OPINION OF THE COURT
Claimant Tyrone Mickens is one of many former prisoners who was required to serve a term of postrelease supervision (PRS) that had been imposed by the Department of Correctional Services (DOCS) rather than by the court when he was sentenced following his criminal conviction. He commenced this action based on allegations of false imprisonment and violation of his civil rights and now moves for summary judgment in his favor on the issue of liability, on the principles of res judicata, relying on a Supreme Court decision that held DOCS’ action in imposing a term of PRS on claimant to be unlawful. Defendant opposes and cross-moves for summary judgment dismissing the claim on the ground that DOCS’ action was privileged and cannot give rise to civil liability because Penal Law § 70.45 required that claimant serve a period of PRS.
On September 16, 1999, claimant pleaded guilty to the crime of attempted robbery in the second degree, and on October 25, 1999 he was given a determinate sentence of three years in prison. At the time of his sentencing, Penal Law § 70.45 (1) required that every determinate sentence also include “as a part thereof’ an additional period of postrelease supervision. Under the statute as it existed at that time, and with certain exceptions not relevant to claimant, the term of PRS was to be five years. The sentencing judge failed to advise claimant that PRS would be a part of his sentence, either during the negotiations leading to his plea agreement or at the time of his sentencing (Levine affirmation, exhibits C, D [transcripts]). Thereafter, at some point prior to the completion of claimant’s three-year
During the following years, on at least three occasions, claimant was arrested and jailed for alleged parole violations. The confinement periods in connection with these arrests interrupted the running of claimant’s five-year term of PRS (Penal Law § 70.45 [5] [d]), with the result that the PRS expiration date was pushed back from November 8, 2006 to April 9, 2008. In the fall of 2007, when he had again been arrested for a parole violation and was again incarcerated in a local correctional facility, claimant commenced a habeas corpus proceeding, asserting that his detention was illegal since he had not been sentenced to PRS by a court. Nassau County Supreme Court Justice Frank A. Gulotta, Jr. granted the petition, holding that “a PRS sentence can only be imposed by the sentencing judge and not administratively by the Department of Correctional Services (DOCS) or the New York State Division of Parole” (Matter of Mickens v Reilly, Sup Ct, Nassau County, Dec. 20, 2007, Gulotta, J., index No. 485N99; Levine affirmation, exhibit E). Rejecting respondent’s argument that claimant’s only option was to withdraw his guilty plea and proceed de novo, Justice Gulotta directed that he be released from all custody relating to PRS and the warrant for violating its terms.
The Supreme Court decision on which claimant relies is binding on this court under the principles of res judicata (see Williams v State of New York,
Background
Penal Law § 70.45 was enacted in 1998 as part of “Jenna’s Law” (L 1998, ch 1, § 15), and the first sentence of the original version of the statute, which was in effect when claimant was sentenced, read as follows: “Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision.” (Penal Law § 70.45 [former (1)].) Initially, there was a significant degree of confusion and inconsistency regarding when, how, and by whom the PRS term was to be imposed. “[Mjany, if not most, sentencing courts assumed for several years that a separate pronouncement of a term of PRS was not required” and often there would be no mention of PRS when the parties were engaged in plea discussions (People v Rogers,
A series of Court of Appeals decisions and, ultimately, an amendment to Penal Law § 70.45 resolved any question about when and by whom the mandatory PRS must be imposed. Administrative imposition of the mandatory PRS was first determined to be unlawful, at least with respect to individuals who were sentenced following a guilty plea, in People v Catu (
In Garner and People v Sparber (
Because there were so many instances in which PRS had been administratively imposed, the issue of what actions could be taken, either by authorities or by the affected individuals,
It is well established in New York law that where the criminal sentence of a person who remains incarcerated lacks a mandatory element, it may be corrected without running afoul of the prohibition against double jeopardy through resentencing (Earley v Murray,
In connection with the PRS cases, however, many of the individuals had completed their determinate sentences and had been released from prison before the administratively-imposed
In the trial courts, however, a split soon developed between those justices who interpreted the footnote statement in Garner to mean that the People and/or DOCS definitely had the authority to resentence individuals even after they had been released from prison (see e.g. People ex rel. Hernandez v Superintendent, Oneida Correctional Facility,
In 2008, the Legislature resolved this issue by enacting section 601-d of the Correction Law (L 2008, ch 141, § 5). This statute establishes a mechanism for resentencing inmates who were given determinate prison sentences after the passage Penal Law § 70.45 but whose commitment orders did not contain any mention of PRS. The statute applies both to “inmates in the custody of the commissioner [of DOCS]” and to “releasees under the supervision of the division of parole,” and thus it encompasses those who have been released from prison but are still serving PRS, as well as those who remain in prison.
The statute directs DOCS and the Division of Parole to identify such individuals and notify their sentencing courts about the omission in the commitment orders. The courts have a prescribed period of time in which to check their records and either issue new commitment orders, reciting that a PRS term was pronounced at the time of the original sentencing, or set a date for a resentencing hearing. Following such a hearing, the sentencing court must then issue a written decision that either resentences the individual, this time to a term that includes PRS, or states that the individual will not be resentenced.
It is against this background that this court considers the question of whether these individuals may recover money damages for the time they spent serving their administratively-imposed term of PRS. When provided with sufficient factual information on which to base a conclusion,
There appears to be agreement that, in the situation presented by these cases, there can be no viable cause of action based on allegations of constitutional violations. The Court of Claims does not have jurisdiction to hear civil actions for alleged violations of the United States Constitution, as a state is not a “person” amenable to suit under 42 USC § 1983 (Will v Michigan Dept. of State Police,
To recover money damages in an action for false imprisonment, a claimant must establish that: (1) the defendant intended to and did confine him; (2) that he was conscious of the confinement; (3) that he did not consent to the confinement; and (4) that the confinement was not otherwise privileged (Broughton v State of New York,
In two Court of Claims decisions, it has been held that claims alleging false imprisonment in these situations must fail since “any confinement arising from an improperly imposed period of PRS is privileged . . . because it was required by § 70.45 (1) of the Penal Law” (Collins v State of New York, Ct Cl, June 16,
The immunity that is granted to certain governmental actions has also been cited as a reason for rejecting these claims. Absolute immunity protects actions taken by judges when they are performing their judicial functions and by other government officials when they are lawfully carrying out duties that are “classically judicial” (e.g. “decisions which involve the officials’ expertise, an application of law and an exercise of their judgment”) (Tarter v State of New York,
In Vazquez v State of New York (
Counsel for defendant has drawn the court’s attention to two recent decisions from federal district courts in which it was held that actions for money damages (brought by way of actions commenced under 42 USC § 1983) must fail because DOCS’ actions were protected by qualified immunity. In Scott v Fischer (
This court is unable to view DOCS’ actions as being either privileged or entitled to immunity from liability. DOCS simply did not have legal jurisdiction or lawful authority to impose any component of sentences on convicted criminals because, as the Court of Appeals emphasized in Matter of Garner v New York State Dept. of Correctional Servs. (
If DOCS had no lawful authority to pronounce any portion of the sentence on these individuals, then its action in doing so cannot be considered privileged (i.e. as being carried out “pursuant to lawful authority” or “under color of law or regulation”). There is an important distinction between acts performed in excess of the actor’s jurisdiction and those performed in the clear absence of any jurisdiction or authority: “[t]he former is privileged, the latter is not” (Sassower v Finnerty,
For the same reason, DOCS’ action cannot be viewed as being entitled to either absolute or qualified immunity. Where a public officer acts “in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are prosecutorial or quasi-judicial in nature” (Della Pietra v State of New York,
These same conclusions with respect to privilege and immunity were reached in Donald v State of New York (24 Mise 3d 329 [Ct Cl 2009]). The State’s argument that DOCS’ action was privileged was rejected because there was no evidence that it was made in response to any valid judicial sentence or order and because defendant was unable to identify language in any statute, regulation, or legislative memorandum “which required or permitted DOCS to impose a period of PRS on claimant” (id. at 332). The argument that DOCS could claim immunity for these actions was also rejected (id.).
In the instant case, because DOCS’ imposition of the PRS term is considered neither privileged nor protected by immunity, liability on the part of the State is possible. However, in the view of this court, there must also be an allegation and ultimately proof that DOCS’ action actually caused injury to claimant, caused confinement that was not otherwise privileged, before the elements of false imprisonment can be established.
It is a fundamental principle of tort law that a right to recover damages arises only when the defendant breaches a duty it owes to the injured party and that breach of duty causes the injury for which compensation is sought. “There is no liability in tort unless the defendant’s wrongful conduct is a cause in fact of plaintiffs injury” (Schuster v City of New York,
The need for such a causal connection between DOCS’ wrongful act and the former prisoners’ confinement was recognized in Nazario v State of New York (
“[A] 11 that is alleged is that the claimant was made subject to PRS, which the facts indicate was consistent with the statutory requirement applicable to determinate sentencing. Under these circumstances it cannot be said that the conduct complained of was tortious or the cause in fact of the claimant’s injuries.”
This statement sheds light on one of the difficulties, or logical stumbling blocks, in these cases. There is, in all of the decisions, some recognition of an underlying paradox: DOCS’ admittedly wrongful action had the same impact on the claimants as the lawful application of the sentencing statute would have imposed.
The claimants in these cases evidently assume that if DOCS had not acted improperly, they would have left prison at the end of their determinate sentence with no obligation to serve any period of PRS. In fact, because DOCS was undisputably aware of the defect in these prisoners’ commitment orders, such a result is entirely unrealistic.
That DOCS was aware of the defect in the original sentence and commitment order is established by the fact that they took some action, albeit unlawful, to correct the defect. There were lawful alternatives available to the agency, specifically giving notice of the problem to the court and/or the prosecutor and defense attorney (see e.g. People v Wright,
Proper action on the part of DOCS would have resulted in resentencing by a court, which would have been privileged. Consequently, a claim for false imprisonment may be maintained only when, and to the extent that, a claimant alleges and proves that some portion of the time he served under PRS was caused solely by DOCS’ imposition of a longer term of PRS than a court would have imposed. To determine if there was such compensable injury, each case must be considered on its own facts.
In most instances, a cause of action for false imprisonment cannot be maintained because DOCS’ action, while unlawful,
It may be possible, however, for a small subset of individual claimants to prove that DOCS’ action caused at least some period of their confinement. A claimant may recover for false imprisonment if he or she is able to prove that DOCS imposed a longer term of PRS than the sentencing court could, or would, have imposed. For example, if the statute required a PRS term of three years but DOCS imposed a five-year term, then the State would be liable for false imprisonment for any period of time the individual served under PRS beyond the third year. Similarly, an individual who was convicted of a crime for which a judge had discretion to choose within a range of PRS terms (for example, between two and four years) might be able to prove that DOCS imposed a PRS term that was longer than the particular judge would have imposed (for example, by proving that the particular judge always imposed the minimum term). If facts such as these can be proved, the individual will have a claim to recover for any additional time served. In short, it is the facts of each specific case that will determine whether DOCS’ action in imposing the term of PRS caused actual injury to the individual, and only where such injury is established will there be a right to recover.
Turning to the facts of the instant action, the court concludes that claimant has not pleaded and will be unable to prove a viable claim for false imprisonment. The crime for which he was convicted did not fall within one of the statutory exceptions
In the instant case, therefore, DOCS’ imposition of a five-year term of PRS on claimant was unlawful, but that wrongful act was not the cause of any of the confinement he experienced while serving PRS. Claimant has not alleged any facts that, if proved, would support the conclusion that DOCS’ action alone caused him specific injury. Consequently, he will be unable to prove the elements of a claim for false imprisonment, and defendant is entitled to summary judgment dismissing the claim.
Claimant’s motion for summary judgment on the issue of liability is denied. Defendant’s cross motion for summary judgment is granted. Claim No. 114719 is dismissed.
Notes
. Defendant also argues that Penal Law § 70.45 does not create a private right of action on behalf of individuals who would be subject to the mandatory PRS. The presence or absence of a statutory private right of action, however, has no bearing on whether a litigant continues to have a traditional, common-law cause of action (such as an action for false imprisonment) arising from the same factual situation, unless the statute specifically abrogates the common-law remedy (see generally Burns Jackson Miller Summit & Spitzer v Lindner,
. Somewhat earlier, the Second Circuit held in Earley v Murray (
. Although DeValle stands for the proposition that a trial court has inherent power to correct an illegal sentence, it does not actually provide guidance on whether the People or DOCS had “any ability” to seek resentencing of someone who had already completed his or her prison term and had been released. In DeValle, as in Sparber, Hill, and Collado, the person whose sentence was being corrected (for defects unrelated to PRS) was still in prison and serving his original prison sentence when the matter came before the court (see People ex rel. Pamblanco v Warden, Rikers Is. Correctional Facility,
. Excluded from the reach of this statute are individuals who have already completed both their original prison sentence and any subsequent term of PRS, since they are no longer “releasees” under the supervision of the Division of Parole. For the same reason, individuals who successfully challenged their PRS and obtained their release from all confinement by way of a habeas corpus or other proceeding are not impacted by this statute, finally giving meaning to the Garner footnote. A third group that is excluded from the statute are those on whom PRS was imposed “administratively” by nonjudicial court personnel, rather than by DOCS. Although the Court of Appeals recently confirmed that this form of nonjudicial imposition of PRS is also unlawful (People v Collado,
. Although the sentencing courts did not have the option of refusing to add the required term of PRS when they originally imposed a determinate sentence, Correction Law § 601-d and Penal Law § 70.85 (which is captioned “Transitional exception to determinate sentencing laws”) permit omission of PRS from the sentences of certain designated persons, but only if the district attorney consents. The reason for making this limited exception relates to the
. In several instances involving motions for permission to file a late claim, the courts have found it impossible to weigh the apparent merit of such claims in the absence of specific allegations of wrongdoing or relevant supporting information and documentation, such as sentencing minutes and commitment orders (see e.g. Vazquez v State of New York,
. The cases cited in the federal district court decisions are the following: People v Thomas (
. These decisions include the following: People v Catu (
As early as 2001, in People v Alcock (
“New York’s postrelease supervision is almost identical to what the Federal Government terms ‘supervised release’ or ‘special parole’ or what some States call ‘mandatory parole.’ The United States Courts of Appeals have unanimously ruled that supervised release or special parole is a direct consequence of a guilty plea and that a court must advise a defendant of these direct consequences at the time of a plea.”
The decision further noted that all state courts in which the issue had been addressed had ruled that “a court’s failure to advise a defendant of ‘mandatory parole’ is reversible error.” (Id. at 288.)
. One statement in the Garner decision contains language that could he read as suggesting that DOCS’ action was “in excess” of its jurisdiction. The full statement, however, makes it clear that the term “excess” was being used to indicate that something was entirely “outside” DOCS’ lawful jurisdiction: “Second, this act was in excess of DOCS’s jurisdiction; indeed, such action was solely within the province of the sentencing judge” (
. Scott v Fischer (
. In Donald, the court stated that claimant must still prove the number of days he was impermissibly confined, the manner in which he was confined, and the damages he incurred as a result of such confinement (
. This statement was made in connection with a discussion of whether defendant could be liable in these cases for ministerial negligence, something that is not protected by absolute or qualified immunity and which can result in the imposition of liability “if it is otherwise tortious and not justifiable pursuant to statutory command” (Tango v Tulevech,