People ex rel. Melendez v New York State Div. of Parole

[*1] People ex rel. Melendez v New York State Div. of Parole 2007 NY Slip Op 52449(U) [18 Misc 3d 1107(A)] Decided on December 20, 2007 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2007
Supreme Court, Bronx County

The People of the State of New York ex rel. Edward Melendez, Petitioner,

against

New York State Division of Parole, Respondents.



75169/07

Richard L. Price, J.

On May 16, 2001, petitioner was convicted of robbery in the first degree and attempted assault in the first degree and sentenced to two concurrent determinate terms of 6½ 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, vacating the five-year period of post release supervision, and vacating the parole violation warrant lodged against him.

The relevant facts are as follows. On May 16, 2001, petitioner was convicted, upon his plea of guilty, of robbery in the first degree and attempted assault in the first degree and sentenced by this Court to a two concurrent terms of 6½ years imprisonment. It is undisputed that there was no mention during the plea proceeding, sentencing, or on the commitment sheet, that a period of post-release supervision would be added to petitioner's sentence. After sentencing, a five-year period of post-release supervision was administratively imposed by DOCS (Penal Law § 70.45).

On March 14, 2006, petitioner was released from custody. On March 13, 2006, one day before his release, petitioner signed a Certificate of Release to Parole Supervision, stating that he agreed to post-release supervision for a five-year period. Petitioner was to be supervised by the Division of Parole until March 14, 2011.

On August 9, 2007, respondent New York State Division of Parole issued parole violation warrant #472105 against petitioner, charging him with various violations of the terms of his post-release supervision. Petitioner is currently incarcerated at Rikers Island pursuant to this warrant.

By writ of habeas corpus submitted to this Court on October 4, 2007,[FN1] petitioner seeks an [*2]order releasing him from custody, vacating the parole warrant lodged against him, and vacating the five-year period of post-release supervision imposed by DOCS.

The Division of Parole maintains that a habeas corpus petition is not the proper vehicle through which to challenge post-release supervision. On the merits, the Division of Parole contends that the 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.

By letters dated November 13, 2007, November 16, 2007, and November 27, 2007, the parties made additional arguments based upon decisions rendered by the Court of Appeals in People v Anthony Hill, 9 NY3d 189 [Nov. 15, 2007] and the First Department in Matter of Figueroa, AD3d [1st Dept., Nov. 8, 2007].

Conclusions of Law

Preliminarily, the Court rejects the Division's claim that a writ of habeas corpus is not the appropriate forum to seek relief of a post-release supervision claim. Numerous courts have sustained writs of habeas corpus and vacated parole warrants where the sentencing court failed to impose post-release supervision (see People ex rel. Santos v Warden, 17 Misc 3d 1120[A] [Sup. Ct. Bronx Co. 2007][Gross, J.]; People ex rel. Mazario v Warden, 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 1102(A) [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. 7509/07 [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. 757036/07 [Sup. Ct. Bronx Co., April 4, 2007][Boyle, J.]; People ex rel. Lewis v Warden, 14 Misc 3d 468 [Sup. Ct. Bronx Co. 2006][Cirigliano, J.]).

Turning to the merits of the application, the issuance of a parole violation warrant was improper since the sentence imposed by this Court did not include post-release supervision. 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 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 [*3]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, AD3d [Nov. 8, 2007], the First Department 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 not 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 or 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, supra, the sentence "actually imposed" by the sentencing court does not include post-release supervision. Moreover, this Court would not be acting as an appellate court in any event, since it was the sentencing court in the case at bar,

Finally, the Court rejects the Division's argument that the Court of Appeals' recent decision in People v Hill, 9 NY3d 189, supra, establishes that the imposition of post-release supervision is valid. In Hill, defendant was sentenced to a fifteen-year determinate term pursuant to a plea bargain. No mention was made during the plea or sentencing proceedings that the sentence would include post-release supervision. Nonetheless, a five-year period of post-release supervision was administratively added to the sentence by DOCS. Defendant moved to vacate the conviction on the ground that he was unaware when he entered his plea that he would be subject to post-release supervision. The sentencing court denied the motion, but modified the sentence to a determinate term of 12½ years imprisonment with 2½ years of post-release supervision, thereby making the aggregate of both terms equal to the term promised during the plea proceeding. The First Department upheld the sentencing court's determination. The Court of Appeals reversed and vacated the plea, relying on People v Catu, 4 NY3d 242 [2005], ruling that the court's failure of a court to advise the defendant of post-release supervision required reversal of the conviction (People v Hill, supra at 192).

"A case ... is precedent only as to those questions presented, considered and squarely decided" (People v Bourne, 139 AD2d 210, 216 [1st Dept. 2000]; see also Wellbilt Equipment Corp. v Fireman, 275 AD2d 162, 168 [1st 2000]). In People v Hill, supra, the Court of Appeals addressed only whether its decision in Catu required that Hill's plea and sentence, as modified, be [*4]vacated. The Court did not rule on, nor was it presented with, the issue of whether the administrative imposition of post-release supervision is unlawful (see People v Joshua Medina, Index No. 75134/07 [Sup. Ct. Bronx Co., Dec, 17, 2007][Marcus, J.]). Thus, the Court of Appeals' decision in Hill is not dispositive of the case at bar.

Accordingly, petitioner's writ of habeas corpus is sustained, the five-year period of post-release supervision administratively imposed by DOCS is stricken, parole violation warrant #472105 is vacated and, pursuant to CPLR 7010(a), it is directed that petitioner be discharged from detention on this matter.

This constitutes the decision and order of this Court.

Dated:Bronx, New York

December 20, 2007

E N T E R

_________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1:The motion was originally submitted to Marvin, J. on September 26, 2007. The motion was referred to this Court on October 4, 2007. Additional submissions were made on November 13, 16, and 27, 2007.