IN RE: Joselito QUINONES (2006)

The petitioner, an inmate at Coxsackie Correctional Facility, has commenced the instant CPLR Article 78 proceeding to review a determination of the respondent to add five years of post-release supervision (“PRS”) to his sentence.   Petitioner argues that because the sentencing judge did not expressly mention PRS when the petitioner was sentenced, that respondent is without power to impose it now.   Respondent opposes the application, arguing that PRS was properly imposed under Penal Law §§ 70.00(6) and 70.45(1).

On July 19, 2004 petitioner was convicted after trial of the crimes of attempted murder 2nd degree, a Class B violent felony offense (see Penal Law § 70.02[1][a] ), criminal possession of a weapon 2nd degree, a Class C violent felony offense (see Penal Law § 70.02[1][b] ), and criminal possession of a weapon 3rd degree, a Class D violent felony offense (see Penal Law § 70.02 [1] [c] ).  He was sentenced, pursuant to Penal Law § 70.02(3)(a), (b) and (c) to concurrent determinate terms of 12 1/212 years, 10 years and 7 years, respectively.   Respondent concedes that the trial judge failed to mention PRS when sentence was pronounced, and that the written sentence and commitment is silent with respect to PRS.

Under Penal Law § 70.45(1), “[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision.”   The period of PRS for the determinate sentence of attempted murder 2nd degree (a Class B violent felony, see Penal Law § 70.02[1][a] ) “shall be five years except that:  * * *(f) such period shall be not less than two and one-half years nor more than five years whenever a determinate sentence of imprisonment is imposed pursuant to subdivision three of section 70.02 of this article upon a conviction of a class B or class C violent felony offense” (Penal Law § 70.45 [2] ).   The Court observes that it has been stated that “[a] determinate sentence without the post-release supervision constitutes an illegal sentence” (People v. Bell, 305 A.D.2d 694, 694, 761 N.Y.S.2d 239 [2nd Dept.2003], citing Penal Law § 70.45[2] ).

A number of New York Courts, including the Court of Appeals, have stressed the mandatory nature of PRS under Penal Law § 70.45. As stated in People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005]:

“Postrelease supervision is a direct consequence of a criminal conviction.   In eliminating parole for all violent felony offenders in 1998, the Legislature enacted a scheme of determinate sentencing to be followed by periods of mandatory postrelease supervision (see L. 1998, ch. 1 [Jenna's Law] ), and defined each determinate sentence to also include[ ], as a part thereof, an additional period of post-release supervision' (Penal Law § 70.45[1];  see also Senate Mem. in Support, 1998 McKinney's Session Laws of N.Y., at 1489 [describing postrelease supervision as a distinct but integral part of the determinate sentence'] ).   Whereas the term of supervision to be imposed may vary depending on the degree of the crime and the defendant's criminal record (see Penal Law § 70.45[2] ), imposition of supervision is mandatory and thus has a definite, immediate and largely automatic effect on defendant's punishment.” '

(id. at p. 244, 792 N.Y.S.2d 887, 825 N.E.2d 1081, emphasis supplied).   The Fourth Department Appellate Division has described the application of Penal Law § 70.45 in similar terms.   In People v. Bloom, 269 A.D.2d 838, 703 N.Y.S.2d 763 [4th Dept.2000], where the trial Court failed to specify a period of post release supervision at sentencing, the Court stated:

“[t]here was no need for the court to specify a period of post-release supervision.   Under Penal Law § 70.45(2), [t]he length of the period of “post-release supervision” is five years ․ unless the court specifies a shorter period' (Donnino, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law § 70.45, 1999-2000 Interim Pocket Part, at 81)”

(People v. Bloom, supra, at 838, 703 N.Y.S.2d 763;  see also People v. Thweatt, 300 A.D.2d 1100 at 1101, 751 N.Y.S.2d 892 [4th Dept., 2002] ).   In People v. Hollenbach, 307 A.D.2d 776, 762 N.Y.S.2d 860 [4th Dept., 2003] it was stated that “[p]ost release supervision is mandatory for determinate sentences and is automatically included in the sentence.  * * * [T]here is no need for the court to specify a period of postrelease supervision at sentencing ” (Hollenbach, at 776, 762 N.Y.S.2d 860, emphasis supplied, citations omitted).   The Third Department Appellate Division, in a case very close to the one at bar, dismissed an inmate's CPLR Article 78 proceeding brought to prohibit the Department of Correctional Services from adding PRS to his sentence where the sentencing judge had failed to mention PRS (see Matter of Deal v. Goord, 8 A.D.3d 769, 778 N.Y.S.2d 319 [3rd Dept., 2004], appeal dismissed 3 N.Y.3d 737, 786 N.Y.S.2d 814, 820 N.E.2d 293, reconsideration denied 4 N.Y.3d 795, 795 N.Y.S.2d 169, 828 N.E.2d 85).

In June of this year, the 2nd Circuit Court of Appeals took a strikingly different position with respect to PRS.   In Earley v. Murray, 451 F.3d 71, 75-76 [2d Cir.2006], reh. denied 462 F.3d 147, a state prisoner brought a habeas corpus action in Federal Court challenging imposition of PRS by the New York State Department of Corrections.   The Court of Appeals, relying heavily upon Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 [1936] ¹ , ruled that federal constitutional law prohibits the Department of Correctional Services from adding PRS to any determinate sentence if the court did not impose such a term at sentencing (Earley, 451 F.3d at 75).   The Court reasoned that “[t]he judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment”;  and that “[a]ny alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect” (id.).   As enunciated in the Earley decision, a term of post-release supervision can be added only by the trial court at a re-sentencing proceeding (id. at 76).

A number of courts since then have attempted to come to grips with the Earley decision.   In People v. Cephus, 13 Misc.3d 1211(A), 2006 WL 2714448 [Sup.Ct., Kings Co., June 28, 2006] defendant, as relevant here, moved to set aside her sentence on grounds, inter alia, that the sentencing judge did not mention PRS when the sentence was pronounced.   The Court observed that the Second Circuit Court of Appeals had recently issued the Earley decision (supra ) which held that PRS could not be administratively added to a sentence by the Department of Correctional Services.   The Court granted defendant's motion and directed that defendant be returned to the court for purposes of amendment of her sentence or for re-sentencing.

People v. Ryan, 13 Misc.3d 451, 822 N.Y.S.2d 856 [Sup.Ct., Queens County, July 28, 2006] dealt with a situation where the sentencing court had expressly included 2 1/212 years of PRS in defendant's sentence.   The problem here was that the Court had erred in that the defendant, as a second felony offender, was subject to a mandatory term of 5 years PRS, which was not subject to reduction.   In addition, the sentence and commitment was silent with respect to PRS. The New York State Department of Correctional Services administratively added 5 years PRS to defendant's sentence.   Defendant made a motion to amend his certificate of commitment to reflect only 2 1/212 years of PRS. Supreme Court initially denied the application in a decision dated April 26, 2006.   The Court subsequently granted reargument and, relying upon the Earley decision (supra ), granted the application, holding that the defendant was entitled to enforcement of the sentence as originally imposed.

In People v. Keile, 13 Misc.3d 1204(A), 2006 WL 2569964 [Sup.Ct., N.Y. Co., September 5, 2006] the sentencing court had failed to include PRS in defendant's sentence.   The defendant made a motion to vacate his guilty plea or modify his sentence.   The Court in considering Earley, supra, ultimately resolved the problem by directing that the defendant be re-sentenced to include PRS. In doing so the Court commented that “[t]his defendant, numerous other defendants ․, the Department of Correctional Services, this court, and other courts need guidance about how to proceed in this situation” (Keile, supra ).

Matter of Waters v. Dennison, 13 Misc.3d 1105, 827 N.Y.S.2d 596 [Sup. Co., Bronx Co., November 3, 2006] involved a situation where the Department of Correctional Services administratively added five years of PRS to the petitioner's sentence, where the sentence was silent on the issue.   The petitioner was declared delinquent while on parole.   The petitioner commenced a CPLR Article 78 proceeding for an order vacating PRS and the parole violation warrant ² .  Supreme Court reviewed many of the Fourth Department cases cited herein, as well as the Earley case (supra ) and the Keile case (supra ).   The Court in Waters followed the holding in Earley, and found the imposition of PRS to be unlawful.   The Court vacated the PRS and vacated the parole violation warrant.   The Court commented “[t]herefore, it is this court's opinion that DOCS' custom' of imposing PRS where the judiciary has failed to do so at the time of sentencing constitutes an administrative action that falls beyond the authority of the department and thus it is unlawful” (Matter of Waters v. Dennison, supra ).

People v. Sparber, 34 A.D.3d 265, 823 N.Y.S.2d 405, [1st Dept., 2006] has similarities to the case at bar from the standpoint that it was a court clerk who added PRS to petitioner's sentence (by inserting PRS in the sentence and commitment), when the Court neglected to do so.   The First Department commented:

“The Penal Law does not merely direct or require a court to impose PRS when imposing a determinate sentence;  instead, it provides that Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision' (Penal Law § 70.45[1] [emphasis added] ), which, in defendant's situation, is precisely five years (Penal Law § 70.45[1] ).   Therefore, even though the court's oral sentence was silent as to PRS, it necessarily included a five-year term thereof (see People v. Crump, 302 A.D.2d 901, 753 N.Y.S.2d 793 [2003], lv. denied 100 N.Y.2d 537, 763 N.Y.S.2d 2, 793 N.E.2d 416 [2003];  People v. Thweatt, 300 A.D.2d 1100, 751 N.Y.S.2d 892 [2002];  People v. Bloom, 269 A.D.2d 838, 703 N.Y.S.2d 763 [2000], lv. denied 94 N.Y.2d 945, 710 N.Y.S.2d 1, 731 N.E.2d 618 [2000] ).   Furthermore, the court, acting through its court clerk, set forth the PRS provision in the commitment sheet, thereby satisfying any constitutional requirement that a sentence be entered upon the records of the court' (Hill v. United States ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 80 L.Ed. 1283 [1936];  compare Earley v. Murray, 451 F.3d 71, 75-76 [2d Cir.2006] ).   We see no constitutional infirmity in the use of a written document to clarify an aspect of a sentence upon which the court's oral pronouncement was silent (see e.g. United States v. Pugliese, 860 F.2d 25, 30 [2d Cir.1988], cert. denied 489 U.S. 1067, 109 S.Ct. 1344, 103 L.Ed.2d 813 [1989] ), particularly where, as here, the relevant portion of the written document performs the ministerial function of setting forth a provision already included in the sentence by operation of law (see United States v. Cofield, 233 F.3d 405, 406-408 [6th Cir.2000], cert. denied 532 U.S. 952, 121 S.Ct. 1424, 149 L.Ed.2d 364 [2001] ).”

(People v. Sparber, supra, emphasis supplied) ³ .

This Court has difficulty reconciling the decision in Earley, supra with the Third Department's decision in Matter of Deal v. Goord, 8 A.D.3d 769, 778 N.Y.S.2d 319, supra.   As previously indicated, the petitioner-inmate in Deal commenced a CPLR Article 78 proceeding in the nature of prohibition against the Commissioner of Correctional Services, to prevent him from adding PRS to his sentence.   The Appellate Division found that inasmuch as the petitioner was given a determinate sentence, that PRS was “automatically included” under Penal Law § 70.45. The Court commented “[s]ince respondents are enforcing a statutorily-required part of petitioner's sentence, they have not performed any judicial function, making prohibition an unavailable remedy” (Matter of Deal v. Goord, supra, at 769, 778 N.Y.S.2d 319, citations omitted).   Distilled down to its essence, Earley, on the one hand, holds that the imposition of PRS is a “judicial act” (see Earley v. Murray, supra, at 76).  Deal, on the other hand, holds that the administrative imposition of PRS is not a “judicial function” (see Deal v. Goord, supra, at 769, 778 N.Y.S.2d 319).   For good measure the First Department, in Sparber, supra appears to depart from the Earley decision (supra ) by holding that the court clerk who added PRS to the commitment sheet was performing a “ministerial function of setting forth a provision already included in the sentence by operation of law” (People v. Sparber, supra ).

The Court is mindful that the decision in Earley, while it may be treated as useful and persuasive, is not binding (see People v. Kan, 78 N.Y.2d 54, at 59-60, 571 N.Y.S.2d 436, 574 N.E.2d 1042 [1991] ), while the Deal decision (supra ) is binding.   The Court finds that the determination of the respondent to include five years of PRS in petitioner's sentence was not a judicial act, and was not improper or unlawful.   PRS, by operation of law, automatically became a part of the sentence, once a determinate sentence was pronounced (see Penal Law §§ 70.02[6], 70.45). The Court has reviewed and considered petitioner's remaining arguments and contentions and finds them to be without merit.

The Court finds that respondent's determination to add five years PRS to petitioner's sentence was not made in violation of lawful procedure;  is not affected by an error of law;  and is not irrational, arbitrary and capricious, or an abuse of discretion.   The Court concludes that the petition must be dismissed.

Accordingly it is

ORDERED and ADJUDGED, that the petition be and hereby is dismissed.

This shall constitute the decision, order and judgment of the Court.   All papers are returned to the attorney for the Respondent who is directed to enter this Decision/Order/Judgment without notice and to serve petitioner with a copy of this Decision/Order with notice of entry.

FOOTNOTES

1.   In Wampler, a Court Clerk, pursuant to local practice, and with the court's knowledge, added a fine to defendant's sentence.   The United States Supreme Court found that the Clerk did not have the power to alter the sentence imposed by the court and that the added condition was void (Wampler, 298 U.S. at 462, 465, 56 S.Ct. 760).

2.   As noted, the PRS in Waters had been administratively imposed by the Department of Correctional Services by reason that the sentence did not mention PRS. Petitioner was released to PRS on November 26, 2004.   He was declared delinquent on January 4, 2006.   On February 23, 2006 petitioner was found to have violated the conditions of parole and a delinquent time assessment of 12 months was imposed.

3.   See also People v. Lingle, 34 A.D.3d 287, 825 N.Y.S.2d 12 [1st Dept., November 14, 2006], 2006 N.Y.App. Div. LEXIS 13419, 2006 WL 3290365 which is distinguishable from the case at bar by reason that the sentencing judge, who failed to mention PRS when he orally pronounced sentence, signed the written commitment sheet and worksheet.

GEORGE B. CERESIA, J.