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Hassell v. Fischer

United States District Court, S.D. New York

April 1, 2015

WILLIAM HASSELL, Plaintiff,
v.
BRIAN FISCHER, Commissioner of the New York State Department of Corrections (in an individual capacity), ANTHONY J. ANNUCCI, Acting Commissioner of the New York State Department of Corrections (in an individual employee), NEW YORK STATE CORRECTIONS EMPLOYEE JOHN DOE (fictitious name) (in an individual capacity), ANDREA EVANS, Chairwoman of the New York State Board of Parole (in an individual capacity), TERRANCE TRACY, New York State Parole Board Employee (in an individual capacity), ANTHONY CONSTANTINI, New York State Parole Officer (in an individual capacity), JOSE BULNES, New York State Parole Officer (in an individual capacity), MONTY BYNUM, New York State Parole Officer (in an individual capacity), IRMA MACHADO, New York State Parole Officer (in an individual capacity), GREGORY FREEMAN, New York State Parole Officer (in an individual capacity), NEW YORK STATE PAROLE EMPLOYEE JANE DOE (fictitious name) (in an individual capacity), Defendants

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[Copyrighted Material Omitted]

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For William Hassell, Plaintiff: Lawrence Pierre LaBrew, Law Offices of Lawrence LaBrew, New York, NY.

For Brian Fischer, Commissioner of the New York State Department of Corrections ( in an individual capacity), Andrea W. Evans, Chairwoman, New York State Board of Parole (in an individual capacity), Defendants: Michael J. Keane, LEAD ATTORNEY, Office of The Attorney General(NYS), New York, NY; Anna Hehenberger, New York State Office of the Attorney General, New York, NY; Maria Barous Hartofilis, Attorney General of the State of New York, New York, NY.

For Mr. Anthony J. Annucci, Acting Commissioner of the New York State Department of Corrections, Mr. Terrence Tracy, New York State Parole Employee, Mr. Anthony Costantini, New York State Parole Officer, Mr. Jose Bulnes, New York State Parole Officer, Mr. Gregory Freeman, New York State Parole Officer, Defendants: Anna Hehenberger, New York State Office of the Attorney General, New York, NY; Maria Barous Hartofilis, Attorney General of the State of New York, New York, NY.

For Mr. Monty Bynum, New York State Parole Officer, Ms. Irma Machado, New York State Parole Officer, Defendants: Anna Hehenberger, New York State Office of the Attorney General, New York, NY.

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ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

ALVIN K. HELLERSTEIN, United States District Judge.

Plaintiff William Hassell sues employees and officers of the New York Department of Corrections (" DOCS" ) and the New York Department of Parole (" Parole" ) (collectively, " Defendants" ) for administratively adding to his sentence, and subsequently enforcing, a term of post-release supervision (" PRS" ) that was not ordered by his sentencing judge at the time of sentencing in 2002. He also complains that Defendants requested that he be re-sentenced by the sentencing court after he was released from custody, and that a term of PRS was imposed on him pursuant to his re-sentencing. Hassell asserts that these actions violated his due process and double jeopardy rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, see U.S. Const. amend. V; U.S. Const. amend. XIV § 1, giving him a right to sue for

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damages under sections 1983 and 1988 of the Civil Rights Act. See 42 U.S.C. § § 1983, 1988. Hassell also asserts violations of the New York State Constitution. See N.Y. Const. art. I, § 6 (guaranteeing due process and double jeopardy rights).

Defendants move for judgment on the pleadings to dismiss the complaint, see Fed.R.Civ.P. 12(c), on the grounds that, inter alia, they are entitled to qualified immunity. For the following reasons, Defendants' motion is denied in part and granted in part.

I. BACKGROUND

A. Factual Background

On November 21, 2002, while serving a three and a half year sentence on a prior conviction, Hassell pleaded guilty to assault in the second degree. See Second Am. Compl. ¶ 19. He was sentenced to an additional term of three and a half years of confinement, consecutive to his prior sentence. See id. The sentencing judge did not pronounce a term of PRS to follow Hassell's term of custody. See id. Hassell alleges that at some point after his sentencing but prior to his release, Defendants Brian Fischer, Anthony J. Annucci, Terrence Tracy, and Andrea Evans[1] formulated a plan to administratively add a PRS term to Hassell's sentence. See id. ¶ 26.

Hassell was conditionally released from custody on February 29, 2008, after serving six-sevenths of his custodial sentence. See id. ¶ 39. Hassell's release from custody was made subject to a PRS term of five years, calculated to end on March 1, 2013. See id. ¶ ¶ 33, 39. Hassell alleges that Fischer, Annucci, Tracy, and Evans " made a conscious decision" to impose the five-year PRS term upon Hassell's release even though they " knew, or should have known, that their actions violated clearly established law." Id. ¶ ¶ 27-29, 33, 45. Hassell further alleges that at the direction of Fischer, Annucci, Tracy, and Evans, several DOCS and Parole employees[2] enforced the PRS conditions.[3] See id. ¶ ¶ 35-36.

On August 31, 2008, the full term of Hassell's custodial sentence expired. See id. ¶ 40. On September 15, 2008, Parole informed the New York Supreme Court for New York County that Hassell required resentencing and ordered Hassell to appear in New York County Supreme Court. See id. ¶ 42; Defs.' Answer to Second Am. Compl., Exh. I. On December 3, 2008, New York Supreme Court Justice Rena K. Uviller re-sentenced Hassell nunc pro tunc to a custodial term of three and a half years, which he already had completed, and a five year PRS term. See Am. Compl. ¶ 43. Hassell appealed to the New

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York Appellate Division, First Department, which summarily affirmed Justice Uviller's order. See People v. Hassell, 66 A.D.3d 575, 886 N.Y.S.2d 599 (1st Dep't 2009). On June 17, 2010, the New York Court of Appeals reversed the Appellate Division. The Court of Appeals held that the Supreme Court's resentencing of Hassell nine months after his release from custody violated the protections guaranteed by the Double Jeopardy Clause of the federal Constitution. See People v. Hassell, 14 N.Y.3d 925, 926, 931 N.E.2d 539, 905 N.Y.S.2d 555 (2010). Immediately following the New York Court of Appeals' decision, Hassell was released from PRS. See Second Am. Compl. ¶ 44.

B. Post-Release Supervision in New York

In 1998, the New York Legislature passed a sentencing reform act, commonly referred to as " Jenna's Law," which provided determinate sentences for violent felony offenders, eliminated parole for those offenders, and mandated that determinate sentences be followed by terms of PRS. See 1998 N.Y. Laws Ch. 1, § 15 (" Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision." ) (codified at N.Y. Penal Law § 70.45(1) (McKinney 2004)); see also People v. Catu, 4 N.Y.3d 242, 244, 825 N.E.2d 1081, 792 N.Y.S.2d 887 (2005). Following the enactment of Jenna's Law, because PRS was presumed automatic, some judges did not state during sentencing that the defendant's sentence included a term of PRS. In some cases, the defendants' commitment orders similarly omitted any reference to a PRS term. Nonetheless, DOCS and Parole officials imposed terms of PRS administratively. Several intermediate courts initially upheld the practice, see, e.g., Matter of Deal v. Goord, 8 A.D.3d 769, 770, 778 N.Y.S.2d 319 (3d Dep't 2004) (denying Article 78 petition seeking prohibition of administratively-imposed PRS term because respondents were simply " enforcing a statutorily-required part of petitioner's sentence" ), but, in 2005, the New York Court of Appeals ruled that due process required a defendant pleading guilty to be aware of the mandatory PRS term at the time of the plea. See Catu, 4 N.Y.3d at 245. Thus, the failure of the sentencing court to advise pleading defendants that they would be subject to a PRS term after their custodial sentence invalidated their plea, even though Jenna's Law required a PRS term to follow a determinate sentence. See id.

In June 2006, in Earley v. Murray, the Second Circuit Court of Appeals addressed the issue in the context of a petition for habeas corpus. See 451 F.3d 71 (2d Cir. 2006). Sean Earley had pleaded guilty in February 2000 to attempted burglary in the second degree and was sentenced to a six-year custodial term. See id. at 73. The judge did not mention a term of PRS at sentencing, nor include it in the written judgment or order of commitment following sentencing. See id. However, DOCS officials, following common practice, administratively added a five-year PRS term some time during Earley's confinement. See id. After being released from prison in 2004, Earley violated the conditions of his PRS and was reincarcerated. See id. at 75. He then filed a petition in federal court seeking, by writ of habeas corpus, to be released from an invalid custodial sentence imposed for violating invalid PRS conditions. See id. at 73.

The Second Circuit held in Earley that " [t]he judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment." 451 F.3d at 75 (citing Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936)). Thus, the Second Circuit held

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that an administrative modification of a sentence violated " clearly established federal law" under the standard for habeas review provided by the Anti-Terrorism and Effective Death Penalty Act. Id. at 77.[4] However, the Court also held that while the sentence was invalid, the invalidity could be cured by a re-sentence of a defendant by the sentencing court pursuant to New York Criminal Procedure Law § 440.40. See id. at 76-77 (" Our ruling is not intended to preclude the state from moving in New York courts to modify Earley's sentence to include the mandatory PRS term." ). As discussed in greater detail below, the Second Circuit subsequently held in 2013 that, for purposes of qualified immunity, the decision in Earley " clearly established" the unconstitutionality of administratively adding PRS conditions to a prisoner's sentence that were not pronounced by the sentencing judge at the time of sentence. See Vincent v. Yelich, 718 F.3d 157, 160 (2d Cir. 2013).

In April 2008, the New York Court of Appeals addressed the issue of whether administratively added PRS terms violated the New York Criminal Procedure Law and whether resentencing could cure such illegal sentences. See People v. Sparber, 10 N.Y.3d 457, 889 N.E.2d 459, 859 N.Y.S.2d 582 (2008). In Sparber, the sentencing judges in several cases had failed to advise convicted defendants that his or her sentence included a PRS term. New York Penal Law § 70.45(1) at the time, although requiring that a term of PRS follow a determinate sentence, did not provide how or when that term was to be imposed. New York Criminal Procedure Law § 380.20 and § 380.40(1), however, provided that courts " must pronounce sentence in every case where a conviction is entered" and that, generally, " [t]he defendant must be personally present at the time sentence is pronounced." Id. at 469. The New York Court of Appeals in Sparber concluded that the sentencing courts had to pronounce the PRS component of a sentence, and that the " sole remedy" for the courts' failure to do so is " to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement." ...


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