Opinion
Index 54091
02-28-2022
The State of New York, on relation of BRANDON GARDNER DIN # 21A2531 Petitioner v. BOWER, SUPERINTENDENT OF WILLARD DRUG TREATMENT CAMPUS AND THE CHAIRPERSON OF THE NEW YORK STATE BOARD OF PAROLE, Respondents
Unpublished Opinion
DECISION AND JUDGMENT
HON. BARRY L. PORSCH, ACTING SUPREME COURT JUSTICE
A writ of habeas corpus issued on behalf of the State of New York, on the relation of Brandon Gardner to the above-named Respondents, to certify fully the cause of the detention of the Petitioner. The Respondents, through Assistant Attorney General Ted O'Brien, Esq., submit that the Petitioner was judicially sentenced in Suffolk County Court to an indeterminate sentence of 3 years to 6 years incarceration, following his conviction for Attempted Conspiracy in the 2 degree, to be executed as sentence of parole supervision pursuant to CPL §410.91. (Writ Return, Exhibit C). Petitioner was sentenced on October 21, 2021 and was transferred to DOCCS custody on December 2, 2021 and arrived at Willard on December 9, 2021 (Writ Return, Exhibit B).
is not an offense specified in Criminal Procedure Law 410.91(5), as such, the defendant was not eligible to receive a sentence of parole supervision. It is further noted that the commitment does not indicate that the defendant was sentenced as a 1 predicate felon. The Department's records indicate the defendant was subject to one or more prior felony convictions that would require the defendant to be sentenced as a predicate felon on this conviction. The failure to impose such a sentence may render it invalid as a matter of law; (sites omitted). A notification was sent by DOCCS Sentencing Review Coordinator, Diane H. Holford, to the Suffolk County Court, the Suffolk County District Attorney's Office, Defense Counsel, and the Inmate Records Coordinator (Willard DTC) on December 22, 2021. (Writ Return, Exhibit D).
The Court now finds that the detention of the petitioner by the respondent is not illegal based on the particular facts of this case, the court deems this matter submitted and no appearances are necessary.
The defendants current conviction for Attempted Conspiracy 2
The Petitioner alleges that he is entitled to immediate release because DOCCS did not timely transfer him to Willard within 10 days in accordance with CPL §410.91(1). The timeliness of the defendant's transfer to the Willard Drug Treatment Campus cannot be challenged in a habeas corpus proceeding where the sentence of parole supervision was imposed in violation of CPL §410.91. For this Court to release the Petitioner would simply compound the errors of the sentencing court. The matter, rather, should be returned to the sentencing court for the purpose of re-sentencing the Petitioner to a sentence without Willard participation, or by allowing Petitioner to withdraw his plea of guilty if the same was induced by a promise of Willard. Regardless, there is no showing of entitlement to immediate release. (State of New York ex rel. Sanchez v. Bartlett, Seneca Co. Supreme Court, Index 47278, [2013]).
Accordingly, the Petitioner is not entitled to the relief sought herein. The petition is in all respects denied and dismissed. 2