Surprisingly, it appears that nobody has yet challenged as statutorily unlawful what oftentimes occurs with the imposition of a determinate sentence (flat bid) to be followed by a period of post-release supervision (PRS). Hypothetical case in point: John Doe is convicted of a class D violent felony assault under PL 120.05 for which he is sentenced to the maximum determinate term of 7 years imprisonment pursuant to PL § 70.02(3)(c). At the same time the court sentences him to the maximum term of 3 years PRS as provided for under PL § 70.45(2)(e). John serves 71.4 months in prison – 85% of his 7-year sentence before being conditionally released. After serving 6 months of his PRS John then violates the conditions thereof, resulting in his being returned to prison for a period of 1 year (minimum time assessment as a Category 1 violator as defined by 9 NYCRR § 8005.20[a][1]), whereupon the 2-1/2 year balance of his PRS is temporarily interrupted and suspended pursuant to PL § 70.45(5)(d), to be resumed upon service of his 1-year time assessment. By the time of his re-release he has served 83.4 months in prison, just 0.6 months less than the maximum he can serve pursuant to PL § 70.02(3)(c). Then, 10 months later he violates the terms of his PRS a second time, resulting in him being once again returned to prison for a 12-month time assessment. In this case John will have served 11.4 months more prison time than is allowable for a Class D violent felony offense.

Quite apparent is that the NY Legislature failed to take these types of situations into account when restructuring the sentencing laws to provide for determinate sentences of imprisonment and PSR for violent felony offenses. Had it realized that such revisions could easily result in someone serving more time in prison than allowable for a given violent felony offense, it would have also amended subparagraphs (a) thru (d) inclusive of PL § 70.45(3) to read that the maximum terms of imprisonment for a given violent felony offense could be extended by a sustained violation of PRS. In the hypothetical case of John Doe detailed above, he could petition the state supreme court for habeas corpus relief under Article 70 of the CPLR. Other possible remedies for inmates who have not yet served more time in prison that permitted for their particular violent felony offense would include a motion to correct an illegal sentence pursuant to CPL § 440.20 or an application for declaratory judgment pursuant to CPLR §§ 3001 et seq.