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GORDON v. WATLEY

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


January 10, 1986

EDDIE LEE GORDON, Plaintiff,
v.
OFFICER WATLEY, OFFICER WITSELL, THOMAS COUGHLIN, III, SUPERINTENDENT HAROLD J. SMITH, SUPERINTENDENT WILSON E. J. WALTERS, COUNTY OF NASSAU and JOHN and/or JANE DOES NOS. 1-20, Defendants

The opinion of the court was delivered by: LASKER

LASKER, D.J.

Eddie Lee Gordon sues pursuant to 42 U.S.C. § 1983 (1982) claiming violation of his rights under the fourth, eighth and fourteenth amendments of the United States Constitution, and pursuant to the common law of New York alleging wrongful arrest, seizure, transportation and imprisonment by Charles Watley, Nathaniel Witsell and Nassau County ("the Nassau defendants"), by Thomas Coughlin III, Harold J. Smith, and Wilson E. J. Walters ("the state defendants") and by John and/or Jane Does Nos. 1-20.

The facts giving rise to this action are set out at 601 F. Supp. 1512 (S.D.N.Y. 1985). In 1981 Gordon was in Georgia serving concurrent New York and Georgia sentences. The Georgia sentence was a ten-year sentence which required Gordon to serve a maximum of four years in prison and the balance on probation. The New York sentence was an indeterminate sentence with a maximum of five years, to run concurrently with the Georgia sentence. On March 6, 1981, the day Gordon was paroled in Georgia pursuant to the Georgia sentence (under which he had served two years), Watley and Witsell, in their capacities as Nassau County correctional officers, arrested Gordon and transported him to New York. The Nassau defendants acted according to a commitment order that Nassau County had filed with Georgia prison officials as a detainer to ensure that New York would be notified if Gordon were released prior to completing the minimum period of imprisonment on the New York sentence.

 Once in New York State, Gordon was incarcerated for approximately eight months pursuant to the New York commitment order, which stated on its face that he had received an indeterminate sentence of "none" to five years to run concurrently with the Georgia sentence. Gordon met with the New York Parole Board on May 12, 1981, and again on August 5, 1981, at which time he was granted parole effective on or after October 14, 1981. He was released .on October 26, 1981 because he had reached his conditional release date.

 After Gordon filed this action, the state defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a legally sufficient claim. The motion was treated as a motion for summary judgment and was denied without prejudice to renewal on an amplified record because significant issues of fact were unresolved, including: the intention of the sentencing judge as to the minimum sentence imposed, the facial validity of the commitment order, and whether the defendants "should have known that the [commitment] order on its face barred imprisonment in New York." Gordon v. Watley, 601 F. Supp. 1512, 1516 (S.D.N.Y. 1985). *fn1" The Nassau defendants moved for summary judgment on the ground that they acted in good faith. This motion was also denied without prejudice to renewal on a sufficient record. Id. at 1517.

 Three motions are now before the court: 1) the state defendants' motion to reargue the summary judgment motion; *fn2" 2) Gordon's motion for partial summary judgment against all defendants on the issue of liability; and 3) the Nassau defendants' cross-motion for summary judgment.

 Gordon moves for partial summary judgment against all defendants on the issue of liability. He contends that the basic facts surrounding his seizure, arrest, transportation and imprisonment are uncontested, and that his seizure, arrest and imprisonment were unlawful under the sentencing statutes and case law in effect at the time, and that the defendants had a duty to determine that the commitment order they followed was invalid.

 The state defendants oppose Gordon's motion and argue that they are entitled to summary judgment on the grounds that Gordon has failed to demonstrate 1) that a material issue of fact exists regarding Gordon's minimum sentence, and 2) that the state defendants were precluded from imprisoning Gordon based on the commitment order. Their submissions in opposition to Gordon's motion for partial summary judgment are considered a cross-motion for summary judgment. *fn3"

 The Nassau defendants cross-move for summary judgment on the grounds that 1) Gordon was properly arrested, transported and imprisoned in New York; 2) there is no Section 1983 violation because the commitment order is valid on its face and there is no obligation to go beyond the plain language of a facially valid order; and 3) assuming, arguendo, that a Section 1983 violation is found, Watley and Witsell are not liable because they acted in good faith.

 The parties agree that a New York sentence may be served in a correctional facility outside New York State when the New York court orders the sentence to run concurrently with a sentence previously imposed by a sister jurisdiction. See N.Y. Penal Law §§ 70.25(4), 70.20(3), 70.30 (2-a) (McKinney Supp. 1984); *fn4" Hechtman, Supplemtary Practice Commentaries 1975 to N.Y. Penal Law § 70.20 (McKinney Supp. 1984) at 226. *fn5"

 Gordon contends that § 70.30 (1) (a), *fn6" as construed in People v. Thompson, 87 Misc. 2d 302, 384 N.Y.S.2d 974 (Sup. Ct., Erie County 1976), governs the calculation of his sentence. In Thompson the defendant was serving a fifteen-year sentence in Virginia when he received a 0-4 sentence in New York to run concurrently with the Virginia sentence. When the Virginia authorities granted Thompson parole, the New York authorities sought to have him returned to New York. Thompson sought a declaratory judgment that the grant of parole by Virginia authorities was binding upon the New York authorities. In granting Thompson's declaratory judgment motion based on its construction of Section 70.30(1)(a), the court stated:

 Once the minimum period of imprisonment had been satisfied under New York law, where, by law, the shorter sentence merges in the longer one, parole should be left to the applicable rules of the correction board of the state where said longer term is being served. The defendant having been committed to the Virginia facility to serve his time, the New York Department of Correction should have no superior control over his parole.

 If the Virginia Parole Board has determined that despite the additional concurrent sentence there is a reasonable probability that the defendant can live at liberty without violating the law, the New York Department of Correction should have no greater interest.

 Id. at 306, 384 N.Y.S.2d at 977-978 (emphasis added). Gordon argues that Thompson governs here. He maintains that his shorter New York term merged into his longer Georgia term and that his New York sentence was satisfied when the Georgia sentence in its entirety was discharged in Georgia. (Memorandum of Plaintiff in Support of Motion for Partial Summary Judgment at 8-9.) Gordon interprets Thompson to mean that New York must in this case be considered to have relinquished any jurisdiction it had over Gordon once it sent him back to Georgia to serve out the longer of his concurrent sentences and, that as a result, New York lacked jurisdiction to determine whether Gordon's sentence should be completed in prison, on probation or on parole. (Id. at 9.) It follows, according to Gordon, that the Nassau defendants were barred from seizing, arresting and transporting him to New York, and that the state defendants were barred from imprisoning him there.

 Gordon emphasizes that this theory of exclusive jurisdiction obviates the need to decide whether the minimum period of imprisonment was set by the sentencing judge at zero years or whether no minimum term was set, with the minimum required by law to be determined by the state board of parole. (Plaintiff's Reply Memorandum of Law in Further Support of Motion for Partial Summary Judgment at 8-9.) He maintains, nonetheless, that Penal Law § 70.00(3) (b) *fn7" authorized the court to set a minumum of less than one year, and that in this case the court did in fact set a zero year minimum. *fn8" (Id. at 9.)

 For the reasons explained below, Gordon's motion for summary judgment is denied and summary judgment is granted as to the state and Nassau defendants.

 At the time of gordon's New York sentence, a New York court could either fix the minimum period of imprisonment itself or leave that determination to the state board of parole. See N.Y. Penal Law § 70.00 (3) (McKinney 1975). *fn9" In the event that the court fixed the minimum period, it was required to "set forth in the record the reasons for its action." Id ; see People v. Britt, 52 A.D.2d 811, 383 N.Y.S.2d 602 (1st Dept. 1976), reversed on other grounds, 43 N.Y.2d 111, 400 N.Y.S.2d 785, 371 N.E.2d 504 (1977). In addition, the minimum period of imprisonment, regardless of whether it was fixed by the court or the parole board, was required to be for at least one year. N.Y. Penal Law § 70.00 (3) (McKinney 1975) *fn10" Based upon the transcript of the sentencing hearing and a letter from the sentencing judge's law secretary in response to an inquiry by Gordon's attorney, it is clear that the court did not exercise its option to fix the minimum period of imprisonment; instead, it left the matter to the determination of the parole board. Moreover, the judge's failure to specify any reasons for setting a minimum and his setting a "none" year minimum, which would both constitute impermissible deviations from the statutory requirement, strongly support the conclusion that the judge intended to leave the decision to the parole board. Thus, no minimum sentence was ever fixed by the sentencing court.

 Gordon's reliance on Thompson is misplaced because the Thompson court explicitly assumed that the minimum period of imprisonment on the New York sentence had already been met by time served in prison in the sister state. See Thompson, 87 Misc. 2d at 306, 384 N.Y.S.2d at 977-978. Thompson would control the disposition of this case in the event that Gordon's minimum period of imprisonment were found to be "none" years. However, as already stated, the court did not set a minimum period of imprisonment of "none" years in this case.

 When the New York sentencing judge has not set a minimum sentence, the parole board determines the minimum. The board does so only after a personal interview with the prisoner, and the board is required to meet with the person only after that person has been received in a correctional facility under the jurisdiction of the state. N.Y. Exec. Law § 259-i(1)(a) (McKinney 1982). After sentencing in New York, Gordon was immediately returned to Georgia. Inasmuch as the parole board had not met with him up to that point, all that could be known was that the minimum sentence was at least one year and could possibly be as long as the maximum New York sentence. See Russo v. New York State Board of Parole, 50 N.Y.2d 69, 427 N.Y.S.2d 982, 405 N.E.2d 225 (1979). Without a fixed and ascertained minimum period of imprisonment for the New York sentence, Gordon's release from the Georgia prison at any point sooner than five years -- his theoretical maximum under the New York sentence -- could have meant that he had been released prior to having served the New York minimum.

 Persons like Gordon who are sentenced to concurrent sentences may face a situation where they cannot know when they will have served the minimum on both sentences because they will not have met with the New York State Board of Parole, and they cannot meet with the parole board until they have been received in a correctional facility over which the state has jurisdiction. See N.Y. Exec. Law § 259-i (McKinney 1982). Without knowing the minimum period of imprisonment on both sentences, they cannot calculate when they will have served that minimum and be eligible for parole in the sister jurisdiction. See N.Y. Penal Law § 70.40(1)(a) (McKinney 1984). Thus, under the statutory scheme, persons like Gordon must be returned to a New York department of correctional services facility in order to have a minimum period of imprisonment set on the New York sentence if they are discharged prior to serving their greatest possible minimum period of imprisonment under the New York sentence.

 Consequently, inasmuch as Gordon's minimum period of imprisonment under his New York sentence had not been set prior to the time he was paroled by the Georgia authorities and his greatest possible minimum term had not been served, the state defendants did not act unlawfully under the applicable New York statutes in imprisoning Gordon after March 6, 1981. Similarly, the Nassau defendants, acting pursuant to a detainer which contained no indication that a minimum New York sentence had been fixed, properly returned Gordon to New York State, where he was received in a department of correctional services facility.

 The state defendants' motion to reargue is denied. Gordon's motion for partial summary judgment is denied, and summary judgment granted as to the state and Nassau defendants. The complaint is dismissed.


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