People v Woods

[*1] People v Woods 2010 NY Slip Op 50685(U) [27 Misc 3d 1212(A)] Decided on March 19, 2010 Supreme Court, New York County Kahn, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2010
Supreme Court, New York County

The People of the State of New York

against

Malik Woods, Defendant.



7537-2002



For the prosecution:

David G. Drucker, Esquire

Assistant District Attorney

New York County District Attorney's Office

One Hogan Place

New York, NY 10013

For the Defendant:

Mr. Malik Woods, Pro Se

147-62 231st Street

Rosedale, New York 11413

Marcy L. Kahn, J.

By notice of motion dated January 22, 2010, defendant has moved, pro se, to have the post-release supervision portion of the sentence imposed upon him on May 15, 2003 by another justice of this court modified and discharged by re-sentencing him, nunc pro tunc, to a reduced period of two and one-half years of post-release supervision, i.e., the length of time he has already served. The People have now advised that they consent to the court's ordering that defendant's term of post-release supervision terminated and that he be discharged, in light of the recent decision of the Court of Appeals in People v. Williams, ___NY3d ___, 2010 WL 605257, 2010 Slip. Op. 01527 (Feb. 23, 2010). For the reasons stated below, this court grants defendant's motion to the extent that the term of post-release supervision is terminated and expunged and he [*2]is discharged from any further service of his sentence on this matter.

Background

On May 15, 2003, defendant was sentenced to a determinate term of five years' imprisonment along with a term of post-release supervision on his conviction by plea of guilty to robbery in the first degree (PL §160.15[4]). The sentencing judge did not specify the number of years of post-release supervision to be served by defendant, but stated that he was imposing "maximum post-release supervision time." (Tr. of May 15, 2003, before the Hon. Budd G. Goodman, at 3, attached as Exh. A to the "Verified Petition" of Malik Woods, sworn Jan. 22, 2010).

On August 22, 2007, defendant was conditionally released from his determinate prison term. Since that time, he has been serving a term of post-release supervision, which was calculated by the New York State Department of Correctional Services (DOCS) and the New York State Division of Parole (the Division) to be a five-year period to end on August 22, 2012.

Defendant filed the instant motion prior to the issuance by the Court of Appeals of its decision in Williams, and, accordingly, did not address its application to his case. This court asked the People to respond to the motion in light of the ruling in Williams, and the People have responded, citing Williams, that they consent to the discharge of defendant from service of his term of post-release supervision .

Analysis

As defendant was a first violent felony offender convicted of a class B violent felony offense, the applicable term of post-release supervision at the time was five years, unless the judge at the time of sentence specified a lesser term, not less than two and one-half years. (PL §70.45[2]). Although the sentencing court's pronouncement included "maximum post-release supervision time," the court failed to state explicitly that the term of the post-release supervision would be five years.

In People v. Jones, 61 AD3d 701 (2d Dept. 2009), the Appellate Division, Second Department held that a statement by sentencing court that defendant would serve "a period of postrelease supervision as provided by law"contravened the court's duty to "pronounce sentence" under CPL §§380.20, 380.40 and People v. Sparber, 10 NY3d 457, 470-471 (2008), notwithstanding the fact that a five-year period of post-release supervision was mandated for the crime by section 70.45. Just as the non-specific reference to the term of post-release supervision "as provided by law" in Jones was found insufficient to satisfy the court's statutory duty to pronounce sentence in the presence of the defendant, so too, in this case, the court's decree that it was imposing the "maximum post-release supervision time" was statutorily insufficient under article 380, irrespective of the provisions of section 70.45(2) which indicated that the court no doubt meant to impose a five-year term. Although DOCS and the Division no doubt reached that same conclusion after careful review of the statutory scheme, those agencies were without [*3]authority to determine the length of defendant's term of post-release supervision. (Matter of Garner v. New York State Dept. Of Correctional Servs. 10 NY3d 358, 360 [2008]; see also People v. Sparber, supra , 10 NY3d at 470 ["(S)entencing is a uniquely judicial responsibility...."]).

In Sparber, the Court of Appeals had held that imprisoned defendants who challenged the imposition of post-release supervision by non-judicial administrative action but did not seek vacatur of their guilty pleas should be remitted to their sentencing courts for re-sentencing proceedings so that post-release supervision could be included in their sentence by the judge. In Williams, the Court of Appeals considered whether defendants who had finished serving their determinate terms of incarceration and had been released from prison could be re-sentenced to a term of post-release supervision without violating the Double Jeopardy Clause of the federal Constitution. The Court of Appeals in Williams held that "after release from prison, a legitimate expectation in the finality of a sentence arises and the Double Jeopardy Clause [of the United States Constitution] prevents reformation to attach a [post-release supervision] component to the original completed sentence." (People v. Williams, supra , Slip Op. at 7-8).

As defendant has completed the original sentence as pronounced by the sentencing court and has been released from custody, the imposition at this time by this court of an amended sentence including any period of post-release supervision, even for a shorter period than that specified by DOCS and the Division, would abridge his rights under the Double Jeopardy Clause of the federal Constitution (see People v. Williams, supra ).

Accordingly, the court concurs with the People that defendant's term of post-release supervision is a nullity and that the appropriate resolution of the case is to terminate defendant's period of post-release supervision and discharge him from any further service of his sentence on this case.

For the reasons stated, defendant's motion is granted on the consent of the People, to the extent that it is hereby

ORDERED, that defendant's term of post-release supervision is terminated and expunged and he is discharged from any further service of his sentence on this matter.

The foregoing constitutes the decision and order of this court.

E N T E R:

Dated: March 19, 2010___________________________

Marcy L. Kahn, J.S.C.