People ex rel. Santos v Warden, George R. Vierno Ctr.

[*1] People ex rel. Santos v Warden, George R. Vierno Ctr. 2007 NY Slip Op 52089(U) [17 Misc 3d 1120(A)] Decided on October 23, 2007 Supreme Court, Bronx County Gross, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2007
Supreme Court, Bronx County

The People of the State of New York ex rel. Victor Santos, Petitioner,

against

Warden, George R. Vierno Center, and New York State Division of Parole, Respondent.



75123-07

Michael A. Gross, J.

Upon a plea of guilty, petitioner was convicted of Rape in the First Degree in Bronx County Supreme Court.[FN1] On January 7, 2000, petitioner was sentenced by the Honorable Barbara F. Newman as a first-time felony offender to a determinate term of imprisonment of seven years. As the record reflects, the sentencing court did not state that petitioner's sentence included a period of post-release supervision as mandated under P.L. §70.45. The clerk of the court also failed to record any period of post-release supervision on petitioner's commitment papers.

On December 6, 2005, petitioner was released from prison. Upon his release, the Division notified petitioner that he was subject to a five-year period of post-release supervision, which he immediately began serving. On July 9, 2006, petitioner was declared delinquent of the conditions of his release. On July 19, 2006, a parole warrant was issued against petitioner, who was charged with violating the conditions of his release. A final hearing was held on July 31, 2006. Petitioner was found in violation of the terms of his post-release supervision, and a time assessment of twelve months was imposed upon him. He was ordered to be held until December 15, 2010 the maximum expiration date of his post-release supervision. [*2]

By papers dated February 24, 2007, petitioner filed a motion to vacate the judgment of conviction pursuant to C.P.L. §440.10 on the ground that his guilty plea was not knowingly, intelligently and voluntarily made because he was not advised that his sentence would include a period of post-release supervision. Alternatively, defendant moved to have the Court modify his illegal sentence to a determinate term of imprisonment of five years and a two-and-one-half-year period of post-release supervision.

In a decision rendered in August of 2007, the sentencing court summarily denied petitioner's motion to vacate his conviction pursuant to C.P.L. §440.30 (see People v. Santos, Ind. No. 8421/98 [Sup. Ct. Bronx County, August 2007] [Newman, J.]). The Court held that petitioner's claim that his plea was not entered knowingly, voluntarily and intelligently was contradicted by the plea record which conclusively established that the Court had advised him that his sentence would include a five-year period of post-release supervision (id. at 2-3). However, the Court further held that because it did not mention post-release supervision when it imposed sentence upon the petitioner as required by P.L. §70.45, the "sentence as pronounced on January 7, 2000, was not legal" (id. at 3). Because petitioner was not a second felony offender, "the length of the period of post-release supervision was within the court's discretion" (id.). Accordingly, relying on People v. Hill, 39 AD3d 1 (1st Dept. 2007), the Court held that the Department of Correctional Services "did not have authority to impose any period of post-release supervision administratively" (id.). The court exercised its inherent power to correct petitioner's illegal sentence by resentencing him in accordance with P.L. §70.45. On August 30, 2007, petitioner was resentenced to a determinate term of imprisonment of seven years with a five-year period of post-release supervision.

Petitioner's Writ of Habeas Corpus

During the pendency of his C.P.L. §440 motion, petitioner filed the instant writ of habeas corpus for an order vacating his parole warrant and reinstating him to parole supervision based upon his claim that he was illegally sentenced to a period of post-release supervision. In his writ, petitioner alleges that the "period of post-release supervision imposed on petitioner is a nullity because it was imposed administratively after petitioner's sentencing, and not by the court at the time of sentencing." This Court deferred decision until the resolution of petitioner's 440 motion, as discussed supra.

Petitioner's Claims

In his papers, petitioner claims that post-release supervision was illegally imposed by the Division.Relying on Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), petitioner claims that the sentencing court had sole authority to impose post-release supervision, and that it failed to do so at the time of sentencing. In Earley, the petitioner was not informed of post-release supervision at the time of his sentence. He subsequently filed a writ of habeas corpus, claiming that the Department of Correctional Services (DOCS) impermissibly added the term of post-release supervision. The Second Circuit sustained the writ, holding that the only authorized sentence was the determinate sentence imposed by the judge, and the additional provision for post-release supervision added by DOCS was invalid (id. at 75). It held that the "imposition of sentence is a judicial act" and that the "penalty administratively added by [DOCS] was . . . never a part of sentence" (id. At 76). Petitioner further argues that "[i]n the wake of Earley, the Appellate Division, First Department, has held that post-release supervision may not be administratively imposed on a first-time felony offender," citing People v. Hill, 39 AD3d 1 (1st [*3]Dept. 2007). Applying the holdings in Earley and Hill to the facts in this case, petitioner claims that his parole warrant should be vacated since post-release supervision was improperly imposed by the Division.

In response, the Division claims that post-release supervision was imposed automatically by operation of law at the time of sentencing, relying on the First Department's decisions in People v. Thomas, 35 AD3d 192 (1st Dept. 2006); People v. Sparber, 34 AD3d 265 (1st Dept. 2006); People Lingle, 34 AD3d 287 (1st Dept. 2006). It urges this Court to reject the Second Circuit's decision in Earley since it is not binding on state courts. The Division further contends that where the court fails to impose a period of post-release supervision, the issue should be addressed by the sentencing court in a motion to vacate judgment pursuant to C.P.L. § 440 or on direct appeal, not by writ of habeas corpus.[FN2]

Conclusion of Law

Pursuant to Penal Law §70.45(1), "each determinate sentence also includes, as a part thereof, an additional period of post-release supervision." The period of post-release supervision for a determinate sentence "shall be five years" ( P.L. §70.45[2]). However, there are exceptions to this rule. When a defendant is a first violent felony offender under P.L. §70.02, the sentencing court has discretion with respect to the term of post-release supervision imposed.[FN3] Where a first offender has been convicted of a class B or C violent felony offense, the Court had discretion to impose a period of post-release supervision of "not less than two and one-half years nor more than five years" ( P.L. §70.45[2][f]).

Given the statutory mandate of post-release supervision, the issue presented is whether post-release supervision was lawfully imposed in this case despite the sentencing court's failure expressly to include it at the time of sentencing. Since Earley has been decided, the Appellate Division, First Department, has rendered several decisions dealing with this very issue. Upon review of the case law, it appears that the First Department has created a significant distinction between first-time violent felony offenders (P.L. §70.02) and second felony offenders subject to a determinate sentence (P.L. §§70.04, 70.06[6]) with respect to the imposition of post-release supervision .

In sentencing such a second felony offender, a court has no discretion regarding the amount of post-release supervision which it must impose. Accordingly, the First Department has held that the mandatory five-year period of post-release supervision is automatically included in a determinate sentence regardless of whether the sentencing judge expressly included it as a part of sentence (see People v. Thomas, 35 AD3d 192 [1st Dept. 2006]; People v. Sparber, 34 AD3d 265 [1st Dept. 2006]; People Lingle, 34 AD3d 287 [1st Dept. 2006]).[FN4] In People v. Lingle, the defendant sought to have [*4]the five-year period of post-release supervision stricken from his sentence on the ground that it was "not part of the sentence that the court pronounced orally, in his presence in open court, and that it was not added by way of a judicial proceeding" (34 AD3d at 289). In rejecting the defendant's claim, the Court held that the "Penal Law does not merely direct or require a court to impose [post-release supervision] when imposing a determinate sentence; instead, it provides that Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision' which, in defendant's situation, is precisely five years, with no discretion available" (34 AD3d at 289; see also Thomas, 35 AD3d at 193; Sparber, 34 AD3d at 265 [both holding that mandatory post-release supervision automatically imposed upon second felony offenders despite sentencing court's silence]; see generally People v. Lemos, 34 AD3d 343 [1st Dept. 2006]). Therefore, even if the court's oral sentence was silent regarding post-release supervision, it "necessarily included a five-year term thereof" (Thomas, 35 AD3d at 193; Sparber, 34 AD3d at 265; Lingle, 34 AD3d at 289; see also People ex rel. Garner v. Warden, 40 AD3d 243 [1st Dept. 2007] [despite sentencing court's silence, post-release supervision not unauthorized upon second violent felony offender simply because it was enforced by corrections or parole]; People v. Rivera, 36 AD3d 563 [1st Dept. 2007]).

However, in the recent decision of People v. Hill, 39 AD3d 1 (1st Dept. 2007), the First Department created a distinction between first violent felony offenders and second felony offenders subject to a determinate sentence with respect to the imposition of post-release supervision.[FN5] Following its earlier holdings in Lingle, Sparber and Thomas, the Court stated, in dictum, that "it is sensible to construe Penal Law §70.45(2) to deem a five-year period of post-release supervision to have been imposed whenever a sentencing court fails to specify the period upon sentencing a second felony offender to a determinate sentence for a violent felony offense pursuant to Penal Law §70.04 or 70.06. After all, no period of post-release supervision is authorized other than the five-year period specified" (Hill, 39 AD3d at 10).However, that Court reached a very, different conclusion with respect to first violent felony offenders for whom Penal Law §70.45 vests the trial court with discretion as to the period of post-release supervision. The Court held that for all first [*5]violent felony offenders for whom "the statute permits the trial court to choose from within a range of periods of post-release supervision, . . . no period within the ranges . . . enjoys any presumptive status" (id. at 11). The Court noted that "the statute cannot be construed to authorize [DOCS] to impose the appropriate period of post-release supervision whenever a trial court fails to perform the duty the statute enjoins it to perform. No language in the statute supports such a construction and determining the appropriate sentence within the ranges prescribed by Legislature is quintessentially a judicial function" (id. at 11, fn.7). The Court further stated that "it is sufficient to note that a significant constitutional issue would be raised if Penal Law §70.45(2) were construed to mandate the longest of the authorized periods of post-release supervision (five years for a class B or C violent felony offense . . .) whenever sentence is imposed pursuant to Penal Law §70.02 and the sentencing court fails to specify the period of post-release supervision. Avoiding that constitutional question provides another reason to conclude that under such circumstances no period of post-release supervision is added to a defendant's sentence by operation of law" (id.). Thus, the Court held that the "better conclusion is that no period of post-release supervision is imposed by operation of law when a sentencing court does not specify a period upon sentencing a defendant for a violent felony offense pursuant to P.L. §70.02" (id. at 13).[FN6]

Since Earley and Hill have been decided, there have been several lower court cases which have similarly held that no period of post-release supervision is imposed by operation of law upon a first violent felony offender where the court has discretion with respect to the amount of post-release supervision to impose (see People ex rel. Mazario, 16 Misc 3d 1109A [Sup. Ct. Bronx Co. 2007] [Dawson, J.]; People ex rel. White v. Warden, 15 Misc 3d 360 [Sup. Ct. Bronx Co. 2007] [Marcus, J.]; People ex rel. Johnson v. Warden, 15 Misc 3d 1102A [Sup. Ct. Bronx Co. 2007] [Adler, J.]; People ex rel. Nelson v. Warden, Index No. 75121/07 [Sup. Ct. Bronx Co., July 24, 2007] [Fisch, J.]; People ex rel. Hyter v. Warden, Index No. 75091/07 [Sup. Ct. Bronx Co., June 8, 2007] [Clancy, J.]; People ex rel. Feminella et al v. New York State Div. of Parole, Index No. 51179/07 [Sup. Ct. Bronx Co., May 11, 2007] [Fabrizio, J.]; People ex rel. Brown v. Warden, Index No. 75036/07 [Sup. Ct. Bronx. Co., April 4, 2007] [Boyle, J.]; People ex rel. Franklin v. Warden, Index No. 75091/07 [Sup. Ct. Bronx Co., March 12, 2007] [Clancy, J.]). In each of those cases, the court sustained the petitioner's writ of habeas corpus and vacated the parole warrant where the sentencing court failed to impose any period of post-release supervision on a first-time violent felony offender.

In this case, petitioner was sentenced as a first-time violent felony offender, having been convicted of Rape in the First Degree, a Class B violent felony. Thus, the sentencing court had discretion to impose a period of post-release supervision ranging from two-and one-half years to five years. However, no period of post-release supervision was specifically imposed by the sentencing court or recorded by the clerk on the commitment papers. Nevertheless, DOCS [*6]administratively imposed a five-year period of post-release supervision, which is the maximum period authorized by law. In view of the First Department's decision in Hill which is binding on this Court and the persuasive lower court cases which have since followed Hill, this Court finds that post-release supervision was not automatically imposed by operation of law upon petitioner as a first-time violent felony offender (see Hill, 39 AD3d at 13). Accordingly, since there was no post-release supervision included in petitioner's sentence, the five-year period of post-release supervision administratively imposed by DOCS is a legal nullity. Since he can not be detained for violating post-release supervision, petitioner's writ of habeas corpus is sustained (see Mazario, 16 Misc 3d at 1109A; White, 15 Misc 3d 368-71; Johnson, 15 Misc 3d at 1102A).

In any event, this Court's review of this claim is barred by the doctrine of res judicata (see Matter of Rodriguez v. Rodriguez, 189 AD2d 735 [1st Dept. 1993]; Matter of Woodard v. Coughlin, 165 AD2d 968 [3d Dept. 1990]). Petitioner has already raised his claim that DOCS illegally imposed a period of post-release supervision in his C.P.L. §440.10 motion before the sentencing court. While denying petitioner's motion to set aside his conviction, the sentencing court found that petitioner's sentence was, indeed, illegal because it failed to include post-release supervision as mandated under the Penal Law. The court further held that DOCS did not have authority to impose administratively any period of post-release supervision upon petitioner as a first-time violent felon where the court has discretion with respect to the amount of post-release supervision to impose (Santos, supra at 3). Thus, under the doctrine of res judicata, this issue has already been raised and decided by the sentencing court (see Garner, 40 AD3d at 243 [petitioner's claim regarding illegal imposition of post-release supervision previously adjudicated, having been raised by petitioner in 440 motion and decided by sentencing court]). Accordingly, this Court is bound by the sentencing court's decision that DOCS had no authority to impose post-release supervision on petitioner (id.).

Since post-release supervision was illegally imposed upon petitioner by DOCS, it must be declared void. Although the sentencing court recently resentenced petitioner to a lawful sentence which included a five-year period of post-release supervision, that does not retroactively correct the illegality of DOCS' actions. At the time petitioner's parole warrant was issued, post-release supervision had not been a part of petitioner's sentence and had been illegally imposed by DOCS. The Division's claim that the resentencing of petitioner to post-release supervision should run nunc pro tunc is rejected. Indeed, the sentencing court's decision is silent with respect to this issue.[FN7] Furthermore, the Division has failed to offer any legal authority in support of this position.

Finally, the Division claims that a writ of habeas corpus is not the appropriate forum to seek relief of a post-release supervision claim. Rather, the Division argues that the proper remedy is a motion to vacate the judgment of conviction pursuant to C.P.L. §440.10 or on appeal. The Division's claim is rejected. Petitioner could hardly file a timely appeal raising this issue since he was not aware of post-release supervision until after his release (see Mazario, 16 Misc 3d at 1109A; White, 15 Misc 3d 368-71). Furthermore, petitioner did, indeed, move to vacate judgment pursuant to C.P.L.§ 440, but was unsuccessful since he had been advised of post-release supervision at the time of his plea. Indeed, in view of the illegality of DOCS' actions at the time the warrant was [*7]issued, a writ of habeas corpus was clearly an appropriate vehicle for petitioner's claim. Under C.P.L.R.§7002(a), a person who is "illegally imprisoned or otherwise restrained of his liberty" has the right to seek a determination of the lawfulness of that detention through a petition for writ of habeas corpus (see White, 15 Misc 3d at 368 ; People ex rel. Lewis v. Warden, 14 Misc 3d 468 [Sup. Ct. Bronx Co. 2006] [Cirigliano, J.]; Matter of Waters v. Dennison, 13 Misc 3d 1105 [Sup. Ct. Bronx Co. 2006] [Cirigliano, J.]). Therefore, the Court finds that there is no bar to hearing petitioner's instant claim.

Accordingly, since the administrative imposition of post-release supervision by DOCS was unlawful, it must be declared a nullity. Therefore, petitioner's writ of habeas corpus is sustained, and his parole warrant is hereby vacated.

This constitutes the decision and order of the Court.

DATED: Bronx, New York

October 23, 2007

_________________________

Michael A. Gross, J.S.C. Footnotes

Footnote 1:At the time of his plea, defendant was told that his sentence would include a five-year period of post-release supervision.

Footnote 2:In support of this claim, the respondent relies upon a decision rendered by this Court, People ex rel. Garner v. Warden, Index No. 51225-96 (Sup. Ct. Bronx Co. 2006) (Gross, J). However, this case was decided prior to the Second Circuit's decision in Earley.

Footnote 3:The statute also gives discretion with respect to felony drug offenders sentenced pursuant to P.L. §70.70.

Footnote 4:In each of those cases, the First Department relied upon a series of cases decided by the Third and Fourth Departments, which held that post-release supervision is mandatory and automatically included in the sentence regardless of whether the trial court orally imposed it (see People v. Crump, 302 AD2d 901 [3d Dept. 2003]; People v. Thweatt, 300 AD2d 1100 [4th Dept. 2002]; People v. Bloom, 269 AD2d 838 [4th Dept. 2000]).



Footnote 5:In contrast to the First Department, the Second Department makes no distinction between cases involving predicate felons, in which the sentencing court has no discretion regarding post-release supervision and cases involving first violent felons, in which the sentencing court has discretionary authority to modify the period of post-release supervision. The Second Department has routinely held that the sentence does not include post-release supervision where the sentencing minutes and commitment documents fail expressly to authorize it (see People v. Noble, 37 AD3d 622 [2d Dept. 2007]; People v. Wilson, 37 AD3d 855 [2d Dept. 2007]; People v. Smith, 37 AD3d 499 [2d Dept. 2007]). Indeed, the Second Department's blanket ruling on this issue is at odds with the First Department's decisions in Sparber and Lingle decisions which held that post-release supervision is automatically included in a determinate sentence for second felony offenders subject to a determinate term of incarceration.

Footnote 6:In Hill, the defendantoriginally raised this issue in a motion vacate judgment pursuant to C.P.L. §440, claiming that his plea was involuntary because he had not been informed that his sentence would include a five-year period of post-release supervision. While the sentencing court denied the defendant's motion, it modified defendant's sentence, reducing his post-release supervision to a period of two-and-one-half years. The First Department affirmed the sentencing court's decision (39 AD3d at 18).

Footnote 7:The Division has failed to provide this Court with the resentencing minutes to support its claim that the sentencing court intended that the sentence would run nunc pro tunc.