Claimant awarded $125,000 for unlawful confinement following a trial on damages. Claimant was unlawfully confined for 125 days upon an improper parole violation, and he suffered major depressive disorder and post-traumatic stress disorder having been wrongfully confined in a correctional facility where he had been raped by another inmate during a prior lawful confinement.
|Claimant short name:||JACKSON|
|Footnote (claimant name) :||Claimant, a victim of a sexual offense, has filed a written waiver of the confidentiality protections of Civil Rights Law § 50-b (see Civil Rights Law § 50-b  [c]).|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||WEISMAN LAW OFFICE
By: Stewart L. Weisman, Esq.
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: Michael T. Krenrich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 21, 2009|
|See also (multicaptioned case)|
This Court granted claimant's motion for summary judgement on liability, finding defendant liable for claimant's wrongful confinement in a State correctional facility for one hundred five (105) days (see Doe v State of New York, UID # 2008-038-597, Claim No. 114376, Motion No. M-74354, DeBow, J. [May 28, 2008]). The trial of damages was conducted on June 29, 2009 in Albany, New York. Claimant testified at the trial, as did claimant's expert, Michael Holdren, Ph.D., a licensed clinical psychologist. Defendant called no witnesses. After listening to the witnesses testify at trial and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court makes the following findings and conclusions regarding the damages to be awarded to claimant.
I. Claimant's background
Claimant, 34 years old at the time of trial, was born in Syracuse, New York and resided there with his parents until he was approximately 6 years old. At that time, his parents separated and claimant moved to Florida with his mother. He and his mother returned to Syracuse two years later when his parents reconciled. When claimant was 9 or 10 years old, his parents separated again, and thereafter, claimant observed both parents using cocaine. His family encountered financial problems and, according to claimant, he often went hungry, so he became a "runner,"(2) holding packages for drug dealers to earn money to feed himself.
Claimant's involvement with the criminal justice system began at the age of 11 when he was arrested for assault. At the age of 15, claimant was arrested for drug possession, given probation, removed from his mother's custody, and placed with his aunt. Life with his aunt was much better than with his mother, as he was eating regularly and was back in school. Claimant lived with his aunt until age 17 when he became a father for the first time.(3) Claimant felt compelled to "go back to the streets" to provide for his child, so he began to "hustle drugs," mainly marihuana. Claimant was arrested at the age of 18 for drug possession, but the charge was conditionally discharged. He was arrested at age 21 for a traffic infraction, and was incarcerated for 17 days at Jamesville CF, an Onondaga County correctional facility. At age 23, claimant was arrested for possession of a controlled substance and spent 7 days in jail. Claimant held a number of temporary jobs throughout Upstate New York from age 17 through the time of his incarceration in 2001.
Claimant was arrested for the constructive possession of approximately forty (40) pounds of marihuana in December 2000. On September 7, 2001, claimant pleaded guilty to criminal possession of marihuana in the first degree (Penal Law §221.30) and was sentenced to an indeterminate sentence of incarceration of two and one third to seven years.
II. Prior period of incarceration
When claimant went into the state correctional system to serve his sentence, he was sent to Elmira Correctional Facility (CF). Upon his arrival at Elmira CF, he was assigned to B Block as a new inmate for classification, where he remained for approximately seven to ten days. While in B Block, claimant was befriended by an inmate porter(4) known by the name "Akee," who arranged for claimant to help him with his porter duties. One day, Akee motioned to claimant to go into claimant's cell. When claimant's back was turned to Akee, he pushed claimant down from behind, hit claimant in the back of the head, overpowered him, pulled down his pants and anally penetrated him. The incident "ended pretty fast" - approximately three to four minutes - as other inmates were entering the cell block. After the assault, Akee warned claimant not to speak of the incident, and claimant gathered himself up and pretended as though nothing had happened. Claimant testified that if the assault had happened in the "real world" he would have reported the assault, but he did not report it in the prison environment out of fear that he would be branded a "snitch" and would be given a "buck fifty," which is a cut from the mouth to the ear that is given to snitches.
Claimant was transferred to A Block approximately two days after the assault and never saw Akee again. After the assault, claimant experienced anxiety, depression, a low sense of self-worth and had nightmares and difficulty sleeping. Claimant started to feel as though everything about him had changed as the result of the assault, he questioned his masculinity and worried that he would become a homosexual sexually submissive inmate who would change his appearance to look more like a woman. Claimant had thoughts that he may not leave prison and experienced thoughts of suicide the week after the assault. He had difficulty eating for about a week after the assault, and he experienced anal bleeding, headaches, nausea, vomiting, and difficulty defecating due to the anal trauma. Claimant did not seek any medical care for his problems as to do so would be another form of telling what had happened.
Claimant met some inmates in A Block whom he knew from Syracuse, and he felt more protected than he had felt while in B Block. He prayed that he would not be assaulted in the same manner again, and he attempted to avoid other inmates. According to claimant, his eating and sleeping habits became "normal" again by approximately three months after the assault, in late December 2001, at which time he was transferred out of Elmira CF (Defendant's Exhibit A, at 67). Claimant was eventually released from incarceration to parole supervision on December 29, 2003.
III. Period of Parole
After claimant was released to parole supervision he moved to Auburn, New York where he worked for a company called Elder's Choice for approximately six months. He moved to Albany to work for a company called Super Steel, where he was employed for approximately four months. Claimant returned to Syracuse in the spring of 2005 and worked for Dinosaur Barbeque for approximately three and one-half months. He was charged with violating his parole in August and October 2005 for failing two drug tests. Claimant's parole officer recommended that he participate in the High Impact Incarceration Program (HIIP) to remove parole violations resulting from the failed drug tests, and claimant participated in the HIIP from October 29, 2005 through January 19, 2006 while confined at the Onondaga County Justice Center. Claimant completed the HIIP, which he understood to mean that his 2005 parole violations were removed from his record and his parole was not revoked.
In February or March 2006 claimant began employment with Mike's Stone and Masonry Works in Syracuse, installing stone walkways and driveways, cobblestone walls and cement foundations. Claimant worked a regular 40-hour per week schedule for Mike's Stone and Masonry Works (unless inclement weather prohibited work activities) throughout the 2006 good-weather season. In the summer of 2006 claimant also got occasional jobs working as a laborer for an individual named Charlie Bliss who owned two businesses, All in One Security and C & J Tree Service. Claimant generally worked for Bliss on an as-needed basis when he could not work for Mike's Stone and Masonry Works due to inclement weather. Claimant testified that he was paid $17.50 an hour in cash while working for Mike Stone and Masonry Works and Bliss's companies.
Claimant testified that his life took on a greater sense of normalcy once he was out of prison. Claimant became engaged to his girlfriend, the mother of two of his nine children. Claimant testified that he was better able to deal with the trauma he suffered in prison. He testified that thoughts of suicide that he had while he was in prison lingered, although he was able to cope with the thoughts until they eventually went away. Claimant testified that he experienced night sweats, but overall, his life had returned to normal.
IV. Claimant's Arrest and Reincarceration
On January 31, 2007, claimant was arrested and handcuffed by parole officers at a bus station in downtown Syracuse. Claimant asked his parole officer, Thomas Knapp, why he was being arrested. Parole Officer Knapp responded by asking claimant why he was not reporting to him, to which claimant replied that he was "done with parole." Claimant had ceased reporting to Knapp because he understood through "word of mouth" that he was no longer under parole supervision due to a change in the law that terminated his sentence after two years of unrevoked parole.(5) Claimant acknowledged that he had not been notified by the Division of Parole that he was no longer under parole supervision, nor had he inquired of his parole officer whether his parole had been terminated.
Parole Officer Knapp took claimant to the Division of Parole offices in Syracuse, and he was then transferred to Jamesville CF. When he arrived at Jamesville CF, claimant asked officials to look at his records because he believed that he should not be incarcerated for a parole violation if he was no longer under parole supervision. When claimant was served with parole violation charges approximately five days later, he again tried to explain that he was no longer under parole supervision because of the change in the law, and he was told to make this argument at his parole revocation hearing. Claimant testified that he again explained at his revocation hearing on April 3, 2007 that he was no longer under parole supervision, but was told by the hearing officer that he did not have the power to release him, and that the proper remedy was to maintain an action against the Parole Board for his release. Claimant testified that he pleaded guilty at his hearing so that he could file a writ of habeas corpus to secure his release, which claimant later did while at Jamesville CF.(6) As the result of the guilty plea, claimant's parole was revoked and restored, and he was ordered to complete a 90-day program at Willard Drug Treatment Center (DTC), after which he would be released to parole supervision.
Three days after the parole revocation hearing, claimant was transferred from Jamesville CF to a state correctional facility. Up to this point, claimant was angry because he did not know whether or when he would be going home. Upon learning that he was being transferred to a state CF, claimant became anxious, as he knew that he would be sent either to Downstate CF or back to Elmira CF where he had been sexually assaulted. While on the bus, claimant learned that he was indeed headed back to Elmira CF. Claimant became nervous and anxious and got an uneasy feeling inside, but he had to maintain a "tough guy" exterior so as not to appear weak. On the three-hour bus ride to Elmira CF, claimant was chained and shackled at the wrist and ankles to other inmates.
Upon seeing a statue of a guard outside of Elmira CF, claimant became anxious and nervous as he knew he was going back into what he called "Hell's Kitchen." Claimant testified that he felt sick as he entered Elmira CF, and that the memories of the assault started to come back to him. Claimant testified that he was scared, nervous and sick, and traumatized from the smells and sounds of Elmira CF. Claimant testified that he was at Elmira CF for approximately 10 days, during which he did not eat, just sat in his cell a lot, did not want to interact with other inmates, and just "wanted to do [his] time" because he knew he would be going to Willard DTC after a short time at Elmira CF. Claimant had many sleepless nights at Elmira CF, sleeping a total of only three or four nights, and he experienced night sweats when he did sleep. He did not have any thoughts about suicide, but doubted his self-worth as he had done everything he was asked to do, yet ended up in prison nevertheless.
Claimant was transferred to Willard DTC to participate in a 90-day program for parole violators that employs intense military techniques. A typical day at Willard DTC began at 4:45 a.m. with claimant being awakened by a bugler and parolees screaming and yelling, standing at attention, and being counted with the rest of the members of his dormitory. Claimant would then dress and exercise for 45 minutes, take a three-minute shower and then report for breakfast. Claimant prayed that other members of his "platoon" would not do anything to draw attention since the rest of the platoon members could be punished for their behavior. Claimant was concerned that if he flunked out of Willard DTC he would be forced to complete the rest of his original term of incarceration for the marihuana possession charge and would be sent back to state prison. While at Willard DTC, claimant asked a parole officer to help him resolve his parole status issue. The parole officer "blew him off", which angered claimant. Claimant was at Willard DTC for 20 to 30 days until his habeas corpus petition was granted on May 11, 2007, and he was released from incarceration four days later on May 15, 2007.
All told, claimant spent approximately 70 days at Jamesville CF, 10 days at Elmira CF and 25 days at Willard DTC. He testified that during the 105-day period of his reincarceration, he did not have his own free will, and was unable to engage in many of the normal activities that he could engage in when he was out of prison. Claimant's fiancée broke off their engagement during his reincarceration because she felt that he had not changed since initially being released from incarceration. Moreover, his relationships with the other family members suffered as the result of the reincarceration. Claimant had plans to see his children in Albany and North Carolina but was unable to do so because of his reincarceration. He estimated that he missed approximately 75 days of work while he was reincarcerated.
V. Claimant's Life After Release from Reincarceration
After his release in May 2007, some of the symptoms claimant experienced after his assault returned, including sleeplessness, night sweats, nightmares and anxiety. On two occasions, claimant could not perform sexually, and he used marihuana on a regular basis. Claimant had a loss of focus and was depressed, but he did not, however, experience any thoughts of suicide. Claimant had concerns that he could be unlawfully reincarcerated once again. Claimant did not seek counseling because he did not have any health insurance or money to pay for treatment.
Following his release in 2007, claimant tried to work for Mike's Stone and Masonry Works again, but "it just didn't work out . . . [as he] wasn't making the grade" because he "wasn't as focused" as he used to be (Defendant's Exhibit A, at 33-34). Claimant tried to get work with Bliss after his release, but Bliss did not have any work for him. Claimant got a job at an "IHOP" but was fired because he couldn't "keep up," as his brain "wasn't right" after his release. Overall, claimant's work ethic was not as strong as before his reincarceration.
Claimant's life, however, has since turned around. Claimant testified that as of the time of trial he felt "pretty good." Claimant and his fiancée have reconciled and are again engaged to be married. Claimant was baptized in August 2008 and has experienced a spiritual awakening that has helped him cope with his past and his problems. Although claimant has not sought any psychological counseling because he does not have any medical insurance, he believes he needs to see someone to address his mental issues. Claimant testified that he now uses marihuana only on an occasional basis, far less frequently than when he was originally released from reincarceration.
VI. Claimant's Psychological Expert
Michael Holdren, Ph.D., a licensed clinical psychologist(7) , examined claimant for the purposes of assessing claimant's psychological problems and the impact of his reincarceration on his mental health and providing expert testimony in connection with the instant claim. Dr. Holdren conducted clinical interviews with claimant on three occasions in August and September 2007 for a total of approximately 3 hours and 45 minutes.
Based upon his first two clinical interviews of claimant, and his consultation with forensic psychology colleagues, Dr. Holdren administered two tests to claimant, the Personal Assessment Inventory (PAI) and the Trauma Symptom Inventory (TSI) on August 20, 2007. The PAI measures psychological functioning, and the TSI measures posttraumatic stress and other psychological sequelae of traumatic events. Both inventories include validity scales to assess whether the subject was malingering or pretending to have a disorder.
Dr. Holdren noted in his psychological evaluation that claimant's PAI profile is "marked by significant elevations across several scales," including the Stress, Drug Problems, Antisocial Features, Depression, Anxiety and Paranoia subscales (Claimant's Exhibit #2, at 4). Likewise, Dr. Holdren noted that claimant had elevations on several scales in the TSI, including the Intrusive Experiences, Disassociation and Depression subscales (id. at 5). Although certain of claimant's test responses were unusual, Dr. Holdren considered his test results to be valid.
Dr. Holdren diagnosed claimant with Posttraumatic Stress Disorder (PTSD), a psychological disorder that may occur in individuals who have gone through a traumatic event that has impacted their functioning. Dr. Holdren opined that claimant suffered an initial trauma in the form of the sexual assault at Elmira CF, but that prior to his reincarceration, claimant had put the assault behind him and was able to function. Dr. Holdren further opined that being sent back to Elmira CF triggered a PTSD episode, essentially aggravating the preexisting PTSD condition. According to Dr. Holdren, at the time of his psychological assessment, claimant was suffering from numerous symptoms that indicated PTSD, such as ruminating and thinking about the trauma (including nightmares and intrusive thoughts), avoidance of situations that could trigger a re-experience of the trauma, escapist behavior (such as drug and alcohol use and using sexual relations as a coping mechanism), an inability to concentrate and focus, and withdrawal from relationships and negative thoughts about himself.
Dr. Holdren also diagnosed claimant with Major Depressive Disorder (MDD), a psychological depression that is "above and beyond the blues," that lasts for more than two weeks, and has a significant impact on an individual's life. Dr. Holdren concluded that claimant exhibited a number of the symptoms associated with MDD, and that they had a significant impact on his ability to function. Dr. Holdren believes that claimant's depression is the result of his life circumstances after his release from reincarceration, and that his reincarceration may have aggravated a previous MDD condition.
Dr. Holdren was of the belief that claimant could benefit from treatment for both his PTSD and MDD. He testified that PTSD and MDD could be treated simultaneously, and that claimant could be effectively treated in ten to thirty sessions.
"As a general rule, the measure of damages for [unlawful confinement] is such a sum as will fairly and reasonably compensate the injured person for injuries caused by the defendant's wrongful act" (Hallenbeck v City of Albany, 99 AD2d 639, 639 [3d Dept 1984]). Compensatory damages for unlawful confinement are "damages reasonably and proximately caused by the illegal detention," including noneconomic damages for mental anguish, and economic damages for loss of earnings, and medical expenses (2 PJI 3d 3:5.1, III (A), at 47 ). In addition, noneconomic damages may be recovered for the loss of liberty during a period of unlawful confinement (see Emanuele v State of New York, 43 Misc 2d 135 [Ct Cl 1964]; see generally Gardner v Federated Dept. Stores, Inc., 907 F2d 1348 [2d Cir 1990]; Martinez v Port Auth. of New York and New Jersey, 2005 WL 2143333 [SDNY 2005], affd 445 F3d 158 [2d Cir 2006]). In this claim, claimant seeks noneconomic damages for mental anguish, aggravation of his PTSD, and loss of liberty. He also seeks economic damages for the loss of earnings during the unlawful confinement, and for the costs of future outpatient psychotherapy.
Claimant seeks damages for the mental anguish suffered during the 105 days from the time of his arrest for failing to report to his parole officer through his reincarceration, and for the continued mental anguish suffered after his release in May 2007. "The mental anguish suffered by an inmate while he is in prison encompasses his discomfort, fear, lack of privacy and degradation. It is distinct from the continuing type of emotional damage he may suffer after his release from prison" (Baba-Ali v State of New York, 24 Misc 3d 576, at 581-582 [Ct Cl 2009]). Damages attributable to loss of liberty include damages for the loss of the fundamental right to be free, lost opportunities to engage in everyday activities while confined, and for the mental anguish that accompanies the loss of liberty (see e.g. Baba-Ali v State of New York, supra; Kinge v State of New York, UID #2009-009-201, Claim No. 88273, Midey, J. [June 23, 2009]). Claimant urges this Court to make two separate awards for noneconomic damages, one award for his mental anguish and another award for his loss of liberty. The Court declines to do so, as the damages attendant to mental anguish and loss of liberty in this case are so intertwined that they cannot be apportioned in any meaningful way.
Regarding the claimed noneconomic injuries, the Court found claimant to be a credible witness in recounting his mental state while he was unlawfully reincarcerated. Claimant was justifiably angry and indignant over his unlawful confinement, and frustrated by his inability to persuade parole and prison officials that he should not be incarcerated. Further, claimant experienced a diminished sense of self-worth and felt inadequate as he was confined for violating parole when he was no longer under parole supervision. Claimant suffered mental distress because he could not see his family, because his personal relationships deteriorated as the result of his unlawful confinement, and because he was unable to engage in many of the activities he had grown accustomed to while free. The Court notes, however, that claimant's criminal history and previous experience with incarceration - as compared to a claimant with an unblemished record - is properly considered on the issue of claimed mental anguish (see, e.g. Johnson v State of New York, 155 Misc 2d 537, 541 [Ct Cl 1992]). On the other hand, the emotional effect of his wrongful reincarceration at the same facility where he had been sexually assaulted must also be considered in this case. Claimant experienced a genuine sense of anxiety and fear upon being sent to Elmira CF that manifested itself in sleepless nights, night sweats and lack of appetite. The Court credits Dr. Holdren's testimony that being sent back to Elmira CF triggered a PTSD episode and aggravated claimant's MDD while he was incarcerated. After his transfer to Willard DTC, claimant experienced a different kind of mental distress as he was put in a very stressful environment and was in fear of being sent back to state prison. The Court finds that claimant experienced profound emotional trauma during his reincarceration and that the trauma was a direct and proximate result of claimant's unlawful confinement.
Moreover, the Court finds that claimant testified credibly about his mental state following his release from prison. Initially after his release, claimant was in a dark mental state. Claimant experienced continued anxiety that manifested itself in sleeplessness, night sweats and nightmares. Claimant was depressed, lost his focus, resorted to regular use of illegal drugs to escape his problems, and was unable to hold down a job. The Court credits Dr. Holdren's evaluation - made upon an assessment conducted 3 months after claimant's release from prison - that claimant was suffering from the continued effects of PTSD and MDD at that time. Claimant's mental state, however, appears to have improved dramatically during the 21 months between Dr. Holdren's assessment and the time of trial. Claimant presented at trial as a reasonably upbeat and confident individual who seems to be putting his life in order. Therefore, the Court finds that claimant experienced mental and emotional trauma after being released from prison - which has subsided considerably, if not almost completely - and that the trauma was a direct and proximate result of claimant's unlawful confinement.
Claimant testified that he missed approximately 75 days of work during the 105-day period of unlawful confinement, and he computes his damages for lost wages at $10,000.00. Simply put, the Court finds claimant's testimony about his lost wages to be inadequately substantiated and based upon conjecture. Claimant's work history prior to 2006 was anything but consistent. His employment history consists of a patchwork of sporadic, unrelated, relatively short-term periods of employment in a variety of unskilled positions. While claimant was steadily employed in the summer months before his reincarceration, there was no evidence adduced at trial that either Mike's Stone and Masonry or the Bliss companies were willing or able to employ claimant during the period of time that he was wrongfully confined. Notably, the wrongful confinement occurred during the late winter and early spring months, and there was no evidence that either of his previous jobs were not seasonal. There was evidence that Mike's Stone and Masonry Works employed claimant after his reincarceration, but even if that was probative as to the likelihood of continued employment during the time claimant was re-incarcerated, there was no evidence offered regarding the amount of time that claimant would have worked other than claimant's estimation of 75 days. Moreover, claimant testified that Bliss had no work for claimant after his reincarceration, and there was no evidence that work would have been available during the reincarceration. Finally, and assuming that claimant offered persuasive evidence that he lost time at work during his reincarceration, he offered only his testimony - unsubstantiated by any documentary evidence - that he made $17.50 per hour. In sum, it would be overly speculative for the Court to make an award for lost wages during the period of his reincarceration.
Future Outpatient Psychotherapy Damages
Claimant seeks $3,000.00 for future outpatient psychotherapy, relying on Dr. Holdren's testimony that he could benefit from 10 to 30 psychotherapy sessions. The Court found Dr. Holdren to be a credible witness in offering an opinion as to claimant's mental condition as it existed in 2007, and that claimant could have benefitted from psychotherapy at that time. However, Dr. Holdren's examination of claimant and his subsequent conclusions were made nearly 21 months before trial, and he made no subsequent examination of claimant before trial. Therefore, the Court finds unpersuasive Dr. Holdren's opinion that claimant at the time of trial would require outpatient therapy, much less a specific number of counseling sessions. In addition, while Dr. Holdren testified that claimant could benefit from outpatient psychotherapy, there was no testimony that the therapy would be required as a direct and proximate result of the aggravation of claimant's PTSD and MDD conditions. Accordingly, the Court will not make an award for future outpatient psychotherapy.
It is clear to the Court that in addition to the manifest loss of liberty suffered during 105 days of wrongful confinement, claimant suffered mental anguish while he was reincarcerated and after he was released from reincarceration. "The inherently factual finding of damages for [mental anguish] is generally 'left to a [factfinder's] common sense and judgment in light of its common knowledge and experience and with due regard to the evidence presented at trial, including the demeanor and testimony of all witnesses' " (Apuzzo v Ferguson, 20 AD3d 647, 648 [3d Dept 2005], quoting Murphy v Lewry, 235 AD2d 968, 969 [3d Dept 1997]). It is proper for a court to look at other similar cases to determine what would be a reasonable award. After a review of other similar cases involving unlawful confinement and unjust conviction under Court of Claims Act § 8-b, and upon consideration of the evidence of injuries, including the aggravation of claimant's PTSD due to the reincarceration at Elmira CF where he had previously been sexually assaulted, the Court awards damages to claimant as follows:
Noneconomic Damages $125,000
The Court, however, finds that claimant has failed to prove economic damages for lost wages and future psychological counseling and makes no award with regard to either claim for such damages.
The amount awarded herein shall carry interest at the interest rate of 9% per year from the date of the determination of liability on May 28, 2008 (see Love v State of New York, 78 NY2d 540 ).
Claimant also seeks an additional allowance under CPLR § 8303(a)(2) and costs pursuant to CPLR § 8201. Court of Claims Act § 27 provides, however, that, except in certain situations not pertinent here, no costs, disbursements or attorneys fees shall be awarded to any party. Therefore, claimant's request for an additional allowance and costs will be denied. Even assuming, arguendo, that the additional allowance claimant seeks under CPLR § 8303(a)(2) is not a cost, disbursement or attorney fee that would be prohibited under Court of Claims Act § 27, the Court has not been persuaded that this claim is a "difficult or extraordinary case" involving complex legal and factual issues that would warrant such an award.
To the extent that claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a(2).
Any motions or objections not previously ruled upon are hereby DENIED.
The Chief Clerk of the Court of Claims is directed to enter a judgment in accordance with this Decision.
December 21, 2009
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
2. All quotations in this decision are to the Court's trial notes or the digital audio recording of the trial, unless otherwise indicated.
3. Claimant has nine children with five different mothers. Two of claimant's children reside with him and their mother, while the remaining seven reside with their mothers in North Carolina and New York.
4. A porter is an inmate who is responsible for cleaning an assigned area and running errands for correction officers and inmates.
5. Section 37 of Chapter 738 of the Laws of 2004 added subdivision 3-a to Executive Law § 259-j, which requires the Division of Parole to "grant termination of sentence after two years of unrevoked release or parole to a person serving an indeterminate sentence for any [non-A] felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law." Claimant's conviction for criminal possession of marihuana in the first degree was a Class C felony offense under Article 221 of the Penal Law, and as claimant's parole was never revoked, claimant's sentence should have been terminated two years after being released into parole supervision, or on December 29, 2005.
6. Claimant filed a habeas corpus petition in Supreme Court, Onondaga County, seeking release on the ground that his confinement was in violation of Executive Law § 259-j (3-a).
7. Clinical psychologists diagnose, assess and treat patients with psychiatric disorders. Dr. Holdren's written report of his evaluation of claimant was received into evidence as Claimant's Exhibit 2 on stipulation of the parties.