| Donald v State of New York |
| 2010 NY Slip Op 04012 [73 AD3d 1465] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| Farrah Donald, Respondent, v State of New York, Appellant.(Claim No. 115414.) |
—[*1] McKain Law Firm, P.C., Rochester (Kevin K. McKain of counsel), forclaimant-respondent.
Appeal from an order of the Court of Claims (Frank P. Milano, J.), entered February 27,2009. The order granted the motion of claimant for partial summary judgment on liability anddenied the cross motion of defendant to dismiss the claim.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied, the cross motion is granted and the claim is dismissed.
Memorandum: Claimant was convicted upon his plea of guilty of criminal possession of aweapon in the third degree (Penal Law § 265.02 [former (4)]), a class D violent felony(§ 70.02 [1] [former (c)]). In a prior appeal, we affirmed the judgment convicting claimantof that offense (People v Donald, 5AD3d 1043 [2004], lv denied 3 NY3d 639 [2004]). Because Supreme Court hadfailed to impose a period of postrelease supervision, the Department of Correctional Services(DOCS) added a three-year period of postrelease supervision upon claimant's release fromprison. During that period of postrelease supervision, claimant was convicted of another offense.We also affirmed the judgment convicting claimant of the new offense in a prior appeal (People v Donald, 6 AD3d 1177[2004], lv denied 3 NY3d 639 [2004]). Claimant was returned to prison to serve thesentence remaining on his conviction of criminal possession of a weapon, the remaining periodof postrelease supervision and the sentence imposed on the new conviction. He was subsequentlyreleased from prison, however, when his petition for a writ of habeas corpus was grantedpursuant to People ex rel. Burch vGoord (48 AD3d 1306, 1307 [2008]), in which we concluded that "in the event that acourt does not impose a period of postrelease supervision as part of a defendant's sentence, thesentence has no postrelease supervision component" (see generally Matter of Garner v New York State Dept. of CorrectionalServs., 10 NY3d 358 [2008]; People v Sparber, 10 NY3d 457 [2008]).
Claimant thereafter commenced this action seeking damages based on his "unlawfulincarceration." In support of the claim, he contended that, because DOCS impermissibly addedthe three-year period of postrelease supervision to his sentence on the criminal possession of aweapon conviction, he was forced to spend an additional 676 days in prison. Based on our [*2]holding in Collins v State of New York (69 AD3d 46 [2009]), we concludethat the Court of Claims erred in granting claimant's motion for partial summary judgment onliability and in denying defendant's cross motion to dismiss the claim on the ground that it failedto state a cause of action (Donald vState of New York, 24 Misc 3d 329 [2009]).
Claimant contends that this case is distinguishable from Collins because the courtcould have exercised its discretion to impose a lesser period of postrelease supervision. Wereject that contention. At the time claimant was sentenced on his conviction for criminalpossession of a weapon, Penal Law § 70.45 (former [2]) stated that the period ofpostrelease supervision for a class D violent felony "shall be three years . . .provided, however, that when a determinate sentence is imposed [for such a felony], the court, atthe time of sentence, may specify a shorter period of [postrelease] supervision of not lessthan . . . [1½] years" (emphasis added). Pursuant to the law at that time, thethree-year period was imposed automatically if the court was silent with respect to postreleasesupervision (see e.g. People v Crump, 302 AD2d 901 [2003], lv denied 100NY2d 537 [2003]; People v Thweatt, 300 AD2d 1100 [2002]). Thus, the imposition ofthe three-year period of postrelease supervision by DOCS in this case was no less privileged thanthe imposition of the mandatory five-year period of postrelease supervision by the Division ofParole in Collins. In each case, the nonjudicial body imposed the default period ofpostrelease supervision consistent with the law at the time of sentencing and thus acted "beyond[its] limited jurisdiction" rather than in the absence of jurisdiction (Garner, 10 NY3d at362; see Collins, 69 AD3d at 52). Present—Scudder, P.J., Centra, Carni, Sconiersand Pine, JJ. [Prior Case History: 24 Misc 3d 329.]