Coleman v New York State Dept. of Correctional Servs.
Annotate this CaseDecided on March 14, 2008
Supreme Court, Kings County
Michael Coleman, Petitioner,
against
New York State Department of Correctional Services, Respondent,
Rogere Gilliam, Petitioner,
against
New York State Department of Correctional Services, Respondent,
Jeffrey Hallett, Petitioner,
against
New York State Department of Correctional Services, Respondent.
36119/2007
Plaintiff's Attorney -
Andrew Cuomo, Esq.
Attorney General
120 Broadway, 24th Floor
New York, New York 10271
(212) 416-8550
Defendant Attorney -
Robert C. Newman, Esq
Steven Bank, Esq.
the Legal Aide Society
199 Water Street
New York, New York 10038
(212) 577-3354
Wayne P. Saitta, J.
These three cases present the issue of whether post release supervision is part of a defendant's sentence when is it imposed not by a judge but is added administratively by the Department of Correctional Services, after sentencing.
Petitioner Michael Coleman, (hereinafter "Coleman" or "Petitioner"), filed a Notice of
Petition pursuant to Article 78 of the CPLR seeking an Order in the nature of mandamus
directing the New York State Department of Correctional Services, (hereinafter "DOCS" or
"Respondent"), directing DOCS to excise and delete the unlawfully added period of post-release
supervision from its computation of Petitioner's sentence, and directing Respondent to advise the
Division of Parole of the deletion.
Upon consideration of the Notice of Petition, dated September 20th, 2007 , together
with the Verified Petition of Robert C. Newman, Esq., counsel for the Petitioner, and all exhibits
annexed thereto; the Answer and Affirmation in Opposition to Petition to Commute Sentence of
Assistant Attorney General Michael J. Keane, Esq., counsel for Respondent, dated December
19th, 2007, and all exhibits annexed thereto; and the Reply of Robert C. Newman, accepted in
support of Petitioner's Article 78 Petition, dated January 24th, 2008.
FACTS
Petitioner was convicted, after jury trial, of Attempted Assault in the first degree and Assault in the second degree, and was sentenced on April 3rd, 2002, to serve determinate sentences of four years on one count and two years on the other, to run concurrently. The conviction was confirmed on appeal.
At the time Petitioner was sentenced, he states the Court did not inform him of any post release supervision, ("PRS"). Neither the sentencing minutes nor the sentencing commitment includes a period of PRS. He was unable to raise the illegal imposition of the PRS on appeal as he learned of the PRS after the appeal was decided.
Petitioner lives in Brooklyn and is currently reporting to a parole officer located at 14 DeKalb Avenue, Brooklyn. [*2]
Petitioner Rogere Gilliam, (hereinafter "Gilliam" or "Petitioner"), filed a Notice of Petition pursuant to Article 78 of the CPLR seeking an Order directing the New York State Department of Correctional Services, (hereinafter "DOCS" or "Respondent"), to excise the five-year period of post release supervision, ("PRS"), that was added to Petitioner's sentence and directing Respondent to advise the Division of Parole of the deletion.
Upon consideration of the Notice of Petition, dated October 30th, 2007 , together with the
Verified Petition of Robert C. Newman, Esq., counsel for the Petitioner, and all exhibits annexed
thereto; the Answer and Affirmation in Opposition to Petition to Commute Sentence of Assistant
Attorney General Michael J. Keane, Esq., counsel for Respondent, dated January 23rd, 2008, and
all exhibits annexed thereto; the Reply of Robert C. Newman, dated January 24th, 2008; and the
Supplemental Reply of Robert C. Newman, dated February 7th, 2008, and all exhibits annexed
thereto; and after argument of counsel and due deliberation thereon, the petition is granted.
FACTS
Petitioner was convicted, after a plea of guilty, of robbery in the first degree, criminal contempt in the first degree, and criminal contempt in the second degree. He was sentenced on October 8th, 2003.
Petitioner was sentenced to a determinate sentence of six years on the robbery count and one
year on the contempt count, the sentences to run concurrently.
The sentencing court did not inform him of any PRS. Neither the sentencing minutes
nor the sentencing commitment included a period of PRS. Petitioner contends that the PRS was
added to his sentence when he was conditionally released to parole supervision on February 14th,
2007. Petitioner learned of the PRS after his time to pursue a direct appeal had expired.
Petitioner Jeffrey Hallett, (hereinafter "Hallett" or "Petitioner"), filed a Notice of Petition pursuant to Article 78 of the CPLR seeking an Order directing the New York State Department of Correctional Services, (hereinafter "DOCS" or "Respondent"), to excise the five-year period of post release supervision, ("PRS"), that was added to his sentence and directing Respondent to advise the Division of Parole of the deletion.
Upon consideration of the Notice of Petition, dated October 30th, 2007 , together with the
Verified Petition of Robert C. Newman, Esq., counsel for the Petitioner, and all exhibits annexed
thereto; the Amended Prayer for Relief of Robert C. Newman, Esq., dated January 15th, 2008;
the Answer and Affirmation in Opposition to Petition to Commute Sentence of Assistant
Attorney General Michael J. Keane, Esq., counsel for Respondent, dated January 23rd, 2008, and
all exhibits annexed thereto; the Reply of Robert C. Newman, dated January 24th, 2008; and the
Supplemental Reply of Robert C. Newman, dated February 7th, 2008, and all exhibits annexed
thereto; and after argument of counsel and due deliberation thereon, the petition is granted.
FACTS
Petitioner was convicted, after a plea of guilty, of attempted burglary in the second degree. He was sentenced on November 7th, 2001, to a determinate sentence of five years which was affirmed on appeal.
The sentencing court did not inform him of any PRS. Neither the sentencing minutes nor the
sentencing commitment included a period of PRS. Petitioner contends that the PRS was [*3]added to his sentence when he was conditionally released to parole
supervision on October 12th, 2005. Petitioner learned of the PRS after his time to pursue a direct
appeal had expired.
ARGUMENTS
Petitioners
argue that the recent decision by the Court of Appeals in People of the State of New York v. Anthony Hill, 9 NY3d 189, 849
NYS2d 13 NY, 2007, did not address whether DOCS could administratively add PRS to a
defendant's sentence. Petitioners argue that the Second Judicial Department's holdings following
the federal case of Earley v. Murray, 451 F.3d 71, are controlling in this matter and are
unaffected by Hill.
Respondent argues that the PRS is added automatically, by operation of law, as part of the
sentence and any objection to the sentence should be remedied by the sentencing court.
Respondent further argues that the Court of Appeals' decision in People v. Hill, 9 NY3d
189, 849 NYS2d 13 NY, 2007, established that PRS is part of the sentence as a matter of law.
ANALYSIS
Two distinct due process issues are created when a sentencing court fails to add
the "statutory" period of PRS to a determinate sentence, and DOCS adds the PRS after the court
has pronounced sentence.
The decision of the Court of Appeals in People of the State of New York v. Anthony Hill, 9 NY3d 189, 849 NYS2d 13 NY, 2007, appears to provide clarity as to one of the issues while leaving the other uncertain.
The first issue is discussed in Hill, supra , and deals with the due process violation which occurs when a defendant who pleads guilty in exchange for a plea bargain is not told that PRS will be imposed following his determinate sentence, thereby affecting the ability to make an informed decision as to a plea. The Court had previously ruled in People v. Catu, 4 NY3d 242 (2005), that "[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the post-release supervision component of that sentence in order to knowingly, voluntarily and intelligently chose among alternative courses of action, the failure of a court to advise of post-release supervision requires reversal of the conviction" and that vacatur of the plea is the appropriate remedy.
The Court of Appeals in Hill rejected the "harmless error" argument which was offered by the Appellate Division, Third Department, in People v. Van Deusen, 7 NY3d 744, 819 NYS2d 854 (3rd Dept. 2006). The Third Department had declined to vacate a plea where the defendant's ultimate sentence fell short of the period of punishment in her plea bargain. In rejecting that argument, the Court in Hill stated, "At the time defendant pleaded guilty, she did not possess all the information necessary for an informed choice among different possible courses of action because she was not told that she would be subject to mandatory post release supervision as a consequence of her guilty plea", at 192, citing People v. Van Deusen, 7 NY3d 744, 819 NYS2d 854 (3rd Dept. 2006). The defect was one of due process and not one of sentencing.
The second issue which results from the imposition of PRS after sentencing was not explicitly addressed by the Court in Hill. The Court declined to state whether a sentence upon which PRS has been attached by DOCS is, in fact, a valid sentence, and what the remedy is if it is not.
The United States Court of Appeals, Second Circuit, held in Earley v Murray, 451 F3d [*4]71 [2006], that PRS added administratively by DOCS, and not imposed by a court, must be vacated. That court found that "The additional provision for post-release supervision added by DOCS is a nullity. The imposition of a sentence is a judicial act; only a judge can do it. The penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence." Id. at 76,relying on Hill v United States ex rel. Wampler,298 US 460 (1936).
This issue is one which is distinct from that decided in People v. Hill, supra . While the Hill Court addressed the due process violation dealing with the "Catu error", where a defendant is denied the knowledge of the consequences of his choices, it did not address the Earley issue that a sentence imposed by an administrative body is a nullity. While it could be argued that the Court in Hill, by vacating the plea rather than holding that the addition of the PRS was a nullity, implicitly found the PRS to be part of the sentence, the Court did not state so explicitly. Given that at the time Hill was decided there was a split among the Appellate Divisions, and that the Second Department has expressly held that PRS cannot be administratively added to a sentence, this Court can not assume from the Court of Appeals' failure to explicitly address the validity of the sentence that they meant to overturn the Second Department rule. Further, the concept that a bureaucrat, rather than a judge, can impose sentence is such a radical departure from our jurisprudence that such a departure cannot be taken implicitly or by inference.
The very core of due process of law, since the Magna Carta banned the King's sheriffs from trying cases, is that a person cannot be subject to legal judgment or punishment except through the Courts. This principle is fundamental to our constitutional system of separation of powers.
An underlying principle of our system of government is a separation of powers between the executive, legislative and judicial branches. To allow an agency of the executive branch to impose a sentence is to usurp the authority of the judicial branch and breaches the separation of powers set forth in the United States Constitution.
The drafters of the Constitution adopted Montesquieu's tenet that the separation of governmental functions was an essential safeguard of freedom.
Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws, book XI, Of the Laws Which Establish Political Liberty, with Regard to the Constitution. trans. Thomas Nugent (London: J. Nourse, 1777).
The New York State Court of Appeals has recognized the importance of the separation of powers as a cornerstone of liberty.
As a reflection of the pattern of government adopted by the State of New York, which includes by implication the separation of the executive, legislative and judicial powers, it is a fundamental principle of the organic law that each department of government should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other [*5]branches. With respect to the distribution of powers within our system of government, it has been said that no concept has been "more universally received and cherished as a vital principle of freedom". Citations omitted.
New York State Inspection, Sec. And Law Enforcement Employees, Dist. Council 82, AFCME, AFL-CIO v. Cuomo, 64 NY2d 233, 475 NE2d 90 (1984).
The imposition of PRS by the Department of Corrections is an infringement by the Executive Branch upon the independence of the Judiciary. It is not any less a violation of due process because the agency sought to impose PRS which was mandated by the legislature. The Executive can not usurp the role of the Judiciary to pronounce sentence on an individual, even to correct what it believes to be an error.
While the addition of PRS may seem a minor matter, the breach it makes in the separation of powers is not. Once executive functionaries are permitted to impose penal sanctions on citizens, the executive exercise of this power will only grow more frequent and more drastic.
As Blackstone warned, the convenience of cutting corners on due process is seductive. Once begun in small matters it will expand into large ones.
And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays, and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.
William Blackstone - Of Trial, and Conviction. Book 4, Chapter 27.
This Court declines to read into Hill such a fundamental change in our system of due process where not explicitly stated by the Hill Court. The Appellate Division Second Department has consistently followed the Earley Court holding that because the lower courts' sentencing minutes and orders of commitment failed to include any mention of PRS, the administratively imposed PRS is not part of the sentence. People v. Noble, 2007 NY Slip Op. 01326 (2nd Dept. 2007); People v. Wilson, 37 AD3d 855, 2007 Slip Op. 01765 (2nd Dept. 2007); People v. Smith, 2007 Slip Op. 01157 (2nd Dept. 2007).
Further, several State Supreme Court decisions decided since Hill have followed the position of the Second Circuit in Earley, that a "judicially-imposed sentence includes only those elements explicitly ordered by the sentencing judge". Earley v Murray, 462 F3d 147 at 149 [Ct. Of Appeals, 2nd Circuit]. See People v. Holder, 845 NY2d 916 (2007), People v. Stroman, 848 NYS2d 849 {18 Misc 3d 617} (2007), People ex. Rel Melendez v. New York State Div. Of Parole, 18 Misc 3d 1007(a) 2007, People ex rel. Huff v. warden, 18 Misc 3d 1110(a) 2008, Quinones v. New York State Dept. Of Correctional Services, 848 NYS2d 757, 2007 (N.Y.AD3d Dept. 2007).
Although not controlling, in the absence of a clear directive from the New York State Court of Appeals, Earley does serve as "useful and persuasive authority". People v Kin Kan, 78 [*6]NY2d 54 (1991).
While decisive as to Catu violations, the recent Court of Appeals decision in Hill does not address the validity of administratively imposed PRS and therefore the position of the Second Department, following Earley, is not disturbed.
WHEREFORE, the petition is granted as to Petitioner Coleman, and Respondent DOCS is ORDERED to excise the five-year period of post release supervision from its computation of Petitioner's sentence and is further ORDERED to advise the Division of Parole of the excision; the petition is granted as to Petitioner Gilliam, and Respondent DOCS is ORDERED to excise the five-year period of post release supervision from its computation of Petitioner's sentence and is further ORDERED to advise the Division of Parole of the excision; andthe petition is granted as to Petitioner Hallett, and Respondent DOCS is ORDERED to excise the five-year period of post release supervision from its computation of Petitioner's sentence and is further ORDERED to advise the Division of Parole of the excision.
This shall constitute the decision and order of this Court.
ENTER,
_________________________________
J.S.C.
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