New York State Court of Claims

New York State Court of Claims

HUGER v. THE STATE OF NEW YORK, #2009-032-135, Claim No. None, Motion No. M-75946


Synopsis



Case Information

UID:
2009-032-135
Claimant(s):
SEAN HUGER
1 1.The Court sua sponte amends the caption to reflect the only properly named defendant.
Claimant short name:
HUGER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court sua sponte amends the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-75946
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Getz & BravermanBy: Michael I. Braverman, 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:
August 6, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant has filed a motion for permission to file a late claim alleging personal injuries suffered as a result of an unjustified incarceration. Defendant opposes the application on the basis that the proposed claim lacks merit and that movant has failed to set forth an excuse for the failure to timely file and serve the claim.

FACTS
Movant was convicted of two counts of attempted robbery in the second degree. On January 6, 2000, he was sentenced as a second violent felony offender to a five year determinate term. The sentence and commitment order was silent as to post release supervision (PRS). However, upon his release from custody, movant was placed on five years PRS by the Department of Correctional Services (DOCS). Sometime thereafter, it appears that movant violated the conditions of said PRS and was returned to the custody of the DOCS. On May 15, 2008, defendant inquired with the lower court as to whether or a not a period of PRS was ever imposed. Movant alleges that, he was released from prison on July 2, 2008, after no response from the court was received. Following his release, he filed the instant motion.

Defendant argues that the proposed claim has no merit, and that the motion for permission to file a late claim should therefore be denied. Specifically, defendant argues that there can be no cause of action for unlawful imprisonment because even if the administrative imposition of PRS was improper, PRS was a mandatory component of the determinate sentence issued to movant, making movant’s confinement privileged and defendant’s actions immune from liability.
LAW
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10[6]). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the State was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10[6]). The presence or absence of any one of the factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant’s application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).

The original version of Penal Law § 70.45, which was in effect at the time movant 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 the 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 PRS 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], 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 also must be an allegation and ultimately proof that DOCS’ actions caused injury to movant and 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, movant would have been properly resentenced by a court before he was released from prison. Movant’s conviction of attempted robbery in the second degree constitutes a Class D violent felony (Penal Law § 70.02[1][c]). Under the statute that existed at the time movant was sentenced, the minimum term of mandatory PRS that would have imposed upon movant as a Class D violent felony offender is one and one-half years (Penal Law §§ 70.45[2][e]). However, because movant was convicted as a second violent felony offender, the minimum term of PRS that would have been imposed upon him is five years (Penal Law §§ 70.00[6], 70.45 [2]).
The moving papers in this case are silent as to when movant was released from prison following the completion of his determinate sentence, when the term of PRS commenced, when and how movant allegedly violated said PRS, and how much of the term of PRS remained at the time movant was arrested for allegedly violating said PRS. However, based upon the fact that DOCS imposed a five year term of PRS, which is the same amount of time the Court would have been constrained to impose, it cannot be said that any of the time movant served under PRS was caused solely by DOCS’ actions. Accordingly, this Court finds that movant has failed to set forth that the proposed claim has merit (see Mickens v State of New York, Ct Cl, Claim No. 114719, Motion No. M-75311 and CM-75564, May 18, 2009, Hard, J. [UID
#2009-032-114]).
Based upon the foregoing, even if the Court were to find that a similar claim would be timely against a citizen of the State, that defendant had notice of the essential facts constituting the claim, that defendant had an opportunity to investigate the circumstances underlying the claim, that defendant was not substantially prejudiced by the delay, and that movant did not have any other available remedy, the fact that movant has failed to allege a meritorious cause of action, coupled with movant’s failure to offer an excusable reason for his delay, requires denial of the motion seeking leave to file a late claim.
Based upon the foregoing, movant’s motion is denied.
August 6, 2009
Albany, New York
HON. JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, dated December 4, 2008, and Affirmation of Michael I. Braverman, Esq, dated December 4, 2008, with Exhibits;
2. Affirmation in Opposition of Michael T. Krenrich, AAG, dated December 23, 2008;
3. Affirmation in Further Opposition of Michael T. Krenrich, AAG, dated May 8, 2009, with Exhibits.