| Nazario v State of New York |
| 2010 NY Slip Op 05844 [75 AD3d 715] |
| July 1, 2010 |
| Appellate Division, Third Department |
| Edgar Nazario, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Court of Claims (Collins, J.), entered March 13,2009, which, among other things, granted defendant's motion for summary judgment dismissingthe claim.
In March 2003, Supreme Court (Carroll, J.) sentenced claimant to a prison term of two yearsupon his plea of guilty of the crime of criminal possession of a weapon in the third degree.Although the Penal Law required the imposition of postrelease supervision (hereinafter PRS) tofollow claimant's incarceration (see Penal Law § 70.45 [former (1)]), the courtneglected to impose or otherwise address PRS at sentencing. Claimant was received into thecustody of the Department of Correctional Services (hereinafter DOCS) in April 2003 and wasthen conditionally released in October 2004, at which time DOCS administratively imposed athree-year period of PRS. In March 2005, claimant violated the terms of his PRS, and an arrestwarrant was issued. In March 2007, he was arrested and incarcerated. In July 2007, SupremeCourt (Dawson, J.), granted his application for a writ of habeas corpus, reasoning that "theperiod of PRS imposed administratively upon [claimant] [wa]s a nullity [and] he may not bedetained for violating PRS" (People ex rel. Mazario [sic] v Warden, 16Misc 3d 1109[A], 2007 NY Slip Op 51357[U], *3 [Sup Ct, Bronx County 2007]).
Claimant thereafter commenced this action alleging, among other things, false imprisonmentand malicious prosecution, based on his detention from March 2007 through July [*2]2007. Following joinder of issue, the Court of Claims granteddefendant's motion for summary judgment dismissing the claim and denied claimant's crossmotion for partial summary judgment on the issue of liability (Nazario v State of New York, 24 Misc3d 443, 461 [2009]). Claimant now appeals and we affirm.
Initially, we are unpersuaded that the Court of Claims erred in dismissing the claim soundingin malicious prosecution. In order to maintain such a cause of action, claimant must establish"(1) the commencement or continuation of a criminal proceeding by the defendant against theplaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence ofprobable cause for the criminal proceeding and (4) actual malice" (Romero v State of NewYork, 294 AD2d 730, 731 [2002] [citations omitted], appeal dismissed 98 NY2d 727[2002], lv denied 99 NY2d 503 [2002]). "Actual malice is defined as 'with knowledgethat it was false or with reckless disregard of whether it was false or not' " (Kelly v State ofNew York, 131 AD2d 176, 179-180 [1987], quoting Wolston v Reader's Digest Assn.,Inc., 443 US 157, 160 [1979]; see Harris v State of New York, 302 AD2d 716, 717[2003]; Hernandez v State of New York, 228 AD2d 902, 904 [1996]; Boose v City ofRochester, 71 AD2d 59, 69-70 [1979]), and in this case is conspicuously absent. Whileclaimant alleges that DOCS acted with malice when it administratively imposed a period of PRSon him in excess of its authority and in violation of CPL article 380 and established case law,case law at the time that he was placed on PRS and then violated its terms was consistent withDOCS's actions. At the time, many courts had taken up this issue and opined that PRS wasautomatically imposed by operation of law and DOCS was only enforcing that which wasalready there (see Matter of Garner vNew York State Dept. of Correctional Servs., 39 AD3d 1019, 1019 [2007], revd10 NY3d 358 [2008]; People vSparber, 34 AD3d 265, 265 [2006], mod 10 NY3d 457 [2008]; Matter of Deal v Goord, 8 AD3d769, 769-770 [2004], appeal dismissed 3 NY3d 737 [2004]; People vCrump, 302 AD2d 901, 902 [2003], lv denied 100 NY2d 537 [2003]; People vHollenbach, 307 AD2d 776 [2003], lv denied 100 NY2d 642 [2003]; People vBloom, 269 AD2d 838, 838 [2000], lv denied 94 NY2d 945 [2000]).
While we now know, with the benefit of hindsight, that in April 2008 the Court of Appealswould issue its opinion in Matter of Garner v New York State Dept. of CorrectionalServs. (supra), DOCS cannot be expected to predict a future change in New Yorklaw. There, the Court of Appeals confronted the same issue raised by this claimant—thelegality of the imposition of PRS by DOCS where the sentencing court had been silent withregard to PRS—and ruled that only a judge, not DOCS, had that authority. However,DOCS's administrative imposition of PRS on claimant preceded Garner, and DOCS wasentitled to rely upon the then-existing interpretation of the law by the lower courts in formulatinga policy for dealing with defendants covered by Penal Law § 70.45. As claimant has failedto establish malice under these facts, we need not address the other elements required to sustain aclaim of malicious prosecution.
Turning to the claim of false imprisonment, we are unpersuaded that the Court of Claimserred in finding that claimant's arrest and confinement was a privileged act, thus insulatingDOCS from liability. To establish false imprisonment, claimant must "show that: (1) thedefendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) theplaintiff did not consent to the confinement and (4) the confinement was not otherwiseprivileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert deniedsub nom. Schanbarger v Kellogg, 423 US 929 [1975]). An otherwise unlawful detention "isprivileged where the confinement was by arrest under a valid process issued by a court havingjurisdiction" (Collins v State of NewYork, 69 AD3d 46, 51 [2009] [citations omitted]; see Holmberg v County of [*3]Albany, 291 AD2d 610, 612 [2002], lv denied 98NY2d 604 [2002]; Harty v State of New York, 29 AD2d 243, 244 [1968], affd27 NY2d 698 [1970]) or parole authorities (see Nastasi v State of New York, 275 AppDiv 524, 525-526 [1949], affd 300 NY 473 [1949]).
Here, claimant has stipulated that his arrest and detention were pursuant to a parole warrant,and there is no claim that either the warrant was invalid on its face or that the Division of Parolelacked jurisdiction to issue the warrant. DOCS was under a duty to comply with what appearedto be a valid parole warrant, and its acts in confining claimant pursuant to that warrant, at thattime, although in excess of its jurisdiction, are privileged (see Donald v State of New York, 73 AD3d 1465, 1467 [2010];Collins v State of New York, 69 AD3d at 51-52; Harley v State of New York,186 AD2d 324, 325 [1992], appeal dismissed 81 NY2d 781 [1993]; Boose v City ofRochester, 71 AD2d at 66; Nastasi v State of New York, 275 App Div at 526).Accordingly, the Court of Claims properly granted defendant's motion for summary judgmentdismissing the claim asserting false imprisonment.
Finally, the Court of Claims properly dismissed claimant's negligence claim (see Simon v State of New York, 12AD3d 171 [2004]) and constitutional claim (see Waxter v State of New York, 33 AD3d 1180, 1181 [2006]; Lyles v State of New York, 2 AD3d694, 695-696 [2003], affd 3 NY3d 396 [2004]; Augat v State of New York,244 AD2d 835, 837 [1997], lv denied 91 NY2d 814 [1998]).
We have reviewed claimant's remaining contentions and find them to be without merit.
Spain, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts. [Prior Case History: 24 Misc 3d 443.]