Jackson v. Smith

Jan 11, 2007
Versions:36 A.D.3d 1067
827 N.Y.S.2d 341
Blackstone

In opposition, defendant‘s evidence established that (1) claimant had no known enemies, (2) claimant was attacked, according to his testimony, immediately after he exited the classroom, (3) his assailants are unknown so there is no evidence as to how long they had been attending classes or whether they were aware of the habits of the correction officer, (4) all of the inmates in the classroom building are there voluntarily to attend the evening programs and any rules violation would jeopardize this privilege, (5) it is not impermissible for one correction officer to supervise over 100 inmates in such a school building, (6) before entering the school building, all inmates pass through a metal detector to determine if they are carrying any weapons, and (7) in the five to seven years he had worked at the school building, the correction officer had had no prior incidents of inmate-on-inmate assault in that setting. According proper deference to the Court of Claims’ findings, we conclude that its determination that the attack on claimant could not be reasonably foreseen by defendant is a fair interpretation of the evidence.

The Court of Claims properly found that defendant is not liable merely because the correction officer failed to keep claimant in his direct line of sight. Liability does not lie merely because the officer could not see claimant when claimant was attacked (see id. at 255 n 4, 256; Elnandes v State of New York, 11 AD3d 828, 829 [2004]). Absent a showing of dangerousness, “unremitting supervision” is unnecessary (Colon v State of New York, 209 AD2d 842, 844 [1994]; see 99 NY2d 247, 256 [2002], supra). Moreover, claimant‘s reliance on rules applicable to county jails (see 9 NYCRR 7003.2 [c] [1], [3]; 7003.4), general rules of penal institution supervision and general statistics concerning the frequency and timing of inmate-on-inmate assaults at Elmira Correctional Facility or any other maximum security facility prove only that such facilities are dangerous places where the possibility of inmate-on-inmate assaults exists. Such general proof is insufficient to establish that a reasonable probability existed that this claimant would be attacked at this time and place. In the absence of either actual or constructive notice, defendant is not liable.

Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs. [See 8 Misc 3d 1019(A), 2005 NY Slip Op 511191(U) (2005).]

Crew III, J. Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered August 4, 2005 in Ulster County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services calculating the length of petitioner‘s sentence.

Following his conviction in 1985, 1988 and 1991 of various felonies, for which indeterminate prison sentences were imposed, petitioner was released to parole supervision in 2000. In 2001, petitioner was convicted of robbery in the first degree, attempted robbery in the first degree, sexual abuse in the first degree and grand larceny in the fourth degree, for which he was sentenced as a persistent violent felony offender to an aggregate prison term of 25 years to life. The sentencing commitment was silent as to the manner in which this sentence was to run against petitioner‘s prior unexpired sentences. His subsequent request that the 2001 sentence run concurrently with the preexisting unexpired sentences was rejected administratively, prompting petitioner to commence this proceeding pursuant to CPLR article 78 to challenge that determination. Supreme Court dismissed the petition, and this appeal ensued.

We affirm. Penal Law § 70.25 (2-a) provides that where, as here, an individual is sentenced as a persistent violent felony offender pursuant to Penal Law § 70.08 and, further, is subject to an undischarged indeterminate term of imprisonment imposed prior to the date upon which the instant crime was committed, “the court must impose a sentence to run consecutively with respect to such undischarged sentence” (Penal Law § 70.25 [2-a]). Hence, petitioner‘s 2001 sentence must run consecutively to his prior unexpired sentences (see Matter of Tafari v Goord, 31 AD3d 843 [2006], lv denied 7 NY3d 717 [2006]; Matter of Martinez v Goord, 30 AD3d 868, 869 [2006]; Matter of Valentin v Smith, 30 AD3d 862, 863 [2006]), despite the fact that the commitment order was silent on this issue (see Matter of Moore v Goord, 34 AD3d 909, 910 [2006]; Matter of Adams v Goord, 29 AD3d 1237, 1238 [2006]). Accordingly, Supreme Court properly dismissed the petition.

Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.

CREW III, J.

​ outdoor. Rejoin all hyphenated line breaks in the text. The first page starts with the end of a previous case and the beginning of “In the Matter of LAVOGIA JACKSON“. I should only convert the case that begins on the first page and is the main focus. Actually, the instructions say: “If the document contains multiple opinions (e.g., end of one case and start of another), convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” On page 1067, the first case is a continuation. The new case “In the Matter of Lavogia Jackson” starts at the bottom of 1067 and continues onto 1068. However, page 1067 also contains the end of the previous case. Wait, looking at the screenshots: Page 1 (1067): Ends a case about an inmate attack. Then starts “In the Matter of Lavogia Jackson“. Page 2 (1068): Continues and finishes “In the Matter of Lavogia Jackson“. Then starts “In the Matter of Mitchell Kalwasinski“. So the “MAIN” opinion here is “In the Matter of Lavogia Jackson“. Let‘s extract the details for Lavogia Jackson: Case name: In the Matter of LAVOGIA JACKSON, Appellant, v JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, et al., Respondents. Docket: N/A (not explicitly listed, but reporter cite is 827 NYS2d 341) Court: Supreme Court, Appellate Division, Third Department, New York (implied by the judges and the reporter) Date: August 31, 2006 (from reporter context, though not on page, I‘ll use what‘s available or leave blank if not found. Wait, looking at the OCR, there isn‘t a date. I will omit date if not found). Actually, usually these legal documents have the date at the top. It‘s cropped here. The citation is [827 NYS2d 341]. Let‘s re-read the multi-opinion rule: “If the document contains multiple opinions... convert only the MAIN opinion — the one with a complete case caption and full opinion body.” The Lavogia Jackson case has a caption at the bottom of 1067 and the opinion body on 1068. Actually, the text starting on 1067 “In opposition, defendant‘s evidence established...” belongs to the *previous* case (the one ending with Peters, J.P., Rose...). The Lavogia Jackson case starts with the caption at the bottom of 1067: “In the Matter of LAVOGIA JACKSON... [827 NYS2d 341]“. Then on 1068: “Crew III, J. Appeal from a judgment...” and ends with “Ordered that the judgment is affirmed, without costs.” Then another case starts: “In the Matter of Mitchell Kalwasinski...“. So the target is “In the Matter of Lavogia Jackson“. Wait, the prompt says “Convert the provided legal document... preserving all content exactly.” And the multi-opinion rule says “Skip partial content from a previous case that appears at the beginning of the document.” So I skip the text on 1067 that belongs to the previous case. I start with the Jackson caption. Case Info for Jackson: Name: In the Matter of LAVOGIA JACKSON, Appellant, v JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, et al., Respondents. Short Name: Jackson v. Smith Citation: 827 NYS2d 341 Court: N.Y. App. Div. (Third Department) Date: 2006 (from context of surrounding cases like 2005 NY Slip Op, and AD3d citations from 2006). I will look for a date. The prompt says “preserve formatting exactly (dates...)“. If it‘s not on the page, I can‘t put it in the attribute. But I will check the OCR. The OCR for page 1068 mentions “entered August 4, 2005“. That‘s the judgment date. The appellate decision date isn‘t there. I‘ll omit the `date` attribute if not explicitly in the text, or use the year if certain. Actually, AD3d 2006 citations are present. The cite [827 NYS2d 341] is from 2006. Let‘s structure it. ```html

In the Matter of LAVOGIA JACKSON, Appellant, v JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, et al., Respondents. [827 NYS2d 341]

Crew III, J. Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered August 4, 2005 in Ulster County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services calculating the length of petitioner‘s sentence.

Following his conviction in 1985, 1988 and 1991 of various felonies, for which indeterminate prison sentences were imposed, petitioner was released to parole supervision in 2000. In 2001, petitioner was convicted of robbery in the first degree, attempted robbery in the first degree, sexual abuse in the first degree and grand larceny in the fourth degree, for which he was sentenced as a persistent violent felony offender to an aggregate prison term of 25 years to life. The sentencing commitment was silent as to the manner in which this sentence was to run against petitioner‘s prior unexpired sentences. His subsequent request that the 2001 sentence run concurrently with the preexisting unexpired sentences was rejected administratively, prompting petitioner to commence this proceeding pursuant to CPLR article 78 to challenge that determination. Supreme Court dismissed the petition, and this appeal ensued.

We affirm. Penal Law § 70.25 (2-a) provides that where, as here, an individual is sentenced as a persistent violent felony offender pursuant to Penal Law § 70.08 and, further, is subject to an undischarged indeterminate term of imprisonment imposed prior to the date upon which the instant crime was committed, “the court must impose a sentence to run consecutively with respect to such undischarged sentence” (Penal Law § 70.25 [2-a]). Hence, petitioner‘s 2001 sentence must run consecutively to his prior unexpired sentences (see Matter of Tafari v Goord, 31 AD3d 843 [2006], lv denied 7 NY3d 717 [2006]; Matter of Martinez v Goord, 30 AD3d 868, 869 [2006]; Matter of Valentin v Smith, 30 AD3d 862, 863 [2006]), despite the fact that the commitment order was silent on this issue (see Matter of Moore v Goord, 34 AD3d 909, 910 [2006]; Matter of Adams v Goord, 29 AD3d 1237, 1238 [2006]). Accordingly, Supreme Court properly dismissed the petition.

Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.

CREW III, J.

``` Reviewing requirements: - Rejoin line breaks: “li- able” -> “liable“, “ac- cording” -> “according“, etc. in the partial text. Wait, I‘m skipping the partial text. - In the Jackson text: “of- fender” -> “offender“, “re- spect” -> “respect“. Done. - Citation tags: - CPLR article 78 -> `CPLR article 78` (Using 7801 as first section). - Penal Law § 70.25 (2-a) -> `` - Penal Law § 70.08 -> `` - Case citations like “Matter of Tafari v Goord, 31 AD3d 843 [2006]” get ``. - Quotes: Use straight quotes. - Pagination: `` at the start of the caption. `` at the top of the next page. - Footnotes: None in this case. One correction: The caption start is on 1067. The text “In the Matter of LAVOGIA JACKSON...” is on 1067. The judges’ list “Mercure, J.P., Peters, Spain and Carpinello, JJ., concur.” and “Ordered...” is the end of the Jackson opinion. The next case start “In the Matter of Mitchell Kalwasinski...” should be ignored as per the “Convert only the MAIN opinion” rule. The text at the very top of 1067: “In opposition... Ordered... [See 8 Misc 3d 1019(A)...]” is the end of a previous case. I skip it. Final check on citation tagging: `Matter of Tafari v Goord, 31 AD3d 843 [2006]` -> `Matter of Tafari v Goord, 31 AD3d 843 [2006]` `lv denied 7 NY3d 717 [2006]` -> `lv denied 7 NY3d 717 [2006]` Wait, “lv denied” is history. I should tag it as a separate case citation if it has its own cite. Yes. `see Matter of Moore v Goord, 34 AD3d 909, 910 [2006]` -> pinpoint 910. One detail: `CPLR article 78` is a common law reference, 7801 is the start of the article. Wait, the prompt says: “If the document contains multiple opinions (e.g., end of one case and start of another), convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” In this document: 1. End of Case A (partial) 2. Case B (Jackson) - Full caption on 1067, full body on 1068. 3. Start of Case C (partial) So I output Case B. Case Information block: Name: In the Matter of LAVOGIA JACKSON, Appellant, v JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, et al., Respondents. Short Name: Jackson v. Smith (Omit procedural phrases like “In the Matter of“, “as Superintendent...“, “et al.“, “Appellant“, “Respondents“). Docket: N/A. Court: Supreme Court, Appellate Division, Third Department, New York. (Bluebook: N.Y. App. Div.) Date: August 31, 2006 (Usually, 31 AD3d cases are from 2006. 827 NYS2d 341 is officially dated Aug 31, 2006. I will include the date if it‘s searchable, or just use what‘s visible. The OCR doesn‘t show the date header. I‘ll stick to what‘s verifiable from the page or leave out attributes like `date` if not found, but I can infer year 2006 from context). Actually, I‘ll omit `date` attribute to be safe and just put citations in the text. Wait, “827 NYS2d 341” is the cite for Jackson? No, it‘s at the end of the caption. Yes. One more thing: The caption text “In the Matter of LAVOGIA JACKSON...” is content that should be in Case Information. Does it repeat in the body? The instructions say “Extract metadata here, don‘t repeat in body“. So I don‘t repeat the caption text in a `` tag if it‘s in the Case Info block? “Omit elements without data - Extract metadata here, don‘t repeat in body“. So the Case Name, Docket, Court, Date, Citation go in ``. The main text starts after. The main text for Jackson starts with the Judge‘s name: “Crew III, J.” on page 1068. Wait, there‘s a citation after the caption on 1067: “[827 NYS2d 341]“. This is the citation for the case. I will follow the structure. ```html Case Information In the Matter of LAVOGIA JACKSON, Appellant, v JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, et al., Respondents. Supreme Court, Appellate Division, Third Department, New York 827 NYS2d 341 Crew III, J. Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered August 4, 2005 in Ulster County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services calculating the length of petitioner‘s sentence. ... ``` Actually, some prefatory material might be there. On page 1068, “Crew III, J. Appeal from...” is the start of the opinion. Wait, is “827 NYS2d 341” part of the caption text I should include? Yes, it‘s the citation. One discrepancy: the OCR for 1067 shows the caption, then a bracketed cite. I‘ll skip the repetition of the caption. Final check on the Law Citations: “Penal Law § 70.25 (2-a)” -> cite=“N.Y. Penal Law § 70.25(2-a)” “Penal Law § 70.08” -> cite=“N.Y. Penal Law § 70.08” “CPLR article 78” -> cite=“N.Y. C.P.L.R. 7801” The `shortName` for “In the Matter of LAVOGIA JACKSON, Appellant, v JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, et al., Respondents.” First party: Lavogia Jackson. Second party: Joseph T. Smith. Short name: Jackson v. Smith. (Standard BB format). Let‘s begin.