People v Ewald

[*1] People v Ewald 2009 NY Slip Op 51535(U) [24 Misc 3d 1220(A)] Decided on June 8, 2009 Supreme Court, Suffolk County Pines, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2009
Supreme Court, Suffolk County

People of the State of New York ex rel. Carl Greggs, Petitioner

against

Charles Ewald, Warden, Suffolk County Jail, Respondent



XXXXX



Attorney for Petitioner

Legal Aid Society

Andrea Mackenzie, Esq.

400 Carleton Avenue

Central Islip, New York 11722,

Attorney for the Respondent

Office of the Attorney General

Susan Medeiras-Connolly, AGA

300 Motor Parkway

Hauppauge, New York 11788

Emily Pines, J.

The above-named petitioner seeks a Writ of Habeas Corpus, asking the Court to vacate the period of post-release supervision ("PRS") that was administratively imposed by the Department of Correctional Services ("DOCS")[FN1]. Petitioner was sentenced, based on a plea of guilty, on May 29, 2002, in the Criminal Term of the Queens Supreme Court to a determinate period of incarceration [*2]and a period of PRS (Griffin, J., Ind. Number 3299-01). After the Petitioner served his determinate sentence, he was released from prison. Thereafter, Petitioner was violated on the terms of his PRS and returned to prison. While the sentencing Court advised the Petitioner of the determinate period of incarceration, the Court failed to state a specific period of PRS during sentencing. Therefore, the issue before the Court in the instant proceeding is whether the Court's statement "[s]entence on this is a determinate period of incarceration of three and-a-half years and there's post-release supervision on that" is a valid sentence in accordance with Criminal Procedure Law ("CPL") §§ 380.20 and 380.40.

Counsel for the Petitioner argues that a defendant in a criminal proceeding is entitled to hear the full sentence on the record, including a determinate period of PRS. The Petitioner relies on Benton v. Warden, 120 Misc 3d 516, 862 N.Y.S. (Sup. Ct. Queens Co. 2008) to further the argument that a defendant "cannot be violated for PRS where none existed," which would render the sentence a nullity—in essence not requiring the defendant to serve any PRS.

The Court of Appeals in People v. Sparba, 10 NY3d 457, 889 NE2d 459, 859 NYS2d 582 (2008), held that "sentencing is a uniquely judicial responsibility," the goal of which is to "promot[e] transparency and provid[e] the defendant with a prompt and definitive statement regarding the consequences of his or her guilty plea or conviction." Id. at465, 466. Therefore, the Court must "pronounce sentence in every case where a conviction is entered" in the presence of the defendant. Id. at465. This sentence must be pronounced regardless of whether the PRS term is solely at the discretion of the court or a statutory mandate. Id. at466. The Court of Appeals further held that a "clerk's notations on a worksheet or a commitment sheet" does not satisfy because they are presumably made outside the presence of the defendant, who has the right to hear his sentence pronounced in open court on the record. Id. "[T]he combined command of CPL 380.20 and 380.40 is that the sentencing judge—and only the sentencing judge—is authorized to pronounce the PRS component of a defendant's sentence." Garner v. NY State Dep't. of Correctional Services, 10 NY3d 358, 362, 889 NE2d 467, 859 NYS2d 590, (2008). The New York State Legislature has recently amended the Penal Law following the Court's decision in Sparba to state that the PRS sentence must be accompanied by a definitive period. NY Crim. Proc. Law § 380.20, Comments, McKinney 2009. Clearly the errors observed in these cases occurred during the sentencing of the Petitioner herein.

As a result of conflicts among the departments, the Court of Appeals has examined different remedies afforded prisoners incarcerated following a sentencing Judge's failure to pronounce a definitive term of PRS. There are three possible remedies that can be afforded for such error. In People v. Catu, 4 NY3d 242, 825 NE2d 1081 (2005), a court permitted a petitioner to vacate his plea of guilty because the sentencing court failed to inform him of the PRS term that would accompany the plea. However, the Court noted in Sparba, supra , that this is an inappropriate remedy if the defendant was advised during plea colloquy that the plea would carry with it a PRS term. Sparba, 10 NY3d at 463 n.3. It is this Court's understanding, based upon the People's unopposed statement at the writ hearing, that the Petitioner herein was informed of the PRS during plea colloquy. Second, the Court has the ability to correct the error by vacating the defendant's [*3]sentence, allowing the sentencing court to re-sentence the defendant. (see Sparba, 10 NY3d 457). Third, a court now may vacate the PRS, with consent of the district attorney, a remedy made available by Penal Law § 70.85, which became effective on June 30, 2008. This statute allows for cases in which a determinate sentence was imposed between the dates of September 1, 1998 and June 30, 2008 that carried a term of PRS as required by law but where the court did not "explicitly" state such a term at the pronouncement of the sentence to "re-impose the originally imposed determinate sentence of imprisonment without any term of post-release supervision." In this case Petitioner was sentenced on May 29, 2002 and the court in that sentencing does not impose a determine PRS term. However, this Court has not recieved the consent of the District Attorney (see People v. Boyd, 2009 NY Slip Op. 03627 (2009)) , and this Court declines to apply the new statute. Based of the above, the Court opts for the second remedy set forth in Sparba, supra .

Following the Court's reasoning in People ex rel. Brunson v. Lempke, 20 Misc 3d 316, 862 NYS2d 745 (Sup. Ct. Seneca Co. ), it is the burden of the District Attorney within the sentencing county to provide notice of the error and determine if the sentencing court will take corrective action. Id. at 318. Accordingly, because administrative imposition of PRS herein violated the Petitioner's due process and statutory rights, this writ is hereby granted.

This court finds the Petitioner's current determination illegal, and therefore, directs his release under CPLR §7010(a). The Petitioner is entitled to immediate release.

This constitutes the DECISION and ORDER of this Court.

Dated: June 8, 2009

Riverhead, New York

EMILY PINES

J. S. C. Footnotes

Footnote 1:The Court wishes to acknowledge the valuable aid of Nicole Giambarrese in aiding the Court's draft of this Decision.