People ex rel. Wilder v Reilly

[*1] People ex rel. Wilder v Reilly 2007 NY Slip Op 51446(U) [16 Misc 3d 1116(A)] Decided on July 13, 2007 Supreme Court, Nassau County Robbins, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 22, 2007; it will not be published in the printed Official Reports.

Decided on July 13, 2007
Supreme Court, Nassau County

The People of the State of New York ex rel. Kevin Wilder, Petitioner,

against

Edward Reilly, Sheriff of Nassau County, Respondent.



1093N/01

Appearances:

David Rosenfeld, Esq.
Legal Aid Society of Nassau County

Andrew M. Cuomo
Assistant Attorney General
Valerie Singleton, of Counsel


Tammy S. Robbins, J.

Kevin Wilder brings this petition for a writ of habeas corpus seeking the vacatur of his parole warrant on the basis that the period of postrelease supervision ("PRS") administratively imposed by the Department of Correctional Services ("DOCS") is unlawful as it violates his due process rights. Petitioner seeks immediate release from Nassau County Correctional Facility.

On December 3, 2001, Petitioner was sentenced by the Hon. Daniel J. Cotter of Nassau County, County Court to a determinate term of three (3) years for Assault in the Second Degree. At the time of sentencing the court did not impose the mandatory period of postrelease supervision as required by Penal Law §70.45. A five-year period of postrelease supervision was administratively imposed by DOCS. On September 22, 2004 the petitioner was released from Marcy Correctional Facility to postrelease supervision with a maximum expiration date of September 22, 2009.

On December 6, 2006, the petitioner was declared delinquent for violating the Conditions of Release and six (6) charges were filed against him in a Violation of Release Report dated January 11, 2007. On April 1, 2007 Warrant No. 463373 was lodged against the petitioner at the Freeport Police Station. On April 2, 2007, petitioner was served with a Notice of Violation from the Division of Parole and the final hearing was scheduled for April 30, 2007. On May 7, 2007, petitioner filed a petition for a Writ of Habeas Corpus. Respondent filed an Affirmation in Opposition dated May 28, 2007 and on June 1, 2007, petitioner filed a Reply Affirmation.

[*2]Arguments

The petitioner claims that his hold based upon a violation of parole is illegal because the five years postrelease supervision imposed by DOCS was not included in the sentence imposed at the sentencing hearing. Petitioner argues that "any additional penalty added to his sentence by another authority is invalid, regardless of its source, origin, or authority, until the judge personally amends the sentence" (People ex rel. Lewis v Warden, Otis Baum Correctional Ctr., N.Y. State Div. of Parole, N.Y. State Dept. of Correctional Servs., 14 Misc 3d 468, 825 NYS2d 341 (Sup. Ct. Bronx Co. 2006)).

Respondent argues that petitioner's writ of habeas corpus is time barred by the four month statute of limitations pursuant to C.P.L.R. §217. Respondent argues that the petitioner's writ of habeas corpus is also time barred by the one-year statute of limitations for federal habeas corpus petitions filed by state prisoners who are on notice of the facts supporting their claims. Respondent maintains that the period for bringing an Article 78 or Article 70 petition should be triggered from the date petitioner was on notice that DOCS administratively added postrelease supervision to his sentence.

Additionally, the respondent argues that the five years of PRS is mandatory and imposed by operation of New York Penal Law § 70.45. Respondent acknowledges the various intermediate appellate court decisions debating the automatic imposition of postrelease supervision pursuant to New York Penal Law (see People of the State of New York ex rel. Garner v Warden, Rikers Island Correctional Facility, et al., 833 NYS2d 384, 2007 NY Slip Op. 03789; Matter of Garner v New York State Dept. of Correctional Servs., 39 AD3d 1019, 831 NYS2d 923, 2007 NY Slip Op. 03055 (3d Dept. 2007); People v Wilson, 37 AD3d 855, 829 NYS2d 917 (2d Dept.2007); People v Noble, 37 AD3d 622 (2d Dept. 2007); People v Boyer, 36 AD3d 1084 (3d Dept. 2007); People v. Bloom, 269 AD2d 86 (4th Dept.) lv. denied, 94 NY2d 945 (2000)). Respondent argues that the Court of Appeals opinion in People v. Catu, 4 NY3d 242, 825 NE2d 1081, 792 NYS2d 887 (2005) is binding on this court. Respondent contends that in Catu, the court found that PRS was "automatically" part of a determinate sentence and therefore the defendant had to be advised that a mandatory period of PRS would be imposed (Id.). The court ruled that the defendant was entitled to vacate the plea because he had not been advised that he would be subject to PSR upon his release. Respondent asserts that the court determined that PSR was an integral part of the sentence and the failure of the sentencing court to state such terms was irrelevant because DOC was mandated by statute to impose the PRS.

Respondent further argues that the Second Circuit Court of Appeals decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) is not binding on this court and is not applicable where the New York Penal Law creates a precise sentencing outcome. The respondent cites to People v. Kin Kan, 78 NY2d 54, 60 (1991), asserting that New York State courts are not bound by the Earley ruling because the interpretation of federal law by a lower federal court is not binding on New York courts. Respondent argues that even if this court does apply the decision in Earley tothe facts here, the petitioner is not entitled to immediate release as New York law has established procedures to correct sentence defects and when correcting a sentence is possible, a defendant is not entitled to release pursuant to habeas corpus (People v. Wright, 56 NY2d 613 (1982); People v. Hill, - - - AD3d

- - -, 830 NYS2d 33, 41 {39 AD3d 1} (1st Dep't 2007); People ex rel. Joyner, 2007 NY Misc. LEXIS 3335 at *14 (Sup. Ct. Bronx Co. 2007). [*3]

The petitioner filed a reply to the Affirmation in Opposition to the petition stating that the petitioner's Writ of Habeas Corpus was timely and not barred by the four month statute of limitations. Petitioner argues that the Second Department as well as lower courts have held that when a judge fails to include PRS at sentencing, the sentence does not include PRS (People v. Wilson, 37 AD3d at 855; People v. Noble, 37 AD3d at 622). Further, petitioner argues that respondent misconstrued People v. Catu (4 NY3d at 242) stating that if the Court of Appeals wanted PRS to be added administratively when a trial court failed to make a defendant aware of PRS, then thecourt would not have allowed the defendant to vacate his plea.

Discussion

Petitioner is currently imprisoned as a result of an administratively imposed period of post release supervision and it is within his right to inquire as to the "cause of such detention" pursuant to C.P.L.R. §7002.

A person illegally imprisoned or otherwise

restrained in his liberty within the state ...

may petition without notice for a writ of

habeas corpus to inquire into the cause of

such detention and for deliverance. A judge

authorized to issue writs of habeas corpus

having evidence, in a judicial proceeding

before him, that any person is so detained

shall, on his own initiative, issue a writ of

habeas corpus for the relief of that person.

(C.P.L.R. §7002).

Here, petitioner was imprisoned on a parole violation after he was sentenced to a determinate period of time, served said time, and was given an additional period of supervision by DOCS, an administrative agency, when he was not informed of this by the sentencing judge on the record. "Therefore, a writ of habeas corpus is a proper remedy to address the legality or illegality of an administratively imposed five-year period of postrelease supervision" (People ex rel. Lewis v. Warden, 14 Misc 3d at 468).

The petition is not time barred by the state statute of limitations for the filing of habeas corpus petitions (since defendant has not filed his petition in federal court, this court need not consider that argument). C.P.L.R. §217 states in pertinent part that "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner ... or after the respondent's refusal, upon the demand of the petitioner ...." (C.P.L.R. §217 ). "A determination becomes final and binding when it has an impact on the petitioner" (Ford v. New York City Empolyees' Retirement System, - - - NYS2d - - -, 2007 WL 1775965 (2d Dept. 2007)) and when the petitioner was notified of the determination (see

A. Edmead v. McGuire, 67 NY2d 714, 490 NE2d 853, 499 NYS2d 934 (1986)). The petition before this court is one of mandamus. The applicable time period should be the date which the respondent refused to consent to petitioner's demand to perform its duty, that date being when [*4]respondent filed its response to the present petition (see Matter of Waters v Dennison, 15 Misc 3d 722, 836 NYS2d 786, 2007 NY Slip Op. 27093). Moreover, "[i]f the trial judge does not mention postrelease supervision at the allocution, as happened here, a defendant can hardly be expected to move ... on a ground of which he has no knowledge." (People v. Louree, - - - NE2d - - -, 2007 WL 1594425, 2007 NY Slip Op. 04679).

The Second Department has consistently held that New York Penal Law §70.45 does not automatically act to impose the mandatory period of PRS when the sentence actually imposed by the court never included any period of PRS (see People v Martinez, 40 AD3d 1012, 837 NYS2d 221 (2nd Dept. 2007); People v Royster, 40 AD3d 885, 835 NYS2d 732 (2d Dept. 2007); People v Brown, 39 AD3d 659, 834 NYS2d 262, (2d Dept. 2007); People v Thompson, 39 AD3d 572, 831 NYS2d 720 (2d Dept. 2007); People v Benson, 38 AD3d 563, 831 NYS2d 266 (2d Dept. 2007); People v Sebastian, 38 AD3d 576, 833 NYS2d 109 (2d Dept. 2007); People v. Wilson, 37 AD3d 855, 829 NYS2d 917 (2d Dept. 2007); People v. Noble, 37 AD3d 622, 831 NYS2d 198 (2d Dept. 2007); People v. Smith, 37 AD3d 499, 829 NYS2d 226, 227 (2d Dept. 2007)).

Allowing DOC to impose PRS to a defendant's sentence is contrary to the due process guarantees of the United States Constitution (see Earley, 451 F.3d at 71 (2d Cir. 2006); Earley v. Murray, 462 F.3d 147 (2d Cir. 2006); Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S. Ct. 760, 80 L. Ed. 1283 (1936)). Respondent contends that this court is not bound by the decision in Earley v. Murray (462 F.3d at 147). Respondent argues that the Second Circuit interpreted Wampler too broadly (Hill v. United States ex rel. Wampler, 298 U.S. at 460). The Wampler case dealt with a practice in the District of Maryland whereby a clerk of the court would include a provision in the written judgment which stated that a defendant shall be imprisoned until a fine was paid even if the judge in the case had not stated such term at the sentencing of the defendant. Respondent cites to cases where courts have disagreed with the Second Circuit, finding that the conclusion reached in the Earley case, that a "sentence may not be increased by an administrator's amendment" is not applicable to the mandatory sentencing laws establishing postrelease supervision guidelines in New York state (Earley v. Murray, 451 F.3d 71, rehearing denied, 462 F.3d 147 (2d Cir. 2006), on remand, 2007 WL 1288031 (E.D.NY 2007)). Respondent distinguishes Wampler, maintaining that the case dealt with a discretionary matter of court fines which was imposed by a clerk whereas this case deals with postrelease supervision mandated by statute. However, the court specifically addressed this argument in its second decision for the Earley case.

When the sentence as imposed by the sentencing judge

is purportedly altered to reflect something other than the

sentence imposed, the source of that alteration is immaterial.

Whether it is DOCS administrators or the operation of

New York law that works the alteration, the alteration is

of no effect. As we stated in our original decision "[o]nly

the judgment of a court, as expressed through the sentence

imposed by a judge, has the power to constrain a person's

liberty." Earley, 451 F3d at 75. And that judgment includes

only those terms expressly imposed. [*5]

(Earley, 462 F.3d at 147).

The Early court looked to the underlying constitutional implications presented by the facts in Wampler. The cases relied upon by respondent distinguish the facts of Wampler from cases where there is a statutory mandate; however, the cases do not address the significance to our constitutional ideals of denying an individual due process of law by administratively imposing a sentence without the presence of the defendant.

It is important to note that where courts have found that PRS was included in the defendant's sentence even though it was not mentioned at the sentencing hearing, those courts have held that to impose the PRS, the defendant must be brought before the sentencing judge or the defendant must be allowed to withdraw his plea or vacate his judgment. In the district court decision for the Earley case (Earley v. Murray, Slip Copy, 2007 WL at 1288031 (E.D.NY 2007)), Judge Korman found that the sentence was not legal because it failed to include the mandatory five-year period of supervised release. The court granted the petition for a writ of habeas corpus, but stayed its imposition to permit the sentencing court to exercise its power to conform the sentence to the mandate of New York law (Id.). The court's decision reveals that the court would not allow the sentence to be modified without the defendant being brought before the sentencing court. In Catu, the court found that "[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction" (4 NY3d at 242). Moreover, the court held that a defendant is entitled to vacate his plea and does not have to establish that he would have declined to plead guilty if informed of the postrelease supervision. It is clear that even when courts have found that the state's mandatory sentencing guidelines act to automatically impose the period of postrelease supervision, a modification to a defendant's sentence is not permitted without due process of law.

This court is therefore left to the interpretation that where, as here, the defendant has already completed serving a sentence which can no longer be vacated or modified, the defendant cannot be held in prison on an enhanced sentence which was administratively imposed by DOCS. "[T]he only sentence known to the law is the sentence or judgment entered upon the records of the court." (Hill v. United States ex rel. Wampler, 298 U.S. at 460). "Thus, contrary to respondent's contention, a sentence cannot contain elements that were not part of a judge's pronouncement." (Earley v. Murray, 462 F.3d 147, 149). In accordance with the rule of law set forth by the Second Department, "the sentence actually imposed by the court never included, and does not know include, any period of postrelease supervision" (see People v. Martinez, 40 AD3d at 1012; People v. Royster, 40 AD3d at 885; People v. Brown, 39 AD3d at 659; People v. Thompson, 39 AD3d at 572; People v. Benson, 38 AD3d at 563; People v. Sebastian, 38 AD3d at 576; People v. Wilson, 37 AD3d at 855; People v. Noble, 37 AD3d at 622; People v. Smith, 37 AD3d at 499).

The petitioner's writ of habeas corpus is sustained and, pursuant to C.P.L.R. 7010(a), it is directed that the petitioner be discharged on any matter holding him pursuant to the postrelease supervision imposed on September 22, 2004 and any resulting parole violation filed pursuant to the postrelease supervision imposed on September 22, 2004.

IT IS SO ORDERED. [*6]

________________________________

Hon. Tammy S. Robbins

County Court Judge and

Acting Justice of the Supreme Court

Dated: July 13, 2007

Mineola, New York