Opinion
# 2013-040-007 Claim No. 119687-A Motion No. M-82237
01-22-2013
ALVIN LUCAS v. STATE OF NEW YORK
Synopsis
State's motion for summary judgment dismissing claim granted. Case information
UID: 2013-040-007 Claimant(s): ALVIN LUCAS Claimant short name: LUCAS Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119687-A Motion number(s): M-82237 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Alvin Lucas, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG Third-party defendant's attorney: Signature date: January 22, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, the State's motion for summary judgment seeking dismissal of the Claim pursuant to CPLR 3212 is granted.
On October 26, 1999, Mr. Lucas was convicted under indictment 1609/99 of Robbery in the First Degree and sentenced to a determinate sentence of incarceration of 10 years (see Ex. D, p. 3 attached to Assistant Attorney General Douglas R. Kemp's Affirmation [Kemp Affirmation]). The original Sentence and Commitment Order did not require a period of PRS. By letter dated August 25, 2008, Terrence X. Tracy, Counsel at the Division of Parole, notified Acting Supreme Court Justice Charles H. Solomon that the Court also should have imposed a period of PRS upon Claimant under indictment 1609/99 (see Ex. 1 attached to Claimant's opposition papers). By Order dated December 5, 2008, Justice Solomon re-sentenced Claimant, imposing a five-year period of PRS under that indictment (see Ex. D, pp. 1-3 attached to Kemp Affirmation).
On the same date, Mr. Lucas also was convicted under indictment 1782/99 of Robbery in the First Degree and sentenced to a determinate sentence of incarceration of 10 years with the sentence to run concurrently with the sentence imposed under indictment 1609/99 (see Ex. 1 attached to Claimant's opposition papers). The original Sentence and Commitment Order under indictment 1782/99 also did not require a period of PRS. Mr. Tracy's August 25, 2008 letter notified Acting Supreme Court Justice Charles H. Solomon that the Court also should have imposed a period of PRS upon Claimant under indictment 1782/99 (see id.). By Order dated December 5, 2008, however, Justice Solomon declined to re-sentence Claimant and the previously-imposed sentence under indictment 1782/99 was not disturbed (see Ex. 2 attached to Claimant's opposition papers).
Subsequently, Claimant moved to vacate the portion of the sentence under indictment 1609/99 that imposed PRS. By Decision and Order dated March 18, 2010, Justice Solomon granted the motion and vacated the period of PRS (Kemp Affirmation, Ex. E). The New York State Department of Correctional Services (DOCS)Office of Sentencing Review received Justice Solomon's Order on March 29, 2010 (Kemp Affirmation, Ex. C, Response to Interrogatory No. 5). The same day, Claimant was advised that he was no longer subject to PRS (id., Response to Interrogatory Nos. 2 and 5).
Effective April 2011, the Department of Correctional Services and Division of Parole were merged to form the Department of Corrections and Community Supervision (DOCCS).
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93, 94 [Sup Ct, Albany County 1965]), affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
Claimant alleges that he was falsely imprisoned (see Claimant's opposition papers, ¶¶ 10, 12 & 14). To establish a cause of action for false imprisonment, claimant must show 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 [1975]). In moving for summary judgment, Defense counsel asserts that the administrative imposition of PRS by DOCS was privileged and based on a valid judicial Order of the Supreme Court.
In Donald v State of New York (17 NY3d 389 [2011]), the Court of Appeals decided four cases where the claimants were convicted of crimes for which they received determinate sentences. A statute required that such a sentence include a period of PRS, but, in each case, the sentencing judge failed to pronounce a PRS term. Nevertheless, claimants were subjected to PRS by DOCS. Claimants brought actions against the State, asserting that DOCS acted without Court authority and administratively added PRS to their prison terms.
In Donald, the Court of Appeals specifically stated that an otherwise unlawful detention is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction (id., at 395). Claimant asserts that the State's request in 2008 that a period of PRS be imposed was improper (see Claimant's Opposition Papers, ¶ 3). However, Mr. Lucas also admits that the copy of Justice Solomon's December 5, 2008 Order re-sentencing Claimant to a period of PRS under indictment 1609/99 is what it purports to be (id., ¶ 4). Moreover, DOCS promptly discharged Claimant from PRS upon receipt of Justice Solomon's subsequent March 29, 2010 Order that vacated the portion of the sentence that had imposed PRS. In opposition to the motion, Claimant also submitted a copy of Justice Solomon's December 5, 2008 Order relating to indictment 1782/99, wherein the Court indicated that Claimant's previously-imposed sentence under that indictment would not be disturbed (Claimant's Opposition Papers, Ex. 2).
Based upon the documentary evidence submitted by both parties, the Court concludes that Claimant cannot establish a cause of action for false imprisonment and that the State's defense that the imprisonment was privileged is established. Claimant was confined pursuant to Justice Solomon's December 5, 2008 Order relating to indictment 1609/99, an order of a court of competent jurisdiction and pursuant to a legal process that was valid on its face. The Court further determines that Justice Solomon's Order not to disturb the previously-imposed sentence with regard to indictment 1782/99 does not affect the validity of his Order relating to indictment 1609/99. Thus, the Court further concludes Defendant has established that the period of PRS was imposed pursuant to a legal process that was privileged (Davis v City of Syracuse, 66 NY2d 840, 842 [1985], see Donald v State of New York, supra at 395). Defendant's actions in supervising Claimant's PRS also are privileged (Jackson v State of New York, 94 AD3d 1166, 1168 [3d Dept 2012]).
The Court finds and concludes that the evidence submitted establishes that the period of PRS imposed upon Claimant was privileged as set forth above. Therefore, based upon the foregoing, the State's motion for summary judgment dismissing the Claim is granted and the Claim is dismissed.
January 22, 2013
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion for summary judgment:
Papers Numbered
Notice of Motion, Affirmation
& Exhibits attached 1
Claimant's Opposition & Exhibits attached 2
Filed Papers: Claim, Answer