Defendant's motion for summary judgment dismissing wrongful confinement claim based upon the administrative imposition of postrelease supervision was granted and claimant's cross-motion for partial summary judgment was denied.
|Claimant short name:||TAYLOR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Law Offices of Daniel M. Tanenbaum
By: Daniel M. Tanenbaum, Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 22, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim and the claimant cross-moves for partial summary judgment on the issue of liability. Claimant alleges a cause of action for unlawful imprisonment arising from the administrative imposition of a one-year term of postrelease supervision (PRS) by the Department of Correctional Services (DOCS).
On November 3, 2005 claimant was sentenced to a 2 ½ year determinate prison term upon a plea of guilty to criminal possession of a controlled substance in the fourth degree in violation of Penal Law § 220.09 (defendant's Exhibit A). There was no discussion of the claimant being made subject to a term of PRS at sentencing (claimant's Exhibit A). He was released from prison on December 7, 2007 at which time a one-year term of PRS was imposed by the Division of Parole (defendant's Exhibit B). Following his arrest on various misdemeanor charges, claimant was declared delinquent in abiding by the conditions of his parole as of March 16, 2008 (defendant's Exhibits C and D). At the conclusion of the final parole revocation hearing on April 28, 2008, his delinquency date was modified to April 3, 2008 and a four-month delinquent time assessment (time served plus three months) was imposed (defendant's Exhibit F). As reflected in the Parole Revocation Decision Notice, claimant's estimated delinquent time assessment expiration date was July 28, 2008 (id.).
Subsequent to 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 ), the sentencing Court noted in an order dated July 9, 2008 that it had been advised by DOCS that "there may be questions about the lawfulness of the sentence that was imposed, and about whether DOCS improperly computed such sentence . . ." and directed DOCS to calculate the claimant's term of imprisonment without any term of PRS, and release the claimant from custody if he was not subject to any other prison terms, holds or detainers (defendant's Exhibit H). Claimant alleges he was released from DOCS custody on July 18, 2008 (defendant's Exhibit 1, Claim, ¶ 4).
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 , revd 73 AD3d 1465 ). In Collins v State of New York (69 AD3d 46 ) the Appellate Division, Fourth Department, 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 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 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 November 3, 2005 to a 2 ½ year determinate prison term for criminal possession of a controlled substance in the fourth degree, a class C felony offense (Penal Law § 220.09). The sentence was imposed pursuant to Penal Law § 70.70 (2) (a) (ii), applicable to class C felony drug offenders. With respect to the PRS component of a sentence, Penal Law § 70.70 (2) (a) provides as follows:
"[T]he court shall impose a determinate term of imprisonment upon a felony drug offender which shall be imposed by the court in whole or half years, which shall include as a part thereof a period of post-release supervision in accordance with section 70.45 of this article."
Penal Law § 70.45 (2) (b) provides that the PRS term "shall be not less than one year nor more than two years whenever a determinate sentence of imprisonment is imposed pursuant to subdivision two of section 70.70 of this article upon a conviction of a class B or class C felony offense . . ."
Consistent with the then-prevailing statutory (1) and 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 ) the Division of Parole imposed the minimum one-year term of PRS prescribed in Penal Law § 70.45 (2) (b) upon claimant's release from prison, although no reference to this component of the sentence appeared in the sentencing minutes. Here, as in Collins, while the Division exceeded its jurisdiction in imposing the 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  [b] and Penal Law § 70.70[a]), 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 ; compare Donald v State of New York, 73 AD3d 1465 ).
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 on the issue of liability is denied.
June 22, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. At the time of sentencing Penal Law § 70.45 (former ) provided that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision."