here, no such connection can be established. The law is settled that unlike contract actions, "[i]n tort . . . there is no enforceable right until there is a loss. It is the incurring of damage that engenders a legally cognizable right" (Kronos, Inc. AVX Corp., 81 NY2d 90, 96 [1993]). That the damages suffered must be proximately caused by a tortious act or omission was made clear by the Court in Laub v Faessel (supra at 31):
"Loss causation is the fundamental core of the common-law concept of proximate cause: 'An essential element of the plaintiff's cause of action for negligence, or for ... any ... tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered' ” (quoting Prosser and Keeton, Torts § 41, at 263 [5th ed ]).

No such causal connection exists in this case. The Court of Appeals has made clear that PRS is a " 'direct consequence' of pleading guilty to a violent felony offense and that a trial court must therefore advise a defendant of that 'mandatory' result during the plea colloquy" (People v Sparber, 10 NY3d at 469, quoting People v Catu, 4 NY3d 242, 244 [2005]). Thus, it is clear that had no procedural error occurred, claimant would have been properly subjected to PRS and confined for the violations thereof. As made clear by the Court in Sparber (10 NY3d 469), the error was that of the sentencing court which failed to advise the defendant of the statutorily mandated term of postrelease supervision. It was only by virtue of the sentencing Court's error that claimant succeeded in securing his release from prison. Under these circumstances the conduct complained of was not the cause-in-fact of the claimant's alleged damages. Accordingly, this Court agrees with the Decision and Order of the Honorable Judith A. Hard, J.C.C., in which she recently found in similar circumstances that the alleged malfeasance of DOCS was not the cause-in-fact of the claimant's alleged injuries as a matter of law (see Mickens v State of New York, ___Misc 3d ___, 2009 NY Slip Op 29256 [2009]).

Based on the foregoing, the claimant's motion for partial summary judgment is denied and the defendant's cross-motion for summary judgment dismissing the claim is granted.

June 30, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 13, 2009;
  2. Affidavit of Katy Karlovitz sworn to March 13, 2009 with exhibits;
  3. Notice of cross-motion dated March 24, 2009;
  4. Affirmation of Michael T. Krenrich dated March 24, 2009 with exhibits;
  5. Reply of Katy Karlovitz dated March 27, 2009;
  6. Affirmation of Michael T. Krenrich dated March 31, 2009.

[1].In fact, review of the plea allocution reveals that the Honorable John J. Brunetti, J.S.C. specifically advised the claimant that he was subject to postrelease supervision, stating "the plea agreement here calls for what is called a five-year determinate term, which means you have to serve 85 percent of the five years before becoming eligible for supervised release. Now, with regard to that. . .I'm imposing whatever supervised release [that] is applicable, because the supervised release is something that is new" (claimant's Exhibit A-1, pp. 3-4). Notwithstanding this fact, however, it has been held that the failure to advise a defendant of the specific term of PRS provides a basis for withdrawal of the plea (People v Boyd, 12 NY3d 390 [2009]).

[2]. 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]).