New York State Court of Claims

New York State 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):
M-76379, CM-76482
Cross-motion number(s):

Claimant’s attorney:
Robert Dembia, P.C.By: Robert Dembia, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael T. Krenrich, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The underlying claim is based upon allegations of false imprisonment arising from an administratively imposed term of post-release supervision (PRS). Defendant moves this Court for summary judgment. Claimant opposes defendant’s motion and cross-moves for partial summary judgment and for a change of venue. For the reasons set forth herein, the Court grants defendant’s motion for summary judgment and dismisses Claim No. 116247.
Claimant was convicted of three counts of robbery in the second degree under indictment number 2864/00 and one count of robbery in the third degree under 2865/00. On July 24, 2000, he was sentenced to a five year determinate term for each count under indictment number 2864/00 and a one year determinate term under indictment 2865/00, with the sentences to run concurrently. The sentencing minutes were silent as to PRS. However, the sentence and commitment order for indictment 2864/00, signed on July 24, 2000, provided for a five year term of PRS.

Claimant was released from custody on December 17, 2004. However, on March 17, 2007, he was declared delinquent for having violated certain terms and conditions of his PRS. On April 11, 2007, a parole warrant was issued and on April 16, 2007, claimant was arrested and re-incarcerated. On or about October 20, 2008, after it was discovered that claimant’s PRS had not been imposed by the Court, claimant was resentenced to the originally imposed determinate sentence without a term of PRS. On October 24, 2008, claimant was released from the custody of the Department of Correctional Services. Following his release, he filed the subject claim.

Defendant argues that there can be no cause of action for unlawful imprisonment because although the administrative imposition of PRS was improper, PRS was a mandatory component of the determinate sentence issued to claimant, making claimant’s confinement privileged. [1] Claimant, in opposition to defendant’s motion and in support of his motion seeking partial summary judgment, urges the Court to follow the decision in Donald v State of New York (Ct Cl, Claim No. 115414, Motion Nos. M-75777, CM-75836, February 5, 2009, Milano, J. [UID #2009-041-002]), which found that the administrative imposition of PRS alleged in that claim stated a cause of action and may not be dismissed on summary judgment.
The original version of Penal Law § 70.45, which was in effect at the time claimant was sentenced, provided that each determinate sentence also include, as a part of that sentence, an additional period of post-release supervision. Initially, there was significant confusion and inconsistency regarding how, when and by whom the PRS was to be imposed, and for several years, it was added administratively after sentencing. However, after hearing a series of cases regarding the lawfulness of said administrative imposition of PRS, the Court of Appeals found that only a sentencing judge could impose the mandatory PRS upon a defendant and that DOCS’ imposition of the same was unlawful (see Matter of Garner v New York State Department of Correctional Services, 10 NY3d 358 [2008]; People v Sparber, 10 NY3d 457 [2008]).

As this Court indicated in Mickens v State of New York (Ct Cl, Claim No. 114719, Motion Nos. M-75311 and CM-75564, May 18, 2009, Hard, J. [UID #2009-032-114], supra), and in contrast to defendant’s argument, the Court cannot view DOCS’ actions, in imposing PRS, as being privileged or immune from liability, because DOCS did not have legal jurisdiction or lawful authority to impose any component of sentences on convicted criminals. There were existing statutes that authorized and required the courts, and only the courts, to carry out that function and to do so in the presence of defendant (CPL §§ 380.20, 380.40; see Matter of Garner v New York State Department of Correctional Services, 10 NY3d 358 [2008], supra; People v Sparber, 10 NY3d 457 [2008], supra).

Notwithstanding the foregoing, liability does not automatically attach to defendant simply because DOCS’ imposition of PRS was unlawful. For liability to attach, there must also be an allegation and ultimately proof that DOCS’ actions caused injury to claimant, caused confinement that was not otherwise privileged, before the elements of false imprisonment can be established (see Mickens v State of New York, Ct Cl, Claim No. 114719, Motion Nos. M-75311 and CM-75564, May 18, 2009, Hard, J. [UID #2009-032-114], supra). To establish whether such injury existed, the Court must look to see what would have happened if DOCS had not acted improperly or beyond its authority.

In the present case, DOCS was clearly aware of the defect in the original sentence and commitment order, as evidenced by the action it took, albeit unlawful, to correct the defect. There were lawful alternatives to DOCS’ attempt to correct the defect. Specifically, DOCS could have given notice of the problem to the court and/or the prosecutor and defense attorney (see People v Wright, 56 NY2d 613 [1982]), in which case, claimant would have been properly resentenced by a court before he was released from prison. Claimant’s conviction of robbery in the second degree constitutes a Class C felony (Penal Law § 160.10 ). Accordingly, under the statute that existed at the time claimant was sentenced, the minimum term of mandatory PRS that would have imposed upon claimant is two and one-half years (Penal Law §§ 70.02, 70.45)[2]. If claimant had been properly sentenced, his PRS would have commenced on the date of his release from prison on December 17, 2004, and continued, pending no interruptions in his term, until at least June 17, 2007. Therefore, claimant would have been under PRS when he was declared delinquent on March 17, 2007 (and subsequently arrested and re-incarcerated) with three months remaining in such PRS term. This is not one of the small subset of cases in which a claimant can prove that DOCS’ actions caused at least some period of his confinement.

Based on the foregoing, this Court concludes that claimant has not alleged any facts that, if proven, would support the conclusion that DOCS’ actions alone caused him injury. Accordingly, claimant will be unable to prove the elements of a claim for false imprisonment and defendant’s motion for summary judgment must be granted.

Defendant’s motion for summary judgment is granted and Claim No. 116247 is dismissed. Claimant’s cross-motion for partial summary judgment is denied and claimant’s cross-motion for a change of venue is denied as moot.

June 30, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:
1. Notice of Motion, dated March 10, 2009, and Affirmation of Michael T. Krenrich, AAG, in Support of Summary Judgment, dated March 10, 2009 with Exhibits;
2. Notice of Cross-Motion, dated March 31, 2009, supporting Affidavit of Claimant, sworn to March 23, 2009, and Affirmation of Robert Dembia, Esq., dated

March 31, 2009 with Exhibit.

Filed Papers: Claim, Answer.

[1]. Defendant also argues that Penal Law § 70.45 does not create a private right of action on behalf of individuals who would be subject to the mandatory PRS. However, as this Court set forth in Mickens v State of New York (Ct Cl, Claim No. 114719, Motion Nos. M-75311, CM-75564, May 18, 2009, Hard, J. [UID #2009-032-114]), the presence or absence of a statutory private right of action has no bearing on whether a litigant continues to have a traditional, common law cause of action (such as an action for false imprisonment) arising from the same factual situation, unless the statute specifically abrogates the common law remedy (see generally Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 331 [1983]; Llanos v Shell Oil Co., 55 AD3d 796, 798-799 [2d Dept 2008]).
[2]. If claimant was either a second felony offender sentenced pursuant to Penal Law §70.06, or a second violent felony offender pursuant to Penal Law §70.04, he would be required to serve five years PRS (Penal Law § 70.45; see Mickens, supra).