PEOPLE HENDERSON v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES (2008)

 Petitioner commenced this habeas corpus proceeding contending that respondent lacked the authority to impose a period of postrelease supervision because the sentencing court had not done so. We note at the outset that, because petitioner has been released from custody and restored to postrelease supervision, habeas corpus relief is no longer available to him (see People ex rel. Gill v. Greene, 48 A.D.3d 1003, 1004, 852 N.Y.S.2d 457).   Instead of dismissing the proceeding as moot, however, we convert the proceeding to one pursuant to CPLR article 78 in the nature of prohibition, and we consider the merits of the appeal (see CPLR 103[c];  People ex rel. Eaddy v. Goord, 48 A.D.3d 1307, 1308, 855 N.Y.S.2d 314;   Gill, 48 A.D.3d at 1004, 852 N.Y.S.2d 457).   As petitioner correctly notes, the sentencing court did not impose a period of postrelease supervision and, “[b]ecause CPL 380.20 and 380.40 collectively provide that only a judge may impose a ․ sentence [of postrelease supervision], we conclude that [respondent] may not do so” (Matter of Garner v. New York State Dept. of Correctional Servs., 10 N.Y.3d 358, 360, 859 N.Y.S.2d 590, 889 N.E.2d 467;  see People ex rel. Gerard v. Kralik, 51 A.D.3d 1045, 858 N.Y.S.2d 771;  People ex rel. Foote v. Piscotti, 51 A.D.3d 1407, 857 N.Y.S.2d 515;   People ex rel. Lewis v. Warden, Otis Baum Correctional Ctr., 51 A.D.3d 512, 858 N.Y.S.2d 141).

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the habeas corpus proceeding is converted to a CPLR article 78 proceeding in the nature of prohibition, the petition is granted and judgment is granted in favor of petitioner as follows:

It is ADJUDGED that respondent is prohibited from imposing upon petitioner a period of postrelease supervision.

MEMORANDUM: