New York State Court of Claims


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New York State Court of Claims

McCANTS v. THE STATE OF NEW YORK and THE NEW YORK STATE DIVISION OF PAROLE, #2001-001-065, Claim No. 103533, Motion Nos. M-63682, CM-63834


Synopsis



Case Information

UID:
2001-001-065
Claimant(s):
ANDRE T. McCANTS
Claimant short name:
McCANTS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and THE NEW YORK STATE DIVISION OF PAROLE
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103533
Motion number(s):
M-63682
Cross-motion number(s):
CM-63834
Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Andre T. McCants, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Glenn C. King, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
October 12, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion to dismiss the affirmative defenses stated in defendant's answer pursuant to CPLR 3211 (b) and defendant's cross motion to dismiss the claim pursuant to CPLR 3212: Notice of Motion, dated June 25 and filed June 27, 2001; Memorandum, undated and filed June 27, 2001, with annexed Exhibits A-C; Affidavit in Support of Motion to Strike of Andre T. McCants, pro se, sworn to June 19 and filed June 27, 2001; Affirmation in Opposition to Claimant's Motion to Strike and in Support of Cross Motion for Summary Judgment of Glenn C. King, Esq., AAG, dated July 23 and filed July 26, 2001, with annexed Exhibits 1 and A-D; Affidavit of Patricia E. O'Malley, sworn to July 12 and filed July 26, 2001, with annexed Exhibits A-D; Claimant's Motion to "Strike" Defendant's Cross Motion for Summary Judgment, dated July 28 and filed August 2, 2001; Affidavit of Andre T. McCants [in Opposition to Cross Motion], sworn to July 28 and filed August 2, 2001; Claimant's Supplemental Pleadings, dated September 1 and filed September 13, 2001;[1] and the claim, undated filed December 14, 2000, with annexed Exhibit A.

By motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6), claimant Andre T. McCants ("claimant") in May 2000 alleged that he had been falsely imprisoned for 10 days by the Department of Correctional Services ("DOCS") in violation of section 410.91 of the Criminal Procedure Law (see, McCants v State of New York, Read, P.J., UID # 2000-001-044, Motion No. M-61784). Observing that CPL 410.91 authorizes DOCS to retain custody of a criminal defendant for a maximum period of 100 days--up to 10 days at a DOCS reception center and 90 days at a DOCS drug treatment campus--and that claimant had not shown how residing for an alleged 10 extra days at the reception center rather than at Willard Drug Treatment Campus ("Willard") (see, 7 NYCRR 105.1) had harmed him in any way, the Court denied claimant's motion (see, McCants v State of New York, supra).

Claimant thereafter sought to cure this deficiency. He moved to renew his application, explaining that the alleged violation of CPL 410.91 had caused him damage by extending his release date from August 20, 1999 to September 7, 1999 (see, McCants v State of New York, Read, P.J., UID # 2000-001-067, Motion No. M-62321). This Court, applying the generous definition of merit stated in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1), then granted claimant permission to file a late claim (see, id.).[2]

Claimant now moves to dismiss the affirmative defenses asserted by defendant State of New York ("defendant" or "the State") in its answer (Notice of Motion, dated June 25 and filed June 27, 2001 [M-63682]). Defendant cross-moves for summary judgment, arguing that claimant's own actions caused extension of his release date (Affirmation in Opposition to Claimant's Motion to Strike and in Support of Cross Motion for Summary Judgment of Glenn C. King, Esq., AAG, dated July 23 and filed July 26, 2001, with annexed Exhibits 1 and A-D ["King Aff."], ¶¶ 14-21). Because the State's cross motion is dispositive, the Court reaches it first.

As the party moving for summary judgment, the State has the initial burden of establishing its defense sufficiently for a court to direct judgment in its favor as a matter of law (see e.g., Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967). Toward this end, defendant disputes claimant's contention that he was damaged because his release date was changed from August 20, 1999 to September 7, 1999 as a result of the alleged extra 10 days at the DOCS reception center.

Patricia E. O'Malley, Assistant Counsel with the Division of Parole ("the Division"), explains that pursuant to CPL 410.91, claimant was under the immediate supervision of the Division and was required to comply with the conditions of his parole, including completion of the drug treatment program at Willard (Affidavit of Patricia E. O'Malley, sworn to July 12 and filed July 26, 2001, with annexed Exhibits A-D ["O'Malley Aff."], ¶¶ 5-7, Exh. A). Because claimant received an unsatisfactory evaluation on August 2, 1999, he was recommended for a "recycle" of 30 days; i.e., claimant was required to repeat the first 30 days of his program (O'Malley Aff., ¶¶ 5, 8). Claimant agreed to the "recycle" and signed a document to affirm that he understood that his new release date was October 5, 1999 and that a subsequent failure to complete the program successfully would violate his parole (King Aff., ¶ 17; O'Malley Aff., ¶ 8, Exh. B).

On August 26, 1999, claimant nonetheless violated his parole by being removed from the drug treatment program at Willard for failure to participate (O'Malley Aff., ¶ 9, Exh. C). Consequently, his parole officer recommended that he be returned to a correctional facility to serve the minimum 2 ½-year sentence imposed by the sentencing court upon his plea of guilty to criminal possession of a controlled substance (Penal Law § 220.06) (claim, undated and filed December 14, 2000, Exh. A; O'Malley Aff., ¶ 10, Exh. D). DOCS records and claimant's continued incarceration for criminal possession of a controlled substance confirm that this recommendation was followed and that claimant's parole was thereafter revoked (see, 9 NYCRR 8005.20 [d]).[3]

These facts belie claimant's assertion that "the entire violation was canceled out" at the final revocation hearing (Claimant's Motion to "Strike" Defendant's Cross Motion for Summary Judgment, dated July 28 and filed August 2, 2001 ["Claimant's Response"], ¶ 28, n 1). Moreover, these facts support the State's position that claimant's acts, not the State's, caused his release date to be extended and later converted to his minimum period of incarceration (King Aff., ¶¶ 20-22); and establish the State's defense as a matter of law unless claimant tenders "evidentiary proof in admissible form sufficient to require a trial of material questions of fact" (Gilbert Frank Corp. v Federal Ins. Co., supra, at 967).

Claimant counters the State's motion primarily by arguing that he should have been released on August 20, 1999 because the evaluation and review committee at Willard had no authority to recommend or impose a 30-day "recycle" for him (Claimant's Response, ¶¶ 13-21);[4] however, CPL 410.91, Executive Law § 259-i (3) and 9 NYCRR 8005.20 (d) counsel otherwise. These authorities allow the Division to revoke claimant's release for failure to participate in and successfully complete the drug treatment program, from which it follows that the Division may grant claimant what appears to have been a second chance to complete the program by "recycling" him.

Specifically, CPL 410.91 provides that a person sentenced thereunder shall "be placed under the immediate supervision of the state division of parole and must comply with the conditions of parole" (CPL 410.91 [1]). Here, successful completion of the drug treatment program at Willard was a special condition of claimant's parole (King Aff., Exh. A). Violation of this condition authorized the Division to revoke claimant's parole pursuant to the procedures set forth in Executive Law § 259-i (3) and, further, authorized the Division to place claimant in a correctional facility immediately, pending the outcome of the proceedings (see, CPL 410.91 [8]).

Next, a violation warrant issued pursuant to Executive Law § 259-i (3) (O'Malley Aff., Exhs. C, D) constitutes
"sufficient authority to the person in charge of a drug treatment campus . . . to hold the person named therein . . . , for a period of at least ninety days to complete an intensive drug treatment program mandated by the board of parole as an alternative to parole or conditional release revocation, or the revocation of post-release supervision, and shall also constitute sufficient authority for return of the person named therein to local custody to hold in temporary detention for further revocation proceedings in the event said person does not successfully complete the intensive drug program"
(Executive Law § 259-i [3] [a] [i]). Finally, as a person sentenced under CPL 410.91, claimant was subject to having his release revoked for failure to complete the drug treatment program (see, 9 NYCRR 8005.20 [d]).

The execution of claimant's sentence to parole supervision was conditioned upon his successful completion of the 90-day drug treatment program (see, CPL 410.91 [1], [8]). Such a sentence gave him the opportunity--not the right (cf., Claimant's Response, ¶¶ 17-21)--to an earlier parole release date than he would have otherwise received under his standard indeterminate sentence of 2½ to 5 years.

Defendant has therefore conclusively demonstrated that claimant's own acts caused the extension of his release date. Consequently, claimant has not shown any harm related to the alleged wrongful act of the State. As the Court indicated on claimant's original application, there can be no tort liability where there has been no damage (see, McCants v State of New York, Read, P.J., UID # 2000-001-044, Motion No. M-61784, supra).

Based upon the foregoing, the Court grants defendant's cross motion to dismiss the claim. Claimant's motion to strike the affirmative defenses stated in the answer is denied as moot.


October 12, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]The return date of these motions was extended from July 25, 2001 to September 12, 2001 to give claimant time to respond to the State's cross motion. The document entitled "Claimant's Supplemental Pleadings" was, therefore, untimely. To the extent claimant wished to amend his claim filed on December 14, 2000, he was required to do so by motion pursuant to CPLR 3025 and 22 NYCRR 206.7 [b]. To the extent the allegations in this document mirrored arguments already presented in claimant's timely motion papers, they have been considered.
[2]The State of New York unsuccessfully moved to dismiss the claim for improper service and claimant unsuccessfully moved for summary judgment (see, McCants v State of New York, Ct Cl, unreported decision filed June 8, 2001, Read, P.J., Motion Nos. M-63000 and M-63065).
[3]The section pertaining to final revocation hearings provides, among other things, that the presiding officer shall revoke the release of a violator who was sentenced to parole supervision or of a violator who was restored to the drug treatment program at Willard and is thereafter charged with failing to complete the program, when the charge(s) of violation are sustained (9 NYCRR 8005.20 [d]).
[4]Claimant also alleges, among other things, that his signing of the recycle document moving his release date to October 5, 1999 was coerced (Claimant's Response, ¶ 5); that "upon information and belief" the recycle was vacated before August 26, 1999, rendering the State's argument without merit (id., at ¶¶ 7, 10-11); and that the recycle did not comply with procedures set forth in a parole manual (id., at ¶¶ 22-23). "[M]ere conclusions, . . . unsubstantiated allegations or assertions are insufficient," however, to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 562).