IN RE: Kevin SMILEY (2008)

Appeal from a judgment of the Supreme Court (McDonough, J.), entered July 16, 2007 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent imposing a period of postrelease supervision upon petitioner.

In July 2002, petitioner pleaded guilty to attempted robbery in the first degree, a class C violent felony (see Penal Law § 70.02[1][b] ), and received the agreed-upon sentence of seven years in prison.   Neither the sentencing minutes nor the commitment order made mention of the mandatory period of postrelease supervision to be imposed (see Penal Law § 70.45[1], [2][f] ).  Respondent, however, included a five-year period of postrelease supervision in petitioner's sentence calculation.   Following unsuccessful administrative attempts to remedy this alleged error, petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul respondent's determination.   Supreme Court, following extant case law, dismissed the petition, prompting this appeal.

 We reverse.   As the most recent cases from this Court and the Court of Appeals make clear, only the sentencing judge is authorized to impose a period of postrelease supervision (see Matter of Garner v. New York State Dept. of Correctional Servs., 10 N.Y.3d 358 [2008];  Matter of Donhauser v. Goord, 48 A.D.3d 1005, 852 N.Y.S.2d 474 [2008];  Matter of Quinones v. New York State Dept. of Correctional Servs., 46 A.D.3d 1268, 1269, 848 N.Y.S.2d 757 [2007];  Matter of Dreher v. Goord, 46 A.D.3d 1261, 1262, 848 N.Y.S.2d 758 [2007] ).   Thus, respondent was without authority to impose a five-year period of postrelease supervision upon petitioner (see id.).   To the extent that our prior decisions have held to the contrary (see Matter of Garner v. New York State Dept. of Correctional Servs., 39 A.D.3d 1019, 831 N.Y.S.2d 923 [2007], revd. 10 N.Y.3d 358 [2008];  Matter of Deal v. Goord, 8 A.D.3d 769, 778 N.Y.S.2d 319 [2004], appeal dismissed 3 N.Y.3d 737, 786 N.Y.S.2d 814, 820 N.E.2d 293 [2004] ), they no longer should be followed.

ORDERED that the judgment is reversed, on the law, without costs, and petition granted.

PETERS, J.

CARDONA, P.J., CARPINELLO, ROSE and MALONE JR., JJ., concur.