New York State Court of Claims

New York State Court of Claims
HEMINGWAY v. THE STATE OF NEW YORK, # 2010-015-159, Claim No. 115931, Motion No. M-78129

Synopsis

Renewal motion regarding claim alleging wrongful confinement following administrative imposition of postrelease supervision was denied.

Case information

UID: 2010-015-159
Claimant(s): ANTHONY HEMINGWAY
Claimant short name: HEMINGWAY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115931
Motion number(s): M-78129
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: James R. McGraw, 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: June 30, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves pursuant to CPLR 2221 to renew this Court's prior Order denying his motion for partial summary judgment on the issue of liability and granting the defendant's cross-motion for summary judgment dismissing the claim.

According to the undisputed allegations in the claim, claimant was convicted in 1999 upon a plea of guilty to one count of robbery in the second degree and sentenced to a five-year term of imprisonment without mention of a term of postrelease supervision (PRS). Claimant was released from prison in 2003 at which time a five-year term of PRS was administratively imposed.(1) Thereafter, claimant violated the terms of his administratively imposed parole on three occasions resulting in the following periods of confinement: July 18, 2005 - September 19, 2005; January 18, 2006 - January 18, 2007 and September 2, 2007 - August 15, 2008. Subsequent to the Court of Appeals' decisions in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]) and People v Sparber (10 NY3d 457 [2008]), claimant was re-sentenced to his original determinate sentence without a term of PRS and released from DOCS custody on August 15, 2008. Claimant thereafter commenced the instant action alleging a claim for false imprisonment arising from his confinement for violations of the administratively imposed period of PRS.

In denying the claimant's motion for partial summary judgment and granting the defendant's cross-motion to dismiss the claim, this Court previously held that the claimant's multiple confinements for violations of an administratively imposed PRS term were privileged and that, in any event, the administrative imposition of PRS was not the cause-in-fact of the claimant's alleged injuries. Claimant's renewal motion is based on the contention that the Court of Appeals' decision in People v Williams (14 NY3d 198 [2010]) establishes the fact that the imposition of PRS "was unconstitutional and done without jurisdiction" (affidavit of James R. McGraw, Esq., sworn April 8, 2010, 12).

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e] [2]; see also Kahn v Levy, 52 AD3d 928 [2008]). Claimant has failed to establish that there has been a change in the law which would change the prior determination. In People v Williams (supra), the case relied upon by the claimant, the Court of Appeals held that the imposition of a period of PRS after the completion of the originally imposed sentence violates the double jeopardy clause of the constitution. In this Court's view, the decision in People v Williams in no way undermines the holding of the Appellate Division, Fourth Department, in Collins v State of New York (69 AD3d 46 [2009]) and Donald v State of New York (73 AD3d 1465 [2010]), both of which held that confinements for violations of the conditions of an improperly imposed term of PRS are privileged (see Broughton v State of New York, 37 NY2d 451, 456 [1975]), cert denied sub nom., Schanbarger v Kellogg, 423 US 929 [1975], requiring that to prevail on 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").

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 [2009]; Mickens v State of New York, 25 Misc 3d 191 [2009]; Donald v State of New York, 24 Misc 3d 329 [2009], revd 73 AD3d 1465 [2010]). In Collins v State of New York (supra) 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. 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 [2009]) 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. The Collins Court found that in imposing a term of PRS 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 [1976]). 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 in 1999 to a five-year determinate prison term for robbery in the second degree (Penal Law 160.10), a class C violent felony offense (Penal Law 70.02 [1] [b]). As Penal Law 70.45 (2) was then written, a five-year period of PRS was mandated unless the sentencing Judge prescribed a shorter period not less than 2 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])(2) (see e.g. People v DePugh ,16 AD3d 1083, 1083 [2005]; Matter of Deal v Goord, 8 AD3d 769 [2004]; People v Hollenbach, 307 AD2d 776 [2003], lv denied 100 NY2d 642 [2003]; People v Crump, 302 AD2d 901 [2003], lv denied 100 NY2d 537 [2003]; People v Bloom, 269 AD2d 838 [2000], lv denied 94 NY2d 945 [2000]), a five-year term of PRS was administratively imposed 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 DOCS 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, in Donald v State of New York (supra) the Appellate Division, Fourth Department, recently rejected the argument that the statutory authority of the sentencing Judge to impose a shorter period of postrelease supervision under Penal Law 70.45 (former [2]) distinguished that case from Collins and, thus, required a different result. At the time of the administrative imposition of PRS in Donald, the maximum statutorily authorized PRS term was automatically imposed if the sentencing Court was silent with respect to the PRS term. Whether the maximum PRS term pursuant to Penal Law 70.45 (former [2]) was five years as in Collins (supra) or three years as in Donald (supra) "[i]n each case, the nonjudicial body imposed the default period of postrelease supervision consistent with the law at the time of sentencing and thus acted 'beyond [its] limited jurisdiction' rather than in the absence of jurisdiction" (id. at 1467, quoting Garner, 10 NY3d at 362). Here, as in Donald, the default period of PRS was imposed by a nonjudicial body consistent with Penal Law 70.45 (former 2). While DOCS (or the Division of Parole as the case may be) acted in excess of its jurisdiction, it did not act in the complete absence of jurisdiction. Claimant's multiple confinements based upon violations of the conditions of his administratively imposed term of PRS were therefore privileged.

Lastly, to the extent the administrative imposition of PRS 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 DOCS conduct. As stated by the Court in Collins v State of New York:

"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 [2009]).

Based on the foregoing, the claimant's motion for renewal is denied.

June 30, 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 April 8, 2010;
  2. Affidavit of James R. McGraw sworn to April 8, 2010 with exhibits;
  3. Affirmation of Michael T. Krenrich dated April 16, 2010 with exhibit.

1. While the division or department responsible for the imposition of the PRS term has not been established, claimant alleges that it was the Department of Correctional Services (DOCS).

2. Penal Law 70.45 (former [1]) provided that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision."