Torres v State of New York

[*1] Torres v State of New York 2013 NY Slip Op 51856(U) Decided on September 23, 2013 Ct Of Cl McCarthy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 23, 2013
Ct of Cl

Alvin Torres Claimant(s)

against

State of New York, Defendant(s)



119045



Claimant's attorney:ROBERT DEMBIA, P.C.

By: Robert Dembia, Esq.

Defendant's attorney:ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

By: Michael T. Krenrich, Esq., AAG

Christopher J. McCarthy, J.

For the reasons set forth below, Claimant's motion seeking partial summary [*2]judgment as to liability is granted and the State's cross-motion seeking summary judgment dismissing the Claim is denied.

The Claim, which was filed with the Clerk of the Court on October 12, 2010, asserts causes of action for false imprisonment, false arrest, negligence and federal civil rights violations. Claimant seeks partial summary judgment as to liability on the false imprisonment and negligence causes of action, asserting that the Department of Correctional Services (hereinafter, "DOCS"[FN1]) incarcerated him improperly beyond the maximum expiration date of his sentence because it failed to credit him with the proper amount of parole jail time credit ("PJTC") to which he was entitled. "Parole jail time is the time a parolee has spent in local jail from arrest until such time [as] the parolee is restored to supervision or returned to a State correctional facility" (Affidavit of Tami Cafariella in support of Cross-Motion [hereinafter, the "Cafariella Affidavit"], ¶ 3).

The facts of the Claim are not in dispute. In March 2006, Claimant was sentenced on separate convictions to two indeterminate terms of incarceration of one-and-one-third-year-to-four-years to run concurrently (see Exs. A and B attached to the State's Cross-Motion). Mr. Torres was released to parole supervision in November 2006, but was arrested and declared delinquent for violating the conditions of his parole, in June 2007 (see Exs. C-F to Cross-Motion). A "[n]o delinquency pending court action" request was submitted and approved by the Commissioner of Parole in July 2007 (see Ex. F to Cross-Motion).

On April 8, 2008, Claimant was arrested and was declared delinquent for further violating the conditions of his parole (see Exs. H and G to Cross-Motion). At a final parole revocation hearing, conducted on April 30, 2008, Claimant's delinquency date was modified from June 2007 to April 8, 2008 (see Ex. J to Cross-Motion). On June 30, 2008, Claimant pleaded guilty to a misdemeanor charge in connection with his April 8, 2008 arrest and was sentenced to "one year jail [time] concurrent to parole time" by the New York City Criminal Court, New York County (Ex. 8 attached to Claimant's Motion; see Exs. G and H to Cross-Motion).

Upon the expiration of Claimant's local jail sentence on December 3, 2008, he was made ready for transfer to the State and, on December 12, 2008, Mr. Torres [*3]was received back into the custody of DOCS (see Cafariella Affidavit, ¶ 11). On December 15, 2008, Defendant credited Claimant with 238 days of local jail time, but on the following day, December 16, 2008, it reduced Mr. Torres' PJTC to nine days, covering only the period from December 3, 2008 to December 11, 2008 (see id., ¶¶ 12-14; Ex. K to Cross-Motion). In early January 2009, Mr. Torres wrote to Defendant questioning the December 16, 2008 time computation and asserting that he should be given PJTC for the entire period he was in local jail because the sentence imposed by the New York City Criminal Court ran concurrent to his parole violation time. He included the docket number of the local case. Claimant further said that his correct maximum expiration date should be October 11, 2009 (see Ex. 6 to Motion). In response, Ulster Correctional Facility stated that the dates and PJTC used for Claimant's time computation were correct (Ex. 7 to Motion).

Later in January 2009, Claimant was released to parole supervision, but was arrested and declared delinquent for violating the conditions of his parole, in May 2009 (see Exs. L-O to Cross-Motion). At a final parole revocation hearing, conducted on or about August 24, 2009, Claimant's delinquency date was modified from May 2009 to June 3, 2009 (see Ex. P to Cross-Motion).

On November 24, 2009, Claimant was released to parole supervision, but was declared delinquent and arrested on January 11, 2010 for violating the conditions of parole. As a result of those violations, a parole warrant was issued (see Ex. 5 to Motion; Exs. Q-T to Cross-Motion).

On March 22, 2010, The Legal Aid Society notified the Division of Parole ("DOP") that Claimant had not been credited with PJTC from April 8, 2008 to December 11, 2008 for time served pursuant to the local misdemeanor sentence imposed by New York City Criminal Court, New York County (see Ex. U attached to Cross-Motion; Ex. 8 to Motion). On March 24, 2010, DOP determined that such "jail time credit should have been calculated in his original sentence," and Claimant was credited with 248 days PJTC (Ex. 3 to Motion; see Ex. V to Cross-Motion). Prior to receiving notification from the Legal Aid Society, Defendant had computed Claimant's maximum expiration date to be August 14, 2010 (see Ex. 4 to Motion). On March 24, 2010, Claimant's maximum expiration date was recalculated to be October 7, 2009 (see Ex. 3 to Motion; Ex. X to Cross-Motion). On March 25-26, 2010, Commissioners of Parole cancelled Claimant's January 2010 delinquency on account of the recalculation of his sentence (see Ex. 3 to Motion). Claimant was released from State custody on March 26, 2010 (see Torres Affidavit in Support of Motion, ¶ 5; Ex. [*4]1 to Motion).

Claimant asserts that he should have been released from the jurisdiction of DOP on October 7, 2009 and, therefore, was incorrectly: (1) incarcerated from October 8, 2009 to November 23, 2009; (2) subjected to parole supervision from November 24, 2009 to March 26, 2010; and (3) incarcerated from January 11, 2010 to March 26, 2010 (Affirmation of Robert Dembia, Esq. in support of Motion, ¶ 5).

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).

To establish a cause of action for false imprisonment, Claimant must show that "(1) [Defendant] intended to confine him, (2) [Claimant] was conscious of the confinement, (3) [Claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY3d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). The alleged wrongful confinement in this instance, implicates only those periods of confinement and/or parole supervision that occurred after October 7, 2009, the recalculated maximum expiration date of Mr. Torres' sentence. Claimant has not asserted, nor has he shown, that Defendant was not entitled to incarcerate Mr. Torres through that date.

Claimant addressed the elements of his false imprisonment claim by showing that: the State intended to confine him beyond October 7, 2009 (see Ex. 4 to Motion [Legal Date Computation sheet with August 14, 2010 maximum expiration date]); he was conscious of his confinement after October 7, 2009 and did not consent to it (see Ex. 6 to Motion [Claimant's letter, received by the Inmate Records Office at Ulster Correctional Facility, requesting that the State recalculate his maximum expiration date]); and that such confinement for the period from October 8, 2009 to March 26, 2010 was not privileged (see Ex. 3 to Motion [*5][Defendant's determination on March 24, 2010, that Claimant's maximum expiration date was October 7, 2009]). Thus, the Court concludes that Claimant's submissions satisfy the prima facie showing required to warrant judgment as a matter of law if not rebutted by Defendant.

Given Claimant's prima facie showing, the burden then shifted, and it was incumbent upon the State to submit evidentiary facts or materials sufficient to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., supra at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendant did not dispute the first three elements of Claimant's false imprisonment cause of action. The question then, is whether or not Defendant's confinement of Mr. Torres for the period from October 8, 2009 until March 26, 2010 was privileged. "Confinement is privileged to the extent that it is imposed under color of law or regulation' " (Hudson v State of New York, 35 Misc 3d 241, 248 [Ct Cl 2011], quoting Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]; see Ifill v State of New York, UID No. 2013-039-371 [Ct Cl, Ferreira, J., June 12, 2013]).

The State notes that courts are required to deliver a sentence and commitment or certificate of conviction only to the correctional facility to which a defendant is committed and posits that, since no part of Claimant's misdemeanor sentence was served at a State correctional facility, there "is no requirement or reason for the courts to serve" DOCS with such documentation (Krenrich Affirmation in Reply, ¶¶ 27-28; see Criminal Procedure Law § 380.65).

Defendant further asserts that "[i]t is not [DOCS'] policy to solicit copies of sentence and commitment papers for local jail sentences from the courts in order to verify whether the local jail time was to run concurrently with a parolee's underlying sentence when a parole violator is returned to the custody of" DOCS (Krenrich Affirmation in Support of Cross-Motion, ¶ 37; Cafariella Affidavit, ¶ 15). Therefore, "[i]f no verification of the local jail time was received from the inmate or the inmate's attorney, the local jail time is deemed [by DOCS] to run consecutively with his [S]tate sentence" (Cafariella Affidavit, ¶ 15) because "Penal Law § 70.43[3][c] dictates the amount of time that is to be credited against the maximum term of the interrupted sentence" (Krenrich Affirmation in Support of Cross-Motion, ¶ 37). That statute provides that, when a person is declared delinquent from parole because he or she has been incarcerated pursuant to a new arrest and conviction, he or she will receive PJTC with respect to the undischarged portion of the prior offense only for such period of time spent in custody that exceeds the term of imprisonment for the new conviction ([*6]see Penal Law § 70.40[3][c][iii]).

Defendant argues that "it would be unduly burdensome for [DOCS] to actively solicit [the commitment order or sentencing minutes for misdemeanor local jail sentences] for every parole violator returned to State custody" (Krenrich Affirmation in Reply, ¶ 28). In this instance, after Claimant's attorney, the Legal Aid Society, provided Defendant with a copy of the sentencing minutes, and after they were verified, the PJTC to which Claimant was entitled was adjusted, and his maximum expiration date was recalculated (Krenrich Affirmation in Support of Cross-Motion, ¶¶ 35-36; Cafariella Affidavit, ¶¶ 16-17).

Inasmuch as DOCS calculated Claimant's confinement in accordance with the information it had in its possession at the time, and the express terms of Penal Law § 70.40, the State contends that its calculations were made under color of law and, thus, were privileged (Krenrich Affirmation in Support of Cross-Motion, ¶¶ 42-43; Krenrich Affirmation in Reply, ¶ 24).

The Court is unpersuaded by Defendant's argument. Even if the New York City Criminal Court was not obliged under Criminal Procedure Law § 380.65[FN2] to deliver to DOCS a copy of Claimant's misdemeanor sentence and commitment or certificate of conviction, as Defendant argues, Correction Law § 600-a provides that: [i]n any case where the sheriff or the commissioner of correction of the city of New York has the duty of delivering a defendant to an institution not under his jurisdiction pursuant to sentence and commitment, such person shall deliver a certified transcript of such record to the person to whom the defendant is to be delivered.

(see also Middleton v State of New York, 54 AD2d 450, 451 [3d Dept 1976], affd 43 NY2d 678 [1977] [county sheriff had duty to certify amount of amount of jail time credit to which claimant was entitled upon his commitment to DOCS' custody]).

Thus, pursuant to statute, the New York City commissioner of correction was obliged to deliver, and DOCS should have been in possession of, documentation from which DOCS could have applied the proper PJTC and calculated the correct, amended maximum expiration date of Mr. Torres' sentence [*7](see Ifill v State of New York, supra). Moreover, DOCS would be "bound" by such certifications, which is to say that it could neither add to nor subtract from the terms set forth therein (Matter of McLamb v Fischer, 70 AD3d 1090, 1091 [3d Dept 2010]; see Greaves v State of New York, 35 Misc 3d 290 [Ct Cl 2011]). No liability would attach to the State if it relied upon such facially-valid documentation, even if the information contained therein later proved to be erroneous "because it was acting under a warrant of commitment valid on its face" (Middleton v State of New York, supra at 451). " A detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction' " (Donald v State of New York, 17 NY3d 389, 395 [2011], quoting Davis v City of Syracuse, 66 NY2d 840, 842 [1985] [internal quotation marks and citations omitted]).

Such was the case in Hudson v State of New York (35 Misc 3d 241 [Ct Cl 2011]), in which that claimant's commitment order was silent as to whether his sentences were to run consecutively or concurrently. In that instance, DOCS assumed, incorrectly, that claimant's second sentence was to run consecutive to his prior undischarged sentence in accordance with statutory requirements. Even though DOCS was mistaken, this Court held that the confinement was privileged because it was imposed pursuant to a facially-valid commitment order and, thus, under color of law or regulation.

Here, by contrast, the State asserts that it is not its policy to solicit copies of an inmate's local jail sentence and commitment papers and that it would be unduly burdensome for it to do so.[FN3] Rather, in the absence of such documentation, DOCS simply deemed local jail time to run consecutively with the State sentence and it calculated Claimant's PJTC in accordance with the Penal Law. The only documents Defendant proffered in support of its calculations were Parole Jail Time Certificates and Legal Date Computations. Those documents were generated by the State itself, however, by its own DOP and/or DOCS. They do not indicate what, if any, documentation from a court having jurisdiction over Mr. Torres' sentences underpins Defendant's determination of Claimant's PJTC and his revised maximum expiration date. In short, they do not evidence that Claimant was being held under a valid process issued by a court having jurisdiction, as the commitment order did in Hudson (see Sanabria v State of New York, 29 Misc 3d [*8]988, 991-992 [Ct Cl 2010]).

Accordingly, the Court finds that the State failed in its burden to submit evidentiary facts or materials sufficient to demonstrate the existence of a triable issue of fact as to whether or not its actions were privileged when it incorrectly confined Claimant beyond his maximum expiration date. Because Defendant did not demonstrate that Claimant's confinement was pursuant to a valid order or warrant, or that said confinement was otherwise privileged, the Court concludes that Mr. Torres was unlawfully confined from October 8, 2009 to March 26, 2010 and that Defendant is liable to Claimant both for the periods he served in prison as well as excessive restrictions he suffered while under parole supervision (see Williams v State of New York, 8 Misc 2d 390 [Ct Cl 1957], affd 5 AD2d 936 [3d Dept 1958], appeal denied 4 NY2d 678 [1958]; Emanuele v State of New York, 43 Misc 2d 135 [Ct Cl 1964]).

Defendant's Cross-Motion must fail for the same reason. "[A]s the party charged with the tort of wrongful confinement, it is [Defendant] and not [Claimant] who bears the burden of proving that confinement was privileged More particularly, as the party seeking summary judgment as a matter of law, it is [Defendant's] initial burden to demonstrate its entitlement thereto and thus, its burden to demonstrate that [Claimant's] confinement was imposed pursuant to statute or in accordance with regulation" (Nelson v State of New York, 20 Misc 3d 1125[A], [Ct Cl 2008], affd 67 AD3d 1142 [3d Dept 2009]; see Gonzalez v State of New York, 110 AD2d 810, 812 [2d Dept 1985], appeal dismissed 67 NY2d 647 [1986]; Sanabria v State of New York, supra at 992). For the reasons discussed above, Defendant failed to show that Mr. Torres' confinement beyond October 7, 2009 was privileged.

Finally, the Court may question the wisdom of Defendant's articulated policy not to solicit copies of sentence and commitment papers for local jail sentences from the courts in order to verify whether the local jail time was to run concurrently with a parolee's underlying sentence when a parole violator returned to DOCS' custody. It is sufficient for the purposes of resolving the instant Motion and Cross-Motion, however, to observe that when, as here, Defendant elects to proceed without facially-valid documentation upon which it may rely, it does so at its peril and no privilege will shield it from liability when it confines an inmate beyond his maximum expiration date.

For the foregoing reasons, Claimant's motion for summary judgment as to liability on his wrongful confinement cause of action is granted and Defendant's Cross-Motion for summary judgment dismissing the Claim is hereby denied. [*9]Claimant's motion for summary judgment as to liability on his negligence cause of action is denied as moot. Footnotes

Footnote 1:Effective April 2011, the Department of Correctional Services and Division of Parole were merged to form the Department of Corrections and Community Supervision (DOCCS).

Footnote 2:The Court notes that Criminal Procedure Law § 380.65 was added by chapter 177 of the Laws of 2011. The statute applicable to Claimant's conviction would appear to be Section 380.60 (see bill jacket for chapter 177).

Footnote 3:Nevertheless, it is interesting to note that Claimant initially was awarded 238 days PJTC by DOP on December 15, 2008, very close to the 248 days credit that ultimately was determined in March 2010 to be correct (see Cafariella Affidavit, ¶ 13). The State did not explain, however, what documents were relied upon in making the 2008 determination, or why it was revised and changed one day later.