Claim alleging wrongful confinement arising from improper imposition of postrelease supervision was dismissed by Order granting defendant's motion for summary judgment. Claimant's cross-motion for partial summary judgment was denied.
|Claimant short name:||WOODS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Elliot H. Fuld, Esq.|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 13, 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 a cause of action for false imprisonment arising from the improper administrative imposition of postrelease supervision (PRS). Claimant was convicted of burglary in the second degree and sentenced as a violent felony offender to a 3 ½-year determinate prison term on January 9, 2002 (defendant's Exhibit A). She was released from prison on May 12, 2005 at which time a five-year period of PRS was administratively imposed by the Division of Parole (defendant's Exhibit B). Claimant was thereafter declared delinquent in abiding by the conditions of her parole on four separate occasions: September 20, 2005 (modified to October 11, 2005); November 18, 2005 (modified to December 13, 2005); December 7, 2006 (modified to December 13, 2006) and September 14, 2007. Following each of the first three declarations of delinquency, claimant's parole was revoked and restored subject to claimant's participation in a residential drug treatment program. Following the fourth declaration of delinquency, a final parole revocation hearing was held on November 15, 2007. Claimant was found guilty of violating the conditions of her parole, a twelve-month delinquent time assessment was imposed and claimant was returned to the custody of the Department of Correctional Services (DOCS) (defendant's Exhibit O).
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 (claimant's Exhibit D). By Order of the Honorable Richard D. Carruthers, A.J.S.C., dated June 18, 2008 claimant was re-sentenced as follows:
"It is hereby ordered that the sentence of three and one-half years imprisonment imposed on January 9, 2002 is vacated. The defendant is re-sentenced to a determinate term of imprisonment of three and one-half years and a term of post-release supervision of two and one-half years. This re-sentence is imposed so as to accord the defendant credit for all prison and post-release supervision time such as would have accrued to the defendant as of the date of the arrest on November 14, 2001 had the defendant been appropriately sentenced originally.
It is further ordered that the defendant shall not be charged with any alleged violation of post-release supervision occurring before the date of re-sentencing.
It is hereby further ordered that if, the Department of Correctional Services (DOCS) determines that the defendant has served the full term of the modified sentence, and is not subject to any other hold or detainer on any other case, DOCS should release the defendant forthwith" (defendant's Exhibit Q).
A Uniform Sentence Commitment sheet dated June 18, 2008 was thereafter completed
reflecting a 3 ½ - year determinate sentence with 2 ½ -years of PRS nunc pro tunc to November 14, 2001 (defendant's Exhibit R).
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 her 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' 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 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).
The claimant here was sentenced on January 9, 2002 to a 3 ½ - year determinate prison term for second degree burglary, a class C violent felony offense (Penal Law § 70.02  [b]). As Penal Law § 70.45 (2) was then written, a five-year period of PRS was mandated for a class C 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 (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 ), DOCS 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 A, sentencing minutes). Here, as in Collins, while DOCS exceeded its jurisdiction in imposing the five-year PRS term, it was not acting in the complete absence of jurisdiction.
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 13, 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 January 28, 2010;
2. Affirmation of Michael T. Krenrich dated January 28, 2010
3. Notice of cross-motion dated February 8, 2010;
4. Affirmation of Elliot H. Fuld dated February 8, 2010