People ex rel. Addison v Warden, Otis Bantum Correctional Ctr.

[*1] People ex rel. Addison v Warden, Otis Bantum Correctional Ctr. 2008 NY Slip Op 52103(U) [21 Misc 3d 1119(A)] Decided on October 20, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2008
Supreme Court, Bronx County

The People of the State of New York ex rel. Jerome Addison, Petitioner,

against

Warden, Otis Bantum Correctional Center, New York State Division of Parole, Respondents.



251604/08



The appearances are as follows:

Elon Harpaz, Esq.

The Legal Aid Society

Attorney for Petitioner

Andrew Meier, Esq.

Assistant Attorney General

Attorney for Respondents

Richard L. Price, J.

Petitioner has filed a writ of habeas corpus claiming that he is being illegally detained on a Post Release Supervision ("PRS") warrant which was illegally imposed by the Department of Correctional Services ("DOCS"). Petitioner moves for vacatur of the warrant and the administratively imposed period of PRS and immediate release from custody. The Division of Parole ("Division") cross-moves for an order transferring the matter to the sentencing court for resentencing and for retention of the petitioner in custody during the pendency of those proceedings.

Findings of Fact

On June 3, 2004, petitioner was sentenced by Hon. Daniel Fitzgerald of New York County Supreme Court under Indictment 3492/03 to a determinate term of three and a half years for attempted robbery in the second degree. No period of post-release supervision was pronounced at sentencing or set forth on the [*2]commitment sheet. Petitioner was released to parole on July 14, 2006. Nevertheless, DOCS administratively imposed a five-year period of PRS which expires on September 28, 2011. On August 28, 2008, parole violation warrant 571231 was issued charging petitioner with various violations of PRS. Petitioner remains in custody pending the results of a final hearing.

Conclusions of Law

In Matter of Garner v. New York State Correctional Services, 10 NY3d 358, 362 (2008), the Court of Appeals recently held that "the sentencing judge and only the sentencing judge is authorized to pronounce the PRS component of a defendant's sentence." The Court of Appeals found that DOCS exceeded its authority by administratively imposing PRS. Following the mandate of the Court of Appeals in Garner, the First Department, in People ex rel. Lewis v. Warden, 51 AD3d 512 (1st Dept. 2008), held that the PRS term added by DOCS was a nullity and that because the parole warrant alleged a violation of a nonexistent portion of petitioner's sentence, it was not a valid basis for his detention.[FN1] In the instant case, under the clear rule set forth in Garner, the PRS administratively imposed by DOCS is a nullity and in excess of its authority.

The Respondent cross-moves to maintain petitioner's custody and for an order transferring the case to the sentencing court. Respondent relies in part on newly-enacted Correction Law § 601-d. That law, however, establishes the mechanism by which a sentencing court can determine whether resentencing is appropriate for what the statute terms a "designated person". It does not confer authority on this Court to transfer the writ to the sentencing court for determination consistent with its resentencing. See People ex rel. Rice v. Warden, Index No. 251534/08 September 12, 2008, Sup. Ct. Bronx Co. (Marcus, J.); People v. ex rel. Duffy v. Warden, Index No. 251273/08, August 25, 2008, Sup. Ct. Bronx Co. (Newman, J.); People v. ex rel. Rawles v. Warden, Index No. 251273/08, July 30, 2008 Sup. Ct. Bronx Co. (Newman, J.). Indeed, Correction Law 601-d(8) states: " Nothing in this section shall affect the power of any court to hear, consider and decide any petition, motion or proceeding pursuant to article four hundred forty of the criminal procedure law, article seventy or seventy-eight of the civil practice and rules, or any authorized proceeding.

Respondent reliance on case law also fails. Respondent cites People ex rel. Hager v. Hunt, 261 AD 1046 (4th Dept. 1941) and People ex re. Walker v. Wilkins, 23 AD2d 619 (4th Dept. 1965) for the proposition that the habeas court can transfer a [*3]case to the sentencing court for resentencing.[FN2] Those cases, however, dealt with petitioners who were claiming that illegal sentences were imposed. Petitioner in the instant matter is not complaining of an illegal sentence but rather an illegal detention the proper mode of which is a writ of habeas corpus and the proper venue the county in which the petitioner is detained. Indeed, the Court of Appeals so indicated in Garner. Garner at 363. ("Petitioner also lacks another remedy at law or equity as a challenge to the PRS component of his sentence in a CPL 440.20 proceeding would necessarily fail. The statute only permits challenges to judicially imposed sentences, not those administratively imposed by DOCS.") The Respondent's cross-motion is, therefore, denied.

Accordingly, petitioner's application for a writ of habeas corpus is sustained and Parole Violation Warrant 571231 is hereby vacated. The Division, the Warden and the Department of Correctional Services are hereby ordered to release petitioner unless he is found to be currently incarcerated on the basis of some other warrant or commitment not predicated upon the alleged violation of parole.

This constitutes the decision and order of this Court.

Dated:Bronx, New York

October 20, 2008

E N T E R

_________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1:The Second, Third and Fourth Departments have reached similar holdings: People ex rel. Gerard v. Kralick, 51 AD3d 1045 (2d Dept. 2008); Pendergast v. State Department of Corrections, 51 AD3d 1133 (3d Dept. 2008); People ex rel. Foote v. Piscotti, 51 AD3d 1407 (4th Dept. 2008).

Footnote 2:Petitioner correctly points out that these cases predate the enactment of Criminal Procedure Law §440 which requires defendants complaining of illegal sentences to move before the sentencing court.