Claim for unlawful imprisonment based upon administrative imposition of postrelease supervision is dismissed following the decision of the Appellate Division, Fourth Department, in Collins v State of New York (69 AD3d 46 ).
|Claimant short name:||RIVERA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Joel Berger, 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:||April 20, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.
The gravamen of the instant claim is unlawful imprisonment based upon the administrative imposition of a 5-year term of postrelease supervision ("PRS") by the Division of Parole (the "Division"). Claimant was convicted of attempted robbery in the first degree and sentenced to a six-year determinate prison term on May 10, 2000 (defendant's Exhibit A). He was released from prison on February 4, 2005 at which time a five-year period of PRS was imposed by the Division of Parole (defendant's Exhibit B). Claimant was arrested for criminal possession of a controlled substance on January 29, 2008 and, following the issuance of a parole warrant, declared delinquent in abiding by the conditions of his parole as of the date of his arrest (defendant's Exhibits C and D). On February 13, 2008 claimant was convicted upon a plea of guilty to criminal possession of a controlled substance in violation of Penal Law § 220.03 (defendant's Exhibit C). Following a final parole revocation hearing on April 21, 2008, his delinquency date was modified to February 13, 2008 and a 12-month delinquent time assessment imposed unless claimant enrolled in a 90-day drug treatment program operated by the Department of Correctional Services ("DOCS") (defendant's Exhibit F).
Following the Court of Appeals' decisions in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 ) and People v Sparber (10 NY3d 457 ), which held that a term of PRS is not automatically included in the pronouncement of a determinate sentence, Correction Law § 601-d was adopted in order to provide a framework for identifying those individuals for whom the order of commitment did not specify a PRS term and correcting their sentences. Claimant was identified as such an individual and DOCS notified the Court accordingly (defendant's Exhibit H). By Order of the Honorable Charles H. Solomon, A.J.S.C., dated June 8, 2008, DOCS was ordered to calculate the claimant's term of imprisonment without any term of PRS (defendant's Exhibit H ), resulting in claimant's release from prison on June 10, 2008 (defendant's Exhibit I, ¶ 12).
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 ), cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ). Here, the claimant's confinement for violating the conditions of his administratively imposed term of PRS was privileged.
The Court of Appeals held in both Matter of Garner v New York State Dept. of Correctional Servs. (supra) and People v Sparber (supra) that only a sentencing judge may impose the PRS component of a sentence, thereby invalidating the longstanding practice of administratively imposing statutorily required periods of PRS. In the wake of these decisions, numerous claims for false imprisonment, arising from periods of confinement imposed for violations of a term of PRS not authorized or directed at sentencing, have been commenced in this Court with varying results (see e.g. Nazario v State of New York, 24 Misc 3d 443 ; Mickens v State of New York, 25 Misc 3d 191 ; Donald v State of New York, 24 Misc 3d 329 ). In Collins v State of New York (69 AD3d 46 ) the Appellate Division, Fourth Department, recently addressed the merit of such a claim in an appeal arising from the denial of an application for late claim relief. In that case, the Court held that movant's confinement was privileged because the Division of Parole was acting in excess of its jurisdiction and not in the complete absence thereof, citing, inter alia, Matter of Garner (supra). The Court noted that DOCS and the Division of Parole are not always precluded from "clarifying" sentences and cited as a recent example People ex rel. Gill v Greene (12 NY3d 1 ) in which the Court of Appeals held that it was proper for DOCS to calculate sentences to run consecutively, as required by statute, where the sentencing court failed to specify whether the sentence was to run concurrently or consecutively with a previous undischarged sentence. Thus, the Collins Court found that the Division of Parole, like DOCS, was not "wholly without jurisdiction or without 'some competence over the cause' " (Collins v State of New York, 69 AD3d at 53, quoting Nuernberger v State of New York, 41 NY2d 111, 113 ). The Court concluded that claimant's confinement for a violation of an administratively imposed term of PRS was privileged, stating: "[The Division] simply acted in excess of the jurisdiction it did have, and we thus conclude that its actions were privileged and that claimants are unable to establish a claim for unlawful imprisonment" (Collins v State of New York, 69 AD3d at 53).
The claimant here was sentenced on May 10, 2000 to a six- year determinate prison term for attempted robbery, a class B violent felony offense (Penal Law § 70.02  [a]). As Penal Law § 70.45 (2) was then written, a five-year period of PRS was mandated for a class B violent felony offense unless the sentencing Judge prescribed a shorter period not less than 2 ½ years:
"Period of post-release supervision. The period of post-release supervision for a determinate sentence shall be five years . . . provided, however, that when a determinate sentence is imposed pursuant to section 70.02 of this article, the court, at the time of sentence, may specify a shorter period of post-release supervision of not less than two and one-half years upon a conviction for a class B or class C violent felony offense . . ."
Consistent with the then-prevailing decisional law and Penal Law § 70.45 (former )(1) (see e.g. People v DePugh ,16 AD3d 1083, 1083 ; Matter of Deal v Goord, 8 AD3d 769 ; People v Hollenbach, 307 AD2d 776 , lv denied 100 NY2d 642 ; People v Crump, 302 AD2d 901 , lv denied 100 NY2d 537 ; People v Bloom, 269 AD2d 838 , lv denied 94 NY2d 945 ), the Division of Parole imposed a five-year term of PRS upon claimant's release from prison although no reference to this component of the sentence appeared in the sentencing minutes (defendant's Exhibit B, Certificate of Release To Parole Supervision; claimant's Exhibit, sentencing minutes). Here, as in Collins, while the Division exceeded its jurisdiction in imposing the five-year PRS term, it was not acting in the complete absence of jurisdiction. Thus, the claimant's confinement for a violation of the administratively imposed term of PRS was privileged.
Moreover, to the extent the PRS term imposed by the Division was statutorily mandated (see Penal Law § 70.45 [former 2]), the claimant is unable to establish that he suffered injury as the result of the Division's conduct. As stated by the Court in Collins v State of New York (69 AD3d at 53):
"At the time claimant was sentenced as a second felony offender based on his conviction of a class E violent felony, a five-year period of PRS was mandated (see Penal Law § 70.45 [former (2)] ). Thus, if the sentencing court had been alerted to the fact that it failed to impose a period of PRS, the court would have imposed the same five-year period of PRS at the resentencing hearing that the Division itself imposed. While the procedure by which the period of PRS was imposed was improper, the actual imposition thereof was not. We therefore conclude that claimants cannot establish that they were injured by the Division's imposition of a period of PRS" (Collins v State of New York, 69 AD3d at 53, citing Mickens v State of New York, 25 Misc 3d 191 ).
Based on the foregoing, defendant's motion for summary judgment is granted and the claim is dismissed.
April 20, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered following papers:
1. Notice of motion dated January 29, 2010;
2. Affirmation of Michael T. Krenrich, Esq. dated January 29, 2010 with exhibits;
3. Affirmation of Joel Berger, Esq. dated March 29, 2010 with exhibit;
4. Affirmation in reply of Michael T. Krenrich, Esq. dated April 5, 2010.
1. Penal Law § 70.45 (former ) provided that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision."