PRS claim dismissed for lack of service and on the merits.
|Claimant short name:||VENTURA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Franzblau Dratch, P.C.
By: Brian M. Dratch, 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 17, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the instant claim pursuant to CPLR 3212 on the grounds (i) the claim fails to state a cause of action and (ii), in any event, that it was not served in a manner consistent with the jurisdictional requirements of Court of Claims Act § 11 (a).
Claimant alleges that he was unlawfully confined for violations of postrelease supervision (PRS) improperly imposed by the Department of Correctional Services (DOCS) (defendant's Exhibit I, Claim).
Defendant first contends that the claim was served by regular mail rather than personal service or certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Court of Claims Act § 11(a) (i) requires that a claim be filed with the clerk of the court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." Service of the claim by ordinary mail is, therefore, improper (Fulton v State of New York, 35 AD3d 977 , lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 , lv denied 99 NY2d 510 ; Thompson v State of New York, 286 AD2d 831 ). Defendant established through submission of a copy of the envelope in which the claim was mailed that the Attorney General's Office was served by regular mail and not personally or by certified mail, return receipt requested. Defendant's objection to the manner of service having been raised as the fifth defense in the answer (Court of Claims Act § 11 [c] [ii]), dismissal of the claim is required.
In addition to the above, the defendant also established that the claimant was convicted of robbery in the second degree in violation of Penal Law § 160.10, a Class C violent felony (Penal Law § 70.02  [b]). He was sentenced as a second felony offender to a 6-1/2 -year determinate prison term on March 13, 2000 (defendant's Exhibit A). Although no PRS term had been included in the sentence or commitment papers, a five-year period of PRS was calculated as part of the claimant's sentence when he was received into DOCS custody (defendant's Exhibit G). Claimant was released from prison on February 18, 2005 at which time the Division of Parole imposed the conditions of claimant's PRS (defendant's Exhibit B). He was thereafter charged with violating the conditions, declared delinquent as of January 17, 2007, and a parole warrant was issued (defendant's Exhibits C and D). Claimant pled guilty to violating two of the charges resulting in his incarceration and imposition of an 18-month delinquent time assessment (defendant's Exhibit F).
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 ), DOCS notified the sentencing Court by letter dated May 15, 2008 that the claimant's original sentence and commitment document contained no reference to a period of PRS and that "the mandated period of PRS was calculated as part of the inmate's sentence when such person was originally received into [DOCS] custody" (defendant's Exhibit G). By Order dated June 4, 2008, DOCS was directed to recalculate the term of claimant's imprisonment without any term of PRS (defendant's Exhibit H). The Order also required the claimant's release from incarceration if he was not subject to any other term of imprisonment, hold or detainer (id.). Claimant was allegedly released from DOCS custody on June 5, 2008 and now seeks damages for the period of confinement arising from the unlawful imposition of PRS (defendant's Exhibit I, Claim, ¶ 2).
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 (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 assert that the parole warrant which authorized his arrest and detention were 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 thereof. Thus, claimant's arrest and confinement were privileged.
To the extent the claim alleges negligence, the law is settled that such a cause of action may not supplant the traditional tort remedy of false imprisonment (Nazario v State of New York, 75 AD3d at 718, citing Simon v State of New York, 12 AD3d 171 ). As a consequence, claimant's negligence cause of action also fails as a matter of law.
Lastly, to the extent a five-year term of PRS was statutorily required (see Penal Law § 70.45 [former 2]; § 70.06 ; People v Hawkins, 45 AD3d 989 , lv denied 9 NY3d 1034 ; People v Jordan, 21 AD3d 907 , lv denied 5 NY3d 883 ), claimant is unable to establish he was injured as a result of the administrative imposition of PRS. 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, citing Mickens v State of New York, 25 Misc 3d 191 [Ct Cl 2009]). Inasmuch as the five-year period of PRS was mandatory, claimant is 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, without opposition, and the claim is dismissed.
December 17, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: