Burch v State of New York

[*1] Burch v State of New York 2009 NY Slip Op 51847(U) [24 Misc 3d 1242(A)] Decided on July 24, 2009 Ct Cl Milano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 24, 2009
Ct Cl

Sidney Burch, Claimant,

against

State of New York, Defendant.



115299



For Claimant:

JOEL BERGER, ESQ.

For Defendant:

HON. ANDREW M. CUOMO

New York State Attorney General

By: Michael T. Krenrich, Esq.

Assistant Attorney General

Frank P. Milano, J.

Claimant moves for summary judgment as to defendant's liability for this wrongful confinement claim, as alleged in claimant's first cause of action. The claim alleges that defendant unlawfully added a period of mandatory post-release supervision (PRS) onto claimant's sentence of incarceration even though the PRS term was never imposed by the sentencing judge. Claimant further alleges that the administratively imposed PRS term ultimately resulted in claimant's unlawful confinement for nearly three years, until claimant's release on February 25, 2008, pursuant to a Memorandum Order of the Appellate Division, Fourth Department, issued upon a writ of habeas corpus (People ex rel Burch v Goord, 48 AD3d 1306 [4th Dept 2008]).

Claimant has also alleged a cause of action for violation of his federal constitutional rights. The federal constitutional cause of action is not the subject of either the claimant's motion for partial summary judgment or defendant's cross-motion for summary judgment. The Court notes, however, that it is well-settled that no cause of action for damages against the State of New York exists for an alleged violation of an individual's rights under the United States Constitution since the State is not a "person" amenable to suit pursuant to 42 USC § 1983 (see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v [*2]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)]).

Defendant opposes the motion and cross-moves for summary judgment dismissing the claim. Defendant's cross-motion to dismiss will be considered first.

Defendant concedes that the facts essential to resolution of these motions "are not in dispute." On September 7, 2004, claimant pled guilty to violating conditions of his probation, previously imposed for a conviction of Attempted Robbery in the Second Degree. Bronx County Supreme Court, pursuant to a plea bargain, revoked his probation and sentenced claimant to a determinate term of two years incarceration on the original conviction of Attempted Robbery in the Second Degree. Neither the sentence imposed nor the sentencing commitment order included a period of post-release supervision.

Despite the clear and unambiguous terms of the sentence and sentencing commitment order, defendant administratively imposed a three year period of PRS to the claimant's sentence, to commence upon his release from incarceration on May 20, 2005. This, even though the sentencing judge had discretion to setclaimant's (a first time violent felony offender) term of PRS, had the judge imposed it, at between 1½ and 3 years under Penal Law 70.45 (2). While subject to the administratively imposed period of PRS, claimant was declared delinquent for violating the PRS terms, arrested and incarcerated from August 30, 2005 until released on February 25, 2008, in accordance with the Memorandum Order of the Appellate Division, Fourth Department, described above.

To establish that he was wrongfully confined, claimant must prove that "(1) the defendant intended to confine him, (2) the plaintiff 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]).

Defendant concedes that claimant satisfies the first three elements of the claim for wrongful confinement but argues that the confinement was privileged. "Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment" (Holmberg v County of Albany, 291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]).

Defendant asserted as defenses that the claim failed to state a cause of action and that the defendant's actions "were privileged as being judicial, quasi-judicial or discretionary determinations . . . and therefore defendant is immune from liability for such actions." In opposing claimant's motion and in its cross-motion for summary judgment, defendant argues that "both the plain language of the statute and the then prevailing decisional law required Claimant to serve a three year period of PRS as a mandatory component of his determinate sentence."

This Court considered and rejected a similar assertion of defendant that it was either permitted or mandated by statute to administratively impose a term of PRS on claimant, and that the confinement was therefore privileged, in Donald v State of New York (24 Misc 3d 329 [Ct Cl 2009]). In Donald, defendant relied upon Penal Law §§ 70.00 (6) and 70.45 (1), rather than Penal Law § 70.45 (2) which it now cites, in making its statute-based argument, but defendant's assertion of privilege remains unpersuasive in view of the absence of express statutory authority [*3]to administratively impose PRS, the explicit statutory instruction (CPL §§ 380.20 and 380.40) that only a court may impose sentence and the fact that Penal Law § 70.00 (6) expressly stated at all relevant times that the court, and not DOCS or any other administrative agency, is required to impose any applicable term of PRS:

"Determinate sentence. Except as provided in subdivision four of this section and subdivisions two and four of section 70.02, when a person is sentenced as a violent felony offender pursuant to section 70.02 or as a second violent felony offender pursuant to section 70.04 or as a second felony offender on a conviction for a violent felony offense pursuant to section 70.06, the court must impose a determinate sentence of imprisonment in accordance with the provisions of such sections and such sentence shall include, as a part thereof, a period of post-release supervision in accordance with section 70.45." (emphasis added).

Nor did, as defendant argues, "prevailing decisional law" require or permit defendant to exercise discretion or authority to impose a term of PRS on claimant and thus render defendant immune from liability.

In support of this proposition, defendant cites, among other cases, two federal district court actions which involved allegations of violation of the federal due process rights of the plaintiffs based upon unlawful imposition of PRS, Sinclair v Goord and Doe (CV-1317-LEK-RFT [ND NY, filed March 10, 2009]), and Scott v Fischer, et al. (2009 WL 928195, 07-CV-11303-NRB [SD NY, filed March 30, 2009]). The federal decisions, in finding the defendants' conduct in imposing PRS objectively reasonable in that it did not violate clearly established law, did not address the following: The explicit statutory instruction (Criminal Procedure Law §§ 380.20 and 380.40) that only a court may impose sentence; that Penal Law § 70.00 (6) expressly stated at all relevant times that the sentencing court, and not DOCS or any other administrative agency, is required to impose any applicable term of PRS; that "prior decisional law" relying only on decisions holding that PRS was "automatically" included in the sentence ignores an even greater number of decisions from the same time period in which a sentencing court's failure to impose PRS was held to be unlawful; that a state agency acting in the clear absence of jurisdiction is not entitled to immunity; that long-ago decided decisions, federal and state, clearly established that sentencing is exclusively a judicial prerogative; and that the New York State Department of Correctional Services had, prior to the emergence of the PRS issue, acted beyond its jurisdiction by similarly inserting itself administratively in the sentencing process and, as a consequence, was repeatedly found liable for wrongful confinement (Donald, 24 Misc 3d at 339-341).

Defendant's selective reliance on "prevailing decisional law" is particularly specious as defendant had begun the practice of administratively imposing PRS terms on inmates similarly situated to claimant before any "prevailing decisional law" had emerged. In Donald v State of New York (cited above) for instance, defendant administratively imposed the PRS term on inmate Donald just prior to Donald's release from incarceration on July 10, 2000. All but one of the cases cited by defendant as "prior decisional law" are dated after 2000. That some lower courts subsequently, and mistakenly, sanctioned defendant's extra-jurisdictional and illegal actions does not, after the fact, confer privilege or immunity upon defendant for wrongfully confining claimant. [*4]

And again, as noted in Mickens v the State of New York 2009 NY Slip Op 29256 [Ct Cl 2009]), defendant's (and the federal district courts') reliance upon "prior decisional law" holding that PRS was "automatically included" in the sentence "overlook[s] an even greater number of decisions from the same time period in which a sentencing court's failure to impose PRS was held to be unlawful."

Specific to this claim, defendant's claim of reliance on "prior decisional law" to support a defense of immunity is unsupported by the facts. Defendant imposed the PRS term on claimant on his release from incarceration on May 20, 2005. By that time, the Court of Appeals had already issued its opinion in People v Catu (4 NY3d 242, 245 [March 24, 2005]) in which the court held that "a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action." Surely defendant, in carefully tracking PRS decisional law, as suggested in its cross-motion papers, would have learned that "[p]ostrelease supervision is a direct consequence of a criminal conviction" and that "the court must advise a defendant of the direct consequences of the plea" (Catu, 4 NY3d at 244). If, as mandated by Catu, a guilty plea must be vacated upon a sentencing court's failure to advise the pleading defendant of the PRS requirement prior to defendant pleading guilty, then clearly defendant was aware approximately two months prior to May 20, 2005, that it had no authority to administratively impose a PRS term upon claimant more than six months after his plea (under the same circumstances as Catu) in the sentencing court.

Further, it is clear that where, as here, a state agency has "acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are prosecutorial or quasi-judicial in nature" (Pietra v State of New York, 71 NY2d 792, 796 [1988])

As set forth at length in Donald, any claim of defendant to have been acting in good faith under a mistaken belief that it was required or permitted to add a PRS term on claimant is unpersuasive in view of the complete absence of statutory authority to do so, the explicit statutory instruction (CPL §§ 380.20 and 380.40) that only a court may impose sentence, together with "long-ago decided decisions, federal and state, making it clear that sentencing is exclusively a judicial prerogative."

Finally, the Donald decision reminds that defendant has, in the past, acted beyond its jurisdiction by inserting itself in the sentencing process and found itself liable for wrongful confinement for having done so. In People ex rel Johnson v Martin (283 App Div 478, 481 [4th Dept 1954], affd 307 NY 713 [1954]), the court instructed that:

"The passing of sentence upon one convicted of a crime as well as the suspension of sentence is the sole prerogative and duty of the court. The judge must fix the punishment and the limits thereof within the bounds which the Legislature has provided for the crime. The Commissioner of Correction by himself or acting through his agents has no authority to sentence a prisoner nor to fix the limits of his confinement."

The Johnson decision resulted in a series of successful wrongful confinement lawsuits in the Court of Claims by inmates similarly situated to Johnson (see Waterman v State of New York, 207 Misc 773 [Ct Cl 1955], affd 1 AD2d 235 [4th Dept 1956], affd 2 NY2d 803 [1957]); [*5]Williams v State of New York (5 AD2d 936 [3d Dept 1958], lv denied 4 NY2d 678 [1958]; Brown v State of New York, 10 Misc 2d 833 [Ct Cl 1958], appeal dismissed 6 AD2d 1022 [4th Dept 1958]); Todzia v State of New York, 53 Misc 2d 200 [Ct Cl 1967]).

Defendant further asserts that claimant would be provided a "windfall" were he to obtain monetary damages for wrongful confinement because he would have been required to serve the administratively imposed PRS term of three years except for "the sentencing court's error."

Initially, it is again particularly troublesome in the instant matter, as in Donald, that defendant usurped the discretion vested in the sentencing court under Penal Law § 70.45 (2) to impose a PRS term upon claimant of between 1½ and 3 years, by unlawfully imposing any term of PRS upon claimant, let alone presumptively adding the maximum term of three years.

More importantly, defendant's contention ignores the possibility that if defendant had acted lawfully upon learning of the "sentencing court's error" and sought judicial re-sentencing as statutorily provided (CPL §§ 380.20 and 380.40), claimant may have chosen to withdraw his plea (Catu, 4 NY3d at 244), be tried on the violation of probation charges and be acquitted.

Catu, explains, at 245, that:

"Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction. The refusal of the trial court and Appellate Division to vacate defendant's plea on the ground that he did not establish that he would have declined to plead guilty had he known of the postrelease supervision was therefore error."

Defendant's contention further ignores the possibility that, even now, should defendant seek re-sentencing of claimant, the sentencing court could decline to impose a PRS term (Correction Law § 601-d [5] [b]). The commentaries to the statute note that:

"The review provided for by this section will ensure the validity of the defendants' underlying convictions, although it is possible that some defendants may avoid serving all or a portion of their period of PRS as a result" (Bonacquist, Practice Commentary, McKinney's Cons Laws of NY, 2009 Electronic Update, Correction Law § 601-d).

Defendant, citing several Court of Claims decisions, including Vazquez v State of New York (23 Misc 3d 1101 [A] [Ct Cl 2009]), also suggests that if defendant had not acted improperly and outside its authority in administratively imposing PRS upon claimant, but instead the sentencing court had properly imposed the PRS sentence, claimant would have had to serve the statutorily required PRS term and thereby, accordingly, has suffered no injury.

Vazquez stated at relevant part as follows:

"Lastly, even if the conduct of DOCS was exclusively ministerial, no liability may be imposed because, for the reasons set forth above, the conduct was not tortious (Tango v Tulevech, 61 NY2d at 40; see also Lauer v City of New York, supra ). As this Court indicated in Collins v State of New York, (UID No. 2007-015-252 [Ct Cl, December 31, 2007] Collins, J.)[7], had the sentencing Court informed the claimant of the period of postrelease supervision there would be no cause of action as the period of postrelease supervision prescribed in Penal Law § 70.45 is [*6]mandatory for individuals subject to a determinate sentence. Neither this claimant nor the movant in Collins alleged that the sentence imposed was not one subject to postrelease supervision pursuant to the Penal Law. Here, as in Collins, all that is alleged is that the claimant was made subject to postrelease supervision, which the facts indicate was consistent with the statutory requirement applicable to determinate sentencing. Under these circumstances it cannot be said that the conduct complained of was tortious or the cause in fact of the claimant's injuries." (emphasis added).

Defendant's argument, which asserts that claimant has no cause of action for wrongful confinement and/or suffered no injury by reason of defendant's actions because, had claimant's PRS term been initially imposed by the sentencing court or had the defendant sought re-sentencing by the sentencing court, claimant would have been lawfully confined and/or suffered no injury, is circular in its reasoning: Claimant was not wrongfully confined and/or suffered no injury because he would have been confined anyway if properly sentenced in the first instance or if the defendant had subsequently acted lawfully.

This argument can be described, to use a common sports aphorism, as "no harm, no foul." But in the Court's view, harm, in the form of either incarceration or otherwise restricted liberty, accrued until claimant was either lawfully sentenced by a court of law or released from incarceration or parole supervision.

It is this Court's opinion that the harm, once done, is not excused or said to be without tangible, meaningful redress by suggesting that had lawful procedures been followed, this claimant, or other similarly situated claimants, would have or may have endured, by lawful judicial action, the same limitation of liberty that defendant unlawfully imposed.

It is further clear that subsequent legal proceedings favorable to the defendant cannot serve as justification for defendant's prior extra-jurisdictional and illegal confinement of claimant (Broughton, 37 NY2d at 458, "[a]fter the fact judicial participation cannot validate an unlawful arrest; only probable cause existing at the time of arrest will validate the arrest and relieve the defendant of liability").

Defendant further ignores the holding in Matter of State of New York v Randy M. (57 AD3d 1157, 1159 [3d Dept 2008]):

"[R]espondent could not validly be incarcerated for violating a term of postrelease supervision which was not properly imposed . . . The court's later resentencing of respondent did not operate retroactively to cure the illegal imposition of postrelease supervision, meaning respondent could not validly be punished for violating the terms of postrelease supervision until after it was imposed by a court." (emphasis added).

The invalidity of defendant's suggestion that claimant cannot recover because he would have been confined anyway had he been properly sentenced is further illustrated by the holding in Montanaro v State of New York (42 Misc 2d 851 [Ct Cl 1964]). In Montanaro, the claimant was confined at a state hospital on August 23, 1960 based upon an order of commitment issued by a local court judge which was later found to have been issued improperly because the police officer who had arrested claimant had not signed the underlying criminal information and because claimant had not yet been arraigned on the charge. On September 12, 1960, a proper order of commitment was issued by a county court. The Montanaro court held, at 855, "that the claimant [*7]was unlawfully confined from August 23, 1960 to September 12, 1960 and for this confinement is entitled to damages in the amount of $2,000." In total, the claimant was confined in the state hospital from August 23, 1960 to March 3, 1961, at which time she was released on convalescent status. Under defendant's reasoning, there could be no recovery because the claimant could have been lawfully confined between August 23, 1960 to September 12, 1960, if she had been arraigned and if the officer had signed the information.

Because the imposition of post-release supervision on claimant by defendant was a legal nullity, claimant was unlawfully confined by its terms and could not be lawfully imprisoned for violating its terms. Any period of claimant's confinement caused by DOCS' unlawful and extra-jurisdictional imposition of the post-release supervision is not privileged and is actionable by claimant.

Defendant's cross-motion for summary judgment is denied.

Claimant seeks partial summary judgment, on his first cause of action, as to defendant's liability for wrongful confinement.

"A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).

Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

"In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion" (Archambault v Martinez, 120 AD2d 632, 632-633 [2d Dept 1986]). Further, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Claimant has shown that he satisfies each of the elements of a wrongful confinement claim. Defendant opposes the summary judgment motion on the grounds that the confinement was privileged and that defendant is immune from liability.

Defendant's reliance upon privilege and immunity were considered and rejected above.

In view of the foregoing, claimant is granted summary judgment as to defendant's liability for the wrongful confinement of claimant, proximately resulting from the unlawful administrative addition of post-release supervision to claimant's sentence. Claimant bears the burden at trial of proving the specific number of days that claimant was impermissibly confined, the manner in which he was so confined, whether by incarceration or otherwise, as a direct result of the imposition of post-release supervision by DOCS, and the damages which he specifically incurred by reason of such confinement.

The claimant's motion for summary judgment as to liability is granted as described above. Defendant's cross-motion for summary judgment is denied. A trial to determine damages will be [*8]scheduled.

Albany, New York

July 24, 2009

FRANK P. MILANO

Judge of the Court of Claims