Summary judgment motion dismissing PRS case was granted, without opposition.
|Claimant short name:||DEAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||David Dean, 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 22, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the instant claim pursuant to CPLR 3212. The motion is granted without opposition.
Claimant, proceeding pro se, alleges the following as the basis for his claim:
"On April 18, 2000, claimant was sentenced to three (3) years incarceration by Hon. John J. Jones, a judge of the Suffolk County Supreme Court. The sentence imposed did not warrant incarceration subsequent to April 18, 2003. Without legal authority, the New York State Division of Parole caused claimant's continued incarceration from April 19, 2003 until July 14, 2008" (defendant's Exhibit R).
Claimant was convicted of criminal possession of a weapon in the third degree in violation of Penal Law § 265.02, a Class D violent felony (Penal Law § 70.02  [c]). As reflected in the Sentence & Commitment dated July 26, 2000, he was sentenced as a second felony offender to a three-year determinate prison term (defendant's Exhibit A). Although no term of postrelease supervision (PRS) 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 November 8, 2002 at which time the PRS maximum expiration date was November 8, 2007 (id.). Claimant violated the conditions of his administratively imposed PRS on three occasions. He was first declared delinquent on January 29, 2003 and a parole warrant for his arrest was issued on that date (defendant's Exhibit C). A preliminary hearing was waived (defendant's Exhibit D), and a final parole revocation hearing resulted in a revoke and restore recommendation subject to participation in the Willard Drug Treatment Center Program (defendant's Exhibit E). Claimant was released from Willard on July 1, 2003 (defendant's Exhibit F).
Claimant was declared delinquent in abiding by the conditions of his PRS for a second time on November 12, 2003 and a parole warrant was issued on November 26, 2003 (defendant's Exhibit G). Following a final parole revocation hearing on February 14, 2006,(1) a 12-month delinquent time assessment was imposed (defendant's Exhibit J). Claimant was released from incarceration on January 5, 2007 (defendant's Exhibit K). As of this date, the maximum expiration date of his PRS term was January 5, 2012 (id.). Claimant was again declared delinquent as of February 27, 2008 and a parole warrant was issued on March 7, 2008 (defendant's Exhibit L). Following a final parole revocation hearing on April 1, 2008, a 12-month delinquent time assessment was imposed (or, alternatively, a 90-day drug treatment program [defendant's Exhibit O]). By Order dated July 3, 2008, claimant was resentenced to the original three-year determinate term of imprisonment without any term of PRS and the Department of Correctional Services was directed to release him without further parole supervision (defendant's Exhibit P and Q). The claim appears to allege damages resulting from claimant's incarceration beyond the maximum expiration date of the originally imposed sentence.
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 allege that the parole warrants which authorized his arrests and detention were invalid or that the Division of Parole lacked jurisdiction to issue the warrants. 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 arrests and confinements 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 ). Consequently claimant's negligence cause of action 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 22, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Claimant had absconded from parole supervision for over two years (see defendant's Exhibit L).