Matter of Diaz v Dennison

[*1] Matter of Diaz v Dennison 2007 NY Slip Op 51240(U) [16 Misc 3d 1103(A)] Decided on June 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2007
Supreme Court, Kings County

In the Matter of the Application of Derek Diaz, Petitioner,

against

Robert Dennison, Chairman, New York State Division of Parole; Brian Fischer, Commissioner, New York State Department of Correctional Services; Martin Horn, Commissioner, New York City Department of Correction, Respondents.



9251/2007

Wayne P. Saitta, J.

Petitioner filed a petition on March 15th, 2007 for a judgment pursuant to Article 78 of the CPLR seeking the following relief:

1)to vacate the five year period of post release supervision, (hereinafter "PRS"), imposed by the New York State Department of Correctional Services, (hereinafter "DOCS");

2)to vacate parole violation warrant number 468440, issued by the New York State Division of Parole;

3)to stay further proceedings of Final Parole Revocation hearing against Petitioner DEREK DIAZ, under warrant number 468440, pursuant to section 7805 of the CPLR;

4)to order the release of DEREK DIAZ by the New York City Department of Corrections; and

5)to grant such other and further relief as this Court deems just and proper.

Upon review and consideration of the Notice of Petition, dated March 15th, 2007, together with the Verification of James Kirshner, Esq., counsel for the Petitioner, dated March 15th, 2007, [*2]and all exhibits annexed thereto; Respondents' Demand for Change of Venue, dated May 11th, 2007; Respondents' Affirmation in Opposition to Petition, dated May 18th, 2007, Respondents' Notice of Cross Motion to Change Venue, dated May 18th, 2007, the Affirmation in Opposition to Respondents' Demand for Change of Venue, dated May 18th, 2007, by James Kirshner, Esq., together with all exhibits annexed thereto; all the proceedings had herein and after due deliberation, the petition is granted.

FACTS and PROCEDURAL HISTORY

On January 22nd, 2001, Petitioner pled guilty to various charges in Kings County Indictment Number 10167/1999, the top count of which was Burglary in the 2nd degree, P.L. §140.25, a C violent felony offense. His guilty plea was entered pursuant to sentencing by the court of "a definite sentence of three years in jail". In pleading guilty, Petitioner waived his right of appeal. Petitioner was sentenced as an adjudicated second felony offender. His promised sentence did not include any period of PRS. He was released to return to the court for sentencing on March 23rd, 2001 at which time he was told that the promised sentence of three years incarceration was an illegal sentence for a plea to a C violent felony offense. Petitioner was informed that the minimum sentence for this offense was five years and not three. No mention was made of PRS. The case was adjourned for sentencing until April 16th, 2001.

On April 16th, 2001, the sentencing judge stated that "the total sentence that I'm imposing is five years". Neither the transcript of the sentencing proceeding nor the court's order of commitment contains any reference to the imposition of a period of PRS.

Upon his release from from the New York State DOCS, Petitioner was administratively placed under the supervision of the Division of Parole. Petitioner was not informed that his sentence included five years PRS until just before being released from prison.

On October 6th, 2006, Petitioner was served with a Notice of Violation which alleged that he violated his post release supervision. Parole warrant number 468440 was executed by the Division of Parole. The Division of Parole commenced a parole revocation hearing against Petitioner. Petitioner was incarcerated and remains incarcerated pursuant to the aforesaid warrant.

On December 19th, 2006 Petitioner moved to vacate his plea in Supreme Court, Kings County pursuant to CPL §440.10, on the grounds that he pled guilty without having been informed of the statutory period of PRS which was later imposed.

In a Decision and Order dated February 20th, 2007, the Honorable Alan Marrus denied the Petitioner's application to vacate on the ground that the PRS imposed by DOCS was not part of his sentence and held that the proper relief should be sought in an Article 78 proceeding. Petitioner has appealed that decision and filed the instant Article 78 Petition.

ARGUMENTS

Petitioner argues that the New York State DOCS is required to adhere to the terms of the court's commitment order. Since the sentencing court did not impose a period of PRS either orally nor in writing, its imposition is a violation of the Petitioner's due process rights under the United States and New York Constitutions. It further argues that the New York State DOCS exceeded its authority when it imposed PRS where the sentencing judge did not. [*3]

Petitioner further argues that since the PRS he is currently serving was unlawfully imposed, the warrant issued for Petitioner's alleged violation of parole should be vacated and he should be released from custody.Respondents argue that because the five year period of PRS is mandated by operation of law, relief under Article 78 is not unavailable. Respondents assert Petitioner must seek relief by appealing the denial of his motion pursuant to Criminal Procedure Law §440.10, and that the sentencing court is in the best position to adjust the oversight and correct the sentence.

Respondents further argue that venue is improperly placed in Kings County as any administrative action complained of could only have taken place in Albany County.

In response to Respondents' Motion to Change Venue, Petitioner argues that all of the material events underlying the Article 78 Proceeding occurred in Kings County and therefore venue is properly placed.

ANALYSIS

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 because the PRS was imposed by a state administrative body, venue

is appropriately placed in Albany County.

In this case, material events occurred both in Kings County and in Albany County. Petitioner's sentencing and the issuance of the commitment order, both of which were silent on the issue of PRS, occurred in Kings County. The omission of PRS is the subject matter of the Article 78 proceeding.

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 the sentencing and order of commitment took place.

Respondents' reliance upon Vigilante v. Dennison, wherein venue was found to be proper in Albany County, is misplaced. 36 AD3d 620 (2nd Dept. 2007).Vigilante involved an appeal from a determination of the Parole Board after a hearing, which was ultimately decided in Albany County. In the instant matter, the determinative act, for the purposes of venue, is where Petitioner was sentenced, which was in Kings County. Having decided that venue is properly placed in Kings County, we now turn to the underlying merits of the case. [*4]

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, rather the Court of Appeals decision in the People v. Catu controls. 4 NY3d 242 (2005).

However the Catu decision predates the Earley decision, and the Second Department has adopted the position of the Earley Court. Although not controlling, Earley does serve as "useful and persuasive authority." People v Kin Kan, 78 NY2d 54 (1991).

The Appellate Division Second Department has consistently followed the Earley Court and ruled 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 [*5]denied 462 F3d 147 [2006].

Respondents further ask that the sentencing judge be directed to modify the initial sentence; they argue that the Appellate Division has never held that an Article 78 proceeding is an appropriate means to challenge the post sentencing imposition of PRS. Respondents continue that since this Court is not an appellate court, it "must respect the determination of Judge Marrus of the Supreme Court, a sister court to this Court."

However, Petitioner did file a CPL §440.10 motion and Judge Marrus held that CPL §440.10 was not the appropriate means to challenge the sentence. Judge Marrus directed Petitioner to file a special proceeding for judicial review of the PRS determination.

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. Therefore Petitioner's incarceration based on an alleged violation of the PRS is improper.

WHEREFORE, the Court denies Respondents' motion to change venue, grants the petition and:

1)directs the New York State Department of Correctional Services to excise the post release supervision imposed upon Petitioner; and

2)vacates parole violation warrant number 468440, issued by the New York State Division of Parole; and

3)stays further proceedings of Final Parole Revocation hearing against Petitioner DEREK DIAZ, under warrant number 468440, pursuant to section 7805 of the CPLR; and

4)orders the New York City Department of Corrections to release DEREK DIAZ.

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 ,

__________________________

WAYNE P. SAITTA, J.S.C.