The opinion of the court was delivered by: Francis T. Collins, 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.
Defendant moves for summary judgment dismissing the claim and the claimant cross-moves for partial summary judgment on the issue of liability pursuant to CPLR 3212.
The claim herein alleges:
"Third: This claim is for damages suffered by claimant by reason of the negligence of the State of New York, its officers, agents or employees in the hiring, retention and training of its officers, agents and employees and the negligent maintenance of its records and databases. The acts of the State of New York, its officers, agents or employees resulted in the false arrest, false imprisonment, and malicious prosecution of Claimant in violation of his statutory and constitutional rights."
Counsel for the parties stipulated to the following relevant facts: On March 23, 2003 claimant pled guilty to criminal possession of a weapon in the third degree in Supreme Court, Kings County. The Court failed to impose a period of postrelease supervision (PRS) at the time the claimant was sentenced to a two-year determinate sentence on March 27, 2003 (defendant's Exhibit A, ¶ 3). Claimant was released from prison on October 8, 2004 at which time a three-year period of PRS was administratively imposed by DOCS.The maximum expiration of claimant's two year sentence was January 24, 2005. On March 22, 2005, claimant was declared delinquent upon a violation of the conditions of his parole. On March 28, 2007, claimant was arrested and imprisoned as a result of the execution of a parole violation warrant. Claimant petitioned for a writ of habeas corpus on May 2, 2007 which was granted by the Honorable Joseph J. Dawson, A.S.C.J., on July 10, 2007. The claimant was released from custody on that same date.
In support of its motion for summary judgment, defendant argues that DOCS is immune from liability because the term of PRS imposed upon the claimant was statutorily mandated. Defendant argues that DOCS, therefore, was acting under the "color of law or regulation" and in a discretionary, quasi-judicial capacity at the time PRS was imposed (see affirmation in support of Michael Krenrich, ¶ 9, citing Gittens v State of New York, 132 Misc 2d 399, 402 ). Defendant also argues that claimant has no private right of action under Penal Law § 70.45 because the intent of the Legislature in enacting the statute was to subject individuals such as the claimant to PRS for the protection of the public. Since the intention of the legislature was to protect the public-at-large, defense counsel argues that no private right of action exists under the statute as the claimant was not "one of the class for whose particular benefit the statute was enacted" (affirmation in support of Michael Krenrich, ¶ 14).
With respect to the malicious prosecution cause of action, the defendant argues that the claim fails as a matter of law because DOCS was acting in accordance with the prevailing statutory mandate and without malice in imposing the term of PRS. Lastly, the defendant argues that this Court lacks jurisdiction to hear the causes of action premised upon a violation of the claimant's constitutional rights.
In support of his cross-motion and in opposition to the defendant's motion, the claimant cites, inter alia, the Court of Appeals decision in Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358  for the proposition that the imposition of a term of PRS lies within the exclusive province of the sentencing court and beyond DOCS' jurisdiction. Claimant argues that DOCS is not immune from liability because it was acting in violation of established law providing that only a sentencing judge may pronounce the PRS component of a defendant's sentence (see People v Sparber, 10 NY3d 457 ). Claimant concludes that he has established his prima facie entitlement to summary judgment on the causes of action for false arrest and imprisonment in that the determination in the habeas corpus proceeding necessarily decided the issue of the illegality of the arrest and imprisonment. With respect to the cause of action for malicious prosecution, claimant contends that malice may be inferred as "DOCS not only egregiously deviated from acceptable procedures, but DOCS acted illegally" (Memorandum of Law of Samiya N. Mir, p. 10). Lastly, in response to defendant's argument that no statutory cause of action under Penal Law §70.45 is stated, claimant contends that the defendant has mischaracterized his argument in that he is pursuing only common law causes of action for negligence, false arrest, false imprisonment, and malicious prosecution "because he was arrested and imprisoned based on a PRS sentence that did not legally exist" (Memorandum of Law of Samiya N. Mir, p. 12).
To establish a cause of action for false imprisonment a claimant must show that "(1) the defendant intended to confine him, (2) the [claimant] 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 ).While the first three factors are not disputed, it is the fourth which poses the most difficulty in this case.
In Matter of Garner (supra), the Court of Appeals held that a term of PRS "is not automatically included in the pronouncement of a determinate sentence, and thus a defendant has a statutory right to have that punishment imposed by the sentencing judge" (Id. at 363). The Court noted that its holding was "without prejudice to any ability that either the People or DOCS may have to seek the appropriate resentencing of a defendant in the proper forum" (Id. at 363, n 4). Decided the same day as Matter of Garner, People v Sparber (supra) rejected the argument that expungement is the proper remedy for a term of postrelease supervision improperly imposed by DOCS. Rather, the Court stated that "[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement . . ." (10 NY3d at 471). The Court specifically noted that "there exists no procedural bar to allowing the sentencing court to correct its PRS error . . . [T]he failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy . . ." (Id. at 472). The orders in each of the five cases reviewed on appeal in Sparber were therefore modified to the extent of remitting the cases to the Supreme Court for resentencing (see also People v Collado, 11 NY3d 888 .
In response to Garner and Sparber, the Legislature adopted Correction Law § 601-d, effective June 30, 2008 (L 2008, ch 141). As noted by the court in People v Peer (22 Misc 3d 620 ), "[t]he legislative history of this statute reveals a clear legislative intent to provide 'a framework for a prompt, fair and careful response to recent decisions in which the Court of Appeals struck down longstanding practices for determining the supervision terms of violent felons' " (Id. at 622, quoting Senate Introducers' Mem in Support, Bill Jacket L 2008, ch 141). The statute sets forth the appropriate procedure for identifying and correcting the sentences of those individuals for whom the order of commitment does not indicate a term of PRS (Correction Law § 601-d ), but does not foreclose any other proceedings pursuant to CPL § 440 or articles 70 or 78 of the CPLR (see Correction Law § 601-d ). Simultaneously with the enactment of Correction Law § 601-d , the Legislature enacted Penal Law § 70.85, which permits the Court, upon the consent of the district attorney, to re-impose the originally imposed determinate sentence without any term of postrelease supervision. Thus, notwithstanding the "combined command" of Penal Law § 70.00  and § 70.45  that a period of postrelease supervision be included in certain determinate sentences (Sparber, 10 NY3d at 469), it is clear that the imposition of a term of PRS is not necessarily occurring in all cases (see People v Faulkner, 55 AD3d 924 ; People ex rel. Foote v Piscotti, 51 AD3d 1407 ; People ex rel. Pamblanco v Warden, Rikers Island Correctional Facility, ___Misc 3d ___, 2008 NY Slip Op 28478 ; People v Washington, 21 Misc 3d 349 ; Matter of Capron v Virts, 2008 NY Slip Op 32517 [U] ; compare People v Aguirre, 55 AD3d 846 ; People v Craig, 51 AD3d 559 ; People v Edwards, 51 AD3d 540 , lv denied 11 NY3d 787 ; People ex rel. Lewis v Warden, Otis Baum Correctional Ctr., 51 AD3d 512 ).The Appellate Division, Third Department, recently stated in Matter of State of New York v Randy M. (57 AD3d 1157 ) that even where a defendant is resentenced so as to impose the statutorily mandated period of postrelease supervision, "[t]he 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" (Id. at 1159, citing People ex rel. Benton v Warden, Adolescent Receiving Detention Ctr., 20 Misc 3d 516, 521 ; see also Matter of Jackson v Cuomo, 20 Misc 3d 1115 [A]).Benton (supra), which was cited with approval by the Court in Matter of State of New York v Randy M. (supra), specifically held that where a term of postrelease supervision is a nullity because it was administratively imposed by DOCS rather than the sentencing court, resentencing the defendant nunc pro tunc to add the term of postrelease supervision cannot "cure the infirmity of a petitioner being violated for a PRS that was imposed by DOCS . . ." (Id. at 521). Nevertheless, for the reasons which follow, the Court holds that absent either an allegation or inference that the parole warrant or order directing the claimant's confinement for parole violations was invalid on its face, the arrest and confinement for the parole violation was privileged and "sufficient to protect officials who carried out its mandates" from liability for false imprisonment (Nuernberger v State of New York, 41 NY2d 111, 116 ). Even if such conduct could form the basis for liability, however, the Court holds that the defendant is immune from liability under the circumstances of this case.
It is well settled that "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  (citation omitted), lv denied 98 NY2d 604 ); see also Nuernberger v State of New York, supra; Nastasi v State of New York, 275 App Div 524 , affd 300 NY 473 ). Likewise, an arrest and imprisonment are privileged where the arrest is "made pursuant to a warrant valid on its face and issued by a court having jurisdiction of the crime and person . . . and this is so even though the process may have been erroneously or improvidently issued" (Boose v City of Rochester, 71 AD2d 59, 66 ; Middleton v State of New York, 54 AD2d 450 , affd 43 NY2d 678 ; Broughton v State of New York, 37 NY2d at 457-458). Absent an allegation in the claim, "express or inferable", that the parole warrant or order of commitment was invalid on its face or that the issuing entity lacked jurisdiction to issue the warrant, a claim for false arrest and false imprisonment lacks merit as a matter of law (Ferrucci v State of New York, 42 AD2d 359, 361 , affd 34 NY2d 881 ; Boose v City of Rochester, supra; Mullen v State of New York, 122 AD2d 300 , lv denied 68 NY2d 609 , cert denied 480 US 938 ).
Importantly, the confinement is no less privileged where a defendant has been successful in procuring his release from prison in a habeas corpus proceeding. Thus, the fact that the detainer has been determined to be illegal in a habeas corpus proceeding does not render the State liable in a subsequent claim for false imprisonment (Nuernberger v State of New York, supra; Harty v State of New York, 29 AD2d 243 , affd 27 NY2d 698 ). There is simply "no remedy against the State for an illegal confinement if it is made pursuant to an order valid on its face when ...