Opinion
# 2012-032-025 Claim No. 117498 Motion No. M-80970 Cross-Motion No. CM-81143
06-13-2012
MOULTON v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-032-025 Claimant(s): FRANCIS MOULTON Claimant short name: MOULTON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117498 Motion number(s): M-80970 Cross-motion number(s): CM-81143 Judge: JUDITH A. HARD Law Offices of Joel B. Rudin, Esq. Claimant's attorney: By: Terri S. Rosenblatt, 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: June 13, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves this Court for an order dismissing Claim No. 117498 on the grounds that the claim fails to state a valid cause of action against defendant. Claimant opposes defendant's motion and cross-moves for an order granting claimant summary judgment on the issue of liability. Defendant opposes claimant's cross-motion. For the reasons set forth below, defendant's motion to dismiss is granted and Claim No. 117498 is dismissed.
The underlying claim seeks relief for the unlawful imposition of a term of post-release supervision (PRS) upon claimant.
FACTS
On October 4, 2000, claimant was sentenced to a three and one-half year determinate sentence upon pleading guilty to robbery in the second degree, a class C violent felony offense. At the time of the sentence, claimant was not sentenced to a term of PRS. However, when claimant was released from custody on August 20, 2003, a five year term of PRS was imposed by DOCS.Claimant was arrested and incarcerated for violating said PRS on four occasions. The last of said occasions, and the only one upon which the pending claim is based,occurred on May 12, 2008.
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).
Claimant states that by letter to AAG Michael T. Krenrich, dated November 29, 2011, claimant voluntarily withdrew his claims as to the prior three violations.
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On October 15, 2008, the Honorable Thomas G. Leone, Acting Supreme Court Justice of Cayuga County, granted claimant's petition for a writ of habeas corpus and claimant was released from the custody of DOCS.
A notice of intention to file a claim was served upon defendant on January 13, 2009. The claim, which alleges false imprisonment and malicious prosecution, and, in the alternative, a violation of claimant's rights pursuant to the New York State Constitution, was filed on October 8, 2009.
LAW AND ANALYSIS
False Imprisonment
A claimant asserting a cause of action for false imprisonment or 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]).
In the present case, defendant does not dispute the first three factors, specifically that claimant was confined, that he was conscious of the confinement, and that he did not consent to the confinement. Therefore, the only factor at issue is whether claimant's confinement was not otherwise privileged. Claimant argues that it was not privileged, because the confinement occurred after Matter of Garner v New York State Department of Correctional Services, 10 NY3d 358 [2008], such that defendant knew or should have known that the administratively imposed term of PRS was a nullity, and therefore, defendant had no "privilege" to imprison claimant for violating his term of PRS. Defendant argues that the confinement was privileged because persons released to PRS remain in the legal custody of the State until the expiration of the maximum term of their sentence or PRS or until a court of competent jurisdiction orders the release of such person. The Court agrees with defendant.
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]).
In response to the Court of Appeals decisions in Garner, and Sparber, 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 results in Donald v State of New York, 17 NY3d 389 (2011), 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 lawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction" (internal quotation marks and citations omitted).
Claimant attempts to distinguish this claim from those addressed in Donald, arguing that because the wrongful confinement in this case occurred after Matter of Garner v New York State Department of Correctional Services, 10 NY3d 358 [2008], defendant knew or should have known that the administratively imposed term of PRS was a nullity. However, despite the fact that the decisions in Sparber and Garner invalidated the longstanding practice of administratively imposing statutorily required periods of PRS, every period of PRS was not automatically extinguished by virtue of those decisions. As argued by defendant, the Court of Appeals remanded for re-sentencing in the Sparber cases and specifically noted in Garner that its holding was without prejudice to either the People or DOCS to seek re-sentencing (see People v Sparber, 10 NY3d 457 [2008], and Matter of Garner v New York State Department of Correctional Services, 10 NY3d 358 [2008]; see also Mickens v State of New York, 25 Misc 3d 191 [Ct Cl 2009]).
In the present case, claimant's term of PRS was not vacated until he was granted a writ of habeas corpus on October 15, 2008. Accordingly, any confinement resulting from the enforcement of parole warrants and/or parole revocation proceedings prior to that date is privileged, and claimant's cause of action for false imprisonment is without merit.
Negligence
Claimant states in support of his cross-motion for summary judgment that he does not assert that the State was negligent in subjecting claimant to an unauthorized term of PRS. However, to the extent the claim can be construed as asserting the same, said cause of action 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), 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. Based upon the foregoing, the State is immune from liability for the administrative imposition of PRS upon claimant.
Malicious Prosecution
The essential elements of a cause of action for malicious prosecution are: (1) commencement of a criminal proceeding against a claimant, (2) the termination of the proceeding in favor of the claimant, (3) absence of probable cause for the criminal proceeding, and (4) actual malice (Broughton v State of New York, 37 NY2d 451, 457 [1975]; Martinez v City of Schenectady, 97 NY2d 78 [2001].
Although claimant has established the first element, the Court finds that the remaining three elements are lacking. With respect to the second element, claimant must allege that the prior proceeding was terminated in his favor. For a criminal matter to be terminated in favor of the party being prosecuted, the final disposition must be one that indicates innocence (see Hollender v Trump Vil, Coop., 58 NY2d 420 [1983]). The termination of a criminal proceeding is not a favorable one for purposes of malicious prosecution if the conviction was reversed not because of a lack of culpability but because of procedural grounds (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Romero v State of New York, 294 AD2d 730 [3d Dept 2002], lv denied 99 NY2d 503 [2002]).
In the present case, the grant of claimant's petition for a writ of habeas corpus does not constitute a favorable termination for purposes of malicious prosecution. Claimant's guilt of the underlying charge that he violated the conditions of his parole is undisputed. The release of claimant from confinement was the result of a "procedural error, akin to a misstatement or clerical error" (People v Sparber, 10 NY3d 457, 472 [2008]; Nazario v State of New York, 24 Misc 3d 443 [Ct Cl Feb. 27, 2009], affd on other grounds 75 AD3d 715 [3d Dept 2010], lv denied 15 NY3d 712 [2010]). Accordingly, the Court concludes that claimant has failed to establish that the proceeding underlying his cause of action for malicious prosecution was terminated in his favor.
However, even if claimant had established the second element necessary for a claim for malicious prosecution, he has failed to establish the third element, specifically, that defendant did not have probable cause to commence the criminal proceeding. There does not appear to be any dispute that claimant was declared delinquent for a violation of the conditions of his parole and that claimant was incarcerated as a result of the same. As a declaration of delinquency may be made only upon a finding of probable cause at the preliminary hearing, or as the result of a waiver (Executive Law § 259-i [3] [c] [iv]), the presumption of probable cause attaches. Claimant has not alleged circumstances which might serve to overcome the presumption of probable cause or raise a question of fact regarding the same. Accordingly, he has failed to satisfy the third element required to maintain a cause of action for malicious prosecution.
Finally, claimant has failed to satisfy the fourth element of actual malice. Actual malice is defined as "'with knowledge that it was false or with reckless disregard of whether it was false or not'" (Kelly v State of New York, 131 AD2d 176 [3d Dept 1987], quoting Wolston v Reader's Digest Assn., 443 US 157, 160 [1979]). In the present case, claimant asserts malice based upon defendant's initiating and continuing of proceedings despite the fact that it knew or should have known that the administrative imposition of PRS was a nullity. However, claimant remained subject to the terms of his PRS until the date his petition for a writ of habeas corpus was granted and he was released from custody. Accordingly, the Court cannot conclude that defendant acted with malice when it arrested and incarcerated claimant for violating his term of PRS prior to said date.
Based upon the foregoing, this Court determines that the claim fails to state a cause of action for malicious prosecution as a matter of law. Accordingly, said cause of action must be dismissed.
State Constitutional Claim
A cause of action alleging a violation of the State Constitution may give rise to a tort cause of action only where it is necessary to ensure the full realization of the claimant's constitutional rights (Brown v State of New York, 89 NY2d 172 [1996]; Martinez v City of Schenectady, 97 NY2d 78 [2001]). In the present case, claimant had alternative avenues of redress available, including habeas corpus relief which he successfully pursued (Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Shelton v New York State Liq. Auth., 61 AD3d 1145 [2009]; Bullard v State of New York, 307 AD2d 676 [2003]). Accordingly, to the extent claimant alleges a violation of the New York State Constitution, it is without merit.
CONCLUSION
Based upon the foregoing, defendant's motion to dismiss is granted and claimant's cross-motion for summary judgment is denied. Claim No. 117498 is dismissed.
June 13, 2012
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion and Affirmation in Support, affirmed by Michael T. Krenrich, AAG, on January 27, 2012, with Exhibits.
2. Notice of Cross-Motion for Summary Judgment, and Affirmation in Opposition and In Support of Cross-Motion, affirmed by Terri S. Rosenblatt, Esq., on March 1, 2012, with Exhibits.
3. Affirmation in Opposition to Claimant's Cross-Motion for Summary Judgment and In Reply, dated March 7, 2012.
4. Reply Affirmation, affirmed by Terri S. Rosenblatt, Esq., on March 19, 2012.
Papers Filed: Claim, filed October 8, 2009; and Verified Answer, filed November 20, 2009.