For Claimant: ARNOLD J. LEVINE, Esq.
For Defendant: ANDREW M. CUOMO, Attorney General of the State of New York, Thomas R. Monjeau, Assistant. Attorney General
W. BROOKS DeBOW, Judge of the Court of Claims.
Claimant seeks to recover damages for 91 days of wrongful imprisonment resulting from the Division of Parole's alleged miscalculation of his release date. The plenary trial of this claim was conducted on March 3, 2010 in Albany, New York. Claimant presented his testimony; defendant called no witnesses. Claimant offered two documents into evidence and defendant offered one document, all three of which were received into evidence. After listening to claimant's testimony and observing his demeanor while testifying, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court makes the following findings of fact and conclusions of law.
Claimant was arrested on May 8, 1999 for the crime of Criminal Possession of a Controlled Substance (CPCS) in the Third Degree with intent to sell, a Class B felony. On August 18, 1999, claimant pleaded guilty to Attempted CPCS with intent to sell, a Class C Felony, in satisfaction of the May 8, 1999 charge, and was sentenced to an indeterminate term of imprisonment of three to six years. At the time of his arrest, conviction and subsequent incarceration, claimant was under the supervision of the Division of Parole, having been released from prison on a prior indeterminate sentence of three to six years for a conviction upon plea for Attempted Criminal Sale of a Controlled Substance (CSCS), a Class C felony. 
Claimant was released from prison to parole supervision on May 21, 2003. On February 15, 2005, claimant was arrested for the crime of CPCS with intent to sell in the Third Degree, a Class B felony. On February 18, 2005, claimant pleaded guilty to CPCS in the Seventh Degree, a Class A misdemeanor, and was sentenced to time served, with his parole status remaining unchanged. On November 29, 2005, claimant was arrested for the crime of CPCS in the Seventh Degree, a Class A misdemeanor, was convicted of that charge upon his guilty plea, and was sentenced to a term of incarceration of ninety days. On March 23, 2006, claimant was received by the Department of Correctional Services (DOCS) for violating the conditions of his parole, and was thereafter released to parole supervision on July 6, 2006.
The Court received into evidence claimant's Notice to Admit, dated June 5, 2009 (Claimant's Exhibit 1), and defendant's response to claimant's Notice of Admit (Claimant's Exhibit 2). In that response, defendant admitted that: (1) claimant was confined from April 6, 2006 to July 6, 2006 by DOCS; (2) claimant was entitled to be released from confinement on April 6, 2006 but was not released from confinement until July 6, 2006; (3) defendant intended to confine claimant from April 6, 2006 to July 6, 2006 under a mistake of fact; and (4) the Division of Parole was required to calculate a release date of April 6, 2006 for claimant and communicate that to DOCS, but it did not accurately calculate claimant's release date and communicated the incorrect release date of July 6, 2006 to DOCS. Claimant testified that he was aware of his confinement between April 6, 2006 and July 6, 2006 and did not consent to the confinement.
Claimant was released to parole supervision on July 6, 2006 to the residence he shared with his common-law wife of 27 years, Yvette Nazario.  Among the general conditions of claimant's release (see Defendant's Exhibit A, Certificate of Release to Parole Supervision, dated July 6, 2006), claimant: (1) was required to report to his parole officer; (2) was prohibited from leaving New York State without permission; (3) was required to permit his parole officer to visit him at his residence and/or place of employment and permit the search of his person, residence or property; (4) was prohibited from being in the company of any person he knew to have a criminal record; and (5) could not own, possess or purchase a shotgun, rifle or firearm. Further, claimant was specifically: (a) required to provide a DNA sample for the New York State DNA Index; (b) required to submit to drug testing; (c) prohibited from consuming alcoholic beverages and frequenting establishments where alcohol was served as its main business without permission; and (d) required to abide by a curfew set by his parole officer.
Claimant contends that he was wrongfully imprisoned for 91 days, because he should have been released by DOCS to parole supervision on April 6, 2006 but remained incarcerated until July 6, 2006. The elements of a cause of action for unlawful confinement are "that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged" (Martinez v City of Schenectady, 97 N.Y.2d 78, 85 ; Broughton v State of New York, 37 N.Y.2d 451, 456  cert denied sub nom. Schanbarger v Kellogg, 423 U.S. 929 ). The first three elements of this cause of action are undisputedly and clearly established by defendant's responses to claimant's notice to admit and claimant's credible testimony that he was aware of and did not consent to the confinement. Therefore, defendant's liability turns upon whether claimant's confinement during the 91 days was privileged.
Defendant maintains that claimant's confinement was privileged because he was arrested and confined pursuant to a facially valid order issued by a Court with proper jurisdiction directing confinement. Defendant also argues that claimant's confinement was privileged as he was also held on a parole warrant and a proper and valid sentence and commitment order issued on March 23, 2006. The Court, however, cannot properly consider the issue of whether claimant was held pursuant to a facially valid court order, a Division of Parole warrant, or a sentence and commitment order inasmuch as no such documents were proffered by defendant. Because those instruments of legal process are not in evidence, the Court cannot ascertain the facial validity of them (see Holmberg v County of Albany, 291 A.D.2d 610, 612-613 [3d Dept 2002]; Nastasi v State of New York, 275 App Div 524, 526 [3d Dept 1949], affd 300 NY 473 ).
In the absence of evidence of legal process that would authorize DOCS to hold claimant past April 6, 2006, the burden rests upon defendant - the party charged with the tort of wrongful confinement - to prove that the confinement was otherwise privileged (see Broughton, supra, at 458; Hollender v Trump Village Cooperative, Inc., 58 N.Y.2d 420, 425 ; Gonzalez v State of New York, 110 A.D.2d 810, 812 , appeal dismissed 67 N.Y.2d 647 ). Other than factually unsupported statements of defense counsel, there is no evidence in the record of any legal authority that would authorize defendant to confine claimant during that period. Moreover, defendant's admissions in response to claimant's Notice to Admit that claimant was entitled to be released from confinement on April 6, 2006 and that the Division of Parole inaccurately calculated claimant's release date contradict defense counsel's argument that claimant's confinement was privileged. Because defendant did not demonstrate that claimant's confinement was pursuant to a valid order or warrant, or that said confinement was otherwise privileged, the Court concludes that claimant was unlawfully confined for a period of 91 days, and that defendant is liable to claimant.
All of the evidence pertinent to claimant's damages was presented in claimant's testimony, as follows. During claimant's incarceration from April 6, 2006 through July 6, 2006, he was in four different state correctional facilities  and he was aware that he was supposed to have been released from DOCS custody to parole supervision on April 6, 2006.  As compared to prior periods of incarceration when claimant knew that he was serving "time he had to do, "  claimant testified that it was more difficult emotionally for him to be incarcerated because he was doing time he was not supposed to do. Claimant testified that he was harassed by other inmates who knew that he was supposed to be released because they knew that he could not defend himself for fear of incurring a disciplinary infraction ...