United States District Court, E.D. New York
SEWARD & KISSEL LLP, Michael G. Considine, Thomas Ross Hooper, New York, NY, Attorneys for Plaintiff.
Michael J. Keane, ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, New York, NY, Attorney for Defendants.
MEMORANDUM AND ORDER
JOHN GLEESON, District Judge.
Sheila Rivera, who is also known as "Ciara Reyes, " brings this action pursuant to 42 U.S.C. § 1983. In her amended complaint, Rivera claims that her constitutional rights were violated when, after serving more than six years in prison, she was subjected to a term of post-release supervision ("PRS") that was imposed not by a judge, but instead by officials at the New York State Department of Corrections and Community Supervision ("DOCCS"). The remaining defendants in this case,  current and former officials of the New York State Department of Correctional Services ("DOCS"), the New York State Division of Parole ("DOP"),  and the New York State Board of Parole ("BOP") (the "Defendants"), move to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. They contend that the amended complaint fails to state a cause of action for violations of Rivera's constitutional rights and fails to adequately allege the personal involvement of Defendants in any such action, and in any event that they are entitled to qualified immunity with respect to any such claim.
For the reasons discussed below, the motion is granted in part and denied in part. Specifically, the motion to dismiss Rivera's claim that she was denied due process of law is denied. The motion to dismiss her claim that she was subjected to a violation of her double jeopardy rights is granted.
A. Post-Release Supervision in New York
The 1998 enactment in New York of "Jenna's Law" eliminated parole for violent felony offenders in New York and made PRS a mandatory component of sentences of such offenders. See 1998 N.Y. Laws Ch. 1, § 15 (codified at N.Y. Penal Law § 70.45) (later amended); see generally Vincent v. Yelich, 718 F.3d 157, 161-62 (2d Cir. 2013), cert. denied sub nom. Annucci v. Vincent, No. 14-360, 2015 WL 132871 (U.S. Jan. 12, 2015). PRS is similar to parole, but "a critical distinction is that the period of PRS is added to the maximum prison term imposed by the court, thus increasing the effective length of the sentence, while in contrast a released offender's time on parole is served after release from prison prior to the expiration of the maximum prison term imposed by the court." People v. Rogers, No. 4608/99, 873 N.Y.S.2d 514 (Kings Cnty. Sup.Ct. Oct. 28, 2008) (emphasis in original). With Jenna's Law, "certain violent felonies that had been theretofore punished by the imposition of indeterminate sentences were to be punished with a combination of a determinate sentence and a mandatory term of PRS." Scott v. Fischer, 616 F.3d 100, 103 (2d Cir. 2010). The pertinent part of the act provided that "each determinate sentence also includes, as a part thereof, an additional period of post-release supervision, " a violation of which could be punished by up to five years. See Vincent, 718 F.3d at 161 (citing 1998 N.Y. Laws Ch. 1, § 15 (later amended)).
At the time Jenna's Law was passed, there was no requirement that a judge impose the term of PRS at sentencing or any other time. See Scott, 616 F.3d at 103. As a result, terms of PRS were imposed administratively, by the DOCS. See id. at 102. The failure of a court to inform a defendant of his or her PRS term at the time of a plea of guilty was found unconstitutional in 2005 by the New York Court of Appeals in People v. Catu, 4 N.Y.3d 242, 245 (2005). The Court found that a defendant "must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action...." Catu, 4 N.Y.3d at 245. The Court noted that the terms of PRS include compliance with curfews, restrictions on travel, and other conditions during the period of supervision, and a violation of one of those conditions could result in reincarceration of up to five years. See id.
On June 2, 2006, the Second Circuit declared that an administratively-imposed term of PRS violated the federal constitutional right to due process. See Earley v. Murray, 451 F.3d 71, 76-77 (2d Cir. 2006) (" Earley I ") (vacating and remanding denial of habeas petition on these grounds); 462 F.3d 147, 150 (2d Cir. 2006) (" Earley II ") (denying petition for rehearing and acknowledging that the decision "may call into question the validity of the PRS components of numerous sentences").
Despite Catu and Earley, it was not until 2008 that the New York Court of Appeals ruled that only judges could impose terms of PRS and that the DOCS had acted unlawfully when it imposed such terms administratively. See People v. Sparber, 10 N.Y.3d 457, 469-70 (2008); Garner v. New York State Dep't of Correctional Servs., 10 N.Y.3d 358, 362-63 (2008)). Then, on June 30, 2008, the New York Legislature passed Correction Law § 601-d, which (1) required DOCS to identify defendants who had been subjected to administratively-imposed PRS and (2) created a procedure for determining whether resentencing was appropriate. See Joyner-El-Quwi-Bey v. Russi, No. 09-CV-2047 (JG), 2010 WL 1222804, at *1 (E.D.N.Y. March 23, 2010), aff'd 439 F.Appx. 36 (2d Cir. 2011).
This case concerns a term of PRS that was imposed unlawfully by DOCS in 2007, before Sparber, Garner, and the enactment of Correction Law § 601-d. Plaintiff complains that the imposition and enforcement of that term of supervision violated her federal constitutional rights.
B. Facts 
On May 22, 2001, Sheila Rivera was sentenced to a determinate eight-year term of imprisonment by Justice Lawrence Knipel of the Kings County Supreme Court. Compl. ¶ 14. At the time of sentencing, Justice Knipel did not impose a term of PRS. Id. In September 2007, while Rivera was still incarcerated, she was approached by a DOP employee and told that, pursuant to DOP policy, she had to sign a certificate acknowledging that she would be subject to a term of PRS upon her release. Id. ¶ 15. Rivera objected but signed the certificate in order to obtain her release, and she was released from custody on October 5, 2007, after serving more than six years of her sentence. Id. ¶¶ 15, 19. Upon her release, she was subject to a term of PRS that ...