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Carollo v. State

State of New York Supreme Court, Appellate Division Third Judicial Department


July 1, 2010

ROBERT CAROLLO, APPELLANT,
v.
STATE OF NEW YORK, RESPONDENT.

The opinion of the court was delivered by: Lahtinen, J.

MEMORANDUM AND ORDER

Calendar Date: May 25, 2010

Before: Spain, J.P., Lahtinen, Stein, McCarthy and Garry, JJ.

Appeal from an order of the Court of Claims (Collins, J.), entered September 17, 2009, which, among other things, granted defendant's cross motion for summary judgment dismissing the claim.

Claimant alleges wrongful confinement and negligence arising from his incarceration after he violated conditions of his postrelease supervision (hereinafter PRS). The sentencing court did not address mandatory PRS when sentencing claimant in 2000, as a second felony offender, for burglary in the second degree. The Department of Correctional Services added the statutorily required period of PRS, which claimant violated resulting in his further incarceration. In 2008, the Court of Appeals held that the Department of Correctional Services was not permitted to add PRS when the sentencing court had not addressed the issue (see Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 362 [2008]; see also People v Sparber, 10 NY3d 457, 469-471 [2008]). Claimant subsequently commenced this claim, which the Court of Claims dismissed upon defendant's motion for summary judgment. Claimant appeals and we affirm for the reasons set forth in our decision in Nazario v State of New York (___ AD3d ___ [decided herewith]; see Donald v State of New York, 73 AD3d 1465, 1466-1467 [2010]; Collins v State of New York, 69 AD3d 46, 51-53 [2009]).

Spain, J.P., Stein, McCarthy and Garry, JJ., concur.

ORDERED that the order is affirmed, without costs.

20100701

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