Opinion
I-2007-4485.
Decided on September 18, 2007.
Michael Sapp, Pro Se.
Andrew M. Cuomo, Attorney General of the State of New York, By: William D. Lonergan, Assistant Attorney General for Respondents.
By application dated April 25, 2007, Petitioner seeks relief pursuant to Article 78 of the Civil Practice Law and Rules to vacate the imposition of a five year period of post release supervision by the New York State Department of Correctional Services (DOCS). Petitioner claims that DOCS may not impose the five year period when not specifically imposed by the sentencing court at the time of sentence.
On May 22, 2007, an Order to Show Cause was granted by the Honorable Sharon S. Townsend, Justice of the Supreme Court, directing Respondent to show cause why the relief requested in the Petition should not be granted. By Answer dated June 27, 2007, Respondent, through their attorney, Andrew M. Cuomo, Attorney General of the State of New York, William D. Lonergan, Assistant Attorney General, of Counsel, opposes the Petition.
In his verified Petition in support of his application, Petitioner claims that DOCS unlawfully imposed a five year period of post release supervision upon the Petitioner. Specifically, Petitioner claims that DOCS is bound to follow the sentence commitment order as set forth by the sentencing court. Further, Petitioner claims that when the sentencing court makes no mention of post release supervision at the time of sentence the imposition of such post release supervision by DOCS is unlawful.
Respondent argues that Penal Law Section 70.45 mandates that every determinate sentence requires the imposition of a period of post release supervision of five years, therefore DOCS administrative imposition of post release supervision was lawful.
On February 23, 2001, the Defendant was sentenced in Erie County Court to a determinate sentence of four years for the crime of Attempted Burglary in the Second Degree. At the time of sentence, the Court did not impose a term of post release supervision. The Sentence and Commitment Order made no mention of post release supervision. Thereafter DOCS administratively imposed a five year period of post release supervision.
On December 30, 2005, Petitioner was released to post release supervision with a maximum expiration date of April 18, 2010.
On February 27, 2006, the Petitioner was declared delinquent and parole warrant number 438153 was executed.
On March 22, 2006, at his parole revocation hearing, Petitioner was found to have violated the conditions of his release and a delinquent time assessment of eighteen months was imposed.
Petitioner first relies on Murray v. Goord 1 NY3d 29 (2003) holding that DOCS must abide by the commitment order that follows the prisoner. As the commitment order does not indicate that the Petitioner's sentence was to include post release supervision, imposition of such by DOCS is unlawful.
Petitioner also relies on Earley v. Murray 452 F.3d 71 (2d Cir. 2006), a Second Circuit Court of Appeals case, to support his claim that the inclusion of post release supervision by DOCS was unlawful and must be vacated. The Court in Earley held that "the additional provision of post release supervision added by DOCS is a nullity. The imposition of sentence is a judicial act; only a judge can do it. The penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence." Id at 76. Thus, as in this case, where a court is silent upon the issue of post release supervision at the time of sentence DOCS cannot administratively impose a period of post release supervision.
The Respondent relies upon the plain language of Penal Law § 70.45 and a series of Fourth Department cases to support their argument that DOCS imposition of post release supervision was lawful.
At this time there is a split among the Appellate Divisions as to whether the holding in Earley should be followed. The First Department, in People v. Hill 39 AD3d 1 has held that a five year term of post release supervision is mandatory for defendants sentenced as a violent felony offender (Penal Law § 70.04) or as a second felony offender(Penal Law § 70.06) and may be imposed by DOCS when the sentencing court is silent on the issue. However whenever a defendant is sentenced as a first violent felony offender (Penal Law § 70.02) DOCS imposition of a five year term of post release supervision is unlawful.
The Second Department has held that where a sentencing court is silent upon the issue of post release supervision, the administrative imposition of post release supervision by DOCS is unlawful. People v. Wilson 37 AD3d 855 and People v. Noble 37 AD3d 622. These decisions are similar in their reasoning to Earley in that sentence is a judicial function that cannot be usurped by an administrative action of DOCS.
The Third Department found differently, in that the imposition of post release supervision is not a judicial function but an administrative act. In the pre Earley decision of Matter of Deal v Goord 8 AD3d 769 , the Court held that "since respondents are enforcing a statutorily-required part of petitioners sentence, they have not performed any judicial function". Id at 769.
Post Earley the Third Department has issued two more decisions on this issue. People v Boyer 36 AD3d 1084 and Garner v New York State Department of Correctional Services 39 AD2d 1019. Both decisions continued to follow their previous holding in Deal. In Garner, the Court found that "(a)s respondents are only enforcing, not imposing, a part of petitioner's sentence which was automatically included by statute, they have not performed any judicial function. Id. at 1019.
Since the Earley decision the Fourth Department has not spoken to this issue. Prior to Earley the Fourth Department has found that the imposition of post release supervision is not a judicial function but an administrative act to be enforced by DOCS.
In People v Bloom 269 AD2d 838 the Court held that "(t)here was no need for the court to specify a period of post release supervision. Under Penal Law § 70.45(2) the length of the period of post-release supervision is five years . . . unless the court specifies a shorter period." Id at 838. In People v Hollenbach 307 AD2d 776 the Fourth Department continued its reasoning as set forth in People v Crump 302 AD2d 901 and People v White 296 AD2d 867, that "post release supervision is mandatory for determinate sentences and is automatically included in the sentence. . . . There is no need for the court to specify a period of post release supervision at sentencing" Hollenbach at 776.
Since these Fourth Department Decisions the Court of Appeals has spoken to the issue of post release supervision in People v. Catu 4 NY3d 242 (2005). In Catu the Court held that in order for a defendant's plea, which would mandate a determinate sentence, to be knowingly, voluntarily and intelligently made a defendant must be made aware, at the time of his plea, that such plea will result in the imposition of post release supervision as part of his sentence. Failure to so advise the defendant at the time of his plea will require that the plea be vacated. Id at 245. Although the Catu Decision dealt with the failure to advise the defendant of post release supervision at the time of plea, rather than a sentencing court's failure to impose post release supervision as in this case, the Catu Court does offer guidance on this issue. As in Earley the Court in Catu recognized that it is a function of the court to inform a defendant of the imposition of post release supervision and as such DOCS cannot administratively impose such supervision.
Recognizing that the decision in Earley is not binding, People v. Kin Kan, 78 NY2d 54, this Court finds that Earley serves as "useful and persuasive authority" Id at 59-60. (See also Matter of Waters v. Dennison 13 Misc 3d 1105 .)
Therefore, this Court finds that post release supervision is an essential part of a determinate sentence, the imposition of which can only be done by a judge and that DOCS administrative imposition of five years post release supervision to Petitioner's sentence was unlawful.
Accordingly, Petitioner's motion is GRANTED. and it is hereby
ORDERED that the five year term of post release supervision imposed by DOCS and the parole violation warrant number 438153 be VACATED.