Matter of Pan v New York State Dept. of Correctional Servs.

[*1] Matter of Pan v New York State Dept. of Correctional Servs. 2007 NY Slip Op 51209(U) [16 Misc 3d 1101(A)] Decided on June 14, 2007 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2007
Supreme Court, Kings County

In the Matter of the application of Zhi F. Pan, Petitioner, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules

against

New York State Department of Correctional Services, Respondent.



37058/2006

Wayne P. Saitta, J.

Petitioner filed a petition on December 1st, 2006 for a judgment pursuant to Article 78 of the C.P.L.R. seeking the issuance of an order of mandamus, directing Respondent to delete the unlawfully added periods of post release supervision from its computation of Petitioner's sentence.

Upon review and consideration of the Notice of Petition, dated December 1st, 2006, and Verification of Robert C. Newman, Esq., counsel for the Petitioner, and all exhibits annexed thereto; Respondent's Venue Demand, dated March 21st, 2007; Respondent's Answer and Affirmation in Opposition to Petition, dated March 29th, 2007; Respondent's Cross Motion, dated March 29th, 2007, together with its Affirmation in Support of Motion to Dismiss, dated March 29th, 2007, together with a Memorandum of Law in Support of the Respondent's Cross Motion to Dismiss the Petition or Transfer Venue, dated March 29th, 2007; Petitioner's Reply and Answer to Cross Motion, dated April 5th, 2007, together with the Affirmation of Robert C. Newman, Esq.; all the proceedings had herein and after due deliberation, the motion is granted.

FACTS and PROCEDURAL HISTORY

Petitioner was convicted of burglary in the first degree in Erie County and was sentenced to a determinate term of 7½ years. Respondent received Petitioner as an inmate on February 28th, 2001. He was incarcerated at the Otisville Correctional Facility in Orange County, New York. [*2]

Petitioner's conditional release date was November 14th, 2006. He is currently residing in Kings County and reports to a parole officer whose office is located at 14 DeKalb Avenue in Kings County.

At some point while incarcerated, Petitioner discovered that Respondent added a five year period of post release supervision, (hereinafter "PRS"), to Petitioner's sentence. No PRS was imposed by the sentencing judge, nor was the PRS contained in the sentencing commitment.On or about July 26th, 2006 Petitioner contacted Joan M. Pauley, Respondent's employee and the Inmate Records Coordinator at Otisville, seeking removal of the PRS. Ms. Pauley informed Petitioner that DOCS was "not performing a judicial function" by imposing the PRS, and that the PRS was added by operation of Penal Law section 70.45(2). She suggested that Petitioner seek legal advice if he sought to dispute the determination, which resulted in the instant proceeding.

ARGUMENTS

Petitioner argues that the Article 78 proceeding was timely filed on December 4th, 2006 and that venue for a special proceeding is properly placed in Kings County; Petitioner argues his being subjected to parole supervision in Kings County is a "material event" within the meaning of C.P.L.R. §506(b).

Petitioner relies on the Second Circuit's recent decision in Earley v. Murray in which that court found that only a judge of the court may establish a defendant's sentence. Petitioner concedes that the result in Earley is "inconsistent with the result in some prior cases in the Third and Fourth Departments" but that those decisions do not rely on the same issues as did the Earley court, namely the constitutional issue of due process. Petitioner also concedes that a Second Circuit decision is not binding on state courts but it is persuasive and argues that since it states federal constitutional law, it warrants the issue of an order of mandamus excising the period of PRS.

Respondent argues that the PRS portion of Petitioner's sentence was imposed by operation of law pursuant to the New York Penal Law §70.45, which provides that determinate sentences under that section include a period of PRS. Accordingly, since the PRS is imposed by law and not by Respondent, the remedy of an Article 78 special proceeding is not an appropriate remedy by which to seek relief. Respondent further argues that Petitioner's remedy is to file a CPL §440 motion, by which Petitioner could seek to modify or vacate his sentence. By Petitioner's seeking relief through a special proceeding, Respondent argues Petitioner is imputing Respondent with judicial powers it does not have.

Respondent posits that the effect of Earley is unclear and may be reliant upon its facts, specifically whether the defendant was aware of the period of imposed PRS. Accordingly, it argues, this Court should permit discovery to ensure it has the "complete facts", presumably to ascertain when Petitioner had knowledge of the PRS.

Furthermore, Respondent argues that the Earley decision is not binding on state courts unless so directed by the U.S. Supreme Court and that state decisions compel Petitioner to seek relief pursuant to CPL §440.10. Alternatively Respondent argues Petitioner should directly appeal the decision before seeking mandamus.

Petitioner responds stating Respondent seeks to focus on procedural issues in an attempt to deter this Court from deciding the matter on the merits as controlling authority from the Second Department compels this Court to find for the Petitioner.

ANALYSIS [*3]

Prior to deciding whether an Article 78 proceeding is the appropriate means by which Petitioner may seek relief and, if so, the merits of that proceeding, the issue of venue must be addressed.

§506(b) of the C.P.L.R. reads as follows:

(b) Proceeding against body or officer. A proceeding against a body or officer shall be commenced in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the courts of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located...

Respondents argue that Petitioner has no basis to seek venue in Kings County as "Petitioner fails to demonstrate that any Department of Correctional Services official has any involvement with petitioner in Kings County or that any such DOCS official could excise' post-release supervision in Kings County." Accordingly, and owing to the fact that all records and action related thereto would take place in Albany County, venue is properly placed there.

However, Petitioner's position as to venue is persuasive; his being subjected to PRS in Kings County permits venue to be properly placed in Kings County. Petitioner's serving the sentence he alleges Respondent improperly imposed is a material event in the case.

Although Petitioner would be within his right to chose venue in Albany County under the statute, he has elected to chose venue on the basis of where he reside and where he is subject to PRS.

Having decided that venue is properly placed in Kings County, we now turn to the underlying merits of the case.

The United States District Court recently decided in Earley v Murray, 451 F3d 71 [2006], that PRS added administratively by DOCS and not imposed by a court is a "nullity" and thus must be vacated.

That court found that, "The additional provision for post-release supervision added by DOCS is a nullity. The imposition of a 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." (451 F3d at 76, relying on Hill v United States ex rel. Wampler (298 US 460 [1936]).)

Respondents ask this Court to find that the PRS imposed was the result of his conviction for Burglary in the 2nd degree, P.L. §140.25, which sentence includes as part thereof a statutory period of PRS. They argue that the PRS was included in Petitioner's sentence by operation of law.The Court of Appeals for the Second Circuit rejected a similar argument stating "we adhere to our view that the inclusion of a five-year period of PRS in [petitioner's] sentence when that PRS was not included in the sentence imposed at [petitioner's] sentencing hearing violated his rights under the Due Process Clause of the United States Constitution." (Id.) The Second Circuit made it clear that a "judicially-imposed sentence includes only those elements explicitly ordered by the sentencing judge". Earley v Murray, 462 F3d 147, 149 [2006].

Respondents assert that Earley is not controlling precedent. Although not controlling, Earley does serve as "useful and persuasive authority." People v Kin Kan, 78 NY2d 54 (1991). Further the Second Department has adopted the position of the Earley Court and has declined to follow the decisions of the First and Third Departments in rejecting Earley.

The Appellate Division Second Department has consistently ruled since the Earley [*4]decision that because the lower courts' sentencing minutes and orders of commitment failed to include any mention of PRS, the administratively imposed PRS is not part of the sentence. People v. Noble, 2007 NY Slip Op. 01326 (2nd Dept. 2007); People v. Wilson, 37 AD3d 855, 2007 Slip Op. 01765 (2nd Dept. 2007); People v. Smith, 2007 Slip Op. 01157 (2nd Dept. 2007).

Despite the fact that the Appellate Division Second Department has taken a conflicting position to those of the First and Third Departments, its position is clear; where the court does not sentence a defendant to PRS, the sentence imposed "does not include any period of post release supervision". People v. Noble, 2007 NY Slip Op. 01326 (2nd Dept. 2007); see Hill v. United States ex rel. Wampler, 298 US 460 [1936]; Earley v. Murray, 451 F3d 71 [2006], reh denied 462 F3d 147 [2006].Owing to the fact that the Second Department has held that the PRS is not part of the sentence, a CPL §440 to vacate or modify the sentence is not an appropriate remedy.

The post sentencing PRS imposed by DOCS is an act that is beyond the scope of its authority, and thus is not a part of Petitioner's sentence. There is no need for discovery because PRS can not be imposed administratively, whether or not Petitioner had knowledge of the PRS.

WHEREFORE, the Court denies Respondents' motion to change venue, grants the petition and directs the issuance of an order of mandamus directing the New York State Department of Correctional Services to excise the post release supervision improperly imposed upon Petitioner.

The Order shall be stayed for 30 days from entry of this order. This shall constitute the decision and order of this Court.

E N T E R ,

__________________________

J.S.C.