People ex rel. Ramos v Warden, Rikers Is. Correctional Facility
Annotate this CaseDecided on December 11, 2007
Supreme Court, Bronx County
The People of the State of New York ex. rel. Samuel Ramos, Petitioner,
against
Warden, Rikers Island Correctional Facility, and New York State Division Of Parole, , Respondents.
75178/07
Richard Lee Price, J.
On March 5, 2001, petitioner was convicted, upon his guilty plea, of robbery in the first degree (Penal Law § 160.15[3]), and sentenced to a determinate term of five years imprisonment After sentencing, a five-year period of post-release supervision was administratively imposed on him by the Department of Correctional Services (DOCS). Petitioner seeks a writ of habeas corpus releasing him from custody as he is being detained for violating the post-release supervision. He also seeks an order vacating the parole warrant lodged against him.
The relevant facts are as follows. On March 5, 2001, petitioner was convicted, upon his plea of guilty, of first degree robbery in Kings County Supreme Court (Ruchelsman, J.), and sentenced to a determinate term of five years imprisonment. It is undisputed that there was no mention in the plea proceeding, at sentencing, or in the commitment sheet, that a period of post-release supervision would be added to petitioner's sentence. After sentencing, unbeknownst to petitioner, a five-year period of post-release supervision was administratively imposed by DOCS (Penal Law § 70.45). Petitioner did not appeal from his judgment of conviction.
On September 17, 2004, petitioner was released from custody. On September 15, 2004, two days before his release, petitioner signed a Certificate of Release to Parole Supervision, stating that he voluntarily agreed to post-release supervision for a five-year period. Petitioner was to be supervised by the Division of Parole until September 17, 2009.
By motion dated February 16, 2007, petitioner moved in Kings County Supreme Court to vacate the post-release supervision component of his sentence pursuant to CPL 440.10 and 440.20 By order dated July 19, 2007, the Supreme Court, Kings County (Ruchelsman, J.) denied the motion on the ground that the claim should have been raised on appeal.
On June 28, 2007, petitioner was arrested and charged with burglary in the first degree, [*2]criminal use of a firearm, and criminal possession of stolen property. He was indicted in Kings County Supreme Court on July 3, 2007 (Ind. No. 06271/07). Bail was set at $50,000.00.
On July 5, 2007, parole violation warrant No. 47994 was lodged against petitioner based upon his June 28, 2007 arrest, charging him with violating the terms of post-release supervision. On August 28, 2007, at the request of petitioner's attorney, petitioner's parole revocation proceedings were indefinitely postponed.
By writ of habeas corpus submitted to this Court on October 31, 2007, petitioner seeks an order vacating the parole warrant lodged against him on the ground that the post-release supervision imposed by DOCS is a nullity. He also seeks an order directing his release from custody, "unless [he] is presently incarcerated on the basis of some other warrant or commitment not predicated upon alleged violations of parole" (Verified Petition at 4-5).
The Division of Parole contends that the petitioner is not entitled to habeas corpus relief because he is incarcerated on an open case for which $50,000.00 bail was set. The Division additionally argues that petitioner's sentence includes post-release supervision by operation of law pursuant to Penal Law § 70.45. It asserts that petitioner waived his right to challenge post-release supervision by signing a Certificate of Release to Parole Supervision upon his release from incarceration. Finally, the Division maintains that it is improper for this Court to modify a sentence imposed by the Kings County Supreme Court, and, in effect, act as an appellate court.
In reply, petitioner submitted an affidavit stating that he has posted a bond for $50,000.00 as
bail for the open criminal case pending in Kings County Supreme Court under Indictment No.
06271/07.
Conclusions of Law
Preliminarily, the Court notes that habeas corpus relief is available in this case since petitioner has posted bail for the pending criminal charges.
Turning to the merits of the application, the Court concludes that the petition should be sustained. Since the five-year period of post-release supervision added to petitioner's sentence by DOCS is a nullity under both federal and state law, the issuance of a parole violation warrant was improper.
Under federal law, the five-year period of post-release supervision added to petitioner's sentence by DOCS is a nullity based upon the ruling in Earley v Murray, 451 F3d 71 [2d. Cir. 2006], reh denied 462 F3d 147 [2006]). In Earley v Murray, supra, the defendant was sentenced, in Kings County Supreme Court, to a six-year prison term for a violent felony offense. As in the case at bar, no mention was made during the plea or sentencing proceedings that his conviction also carried a mandatory five-year post-release supervision term. Pursuant to Penal Law § 70.45, DOCS administratively added a five-year post-release supervision period to his sentence. After unsuccessfully moving in State court to have the post-release supervision stricken, defendant brought a federal writ of habeas corpus, claiming a constitutional due process violation. The District Court denied the petition.
On appeal, the Second Circuit Court of Appeals ruled that the imposition of post-release
supervision by DOCS violated defendant's due process rights. The Court reasoned that "the
judgment of the court establishes a defendant's sentence, and that sentence may not be increased
[*3]by an administrator's amendment, and that any alteration to
that sentence, unless made by a judge in a subsequent proceeding, is of no effect" (Earley,
supra at 75). In reaching its decision, the Second Circuit relied on United State ex rel.
Wampler, 298 US 460 [1936], which held that a court clerk was unauthorized to add to the
court's sentence commitment a condition that the defendant not be released until the $5000 fine
imposed was paid. In a subsequent decision denying the People's petition for rehearing, the
Second Circuit reiterated its view that, in the absence of post-release supervision expressly being
made part of the sentence by the judge, it cannot be deemed by statute to have been imposed at
the time of the original sentence (462 F3d at 149-150).
DOCS' action of adding post-release supervision to petitioner's sentence also violates
New York Law. In Matter of Figueroa, AD2d [Nov. 8, 2007], the First Department
recently held that DOCS lacks the authority to add post-release supervision to a defendant's
sentence where neither the sentencing minutes, nor the court's order of commitment, mention the
imposition of any period of post-release supervision. The First Department concluded that under
such circumstances "the sentence actually imposed by the court never included and does now
include, any period of post-release supervision" (Matter of Figueroa, supra,
quoting People v Noble, 37 AD3d
622 [2d Dept. 2007])(emphasis added). The First Department further reasoned that since the
sentence did not include post-release supervision,"there is no basis to vacate the judgment of
modify the sentence" (Matter of Figueroa, supra).
Here too, petitioner's sentence "never included and does not now include" post-release supervision, since it was not mentioned at the plea proceeding, at sentencing or in the order of commitment. The Division's assertion that granting the petition would require this Court to effectively act as an appellate court is without merit. No modification of the sentence imposed in this case is necessary, since, under Matter of Figueroa, the sentence imposed does not include post-release supervision.
Accordingly, petitioner's article 78 petition is granted to the extent that the five-year period of parole release supervision imposed by DOCS is hereby stricken, and the parole warrant lodged against petitioner on July 4, 2007 is vacated.
This constitutes the decision and order of this Court.
Dated:Bronx, New York
December 11, 2007
E N T E
R
_________________________
Richard Lee Price, J.S.C.
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