Opinion
# 2019-032-055 Claim No. 129808 Motion No. M-93417 Cross-Motion No. CM-93612
10-07-2019
DEVAR HURD v. THE STATE OF NEW YORK
Jacob Loup, Esq. Hon. Letitia James, Attorney General By: Michael T. Krenrich, AAG
Synopsis
The instant claim seeks damages arising from an alleged wrongful confinement and negligence on the part of the Department of Corrections and Community Supervision (hereinafter DOCCS). Defendant now moves for summary judgment. Claimant opposes defendant's motion and cross-moves for summary judgment. For the reasons that follow, the Court grants defendant's motion for summary judgment, denies claimant's cross motion, and dismisses the claim.
Defendant argues that claimant's motion should be denied because claimant failed to support his motion by including a copy of the pleadings as required by CPLR 3212 (b). The Uniform Rules for the Court of Claims states that "[t]here shall be compliance with the procedures prescribed in the CPLR for the bringing of motions" (22 NYCRR § 206.8 [a]). CPLR 3212 (b) requires that a motion for summary judgment be supported by a copy of the pleadings (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). A movant's failure to include the relevant pleadings in his motion warrants a denial of summary judgment (Senor v State of New York, 23 AD3d 851 [3d Dept. 2005]; CPLR 3212 [b]). However, the relevant pleadings are already part of the record as they were submitted with defendant's motion. As the record is sufficiently complete and defendant has not argued that it is prejudiced by claimant's failure, the Court may consider claimant's cross motion for summary judgment (CPLR 2001; Stiber v Cotrone, 153 AD2d 1006, 1007 [3d Dept. 1989], appeal denied, 75 NY2d 703 [1990]; Hudson v State of New York, 35 Misc 3d 241, 244 [Ct Cl 2011], affd 115 AD3d 1020 [3d Dept. 2014], lv denied 23 NY3d 907 [2014]).
Case information
| UID: | 2019-032-055 |
| Claimant(s): | DEVAR HURD |
| Claimant short name: | HURD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129808 |
| Motion number(s): | M-93417 |
| Cross-motion number(s): | CM-93612 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Jacob Loup, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Michael T. Krenrich, AAG |
| Third-party defendant's attorney: | |
| Signature date: | October 7, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant was arrested on July 23, 2013 and indicted on a multiple-count indictment. He was held in the custody of the New York City Department of Corrections (NYCDOC) while he awaited trial. Following a trial on the charges contained in the indictment, claimant was convicted on October 9, 2015 of nine of the ten counts submitted to the jury. On October 23, 2015, claimant was sentenced in New York County Supreme Court to an aggregate definite term of seven years and 180 days of incarceration following his conviction for nine separate misdemeanor counts, all to run consecutively. By operation of law, the maximum term of incarceration that claimant could serve for the nine counts was two years (Penal Law § 70.73 [2] [b]). Following his conviction on the nine misdemeanor counts, claimant remained in the custody of the NYCDOC. On March 18, 2016, claimant was convicted after a trial on the remaining open count in the indictment, stalking in the second degree, a class E felony. On March 31, 2016 claimant was sentenced in New York County Supreme Court to a term of one and one-third years to four years in prison. This sentence was to be served in the custody of the New York State Department of Corrections and Community Supervision (DOCCS), and on April 14, 2016, claimant was transferred to Ulster Correctional Facility (Ulster).
Penal Law § 70.30 (2) (b) states: "Where a person is under more than one definite sentence, the sentences shall be calculated as follows: If the sentences run consecutively and are to be served in a single institution, the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term, or by service of two years imprisonment plus any term imposed for an offense committed while the person is under the sentences, whichever is less[.]"
On the day that claimant arrived at Ulster, his conditional release date was calculated to be March 17, 2016 and his maximum expiration date was calculated to be July 17, 2017 based on 996 days of jail time credit received from the NYCDOC (Affirmation of Michael T. Krenrich, AAG, Exhibits C, D, E). Thus, claimant was 28 days past his conditional release date upon his arrival at Ulster and was designated for "immediate release" (Affirmation of Joel B. Rudin, Esq., Exhibit 4 [Deposition of Stacey Fredenburgh], p. 41). The next day--April 15, 2016--the Time Allowance Committee recommended that claimant receive one year and four months of good time credit to which he was entitled. The DOCCS Commissioner approved the full allowance of good time credit on April 19, 2016. However, claimant was not released at that time.
On May 5, 2016, DOCCS received a Certification of Jail Time from the NYCDOC that reduced claimant's certified jail time to 507 days. DOCCS then recalculated claimant's conditional release date to July 21, 2017, and his maximum expiration date to November 21, 2018.
On May 6, 2016, DOCCS received a Corrected Certification of Jail Time from the NYCDOC that reduced claimant's certified jail time to 469 days. DOCCS then recalculated claimant's conditional release date to August 29, 2017, and his maximum expiration date to December 29, 2018.
On June 13, 2016, DOCCS received another Corrected Certification of Jail Time from the NYCDOC that changed his certified jail time to 508 days. DOCCS then recalculated claimant's conditional release date to July 20, 2017, and his maximum expiration date to November 21, 2018.
On March 23, 2017, DOCCS received a Corrected Certification of Jail Time crediting claimant with 996 days of jail time. On March 27, 2017, DOCCS recalculated claimant's conditional release date to March 17, 2016, and his maximum expiration date to July 17, 2017. On March 30, 2017, claimant was conditionally released to parole supervision.
LAW AND ANALYSIS
"Summary judgment is a drastic remedy that 'should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable'" (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept. 2017], quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept. 2011]). The proponent of the motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept. 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept. 2011]). In considering the motions before it, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept. 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept. 2011]).
In order to succeed on his claim of wrongful confinement, "claimant [is] required to show that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged" (Cass v State of New York, 134 AD3d 1207, 1208 [3d Dept. 2015], lv dismissed 27 NY3d 972 [2016] [internal quotation marks and citations omitted]; accord Miller v State of New York, 124 AD3d 997, 998 [3d Dept. 2015]). As the first three elements of this cause of action are not disputed, defendant's liability in this case turns upon whether or not its confinement of claimant from April 20, 2016 through March 30, 2017 was privileged.
Initially, defendant argues that claimant does not have a legal entitlement to conditional release. However, the arguments presented in support of defendant's argument conflates conditional release with parole release, while each concept is "distinct from one another" (Matter of Perry v New York State Bd. of Parole, 27 Misc 3d 1236[A], 2010 NY Slip Op 51051[U], *1 [Sup Ct, Albany County 2010]). The grant of parole release is a discretionary decision made by the Board of Parole (id., citing Executive Law § 259-I [2] [c]; Penal Law § 70.40 [1] [a]; 9 NYCRR 8002.1). In comparison, conditional release, when applied for by an inmate and granted by the DOCCS Commissioner "when the total good behavior time allowed to [the inmate], pursuant to the provisions of the correction law, is equal to the unserved portion of his maximum or aggregate maximum term[,]" is mandatory and cannot be denied by the Board of Parole (id. at *2, citing Penal Law § 70.40 [1] [b]). No authority exists for defendant's proposition that claimant did not have a legitimate expectation of release on his conditional release date (Portalatin v State of New York, UID No. 2018-038-575 [Ct Cl, DeBow, J., Aug. 7, 2018]); see also Eiseman v State of New York, 70 NY2d 175, 180 [1987]). Therefore the Court declines to grant defendant's motion for summary judgment on this ground.
Both claimant and defendant set forth arguments as to whether defendant's actions were privileged, which requires the Court to determine whether an issue of fact exists as to whether defendant "was acting in an objectively reasonable manner" when it confined claimant (Santos v State of New York, UID No. 2008-038-533 [Ct Cl, DeBow, J., Mar. 30, 2009]).
Defendant argues that claimant was not immediately released upon his arrival at Ulster because DOCCS had not yet verified the jail time certificate that accompanied him upon his arrival on April 14, 2016. While verifying the accuracy of claimant's jail time certificate, DOCCS was informed that the jail time certificate may be incorrect. Therefore, DOCCS sought to obtain a corrected jail time certificate from the NYCDOC. When the NYCDOC provided a corrected jail time certificate on May 5, 2016, claimant's jail time credit was reduced to 507 days, making him ineligible for immediate release. Claimant argues that DOCCS was bound by the jail time certificate that accompanied claimant to Ulster on April 14, 2016, and that DOCCS should not have sought out additional information regarding claimant's jail time certificate.
In support of its argument, defendant submits the affidavit of Stacey Fredenburgh, who was Inmate Records Coordinator at Ulster during the time that claimant was incarcerated. Fredenburgh worked on claimant's immediate release upon his arrival at Ulster.
Fredenburgh averred that claimant arrived at Ulster on April 14, 2016 already beyond his conditional release date of March 17, 2016, but not beyond his maximum expiration date of July 17, 2017 (Fredenburgh Aff. ¶ 11). Accordingly, Fredenburgh submitted necessary paperwork to the Time Allowance Committee and notified DOCCS Central Office and Ulster officials that claimant was eligible for immediate release (id. ¶ 12). At the direction of the DOCCS Office of Classification and Movement, Fredenburgh reviewed claimant's prior sentences to determine whether claimant owed any time on local sentences (id. ¶ 13). In reviewing claimant's local sentences, Fredenburgh contacted Edward Felicien, who works in the NYCDOC Legal Division at Riker's Island Correctional Facility, where claimant served the sentences on his misdemeanor convictions (id. ¶ 14). On April 25, 2016, Fredenburgh contacted Felicien by telephone to inquire whether claimant owed time on his prior sentences (id. ¶ 15). Felicien informed her that claimant did not owe time on his prior sentences, but that claimant's jail time certification was incorrect and that an updated certificate would be provided (id.).
On May 4, 2016, Fredenburgh still had not received a corrected jail time certificate for claimant (Fredenburgh Aff. ¶ 17). She then contacted Salathia Mixon, an employee at the NYCDOC, who told her that claimant should receive all of the jail time credited to him in the original certification (id.). On May 5, 2016, Fredenburgh e-mailed Mixon to inform her that DOCCS required something in writing stating that claimant's jail time would not be changed (id. ¶ 18). In response, Mixon suggested that Fredenburgh contact Felicien (id.). Thereafter, on May 6, 2016, DOCCS received a corrected jail time certification from Felicien that reduced claimant's jail time credit to 507 days (Krenrich Aff., Exhibit F). That same day, DOCCS received another corrected certification of jail time that reduced claimant's jail time to 469 days (Krenrich Aff., Exhibit H). On June 13, 2016, DOCCS received a third corrected jail time certification crediting claimant with 508 days of jail time (Krenrich Aff., Exhibit J). Finally, DOCCS received a corrected certification of jail time on March 23, 2017, which restored claimant's jail time credit to 996 days, the same amount stated in the first certification of jail time (Krenrich Aff., Exhibit L).
The Court notes that the correct jail time certification is dated May 5, 2016, although Fredenburgh states that the certification was not received until May 6, 2016.
Based upon Fredenburgh's affidavits and exhibits submitted in support of each party's summary judgment motion, the Court finds that DOCCS' actions in regard to calculating claimant's conditional release date were objectively reasonable under the specific circumstances set forth above and that no material issue of fact exists that would require a trial.
During her deposition, Fredenburgh testified that she began preparing for claimant's immediate release as soon as he arrived at Ulster (Rudin Aff., Exhibit 4, p. 40). This process entailed submitting paperwork to the Time Allowance Committee and notifying DOCCS Central Office that claimant was eligible for immediate release (id.). According to Fredenburgh, DOCCS Office of Classification and Movement (referred to in Fredenburgh's deposition as "Class and Movement") has the final say as to whether an inmate will be conditionally released (id. at 41). E-mail correspondence shows that Fredenburgh e-mailed DOCCS Office of Classification and Movement on April 15, 2016, one day after claimant arrived at Ulster, to inform it that claimant was eligible for immediate release. That same day, Fredenburgh was directed by Sethann Bogardus, Inmate Record Coordinator at DOCCS Office Classification and Movement, to "complete [a] definite sentence checklist to ensure that . . . additional sentences are satisfied" (Rudin Aff., Exhibit 7). Because claimant's sentence and commitment order for his misdemeanor convictions listed multiple consecutive sentences, Fredenburgh called Felicien on April 25, 2016 to see if claimant owed any time on those sentences (Rudin Aff., Exhibit 4 at 50). Felicien informed Fredenburgh that claimant did not owe additional time on those sentences, but that the jail time certificate for claimant was incorrect.
The statutory obligation to send jail time certifications is imposed on the NYCDOC (Correction Law § 200-a), and it is well-settled that DOCCS is bound by the jail time certifications it receives from local authorities and "may not add or subtract therefrom" (McLamb v Fischer, 70 AD3d 1090 [3d Dept. 2010] [citations omitted]). In Torres v State of New York, 149 AD3d 1290 [3d Dept. 2017], lv denied 30 NY3d 904 [2017]), the Third Department held that DOCCS is not obligated to affirmatively solicit sentence and commitment orders for local jail sentences when an inmate arrives in State custody. The Court also noted within its decision that counsel for the State acknowledged that DOCCS had changed its policy in 2014 to take affirmative steps to review a local sentence and commitment order when an inmate is transferred to State custody from local jail (id. at fn *).
In the instant matter, it appears that Fredenburgh engaged in this review when claimant arrived at Ulster from Riker's Island Correctional Facility. After being told by Felicien that claimant's jail time certification was incorrect, Fredenburgh took the reasonable steps of informing her contact at DOCCS Office of Classification and Movement. While Fredenburgh's actions may have resulted in DOCCS receiving incorrect information, the Court nevertheless finds that her actions were reasonable at the time.
To the extent that claimant argues otherwise, the Court rejects these arguments. Claimant argues that Fredenburgh "solicited" the incorrect jail time certifications from Felicien. There is no support in the record for this position. To the contrary, it appears that Fredenburgh diligently sought to procure an answer from the NYCDOC after being told by Felicien that claimant's jail time certificaton was incorrect. On May 4, 2016, Fredenburgh contacted Salathia Mixon at the NYCDOC to ask for help in obtaining a corrected jail time certification. Mixon told her on the phone that claimant should receive all of his originally credited jail time. Fredenburgh e-mailed Sethann Bogardus at DOCCS Office of Classification and Movement to advise that she had not yet received an updated jail time certification (Rudin Aff., Exhibit 7). Bogardus told her to contact the NYCDOC and advise that DOCCS needed a statement in writing as to whether claimant's jail time certification would change. Fredenburgh then e-mailed Salathia Mixon that same day. Mixon stated that her statement that claimant was entitled to all of his jail time was unchanged. However, instead of unequivocally confirming that claimant's jail time certification was correct, Mixon suggested that Fredenburgh contact Felicien as he was the person who Fredenburgh first contacted. The next day, Felicien sent an amended jail time certification reducing claimant's jail time credit.
Claimant further argues that the jail time certifications were not "facially valid" because they looked different from claimant's original computer print-out jail time certification. In a sworn Reply Affidavit, Fredenburgh stated that "I have received many jail time certificates similar to those received on May 6, 2016. As the contact in the Legal Division at Riker's Island, it was customary to receive amended jail time certificates from Mr. Felicien in lettre format (Fredenburgh Reply Affidavit ¶ 18).
Based upon the evidence submitted in support of each party's motion for summary judgment, the Court finds that defendant has met its burden in establishing that claimant's confinement from April 14, 2016 through March 30, 2017 was privileged. Here, it is clear that the NYCDOC issued several erroneous jail time certifications in addition to providing inaccurate information to DOCCS. The proper recourse for claimant is to seek redress against the City of New York for these alleged errors (see, e.g., Kindler v City of New York, 2019 WL 4511717 [ND NY, Sept. 19, 2019, No. 17-CV-9896 (LTS/RWL)]).
Based upon the foregoing, it is hereby
ORDERED that defendant's motion for summary judgment (M-93417) is GRANTED; claimant's cross motion for summary judgment (CM-93612) is DENIED; and claim number 129808 is DISMISSED.
October 7, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion for Summary Judgment, dated January 18, 2019; and Affirmation in Support of Defendant's Motion for Summary Judgment, affirmed by Michael T. Krenrich, AAG on January 18, 2019 with Exhibits A through P annexed thereto. 2. Affidavit of Stacey Fredenburgh, sworn to on January 18, 2019. 3. Affidavit of Claimant, sworn to on March 7, 2019. 4. Notice of Claimant's Cross-Motion for Summary Judgment, dated March 11, 2019; Affirmation, affirmed by Joel B. Rudin, Esq. on March 11, 2019 with Exhibits 1 through 13 annexed thereto; and Memorandum of Law in Support of Claimant's Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment, dated March 11, 2019. 5. Reply Affidavit of Stacey Fredenburgh, sworn to on April 10, 2019, with Exhibits A through L annexed thereto. 6. Affirmation in Opposition to Claimant's Cross-Motion for Summary Judgment and in Reply, affirmed by Michael T. Krenrich, AAG on April 12, 2019 with Exhibit A annexed thereto. 7. Reply Affirmation, affirmed by Joel B. Rudin, Esq. on April 30, 2019, with Exhibits 14 through 19 annexed thereto; and Reply Memorandum of Law in Support of Claimant's Cross-Motion for Summary Judgment, dated April 30, 2019.