Nazario v. State

• Decision Date: 01 July 2010
• Citation: 75 A.D.3d 715,905 N.Y.S.2d 328
• Parties: Edgar NAZARIO, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 328

75 A.D.3d 715

Edgar NAZARIO, Appellant,

v.STATE of New York, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

July 1, 2010.

Katona & Mir, L.L.P., New York City (Samiya N. Mir of counsel), for appellant.

Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), for respondent.

Before: SPAIN, J.P., ROSE, LAHTINEN, GARRY and EGAN JR., JJ.

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 dismissing the claim.

In March 2003, Supreme Court (Carroll, J.) sentenced claimant to a prison term of two years upon 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) to follow claimant's incarceration ( see Penal Law § 70.45 [former (1) ] ), the court neglected to impose or otherwise address PRS at sentencing. Claimant was received into the custody of the Department of Correctional Services (hereinafter DOCS) in April 2003 and was then conditionally released in October 2004, at which time DOCS administratively imposed a three-year period of PRS. In March 2005, claimant violated the terms of his PRS, and an arrest warrant was issued. In March 2007, he was arrested and incarcerated. In July 2007, Supreme Court (Dawson, J.), granted his application for a writ of habeas corpus, reasoning that "the period of PRS imposed administratively upon [claimant] [wa]s a nullity [and] he may not be detained for violating PRS" ( People ex rel. Mazario [sic] v. Warden, 16 Misc.3d 1109[A], 2007 N.Y. Slip Op. 51357[U], *3, 2007 WL 2012417 [Sup. Ct., Bronx County 2007] ).

Claimant thereafter commenced this action alleging, among other things, false imprisonment and malicious prosecution, based on his detention from March 2007 through July 2007. Following joinder of issue, the Court of Claims granted defendant's motion for summary judgment dismissing the claim and denied claimant's cross motion for partial summary judgment on the issue of liability (24 Misc.3d 443, 461, 884 N.Y.S.2d 580 [2009] ). Claimant now appeals and we affirm.

Initially, we are unpersuaded that the Court of Claims erred in dismissing the claim sounding in 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 the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" ( Romero v. State of New York, 294 A.D.2d 730, 731, 742 N.Y.S.2d 701 [2002], appeal dismissed 98 N.Y.2d 727, 749 N.Y.S.2d 476, 779 N.E.2d 187 [2002], lv. denied 99 N.Y.2d 503, 753 N.Y.S.2d 806, 783 N.E.2d 896 [2002] [internal quotation marks and citations omitted] ). "Actual malice is defined as 'with knowledge that it was false or with reckless disregard of whether it was false or not' " ( Kelly v. State of New York, 131 A.D.2d 176, 179-180, 520 N.Y.S.2d 959 [1987], quoting Wolston v. Reader's Digest Assn., 443 U.S. 157, 160, 99 S.Ct. 2701, 61 L.Ed.2d 450 [1979]; see Harris v. State of New York, 302 A.D.2d 716, 717, 756 N.Y.S.2d 302 [2003]; Hernandez v. State of New York, 228 A.D.2d 902, 904, 644 N.Y.S.2d 380 [1996]; Boose v. City of Rochester, 71 A.D.2d 59, 69-70, 421 N.Y.S.2d 740 [1979] ), and in this case is conspicuously absent. While claimant alleges that DOCS acted with malice when it administratively imposed a period of PRS on 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 with DOCS's actions. At the time, many courts had taken up this issue and opined that PRS was automatically imposed by operation of law and DOCS was only enforcing that which was already there ( see Matter of Garner v. New York State Dept. of Correctional Servs., 39 A.D.3d 1019, 1019, 831 N.Y.S.2d 923 [2007], rev.10 N.Y.3d 358, 859 N.Y.S.2d 590, 889 N.E.2d 467 [2008]; People v. Sparber, 34 A.D.3d 265, 265, 823 N.Y.S.2d 405 [2006], mod. 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008]; Matter of Deal v. Goord, 8 A.D.3d 769, 769-770, 778 N.Y.S.2d 319 [2004], appeal dismissed 3 N.Y.3d 737, 786 N.Y.S.2d 814, 820 N.E.2d 293 [2004]; People v. Crump, 302 A.D.2d 901, 902, 753 N.Y.S.2d 793 [2003], lv. denied 100 N.Y.2d 537, 763 N.Y.S.2d 2, 793 N.E.2d 416 [2003]; People v. Hollenbach, 307 A.D.2d 776, 762 N.Y.S.2d 860 [2003], lv. denied 100 N.Y.2d 642, 769 N.Y.S.2d 208, 801 N.E.2d 429 [2003]; People v. Bloom, 269 A.D.2d 838, 838 [2000], lv. denied 94 N.Y.2d 945, 710 N.Y.S.2d 1, 731 N.E.2d 618 [2000] ).

While we now know, with the benefit of hindsight, that in April 2008 the Court of Appeals would issue its opinion in Matter of Garner v. New York State Dept. of Correctional Servs., supra, DOCS cannot be expected to predict a future change in New York law. There, the Court of Appeals confronted the same issue raised by this claimant-the legality of the imposition of PRS by DOCS where the sentencing court had been silent with regard 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 was entitled to rely upon the then-existing interpretation of the law by the lower courts in formulating a policy for dealing with defendants covered by Penal Law § 70.45. As claimant has failed to establish malice under these facts, we need not address the other elements required to sustain a claim of malicious prosecution.

Turning to the claim of false imprisonment, we are unpersuadedthat the Court of Claims erred in finding that claimant's arrest and confinement was a privileged act, thus insulating DOCS from liability. To establish false imprisonment, claimant must "show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged" ( Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert. denied 423 U.S. 929, 423 U.S. 929, 96 S.Ct. 277 [1975] ). An otherwise unlawful detention "is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction" ( Collins v. State of New York, 69 A.D.3d 46, 51, 887 N.Y.S.2d 400 [2009] [internal quotation marks and citations omitted]; see Holmberg v. County of Albany, 291 A.D.2d 610, 612, 738 N.Y.S.2d 701 [2002], lv. denied 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016 [2002]; Harty v. State of New York, 29 A.D.2d 243, 244, 287 N.Y.S.2d 306 [1968], affd. 27 N.Y.2d 698, 314 N.Y.S.2d 14, 262 N.E.2d 220 [1970] ) or parole authorities ( see Nastasi v. State of New York, 275 App.Div. 524, 525-526, 90 N.Y.S.2d 377 [1949], affd. 300 N.Y. 473, 88 N.E.2d 658 [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 Parole lacked jurisdiction to issue the warrant. DOCS was under a duty to comply with what appeared to be a valid parole warrant, and its acts in confining claimant pursuant to that warrant, at that time, although in excess of its jurisdiction, are privileged ( see Donald v. State of New York, 73 A.D.3d 1465, 1467, 900 N.Y.S.2d 818 [2010]; Collins v. State of New York, 69 A.D.3d at 51-52, 887 N.Y.S.2d 400; Harley v. State of New York, 186 A.D.2d 324, 325, ...