PEOPLE MERCED v. WARDEN (2007)

On October 8, 2003, petitioner was convicted, upon his plea of guilty, of criminal possession of a weapon in the third degree in New York County Supreme Court (Berkman, J.), and sentenced to a determinate term of three years imprisonment.   On October 15, 2003, petitioner was convicted, upon his plea of guilty, of criminal possession of a weapon in the third degree in Kings County Supreme Court (Del Giudice, J.), and sentenced, as a second felony, to an indeterminate term of two to four years, to be served concurrently with his New York County sentence.   After sentencing, a three-year period of post-release supervision was administratively imposed on the petitioner by the Department of Correctional Services (DOCS).   Petitioner seeks a writ of habeas corpus vacating a parole violation warrant lodged against him and releasing him from custody.

The relevant facts are as follows.   Petitioner was convicted of criminal possession of a weapon in the third degree in the Supreme Court of both New York and Kings Counties on October 8, 2003 and October 15, 2003, respectively, pursuant to his pleas of guilty.   He was sentenced to a determinate term of three years in New York County and to an indeterminate term of two to four years in Kings County, with the sentences to run concurrently.   There was no mention during the plea proceedings, at sentencing, or in the commitment sheets that a period of post-release supervision would be added to petitioner's sentence.   After sentencing, a three-year period of post-release supervision was administratively imposed on petitioner by DOCS (Penal Law § 70.45).

On November 2, 2006, during his incarceration at Attica, petitioner commenced an Article 78 proceeding in Supreme Court, Wyoming County, challenging the imposition of post-release supervision by DOCS. By order dated April 19, 2007, the Supreme Court, Wyoming County (Dadd, J.), denied the petition, for the reasons stated in another decision by the Court, also dated April 19, 2007, in People ex rel. Snyder v. Department of Correctional Services, Index No. 20,435/07.   In denying the petition, the Court relied on Fourth Department precedent which holds that “the longest possible period of post-release supervision is imposed by operation of law if the sentencing court does not specify a shorter term” (People ex rel. Snyder v. Department of Correctional Services, supra at 3, citing People v. Crump, 302 A.D.2d 901, 753 N.Y.S.2d 793 [4th Dept.2003] and People v. Bloom, 269 A.D.2d 838, 703 N.Y.S.2d 763 [4th Dept.2000] ).

On April 30, 2007, petitioner was released from custody.   Prior to his release, petitioner signed a Certificate of Release to Parole Supervision, agreeing to certain conditions upon his release.   Petitioner was to be supervised by the Division of Parole until April 30, 2010.

On June 24, 2007, petitioner was arrested for unlawful possession of a weapon and resisting arrest.   He was released on $5,000.00 bail pending resolution of the charges.

On August 24, 2007, parole violation warrant No. 481315 was lodged against petitioner, charging him with violating the terms of his post-release supervision.   Petitioner was remanded based upon the warrant issued for his alleged parole violation.   Petitioner's final revocation hearing is still pending.

By writ of habeas corpus submitted to this Court on October 31, 2007, petitioner seeks an order vacating the parole warrant lodged against him on the ground that the period of post-release supervision imposed on him administratively by DOCS after sentencing is a nullity.   Petitioner seeks an order vacating the parole violation warrant lodged against him and directing his release from custody.   The Division of Parole responds that petitioner is barred from challenging the imposition of post-release supervision under the doctrines of res judicata and collateral estoppel, since he has already litigated this issue in the Wyoming County Supreme Court, which ruled that the three-year period of post-release supervision was properly imposed.   The Division additionally argues that a writ of habeas corpus is not the appropriate vehicle through which to challenge post-release supervision and that this issue should be addressed by the sentencing court or on direct appeal.   The Division asserts that this Court should not assume the role of an appellate court and modify the sentence imposed by the sentencing court.   On the merits, the Division contends that petitioner's sentence includes post-release supervision by operation of law pursuant to Penal Law § 70.45.

By letter dated November 29, 2007, the Division raises an additional argument, namely, that the Court of Appeals decision in People v. Hill, 9 N.Y.3d 189, 849 N.Y.S.2d 13, 879 N.E.2d 152 [2007] establishes that the sole remedy of a defendant challenging the imposition of post-release supervision is to seek vacatur of a plea.

Conclusions of Law

 Preliminarily, the Court concludes that the petitioner is not barred under the doctrines of collateral estoppel or res judicata from seeking relief in this case.   Petitioner's application before the Wyoming County Supreme Court was made while he was still incarcerated at Attica, prior to his release to parole supervision and prior to the parole warrant lodged against him following his arrest on another matter.   The sole issue in the Article 78 proceeding before the Wyoming County Supreme Court was whether the three-year period of post-release supervision administratively imposed by DOCS was proper.   In the case at bar, unlike the Article 78 proceeding before the Wyoming County Supreme Court, petitioner is seeking release from custody and challenging the parole violation warrant lodged against him subsequent to his release from Attica.   Inasmuch as petitioner is currently imprisoned as a result of the parole violation warrant lodged against him, it is within his right to inquire as to the “cause of such detention” pursuant to CPLR 7002.   The legality of petitioner's detention and the propriety of the parole violation warrant lodged against him were not before the Wyoming County Supreme Court.   Thus, the issues raised in the instant habeas corpus proceeding are not identical to the claim litigated in the Article 78 proceeding (see Matter of Parker v. Blauvelt Volunteer Fire Company, 93 N.Y.2d 343, 348-349, 690 N.Y.S.2d 478, 712 N.E.2d 647 [1999];  Matter of Washington v. Lippman, 30 A.D.3d 299, 818 N.Y.S.2d 38 [1st Dept.2006] ).   Accordingly, since the petitioner's writ of habeas corpus seeks relief that could not have been sought in the Article 78 proceeding, he is not barred by collateral estoppel and res judicata (see Matter of Parker v. Blauvelt Volunteer Fire Company, supra;  Matter of Williams v. Travis, 20 A.D.3d 622, 798 N.Y.S.2d 535 [3d Dept. 2005];  cf., Matter of LaRocco v. Goord, 43 A.D.3d 500, 840 N.Y.S.2d 477 [3d Dept.2007] [petitioner brought three prior proceedings for writs of habeas corpus] ).

 The Court also rejects the Division's claim that a writ of habeas corpus is not the appropriate forum to seek relief of a post-release supervision claim.   Numerous courts have sustained writs of habeas corpus and vacated parole warrants where the sentencing court failed to impose post-release supervision (see People ex rel. Santos v. Warden, 17 Misc.3d 1120(A), 2007 WL 3133318 [Sup.Ct. Bronx Co.2007] [Gross, J.];  People ex rel. Mazario v. Warden, 16 Misc.3d 1109(A), 2007 WL 2012417 [Sup.Ct. Bronx Co.2007] [Dawson, J.];  People ex rel. White v. Warden, 15 Misc.3d 360, 833 N.Y.S.2d 363 [Sup.Ct. Bronx Co.2007] [Marcus, J.];  People ex rel. Johnson v. Warden, 15 Misc.3d 1102(A), 2007 WL 755412 [Sup.Ct. Bronx Co.2007] [Adler, J.];  People ex rel. Nelson v. Warden, Index. No. 75121/07 [Sup.Ct. Bronx. Co., July 24, 2007] [Fisch, J.];  People ex. rel Hyter v. Warden, Index No. 7509/07 [Sup.Ct. Bronx Co., June 8, 2007] [Clancy, J.];  People ex rel. Feminella et al. v. New York State Div. of Parole, Index No. 51179/07 [Sup.Ct. Bronx Co., May 11, 2007] [Fabrizio, J.];  People ex rel. Brown v. Warden, Index No. 757036/07 [Sup.Ct. Bronx Co., April 4, 2007] [Boyle, J.];   People ex rel. Lewis v. Warden, 14 Misc.3d 468, 825 N.Y.S.2d 341 [Sup.Ct. Bronx Co.2006][Cirigliano, J.] ).

 Turning to the merits of the application, the Court concludes that the petition should be sustained.   The issuance of a parole warrant violation based upon petitioner's new arrest was improper since the sentence imposed by the sentencing court did not include post-release supervision.   The First Department has expressly ruled that the sentence imposed by the court does not include any period of post-release supervision where neither the sentencing minutes, nor the court's order of commitment, mention the imposition of any period of post-release supervision (see People v. Figueroa, 45 A.D.3d 297, 846 N.Y.S.2d 87 [2007] ).   Relying on precedent from the Second Department, the First Department held that “the sentence actually imposed by the court never included and does not now include, any period of post-release supervision ” (People v. Figueroa, supra, quoting People v. Noble, 37 A.D.3d 622, 831 N.Y.S.2d 198 [2d Dept.2007] )(emphasis added).

Here too, under the law of the First Department, which controls petitioner's application for habeas corpus relief, petitioner's sentence “never included and does not now include” post-release supervision, since it was not mentioned at sentencing or in the order of commitment.   The Division's assertion that granting the petition would require this Court to effectively act as an appellate court is without merit.   No modification of the sentence imposed in this case is necessary, since, under People v. Figueroa, the sentence imposed does not include post-release supervision.

Finally, the Court rejects the Division's argument that the Court of Appeals decision in People v. Hill, 9 N.Y.3d 189, 849 N.Y.S.2d 13, 879 N.E.2d 152 [2007] establishes that the sole remedy of a defendant challenging the imposition of post-release supervision is to seek vacatur of a plea.   The Court of Appeals did not rule on, nor was it presented with, the issue whether the administrative imposition of post-release supervision constitutes a due process violation.

Accordingly, petitioner's writ of habeas corpus is sustained, parole violation warrant No. 481315 is vacated and, pursuant to CPLR 7010(a), it is directed that petitioner be discharged from detention on this matter.

This constitutes the decision and order of this Court.

RICHARD LEE PRICE, J.