|Claimant short name:||DURDEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||James R. McGraw, Esq.|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Michael T. Krenrich, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||July 13, 2010|
|See also (multicaptioned case)|
Leroy Durden, hereinafter "claimant," moves this Court for an order granting partial summary judgment as to liability, on the basis that there exists no triable issues of material fact. Defendant opposes the motion and cross-moves for summary judgment in its favor, on the basis that the claim fails to state a valid cause of action. For the reasons set forth below, the Court denies claimant's motion for partial summary judgment, grants defendant's cross-motion for summary judgment and dismisses Claim No. 116788.
The facts of this case are not in dispute. On February 2, 2000, claimant was sentenced as a second felony offender to a six year determinate term of imprisonment, following his conviction of attempted burglary in the first degree. The Court did not impose any post release supervision (PRS) as part of claimant's sentence. However, on May 24, 2005, when claimant was released from the custody of the Department of Correctional Services (DOCS), a five-year period of PRS was imposed by DOCS.
On or about January 23, 2009, claimant was declared delinquent for violating the conditions of PRS. He was incarcerated while the charge was pending and ultimately offered a plea to a misdemeanor with a sentence of "time served." In the meantime, on February 9, 2009, the Division of Parole notified Hon. Anthony F. Aloi, Onondaga County Court, that claimant had been identified as a "designated person" under Correction Law § 601-d, which set forth the proper procedure for identifying and correcting the sentences of those individuals for whom the order of commitment does not indicate a term of PRS. On March 23, 2009, Judge Aloi ordered claimant's original sentence vacated and re-sentenced claimant nunc pro tunc to a six-year determinate sentence without a period of PRS in accordance with Correction Law § 601-d and Penal Law § 70.85. On May 14, 2009, a petition filed by claimant for a writ of habeas corpus was dismissed as moot.
Claimant thereafter filed this claim seeking damages for unlawful imprisonment arising from the administrative imposition of a term of PRS. He now moves this Court for an order granting partial summary judgment on the basis that there exists no triable issues of material fact. Defendant agrees that there are no triable issues of fact but seeks summary judgment in its favor on the basis that defendant's actions in administratively imposing a term of PRS were privileged, and further, that regardless of whether claimant's confinement was privileged, claimant cannot establish that he was injured.
A claimant asserting a cause of action for unlawful imprisonment must establish that defendant intended to confine claimant, that claimant was conscious of the confinement, that claimant did not consent to the confinement, and that the confinement was not otherwise privileged (Martinez v City of Schenectady, 97 NY2d 78 ). Where the illegal imprisonment is pursuant to legal process which is valid on its face, the State cannot be held liable in damages for wrongful detention unless the Court issuing the process lacked jurisdiction (see Harty v State of New York, 29 AD2d 243 (3d Dept 1968), affd 27 NY2d 698 ; see also Broughton v State of New York, 37 NY2d 451 ). Acts performed in excess of jurisdiction are privileged whereas acts performed in the absence of jurisdiction are not (Harley v State of New York, 186 AD2d 324 [3d Dept 1992]).
The original version of Penal Law § 70.45, which was enacted in 1998 and was in effect at the time claimant was sentenced, provided that each determinate sentence also include, as a part of that sentence, an additional period of PRS. Initially, there was significant confusion and inconsistency regarding how, when and by whom the PRS was to be imposed, and for several years, it was added administratively after sentencing. However, after hearing a series of cases regarding the lawfulness of said administrative imposition of PRS, the Court of Appeals found that only a sentencing judge could impose the mandatory PRS upon a defendant and that DOCS' imposition of the same was unlawful (see Matter of Garner v New York State Department of Correctional Services, 10 NY3d 358 ; People v Sparber, 10 NY3d 457 ). In response to the Court of Appeals decisions in Garner and Sparber, the Legislature adopted Correction Law § 601-d, as set forth above, and enacted Penal Law § 70.85, which permits the Court, upon consent of the district attorney, to re-impose the originally imposed determinate sentence without any term of PRS.
In the present case, claimant's conviction of attempted burglary in the first degree constitutes a Class C violent felony offense (Penal Law §70.02 [b] and §140.30). However, because claimant had previously been convicted of another felony, he was adjudicated as a second felony offender. Where a person is sentenced as a second felony offender on a violent felony offense, the Court must impose a determinate sentence of imprisonment (Penal Law § 70.06 ), which shall include a period of post release supervision in accordance with Penal Law § 70.45 (Penal Law § 70.00 ). At the time claimant was sentenced, the period of post release supervision for such a determinate sentence was five years (Penal Law § 70.45). Upon claimant's release from prison, DOCS imposed such a five-year term of PRS, even though no reference had appeared in the sentencing minutes.
Although this Court previously held in Mickens v State of New York (25 Misc 3d 191 [Ct Cl 2009]), that DOCS' actions in imposing PRS, were not privileged or immune from liability, because there were existing statutes that authorized only the courts to carry out that function, recent case law from higher courts have held to the contrary. In Collins v State of New York, 69 AD3d 46 (4th Dept 2009) and Donald v State of New York, 73 AD3d 1465 (4th Dept 2010), the Fourth Department held that defendant's actions in administratively imposing a term of PRS were in excess of jurisdiction, rather than in the absence of jurisdiction, and that claimant's confinement for a violation of the same was, therefore, privileged. The Fourth Department further held that because claimant's confinement was privileged, claimant could not establish a claim for unlawful imprisonment (Collins v State of New York, 69 AD3d 46, supra; Donald v State of New York, 73 AD3d 1465, supra). In Nazario v State of New York, ___AD3d___ (3d Dept 2010), the Third Department held that where claimant had stipulated that his arrest and detention were pursuant to a parole warrant, and there was no claim that either the warrant was invalid on its face or that the Division of Parole lacked jurisdiction to issue the warrant, DOCS' acts in confining claimant, although in excess of jurisdiction, were privileged (see also Carollo v State of New York, ___AD3d___ [3d Dept 2010]).
Moreover, to the extent the term of PRS that was imposed by DOCS was statutorily mandated, claimant is unable to establish that he suffered any injuries. At the time claimant was sentenced as a second felony offender for his conviction of attempted burglary in the first degree, a five-year period of PRS was mandated. Therefore, if the sentencing court had been alerted to the fact that it had failed to impose a period of PRS, the Court would have imposed the same five- year period of PRS at resentencing that had been imposed by DOCS (Collins v State of New York, 69 AD3d 46, supra). Accordingly, claimant cannot establish that he suffered any injury as a result of the administrative imposition of PRS (see Mickens v State of New York, 25 Misc 3d 191 [Ct Cl 2009]).
Based upon the foregoing, claimant's motion for partial summary judgment is denied and defendant's cross-motion for summary judgment is granted. Claim No. 116788 is dismissed.
July 13, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, and Attorney's Affidavit, sworn to by James R. McGraw, Esq., on March 23, 2010, with Exhibits;
2. Notice of Cross-Motion for Summary Judgment, and Affirmation of Michael T. Krenrich, AAG, in Opposition and In Support of Cross-Motion for Summary Judgment, dated April 14, 2010, with Exhibits;
3. Reply to State's Cross-Motion for Summary Judgment, and Affirmation of James R. McGraw, in Opposition to State's Cross-Motion for Summary Judgment, dated April 20, 2010.
Papers Filed: Claim, filed April 28, 2009; Verified Answer, filed June 5, 2009.