New York State Court of Claims

New York State Court of Claims
HUBSHER v. STATE OF NEW YORK, # 2021-015-106, Claim No. 134473, Motion No. M-97130, Cross-Motion No. CM-97285


Parole Board's alleged failure to timely recommend to the sentencing Court a sex-offender risk classification 60 days prior to claimant's conditional release date from prison could not form the basis for a wrongful confinement claim. Claimant's release was conditioned upon the imposition of a risk -level classification by the Court and the time limit by which the Board's recommendation was required was directory rather than a mandatory limitation on the power of the Board to act.

Case information

UID: 2021-015-106
Claimant short name: HUBSHER
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134473
Motion number(s): M-97130
Cross-motion number(s): CM-97285
Claimant's attorney: Marshall Hubsher, Pro Se
Defendant's attorney: Honorable Letitia James, Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 3, 2021
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves for summary judgment pursuant to CPLR 3212 on his causes of action for false imprisonment and medical malpractice. Defendant cross-moves for dismissal of the claim pursuant to CPLR 3211 (a) (7) on the grounds the claim fails to state a cause of action, and also fails to meet the pleading requirements of Court of Claims Act 11 (b).

Claimant was formerly incarcerated in the custody of the Department of Corrections and Community Supervision (DOCCS) following his convictions for, among other things, third-degree rape. Subsequent to re-sentencing on October 16, 2018, claimant's maximum expiration date was calculated to be December 30, 2019 and his adjusted conditional release date was calculated to be December 30, 2018. On August 14, 2018 claimant was notified that his case was under review pursuant to the New York State Sex Offender Registration Act (Correction Law Art. 6-C) in order to determine the likelihood he would re-offend as well as the threat posed to public safety if he was released (claimant's Exhibit E). Nine days before the claimant's conditional release date, the Board of Examiners of Sex Offenders (hereinafter "the Board") informed the claimant of its risk level recommendation by notice dated December 21, 2018 (claimant's Exhibits F and G). The notice indicated that "the Court must make a final determination of the offender's risk level and designation at least 30 days prior to the offender's release, which is scheduled for 12/30/2018" (claimant's Exhibit F). The notice also stated: "In such cases where the offender will be released in less than 30 days or has already been released, the Court shall make these final determinations as expeditiously as possible. . . . Please note that until the court determines the offender's risk level, no community notification can occur" (id.).

A hearing for the final determination of claimant's risk level designation, though initially scheduled for January 14, 2019, was adjourned to January 18, 2019 at which time the Court confirmed the Board's recommendation of a risk-level 2 designation (Schaffer affidavit 4; claimant's Exhibit D, p. 8; defendant's Exhibit D, p. 17). After the hearing, claimant was transported back to Marcy Correctional Facility where his proposed residence was approved by the Field Community Supervision Office, and it was confirmed with DOCCS' Central Office that there were no outstanding issues concerning claimant's physical or mental health or his time computations. According to Angela R. Schaffer, employed by DOCCS as an Inmate Records Coordinator II, the check-off procedure performed prior to an incarcerated individual's release from prison typically takes 30 days. In claimant's case, however, the procedure was expedited and completed on February 11, 2019 and claimant was released from confinement on February 12, 2019 (defendant's Exhibit E, Schaffer affidavit, 7).

It is undisputed that on February 19, 2019 the claimant served a notice of intention to file a claim alleging he was wrongfully confined for six weeks past his conditional release date (claimant's Exhibit A).(1) A claim alleging causes of action for both false imprisonment and medical malpractice was thereafter served and filed on February 14, 2020 (claimant's reply, 9; Kalil affirmation, 22). With respect to the medical malpractice cause of action, claimant alleged in the claim that DOCCS' medical staff refused to refer him to specialists for his recently diagnosed kidney disease as well as the abnormally high level of prostate-specific antigen (PSA) which he alleges was indicative of the need for prostate cancer screening. Claimant alleges DOCCS' failure to provide appropriate medical treatment occurred from October 8, 2018 through December 31, 2018 (claimant's Exhibit B, claim).

Inasmuch as defendant's cross motion is dispositive, it will be addressed first.

Both Court of Claims Act 10 (3-b) applicable to intentional torts, and 10 (3) applicable to unintentional torts, require that either a claim or notice of intention to file a claim be served within 90 days of the date the claim accrued. The difference between the two sections is that where a notice of intention has been served a claim alleging an intentional tort must be filed and served within one year following accrual of the claim, whereas a claim alleging an unintentional tort must be filed and served within two years after accrual. Giving the claim here a liberal construction, claimant alleges causes of action for both false imprisonment, an intentional tort, and medical malpractice an unintentional tort. A claim for false imprisonment accrues upon a claimant's release from confinement since it is not until that date that the claimant's damages are reasonably ascertainable (Trammell v State of New York, 172 AD3d 1847 [3d Dept 2019]; Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]). Inasmuch as claimant was released from prison on February 12, 2019, the claim, which was filed more than one year later on February 14, 2020, was untimely with respect to the cause of action for false imprisonment. In addition, claimant's service of a notice of intention alleging only factual support for a false imprisonment claim failed to extend the time for claimant to serve and file a claim alleging medical malpractice.(2) Consequently, claimant's causes of action for false imprisonment and medical malpractice are both untimely.

Even if this were not the case, the Court would nevertheless conclude that the claim fails to state a cause of action for false imprisonment. The Sex Offender Registration Act (SORA) embodied in Article 6-C of the Correction Law requires the Board to develop certain guidelines for the purpose of recommending to the sentencing court the level of supervision and community notification required prior to an incarcerated individual's release (Correction Law 168-l [5]). After applying the guidelines, the Board is required to make a recommendation to the sentencing Court within 60 calender days prior to an incarcerated individual's release ( 168-l [6]). Claimant alleges, and the defendant does not dispute, that this was not done in his case. Instead, as set forth previously, DOCCS' recommendation to the sentencing Court was not made until December 21, 2018, a mere nine days before the claimant's conditional release date of December 30, 2018. The statute makes clear that the failure of either the Board or the Court "to render a determination within the period specified in this article shall not affect the obligation of the sex offender to register or verify under this article nor shall such failure prevent a court from making a determination regarding the sex offender's level of notification and whether such offender is required by law to be registered for a period of twenty years or for life" (Correction Law 168-l [8]). While the claimant does not contest the propriety of his risk level designation, he contends DOCCS' belated recommendation to the sentencing Court resulted in his wrongful imprisonment for six weeks beyond his conditional release date, thereby entitling him to damages for false imprisonment. Claimant supports this contention by reference to the following statutory requirement:

"Where a court is unable to make a determination prior to the date scheduled for a sex offender's discharge, parole, release to post-release supervision or release, it shall adjourn the hearing until after the offender is discharged, paroled, released to post-release supervision or released, and shall then expeditiously complete the hearing and issue its determination" (Correction Law 168-l [8]).

Consequently, claimant contends that as a result of the DOCCS' belated risk-level recommendation, he should have been released to parole supervision on his conditional release date and the hearing expeditiously completed thereafter.

To prevail on a cause of action for wrongful confinement, a species of false imprisonment, it must be established that "(1) the defendant intended to confine [claimant], (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 [1975]), cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see also Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl 1986]). Here, although the factual allegations in the claim, accepted as true for the purpose of the motion (see Leon v Martinez, 84 NY2d 83 [1994]), satisfy the first three elements, they fail to satisfy the requirement that the confinement was not otherwise privileged.

An incarcerated individual's right to release does not accrue until the maximum expiration date of his or her sentence is reached (People ex rel. Justice v Racette, 111 AD3d 1041 [3d Dept 2013], lv denied 22 NY3d 861 [2014]; People ex rel. Richardson v West, 24 AD3d 996, 997 [3d Dept 2005]; People ex rel. Mabery v Leonardo, 177 AD2d 766 [3d Dept 1991], appeal denied 79 NY2d 753 [1992]; see also People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 174 AD3d 992 [3d Dept 2019], affd as modified 36 NY3d 187 [2020], rearg dismissed 36 NY3d 1087 [2021]). Prior to that time the Parole Board has discretion to deny parole release to an inmate who has not met certain requirements, such as securing an approved residence, or it may grant parole release with special conditions (People ex rel. Green v Superintendent of Sullivan Corr. Facility, 137 AD3d 56 [3d Dept 2016]; Matter of Boss v New York State Div. of Parole, 89 AD3d 1265 [3d Dept 2011]; Matter of Breeden v Donnelli, 26 AD3d 660 [3d Dept 2006]). While claimant was not released until approximately six weeks after his conditional release date, one of the conditions of his release was the following: "You shall not be released until the Board of Parole and Department of Corrections and Community Supervision are informed of the sex offender risk level that has been or will be established by a court of competent jurisdiction pursuant to Correction Law 168-N" (defendant's Exhibit D, p. 10 of Parole Board Decision).(3) Inasmuch as a sex-offender risk level had not been established by the claimant's conditional release date, his continued confinement was privileged until such conditions were satisfied.

Claimant's reliance on Miller v State of New York (124 AD3d 997 [3d Dept 2015]) for a contrary result is misplaced. In Miller, the claimant was confined until after his maximum expiration date in order to finalize the conditions of his post-release supervision. Here, by contrast, claimant was released after his conditional release date but before the maximum expiration date of his sentence had passed. The reason for the claimant's release after his conditional release date was the need to finalize the terms of his postrelease supervision, which include, in the case of a sex offender, notification requirements and, in certain circumstances, a residence which meets the requirements of the Sexual Assault Reform Act (SARA) (see Correction Law Art 6-C; Executive Law 259-c [14]; Penal Law 220.00 [14]; People ex rel. Green v Superintendent of Sullivan Corr. Facility, 137 AD3d 56 [3d Dept 2016]).

The statute claimant relies upon to support his false imprisonment cause of action - Correction Law 168-l - makes clear that the Board's failure to timely provide its recommendation to the Court "shall not affect the obligation of the sex offender to register . . . nor shall such failure prevent a court from making a determination regarding the sex offender's level of notification" (Correction Law 168-l [8]). Consequently, where the delay in holding the risk-level determination hearing is not "so 'outrageously arbitrary' as to constitute 'a gross abuse of governmental authority' " due process is not violated (People v Cash, 168 AD3d 1110 [2d Dept 2019], lv denied 33 NY3d 907 [2019]; People v Gallagher, 129 AD3d 1252 [3d Dept 2015], lv denied 26 NY3d 908 [2015]; People v Wilkes, 53 AD3d 1073 [4th Dept 2008], lv denied 11 NY3d 710 [2008]). Considering the nature of the Board's statutorily imposed duties, it cannot be concluded that claimant's six-week confinement beyond his conditional release date was outrageously arbitrary or constituted a gross abuse of authority so as to rise to the level of a due process violation. The confinement was therefore privileged.

While the fault for the delay in securing a risk-level determination may rest with the Board, which allegedly failed to recommend a risk-level designation to the sentencing Court within 60 calendar days of claimant's anticipated date of release (see Correction Law 168-n [6]), strict compliance with the statutory time limit was not required. As made clear by the Court of Appeals in Matter of Dickinson v Daines (15 NY3d 571, 574 [2010]), "unless the language used by the Legislature shows that the designation of time was intended as a limitation on the power of the body or officer, the provision is directory rather than mandatory." No such language appears in the statute claimant alleges was violated here. To the contrary, the 168-l (8) expressly indicates that a delay in providing a risk-level determination does not relieve the sex offender of his obligation to register or prevent the Court from determining the sex offender's level of notification. In determining whether a statutory provision is mandatory or directory, both the language of the statute and the legislative intent underlying it must be examined (Matter of Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 NY2d 531 [1992]). Given that the primary goal of SORA "is to 'protect the public from the danger of recidivism posed by sex offenders' " (People v Buss, 11 NY3d 553 [2008], quoting People v Stevens, 91 NY2d 270, 275 [1998]), the time-limits set forth in Correction Law 168-l may not be considered mandatory limitations on the State's power to act. A contrary rule " 'that rendered every administrative decision void unless it was determined in strict literal compliance with statutory [or regulatory] procedure would not only be impractical but would also fail to recognize the degree to which broader public concerns, not merely the interests of the parties, are affected by administrative proceedings' " (Matter of Dickinson, 15 NY3d at 575, quoting Matter of Syquia, 80 NY2d at 535). Given the public policy underlying the application of SORA, it cannot be said the Board's delay in providing its recommendation to the sentencing Court constituted a due process violation or a basis for a false imprisonment cause of action. Accepting all the facts alleged in the claim to be true, and according the allegations the benefit of every possible favorable inference, the claim fails to state a cognizable cause of action for wrongful confinement (see Leon, 84 NY2d 83).

Based on the foregoing, dismissal of the claim is required on the grounds it was both

untimely filed and fails to state a cognizable cause of action for false imprisonment.

Accordingly, defendant's cross motion is granted and the claim is dismissed. Claimant's motion is denied as academic.

December 3, 2021

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

1. Notice of Motion (M-97130) dated August 25, 2021;

2. Affidavit of Marshall Hubsher sworn to August 25, 2021, with Exhibits A-T;

3. Notice of Cross Motion (CM-97285) dated September 27, 2021;

4. Affirmation dated September 27, 2021, with Exhibits A-E;

5. Claimant's undated statement filed October 6, 2021;

6. Defendant's Reply Affirmation dated October 13, 2021.

1. Although defense counsel erroneously states that per the date stamp indicated on the notice of intention it was served on February 19, 2020, the date stamp in fact indicates it was served on February 19, 2019 (Kalil affirmation, 21).

Claimant alleges in his notice of intention to file a claim that he should have been released on December 27, 2018, which he alleged therein was the date he was to have been conditionally released to parole supervision. In fact, following claimant's second re-sentencing, his conditional release date was December 30, 2018 (see defendant's Exhibit D, Sanford affidavit, p. 3).

2. Defendant preserved its defenses with respect to the timeliness of the claim by raising them as its first and second affirmative defenses in its answer (see Court of Claims Act 11 [c]).

3. Inasmuch as claimant's application for parole release was denied with the direction that he be held to his maximum expiration date (defendant's Exhibit D, p. 8), it is not clear why claimant was released on February 12, 2019, prior to the maximum expiration date of his sentence.