STATE v. MYERS (2008)

This Amended Decision and Order supercedes the Decision and Order dated October 17, 2008 ¹ .  By Stipulation dated December 5, 2008, all parties consented to the issuance of an Amended Decision and Order in this action, based on the parties' recollection that, as a result of a prior Court conference, that plaintiffs' time to move for class certification and for leave to amend the complaint was extended until after such time that the defendants' motion to dismiss was decided.   This Amended Decision and Order reflects this stipulation between the parties.²

The defendants bring the instant motion seeking dismissal of the complaint filed by the State of New York (State), the New York State Department of Correctional Services (Department of Correctional Services), and the New York State Division of Parole (Parole) (collectively “plaintiffs”).   The plaintiffs oppose the defendants' motion.

In their complaint, plaintiffs seek a declaratory judgment permitting plaintiffs to maintain custody of “tens of thousands of violent felons” who may have been illegally sentenced to post-release supervision (also referred to as “PRS”) so that they may be systematically referred back to the sentencing courts, where all the necessary parties can be heard on the issues arising out of the illegal sentences.   Plaintiffs allege that this referral is appropriate where it appears that mandatory post-release supervision may not have been imposed, so that the sentencing court can correct any sentencing errors and thereby “address the potential public safety crisis inherent in releasing tens of thousands of violent felons into the community without supervision.” ³  Plaintiffs further allege that the present “proliferation of piecemeal, detached and inconsistent civil proceedings will push the criminal justice system to the brink of chaos․” ⁴ Plaintiffs also seek an order certifying certain classes of defendants (consisting of all of the individuals in plaintiffs' custody, for whom it appears that the documents in possession of plaintiffs do not record terms of post-release supervision) and permitting plaintiffs to maintain custody of the defendant classes ⁵ for certain specified periods ⁶ in order to afford plaintiffs the time to identify defendants subject to mandatory post-release supervision, to locate records that would indicate whether, for any such defendant, the original sentencing court did, in fact, pronounce post-release supervision, and to refer any defendant whose sentence did not include post-release supervision (or whose records are inconclusive) to a sentencing court to determine whether that defendant may require re-sentencing or release.   Simply, plaintiffs seek an order permitting them to maintain custody and supervision of the defendant class members.⁷

“Post-release supervision was established by the legislature in 1998 as a mandatory follow-up period to a determinate sentence for violent felony offenders.   This legislation is commonly known as “Jenna's Law.” Violent felony offenders are now required to serve at least six-sevenths of a determinate prison sentence, followed by mandatory five year periods of post-release supervision for second violent felony offenders, and mandatory periods of between one and a half to five years post-release supervision for first time felony offenders.   There are many thousands of defendants serving determinate sentences after being convicted of committing violent felony offenses following the enactment of Jenna's Law. And, by law, they are all subject to mandatory periods of post-release supervision.”  People ex rel. Joyner v. New York State Div. of Parole, 15 Misc.3d 1133(A), 2007 WL 1345702, 1 (S.Ct. Bronx County 2007).⁸

Based on the enactment of Jenna's Law, it was the Department of Correctional Services' understanding that the imposition of post-release supervision was not a judicial function, and therefore could be imposed administratively by the Department of Correctional Services, even if the sentencing court was silent with respect to that issue.

While in 2006 the Second Circuit Court of Appeals ruled that federal constitutional law prohibited the Department of Correctional Services from adding post-release supervision to any determinate sentence if the court did not impose such a term at sentencing, the New York State Appellate Divisions were split on the issue.   See, Earley v. Murray, 451 F.3d 71, 75-76 (2nd Cir.2006).⁹  By February 2008, all four Departments of the Appellate Division followed the ruling of the Second Circuit.¹⁰

Then, by Decision and Order dated April 29, 2008, the New York State Court of Appeals decided Garner v. New York State Dept. of Correctional Services, 10 N.Y.3d 358, 859 N.Y.S.2d 590, 889 N.E.2d 467 (2008).   In Garner, the Court of Appeals held that the Department of Correctional Services may not administratively add a mandatory period of post-release supervision onto a sentence where such period was not pronounced by the sentencing judge.   The Court also recognized, in a footnote, that its holding was “without prejudice to any ability that either the People or DOCS may have to seek the appropriate re-sentencing of a defendant in the proper forum.”   Id., at 363, 859 N.Y.S.2d 590, 889 N.E.2d 467.   In Garner, defendant reached the maximum expiration date of his sentence and was released to parole supervision.   On the same date, the Court of Appeals decided People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008).   In Sparber, (which involved five appeals) rather than striking post-release supervision from the sentences, the Court found that “there exists no procedural bar to allowing the sentencing court to correct its [post-release supervision] PRS error,” and remitted the five matters to the trial court for re-sentencing to include the proper pronouncement of the relevant post-release supervision term.¹¹  Id. at 472, 859 N.Y.S.2d 582, 889 N.E.2d 459.   Notably, the Court of Appeals decision to remit the Sparber defendants back to the trial court for re-sentencing involved defendants who were challenging their sentences while still incarcerated on their original sentences.   People ex rel. Hernandez v. Superintendent, Oneida Correctional Facility, 20 Misc.3d 627, 629, 861 N.Y.S.2d 567 (S.Ct. Oneida County, 2008).   It was after the Court of Appeals' Decisions in Garner and Sparber that plaintiffs commenced the instant action.

Thereafter, on June 30, 2008, Legislation was passed which requires certain violent felons to appear for re-sentencing so that their statutorily required sentences of post-release supervision may be imposed.   See Governor's Program Bill No. 73 Memorandum;  See, Chapter 141 of the Laws of 2008.¹²  Specifically, the Legislation provides, in part, that upon notification by Department of Correctional Services that post-release supervision was not imposed on the commitment order of a “designated person” ¹³ , within 30 days thereafter, the sentencing court shall commence a proceeding to consider re-sentencing.   No later than forty days after receipt of such notice, the sentencing court shall issue and enter a written determination and order.   See Correction Law § 601-d ¹⁴

In support of their motion seeking dismissal of the plaintiffs' complaint, the defendants argue the following:

1)Plaintiffs' claim has been rendered moot based on the passage of Chapter 141 of the Laws of 2008 (effective June 30, 2008), which provides a statutory resolution to the post-release supervision sentencing issue.   Chapter 141 of the Laws of 2008 amended the Corrections Law to establish a procedure governing the re-sentencing of persons upon whom a determinate sentence was imposed that was required by law to include a term of post-release supervision.   Thus, defendants argue, plaintiffs have failed to raise a justiciable controversy.

2)An order requiring further incarceration is inequitable to those who would only be subject to post-release supervision and not incarceration.   An order requiring incarceration is unnecessary as courts are currently dealing with a large volume of cases referred by the Department of Correctional Services without the need for equitable intervention by the court.

3)Plaintiffs are not entitled to a declaratory judgment as there is no prejudice.   Further, the mandate of the Court of Appeals is clear.15  Plaintiffs' claim is nothing more than a request for an advisory opinion, which is improper under this proceeding.

4)Plaintiffs incarceration plan is overbroad, since it permits incarceration for those whose legal status is clear because all necessary documents have been obtained.¹⁶

5)This Court should not interfere with the legal process now occurring in other courts, including habeas corpus and CPLR Article 78 proceeding challenging either incarceration or the obligation to report to parole.

6)In many cases, re-sentencing is illegal, based on double jeopardy, due process and jurisdictional considerations.   Furthermore, defendants claim that plaintiffs have failed to cite any New York case in which a defendant class action was certified over the objection of the defendant class.   Defendants claim that plaintiffs cannot meet the requirements for class certification.

In opposition to the defendants' motion, plaintiffs argue that they have stated a cause of action seeking declaratory relief “that defines the rights of the parties engaged in the re-sentencing process now required under the June 30, 2008 legislation and the mandates of Garner, Sparber and Jenna's Law.” ¹⁷ While plaintiffs argue that this Legislation has created a method for the Department of Correctional Services to “obtain definitive judicial guidance as to which defendants are to remain subject to PRS and which are not”, plaintiffs claim that the Legislation has not resolved all issues set forth in the complaint.¹⁸  Plaintiffs argue that some re-sentencing questions remain unresolved as a result of the June 30, 2008 post-release supervision Legislation, including, under what circumstances, if any, does the 2008 legislation give plaintiffs the authority to terminate the custody or supervision of the members of a defendant class? ¹⁹  Plaintiffs argue that they are not seeking an advisory opinion, but rather seeking to bring clarity to uncertain or disputed obligations.

Plaintiffs claim that, because the 2008 post-release supervision Legislation leaves open questions as to the rights and obligations of the plaintiffs, their claim is not moot, and plaintiffs have presented a justiciable controversy.   Plaintiffs assert that the issues that remain unresolved as a result to the 2008 post-release supervision Legislation may be better focused in the proposed amended complaint.   Plaintiffs claim that one issue is whether they have the obligation to release defendants who have not yet prevailed in CPLR Article 78 or habeas corpous litigation.²⁰  Plaintiffs claim that the Court should clarify the effect that re-sentencing of a defendant class member has on that member's custodial and/or supervisory status.

Plaintiffs further argue that this Court has jurisdiction to decide the issues presented on the grounds that the defendants have sought class action declaratory relief in federal courts based on the illegal imposition of post-release supervision.   Plaintiffs argue that, by pursuing declaratory and injunctive relief and money damages in other courts, defendants concede the jurisdiction of this Court to determine the issues raised by plaintiffs.

 The scope of review relevant to a motion to dismiss pursuant to CPLR § 3211 is limited.  Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 (1998).   When examining such a motion, a court must liberally construe the pleadings in plaintiff's favor, accept the facts alleged as true, and determine whether the facts alleged fit within any cognizable legal theory Id., at 366, 670 N.Y.S.2d 973, 694 N.E.2d 56;  Kovach v. Hinchey, 276 A.D.2d 942, 944, 714 N.Y.S.2d 791 (3rd Dept.2000).   However, a court need not accept as true legal conclusions or factual allegations that are either inherently incredible or flatly contradicted by documentary evidence' Ozdemir v. Caithness Corp., 285 A.D.2d 961, 963, 728 N.Y.S.2d 824 (3rd Dept.2001);  1455 Washington Ave. Assocs. v. Rose & Kiernan, 260 A.D.2d 770, 771, 687 N.Y.S.2d 791 (3rd Dept.1999).  “A court may consider factual materials to remedy defects in the allegations made in the complaint or petition, but should not make determinations regarding whether a claim is supported by evidence.”  Matter of Niagara Mohawk Power Corp. v. State of New York, 300 A.D.2d 949, 952, 753 N.Y.S.2d 541 (3rd Dept.2002);  Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970 (1976).  “[T]he court ․ must accept the allegations of the complaint as true and ignore the affidavits submitted by defendants' ”. Valentino v. County of Tompkins, 284 A.D.2d 898, 899, 726 N.Y.S.2d 881 (3rd Dept.2001).   While affidavits received on such motion may not typically be utilized to determine whether there is evidentiary support for the pleadings, a dismissal can, in fact, be granted if “the affidavits establish conclusively that plaintiff has no cause of action”.  Rovello, 40 N.Y.2d at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970;  Marraccini v. Bertelsmann Music Group Inc., 221 A.D.2d 95, 97, 644 N.Y.S.2d 875 (3rd Dept. 1996).

 It is fundamental that in order to establish a cause of action for a declaratory judgment, a plaintiff must present a justiciable controversy.²¹  CPLR § 3001 ²² ;  Cherry v. Koch, 126 A.D.2d 346, 350, 514 N.Y.S.2d 30 (2nd Dept.1987);  Church of St. Paul and St. Andrew v. Barwick, 67 N.Y.2d 510, 518, 505 N.Y.S.2d 24, 496 N.E.2d 183 (1986).   The power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal.   Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713-714, 431 N.Y.S.2d 400, 409 N.E.2d 876 (1980).  “This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary.”  Id. A justiciable controversy should not be equated with hypothetical or abstract questions.   The controversy must be definite and concrete, touching legal relations of the parties.  Liverpool Central School Dist. v. Nyquist, 84 Misc.2d 20, 374 N.Y.S.2d 942 (S.Ct. Albany County 1975).   Along these lines, the declaratory judgment action may not be used to secure an advisory opinion.  Matter of State Ind. Comm., 224 N.Y. 13, 16, 119 N.E. 1027 (1918);  Cuomo v. Long Is. Light. Co., 71 N.Y.2d 349, 525 N.Y.S.2d 828, 520 N.E.2d 546 (1988);  Town of Coeymans v. City of Albany, 237 A.D.2d 856, 655 N.Y.S.2d 172 (3rd Dept.1997).  “The courts of New York do not issue advisory opinions for the fundamental reason that in this State [the] giving of such opinions is not the exercise of the judicial function' ” Cuomo, 71 N.Y.2d at 354, 525 N.Y.S.2d 828, 520 N.E.2d 546 (quoting Matter of State Indus. Commn., 224 N.Y. at 16, 119 N.E. 1027).   If a decision rendered by the court “might ultimately prove to have no effect on the substantial rights of either party” the complaint should be dismissed.  Employers' Fire Ins. Co. v. Klemons, 229 A.D.2d 513, 514, 645 N.Y.S.2d 849 (2nd Dept.,1996).

 Here, the plaintiffs' complaint does not set forth any real and substantial controversy between themselves and the defendants.   In opposition to the defendants' motion to dismiss, plaintiffs have alleged hypothetical questions resulting from the 2008 post-release supervision Legislation.²³  Yet, with no circumstance identified to which each of these hypothetical questions might apply, the declaration sought would be the equivalent of an request for an advisory opinion.  Long Is. Light. Co., 71 N.Y.2d at 354, 525 N.Y.S.2d 828, 520 N.E.2d 546.   For this reason alone, the plaintiffs' complaint should be dismissed.²⁴  Yet, due process concerns also prohibit the relief requested by plaintiffs.

 The Due Process Clause “protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them'.”   See Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)).   In the class action context, due process insures procedural fairness and protects the interests of absent class members.  Bakalar v. Vavra, 237 F.R.D. 59, 63-64 (S.D.N.Y.,2006) “These concerns are particularly acute in defendant class actions where the unnamed class members risk exposure to liability.”   Integra-a Hotel & Rest. Co. v. Fid. Capital Appreciation Fund, 262 F.3d 1089, 1105 (10th Cir.2001);  Marchwinski v. Oliver Tyrone Corp., 81 F.R.D. 487, 489 (W.D.Pa.1979) (“[A] defendant class differs in vital respects from a plaintiff class, and ․ raises immediate due process concerns․ [W]hen one is an unnamed member of a defendant class, one may be required to pay a judgment without having had the opportunity to personally defend the suit.”) ²⁵ ;  Bakalar, 237 F.R.D. at 63-64.  “The essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.”  Mathews v. Eldridge, 424 U.S. 319, 349, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976);  People v. Bell, 3 Misc.3d 773, 777, 778 N.Y.S.2d 837 (S.Ct. Bronx County 2003).  “An over-broad framing of the class may be so unfair to the absent members as to approach, if not amount to, deprivation of due process.” Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326, 1337-38 (2d Cir.1992).

 While this Court understands and does not necessarily condemn the plaintiffs' motives in bringing the instant action, plaintiffs have failed to set forth any precedent for initiating an action against a class of unnamed defendants where the end result could be the continued incarceration of individuals, some of whom have already served and completed their sentences.   It is undisputed that defendants as a class belong to subclasses of incarcerated inmates and releasees, some of whom have completed their underlying determinate terms.   It is also undisputed that plaintiffs have not been able to identify all of the defendant class members.²⁶  We do not, in this Country, adjudicate the rights of criminal defendants en masse for the simple reason that it is unfair and a denial of basic due process.   Moreover, plaintiffs are admittedly in possession of the sentencing information of some individuals.   This provides the plaintiffs with immediate information as to whether post-release supervision was illegally imposed.   Yet, plaintiffs' broad request for relief would keep individuals, even those known to be not subject to post-release supervision under Garner and Sparber, in custody.

Based on the forgoing, the defendants' motion seeking dismissal of the plaintiffs' complaint is granted.

This shall constitute the Decision and Order of the Court.   This Amended Decision and Order together with the Stipulation dated December 5, 2008 is being returned to William D. Gibney, Esq. of the Legal Aid Society, Attorneys for defendant Malcolm Carter.   The signing of this Decision and Order shall not constitute entry or filing under CPLR § 2220.   Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

IT IS SO ORDERED.

FOOTNOTES

1.   The issuing court generally retains the power to clarify an order or to correct ministerial errors or irregularities contained therein that do not affect substantial rights of the parties.  Matter of Owens v. Stuart, 292 A.D.2d 677, 739 N.Y.S.2d 473 (3d Dept.2002).   Issuance of the revised order will be appropriate when the record offers irrefutable support for the correction made by the court therein.  Ungar v. Ensign Bank, FSB, 196 A.D.2d 204, 208, 608 N.Y.S.2d 405 (1st Dept.1994).

2.   The Stipulation provides, in part, that “[t]he parties agree that as of September 11, 2008, the Plaintiffs' time to move for class certification and for leave to amend the complaint was extended until after the motion to dismiss was disposed of by the Court, and the parties agree that such time to move for class certification and for leave to amend the complaint shall be deemed extended to thirty days from the date of service of the notice of entry of any decision disposing of the motion to dismiss by the Court.”

3.   Plaintiffs point to a recent case where a releasee prevailed on a habeas corpus petition and successfully had his post-release supervision vacated.   This releasee was arrested and charged on May 9, 2008 with the murder of a woman running a dry cleaning store in Brooklyn, New York. Complaint, ¶ 48

4.   See Complaint, Preliminary Statement.

5.   Plaintiffs separate defendants into three different subclasses, to wit:  Subclass A, which includes those defendants currently in plaintiffs' custody, held pursuant to a violation of post-release supervision, where the post-release supervision period is beyond the maximum expiration date for the class member's determinate sentence, and where it appears that the documents in plaintiffs' possession do not record a court-imposed term of post-release supervision;  Subclass B includes those defendants who currently are in plaintiffs' custody and whose period of post-release supervision will, on or before June 1, 2009, extend beyond the maximum expiration date of the class-members determinate sentence, and where it appears that the documents in plaintiffs' possession do not record a court-imposed term of post-release supervision;  and Subclass C, which includes those defendants currently in plaintiffs' custody or released to parole on conditional or other release (but not exclusively post-release supervision) and whose period of post-release supervision will, on or before June 1, 2009, extend beyond the maximum expiration date of the class-members determinate sentence, and where it appears that the documents in plaintiffs' do not record a court-imposed term of post-release supervision.   Defendant Myers is alleged to be a member of Subclass A. Defendant Smalls is alleged to be a member of Subclass B. Defendant Negron is alleged to be a member of Subclass C.

6.   Such additional time periods sought are continued custody of the defendants by plaintiffs for 60 to 90 days “from the date of this order”, pending action by the sentencing court, and continued custody or supervision thereafter if a sentencing court provides notice that it will either hold re-sentencing proceedings or is obtaining records to determine if re-sentencing proceedings are appropriate.

7.   By Order to Show Cause, signed by this Court on June 6, 2008, plaintiffs sought a temporary restraining order and preliminary injunction which encompassed the same relief sought in plaintiffs' complaint.   On June 6, 2008, this Court denied plaintiffs' application for a temporary restraining order.   Based on post-release supervision legislation that was subsequently signed into law, the plaintiffs later withdrew their motion seeking a preliminary injunction.

8.   See, Laws of 1998, Chapter 1, §§ 15, 44;  Penal Law § 70.00(6) and § 70.45(1).

9.   The First, Third and Fourth Departments declined to follow Earley, supra.   See. People v. Sparber, 34 A.D.3d 265, 823 N.Y.S.2d 405 (1st Dept.2006);  People v. Boyer, 36 A.D.3d 1084, 827 N.Y.S.2d 776 (3rd Dept.2007);  Matter of Garner v. New York State Department of Correctional Services, 39 A.D.3d 1019, 831 N.Y.S.2d 923 (3rd Dept.2007), mot. for lv. to app. granted, 9 N.Y.3d 809, 844 N.Y.S.2d 784, 876 N.E.2d 513 (2007);  People v. Crump, 302 A.D.2d 901, 753 N.Y.S.2d 793 (4th Dept.2003);  People v. Bloom, 269 A.D.2d 838, 703 N.Y.S.2d 763 (4th Dept.2000);  People v. Stanley, 309 A.D.2d 1254, 767 N.Y.S.2d 712 (4th Dept.2003).   By contrast, the Second Department held that, where a sentencing court fails to impose a period of post-release supervision, the Department of Correctional Services has no authority to add the same to an inmate's sentence.  People v. Wilson, 37 A.D.3d 855, 829 N.Y.S.2d 917 (2nd Dept.2007);  People v. Noble, 37 A.D.3d 622, 831 N.Y.S.2d 198 (2nd Dept.2007).

10.   See, People v. Figueroa, 45 A.D.3d 297, 846 N.Y.S.2d 87 (1st Dept.2007), Matter of Dreher v. Goord, 46 A.D.3d 1261, 1262, 848 N.Y.S.2d 758 (3rd Dept.2007);  People ex rel. Burch v. Goord, 48 A.D.3d 1306, 853 N.Y.S.2d 756 (4th Dept.2008).

11.   According to Sparber, supra, at 469-470, 859 N.Y.S.2d 582, 889 N.E.2d 459, “[t]he combined command of Penal Law § 70.00(6) and § 70.45(1) is clear.   Each of these defendants' sentences must include some period of PRS. Sections 70.00(6) and 70.45(1) are, however, silent with respect to how that mandatory PRS term is to be imposed.   But that procedure is equally clear.  CPL 380.20 and 380.40(1) collectively require that courts “must pronounce sentence in every case where a conviction is entered” ․ Thus, the procedure by which these sentences were imposed was flawed because the PRS component was not “pronounced” as required by CPL 380.20 and 380.40.”   A clerk's notations on a worksheet or a commitment sheet, which are presumably recorded outside of the defendant's presence, do not satisfy the statutory mandate.   Moreover, judicial endorsement of the clerk's actions, through any method other than pronouncement in the defendant's presence, could not cure the sentencing courts' PRS errors.  Id. at 471, 859 N.Y.S.2d 582, 889 N.E.2d 459.

12.   This Legislation was signed into law on June 30, 2008, only 26 days after the filing of the complaint by plaintiffs.

13.   Pursuant to Correction Law § 601-d(1), an individual is deemed a “designated person” if the commitment order that accompanied such person does not indicate imposition of any term of post-release supervision;  provided, however, that if such agency with custody of or supervision over such person has the sentencing minutes that show that a term of post-release supervision was actually pronounced at sentence, such person shall not be deemed a designated person.

14.   The defendant may consent to extend the time periods specified in paragraphs [c] and (d) of this subdivision.   The people may apply to the court for an extension of ten days on the basis of extraordinary circumstances that preclude final resolution within such period of the question of whether the defendant will be resentenced.

15.   The Court of Appeals in Garner explicitly held that the sentencing court can re-sentence a defendant under these circumstances when it stated “our holding here is without prejudice to any ability that either the People or DOCS may have to seek the appropriate re-sentencing of a defendant in the proper forum”.  Garner, 10 N.Y.3d at 363, n. 4, 859 N.Y.S.2d 590, 889 N.E.2d 467. In Sparber, the Court of Appeals specified that when faced with a defendant who is still serving his sentence, and who on direct appeal challenges the legality of his sentence, the appropriate remedy is to remand for re-sentencing to correct the illegality.   Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459.

16.   At oral argument with respect to the preliminary injunction, plaintiffs advised the court that it was in possession of the necessary documents to determine if post-release supervision was improperly imposed for at least 50% of those in Subclass A.

17.   Plaintiffs' Memorandum of Law, dated September 19, 2008, page 4.

18.   Plaintiffs' Memorandum of Law, dated September 19, 2008, page 3.

19.   Plaintiffs allege other questions have arisen as a result of the 2008 Legislation, including a) would the termination of custody or supervision frustrate the State's right to seek re-sentencing to a period of post-release supervision;  b) how does re-sentencing affect custodial/supervisory status;  c) does the State have the right to seek re-sentencing of those who are no longer in custody or under supervision and can the sentencing courts compel defendants to appear for re-sentencing;  d) does the State have the right to seek re-sentencing if the legislated time-frames cannot be met;  e) does the State have the right to have defendants, convicted after pleas for offenses subject to post-release supervision terms, but sentenced illegally, sentenced as predicate felons, even if the re-sentencing post-dates the subsequent conviction?   Plaintiffs' Memorandum of Law, dated September 19, 2008, pages 6-7.

20.   Plaintiffs also claim that the Court should clarify that Article 78 and habeas litigation brought by defendant class members can be resolved by the Correction Law § 601-d courts, so as to reduce the burden on the courts.

21.   “Justiciability ․ refers, in the broad sense, to matters resolvable by the judicial branch of government as opposed to the executive or legislative branches or their extensions” New York County Lawyers' Ass'n v. State, 294 A.D.2d 69, 72, 742 N.Y.S.2d 16 (1st Dept.2002)(citing Jiggetts v. Grinker, 75 N.Y.2d 411, 415, 554 N.Y.S.2d 92, 553 N.E.2d 570 (1990)).

22.   CPLR § 3001 provides “The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.   If the Court declines to render such a judgment it shall state its grounds.”

23.   Plaintiffs' Memorandum of Law, pages 6-7.   The more compelling question plaintiffs pose is whether they can maintain custody of any defendant during the pendency of re-sentencing proceedings.   This situation seems to only apply to those members of the potential Subclass A, which include those defendants currently in plaintiffs' custody, held pursuant to a violation of post-release supervision, where the post-release supervision period is beyond the maximum expiration date for the class member's determinate sentence, and where it appears that the documents in plaintiffs' possession do not record a court-imposed term of post-release supervision.   Yet, other than identifying the defendant Myers as an alleged member of Subclass A, plaintiffs allegations are hypothetical.   Plaintiffs further fail to identify any other circumstance or defendant to whom this question might apply.   In any event, there is no provision in Correction Law § 601-d authorizing the Court to detain a “designated person” pending the institution or outcome of a 601-d re-sentencing proceeding.

24.   Moreover, the 2008 post-release supervision Legislation, which was signed into law on June 30, 2008, renders plaintiffs' action moot.   Magee v. Rocco, 158 A.D.2d 53, 557 N.Y.S.2d 759 (3rd Dep't 1990);  Campbell v. Blum, 91 A.D.2d 937, 457 N.Y.S.2d 816 (1st Dep't 1983);  Rubman v. Waller, 118 Misc.2d 116, 459 N.Y.S.2d 981 (N.Y.City Civ.Ct.1983).   When the complaint was filed, plaintiffs sought to avoid a public safety crises that would occur through the mass release of violent felons into the community without supervision.   Plaintiffs also alleged that the decision in Garner and Sparber would result in a “crises in the courts”.   While there was no evidence of any crises occurring in the courts before the post-release supervision Legislation, the passage of the same has dissipated the potential for any such crises.   Notably, the relief sought by plaintiffs in the application for a preliminary injunction was the same as the relief sought in the complaint.   Based on that the post-release supervision legislation encompassed the relief plaintiffs sought in their preliminary injunction, plaintiffs withdrew the same.

25.   The Court rejects plaintiffs' argument that, since the defendants have commenced their own class actions in federal court seeking declaratory and monetary relief arising out of illegal sentences to Post-release supervision terms, defendants have conceded that this Court has jurisdiction to declare the rights of the parties to the re-sentencing mandates and initiatives.

26.   At the oral argument of the plaintiffs' motion seeking a preliminary injunction, which took place on June 20, 2008, plaintiffs, through counsel, candidly stated that plaintiffs have not identified all the defendant class members, and that plaintiffs do not know which defendants should be released or not.   Thus, plaintiffs request that all defendants be held.   See Transcript of Oral Argument, dated June 20, 2008, pages 20 and 37.

JOHN C. EGAN, J.