New York State Court of Claims

New York State Court of Claims
JOHNSON v. THE STATE OF NEW YORK, # 2010-015-177, Claim No. 116331, Motion No. M-78402


Summary judgment dismissing claim based upon the unlawful imposition of postrelease supervision was granted.

Case information

UID: 2010-015-177
Claimant short name: JOHNSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116331
Motion number(s): M-78402
Cross-motion number(s):
Claimant's attorney: Steiner & Blotnik
No Appearance
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 10, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.

The claim alleges the following:

"Claimant had been sentenced to a term of imprisonment by Hon. Joseph McCarthy in Erie County Court on October 19, 2001. He was required to submit to a five (5) year term of post-release supervision even though the Court failed to make that a condition of his sentence. As a result of claimed violations of that post-release supervision, Claimant was incarcerated on various occasions for varying periods and was finally released from parole on January 8, 2009" (defendant's Exhibit M, p.2).

Claimant was sentenced on October 19, 2001 to a five-year determinate prison term upon his plea of guilty to robbery in the second degree in violation of Penal Law 160.10, a class C violent felony offense (Penal Law 70.02 [b]) (defendant's Exhibits A, B and C). He was released from prison on October 7, 2005 at which time a five-year term of postrelease supervision ("PRS") was administratively imposed (defendant's Exhibit D). A parole warrant alleging various violations of the conditions of claimant's parole was issued on September 7, 2007 (defendant's Exhibit E). Following a final parole revocation hearing, claimant was found guilty of violating parole and a 12-month delinquent time assessment was imposed (defendant's Exhibits F, G and H). Claimant was released to parole supervision on September 5, 2008 at which time the maximum expiration date of his PRS term was June 29, 2011 (defendant's Exhibit I).

Following 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]), 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 an order of commitment did not specify a PRS term. Claimant was identified as such an individual and by letter dated November 10, 2008 the Division of Parole notified the original sentencing court that its review of the sentence and commitment document revealed no reference to a period of PRS (defendant's Exhibit J). The letter also noted, however, that "the Division of Parole does not have a copy of the sentencing minutes within its files to confirm whether the period of PRS was pronounced by the Court at the time of sentencing". In fact, claimant was advised both during his plea allocution and at the time of sentencing that he would be subject to a period of PRS, although the PRS term was not specified (defendant's Exhibits B and C). Claimant was re-sentenced on December 22, 2008 to the original five-year determinate prison term and five years PRS (defendant's Exhibit L).

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 [1975]), cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). 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 [2009]; Mickens v State of New York, 25 Misc 3d 191 [2009]; Donald v State of New York, 24 Misc 3d 329 [2009]). In Nazario v State of New York, 75 AD3d 715 [2010] the Appellate Division, Third Department, recently affirmed this Court's holding that confinement for violations of an administratively imposed term of PRS is privileged on the ground that "[a]n otherwise unlawful detention 'is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction' . . . or parole authorities" (id. at 718 [citations omitted]; see also Carollo v State of New York, 75 AD3d 736 [2010]).

The Appellate Division, Fourth Department, reached a similar conclusion in Collins v State of New York (69 AD3d 46 [2009]). In that case, the Court addressed the merit of a proposed claim in an appeal arising from the denial of an application for late claim relief. The Court held that movant's confinement was privileged in that in imposing a term of PRS 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).

Claimant does not argue that the parole warrant which authorized his arrest and detention was invalid or that the Division of Parole lacked jurisdiction to issue it. Here, as in both Nazario and Collins, the administrative imposition of PRS was performed in excess of jurisdiction, not in the complete absence of jurisdiction. Thus, claimant's confinement pursuant to a parole warrant was privileged.

Nor does the fact that the sentencing Court retained the discretionary authority to impose a shorter period of PRS require a different result. At the time claimant was sentenced, Penal Law 70.45 (former [2]) stated that "[t]he 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 . . ." In Donald v State of New York (73 AD3d 1465, 1466-67 [2010]) the Appellate Division, Fourth Department, held with respect to analogous provisions of Penal Law 70.45 (former [2]) applicable to class D violent felony convictions, that at the time of claimant's sentencing the maximum period of PRS "was imposed automatically if the court was silent with respect to postrelease supervision".

Here, as in Donald, the imposition of a five-year period of PRS was automatically imposed where the sentencing court was silent with respect to a shorter term. Accordingly, the administrative imposition of PRS in this case was no less privileged than the imposition of the mandatory PRS terms at issue in Collins and Nazario.

Based on the foregoing, defendant's motion for summary judgment is granted and the claim is dismissed.

September 10, 2010

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated January 11, 2010 (filed June 11, 2010);
  2. Affirmation of Michael T. Krenrich dated June 11, 2010 with exhibits.