Opinion
# 2012-041-020 Claim No. 116844 Motion No. M-80780
03-19-2012
BURNETT v. THE STATE OF NEW YORK
Synopsis
Claim alleging that defendant unlawfully confined claimant by adding term of post-release supervision to claimant's criminal sentence is dismissed for failure to state a cause of action. Case information
UID: 2012-041-020 Claimant(s): DAVID BURNETT Claimant short name: BURNETT Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116844 Motion number(s): M-80780 Cross-motion number(s): Judge: FRANK P. MILANO MUSCATO & SHATKIN, LLP Claimant's attorney: By: Marc Shatkin, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Michael T. Krenrich, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: March 19, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves to dismiss the claim for failure to state a cause of action. Claimant opposes the motion.
The claim alleges that defendant administratively, and unlawfully, added a five-year period of postrelease supervision to claimant's criminal five-year determinate sentence, resulting in claimant being imprisoned for violating the terms of the administratively imposed postrelease supervision. The claim sounds in wrongful confinement, negligence and violation of state and federal constitutional rights.
To establish that he was wrongfully confined, claimant must prove 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 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
In Ortiz v State of New York (78 AD3d 1314, 1315 [3d Dept 2010], affd Donald v State of New York, 17 NY3d 389 [2011]), the court held, under similar circumstances, that "DOCS's actions in administratively imposing postrelease supervision in the first place and also in confining individuals for a violation of administratively imposed postrelease supervision are privileged."
Because the alleged confinement was privileged, the claim fails to state a cause of action for wrongful confinement.
Claimant also fails to state a cause based upon defendant's purported negligence in imposing postrelease supervision. In Donald, again under similar circumstances, the Court of Appeals rejected a cause of action against defendant based in negligence:
"[N]egligence claims are barred for another reason: the State is immune from liability for the discretionary acts of its officials (Tango v Tulevech, 61 NY2d 34, 40 [1983] ['when official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice']; Lauer v City of New York, 95 NY2d 95, 99 [2000] ['A public employee's discretionary acts . . . may not result in the municipality's liability even when the conduct is negligent']; McLean v City of New York, 12 NY3d 194, 203 [2009] ['Government action, if discretionary, may not be a basis for liability']).
Where the issue is governmental immunity, an action is considered 'discretionary' if it involves 'the exercise of reasoned judgment' (Lauer, 95 NY2d at 99). DOCS's actions in recording PRS terms as part of claimants' sentences were discretionary in that sense. In each of these cases, DOCS was presented with a prisoner sentenced to a determinate prison term, for whom PRS was mandatory under state law. DOCS made the 'reasoned judgment' that it should interpret their sentences as including PRS, though the sentences rendered by the courts did not mention it. We held in Garner that that judgment was mistaken, but it clearly was just that--a mistake in judgment--not a ministerial error, like mistranscribing an entry or confusing the files of two different prisoners.
Making judgments as to the scope of its own authority in interpreting the directions it has received from the court system is a normal and legitimate part of DOCS's function" (Donald, 17 NY3d at 395-396).
The claim fails to state a negligence-based cause of action.
Claimant argues in opposition to the defendant's motion that under "Penal Law Section 70.45, the sentencing Judge should have imposed a PRS term of between 2.5 and 5 years." Claimant further asserts that the defendant "imposed a five year period of PRS, an act which must be deemed illegal because the term could have been as little as 2.5 yrs" and that consequently "the acts of defendant New York State should no longer be deemed discretionary."
Defendant correctly points out, however, that under then existing Penal Law § 70.45 (2), the sentencing judge was obligated to impose a five-year postrelease supervision term upon the claimant.
Further, the decision of this Court in Donald v State of New York (24 Misc 3d 329 [Ct Cl Feb 5, 2009]), considered a situation in which the defendant administratively imposed a three-year period of postrelease supervision upon the claimant when, under the prevailing statute, a 1½ to 3 year period of postrelease supervision could have been imposed by the sentencing judge. The Court of Appeals, in affirming the Fourth Department Appellate Division's reversal of this Court's decision in Donald, found no legal infirmity in the defendant's imposition of the three-year period of postrelease supervision under such circumstances (Donald v State of New York,17 NY3d 389 [2011]).
Claimant also alleges that defendant's administrative imposition of postrelease supervision violated his federal and state constitutional rights. Claimant's potential state constitutional cause of action will be considered first.
Although the Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims (Brown v State of New York, 89 NY2d 172, 177-178 [1996]), "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Claimant could have raised his state constitutional claim in the context of an article 78 proceeding in supreme court (see Bullard v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]). Claimant could have also pursued a state constitutional claim in New York State Supreme Court (Haywood v Drown, 556 US 729, 129 S Ct 2108 [2009]). His state constitutional tort claim thus "does not lie" in the Court of Claims (Shelton, 61 AD3d at 1150).
With respect to the allegation that claimant's federal constitutional rights were violated, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton, 61 AD3d at 1151; see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
Claimant's cause of action alleging violation of his state and federal constitutional rights fails to state a cause of action.
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
March 19, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed December 9, 2011;
2. Affirmation of Michael T. Krenrich, dated December 9, 2011, and annexed exhibit;
3. Affirmation of Marc Shatkin, dated December 19, 2011;
4. Reply Affirmation of Michael T. Krenrich, dated January 11, 2012, and annexed exhibit.