New York State Court of Claims

New York State Court of Claims
STROZAK v. THE STATE OF NEW YORK, # 2010-015-125, Claim No. 115280, Motion No. M-77438


Defendant's motion for summary judgment dismissing wrongful confinement claim was granted. Although Division of Parole eventually credited claimant's sentence with time incarcerated on a misdemeanor charge, the Penal Law 70.40 required that the credit be limited to the time spent in custody that exceeds the period of imprisonment on the new conviction. Confinement was privileged.

Case information

UID: 2010-015-125
Claimant short name: STROZAK
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115280
Motion number(s): M-77438
Cross-motion number(s):
Claimant's attorney: David Gerald Jay, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 24, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for summary judgment dismissing the instant wrongful confinement claim pursuant to CPLR 3212. For the reasons which follow, the motion is granted without opposition.

The basis of the claim is set forth in paragraph "3" of the claim as follows:

"The claim is for damages sustained by the Claimant through the negligent acts of employees of the State of New York, who failed to give claimant credit for time served in a local correctional facility and illegally extended his parole by eighty days."

In support of the defendant's motion the following facts were established: Claimant was sentenced on September 12, 2005 to an indeterminate term of one to three years imprisonment upon a plea of guilty to robbery in the third degree (Exhibit A, Uniform Sentence and Commitment Order). He was released to parole supervision on January 10, 2006 at which time the maximum term of his sentence was set to expire on December 26, 2007 (Exhibit B). Claimant was declared delinquent in abiding by the conditions of his parole on November 9, 2006 and a parole warrant was issued (Exhibits C and D). Claimant was arrested on November 28, 2006 for criminal possession of a controlled substance, among other charges (Exhibit C). A final parole revocation decision was issued on January 30, 2007, which modified his delinquency date to November 28, 2006 and directed that the claimant be held until the maximum expiration date of his sentence (Exhibit F). On February 22, 2007 Claimant was convicted of criminal possession of a controlled substance in the seventh degree, a misdemeanor, and it was adjudged that he "[b]e imprisoned in the CHAUTAUQUA County Jail for a term of 87 DAYS (TIME SERVED) - CONCURRENT WITH PAROLE SENTENCE" (Exhibit O). Claimant was returned to the custody of the Department of Correctional Services (DOCS) on April 12, 2007 and on April 19, 2007 his maximum expiration date was computed to be December 25, 2007 (Exhibit G), which was subsequently revised to March 21, 2008 (Exhibit H). Claimant was released to parole supervision on November 9, 2007 (Exhibit I), declared delinquent on November 17, 2007 and a parole warrant was issued on November 29, 2007 (Exhibit J). Claimant was arrested and re-incarcerated on January 7, 2008 (Exhibit L). Following a final parole revocation hearing it was directed that he be held to the maximum expiration date of his sentence, now calculated to be March 21, 2008 (Exhibit M & N).

By letter dated March 10, 2008 claimant provided the Division of Parole with a copy of his Certificate of Conviction and requested credit for the time served on the misdemeanor

conviction - November 28, 2006 to February 22, 2007 (Exhibit O). Claimant was granted this credit, which resulted in a revised maximum expiration date of December 25, 2007 (Exhibit P) and his release from DOCS' custody on March 14, 2008.

To establish a cause of action for false imprisonment a claimant must show that "(1) the

defendant intended to confine him, (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]). In support of its motion for summary judgment, defendant established that the claimant's confinement was privileged.

Defendant contends that summary dismissal of the claim is appropriate because, whether or not the Court directed that the claimant's sentence for the misdemeanor charge run concurrently with the prior undischarged sentence, the law requires that where the custody arises on another charge which culminates in conviction, the credit allowed be limited to the time spent in custody that exceeds the term of imprisonment on the new conviction. In this regard Penal Law 70.40 (3) (c) (iii) provides the following:

"(c) 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:

(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)."

Thus, defendant contends that notwithstanding the fact that the Division of Parole eventually credited the claimant with the time served from November 28, 2006 to April 12,

2007, "he was only entitled to parole jail time credit for his incarceration from February 22, 2007 to April 12, 2007, the 49 days he spent incarcerated in Chatauqua County Jail beyond the maximum expiration of his misdemeanor sentence" (affirmation of Michael T. Krenrich dated November 9, 2009, 33).

Defendant's application of Penal Law 70.40 (3) (a) and (c) (iii) finds ample support in the case law and establishes that the maximum expiration date of the claimant's sentence, as initially calculated, was correct (see Matter of Jackson v Molik, 63 AD3d 1330 [2009]; Matter of Davidson v State of N.Y. Dept. of Correctional Servs., 53 AD3d 741 [2008], lv denied 11 NY3d 706 [2008]; Matter of Washington v Dennison, 42 AD3d 830 [2007]; People v Hanna, 219 AD2d 792 [1995]). As noted by the Appellate Division, Third Department, in People v Hanna (219 AD2d at 793), "[t]he extension of defendant's maximum expiration date was caused by the impact of Penal Law 70.40 (3) (a) on the prior undischarged term and not, as defendant claims, proof that County Court failed to impose the promised concurrent sentence " (People v Hanna, 219 AD2d 792 [1995]).

Here, as in Hanna, claimant's prior sentence was interrupted by operation of law when the Parole Board declared claimant delinquent and the interruption continued until the claimant was returned to State custody (Penal Law 70.40 [1] and [3] [a]; see generally People ex rel. Petite v Follette, 24 NY2d 60, 62-63 [1969]). Penal Law 70.40 (3) (c) (iii) requires that the credit allowed on the new conviction "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." Defendant established therefore that the claimant was not entitled to credit for the period he was confined on the misdemeanor conviction (November 28, 2006 to February 22, 2007).

Finally, inasmuch as the period of claimant's confinement was calculated in accordance with the express statutory mandate of Penal Law 70.40 (3) (a) and (c) (iii), any failure to abide by the order of the sentencing court in calculating the term of claimant's sentence was not the cause in fact of the claimant's injuries (Collins v State of New York, 69 AD3d 46, 53 [2009]; Mickens v State of New York, 25 Misc 3d 191 [2009]). Had the Court been alerted to the impact of Penal Law 70.40 [3], the reference to the sentence on the misdemeanor conviction running concurrently with the undischarged term of the prior sentence would have been corrected (id.).

Based on the foregoing, defendant established its prima facie entitlement to summary judgment dismissing the claim (Zuckerman v City of New York, 49 NY2d 557 [1980]). No opposition to the motion having been submitted, the defendant's motion is granted and the claim is dismissed.

March 24, 2010

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated November 9, 2009;
  2. Affirmation of Michael T. Krenrich dated November 9, 2009 with exhibits.