Matter of Johnson v Fischer

[*1] Matter of Johnson v Fischer 2009 NY Slip Op 50632(U) [23 Misc 3d 1108(A)] Decided on March 24, 2009 Supreme Court, New York County Schlesinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 24, 2009
Supreme Court, New York County

In the Matter of the Application of Corey Johnson, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules,

against

Brian Fischer, Commissioner of DOCS, Respondent.



402517/08



Attorney for Respondent

Andrew M. Cuomo, Esq.

120 Broadway, 24th fl.

New York, NY 10271

212-416-8550 or 8746

Corey Johnson #00A0033

Sullivan Correctional Facility

P.O. Box 116

Fallsburg, NY 12733-0116

Alice Schlesinger, J.

Petitioner Corey Johnson, an incarcerated person, commenced this Article 78 proceeding representing himself seeking to annul the five-year period of post-release supervision (PRS) which he claims was administratively imposed by respondent Department of Correctional Services (DOCS). DOCS in its Answer (at ¶ 18) "requests that the Petition be dismissed and denied in accordance with the doctrine of ripeness, Court of Appeals precedent, and recently enacted state legislation." In so arguing, DOCS misconstrues the controlling precedent. For the reasons stated below, petitioner's post-release supervision should be annulled and petitioner should be brought back before the sentencing court for a proper resentencing.

Background Facts

Petitioner pled guilty to Assault in the First Degree and was sentenced on December 21, 1999 to a ten-year determinate term of imprisonment. Petitioner remains incarcerated with a conditional release date of June 21, 2009. It is undisputed that, pursuant to New York Penal Law §70.45(1), a five-year term of post-release supervision was mandated as part of petitioner's sentence. It is also undisputed that, pursuant to the decisions by the Court of Appeals in Garner v. NYS Department of Correctional Services, 10 NY3d 358 (2008) and People v. Sparber, 10 NY3d 457 (2008), only the sentencing court can impose a period of PRS, and any PRS administratively imposed by the Department of Corrections is unlawful.

Based on the clear holdings in the above cases and the legislation enacted to implement it (e.g., Correction Law §601-d), petitioner asserts that his PRS administratively imposed by respondent DOCS must be vacated. DOCS opposes on various grounds. First, DOCS complains that petitioner has failed to provide a copy of the sentencing minutes to prove that the PRS was imposed by DOCS, rather than the judge. The argument is wholly without merit. Defendant was present at his sentencing and speaks with personal knowledge. DOCS has not presented the [*2]sentencing minutes itself or any other document to cast doubt on petitioner's allegation in the verified petition.

In a complete mischaracterization of the legislation promulgated pursuant to Garner and Sparber, DOCS contends that this Court "does not have jurisdiction over this matter because petitioner's claims are not ripe for review." (Aff. In Opp. at ¶19). Pointing to the July 11, 2008 Memorandum of Understanding between the NYS Office of Court Administration and DOCS and the Division of Parole, DOCS contends that petitioner cannot be referred to the sentencing court for resentencing "until at least 60 days before the release date." In fact, the Memorandum provides the opposite. After the Court of Appeals confirmed the illegality of administratively imposed PRS, the Legislature promulgated Correction Law §601-d to require that DOCS arrange for the resentencing of any inmate whose PRS had been unlawfully imposed by the agency, rather than the court. Recognizing that a large number of inmates would be affected, the Memorandum was agreed upon to establish priorities for resentencing to facilitate the process. The first priority, to be addressed within weeks of the Memorandum, was inmates in DOCS custody solely based on a technical violation of PRS which had not been set by the sentencing court.

Persons such as petitioner to be released for the first time onto PRS after October 1, 2008 "shall be referred to the sentencing courts at least 60 days prior to their release date." Thus, the 60 days is the latest, not the earliest, time for resentencing.

Based on all of the above, petitioner is entitled to be brought before the sentencing court without delay for resentencing in accordance with Penal Law §70.45(1). Pursuant to Correction Law §§601-a and 601-d, it is the duty of respondent DOCS to make the arrangements to accomplish compliance with the law.

Accordingly, it is hereby

ADJUDGED that the petition is granted, petitioner's term of administratively imposed post-release supervision is vacated, and respondent is directed to proceed expeditiously to arrange for petitioner to be brought back before the court for re sentencing in accordance with the terms of this decision and the governing law.

This constitutes the decision and judgment of this Court.

Dated: March 24, 2009

________________________

J.S.C.

Attorney for Respondent

Andrew M. Cuomo, Esq.

120 Broadway, 24th fl.

New York, NY 10271

212-416-8550 or 8746

Corey Johnson #00A0033

Sullivan Correctional Facility

P.O. Box 116 [*3]

Fallsburg, NY 12733-0116