New York State Court of Claims

New York State Court of Claims
McMULLIN v. THE STATE OF NEW YORK, # 2010-015-185, Claim No. 115974, Motion No. M-78068


Defendant's motion for summary judgment dismissing claim based upon the unlawful imposition of postrelease supervision was granted.

Case information

UID: 2010-015-185
Claimant short name: McMULLIN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115974
Motion number(s): M-78068
Cross-motion number(s):
Claimant's attorney: David P. Feldman, 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: October 25, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for summary judgment pursuant to CPLR 3212.

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 one count of robbery in the first degree in violation of Penal Law 160.15 and sentenced to a five-year determinate prison term on March 9, 2001 (Exhibit A). He was released from prison on August 19, 2005 at which time a five-year period of PRS was administratively imposed (Exhibit B). Claimant was declared delinquent in abiding by the conditions of his parole on March 26, 2008 and a parole warrant was issued on April 30, 2008 (Exhibit C). Claimant waived a preliminary hearing and, following a final parole revocation hearing, pled guilty to violating his parole (Exhibits E and F). A 12-month delinquent time assessment was imposed, unless the claimant completed a 90-day drug treatment program at Willard Drug Treatment Center, in which case the Administrative Law Judge indicated that "this decision will be modified forthwith to a decision of revoke and restore - time served" (Exhibit F).

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]), claimant's Petition for a Writ of Habeas Corpus was granted on July 9, 2008 (Exhibit G), and on July 15, 2008 a Judgment declaring the PRS term a nullity was issued (Exhibit H).(1) Claimant was released from State custody on July 22, 2008 (Exhibit K, claim, 4 and 6). The instant claim filed on October 20, 2008 alleges a cause of action for false imprisonment arising from claimant's 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 [1975]), cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Here, the claimant's confinement for violating a condition 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 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 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.

October 25, 2010

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated March 26, 2010;
  2. Affirmation of Michael T. Krenrich dated March 26, 2010 with exhibits;
  3. Memorandum of law of David P. Feldman, undated and unfiled, received in chambers on August 12, 2010.

1. The Judgment was later amended to correct the spelling of the claimant's name and DIN number (Exhibits I and J).