State's motion pursuant to CPLR 3212 seeking dismissal of Claim alleging wrongful confinement beyond maximum release date granted and Claim dismissed.
|Claimant short name:||RIVERA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||MICHAEL R. SCOLNICK, P.C.
By: Michael R. Scolnick, Esq.
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Paul F. Cagino, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 24, 2009|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's motion for summary judgment is granted dismissing the Claim pursuant to CPLR 3212.
The Claim, which was filed with the Clerk of the Court on August 24, 2007, alleges that Claimant served a Notice of Intention to File a Claim upon the Attorney General on October 19, 2006. Claimant asserts that his imprisonment at Auburn Correctional Facility in Auburn, New York, from August 9, 2006 to September 25, 2006, was unlawful because it was beyond his maximum expiration date of August 9, 2006.
On July 3, 2001, Claimant was sentenced to a State term of imprisonment of two to four years, with a maximum expiration date of March 6, 2005 (Claim, ¶ 7; Exs. D and E attached to State's Motion).
Claimant was released on parole in 2002 (Claim, ¶ 8; Ex. D) and, following a parole violation, and subsequent interruption in Claimant's sentence, in 2004 his maximum expiration date was recalculated. Claimant asserts that the new date was July 11, 2006 (Claim, ¶¶ 9 and 10). Defendant maintains that the new date was August 11, 2006 (Exs. F and G attached to State's Motion).
On March 8, 2006, Claimant was arrested, detained and subsequently pled guilty to an assault charge (Claim, ¶ 10; Ex. H attached to State's Motion). The State Board of Parole declared Claimant delinquent as of that date (Ex. H attached to State's Motion).
On June 29, 2006, Claimant was sentenced to a local term of six months imprisonment in connection with the assault charge to run concurrently with his parole time (Claim, ¶ 10; Ex. I attached to State's Motion). Claimant was incarcerated at Rikers Island under the jurisdiction of the New York City Department of Corrections (Ex. J attached to State's Motion).
On July 5, 2006, Claimant was released on warrant to the New York State Department of Correctional Services (DOCS) after serving four months of the six-month sentence for the assault conviction (Ex. K attached to State's Motion), but he remained at the Rikers Island Jail until July 18, 2006 (Exs. K and L attached to State's Motion). On July 19, 2006, Claimant was transferred to the Ulster Correctional Facility, resuming his interrupted original sentence (Ex. L attached to State's Motion).
Defense Counsel states that, upon his return to DOCS' custody, Claimant's maximum expiration date was recalculated to December 8, 2006 to reflect the interruption and time spent in custody following the assault arrest (Affirmation of Paul F. Cagino, Esq. in support of State's Motion, ¶ 14). He was credited with 14 days of parole jail time against his original sentence for the time spent incarcerated on Rikers Island from his release on warrant to DOCS on July 5, 2006, to his final day on Rikers Island on July 18, 2006 (Exs. K and N attached to State's Motion). Claimant did not receive any parole jail time credit against his original sentence for the four months he spent incarcerated in satisfaction of his assault sentence from March 8, 2006 to July 4, 2006 (Ex. N attached to the State's Motion).
On July 31, 2006, Claimant requested his maximum expiration date be recalculated (Ex. O attached to State's Motion). The Division of Parole informed Claimant that he was not entitled to any additional credit unless the assault sentence was directed to run concurrently with his original term. Claimant was informed that, if the two sentences were supposed to run concurrently, he must have the Court send the Division of Parole a "Certificate/Commitment with a raised seal stating concurrent. Once it [was] received [his] time [would] be adjusted" (id.).
On September 14, 2006, Claimant filed an application for a Writ of Habeas Corpus that was to have been heard on September 28, 2006 (Claim, ¶ 16).
On September 21, 2006, the Division of Parole received an amended sentencing order from the Court that clearly stated that Claimant's assault charge was to run concurrently with his original term (Ex. P attached to State's Motion).
On September 22, 2006, the Division of Parole revised Claimant's parole jail time credit (Ex. Q attached to State's Motion). In accordance with Division of Parole Policy and Procedures Manual Item #9423.00 (Ex. R attached to State's Motion), Claimant's entire period of incarceration in local custody following his March 8, 2006 arrest to his return to Auburn Correctional Facility on July 19, 2006 (133 days) was credited against his original sentence (Ex. Q attached to State's Motion). Thus, Claimant's parole jail time credit was increased from the initial 14 days to 133 days. This resulted in a revised maximum expiration date of August 9, 2006 (Ex. S attached to State's Motion). DOCS released Claimant from State custody on September 25, 2006 (id.; Claim, ¶ 19).
Claimant alleges that he was unlawfully imprisoned for the 47 days between his revised maximum expiration date of August 9, 2006 and his actual release date of September 25, 2006 (Claim, ¶¶ 20-26).
Defendant acknowledges that Procedure I(C)(1)(c) of the New York State Division of Parole Policy and Procedures Manual Item #9423.00 (Ex. R attached to State's Motion) provides that:
[Where] the violator received a new definite term running concurrently with an undischarged portion of the present [S]tate sentence, the violator shall receive parole jail time credit starting from the date of arrest or the date of lodging of the parole warrant, whichever occurs first. (Affirmation of Paul F. Cagino, Esq., ¶ 22).
Defense counsel further asserts, however, that:
23. The policies and procedures contained in the Division of Parole's Policy and Procedure Manual are internal guidelines, and are not promulgated by an express grant of legislative authority, and thus do not have the force of law. Matter of Bratton v. New York State Board of Parole, 23 A.D.3d 879, 880 (3d Dept. 2005); People ex rel. Allah v. New York State Board of Parole, 158 A.D.2d 328, 329 (1st Dept. 1990); People ex rel. MacKelvey v. New York State Division of Parole, 138 A.D.2d 549, 551 (2d Dept. 1988), lv denied [72 NY2d 802] (1988). As such, these guidelines are not properly enforceable by this court. Allah, 158 A.D.2d at 329).
24. New York State Penal Law dictates how any subsequent time spent in custody by a parole violator is credited against the original sentence, and against any new sentence imposed by the court. People v. Hanna, 219 A.D.2d 792 (3d Dept. 1995); [see] Matter of Jeffrey v. Ward, 44 N.Y.2d 812 . The parole jail time credit allowed by Procedure [I] (C) (1) (c) of the New York State Division of Parole Policy and Procedure Manual Item #9423.00 is contradictory to the express provisions of New York State Penal Law. See Pen. Law § 70.40 (3) (c) (iii).. . .
28. Penal Law § 70.40. (3) (c) provides
Any time spent by a person in custody from the time of delinquency to the time service of the sentence resumes shall be credited against the term or maximum term of the interrupted sentence, provided: (i) that such custody was due to an arrest or surrender based upon the delinquency; or (ii) that such custody arose [from an arrest] on another charge which culminated in a dismissal or an acquittal; or (iii) that such custody arose [from an arrest] on another charge which culminated in a conviction, but in such case, if a sentence of imprisonment was imposed, the credit allowed shall be limited to the portion of the time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction. (Emphasis added) (Affirmation of Paul F. Cagino, ¶¶ 23, 24, 28).
It is the State's contention that, while Penal Law § 70.25(1) allows a sentencing court to impose a concurrent sentence in cases where the person is "subject to any undischarged term of imprisonment imposed at a previous time by a court of this state," the credit to which such person is entitled is controlled by Penal Law § 70.40(3)(c) (id., ¶ 27; Matter of Edwards v Preiser, 51 AD2d 888, 889 [4th Dept 1976]; see People v Hanna, 219 AD2d 792, supra at 792).
The State argues that, even if a local court imposes a new sentence to be served concurrently with the parole violator's original sentence, Penal Law § 70.40(3)(c)(iii) "does not allow the time spent in local custody as a result of a new conviction to be credited against the original term" (id., ¶ 29; People v Hanna, 219 AD2d 729, supra at 793; People ex rel. Ternaku v Lefevre, 58 AD2d 932, 933 [3d Dept 1977]).
Thus, the State asserts that the recalculation of Claimant's release date under DOCS' internal guidelines actually provided Claimant with a windfall since it erroneously advanced his expected release date from December 8, 2006, to his actual release date of September 25, 2006 (Affirmation of Paul F. Cagino, Esq., ¶ 28). The State further asserts that the same windfall occurred even if Claimant is correct that his maximum expiration date prior to his having been declared delinquent on March 8, 2006 was July 11, 2006, rather than August 11, 2006, as Defendant maintains. The State argues that, in that event, Claimant's new statutory maximum expiration date would have been November 8, 2006 and, thus, he still was released early.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93, 94 [Sup Ct, Albany County 1965]), affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case"(Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, supra at 324; see Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra at 853).
The Appellate Division, Third Department, in a case where a second term of imprisonment was to run concurrently with a previously-imposed sentence, held that:
the prior sentence was automatically interrupted when the Parole Board declared him delinquent and the interruption continued until defendant was returned to prison (see, Penal Law § 70.40[a]). Although defendant received credit against the new sentence for the time he spent in County Jail on the charges which culminated in the new sentence (see, Penal Law § 70.30), he was not entitled to credit for that jail time against the prior undischarged term which had been interrupted (see, Penal Law § 70.40[c]) (People v Hanna, 219 AD2d 792, supra at 792).
In another case, the Third Department stated that petitioner's original prison sentence was interrupted on the date of his parole delinquency until he was returned to State custody. The Court held that petitioner was not entitled to parole jail credit for time he spent in local custody after his arrest on the new charges because "Penal Law § 70.40(3)(c)(iii) provides that such credit is only applicable to the extent that the time served in local custody exceeds the maximum term of imprisonment imposed on the new conviction" (Matter of Washington v Dennison, 42 AD3d 830, 831 [3d Dept 2007], lv denied 9 NY3d 813 ).
Here, Claimant was declared delinquent on March 8, 2006 (Ex. H attached to State's Motion). His new sentence of six months for the assault charge was imposed on June 29, 2006. He remained in local custody until July 5, 2006, when he was released on warrant to DOCS (Ex. K attached to State's Motion). Claimant served four months of his six-month assault sentence prior to being returned to the custody of DOCS (March 8, 2006 to July 5, 2006). Thus, Claimant's time in local custody did not exceed the maximum term of imprisonment imposed on the assault conviction, i.e., six months.
The Court finds that the State has made a prima facie showing of entitlement to judgment, as a matter of law, that Claimant was not imprisoned unlawfully for 47 days, from August 9, 2006 to September 25, 2006, because Claimant's correct maximum release date, as calculated in accordance with Penal Law § 70.40(3)(c)(iii), was December 8, 2006. The August 9, 2006 date was determined pursuant to Procedure I(c)(1)(c) of the New York State Division of Parole Policy and Procedures Manual Item 9423.00, which, in a case such as this, provides that the violator receive additional parole jail time credit that is contrary to the provisions of Penal Law § 70.40(3)(c)(iii) and, thus, that Claimant's release from custody on September 25, 2006 was a windfall to Claimant.
Given Defendant's prima facie showing, it is incumbent upon Claimant to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his Claim, or else he must demonstrate an acceptable excuse for his failure to meet the requirement; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Zuckerman v City of New York, 49 NY2d 557, 562 ; Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281-282 ; Fried v Bower & Gardner, 46 NY2d 765, 767 ; Platzman v American Totalisator Co., 45 NY2d 910, 912 ; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 ).
In opposition to the motion, Claimant has submitted only the Affirmation of his counsel. Counsel does not contest any of the essential facts as asserted by Defendant. Rather, his argument is that the sentencing judge directed the new prison term to run concurrently with the existing prison term and that, combined with the Division of Parole's Policy and Procedures Manual Item 9423.00 Procedure I(C)(1)(c), he asserts "trumps the provisions of Penal Law § 70.40(3)(c)(iii)" (Affirmation of Michael R. Scolnick. Esq., in opposition to State's Motion, unnumbered paragraph, p. 5). Claimant has not referred the Court to any case law to support his position. The cases to which Claimant does refer are Post Release Supervision (PRS) cases where DOCS administratively imposed PRS on prisoners even though the sentencing court did not. It was determined that DOCS did not have the authority to impose PRS when the sentencing judge did not specifically impose such a condition.
Here, Penal Law § 70.40(3)(c)(iii) and case law establish that, even if a sentencing judge directs that a second term of imprisonment is to run concurrently with a prior term, the time spent in local custody, as opposed to State custody, with respect to that second offense is to be credited against the first term of imprisonment only to the extent the time so-served exceeds the new sentence imposed. Here, Claimant spent four months of a six-month sentence in local custody and, pursuant to Penal Law § 70.40(3)(c)(iii), was not entitled to credit for such time against his original maximum expiration date despite the Division of Parole's directive to the contrary.
Thus, the Court finds that Claimant's submission is insufficient to overcome Defendant's prima facie showing of entitlement to judgment. Therefore, Defendant's motion for summary judgment is granted and the Claim is dismissed.
August 24, 2009
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion for summary judgment dismissing the Claim:
Notice of Motion, Affirmation in Support
& Exhibits Attached 1
Affirmation in Opposition 2
Filed Papers: Claim, Answer