Opinion
# 2012-041-057 Claim No. 116013 Motion No. M-81492
07-25-2012
VELASQUEZ v. THE STATE OF NEW YORK
Synopsis
Claim alleging that defendant unlawfully confined claimant by adding term of post-release supervision to claimant's criminal sentence is dismissed for failure to state a cause of action. Case information
+-----------------------------------------------------------------+ ¦UID: ¦2012-041-057 ¦ +---------------------------------+-------------------------------¦ ¦Claimant(s): ¦ANEXSY VELASQUEZ ¦ +---------------------------------+-------------------------------¦ ¦Claimant short name: ¦VELASQUEZ ¦ +---------------------------------+-------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +---------------------------------+-------------------------------¦ ¦Defendant(s): ¦THE STATE OF NEW YORK ¦ +---------------------------------+-------------------------------¦ ¦Footnote (defendant name) : ¦ ¦ +---------------------------------+-------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +---------------------------------+-------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +---------------------------------+-------------------------------¦ ¦Claim number(s): ¦116013 ¦ +---------------------------------+-------------------------------¦ ¦Motion number(s): ¦M-81492 ¦ +---------------------------------+-------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +---------------------------------+-------------------------------¦ ¦Judge: ¦FRANK P. MILANO ¦ +---------------------------------+-------------------------------¦ ¦Claimant's attorney: ¦NONE ¦ +---------------------------------+-------------------------------¦ ¦ ¦HON. ERIC T. SCHNEIDERMAN ¦ ¦ ¦ ¦ ¦ ¦New York State Attorney General¦ ¦Defendant's attorney: ¦ ¦ ¦ ¦By: Michael T. Krenrich, Esq. ¦ ¦ ¦ ¦ ¦ ¦Assistant Attorney General ¦ +---------------------------------+-------------------------------¦ ¦Third-party defendant's attorney:¦ ¦ +---------------------------------+-------------------------------¦ ¦Signature date: ¦July 25, 2012 ¦ +---------------------------------+-------------------------------¦ ¦City: ¦Albany ¦ +---------------------------------+-------------------------------¦ ¦Comments: ¦ ¦ +---------------------------------+-------------------------------¦ ¦Official citation: ¦ ¦ +---------------------------------+-------------------------------¦ ¦Appellate results: ¦ ¦ +---------------------------------+-------------------------------¦ ¦See also (multicaptioned case) ¦ ¦ +-----------------------------------------------------------------+ Decision
Defendant moves to dismiss the claim for failure to state a cause of action. Claimant has not opposed the motion.
The claim alleges that defendant administratively, and unlawfully, added a five-year period of postrelease supervision to the criminal three-year determinate sentence imposed upon claimant by the sentencing court, resulting in claimant being imprisoned for violating the terms of the administratively imposed postrelease supervision. The claim sounds in wrongful confinement and negligence.
To establish that he was wrongfully confined, claimant must prove that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
In Ortiz v State of New York (78 AD3d 1314, 1315 [3d Dept 2010], affd Donald v State of New York, 17 NY3d 389 [2011]), the court held, under similar circumstances, that "DOCS's actions in administratively imposing postrelease supervision in the first place and also in confining individuals for a violation of administratively imposed postrelease supervision are privileged."
Because the alleged confinement was privileged, the claim fails to state a cause of action for wrongful confinement.
Claimant also fails to state a cause based upon defendant's purported negligence in imposing postrelease supervision. In Donald, again under similar circumstances, the Court of Appeals rejected a cause of action against defendant based in negligence:
"[N]egligence claims are barred for another reason: the State is immune from liability for the discretionary acts of its officials (Tango v Tulevech, 61 NY2d 34, 40 [1983] ['when official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice']; Lauer v City of New York, 95 NY2d 95, 99 [2000] ['A public employee's discretionary acts . . . may not result in the municipality's liability even when the conduct is negligent']; McLean v City of New York, 12 NY3d 194, 203 [2009] ['Government action, if discretionary, may not be a basis for liability']).Where the issue is governmental immunity, an action is considered 'discretionary' if it involves 'the exercise of reasoned judgment' (Lauer, 95 NY2d at 99). DOCS's actions in recording PRS terms as part of claimants' sentences were discretionary in that sense. In each of these cases, DOCS was presented with a prisoner sentenced to a determinate prison term, for whom PRS was mandatory under state law. DOCS made the 'reasoned judgment' that it should interpret their sentences as including PRS, though the sentences rendered by the courts did not mention it. We held in Garner that that judgment was mistaken, but it clearly was just that--a mistake in judgment--not a ministerial error, like mistranscribing an entry or confusing the files of two different prisoners.
Making judgments as to the scope of its own authority in interpreting the directions it has received from the court system is a normal and legitimate part of DOCS's function." (Donald, 17 NY3d at 395-396)
The claim fails to state a negligence-based cause of action.
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
July 25, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed April 19, 2012;
2. Affirmation of Michael T. Krenrich, dated April 19, 2012, and annexed exhibit.