Defendant's motion for summary judgment dismissing PRS case was granted.
|Claimant short name:||FULTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Beldock, Levine & Hoffman, LLP
By: Karen Dippold, 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:||December 16, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the instant claim pursuant to CPLR 3212. The claimant cross-moves for an Order compelling depositions pursuant to CPLR 3124 and for partial summary judgment on the issue of liability pursuant to CPLR 3212.
The amended 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 attempted robbery in the second degree in violation of Penal Law § 160.10 (a Class D felony) and sentenced to a three-year determinate prison term on July 18, 2001 (defendant's Exhibit A). He was released from prison on May 7, 2004 at which time a five-year period of PRS was administratively imposed by the New York State Division of Parole (defendant's Exhibit B). Claimant was declared delinquent in abiding by the conditions of his PRS as of June 2, 2004 and a parole warrant was issued on June 29, 2004(1) (defendant's Exhibit C). Claimant waived a preliminary hearing (defendant's Exhibit E) and pled guilty to violating two of the conditions of his parole (defendant's Exhibit F). His parole was revoked and a 14-month delinquent time assessment was imposed (defendant's Exhibit F). Claimant was released from prison on June 29, 2005 at which time the maximum expiration date of his PRS was May 5, 2009 (Exhibit G). Claimant was again arrested pursuant to a parole warrant and declared delinquent in abiding by the conditions of his parole as of July 21, 2005, which was later modified to August 3, 2005 (Exhibits H, I and K). A preliminary hearing was not required due to the claimant's conviction of a misdemeanor (defendant's Exhibit J) and, following a final parole revocation hearing, a 14-month delinquent time assessment was imposed (defendant's Exhibit K). Claimant was released from prison on August 29, 2006 at which time the maximum expiration date of his PRS was May 30, 2009 (defendant's Exhibit L). Claimant was again declared delinquent in abiding by the conditions of his parole on December 2, 2006, modified to January 18, 2007 (defendant's Exhibits M, N and P). A preliminary hearing was not required due to claimant's conviction of a misdemeanor (defendant's Exhibit O). Following a final parole revocation hearing, a 15-month time assessment was imposed (Exhibit P).
On June 17, 2008, 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 ), claimant was resentenced as a prior felony offender to his original determinate three-year prison term with five years PRS imposed nunc pro tunc, to be re-calculated without interruption (defendant's Exhibit Q). On June 18, 2008 an Order was issued for the claimant's immediate release (defendant's Exhibit R) and a final discharge was issued by the Division of Parole effective May 7, 2009 (defendant's Exhibit S). Claimant thereafter commenced the instant action alleging a claim for false imprisonment arising from his various incarcerations for violating the 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 , affd 75 AD3d 715 , lv denied 15 NY3d 712 ; Mickens v State of New York, 25 Misc 3d 191 ; Donald v State of New York, 24 Misc 3d 329 , revd 73 AD3d 1465 , lv denied 77 AD3d 1458 ). In Nazario v State of New York, (75 AD3d 715 , lv denied 15 NY3d 712 ) 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 Standsblack v State of New York, 911 NYS2d 678 ; Eanes v State of New York, 78 AD3d 1297 ; Ortiz v State of New York, 78 AD3d 1314 ; Vazquez v State of New York, 77 AD3d 1229 ; Carollo v State of New York, 75 AD3d 736 , lv denied 15 NY3d 711 ).
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) (see also Donald v State of New York, 73 AD3d 1465 , lv denied 77 AD3d 1458  ).
Claimant does not allege that the parole warrants which authorized his arrest and detention were invalid or that the Division of Parole lacked jurisdiction to issue them. Here, as in both Nazario and Collins, the administrative imposition of PRS was performed in excess of jurisdiction, not in the complete absence thereof. Thus, claimant's confinements pursuant to parole warrants were privileged.
Lastly, claimant was sentenced as a second felony offender for the commission of a violent felony offense pursuant to Penal Law § 70.06 (6), not Penal Law § 70.02 (see defendant's Exhibits A and Q, p.3). Notwithstanding claimant's contrary assertions, therefore, a five-year term of PRS was statutorily required (see Penal Law § 70.45 [former 2]; People v Hawkins, 45 AD3d 989 , lv denied 9 NY3d 1034 ; People v Jordan, 21 AD3d 907 , lv denied 5 NY3d 883 ). As stated by the Court in Collins v State of New York "[w]hile the procedure by which the period of PRS was imposed was improper, the actual imposition thereof was not" (69 AD3d at 53). The Court concluded, therefore, that claimants could not establish that 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]). Inasmuch as the five-year period of PRS was mandatory in the instant case, claimant is likewise unable to establish that he suffered injury as the result of the conduct complained of.
Based on the foregoing, defendant's motion for summary judgment is granted and the claim is dismissed. Claimant's cross-motion is denied.
December 16, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Claimant's delinquency date was changed to June 28, 2004 (defendant's Exhibit F).