Defendant's motion for summary judgment dismissing claim based upon the unlawful imposition of postrelease supervision was granted.
|Claimant short name:||ARVELO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Andrew R. Wolk, Esquire|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 27, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment pursuant to CPLR 3212. The motion is granted without opposition.
The claim alleges a cause of action for unlawful imprisonment arising from the administrative imposition of a five-year term of postrelease supervision (PRS). Claimant was convicted of three counts of robbery in the second degree in violation of Penal Law § 160.10 and sentenced to a four-year determinate prison term on August 14, 2000 (Exhibit A). He was released from prison on January 7, 2004 at which time a five-year period of PRS was administratively imposed (Exhibit B). Claimant was arrested on February 4, 2006 for driving while intoxicated and declared delinquent in abiding by the conditions of his parole as of the date of his arrest (Exhibits C and D). It was determined following a preliminary hearing that probable cause existed to believe claimant violated one or more of the conditions of his release (Exhibits E and F). Claimant pled guilty to violating one of the conditions of his parole and his parole was revoked and restored subject to the completion of a voluntary program at the Willard Drug Treatment Center (Exhibit G). Claimant was released from Willard on August 22, 2006 (Exhibit H) . Claimant was again arrested on November 7, 2006 for assault and resisting arrest and declared delinquent as of the date of his arrest (Exhibit J). A preliminary hearing was waived (Exhibit K) and claimant again pled guilty to violating one of the conditions of his parole (Exhibit M). The Sentence and Commitment dated November 29, 2007 indicates claimant was convicted of attempted assault in the second degree and sentenced to a minimum term of one year and six months and a maximum term of three years (Exhibit L). The Parole Revocation Decision Notice dated December 7, 2007 reflects that the claimant was ordered held to his maximum expiration date (two years, four months, 1 day) (Exhibit M).
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 ), on January 16, 2009 claimant was re-sentenced to his original determinate sentence without a term of PRS (Exhibit N and O)(1) . Claimant thereafter commenced the instant action alleging a claim for false imprisonment arising from his confinement for violations of an administratively imposed period of PRS.
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 ). In Nazario v State of New York, 75 AD3d 715  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 ).
The Appellate Division, Fourth Department, reached a similar conclusion in Collins v State of New York (69 AD3d 46 ). 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 allege or contend 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 confinements pursuant to parole warrants were 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 ) 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 ) the Appellate Division, Fourth Department, held with respect to analogous provisions of Penal Law § 70.45 (former ) 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.
October 27, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. The claim alleges the claimant remained in custody until December 22, 2008 (Exhibit P).