Defendant's motion for summary judgment dismissing PRS case was granted.
|Claimant short name:||ROBERTS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Stephen Roberts, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 15, 2010|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves for an Order dismissing the defenses asserted in defendant's answer pursuant to CPLR 3211 (b). Defendant cross-moves for summary judgment dismissing the claim pursuant to CPLR 3212.
The claim alleges damages arising from the administrative imposition of postrelease supervision (PRS). Claimant was convicted of assault in the second degree in violation of Penal Law § 120.05 (2) and sentenced as a second violent felony offender to a five-year determinate prison term on April 16, 2002 (defendant's Exhibit A). He was released from prison on May 22, 2006 at which time a five-year period of PRS was administratively imposed by the New York State Division of Parole (defendant's Exhibit B). Following issuance of a "NOTICE PURSUANT TO CORRECTION LAW§ 601-d" (defendant's Exhibit C), claimant was resentenced on April 9, 2009 to his original determinate sentence without PRS (defendant's Exhibit D; see Penal Law § 70.85). The Order stated that "if the inmate is not subject to any other term of imprisonment, hold or detainer, then DOCS shall release the inmate forthwith into the community without any further supervision by the Division of Parole. . ." (id.). Claimant thereafter commenced the instant action alleging "breach of the sentence 'contract' " (defendant's Exhibit E, Claim, ¶ 3). While the claimant does not allege any period of imprisonment arising from the alleged unlawful imposition of PRS, he does allege "anguish" and "restrictions" resulting therefrom (defendant's Exhibit E, Claim, ¶ 9).
Inasmuch as defendant's cross-motion for summary judgment is dispositive of the issues, it will be addressed first.
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 statutorily required periods of PRS. In the wake of these decisions numerous claims 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  , affd 75 AD3d 715 ; Mickens v State of New York, 25 Misc 3d 191 ; Donald v State of New York, 24 Misc 3d 329 , revd 73 AD3d 1465 ). 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). In Ortiz v State of New York (78 AD3d 1314 ) the Appellate Division, Third Department, addressed the merit of a late claim asserting a deprivation of liberty arising from the administrative imposition of PRS:
"While there is no indication that claimant ever was arrested, prosecuted or reincarcerated as a result of violating any condition of his postrelease supervision, he contends that the erroneous imposition of such supervision constitutes a deprivation of liberty that, in turn, gives rise to causes of action for, among other things, false imprisonment, malicious prosecution and negligence. However, recent decisions have held that DOCS's actions in administratively imposing postrelease supervision in the first place and also in confining individuals for a violation of administratively imposed postrelease supervision are privileged (see Nazario v State of New York, 75 AD3d 715, 718 , lv denied ___ NY3d ___ [Oct. 21, 2010]; Carollo v State of New York, 75 AD3d 736, 737 , lv denied ___ NY3d ___ [Oct. 21, 2010]; Donald v State of New York, 73 AD3d 1465, 1466-1467 ; Collins v State of New York, 69 AD3d 46, 51-52 ; see also Scott v Fischer, 616 F3d 100, 107108 [2d Cir 2010]). Accordingly, the proposed claim is lacking in merit . . ."
As a result of the above precedents, the Court finds the defendant has sustained its burden of establishing its right to judgment dismissing the claim as a matter of law.
Lastly, inasmuch as the five-year term of PRS was statutorily mandated (see Penal Law § 70.45 [former 2]; § 70.06 ), the claimant is unable to establish that he suffered injury as the result of the conduct complained of. As stated by the Court in Collins v State of New York (supra) "[w]hile the procedure by which the period of PRS was imposed was improper, the actual imposition thereof was not" (69 AD3d at 53). As a result, the Court held that claimants could not establish they were injured as the result of the error (69 AD3d at 53, citing Mickens v State of New York, 25 Misc 3d 191 [Ct Cl 2009]).
Based on the foregoing, defendant's cross-motion for summary judgment is granted and the claim is dismissed. Claimant's motion is denied.
December 15, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: