The opinion of the court was delivered by: Frank P. Milano, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Claimant moves pursuant to CPLR 3212 for partial summary judgment as to defendant's liability on this wrongful confinement claim. The claim alleges that the New York State Department of Correctional Services (DOCS) unlawfully added a period of mandatory post-release supervision (PRS) onto claimant's sentence 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 a period of at least 676 days," until claimant's release on May 28, 2008 pursuant to a Judgment and Order of the Monroe County Supreme Court, issued upon a writ of habeas corpus.
Defendant opposes the motion and cross-moves for dismissal of the claim, pursuant to CPLR 3211 (a) (7), "on the grounds that the claim fails to state a cause of action against the defendant."
Defendant concedes that the facts essential to resolution of these motions "are not in dispute." On August 17, 1999, claimant was sentenced by the Monroe County Supreme Court to a determinate term of two (2) years incarceration upon a conviction of criminal possession of a weapon in the third degree. Neither the sentence nor the sentencing commitment order included imposition of a period of post-release supervision.
Despite the clear and unambiguous terms of the sentence and sentencing commitment order, DOCS administratively imposed a three-year period of PRS to the sentence, to commence upon claimant's release from incarceration on July 10, 2000. This, even though the sentencing judge had discretion to setclaimant's (a one-time violent felony offender) term of PRS, had he imposed it, at between 11/2 and 3 years under Penal Law 70.45 (2). While subject to the administratively imposed period of PRS, claimant was arrested and subsequently convicted of criminal possession of a controlled substance in the fourth degree. On April 5, 2002, claimant was sentenced to an indeterminate term of three (3) to six (6) years of incarceration. According to the claim, at the time of the April 5, 2002 sentencing, it was determined that claimant had failed to complete his administratively imposed period of PRS under the 1999 sentence and therefore was deemed to owe three (3) months on his 1999 sentence and twenty-five (25) months on the PRS term.
Claimant was conditionally released on the April 5, 2002 sentence on or about September 29, 2005. According to the claim, claimant would have been conditionally released on or about August 14, 2004 had he not been deemed to have owed three (3) months on his 1999 sentence and twenty-five (25) months on the administratively imposed PRS term, resulting in unlawful confinement of 411 days.
The claim further alleges that upon claimant's conditional release on September 29, 2005, claimant's:
"[T]ime under post-release supervision was scheduled to expire in or about September 2009. This date accounts for local jail-time credits applied to the previous indeterminate sentence and the seven hundred fifty-three days of post-release supervision time still deemed to be owed by the Claimant."
Claimant was again incarcerated on or about September 12, 2007 as a result of a parole violation. At that time, again according to the claim: "[T]he maximum expiration date of Claimant's post-release supervision time was estimated to be October 8, 2009." The claim asserts that:
"Absent the DOC's unlawful assessment of post-release supervision time onto the original sentence and the consequential carry-over of this time in connection with the second sentence, Claimant's most recent sentence would have expired on or about August 14, 2007. Instead, Claimant was incarcerated until May 28, 2008, and, had it not been for the Supreme Court's order of Claimant's release pursuant to a Writ of Habeas Corpus, Claimant would remain unlawfully incarcerated as of the date of this Claim."
The affidavit of claimant's attorney states that as of May 28, 2008, claimant had been further unlawfully confined for a period of 265 days, in addition to the 411 days of wrongful confinement suffered prior to his conditional release on September 29, 2005, aggregating to unlawful confinement "for a period of at least 676 days."
The defendant's cross-motion to dismiss the claim for failure to state a cause of action will be considered first. As previously indicated, defendant does not challenge the salient facts set forth in the claim, but rather argues that the claim fails as a matter of law. Specifically, defendant asserts that claimant cannot prove an essential element of a claim for wrongful confinement.
To establish that he was falsely 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 , 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 ).
In the context of typical wrongful confinement claims arising in correctional facilities, privilege arises based upon the quasi-judicial nature of prison disciplinary proceedings "and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, the State has absolute immunity for those actions" (Holloway v State of New York, 285 AD2d 765, 766 [3d Dept 2001]). The privilege arises from the exercise of "discretionary authority for which the State has absolute immunity" (Holloway, 285 AD2d at 766).
Defendant can point to no valid judicial sentence or order directing claimant's alleged wrongful confinement (to the extent that it was increased by administrative imposition of the period of PRS), nor can it credibly argue that it was exercising privileged quasi-judicial discretionary authority, and instead argues that the confinement was privileged in that it was imposed "under color of law or regulation, specifically in accordance with regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Defendant identifies no express language in any statute or regulation which required or permitted DOCS to impose a period of PRS on claimant, relying solely upon Penal Law sections 70.00 (6) and 70.45 (1), which defendant describes, during the time period in which DOCS administratively imposed the PRS, as "mandat[ing] that each determinate sentence shall include, as a part thereof, a period of post-release supervision.'"
Defendant argues that DOCS "was acting directly in accordance with Penal Law §§ 70.00 and 70.45, therefore, Claimant's confinement was privileged and the cause of action for unlawful imprisonment is without merit." The statutory sections cited by defendant give DOCS no authority to impose a period of PRS.
On the contrary, Penal Law 70.00 (6) expressly states 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).
In further support of its cross-motion, defendant provides the legislative bill jacket for "Chapter 1 of the Laws of 1998 otherwise known as Jenna's Law', " which added the PRS provisions to the Penal Law. Nothing in the bill jacket indicates a legislative intent that post-release supervision could be administratively imposed on a convicted person subject to Jenna's Law if the sentencing court failed to do so. Jenna's Law, in fact, implemented the provisions of Penal Law 70.00 (6) which expressly and exclusively reserves the imposition of PRS to the sentencing court. Moreover, the germane question is whether DOCS' actions were privileged, not, as defendant argues, whether Jenna's Law contemplates or creates a private right of action.
The United States Court of Appeals, Second Circuit, in a habeas corpus proceeding, citing long-established principles clearly articulated by the United States Supreme Court, considered whether DOCS could administratively impose a term of PRS to a New York State inmate's sentence pursuant to Penal Law 70.45. In Earley v Murray (451 F3d 71, 74 [2nd Cir 2006]), the court noted that:
"Seventy years ago, the Supreme Court established that the sentence imposed by the sentencing judge is controlling; it is this sentence that constitutes the court's judgment and authorizes the custody of a defendant. Hill v. United States ex ...