PEOPLE JOHNSON v. WARDEN RIKERS ISLAND CORRECTIONAL FACILITY AND NEW YORK STATE DIVISION OF PAROLE (2004)

Petitioner moves by writ of Habeas Corpus for an order vacating a parole warrant lodged against him and releasing him from custody.   He alleges that a period of post-release supervision was illegally imposed by the Division of Parole (“the Division”) and therefore his present detention, based on a violation of that condition is unlawful.

Petitioner was sentenced on December 12, 2000 to a determinate prison term of three and one-half years upon his conviction of attempted assault in the first degree and was released to parole supervision on September 27, 2002.   The trial court did not expressly impose a precise period of post-release supervision.   Accordingly, the Division in accordance with P.L. § 70.45(1) and (2), imposed a period of five years.

Petitioner was declared delinquent on October 23, 2002 when he failed to make an office report and on October 30, 2002 when he moved from his residence without notifying his parole officer.   A parole warrant was issued on November 4, 2002 and lodged against him on January 26, 2004, when he was also served with a notice of violation.   Petitioner waived his preliminary parole revocation hearing and a final hearing was scheduled for February 5, 2004.   Petitioner brought this proceeding on May 5, 2004.

 Basically, petitioner argues, since the sentencing court did not advise him of the length of his post-release supervision, the Division had no authority to impose a term on its own.   Petitioner is incorrect.   Post-release supervision following the completion of a determinate sentence is automatic and statutorily required (People v. Hollenbach, 307 A.D.2d 776, 762 N.Y.S.2d 860 lv. den. 100 N.Y.2d 642, 769 N.Y.S.2d 208, 801 N.E.2d 429).  Penal Law § 70.45[1] and [2] provide that a period of post-release supervision shall be included in every determinate sentence unless the court specifies a shorter period (People v. White, 296 A.D.2d 867, 744 N.Y.S.2d 924 lv. den. 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579).   In fact, a determinate sentence without a period of post-release supervision is unlawful (People v. Bell, 305 A.D.2d 694, 761 N.Y.S.2d 239 lv. den. 100 N.Y.2d 592, 766 N.Y.S.2d 167, 798 N.E.2d 351;  People v. Cass, 301 A.D.2d 681, 752 N.Y.S.2d 908;  People v. Yekel, 288 A.D.2d 762, 733 N.Y.S.2d 643).   And, the sentencing court is not required to specify a period of post-release supervision either at the time of plea or at sentencing (People v. Crump, 302 A.D.2d 901, 753 N.Y.S.2d 793 lv. den. 100 N.Y.2d 537, 763 N.Y.S.2d 2, 793 N.E.2d 416;  People v. Thweatt, 300 A.D.2d 1100, 751 N.Y.S.2d 892;  People v. Bloom, 269 A.D.2d 838, 703 N.Y.S.2d 763 lv. den. 94 N.Y.2d 945, 710 N.Y.S.2d 1, 731 N.E.2d 618).

 The minutes of plea and sentence disclose that the trial court in fact did not specify a specific term of post-release supervision.   Nevertheless, since the court did not specify a shorter period, the period of post-release supervision on a conviction of attempted assault in the first degree (a class C violent felony offense), a term of five years, was imposed and must be served (P.L. § 70.45[2];  People v. Stanley, 309 A.D.2d 1254, 767 N.Y.S.2d 712;  People v. Minter, 306 A.D.2d 801, 760 N.Y.S.2d 806 lv. den. 100 N.Y.2d 585, 764 N.Y.S.2d 395, 796 N.E.2d 487;  People v. Thweatt, supra ).

 The trial court's silence on this issue is not grounds for relief. A failure to mention the term of post-release supervision might be relevant if petitioner had challenged the voluntariness of his plea, or moved to vacate his plea, or moved to withdraw his plea before sentence was imposed or moved to vacate his judgment of conviction (People v. Miller, 1 A.D.3d 613, 767 N.Y.S.2d 663 lv. den. 1 N.Y.3d 598, 776 N.Y.S.2d 230, 808 N.E.2d 366;  People v. Bell, supra;  People v. Crump, supra;  People v. Curry, 301 A.D.2d 658, 753 N.Y.S.2d 878 lv. den. 99 N.Y.2d 653, 760 N.Y.S.2d 118, 790 N.E.2d 292).   But that is not the case.   Petitioner is not questioning the lawfulness of his conviction, or guilty plea, or seeking other relief.   There is, therefore, no basis for vacating the period of post-release supervision imposed herein (People v. Bell, supra;  People v. Russell, 7 A.D.3d 818, 776 N.Y.S.2d 862;  People v. Hall, 7 A.D.3d 812, 776 N.Y.S.2d 884;  People v. Chapman, 2 A.D.3d 647, 768 N.Y.S.2d 345 lv. den. 1 N.Y.3d 596, 776 N.Y.S.2d 227, 808 N.E.2d 363;  People v. Mapp, 308 A.D.2d 462, 764 N.Y.S.2d 195 lv. den. 1 N.Y.3d 575, 775 N.Y.S.2d 792, 807 N.E.2d 905;  People v. Higgins, 304 A.D.2d 773, 757 N.Y.S.2d 778).

Accordingly, the writ is dismissed and petitioner's motion to vacate the warrant and release him from custody is denied.

EDWARD M. DAVIDOWITZ, J.