New York State Court of Claims

New York State Court of Claims

HALLETT v. STATE OF NEW YORK, #2009-038-519, Claim No. 115220, Motion No. M-75701


Defendant’s motion for summary judgment in claim for wrongful confinement due to DOCS’s unauthorized imposition of post-release supervision denied for failure of proof on defense of privilege.

Case Information

1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
BERNARD H. BROOME, Esq.By: Jody H. Brackman, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 3, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim seeks damages for injuries allegedly sustained as a result of defendant’s unauthorized imposition of a period of post-release supervision (PRS) to be served by claimant following his completion of a determinate sentence of incarceration. Defendant moves pursuant to CPLR 3212 for summary judgment dismissing the claim. Claimant opposes the motion.

The facts relating to claimant’s conviction, his sentencing, the imposition of a period of PRS, and his re-incarceration upon violations of that PRS are set forth in the verified claim, and are concededly undisputed (see Krenrich Affirmation, ¶ 3). On November 7, 2001, claimant was sentenced as a second violent felony offender to a determinate term of five years of incarceration for a conviction upon his guilty plea for attempted burglary in the second degree (see Brackman Affirmation, Exhibit C).[2] The verified claim asserts that the sentencing judge never pronounced PRS as part of claimant’s sentence, and the order of sentence and commitment did not state that claimant’s sentence included a five-year period of PRS (id.), however the Department of Correctional Services (DOCS) determined that claimant was to be under PRS for five years. Claimant was released from Wyoming Correctional Facility on October 12, 2005, at which time he was placed on PRS with restrictive conditions, including curfew. Claimant was arrested on alleged curfew violations on January 2, 2008, and was re-incarcerated until he was released from custody on March 18, 2008 pursuant to a writ of habeas corpus that was issued by Supreme Court, Bronx County (see Krenrich Affirmation, Exhibit B). The claim alleges that claimant “was wrongfully placed on post release supervision for a five year period . . . [and] was unlawfully arrested, wrongfully detained and falsely imprisoned” (Claim, ¶ 2). The claim seeks compensatory damages for the period of time that claimant was in the community under PRS, as well as the period of time during which he was re-incarcerated due to the violations of the conditions of his PRS.

This claim arises from DOCS’s administrative application of the provisions of “Jenna’s Law” (L 1998, ch 1), which, among other things, mandates that all violent felony offenders be subject to a period of PRS after completion of a determinate sentence of incarceration in the custody of DOCS. In this claim, a period of PRS was never pronounced by the court that sentenced claimant, nor was PRS recorded in the order of sentence and commitment (see Brackman Affirmation, Exhibit C). Rather, DOCS calculated claimant’s sentence to include the mandatory five-year period of PRS. After years of litigation in untold numbers of cases arising from the omissions of sentencing courts to pronounce PRS as part of sentences, the Court of Appeals last year held that, as a matter of State statutory law, DOCS lacked the authority to impose a period of PRS because such authority is reposed exclusively in the sentencing judge (see Matter of Garner v New York State Dept. Of Correctional Servs., 10 NY3d 358, 362 [2008]; see also People v Sparber, 10 NY3d 457, 469-470 [2008] [holding that sentencing court must pronounce PRS as part of the sentence]). The instant claim, which was filed less than two weeks after the Court of Appeals handed down its decisions in Garner and Sparber, is among the first of a rising tide of claims filed in the Court of Claims seeking money damages for wrongful confinement.[3]

The claim does not expressly assert a constitutional cause of action, and defendant characterizes the claim as alleging a common law tort in the nature of unlawful confinement, a characterization with which claimant agrees (see Brackman Affirmation in Opposition, p. 3).[4] Defendant’s motion asserts that defendant is entitled to judgment as a matter of law because claimant cannot satisfy all of the elements of a cause of action for unlawful confinement, which are that: “(1) the defendant intended to confine [claimant], (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]; see Gittens v State of New York, 132 Misc 2d 399, 402 and 407 [wrongful confinement is a “species” of false imprisonment]). Specifically, defendant contends that DOCS’s action in discharging claimant to a five-year period of PRS was privileged because DOCS’s conduct in doing so “was under color of law” (Gittens v State of New York, supra at 402), and therefore, claimant cannot prevail on the fourth element of his cause of action. The gravamen of defendant’s argument is that because claimant was required by Jenna’s Law to be subject to a period of PRS, DOCS was merely following the law by imposing a period of PRS when the sentencing court had not done so, and its imposition of a period of PRS was therefore privileged. Defendant’s motion cannot be granted, for the reasons that follow.

First and foremost, defendant has noticed and argued its motion as one for summary judgment pursuant to CPLR 3212, yet the motion is unsupported by an affidavit by a person having knowledge of the facts, as required by CPLR 3212(b). Manifestly, counsel’s affirmation – to the extent it asserts facts relevant to the legal theory posited in the motion – is insufficient to support the motion (see Salas v Town of Lake Luzerne, 265 AD2d 770, 770-771 [3d Dept 1999]). To the extent that a verified pleading may be used as an affidavit setting forth the proof in support of a motion (see CPLR 105 [u]), the verified answer in this claim is insufficient because while privilege and immunity are apparently asserted together as defenses (see Verified Answer, ¶ Third), the verified answer contains no facts in support thereof. Moreover, even if the verified answer provided sufficient facts in support of the motion, counsel has not submitted the affidavit of a person with personal knowledge of the relevant facts “to attest that ... the attacked claim ... has no merit, a pro forma recitation exacted of all summary judgment movants under CPLR 3212(b)” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:15, at 26).

Secondly, to the extent that this deficiency may be overlooked, the Court is of the view that defendant has misapprehended the question of privilege in this motion. In arguing the motion, counsel has blended the related, but distinct, theories of immunity and privilege (see Krenrich Affirmation, ¶¶ 11 and 12). Immunity – whether absolute or qualified – insulates the defendant from liability, and derives from the nature of the governmental actor’s responsibility and the public policies to be protected by affording an actor immunity (see Arteaga v State of New York, 72 NY2d 212, 216 [1988]; Tarter v State of New York, 68 NY2d 511, 518-519 [1986]). In contrast, “privilege” is a defense in the nature of justification, i.e., that the actor’s decision, though later proven to be wrong, was nevertheless reasonable and justified when made (see Restatement [Second] of Torts: Immunities § 895D, Comment e). In the instant motion, defendant’s invocation of the defense of privilege – as opposed to claiming immunity – requires defendant to demonstrate that DOCS was acting in an objectively reasonable manner when it administratively imposed a period of PRS or determined that a period of PRS was automatically included in determinate sentence (see Arteaga v State of New York, supra at 226 [Simons, J., dissenting] [the “defense of privilege shield[s] the officer from liability for objectively reasonable but mistaken exercises of judgment”]; cf. Pierson v Ray, 386 US 547, 555 [1967] [officers should not be held liable for “acting under a statute that [was] reasonably believed to be valid but that was later held unconstitutional”]).

In asserting the defense of privilege and arguing that defendant was acting under color of law, defendant mischaracterizes the issue to be resolved. The issue is not whether DOCS was acting lawfully because Jenna’s Law mandated that claimant serve a period of PRS, as the Court of Appeals has already decided that DOCS did not have the authority to administratively impose a period of PRS (see Matter of Garner, supra). Rather, the issue is whether DOCS was acting in an objectively reasonable manner when it determined that it could lawfully add the PRS term that was required by statute, or that the PRS term was automatically included in claimant’s sentence. In support of its motion, defendant cites no express statutory or regulatory authority allowing DOCS to impose PRS (compare Gittens, supra, at 402 [DOCS’s determination “was privileged to the extent that was under color of law or regulation, specifically in accordance with regulations [7 NYCRR 251-1.6 (a)]” [emphasis supplied]), nor does it expressly claim any inherent power to step in and fill the gap that was created between the PRS mandate of Jenna’s Law and the sentencing court’s omission to pronounce the period of PRS. Thus, to establish that it was acting under color of law, this Court is of the view that defendant must demonstrate that DOCS was acting in an objectively reasonable manner when it concluded that it could administratively add the period of PRS to claimant’s sentence or that the PRS term was automatically included therein. On this motion for summary judgment as a matter of law, defendant has not made such a demonstration, and thus, the motion cannot be granted.

Defendant is certainly free to chart its own course in defending this claim. It may rely on a claim of immunity or the defense of privilege, inasmuch as both are asserted in the verified answer. A party is entitled to choose among the procedural devices available for accelerated judgment, but defendant must litigate the claim in conformity with its chosen legal theory as well as the procedural rules of the motion it chooses. Having failed to do so here, defendant’s motion for summary judgment must be denied for a failure of proof. Accordingly, it is

ORDERED, that Motion No. M-75701 is DENIED without prejudice.

March 3, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 115220, filed May 7, 2008;

(2) Verified Answer, filed June 16, 2008;

(3) Notice of Motion, dated October 20, 2008;

(4) Affirmation of Michael T. Krenrich, AAG, dated October 20, 2008, with Exhibits A-D;

(5) Affirmation in Opposition and Memorandum of Law of Jody H. Brackman, Esq.,

filed November 7, 2008, with Exhibits A-C;

(6) Affirmation in Reply of Michael T. Krenrich, AAG, dated December 1, 2008.

[2]. To the extent that claimant contends that he was not a second violent felony offender because he was a first time felony offender and was convicted of a non-violent crime (see Brackman Affirmation, p. 4), it is undisputed that he was convicted of attempted burglary in the second degree (Penal Law §§ 110 and 140.25) , which is statutorily defined as a class D violent felony offense (see Penal Law § 70.02 [c]). Further, such an argument is collateral to the instant claim for damages, and a remedy for allegedly erroneous adjudication or sentencing must be sought on direct appeal from the judgment of conviction, or in the sentencing court (see CPL 440.20).
[3]. The instant claim is one of more than twenty claims seeking compensation for unlawful PRS that have been assigned to date to the undersigned alone. The arguments presented by defendant in the instant motion are identical to five motions by defendant pursuant to CPLR 3212 that are pending before the undersigned in other PRS claims.
[4]. Defendant’s argument in support of judgment as a matter of law on the ground that claimant does not have a private right of action under Jenna’s Law (see Krenrich Affirmation, pp. 4-7) is manifestly misplaced. Although the claim complains of the unauthorized application of Jenna’s Law, it is not capable of being construed as seeking damages pursuant to Jenna’s Law.