New York Supreme Court, Appellate Division, Fourth Department

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People ex rel. SIDNEY BURCH v Goord
2008 NY Slip Op 01445
Decided on February 20, 2008
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on February 20, 2008

SUPREME COURT OF THE STATE OF NEW YORK


Appellate Division, Fourth Judicial Department

PRESENT: HURLBUTT, J.P., SMITH, CENTRA, GREEN, AND GORSKI, JJ.

257 KAH 07-01086


[*1]THE PEOPLE OF THE STATE OF NEW YORK EX REL. SIDNEY BURCH, PETITIONER-APPELLANT,

v

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT-RESPONDENT.



Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered January 15, 2007 in a habeas corpus proceeding. The judgment denied the petition.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER-APPELLANT.
ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (EMIL J. BOVE, JR., OF COUNSEL), FOR RESPONDENT-RESPONDENT.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the writ of habeas corpus is sustained, and


It is further ORDERED that respondent is directed to discharge petitioner from custody forthwith.
Memorandum: On September 7, 2004, petitioner admitted to violating the terms of a sentence of probation imposed in Supreme Court, Bronx County, upon his conviction of attempted robbery in the second degree. He was sentenced to a determinate term of imprisonment of two years, but the court did not impose a period of postrelease supervision. During petitioner's term of imprisonment, respondent, New York State Department of Correctional Services (DOCS), added a three-year period of postrelease supervision to petitioner's sentence. Petitioner was released from prison in May 2005, but in July 2005 he was declared delinquent by the Division of Parole and was returned to DOCS, where he remains imprisoned.

Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that he was being illegally detained beyond the maximum two-year term of imprisonment imposed by the court. In denying the petition, Supreme Court relied in part on our decisions in People v Hollenbach (307 AD2d 776, lv denied 100 NY2d 642) and People v Crump (302 AD2d 901, lv denied 100 NY2d 537). We reverse, however, because we agree with the decision of the Second Circuit Court of Appeals that, in the event that a court does not impose a period of postrelease supervision as part of a defendant's sentence, the sentence has no postrelease supervision component (Earley v Murray, 451 F3d 71, 76, reh denied 462 F3d 147; see People ex rel. [*2]Gerard [Colarusso] v Kralik, 44 AD3d 804, 804-805; People v Martinez, 40 AD3d 1012; see generally Hill v United States ex rel. Wampler, 298 US 460, 464). As the Court of Appeals has stated, postrelease supervision is a "direct consequence of a criminal conviction" (People v Catu, 4 NY3d 242, 244; see People v Louree, 8 NY3d 541, 545), and we conclude that it therefore must be expressly imposed by the court (see Earley, 451 F3d at 76). To the extent that our prior decisions in Hollenbach and Crump hold otherwise, they are no longer to be followed (see People ex rel. Eaddy v Goord, ___ AD3d ___ [Feb. 20, 2008]).
Entered: February 20, 2008
JoAnn M. Wahl
Clerk of the Court

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People ex rel. WILLIAM EADDY v Goord
2008 NY Slip Op 01446
Decided on February 20, 2008
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on February 20, 2008

SUPREME COURT OF THE STATE OF NEW YORK


Appellate Division, Fourth Judicial Department

PRESENT: HURLBUTT, J.P., SMITH, CENTRA, GREEN, AND GORSKI, JJ.

263 KAH 07-00240


[*1]THE PEOPLE OF THE STATE OF NEW YORK EX REL. WILLIAM EADDY, PETITIONER-APPELLANT,

v

GLENN S. GOORD, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT-RESPONDENT.



Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered December 5, 2006 in a habeas corpus proceeding. The judgment denied the petition.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER-APPELLANT.
ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (EMIL J. BOVE, JR., OF COUNSEL), FOR RESPONDENT-RESPONDENT. It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the habeas corpus proceeding is converted to a CPLR article 78 proceeding in the nature of prohibition, the petition is granted, and judgment is granted in favor of petitioner as follows:


It is ADJUDGED that respondent is prohibited from adding a period of postrelease supervision to petitioner's sentence of imprisonment.
Memorandum: On July 5, 2001, petitioner was sentenced in Supreme Court, Queens County, to a determinate term of imprisonment of six years upon his conviction of rape in the first degree. The court did not impose a period of postrelease supervision. During petitioner's imprisonment, respondent, New York State Department of Correctional Services (DOCS), added a five-year period of postrelease supervision to petitioner's sentence of imprisonment. At the time of his release from imprisonment in December 2005, petitioner refused to sign a form indicating that he would adhere to the terms of postrelease supervision, and he was returned to DOCS in May 2006 following his arrest for violating those terms. Petitioner then commenced this proceeding seeking a writ of habeas corpus on the ground that he was being illegally detained beyond the six-year term of imprisonment imposed by the court. Here, as in People ex rel. Burch v Goord (___ AD3d ___ [Feb. 20, 2008]), the court relied in part on our decisions in People v Hollenbach (307 AD2d 776, lv denied 100 NY2d 642) and People v Crump (302 AD2d 901, lv denied 100 NY2d 537) in denying the petition. Petitioner has subsequently been released to the Division of Parole until December 2010.

We note at the outset that a writ of habeas corpus is no longer available to petitioner inasmuch as he has been released on parole (see People ex rel. Murray v Bartlett, 89 NY2d [*2]1002). Nevertheless, we convert this proceeding to one pursuant to CPLR article 78 in the nature of prohibition, and we consider the merits of the appeal (see CPLR 103 [c]; People ex rel. McBride v Alexander, 46 AD3d 849; see generally People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391, 398).

For the same reasons set forth in our decision in Burch, we reverse the judgment herein. We again note that, to the extent that our prior decisions in Hollenbach and Crump hold otherwise, they are no longer to be followed.
Entered: February 20, 2008
JoAnn M. Wahl
Clerk of the Court