Defendant's motion to dismiss claim was granted and claimant's cross-motion to amend claim was denied.
|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Leigh E. Anderson, 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:||November 24, 2010|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (7) for failing to state a cause of action. Claimant opposes the motion and cross-moves to amend the claim to add a constitutional tort cause of action.
The claim alleges causes of action for false imprisonment and negligence arising from the administrative imposition of a five-year term of postrelease supervision (PRS). The following facts are alleged in the claim: Claimant was sentenced to a six-year determinate prison term on February 3, 2000 which did not include any period of PRS (Claim, ¶¶ 8 and 9). He was released from prison on November 12, 2004 at which time a five-year period of PRS was administratively imposed by the Department of Correctional Services (DOCS) (Claim, ¶¶ 12 and 14). The maximum expiration date of the claimant's sentence was June 25, 2005 (Claim, ¶ 15). Claimant was taken into custody on October 27, 2005 for violating one or more of the conditions of his administratively imposed PRS and released on October 27, 2006 (Claim, ¶¶ 17 and 18). Claimant was again taken into custody on February 5, 2008 for violating one or more of the conditions of his PRS. He was released from confinement on May 16, 2008 pursuant to a writ of habeas corpus (Claim, ¶¶ 20 and 21). The claim alleges the defendant was negligent in failing to "properly compute the sentence imposed by the Courts of the State of New York" (Claim, first cause of action , ¶ 34) and in failing to "honor its non-discretionary ministerial duties to him" (Claim, second cause of action, ¶ 38).
In the proposed amended claim, claimant seeks to add a cause of action asserting violations of the New York State Constitution and merge his second cause of action alleging breach of a ministerial duty with his first cause of action alleging negligence (claimant's Exhibit A, Proposed First Amended Claim). In support of the constitutional tort cause of action, the proposed claim alleges the claimant pled guilty to criminal possession of a weapon in the second degree in violation of Penal Law § 265.03-2, a Class C felony, in exchange for a six-year determinate prison term (claimant's Exhibit A, ¶¶ 38 and 39). The plea agreement did not include a PRS term nor did the Sentence and Commitment papers (Claimant's Exhibit A, ¶¶ 42 and 46). Claimant alleges in his proposed amended claim that the administrative imposition of PRS deprived him of both his liberty and property without due process of law in violation of Article I, § 6 of the New York State Constitution (claimant's Exhibit A, Proposed First Amended Claim, ¶¶ 48 and 49). Claimant also alleges a violation of the Double Jeopardy Clause of Article I, § 6 of the New York State Constitution (claimant's Exhibit A, Proposed First Amended Claim, ¶ 52).
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. (10 NY3d 358 ) and People v Sparber (10 NY3d 457 ) that only a sentencing judge may impose the PRS component of a sentence, thereby invalidating the longstanding practice of administratively imposing otherwise 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 , lv denied ___NY3d ___, 2010 WL 4117001 ) 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]; Carollo v State of New York, 75 AD3d 736 , lv denied ___NY3d ___, 2010 WL 4116961 ).
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 (see also Donald v State of New York, 73 AD3d 1465 , lv denied 77 AD3d 1458 ).
On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 ; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ). In Nazario (supra) the defendant established in support of its motion for summary judgment that the claimant's confinement for violations of his administratively imposed PRS term was accomplished pursuant to a parole warrant. There was no allegation that the warrant was invalid on its face or that the Division of Parole lacked jurisdiction to issue the warrant.
Here, the defendant moves pursuant to CPLR 3211 (a) (7) and there are no facts alleged in the claim which would enable the Court to conclude that the claimant's arrests and confinements were pursuant to a warrant valid on its face when issued. Nevertheless, viewing the allegations in the claim in the light most favorable to the claimant, the claim fails to state a cause of action upon which relief may be granted. Appellate Division authority has now firmly established that while the administrative imposition of PRS by either DOCS or the Division of Parole was in excess of their jurisdiction, it was not an act undertaken "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 ). As a result, the administrative imposition of a period of PRS has been held to be privileged (id.; see also Eanes v State of New York, ___AD3d ___, 2010 WL 4342276 ; Nazario v State of New York, supra; Carollo v State of New York, supra). Dismissal of the false imprisonment claim for failure to state a cause of action is therefore required (see Donald v State of New York, supra).
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 at 1467 ), 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 the administrative imposition of PRS, 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 ) 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" (Donald, 73 AD3d at 1467, quoting Garner, 10 NY3d at 362). Here, as in Donald, the default period of PRS was automatically imposed, since 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.
To the extent the claim asserts negligence causes of action separate and apart from the false imprisonment claim, it must be dismissed as a claim for negligence may not supplant the traditional tort remedy of false imprisonment (Nazario v State of New York, 75 AD3d at 718; Simon v State of New York, 12 AD3d 171 ).
Claimant's cross-motion to amend the claim to add a cause of action alleging a constitutional tort cause of action is denied. A cause of action for a violation of the State Constitution may give rise to a tort cause of action only where it is necessary to ensure the full realization of the claimant's constitutional rights (Brown v State of New York, 89 NY2d 172 ; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ). Here, invocation of a constitutional tort cause of action is unnecessary as the claimant clearly had alternative avenues of redress available, including habeas corpus relief which he successfully pursued (Nazario v State of New York, 75 AD3d at 718 ; Waxter v State of New York, 33 AD3d 1180 ; Shelton v New York State Liq. Auth., 61 AD3d 1145 ; Bullard v State of New York, 307 AD2d 676 ). Claimant's cross-motion to amend the claim to add a constitutional tort cause of action must be denied, therefore, as the proposed amendment is plainly lacking in merit (Paolucci v Mauro, 74 AD3d 1517 ; McCaskey, Davies and Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755, 757 ).
Based on the foregoing, defendant's motion to dismiss the claim is granted and the claimant's cross-motion to amend the claim is denied.
November 24, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: