Opinion
# 2012-032-018 Claim No. 116652 Motion No. M-78564 Cross-Motion No. CM-78642
03-23-2012
HOWARD v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-032-018 Claimant(s): FELIPE HOWARD Claimant short name: HOWARD Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116652 Motion number(s): M-78564 Cross-motion number(s): CM-78642 Judge: JUDITH A. HARD Yoeli & Gottlieb, LLP Claimant's attorney: By: Michael Yoeli, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Michael T. Krenrich, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: March 23, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves this Court for an order of summary judgment dismissing the claim based upon claimant's failure to state a valid cause of action. Claimant opposes the motion and cross-moves for partial summary judgment on the basis that defendant's actions were not privileged. For the reasons set forth below, the Court grants defendant's motion to dismiss, denies claimant's cross-motion for partial summary judgment, and dismisses Claim No. 116652.
This claim, which was filed on April 6, 2009, seeks damages for the allegedly unauthorized imposition of a period of post-release supervision (PRS) following claimant's release from incarceration, and the incarceration of claimant for violating said PRS after courts had ruled that PRS may not be imposed administratively. FACTS
On April 8, 2003, claimant was sentenced to a four year determinate term of imprisonment upon his conviction of attempted arson in the second degree. The sentencing court did not impose a term of PRS. However, when claimant was released from incarceration on December 3, 2004, a five year term of PRS was imposed upon him by the New York State Department of Correctional Services (DOCS).
As of April 1, 2011, the Department of Correctional Services and Division of Parole were merged to form the Department of Corrections and Community Supervision (DOCCS).
On or about August 21, 2008, claimant was declared delinquent for violating the conditions of his PRS and a parole warrant was lodged against him. On August 27, 2008, claimant pled guilty to a violation and was sentenced to a conditional discharge. On August 28, 2008, claimant was served with a Notice of Violation and Violation of Release Report, at which time he waived his right to a preliminary parole revocation hearing.
On September 8, 2008, the Division of Parole notified the original sentencing judge that claimant had been identified as a "designated person" under the newly enacted Correction Law § 601-d, for whom the administrative imposition of PRS was deemed unlawful.
A final revocation hearing regarding claimant's alleged violation of PRS was held on October 1, 2008. The Court sustained claimant's delinquency date and imposed a delinquent time assessment, whereby claimant was not eligible for re-release to parole for a period of 15 months.
On October 29, 2008, Justice Kron ordered claimant to be resentenced pursuant to Correction Law § 601-d and Penal Law § 70.85 to the originally imposed determinate sentence without a term of PRS. Claimant was released from confinement on or about November 6, 2008.
In support of its motion for summary judgment, defendant relies on Donald v State of New York, 17 NY3d 389 (2011), and argues that the Court of Appeals has effectively foreclosed the possibility of recovering monetary damages against the State for the administrative imposition of PRS by DOCS, because DOCS's actions in imposing the same were discretionary and therefore subject to immunity. In opposition, claimant argues that this claim does not fall within the Donald ruling because it is based upon the actions defendant took in enforcing the administratively imposed PRS upon claimant at a point in time when it was clear that the administrative imposition of PRS was a nullity. LAW AND ANALYSIS
A claimant asserting a cause of action for wrongful confinement 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 [2001]).
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 [2008]; People v Sparber, 10 NY3d 457 [2008]).
Thereafter, the Legislature enacted Correction Law § 601-d (effective June 30, 2008), which establishes a mechanism for re-sentencing inmates who were given determinate prison sentences after the passage of Penal Law §70.45, but whose commitment orders did not contain any mention of PRS. The statute, which applies to inmates in the custody of DOCS as well as to releases under the supervision of the Division of Parole, directs DOCS and the Division of Parole to identify the subject individuals and notify their sentencing courts about the omission in the commitment orders. The courts have a prescribed period of time in which to check their records and either issue new commitment orders, reciting that a PRS term was pronounced at the time of the original sentencing, or set a date for a re-sentencing hearing. Following such a hearing, the sentencing court must then issue a written decision that either re-sentences the individual, this time to a term that includes PRS, or states that the individual will not be re-sentenced.
Simultaneously with the enactment of Correction Law § 601-d, the Legislature enacted Penal Law § 70.85 which permits the Court, upon the consent of the district attorney, to re-impose the originally imposed determinate sentence without any term of PRS.
In response to the foregoing, numerous claims for false imprisonment arising from periods of confinement imposed for violations of the administratively imposed PRS were commenced in this Court with varying results. The Court of Appeals resolved said varying results in Donald v State of New York, 17 NY3d 389 (2011), supra, wherein it held, in two of the four appeals decided therein, that because neither claimant had alleged any defect in the process by which he or she was arrested for violating PRS, or in the jurisdiction of the court that issued the process, the claims for false arrest and false imprisonment must be dismissed. In rendering said holding, the Court relied upon Davis v City of Syracuse, 66 NY2d 840, 842 [1985], which held that "A detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction" (internal quotation marks and citations omitted).
In the present case, claimant has not alleged any defect in the process by which his arrest was effected or in the jurisdiction of the court or entity that issued the process. Accordingly, to the extent claimant's cause of action is for false arrest or wrongful confinement, it must be dismissed.
To the extent claimant alleges that the State was negligent in subjecting him to an unauthorized term of PRS, his claim must also be dismissed. The State is immune from liability for the discretionary acts of its officials acting in a governmental capacity, even when the conduct is negligent (see Valdez v City of New York, 18 NY3d 69 [2011]; McLean v City of New York, 12 NY3d 194 [2009]). An action is considered "discretionary" for governmental immunity purposes if it involves "the exercise of reasoned judgment" (Lauer v City of New York, 95 NY2d 95, 99 [2000]; Tango v Tulevech, 61 NY2d 34, 41 [1983]). In Donald v State of New York, 17 NY3d 389 (2011), supra, the Court of Appeals held that DOCS's action in recording a PRS term as part of a claimant's sentence is discretionary where DOCS was presented with a prisoner sentenced to a determinate prison term, for whom PRS was mandatory under state law, and DOCS made the "reasoned judgment" that it should interpret that prisoner's sentence as including a term of PRS even though the sentence did not mention it.
As in Donald, when the sentencing court was silent regarding the mandatory term of PRS, DOCS made the discretionary determination to calculate claimant's sentence to include a five year term of PRS which was prescribed by state law. Accordingly, the State is immune from liability for the administrative imposition of PRS upon claimant.
To the extent claimant argues that DOCS was without discretion to enforce the PRS which had erroneously been imposed by DOCS, his argument is without merit. Claimant remained subject to the terms of his PRS until the date of his resentencing, at which time the sentencing court could resentence him to a term with PRS or choose not to resentence him.
Accordingly, any confinement that occurred a result of the enforcement of claimant's PRS prior to his resentencing on October 29, 2008 is also privileged.
Based upon the foregoing, defendant's motion to dismiss is granted, claimant's cross-motion for summary judgment is denied as moot, and Claim No. 116652 is dismissed.
March 23, 2012
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated July 19, 2010; Affirmation in Support of Motion for Summary Judgment, affirmed by Michael T. Krenrich, AAG, on July 19, 2010, with Exhibits.
2. Notice of Cross Motion, dated August 3, 2010, and Affirmation in Support of Cross-Motion For Partial Summary Judgment and In Opposition to Defendant's Motion for Summary Judgment, affirmed by Michael Yoeli, Esq., on August 3, 2010, with Exhibits.
3. Reply, affirmed by Michael T. Krenrich, AAG, on November 17, 2010, with Exhibits.
4. Amended Notice of Cross-Motion, dated October 6, 2011, and Amended Affirmation in Support of Cross-Motion for Partial Summary Judgment and In Opposition to Defendant's Motion for Summary Judgment, affirmed by Michael Yoeli, Esq., dated October 6, 2011, with Exhibits.
5. Affirmation in Further Support of Defendant's Motion for Summary Judgment and In Opposition to Claimant's Amended Cross-Motion for Summary Judgment, affirmed by Michael T. Krenrich, AAG, on November 14, 2011, with Exhibits.
Papers Filed: Claim, filed April 6, 2009; and Verified Answer, filed May 15, 2009.