People ex rel. Graham v Warden, Anna M. Kross Ctr.

[*1] People ex rel. Graham v Warden, Anna M. Kross Ctr. 2009 NY Slip Op 51054(U) [23 Misc 3d 1132(A)] Decided on May 29, 2009 Supreme Court, Bronx County Marcus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2009
Supreme Court, Bronx County

The People of the State of New York ex rel. Wesley Graham, B & C No. 141-09-06411; NYSID # 9907077-R; WARRANT # 576711, Petitioner,

against

Warden, Anna M. Kross Center, New York State Division of Parole, Respondents.



251004-09



Michael Arcati, Esq

Assistant Attorney General

120 Broadway,

New York, NY 10271

for the respondent

Elon D. Harpaz, Esq.

Legal Aid Society

Appeals Bureau

199 Water Street

New York, NY 10038-3526

for the petitioner

Martin Marcus, J.

On May 22, 2009, this Court issued an order granting the petitioner's application for a writ of habeas corpus, vacating the parole warrant upon which the petitioner had been held in custody, and denying the Division of Parole's cross-motion requesting that the petitioner's application be transferred to the sentencing court. This decision sets forth the reasons for the Court's order.

On August 26, 2002, following his conviction of Attempted Robbery in the First Degree, the petitioner was sentenced in the Supreme Court of Kings County to a determinate sentence of five years imprisonment.[FN1] At sentencing, the court said nothing concerning the imposition of a term of [*2]Post Release Supervision ("PRS"), and nothing regarding PRS was noted on the commitment sheet. Nonetheless, after the petitioner began serving his prison sentence, the Department of Correctional Services ("DOCS") imposed a five years period of PRS. The petitioner was released to the supervision of the Division of Parole ("the Division") on December 30, 2005, with the DOCS-imposed PRS period scheduled to expire on December 30, 2010. Subsequently, the petitioner was declared to be in delinquency of the conditions of that PRS, a warrant was issued for his arrest, and it was executed on April 23, 2009.

In Garner v. N.Y.S. Dept. of Correctional Services, 10 NY3d 358 (2008), the Court of Appeals held that "the sentencing judge — and only the sentencing judge — is authorized to pronounce the PRS component of a defendant's sentence," and that when a court had not done so, "imposing a period of PRS was in excess of DOCS's jurisdiction." 10 NY3d 362. See also People v. Sparber, 10 NY3d 457 (2008). Thus, there is no question that "the term of PRS administratively imposed by the Department of Correctional Services (DOCS) [is] a nullity." People ex rel. Lewis v. Warden, 51 AD3d 512 (1st Dept. 2008). See also Prendergast v. N.Y.S. Dept. Of Corrections, 51 AD2d 1133 (3d Dept. 2008). As the First Department has explicitly ruled, because "[t]he Division of Parole has no authority to impose a period of postrelease supervision, ... a detainee currently incarcerated due to his alleged violation of the terms of the postrelease supervision improperly added to his sentence by the Division of Parole ... is entitled to immediate release from custody." People ex rel. Gerard v. Kralik 51 AD3d 1045, 1046 (1st Dept. 2008).

Section 601-d of the Correction Law establishes a mechanism by which the sentencing court may conduct a proceeding to determine whether resentencing is appropriate in cases in which the court has failed to impose a statutorily required period of post-release supervision. While the Division concedes that "this Court has the power to release the petitioner from PRS," it nonetheless asks, as it has in every case presenting this identical issue, that the Court exercise its "discretion to transfer this case to [the] sentencing court for resentencing of the petitioner." The problem with the Division's request is that the petitioner is not asking to be resentenced, nor is he asking for confirmation that his sentence should not, in the future, include a period of PRS. Instead, he is asking to be released from custody upon a warrant based on his alleged violation of an unlawfully imposed period of PRS. Thus, even assuming this Court had discretion to transfer this matter to the sentencing court, doing so would only prolong the petitioner's unlawful custody for no valid purpose.

In any case, this Court has no such discretion. Section 601-d of the Correction Law, upon which the Division relies, does not confer upon this Court the authority to transfer the matter to the sentencing court, and, in fact, expressly states that "[n]othing in this section shall affect the power of any court to hear, consider and decide any petition, motion or proceeding pursuant to ... article ...seventy-eight of the civil practice law and rules, or any authorized proceeding." Correction Law §601-d(8). Thus, transferring this matter, as the Division requests, would simply be wrong, see People ex rel. Foote v. Piscotti, 51 AD3d 1407, 1408 (4th Dept. 2008)("County Court erred in refusing to sustain the writ of habeas corpus based upon its conclusion that postrelease supervision was mandated by law and that nullification of postrelease supervision would render petitioner's sentence invalid").

Over the past year, the Division has made the same request to no fewer than sixteen of the judges who sit in Bronx County Supreme Court, and who are assigned on a rotating basis to hear habeas corpus applications made by inmates at Rikers Island. All sixteen, including this judge, have [*3]rejected the Division's request and have ordered the petitioner's release. See People ex rel. Thompson v. Warden, Nov. 21, 2008 (Adler, J.); People ex rel. Griffin v. Warden, Dec. 4, 2008 (Benitez, J.); People ex rel. Esposito v. Warden, Sept. 12, 2008 (Boyle, J.); People ex rel. Green v. Warden, Jan. 29, 2009 (Carter, J.); People ex rel. Washington v. Warden, March 19, 2009 (Dawson, J.); People ex rel. Linares v. Warden, April 27, 2009 (Gross, J.); People ex rel. Gray v. Warden, May 11, 2009 (Lieb, J.); People ex rel. Leach, et al. v. Warden, Oct. 6, 2008 (Lorenzo, J.); People ex rel. Rice v. Warden, Sept. 12, 2008 (Marcus, J.); People ex rel. Parker, et al. v. Warden, July 30, 2008 (Marvin, J.); People ex rel Duffy v. Warden, Aug. 22, 2008 (Newman, J.); People ex rel. Addison v. Warden, 2008 WL 4668195, Oct. 20, 2008 (Price, J.); People ex rel. Calle v. Warden, Aug. 22, 2008 (Paynter, J.); People ex rel. Belize v. Warden, Oct. 10, 2008 (Sonberg, J.); People ex rel. Newby v. Warden, Sept. 25, 2008 (Talmer, J.); People ex rel. Spruill v. Warden, Nov. 20, 2008 (Robert Torres, J.).

In support of its position, the Division relies solely on Scott v. Fisher, 2009 WL 928195, 07 Civ. 11303 (S.D. NY 2009), in which the plaintiff sought damages for the administrative imposition of PRS, and the Court held that the defendants, who included the plaintiff's parole officer and the Commissioner and Associate Counsel of DOCS, were immune from suit for false imprisonment under 42 U.S.C. §1983. Although the plaintiff had already been released from custody by a habeas court in Westchester County, the Court stated in Scott that, given the re-sentencing provisions set forth in Correction Law § 601-d, "[t]he habeas judge was in no way required to release plaintiff" and that, if the sentencing court had not done so, "plaintiff likely would have been sentenced to mandatory PRS ... and there would be no basis for this case." 2009 WL 928195, at *6.

Scott does not consider, however, whether the ex post facto clause of the United States Constitution would bar sentencing a person for violation of a condition of PRS that was unlawfully imposed by DOCS before the violation was committed and that was lawfully imposed by the sentencing court only after that violation. The Third Department has, however, ruled on this question. See Matter of N.Y.S. v. Randy M., 57 AD3d 1157, 1159 (3 Dept. 2008) ("As Supreme Court correctly held, and the Attorney General does not contest, respondent could not validly be incarcerated for violating a term of postrelease supervision which was not properly imposed," and "[t]he court's later resentencing of respondent did not operate retroactively to cure the illegal imposition of postrelease supervision"). See also Donald v. State, ___ Misc 3d ___, 875 N.Y.S. 435 (NY Ct. Cl. 2008); People ex rel. Benton v. Warden, 20 Misc 3d 516 (Bronx Sup. Ct. 2008) (rejecting claim that court's resentencing of petitioner nunc pro tunc to PRS could cure "infirmity" of returning him to custody based upon violation of PRS administratively imposed by DOCS).

Citing Matter of Wright v. N.Y.S. Dept. of Correctional Services, 45 AD3d 1085 (3d Dept. 2007), the Division also argues that "[a]fter a resentencing hearing, the instant action will be mooted." In Wright, the petitioner, while still incarcerated on the term of imprisonment imposed by the sentencing court, brought an article 78 proceeding seeking a declaration that the period of PRS imposed on him by DOCS was void. After the lower court dismissed his application, he appealed. While the appeal was pending, however, his sentence was amended by County Court to include a period of PRS. As a result, the Third Department dismissed the appeal as moot. Since the petitioner in Wright was still serving his lawfully imposed sentence of imprisonment, and was not, like petitioner here, incarcerated for a violation of the conditions of PRS imposed upon him by DOCS, the case has no relevance. Even if the sentencing court hereafter lawfully imposes a period of PRS [*4]on the petitioner, his claim that his present incarceration on an unlawfully imposed period of PRS would not "operate retroactively to cure the illegal imposition of postrelease supervision," Matter of N.Y.S. v. Randy M., 57 AD3d at 1159, and thus would not be moot.

It has been over a year since the Court of Appeals and the First Department unambiguously decided that an individual cannot be held to a term of PRS administratively imposed by DOCS, and that a parole warrant based upon alleged violations of the conditions of that supervision is a nullity. In compliance with these and related decisions, DOCS no longer administratively imposes a period of PRS when a court has not done so, and, instead, employs the procedures set forth in Correction Law § 601-d to enable sentencing courts to correct those sentences in which a mandatory period of PRS was omitted. For those individuals incarcerated solely for an alleged violation of PRS that was imposed, not by a court, but by DOCS, there can be no justification for delay in providing to them the remedy they are clearly entitled to under controlling law: "immediate release from custody." People ex rel. Gerard v. Kralik, 51 AD3d at 1046. Given the state of the law, and after the consistent rulings of the judges of this Court rejecting the Division's position to the contrary, the Division's intractable adherence to its position is inexplicable and unjustified.

For these reasons, the petition was sustained.

This constitutes the decision and order of this Court.

Dated: May 29, 2009______________________

MARTIN MARCUS

J.S.C. Footnotes

Footnote 1: The same day, the defendant was also sentenced to a concurrent indeterminate term of one and one-third to four years imprisonment, upon a youthful offender adjudication for Robbery in the First Degree.