Opinion
22466/07.
Decided January 5, 2008.
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.
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 .)
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 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) 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 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.
J.S.C.
The Court finds this article 78 petition appropriate. Clearly a petitioner faced with an administratively imposed sentence does not have a remedy to require the administrative body to revirew its determination except bring an action seeking judicial review of the dteremination i.e. an article 78 proceeding. (Waters v Dennison, 2006 NY Slip Op 26448, 13 Misc 3d 1105 (2006)
The court's reasoning in those cases provides ample support to a finding that if, at the time of sentencing, the court does not sentence petitioner to PRS then, notwithstanding its automatic effect (Catu and Louree), it cannot be subsequently, administratively imposed by the respondents as that would deny a defendant convicted of the same due process rights afforded to defendants that plead guilty as set forth in these cases. That cannot be what was intended.