Opinion
75090/07.
Decided July 10, 2007.
On March 23, 2003, relator Edgar Mazario ("Mazario") pled guilty to a violation of probation and was sentenced by Supreme Court, Kings County under indictment number 12156/98 to a determinate term of two years imprisonment as a first-time violent felony offender for the underlying offense of Criminal Possession of a Weapon in the Third Degree, Penal Law Section 265.02(4). See Verified Petition sworn to May 2, 2007 ("Petition"), at ¶ 7. During the plea and sentencing, the court did not state on the record that Mazario would be subject to any period of post-release supervision ("PRS") as part of his sentence. See Petition, Ex. A. Further, the court's Sentence and Order of Commitment did not state that Mazario would be subject to PRS. See Petition, Ex. A. On October 8, 2004, Mazario was released from prison, but was subject to PRS for a period of three years that was administratively imposed. See Petition, Ex. B. On March 28, 2007, a parole warrant was executed against Mazario for violating the conditions of PRS. Petition, at ¶ 9. Mazario now petitions for a Writ of Habeas Corpus on the grounds that his due process rights were violated by the administrative imposition of PRS.For the reasons set forth below, the Petition is granted, the Writ is sustained and the relator, Mazario, is ordered discharged.
The purpose of habeas corpus is "to test the legality of the detention of the person who is the subject of the writ." People ex rel. Robertson v. New York State Division of Parole, 67 NY2d 197, 201 (1986). As Mazario was incarcerated for violating PRS, this Court must determine whether PRS was legally imposed although the trial court never stated that it would be part of his sentence. Pursuant to Penal Law Section 70.45(1), each "determinate sentence also includes, as a part thereof, an additional period of" PRS. Pursuant to the version of Penal Law Section 70.45(2) in effect when Mazario was sentenced, the period of PRS for a determinate sentence was three years, provided, however, that "the court, at the time of sentence, may specify a shorter period of post-release supervision . . . of not less than one and one-half years upon a conviction for a class D . . . violent offense," such as the one to which Mazario had pled guilty.
The Court of Appeals for the Second Circuit has held that the imposition of PRS by the New York State Department of Corrections when it was not made part of the sentence issued by the trial court violates the due process guarantees of the United States Constitution. Earley v. Murray, 451 F.3d 71, 77 n. 2 (2d Cir. 2006). Citing Hill v. United States ex. rel. Wampler, 298 U.S. 460 (1936), the Earley court found that the "only cognizable sentence is the one imposed by the judge" and that any "alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect." Earley, 451 F.3d at 75. On rehearing, the Second Circuit adhered to its ruling, holding that when "a judge fails to impose a custodial element of a sentence, that element is not part of the sentence, regardless of whether that failure was due to an oversight or to customary practice." Earley v. Murray, 462 F.3d 147, 149 (2d Cir. 2006), cert. denied, Buhrle v. Earley, 2007 WL 1243234 (Jun. 25, 2007).
By contrast, there are two First Department cases that hold PRS is properly imposed automatically by operation of law for second violent offenders, even if the court's oral sentence is silent as to PRS. See People v. Sparber, 34 AD3d 265, 265-66 (2006); People v. Lingle, 34 AD3d 287, 289-90 (2006). The rationale behind both Sparber and Lingle is that PRS is mandatory under the terms of Penal Law Section 70.45(1), which provides that, "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision." Sparber, 34 AD3d at 265 (italics in original); Lingle, 34 AD3d at 289 (italics in original); see also People v. Catu, 4 NY3d 242, 244 (2005) (vacating guilty plea when defendant not told of PRS because PRS is a "definite, immediate and largely automatic" direct consequence of sentence). Significantly, in Lingle, Sparber and Catu, the period of PRS was five years pursuant to Penal Law Section 70.45(2) and could not be altered by the sentencing judges because the defendants were second violent felony offenders. Sparber, 34 AD3d at 265; Lingle, 34 AD3d at 289; Catu, 4 NY3d at 244.
Both Sparber and Lingle were denied leave to appeal to the Court of Appeals without prejudice to renew within thirty days after the issuance of the decision in People v. Louree, 8 NY3d 541 (Jun. 5, 2007). See People v. Sparber, 8 NY3d 885 (2007); People v. Lingle, 8 NY3d 847 (2007).
Subsequently, the First Department decided People v. Hill, 39 AD3d 1 (1st Dept. 2007), which appeared to draw a distinction between first-time violent felony offenders (like Mazario) and second violent felony offenders. Specifically, Hill suggested that PRS does not arise automatically by operation of law for first-time violent felony offenders because the period of PRS with respect to such offenders falls within the discretion of the sentencing judge pursuant to Penal Law Section 70.45(2). Id. at 12-14. In the absence of the exercise of discretion by the judiciary, Hill stated that rather than assume that the Legislature intended the maximum period of PRS to be imposed, " the better conclusion is that no period of postrelease supervision is imposed by operation of law . . ." Hill, 39 AD3d at 13 (emphasis added); see also People v. Noble, 37 AD3d 622, 622 (2nd Dept. 2007) (holding " the sentence actually imposed by the court never included, and does not now include, any period of postrelease supervision") (emphasis added) (citations omitted).
If PRS does not arise automatically by operation of law when a sentencing court does not specify a period of PRS for first-time felony offenders like Mazario, then the period of PRS imposed administratively upon Mazario is a nullity, he may not be detained for violating PRS, and the Petition should be granted. See People ex rel. White v. Warden, Rikers Island Correctional Facility, 15 Misc 3d 360, 368 (Sup.Ct. Bronx Co. 2007) (Marcus, J.); People ex rel. Lewis v. Warden, Otis Baum Correctional Center, 14 Misc 3d 468, 475 (Sup.Ct. Bronx Co. 2006) (Cirigliano, J.); People ex rel. Johnson v. Warden, Anna M. Kross Center, 15 Misc 3d 1102(A) at *7 (Sup.Ct. Bronx Co. 2007) (Adler, J.); People ex rel. Brown v. Warden, Otis Bantum Correctional Center, Index No. 75036/07, at 6 (Sup.Ct. Bronx Co. Apr. 13, 2007) (Boyle, J.); People v. Hernandez, 2006 NY Slip Op. 52477, at 6 (Sup.Ct. Bronx Co. May 21, 2007) (Fisch, J.); People ex rel. Feminella v. New York State Division of Parole, Index No. 7506/07, at 5 (Sup.Ct. Bronx Co. May 11, 2007) (Fabrizio, J.); People ex rel. Franklin v. Warden, Riker's Island Correctional Facility, Ind. No. 51409/06, at 5-6 (Sup.Ct. Bronx Co. Mar. 12, 2007) (Clancy, J.); People ex rel. Jones v. Warden, Otis Bantum Correctional Facility, Index No. 1414/06, at 9-10 (Sup.Ct. Bronx Co. Feb. 20, 2007) (Alvarado, J.); People ex rel. Dunston v. Warden, Otic Bantum Correctional Center, Ind. No. 75092/07, at 5 (Sup.Ct. Bronx Co. Jun. 8, 2007) (Clancy, J.).
Respondents make several arguments against granting the Petition. First, Respondents argue that principles of comity should preclude this Court from reviewing the sentence issued by another court. Affirmation of Michael J. Keane dated May 29, 2007 at ¶¶ 4, 12-15. However, this Court is not reviewing or modifying the sentence, or the conviction underlying it. Rather, this Court is reviewing whether PRS could be legally imposed against Mazario when it was not made part of the original sentence by the sentencing court. The Earley court held that the imposition of PRS under these circumstances violates the United States Constitution. The First Department in Hill stated that PRS may not arise by operation of law in these circumstances. The Second Department in Noble held that PRS is not part of the sentence in these circumstances. As such, the PRS imposed upon Mazario was not legal under applicable state and federal law, and no principle of comity is violated by this Court's decision.
Second, Respondents contend that Mazario has other and more proper forums in which to seek relief. See Affirmation of Michael J. Keane dated May 29, 2007 at ¶¶ 4, 12-15. Respondents concede, however, that Mazario may not move the sentencing court to correct the sentence pursuant to Article 440 because of the recent Court of Appeals case of People v. Louree, 8 NY3d 541, 543 at fn* (2007). See Affirmation in Surreply of Michael J. Keane dated June 8, 2007 at ¶ 6 n. 1. In addition, Mazario's right to pursue a direct appeal has long since expired. CPL § 460.10(1). Moreover, Mazario could hardly have been expected to file a timely appeal from the imposition of PRS because the trial court never mentioned it and it was not included in the Sentence and Order of Commitment. The Writ of Habeas Corpus is the only appropriate vehicle for relief in this situation. It is a summary proceeding designed to "strike at unlawful imprisonment or restraint of the person" and it "tolerates no delay except of necessity." People ex rel. Robertson, 67 NY2d at 201, quoting, People ex rel. Duryee v. Duryee, 188 NY 440, 445-46. The Court also rejects Respondents' assertions that the relief sought in the Petition is barred by res judicata, collateral estoppel or any statute of limitations. Those claims lack any support in the record. Accordingly, the Court finds that this matter is properly before it and is appropriately handled as a Habeas Corpus proceeding.
Accordingly, Mazario's petition for a Writ of Habeas Corpus is granted, and pursuant to CPLR Section 7010, this Court directs Respondents to discharge Mazario forthwith.
The foregoing constitutes the Judgment of the Court. Dated:July 10, 2007