In claim alleging wrongful confinement arising from improper imposition of term of postrelease supervision, defendant's motion for summary judgment dismissing claim was granted and claimant's cross- motion for partial summary judgment was denied.
|Claimant short name:||RICE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Fisher & Byrialsen, PLLC
By: Jane Fisher-Byrialsen, Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 5, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim and claimant cross-moves for partial summary judgment on the issue of liability pursuant to CPLR 3212.
Claimant alleges causes of action for false arrest, false imprisonment and violations of the New York State and Federal Constitutions arising from the improper administrative imposition of postrelease supervision (PRS). Claimant was sentenced as a second felony offender to a 2 ½- year determinate prison term on June 6, 2001 (defendant's Exhibit A). He was released from prison on August 1, 2003 at which time a five-year term of PRS was administratively imposed (defendant's Exhibit B). Claimant was declared delinquent in abiding by the conditions of his parole as of January 27, 2007 when he was arrested for disorderly conduct, among other charges (defendant's Exhibit C). A parole warrant was issued on March 30, 2007 at which time claimant waived a preliminary hearing (defendant's Exhibits D and E). Following a final parole revocation hearing on June 6, 2007 claimant's parole was revoked and restored (defendant's Exhibit F). Claimant was again declared delinquent in abiding by the conditions of his parole as of May 23, 2008 and a parole warrant was issued and enforced on May 27, 2008 (defendant's Exhibit G). Following a finding of probable cause at a preliminary hearing, a final parole revocation hearing was scheduled for June 18, 2008 at Rikers Island Judicial Court (defendant's Exhibits H, I and J). A writ of habeas corpus was granted by Order dated June 27, 2008 (defendant's Exhibit L). In granting the writ, the Court concluded that the administrative imposition of PRS was improper, citing People v Sparber (10 NY3d 457  ) and Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 ), and directed the claimant's release from confinement (id.). A final discharge from the jurisdiction of the Board of Parole was issued on June 27, 2008 (defendant's Exhibit M) .
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 multiple arrests and confinements for violations of the conditions of his administratively imposed term of PRS were 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 DOCS' 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 for violations of administratively imposed terms of PRS 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. The Court held that Collins' confinement was privileged because the Division of Parole was acting in excess of its jurisdiction, not in the complete absence of jurisdiction, 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).
Here, as in Collins, DOCS was not acting in the complete absence of jurisdiction in imposing the PRS term administratively. As a result, claimant's arrests and confinements for violating the conditions of his administratively imposed term of PRS were privileged and his causes of action for false arrest and false imprisonment must be dismissed.
Moreover, to the extent the PRS term imposed by DOCS was statutorily mandated (see generally Penal Law § 70.45), the claimant is unable to establish that he suffered injury as the result of DOCS' 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 ).
Lastly, with respect to the alleged cause of action premised upon violations of 42 USC § 1983, it is well settled that the State of New York is not a "person" amenable to suit under the statute (Brown v State of New York, 89 NY2d 172 ; Welch v State of New York, 286 AD2d 496 ). To the extent the claim alleges violations of the New York State Constitution, the presence of an alternative remedy, i.e., the successful challenge to the PRS term in the Supreme Court, precludes such a claim (Brown v State of New York, 89 NY2d at 189; Martinez v City of Schenectady, 97 NY2d 78, 83 ).
Based on the foregoing, defendant's motion for summary judgment is granted and the claim is dismissed. Claimant's cross-motion for partial summary judgment is denied.
April 5, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: 1. Notice of motion dated December 9, 2009;
2. Affirmation of Michael T. Krenrich dated December 2, 2009
3. Notice of cross-motion dated January 7, 2010;
4. Affidavit of Jane Fisher-Byrialsen sworn to January 12, 2010
5. Memorandum of law dated January 7, 2010.