Recently a NY Supreme Court enteretained a habeas corpus petition dealing with the imposition of post release supervision by the DOC as opposed to by the sentencing court -- commonplace in New York. The following unpublished decision is yet another in which it has been held that post release supervision imposed by the Department of Correction is a nullity and unenforceable.


________________________________________

PEOPLE v. WARDEN, GEORGE R. VIERNO CTR., 75123-07 (10-23-2007)

2007 NY Slip Op 52089(U)

THE PEOPLE OF THE STATE OF NEW YORK EX REL. VICTOR SANTOS, Petitioner,

v. WARDEN, GEORGE R. VIERNO CENTER, and NEW YORK STATE DIVISION OF

PAROLE, Respondent.

75123-07.

Supreme Court of the State of New York,

Bronx County.

Decided October 23, 2007.


[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MICHAEL A. GROSS, J.

Upon a plea of guilty, petitioner was convicted of Rape in the First
Degree in Bronx County Supreme Court.[fn1] On January 7, 2000,petitioner was sentenced by the Honorable Barbara F. Newman as a first-time felony
offender to a determinate term of imprisonment of seven years. As the
record reflects, the sentencing court did not state that petitioner's
sentence included a period of post-release supervision as mandated under P.L. § 70.45. The clerk of the court also failed to record any period of post-release supervision on petitioner's commitment papers.

On December 6, 2005, petitioner was released from prison. Upon his
release, the Division notified petitioner that he was subject to a
five-year period of post-release supervision, which he immediately began serving. On July 9, 2006, petitioner was declared delinquent of the conditions of his release. On July 19, 2006, a parole warrant was issued against petitioner, who was charged with violating the conditions of his release. A final hearing was held on July 31, 2006. Petitioner was found in violation of the terms of his post-release supervision, and a time assessment of twelve months was imposed upon him. He was ordered to be held until December 15, 2010 the maximum expiration date of his post-release supervision.

Page 2

By papers dated February 24, 2007, petitioner filed a motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10 on the ground that his guilty plea was not knowingly, intelligently and voluntarily made because he was not advised that his sentence would include a period of post-release supervision. Alternatively, defendant moved to have the Court modify his illegal sentence to a determinate term of imprisonment of five years and a two-and-one-half-year period of post-release supervision.

In a decision rendered in August of 2007, the sentencing court
summarily denied petitioner's motion to vacate his conviction pursuant to C.P.L. § 440.30 (see People v. Santos, Ind. No. 8421/98 [Sup. Ct. Bronx County, August 2007] [Newman, J.]). The Court held that petitioner's claim that his plea was not entered knowingly, voluntarily and intelligently was contradicted by the plea record which conclusively established that the Court had advised him that his sentence would include a five-year period of post-release supervision (id. at 2-3). However, the Court further held that because it did not mention post-release supervision when it imposed sentence upon the petitioner as required by P.L. § 70.45, the "sentence as pronounced on January 7, 2000, was not legal" (id. at 3). Because petitioner was not a second felony offender, "the length of the period of post-release supervision was within the court's discretion" (id.). Accordingly, relying on People v. Hill, 39 AD3d 1 (1st Dept. 2007), the Court held that the Department of Correctional Services "did not have authority to impose any period of post-release supervision administratively" (id.). The court exercised its inherent power to correct petitioner's illegal sentence by resentencing him in accordance with P.L. § 70.45. On August 30, 2007, petitioner was resentenced to a determinate term of imprisonment of seven years with a five-year period of post-release supervision.

Petitioner's Writ of Habeas Corpus

During the pendency of his C.P.L. § 440 motion, petitioner filed the
instant writ of habeas corpus for an order vacating his parole warrant
and reinstating him to parole supervision based upon his claim that he
was illegally sentenced to a period of post-release supervision. In his
writ, petitioner alleges that the "period of post-release supervision
imposed on petitioner is a nullity because it was imposed
administratively after petitioner's sentencing, and not by the court at
the time of sentencing." This Court deferred decision until the
resolution of petitioner's 440 motion, as discussed supra.

Petitioner's Claims

In his papers, petitioner claims that post-release supervision was
illegally imposed by the Division.Relying on Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), petitioner claims that the sentencing court had sole
authority to impose post-release supervision, and that it failed to do so at the time of sentencing. In Earley, the petitioner was not informed of post-release supervision at the time of his sentence. He subsequently filed a writ of habeas corpus, claiming that the Department of Correctional Services (DOCS) impermissibly added the term of post-release supervision. The Second Circuit sustained the writ, holding that the only authorized sentence was the determinate sentence imposed by the judge, and the additional provision for post-release supervision added by DOCS was invalid (id. at 75). It held that the "imposition of sentence is a judicial act" and that the "penalty administratively added by [DOCS] was . . . never a part of sentence" (id. At 76). Petitioner further argues that "[i]n the wake of Earley, the Appellate Division, First Department, has held that post-release supervision may not be administratively imposed on a first-time felony offender," citing People v. Hill, 39 AD3d 1(1st

Page 3

Dept. 2007). Applying the holdings in Earley and Hill to the facts in
this case, petitioner claims that his parole warrant should be vacated
since post-release supervision was improperly imposed by the Division.

In response, the Division claims that post-release supervision was
imposed automatically by operation of law at the time of sentencing,
relying on the First Department's decisions in People v. Thomas,
35 AD3d 192 (1st Dept. 2006); People v. Sparber, 34 AD3d 265 (1st Dept.
2006); People Lingle, 34 AD3d 287 (1st Dept. 2006). It urges this Court
to reject the Second Circuit's decision in Earley since it is not binding on state courts. The Division further contends that where the court fails to impose a period of post-release supervision, the issue should be addressed by the sentencing court in a motion to vacate judgment pursuant to C.P.L. § 440 or on direct appeal, not by writ of habeas corpus.[fn2]

Conclusion of Law

Pursuant to Penal Law § 70.45(1), "each determinate sentence also
includes, as a part thereof, an additional period of post-release
supervision." The period of post-release supervision for a determinate
sentence "shall be five years" (P.L. § 70.45[2]). However, there are
exceptions to this rule. When a defendant is a first violent felony
offender under P.L. § 70.02, the sentencing court has discretion with
respect to the term of post-release supervision imposed.[fn3] Where a
first offender has been convicted of a class B or C violent felony
offense, the Court had discretion to impose a period of post-release
supervision of "not less than two and one-half years nor more than five
years" (P.L. § 70.45[2][f]).

Given the statutory mandate of post-release supervision, the issue
presented is whether post-release supervision was lawfully imposed in
this case despite the sentencing court's failure expressly to include it at the time of sentencing. Since Earley has been decided, the Appellate Division, First Department, has rendered several decisions dealing with this very issue. Upon review of the case law, it appears that the First Department has created a significant distinction between first-time violent felony offenders (P.L. § 70.02) and second felony offenders subject to a determinate sentence (P.L. §§ 70.04, 70.06[6]) with respect to the imposition of post-release supervision .

In sentencing such a second felony offender, a court has no discretion regarding the amount of post-release supervision which it must impose. Accordingly, the First Department has held that the mandatory five-year period of post-release supervision is automatically included in a determinate sentence regardless of whether the sentencing judge expressly included it as a part of sentence (see People v. Thomas, 35 AD3d 192 [1st Dept. 2006]; People v. Sparber, 34 AD3d 265 [1st Dept. 2006]; People Lingle, 34 AD3d 287 [1st Dept. 2006]).[fn4] In People v. Lingle, the defendant sought to have

Page 4

the five-year period of post-release supervision stricken from his
sentence on the ground that it was "not part of the sentence that the
court pronounced orally, in his presence in open court, and that it was
not added by way of a judicial proceeding" (34 AD3d at 289). In rejecting the defendant's claim, the Court held that the "Penal Law does not merely direct or require a court to impose [post-release supervision] when imposing a determinate sentence; instead, it provides that Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision' which, in defendant's situation, is precisely five years, with no discretion available" (34 AD3d at 289; see also Thomas, 35 AD3d at 193; Sparber, 34 AD3d at 265 [both holding that mandatory post-release supervision automatically imposed upon second felony offenders despite sentencing court's silence]; see generally People v. Lemos, 34 AD3d 343 [1st Dept. 2006]). Therefore, even if the court's oral sentence was silent regarding post-release supervision, it "necessarily included a five-year term thereof" (Thomas, 35 AD3d at 193; Sparber, 34 AD3d at 265; Lingle, 34 AD3d at 289; see also People ex rel. Garner v. Warden, 40 AD3d 243 [1st Dept. 2007] [despite sentencing court's silence, post-release supervision not unauthorized upon second violent felony offender simply because it was enforced by corrections or parole]; People v. Rivera, 36 AD3d 563 [1st Dept. 2007]).

However, in the recent decision of People v. Hill, 39 AD3d 1 (1st
Dept. 2007), the First Department created a distinction between first
violent felony offenders and second felony offenders subject to a
determinate sentence with respect to the imposition of post-release
supervision.[fn5] Following its earlier holdings in Lingle, Sparber and
Thomas, the Court stated, in dictum, that "it is sensible to construe
Penal Law § 70.45(2) to deem a five-year period of post-release
supervision to have been imposed whenever a sentencing court fails to
specify the period upon sentencing a second felony offender to a
determinate sentence for a violent felony offense pursuant to Penal Law
§ 70.04 or 70.06. After all, no period of post-release supervision is
authorized other than the five-year period specified" (Hill, 39 AD3d at
10).However, that Court reached a very, different conclusion with respect to first violent felony offenders for whom Penal Law § 70.45 vests the trial court with discretion as to the period of post-release supervision. The Court held that for all first

Page 5

violent felony offenders for whom "the statute permits the trial court to choose from within a range of periods of post-release supervision, . . . no period within the ranges . . . enjoys any presumptive status" (id. at 11). The Court noted that "the statute cannot be construed to authorize [DOCS] to impose the appropriate period of post-release supervision whenever a trial court fails to perform the duty the statute enjoins it to perform. No language in the statute supports such a construction and determining the appropriate sentence within the ranges prescribed by Legislature is quintessentially a judicial function" (id. at 11, fn.7). The Court further stated that "it is sufficient to note that a significant constitutional issue would be raised if Penal Law § 70.45(2) were construed to mandate the longest of the authorized periods of post-release supervision (five years for a class B or C violent felony offense . . .) whenever sentence is imposed pursuant to Penal Law § 70.02 and the sentencing court fails to specify the period of post-release supervision. Avoiding that constitutional question provides another reason to conclude that under such circumstances no period of post-release supervision is added to a defendant's sentence by operation of law" (id.). Thus, the Court held that the "better conclusion is that no period of post-release supervision is imposed by operation of law when a sentencing court does not specify a period upon sentencing a defendant for a violent felony offense pursuant to P.L. § 70.02" (id. at 13).[fn6]

Since Earley and Hill have been decided, there have been several lower court cases which have similarly held that no period of post-release supervision is imposed by operation of law upon a first violent felony offender where the court has discretion with respect to the amount of post-release supervision to impose (see People ex rel. Mazario, 16 Misc 3d 1109A [Sup. Ct. Bronx Co. 2007] [Dawson, J.]; People ex rel. White v.Warden, 15 Misc 3d 360 [Sup. Ct. Bronx Co. 2007] [Marcus, J.]; People ex rel. Johnson v. Warden, 15 Misc 3d 1102A [Sup. Ct. Bronx Co. 2007] [Adler, J.]; People ex rel. Nelson v. Warden, Index No. 75121/07 [Sup. Ct. Bronx Co., July 24, 2007] [Fisch, J.]; People ex rel. Hyter v. Warden, Index No. 75091/07 [Sup. Ct. Bronx Co., June 8, 2007] [Clancy, J.]; People ex rel. Feminella et al v. New York State Div. of Parole, Index No. 51179/07 [Sup. Ct. Bronx Co., May 11, 2007] [Fabrizio, J.]; People ex rel. Brown v. Warden, Index No. 75036/07 [Sup. Ct. Bronx. Co., April 4, 2007] [Boyle, J.]; People ex rel. Franklin v. Warden, Index No. 75091/07 [Sup. Ct. Bronx Co., March 12, 2007] [Clancy, J.]). In each of those cases, the court sustained the petitioner's writ of habeas corpus and vacated the parole warrant where the sentencing court failed to impose any period of post-release supervision on a first-time violent felony offender.

In this case, petitioner was sentenced as a first-time violent felony
offender, having been convicted of Rape in the First Degree, a Class B
violent felony. Thus, the sentencing court had discretion to impose a
period of post-release supervision ranging from two-and one-half years
to five years. However, no period of post-release supervision was
specifically imposed by the sentencing court or recorded by the clerk on the commitment papers. Nevertheless, DOCS

Page 6

administratively imposed a five-year period of post-release supervision, which is the maximum period authorized by law. In view of the First Department's decision in Hill which is binding on this Court and the persuasive lower court cases which have since followed Hill, this Court finds that post-release supervision was not automatically imposed by operation of law upon petitioner as a first-time violent felony offender (see Hill, 39 AD3d at 13). Accordingly, since there was no post-release supervision included in petitioner's sentence, the five-year period of post-release supervision administratively imposed by DOCS is a legal nullity. Since he can not be detained for violating post-release supervision, petitioner's writ of habeas corpus is sustained (see Mazario, 16 Misc 3d at 1109A; White, 15 Misc 3d 368-71; Johnson, 15 Misc 3d at 1102A).

In any event, this Court's review of this claim is barred by the
doctrine of res judicata (see Matter of Rodriguez v. Rodriguez,
189 AD2d 735 [1st Dept. 1993]; Matter of Woodard v. Coughlin, 165 AD2d 968 [3d Dept. 1990]). Petitioner has already raised his claim that DOCS
illegally imposed a period of post-release supervision in his C.P.L. §
440.10 motion before the sentencing court. While denying petitioner's
motion to set aside his conviction, the sentencing court found that
petitioner's sentence was, indeed, illegal because it failed to include
post-release supervision as mandated under the Penal Law. The court
further held that DOCS did not have authority to impose administratively any period of post-release supervision upon petitioner as a first-time violent felon where the court has discretion with respect to the amount of post-release supervision to impose (Santos, supra at 3). Thus, under the doctrine of res judicata, this issue has already been raised and decided by the sentencing court (see Garner, 40 AD3d at 243 [petitioner's claim regarding illegal imposition of post-release supervision previously adjudicated, having been raised by petitioner in 440 motion and decided by sentencing court]). Accordingly, this Court is bound by the sentencing court's decision that DOCS had no authority to impose post-release supervision on petitioner (id.).

Since post-release supervision was illegally imposed upon petitioner by DOCS, it must be declared void. Although the sentencing court recently resentenced petitioner to a lawful sentence which included a five-year period of post-release supervision, that does not retroactively correct the illegality of DOCS' actions. At the time petitioner's parole warrant was issued, post-release supervision had not been a part of petitioner's sentence and had been illegally imposed by DOCS. The Division's claim that the resentencing of petitioner to post-release supervision should run nunc pro tunc is rejected. Indeed, the sentencing court's decision is silent with respect to this issue.[fn7] Furthermore, the Division has failed to offer any legal authority in support of this position.

Finally, the Division claims that a writ of habeas corpus is not the
appropriate forum to seek relief of a post-release supervision claim.
Rather, the Division argues that the proper remedy is a motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10 or on appeal. The Division's claim is rejected. Petitioner could hardly file a timely appeal raising this issue since he was not aware of post-release supervision until after his release (see Mazario, 16 Misc 3d at 1109A; White, 15 Misc 3d 368-71). Furthermore, petitioner did, indeed, move to vacate judgment pursuant to C.P.L. § 440, but was unsuccessful since he had been advised of post-release supervision at the time of his plea. Indeed, in view of the illegality of DOCS' actions at the time the warrant was

Page 7

issued, a writ of habeas corpus was clearly an appropriate vehicle for
petitioner's claim. Under C.P.L.R. § 7002(a), a person who is "illegally imprisoned or otherwise restrained of his liberty" has the right to seek a determination of the lawfulness of that detention through a petition
for writ of habeas corpus (see White, 15 Misc 3d at 368; People ex rel.
Lewis v. Warden, 14 Misc 3d 468 [Sup. Ct. Bronx Co. 2006] [Cirigliano,
J.]; Matter of Waters v. Dennison, 13 Misc 3d 1105 [Sup. Ct. Bronx Co.
2006] [Cirigliano, J.]). Therefore, the Court finds that there is no bar to hearing petitioner's instant claim.

Accordingly, since the administrative imposition of post-release
supervision by DOCS was unlawful, it must be declared a nullity.
Therefore, petitioner's writ of habeas corpus is sustained, and his
parole warrant is hereby vacated.

This constitutes the decision and order of the Court.

[fn1] At the time of his plea, defendant was told that his sentence
would include a five-year period of post-release supervision.


[fn2] In support of this claim, the respondent relies upon a decision
rendered by this Court, People ex rel. Garner v. Warden, Index No.
51225-96 (Sup.Ct. Bronx Co. 2006) (Gross, J). However, this case was
decided prior to the Second Circuit's decision in Earley.


[fn3] The statute also gives discretion with respect to felony drug
offenders sentenced pursuant to P.L. § 70.70.


[fn4] In each of those cases, the First Department relied upon a series
of cases decided by the Third and Fourth Departments, which held that
post-release supervision is mandatory and automatically included in the
sentence regardless of whether the trial court orally imposed it (see
People v. Crump, 302 AD2d 901 [3d Dept. 2003]; People v. Thweatt,
300 AD2d 1100 [4th Dept. 2002]; People v. Bloom, 269 AD2d 838 [4th Dept.
2000]).


[fn5] In contrast to the First Department, the Second Department makes
no distinction between cases involving predicate felons, in which the
sentencing court has no discretion regarding post-release supervision
and cases involving first violent felons, in which the sentencing court
has discretionary authority to modify the period of post-release
supervision. The Second Department has routinely held that the sentence
does not include post-release supervision where the sentencing minutes
and commitment documents fail expressly to authorize it (see People v.
Noble, 37 AD3d 622 [2d Dept. 2007]; People v. Wilson, 37 AD3d 855 [2d
Dept. 2007]; People v. Smith, 37 AD3d 499 [2d Dept. 2007]). Indeed, the
Second Department's blanket ruling on this issue is at odds with the
First Department's decisions in Sparber and Lingle decisions which held
that post-release supervision is automatically included in a determinate sentence for second felony offenders subject to a determinate term of incarceration.


[fn6] In Hill, the defendantoriginally raised this issue in a motion
vacate judgment pursuant to C.P.L. § 440, claiming that his plea was
involuntary because he had not been informed that his sentence would
include a five-year period of post-release supervision. While the
sentencing court denied the defendant's motion, it modified defendant's
sentence, reducing his post-release supervision to a period of
two-and-one-half years. The First Department affirmed the sentencing
court's decision (39 AD3d at 18).


[fn7] The Division has failed to provide this Court with the resentencing minutes to support its claim that the sentencing court intended that the sentence would run nunc pro tunc.

________________________________________

Another recent case holding the same.

New York Supreme Court, Appellate Division, Third Department

-------------------------------------------------------------------
Matter of Quinones v New York State Dept. of Correctional Servs.
2007 NY Slip Op 10435
Decided on December 27, 2007
Appellate Division, Third 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 and Entered: December 27, 2007

502156


[*1]In the Matter of JOSELITO QUINONES, Appellant,

v

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.


Calendar Date: November 15, 2007
Before: Mercure, J.P., Mugglin, Rose, Lahtinen and Kane, JJ.


Joselito Quinones, Coxsackie, appellant pro se.
Andrew M. Cuomo, Attorney General, Albany (Frank
Brady of counsel), for respondent.


MEMORANDUM AND ORDER


Rose, J.

Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered November 29, 2006 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services imposing a period of postrelease supervision on petitioner.

In 2004, petitioner was convicted after trial of a number of offenses, including attempted murder in the second degree, a class B violent felony, and sentenced to concurrent determinate terms of imprisonment, the greatest of which was 12½; years (see People v Quinones, 41 AD3d 868 [2007]). Because he was not also explicitly sentenced to a period of postrelease supervision, petitioner commenced this proceeding to annul the determination of the Commissioner of Correctional Services which added a five-year period of postrelease supervision to his sentence (see Penal Law § 70.45 [2]). Inferring from our case law that petitioner's sentence automatically included postrelease supervision by operation of law despite the sentencing court's omission, Supreme Court found no error in the Commissioner's determination and dismissed the petition.

We must reverse. The 2004 amendment of Penal Law § 70.45 (L 2004, Ch 738, § 35) now makes clear that the period of postrelease supervision for first-time violent felony offenses, [*2]among others, is to be set in the court's discretion between the minimum and maximum periods stated in Penal Law § 70.45 (2). Since the sentencing court here could have imposed less than a five-year period if it had determined the issue (see Penal Law § 70.45 [2] [f]), we cannot agree with respondent that imposition of a five-year period was mandatory or a purely ministerial act on the part of the Commissioner. Rather, we agree that "[t]he only cognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect" (People v Duncan, 42 AD3d 470, 471 [2007], quoting Earley v Murray, 451 F3d 71, 75 [2d Cir 2006], cert denied ___ US ___, 127 S Ct 3014 [2007]; see People v Royster, 40 AD3d 885, 886 [2007], lv denied 9 NY3d 881 [2007]; People v Hill, 39 AD3d 1, 11 n 7 [2007], revd on other grounds 9 NY3d 189 [2007]). To the extent that our prior decisions in Matter of Deal v Goord (8 AD3d 769 [2004], appeal dismissed 3 NY3d 737 [2004]) and Matter of Garner v New York State Dept. of Correctional Servs. (39 AD3d 1019, 1019 [2007], lv granted 9 NY3d 809 [2007]) reached a different conclusion, they should no longer be followed.

Mercure, J.P., Mugglin, Lahtinen and Kane, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, and petition granted.

Yet another recent decision holding the same thing follows:

-------------------------------

New York Miscellaneous Court

--------------------------------------------------------------------------------

[*1]
Matter of Abelson v New York State Dept. of Correctional Servs.
2008 NY Slip Op 50028(U)
Decided on January 5, 2008
Supreme Court, Queens County
Golia, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.



Decided on January 5, 2008

Supreme Court, Queens County



In the Matter of Ian Abelson, Plaintiff,

against

New York State Department of Correctional Services, Defendants.




22466/07

James J. Golia, J.
The Petition

Petitioner commenced this Article 78 proceeding requesting that the Court vacate the five year post-release supervision ("PRS") period added to his sentence by the respondent. Petitioner argues that the neither the sentencing minutes nor the Sentencing and Commitment Order include, as part of petitioner's sentence, a five year PRS term and therefore respondent's administrative imposition of the five year PRS sentence is invalid.

Respondent argues 1) that the petition should be dismissed on the grounds that: a) this court lacks jurisdiction to modify a order previously prepared and issued by another judge; b) the statute of limitations (CPLR 217) has run; and c) the petition fails to name the district attorney as a necessary party to this proceeding. 2) that PRS is required by Penal Law §70.45 and is an automatic provision which does not give respondent discretion in its enforcement; and 3) that the relief requested by the petitioner requires relitigation of a criminal matter and should be barred by the doctrine of res judicata or collateral estoppel.

Background

Petitioner was convicted of two counts of Second Degree Robbery and Attempted Grand Larceny in the 2nd degree. On October 24, 2002, Judge Herbert Altman sentenced the petitioner to two five-year determinate terms of incarceration for the robbery conviction and a three to six year term on the attempted grand larceny conviction. [*2]

Notwithstanding Judge Altman's sentence as set forth in the sentencing minutes of October 22, 2002, in the preparation of the Sentence and Commitment Order dated November 4, 2002, the sentence for the attempted grand larceny conviction was set forth as a two and a third to seven year sentence. Petitioner brought a motion pursuant to CPL §440.20 alleging, among other things, that Judge Altman's sentence on the grand larceny conviction was illegal and had to be corrected. Judge M. Wiley, deciding the motion due to Judge Altman's retirement, granted petitioner's motion to the extent that the sentence for the grand larceny conviction was corrected and petitioner was resentenced to a two and a third to seven year term instead of the three to six year term imposed by Judge Altman. The remainder of the sentence imposed by Judge Altman remained unchanged and a new Sentence and Commitment Order was issued, dated March 14, 2005.

Subsequent to the sentencing, an "Inmate Information" sheet was prepared by the Department of Correctional Services ("DOCS")stating that the petitioner was subject to post-release supervision for five years. It is imposition of the PRS, by DOCS, that is the subject of this petition.

The petitioner was released from prison in January 2007 and currently resides in Queens. In accordance with the requirements of the PRS, petitioner reports to the parole board in Jamaica.

Analysis

Respondent's arguments that the petition should be dismissed on the grounds: a) that this court lacks jurisdiction to modify an order previously prepared and issued by another judge; b) that the petition fails to name the district attorney as a necessary party to this proceeding; and c) that the relief requested is barred by the doctrine of res judicata or collateral estoppel are all without merit. Petitioner is not seeking to 1) modify a court order; 2)vacate a criminal sentence; or 3) relitigate a criminal matter, instead, petitioner is seeking a judicial review of an administrative act of the respondent. Where an individual is faced with an administratively imposed sentence there is no remedy to require the administrative body to review its determination other than an action seeking judicial review of the determination i.e. an article 78 proceeding. (Waters v Dennison, 2006 NY Slip Op 26448, 13 Misc 3d 1105 [2006].)

Respondent's argument that Petitioner is barred by the statute of limitations is also without merit as there is nothing in the record, other than respondent's conclusory statement, to support a finding that petitioner was aware of the PRS since 2002.

We turn now to petitioner's claim that the imposition of PRS, by DOCS, pursuant to Penal Law § 70.45 is invalid.

The imposition of post-release supervision by DOCS where the sentencing minutes and Sentencing and Commitment Order are silent on that issue has been the subject of a considerable amount of litigation throughout the State.Although the issue has not been resolved consistently across the judicial departments, the Second Department has been guided by the decision in Earley [*3]v. Murray, 462 F. 3d 147 (2006), where the court stated that "PRS added administratively by DOCS and not imposed by a court is a nullity' and thus must be vacated."

Although not bound by the Earley decision, the courts have relied on it as a useful and persuasive authority (See, Matter of Sapp v Payant, 2007 NY Slip OP 51903U [2007] and Matter of Waters v Dennison, 13 Misc 3d 1105 [2006]) and have consistently ruled that where the sentencing minutes and order of commitment fail to include any mention of PRS the administratively imposed PRS is not part of the sentence. (People v Noble, 37 AD3d 622 [2nd Dept. 2007], People v Wilson, 37 AD3d 855 [2nd Dept 2007]; People v Smith, 37 AD3d 499 [2nd Dept 2007]). (See also, Murray v. Goord, 1 NY3d 29 [Sept 2003] where the court held "prison officials are conclusively bound by the contents of the commitment paper accompanying a prisoner.")

Since it is undisputed that the sentencing and commitment order did not include any PRS provisions, this court finds the imposition of PRS by the respondent a nullity.

Respondent argues that the controlling cases on this issue are People v Catu, (4 NY3d 242, 825 NE2d 1081, 792 NYS2d 887 [2005] where the court held that PRS is a definite, immediate and largely automatic effect) and People v Louree (2007 NY Slip OP 4679, 8 NY3d 541, 869 NE2d 18, 838 NYS2d 18, where the court held that post-release supervision is a direct consequence of a criminal conviction.) In each of these cases the defendants' guilty pleas were vacated due to the failure of the trial court to advise the defendants, prior to their respective pleas, that post release supervision would be part of their sentence. Because the defendants were unaware of the PRS, the Court found that they did not knowingly, voluntarily and intelligently enter their pleas.

Respondent's reliance on these cases is misplaced as the issue here is not whether PRS is automatic or a direct consequence of criminal conviction, but whether PRS can be administratively added to a criminal sentence ordered by a judge. With respect to the latter, the answer is no. (Murray v. Goord, 1 NY3d 29 [Sept 2003]; People v Noble, 37 AD3d 622 [2nd Dept. 2007], People v Wilson, 37 AD3d 855 [2nd Dept 2007]; People v Smith, 37 AD3d 499 [2nd Dept 2007]); Matter of Sapp v Payant, 2007 NY Slip Op 51903U)

Accordingly, the petition is granted and the five year post- release supervision sentence administratively imposed on petitioner by respondent is vacated.

This is the order of the Court.

Dated: January 5, 2008

New York Supreme Court, Appellate Division, Fourth Department

--------------------------------------------------------------------------------

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

************************************************** ***

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