PEOPLE GRIFFIN v. NEW YORK STATE DIVISION OF PAROLE (2008)

 Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that he is being illegally detained for a violation of the terms of his postrelease supervision.   According to the original sentence and commitment, petitioner was sentenced to a determinate term of imprisonment of four years and a three-year period of postrelease supervision upon his conviction of criminal possession of a weapon in the third degree (Penal Law § 265.02).   An amended sentence and commitment increased the period of postrelease supervision to five years, and petitioner contends that he is entitled to immediate release because the violation occurred beyond the original three-year period of postrelease supervision.   We conclude that habeas corpus relief is unavailable to petitioner inasmuch as the petition raises issues that could have been raised on direct appeal or by way of a postjudgment motion pursuant to CPL article 440 (see People ex rel. Elkady v. Conway, 41 A.D.3d 1176, 838 N.Y.S.2d 308, lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514;  People ex rel. Gloss v. Costello, 309 A.D.2d 1160, 764 N.Y.S.2d 895, lv. denied 1 N.Y.3d 504, 775 N.Y.S.2d 781, 807 N.E.2d 894).   In any event, respondent New York State Department of Correctional Services (DOCS) is generally required to “ ‘comply with the plain terms of the last [sentence and] commitment ․ received’ ” (Matter of Garner v. New York State Dept. of Correctional Servs., 10 N.Y.3d 358, 362, 859 N.Y.S.2d 590, 889 N.E.2d 467) and, here, DOCS did so by adhering to the amended sentence and commitment.

 Even assuming, arguendo, that Supreme Court erred in amending the sentence and commitment without affording petitioner the opportunity to appear with counsel at the time of resentencing (see People v. Johnson, 19 A.D.3d 1163, 1164, 796 N.Y.S.2d 807, lv. denied 5 N.Y.3d 829, 804 N.Y.S.2d 43, 837 N.E.2d 742;  see also CPL 380.40[1] ), we conclude that the remedy for such error would be to modify the judgment by vacating the sentence and remitting the matter to Supreme Court for resentencing, at which time petitioner would be afforded an opportunity to appear with counsel (see Johnson, 19 A.D.3d at 1164, 796 N.Y.S.2d 807).   Petitioner, however, has expressly rejected that remedy.   We cannot reinstate the original sentence and commitment as requested by petitioner because the three-year period of postrelease supervision set forth in that sentence and commitment may be illegal, and we are unable to determine that issue on the record before us (see Penal Law § 70.02[1][c];  § 70.45 [former (2) ];  see generally People v. Gibson, 52 A.D.3d 1227, 859 N.Y.S.2d 821).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: