Summary judgment motion dismissing PRS case was granted.
|Claimant(s):||JEREMIAH JOHNSON a/k/a JEREMIAH WALKER|
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Fisher, Byrialsen & Kreizer, PLLC
By: Jane Byrialsen, 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 22, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim and claimant cross-moves for partial summary judgment on the issue of liability pursuant to CPLR 3212.
Claimant alleges that he was unlawfully imprisoned for violations of postrelease supervision (PRS) improperly imposed by the Department of Correctional Services (DOCS) and the Division of Parole (defendant's Exhibit I, Claim, ¶ ¶ 7 and 12).
Claimant was convicted of robbery in the first degree in violation of Penal Law §160.15, a Class B violent felony (Penal Law § 70.02  [a]), and sentenced to a five-year determinate prison term on January 28, 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 administratively imposed (defendant's Exhibit B). Claimant was released from prison on February 18, 2004 at which time the Division of Parole imposed the conditions of claimant's PRS (defendant's Exhibit B). Claimant absconded and was declared delinquent in abiding by the conditions of his PRS as of December 28, 2007 (defendant's Exhibit C). A parole warrant was issued and claimant pled guilty to violating one of the conditions of his parole (defendant's Exhibits D, E and F). The delinquency date was modified to March 5, 2008 and a delinquent time assessment of 12 months or the "max whichever is less" was imposed (defendant's Exhibit F). On August 26, 2008 claimant was ordered released from incarceration pending resentencing (claimant's Exhibit E). He was later resentenced pursuant to Penal Law § 70.85 to the originally imposed determinate sentence without any term of PRS (defendant's Exhibit G and H; claimant's Exhibit F). Claimant was allegedly released from incarceration on August 28, 2008 and now seeks damages for the period he was confined as a result of the unlawful imposition of PRS (July 10, 2008 through August 28, 2008) (defendant's Exhibit I, Claim, ¶ 12).
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 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.
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 (supra) 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 claimant's sentencing the maximum period of PRS "was imposed automatically if the court was silent with respect to postrelease supervision" (73 AD3d at 1466-1467).
Here, as in Donald, the imposition of a five-year period of PRS was automatically imposed given the sentencing court's silence with respect to a shorter term. Accordingly, the administrative imposition of PRS in this case was no less privileged than it was in Collins and Nazario.
Based on the foregoing, defendant's motion for summary judgment is granted and the claim is dismissed. Claimant's motion for partial summary judgment on the issue of liability is denied.
December 22, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: