Matter of Billups v Fischer

[*1] Matter of Billups v Fischer 2008 NY Slip Op 51888(U) [20 Misc 3d 1146(A)] Decided on September 18, 2008 Supreme Court, Albany County Platkin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2008
Supreme Court, Albany County

In the Matter of the Application of Keith Billups, Petitioner,

against

Brian S. Fischer, Commissioner, New York State Department of Correctional Services, Respondent.



1782-08



Keith Billups,

Petitioner Pro Se

Attica Correctional Facility

Box 149

Attica, New York 14011-0149

Hon. Andrew M. Cuomo

Attorney General of the State of New York

Attorney for Respondent

(Shoshanah V. Asnis, of counsel)

The Capitol

Albany, NY 12224

Richard M. Platkin, J.

Petitioner brings this CPLR Article 78 proceeding challenging respondent's determination imposing a period of post-release supervision ("PRS"). Respondent, the Commissioner of the New York State Department of Correctional Services ("DOCS"), opposes the petition through an answer.

Petitioner is an inmate incarcerated at the Attica Correctional Facility. On or about September 20, 2000, he was sentenced as a second felony offender to a determinate term of imprisonment of fifteen (15) years on the charge of Criminal Possession of a Weapon in the 2nd Degree.[FN1] The Sentence & Commitment did not indicate the imposition of a period of PRS. However, once remanded to the custody of DOCS, petitioner was advised that his sentence is subject to a mandatory period of five years of PRS.

Petitioner filed a grievance with respondent alleging that the imposition of PRS was illegal insofar as it was not imposed by the sentencing court. Petitioner's grievance ultimately was responded to by the DOCS Executive Deputy Commissioner Anthony J. Annucci. On November 7, 2007, he informed the petitioner that "this Department would be required to set aside your period of post-release supervision if specifically ordered to do so by a state or federal court . . . . In the absence of such order, your determinate term is deemed to include a period of post-release supervision . . . ."

The Penal Law mandates that a sentence imposed upon a violent felon include a period of post-release supervision (see Penal Law §§ 70.00; 70.45). However, in Matter of Garner v New York State Dept. of Correctional Services (10 NY3d 358 [2008]), the Court of Appeals held that respondent may not administratively add a mandatory period of PRS onto a sentence where such period was not pronounced by the sentencing judge. The Court also recognized, in a footnote, that its holding was "without prejudice to any ability that either the People or DOCS may have to seek the appropriate resentencing of a defendant in the proper forum."

Chapter 141 of the Laws of 2008 amended the Corrections Law to establish a procedure governing the resentencing of persons in the custody of DOCS upon whom a determinate sentence was imposed that was required by law to include a term of post-release supervision.

If the commitment order does not indicate imposition of the required term of post-release supervision and the sentencing minutes do not show that such term of post-release supervision actually was pronounced at sentencing, DOCS shall provide notification to the sentencing court (Correction Law § 601-d [1], [2]). If the sentencing court determines that a term of post-release supervision was in fact pronounced at sentencing, it shall issue a superseding commitment order reflecting that fact (id. [3]). If not, the statute establishes a process whereby the sentencing court shall determine whether to resentence the inmate (id. [4]). Once the sentencing court completes the statutory process, it is required to promptly notify DOCS of its disposition (id. [5])

In view of the enactment of Correction Law § 601-d, the Court concludes that the appropriate procedure in this case is to direct DOCS to provide petitioner's sentencing court with the notification required under subdivision two of that statute. Further, the instant application should be dismissed without prejudice to refiling upon exhaustion of the comprehensive remedial [*2]process established by the State Legislature.[FN2]

Accordingly, it is

ORDERED that DOCS shall provide the notification required under Correction Law § 601-d (2) with respect to petitioner (insofar as it has not already done so during the pendency of this application); and it is further

ORDERED and ADJUDGED that the petition is denied without prejudice to renewal following exhaustion of the procedures set forth in Correction Law § 601-d.

Accordingly, the petition is denied without prejudice in accordance with the foregoing.

This memorandum constitutes the Decision, Order and Judgment of this Court. All papers including this Decision, Order and Judgment are returned to respondent's counsel. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated: Albany, New York

September 18, 2008

Richard M. Platkin

A.J.S.C. Footnotes

Footnote 1: Thus, petitioner is not confined on the basis of the PRS term at issue here.

Footnote 2: The Court recognizes that the enactment of Correction Law § 601-d does not affect its power to hear, consider and decide this application (id. [7]).