Lewis v Fischer

[*1] Lewis v Fischer 2008 NY Slip Op 50437(U) [18 Misc 3d 1144(A)] Decided on March 7, 2008 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2008
Supreme Court, Kings County

Jerome Lewis, Petitioner,

against

Brian S. Fischer, Commissioner New York State Department of Correctional Services; George Alexander, Chairman New York State Division of Parole, Respondents.



24476/07



Petitioner pro se

Jerome Lewis Petitioner

Attorney for the Respondents

Andrew M. Cuomo

Attorney General of the

State of New York

120 Broadway, 24th Floor

New York, New York 10271

212-416-8550

Martin Schneier, J.

On January 10, 2002, petitioner pleaded guilty to, inter alia, Kidnapping in the Second Degree. Because Kidnapping in the Second Degree is a class B violent felony, petitioner, pursuant to section 70.45 of the Penal Law, became subject to a two and one half to five year period of Post Release Supervision ("PRS"). However,, no period of PRS was mentioned in the plea allocution or the sentence, nor, was any included on the commitment order. On May 11, 2006, as petitioner was preparing to be released from prison, petitioner was required to sign documents that indicated that he was subject to a five year period of PRS.

On July 31, 2006, petitioner's five year sentence expired. On September 15, 2006, petitioner was returned to prison and assessed an additional sixteen months of jail time for violating his PRS.

Petitioner moves for an Order directing respondent Brian S Fischer to remove all references to PRS from the petitioner's Department of Correctional Services [*2]records and to immediately release petitioner from prison and; an Order directing respondent George Alexander to remove all references to PRS from the petitioner's Division of Parole records. Petitioner argues that the PRS is unlawful because it was not part of his plea agreement..

The Sentencing Reform Act of 1998 made all violent felons subject to a period of Post Release Supervision. In many cases, however, the defendants were not advised of this aspect of their sentence at the time of their plea allocutions. This has resulted in two distinct lines of cases, both of which hold the practice to be deficient.

The first line of cases was established by the Court of Appeal in People v. Catu (4 NY3d 242). In Catu, the Court ruled 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" (id at 245).

The second line of cases was established by the Appellate Division, Second Department in People v. Noble (37 AD3d 622). In Noble, the Court ruled that where "[n]either the sentencing minutes, nor the court's order of commitment, mentioned the imposition of any period of post-release supervision. Therefore, the sentence actually imposed by the court never included, and does not now include, any period of postrelease supervision" (id)(citations omitted).

Turning to the case at bar, the Court finds that relief requested by the petitioner is mandated by the Second Department decision in People ex rel. Gerard ex rel. Colarusso v. Kralik (44 AD3d 804). In Kralik, the Court, relying on Noble and other precedents ruled that "[p]ursuant to a promise made at the time of the detainee's guilty plea, the sentencing court sentenced him to a determinate prison term of five years upon his conviction of robbery in the second degree. Neither the sentencing minutes nor the court's order of commitment mentioned the imposition of any period of post-release supervision. Therefore, the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision. Accordingly, because the detainee is currently incarcerated due to his alleged violation of the terms of the post-release supervision improperly added to his sentence by the New York State Division of Parole, the detainee is entitled to immediate release from custody" (id at 804-05)(citation and internal citations omitted).

Respondents argue that the Noble line of cases has been implicitly overruled by the Court of Appeals decision in People v. Hill (9 NY3d 189). In Hill, the Court expounded on Catu and stated that, because "the constitutional defect lies in the plea itself and not in the resulting sentence, vacatur of the plea is the remedy for a Catu error since it returns a defendant to his or her status before the constitutional infirmity occurred" (id at 191). Respondents argue that Hill has therefore established vacatur of the plea as the sole remedy for a Catu error.

In examining this claim the Court notes that, the Noble line of cases arose out of the decision by the Second Circuit Court of Appeals in Earley v. Murray (451 F.3d 71). In Early, the Court stuck down the imposition of PRS that had not been made part of the plea agreement. The basis for the ruling was the finding that "the sentence imposed by the sentencing judge is controlling; it is this sentence that constitutes the court's judgment and authorizes the custody of a defendant." (id at 74). This is a different basis than the one relied on in Catu and Hall and, therefore, it is permissible that it leads to a different remedy. Notwithstanding that Noble line of cases rests on different grounds, the Court finds that the procedural setting also mandates a different remedy. [*3]

In this case, petitioner first learned that he was subject to PRS only months before the completion of his five year sentence. Respondents would subject petitioner to the Hobson's choice agreeing to the PRS or vacating his plea and subjecting himself to the possibility of additional incarceration. The court finds that, at some point, a defendant's performance of his end of the plea agreement precludes the imposition of additional punishment.

Finally, the Court notes that the Hall decision "made no directly authoritative or controlling statement which could be construed as expressing disapproval" of the Nobel line of cases and they are therefore still considered to be valid precedent (see, Liberty Mut. Ins. Co. v. State, 121 AD2d 694).

Accordingly, the Article 78 petition is sustained, the respondent Brian S Fischer is Ordered to remove all references to Post Release Supervision ("PRS") from the petitioner's Department of Correctional Services records and to immediately release petitioner from prison and; respondent George Alexander is Ordered to remove all references to PRS from the petitioner's Division of Parole records

This shall constitute the Decision and Order of the Court.

_____________________

J.S.C.