PEOPLE GERARD COLARUSSO v. KRALIK (2007)

Writ of habeas corpus in the nature of an application for the release of Anthony Colarusso from the Rockland County Jail.

ADJUDGED that the writ is sustained, without costs or disbursements;  and it is further,

ORDERED that the respondent James A. Kralik, the Superintendent of the Rockland County Jail, is directed to immediately release the detainee, Anthony Colarusso, upon service upon him, or his representative, of a certified copy of this decision, order and judgment.

Pursuant to a promise made at the time of the detainee's guilty plea, the sentencing court sentenced him to a determinate prison term of five years upon his conviction of robbery in the second degree.   Neither the sentencing minutes nor the court's order of commitment mentioned the imposition of any period of post-release supervision.   Therefore, the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision (see People v. Martinez, 40 A.D.3d 1012, 837 N.Y.S.2d 221;  People v. Howell, 40 A.D.3d 882, 837 N.Y.S.2d 173;  People v. Royster, 40 A.D.3d 885, 835 N.Y.S.2d 732;  People v. Guerrero, 39 A.D.3d 878, 879, 834 N.Y.S.2d 471;  People v. Brown, 39 A.D.3d 659, 660, 834 N.Y.S.2d 262;  People v. Sebastian, 38 A.D.3d 576, 576, 833 N.Y.S.2d 109;  People v. Wilson, 37 A.D.3d 855, 856, 829 N.Y.S.2d 917;  People v. Noble, 37 A.D.3d 622, 622, 831 N.Y.S.2d 198;  see also Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283;  Earley v. Murray, 451 F.3d 71, reh. denied 462 F.3d 147;  but see People ex rel. Garner v. Warden Rikers Is. Correctional Facility, 40 A.D.3d 243, 833 N.Y.S.2d 384;  People ex rel. Joyner v. New York State Div. of Parole, 15 Misc.3d 1133[A], 2007 WL 1345702;  cf. People v. Lingle, 34 A.D.3d 287, 825 N.Y.S.2d 12;  People v. Sparber, 34 A.D.3d 265, 823 N.Y.S.2d 405).   Accordingly, because the detainee is currently incarcerated due to his alleged violation of the terms of the post-release supervision improperly added to his sentence by the New York State Division of Parole, the detainee is entitled to immediate release from custody (cf. Earley v. Murray, 451 F.3d 71).