ENGEL v. THE STATE OF NEW YORK, #2009-015-190, Claim No. NONE, Motion No.
Late claim motion was denied where proposed claim for unlawful confinement was
based on contention that DOCS delayed unreasonably in transferring movant - a
parole violator - to Willard Treatment Center. Movant’s parole had been
revoked and he was ordered held until the maximum expiration of his sentence
unless he completed the treatment program at Willard. Thus, movant was not
incarcerated while under parole supervision and his confinement while awaiting
transfer to Willard was privileged.
1 1.The caption is amended sua sponte to reflect the only properly named
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
sponte to reflect the only properly named defendant.
FRANCIS T. COLLINS
Goodell & GoodellBy: R. Thomas Rankin, Esquire
Honorable Andrew M. Cuomo, Attorney General
Jeane L. Strickland Smith,
EsquireAssistant Attorney General
July 21, 2009
See also (multicaptioned
Movant seeks late claim relief pursuant to Court of Claims Act § 10 (6).
Movant was convicted of second degree assault and was sentenced on November 18,
2003 to a three-year determinate term of imprisonment with two years of
postrelease supervision. He was released from custody to postrelease
supervision on May 5, 2006 and was charged with violating various conditions of
his release on or about January 16, 2008. A preliminary hearing was waived and
movant pled guilty to one of the charges. In his proposed claim, movant alleges
"6. I admitted to a parole violation and received a 'choice' in sentencing: 1)
return to prison until my maximum expiration date or 2) successfully complete
the 90 day drug treatment program at Willard. Attached hereto as Exhibit A is
the written order from the Division of Parole.
7. Using CPL §§ 410.91 and 430.20 as guides, the Division of Parole
and DOCS should have delivered me to Willard within twenty days of my final
parole revocation hearing, or by 20 March 2008 (see Ayers v
Coughlin, 72 NY2d 346 ; People ex rel. Ryniec v Willard Drug
Treatment Campus, 11 Misc 3d 1088 [A] ).
8. Instead, I went to the Downstate Correctional Facility and then to the
Franklin Correctional Facility before arriving at Willard on 21 April 2008.
9. I spent fifty-two (52) days wrongfully confined before arriving at Willard.
For the period of 29 February 2008 to 21 April 2008, I was in the exclusive
custody of either the Division of Parole or DOCS.
12. There is no legal authority or privilege that the Division of Parole or
DOCS had to wrongfully confine me for fifty-two days before delivering me to
Willard (see Nelson v State, 20 Misc 3d 1125 [A] ).
13. The claim accrued on 20 March 2008, while I was incarcerated at the
Downstate Correctional Facility located in Dutchess County, New York.
15. The Division of Parole and DOCS wrongfully deprived me of my liberty for
fifty-two days because of their actions or inactions.
16. My parole revocation sentence was either my maximum expiration date or the
Willard Program. Instead, the Division of Parole and DOCS unlawfully gave me
fifty-two days plus Willard."
While paragraph "6" of the proposed claim alleges that movant was given a
"choice" whether or not to return to prison until the maximum expiration date
of his sentence or successfully complete the 90-day drug treatment program at
the Willard Drug Treatment Campus ("Willard"), both the Parole Revocation
Decision Notice and the transcript of the parole revocation hearing reflect that
the Administrative Law Judge ordered that movant be held until the expiration
date of his postrelease supervision unless he completed the 90-day Willard
treatment program, in which event his postrelease supervision would be restored
(see defendant's Exhibit 2, Transcript of Parole Revocation Hearing, p.
4; claimant's Exhibit E, Record On Appeal, Parole Revocation Decision Notice p.
34). In this regard, the Administrative Law Judge stated the following at the
conclusion of the revocation hearing:
"[S]ince [the releasee] owes less than twelve months on his sentence, the
decision is going to read a hold to [maximum expiration], ninety day DOCS
program because he owes less than twelve months on his sentence. . . If you
enter and complete a ninety day drug treatment program offered by the New York
State Department of Correctional Service, this decision will be modified
forthwith to a decision of revoke and restore, time served..." (defendant's
Exhibit 2, Transcript of Parole Revocation Hearing, p. 4).
The analysis of the Administrative Law Judge set forth in the Parole Revocation
Decision Notice dated February 29, 2008 (Exhibit E, p. 34) states, in part, the
Releasee is a Cat 1 PRS Violator serving a sentence of 0-0/3-0 for Assault
2nd°. . .
He pled guilty to charge #3/Rule #11 he used a controlled substance without
proper medical auth. Based on a guilty plea/PRS recommendation, I sentence
Releasee to ME/alternative DOCS Drug Treatment Program.
If you enter & complete a 90 day drug treatment program offered by the NYS
Department of Correctional Services, the decision will be modified forthwith to
a decision of Revoke & Restore - Time Served & you will be released from
State Prison and restored to supervision in the community. Your failure to
attend/complete program will result in hold to ME."
Movant was transferred to Downstate Correctional Facility on March 7, 2008
and to Franklin Correctional Facility on March 26, 2008. Although he was
transferred to Willard on April 21, 2008, movant refused to sign into the
program and was returned to the custody of DOCS on April 24, 2008 (Exhibit A, p.
2; Exhibit B, p. 5; Exhibit E, p. 38). Movant filed a petition for a writ of
habeas corpus challenging his continued incarceration on May 30, 2008. The
petition was dismissed by Decision and Judgment dated August 1, 2008. While the
Court in dicta found no explicit authorization for a revocation of parole with a
delinquent time assessment
"subject to the
violator's ability to, in effect, purge himself of the revocation by
participating in some form of therapeutic program", it nonetheless concluded
that the 52-day delay in transferring the movant to Willard was not so lengthy
or unreasonable as to warrant the requested relief. The appeal from the
Judgment was dismissed as moot inasmuch as the movant had already been released
from custody (People ex rel. Engel v LaClair
, 60 AD3d 1263 ). In
its decision the Appellate Division noted the following:
"In January 2008, petitioner was charged with various violations of his
postrelease conditions. He pleaded guilty to one of the charges and, as a
result, he was ordered held until the expiration date of his period of
supervision. The Administrative Law Judge directed, however, that if petitioner
completed the Willard Drug Treatment Program his postrelease supervision would
be restored" (id.)
The import of this quote is made clear by review of the respondent's argument
on appeal in which it attempted to distinguish those cases holding that an
unreasonable delay in transferring a releasee whose parole supervision has been
revoked and restored to a therapeutic program may result in a due process
"In these cases, the petitioners had been restored to parole supervision before
they were transferred to Willard. In essence, the petitioners were being
detained while under parole supervision, and the courts found that extended
periods of such detention, without further justification, violated petitioner's
due process rights. By contrast, here, petitioner's parole supervision was
revoked and he was charged with a time assessment. It was not to be restored
until he successfully completed the Willard program. Thus, at the time he was
awaiting transfer to Willard, petitioner was a DOCS inmate, legally incarcerated
pursuant to the time assessment he received at his final revocation hearing"
(Exhibit C, p. 13-14).
While the proposed claim sets forth an accrual date of March 20, 2008, the date
by which movant alleges he should have been transferred to Willard, counsel
states in support of the instant motion that the claim did not accrue until the
movant's release from prison on October 12, 2008.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the following
factors: "whether the delay in filing the claim was excusable; whether the state
had notice of the essential facts constituting the claim; whether the state had
an opportunity to investigate the circumstances underlying the claim; whether
the claim appears to be meritorious; whether the failure to file or serve upon
the attorney general a timely claim or to serve upon the attorney general a
notice of intention resulted in substantial prejudice to the state; and, whether
the claimant has any other available remedy".
The first issue for determination upon a late claim motion is whether the
application is timely. Subdivision 6 of Section 10 requires that a motion to
file a late claim be made "before an action asserting a like claim against a
citizen of the state would be barred under the provisions of article two of the
civil practice law and rules." The claim alleges a cause of action for
wrongful confinement which is governed by a one-year statute of limitations
(CPLR 215 ). Whether the cause of action accrued on March 20, 2008 as
alleged in the proposed claim or October 12, 2008 as alleged in the motion, the
instant motion is timely.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965). The statutory factors are not exhaustive nor is any one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117
). The most important factor is whether the potential claim has merit, as
it would be a futile exercise to permit litigation of a clearly baseless lawsuit
(Savino v State of New York, 199 AD2d 254 ).
The excuses advanced by movant's counsel for the failure to timely serve and
file a claim are that the movant attempted to remedy the situation through the
initiation of a habeas corpus proceeding and, in addition, did not discuss
filing a civil claim until after the appeal was perfected. In the Court's view
neither of these excuses is acceptable. The unsuccessful pursuit of habeas
relief in the Supreme Court is not a reasonable excuse for the failure to timely
serve and file a claim as the Decision and Judgment in that proceeding was filed
August 6, 2008, approximately 8 months before the instant motion was filed. Nor
is the movant's delay in discussing the matter with counsel a reasonable excuse
(Olsen v State of New York, 45 AD3d 824 ; Matter of Robinson v
State of New York, 35 AD3d 948 ).
The intertwined issues of notice, opportunity to investigate and prejudice to
the State will be considered together. Movant argues that no prejudice will
result from the delay because the State had notice of the essential facts of the
proposed claim from its involvement in the habeas corpus proceeding and had the
opportunity to investigate the matter at that time. As the State makes no
contrary argument, these factors weigh in favor of the movant.
With respect to the required showing of merit, the claim is sufficiently
established if the claimant demonstrates that the proposed claim is not patently
groundless, frivolous, or legally defective and there is reasonable cause to
believe that a valid cause of action exists (Matter of Santana v New York
State Thruway Auth., 92 Misc 2d 1 ; Fowx v State of New York,
12 Misc 3d 1184 ).
Evaluation of the merit of the proposed claim requires consideration of whether
the facts of this case may give rise to a cause of action for wrongful
confinement. To establish a cause of action for wrongful confinement, a
"species" of the tort of false imprisonment (see Gittens v State of
New York, 132 Misc 2d 399, 402 [Ct Cl 1986]), the claimant must establish
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 , cert denied sub nom.,
Schanbarger v Kellogg, 423 US 929  ). While the first three
factors are met, it is the fourth which poses the most difficulty in this case.
In reliance on Matter of Ayers v Coughlin (72 NY2d 346 ), State
of New York ex rel. Ryniec v Willard Drug Treatment Campus (11 Misc 3d 1088
[A] ), and Nelson v State of New York (20 Misc 3d 1125 [A] ),
movant argues that his incarceration for 52 days pending his transfer to Willard
was not privileged.
The Court of Appeals held in Ayers (supra) that the statutory
command of CPL 430.20 (1), which directs that "[w]hen a sentence of imprisonment
is pronounced . . . the defendant must forthwith be committed to the custody of
the appropriate public servant and detained until the sentence is complied
with", requires the State to accept without delay inmates in local facilities
who have been committed to the custody of the State. While "no hard-and-fast
number of days" was set forth by the Court in construing the statute, it
reinstated the judgment of the Supreme Court which had concluded that DOCS'
"logistic needs require that the Department plan for the receipt of new inmates
ten days in advance" (Id. at 354).
CPL 410.91 (1) likewise provides that a defendant sentenced to parole
supervision is to be remanded:
"for immediate delivery to a reception center operated by the state department
of correctional services, in accordance with section 430.20 of this chapter. .
., for a period not to exceed ten days. An individual who receives such a
sentence shall be placed under the immediate supervision of the state division
of parole and must comply with the conditions of parole, which shall include an
initial placement in a drug treatment campus for a period of ninety days at
which time the defendant shall be released therefrom."
It has been repeatedly held, however, that neither §§ 430.20 nor
410.91 are applicable to parole violators (see e.g. People ex
rel. Ortiz v Poole, 11 Misc 3d 1064 [A] ; Ayala v Williams, 7
Misc 3d 1025 [A] ). The Court in Ayala (supra) noted that
while there is no legislative or regulatory directive concerning when a parole
violator must be transferred to Willard, CPL 410.91 and Ayers v Coughlin
(supra) provide guidance (Id. at *2, n 1). The court in
Ryniec (supra) reached a similar conclusion but adopted a
twenty-day rule for delivering a parole violator to Willard:
The Court agrees that a transfer in the present situation is not mandated by the
statute, but finds that it is a legislative indicator of what a reasonable time
frame is to transfer a parole violator who has been revoked and restored to
parole supervision, subject to successful completion of the Willard program. The
undersigned now rules that inmates who are in such a situation are mandated to
be transported to the state reception center“forthwith” (CPL 410.91
& CPL 430.20) and this Court interprets that to mean within ten (10) days.
Ayers v Coughlin, 72 NY2d 346(1988). Thereafter, the parolee should be
received by Willard within ten (10) days after he is admitted to the State
reception center. Thus, the parolee should be received by Willard within
twenty(20) days of his final parole revocation determination (Ryniec,
supra 11 Misc 3d at *1).
Other courts have stated in deciding petitions for habeas corpus relief that
the issue is simply "whether the length of time the petitioner has been held is
reasonable under the facts of the case. An unreasonable length of time quite
simply invokes due process concerns" (State of N.Y. ex rel. Angelos v
Poole, 9 Misc 3d 772, 773 ; People ex rel. Davis v Superintendent
of Willard Drug Treatment Campus, 11 Misc 3d 1072 [A] ). In all of
these cases, however, parole had been revoked and restored subject to
participation in the Willard program. Here, by contrast, movant's parole was
revoked and he was ordered held until the maximum expiration date of his
sentence/post release supervision (cf. Nelson v State of New
York, supra). Unlike the cases upon which the movant relies,
therefore, movant was not incarcerated while under parole supervision awaiting
transfer to Willard, his parole had been revoked and he was properly
incarcerated. In these circumstances, it must be concluded that the movant's
52-day confinement while awaiting transfer to Willard was privileged.
Moreover, while the Administrative Law Judge directed that if movant completed
the Willard program his postrelease supervision would be restored, movant
declined participation in the program. Inasmuch as the condition for parole
restoration was not fulfilled, no argument may be made that movant's
incarceration was wrongful. Under these circumstances the Court finds the
proposed claim patently lacking in merit.
As to the final factor to be considered, claimant had an alternative remedy in
the form of a proceeding pursuant to article 70 of the CPLR which he utilized,
Upon balancing all of the factors enumerated in Court of Claims Act § 10
(6), the Court finds the majority of factors, including the all-important issue
of merit, weigh against granting the instant motion. Accordingly, the
claimant's motion is denied.
July 21, 2009
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
Notice of motion dated March 11, 2009;
Affidavit of R. Thomas Rankin sworn to March 11, 2009 with exhibits;
[Proposed] Claim verified March 9, 2009;
Affirmation of Jeane L. Strickland Smith dated May 4, 2009 with exhibits;
Reply affidavit of R. Thomas Rankin sworn to May 11, 2009.
. A "time assessment" is a "period of time
which is fixed as a result of a final parole revocation hearing and which
determines a date by which time the parole violator will be eligible for
re-release" (9 NYCRR 8002.6 [a]).