| People ex rel. Gerard (Colarusso) v Kralik |
| 2007 NY Slip Op 07739 [44 AD3d 804] |
| October 9, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York ex rel. William A. Gerard, onBehalf of Anthony Colarusso, Petitioner, v James A. Kralik et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Roseann B. MacKechnie ofcounsel), for respondent George B. Alexander, Chairman, New York State Division ofParole.
Writ of habeas corpus in the nature of an application for the release of Anthony Colarussofrom 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 CountyJail, 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 courtsentenced him to a determinate prison term of five years upon his conviction of robbery in thesecond degree. Neither the sentencing minutes nor the court's order of commitment mentionedthe imposition of any period of postrelease supervision. Therefore, the sentence actually imposedby the court never included, and does not now include, any period of postrelease supervision (see People v Martinez, 40 AD3d1012 [2007]; People v Howell,40 AD3d 882 [2007]; People vRoyster, 40 AD3d 885 [2007]; People v Guerrero, 39 AD3d 878, 879 [2007]; People v Brown, 39 AD3d 659,660 [2007]; People v Sebastian, 38AD3d 576 [2007]; People vWilson, 37 AD3d 855, 856 [2007]; People v Noble, 37 AD3d 622 [2007]; see [*2]also Hill v United States ex rel. Wampler, 298 US 460 [1936];Earley v Murray, 451 F3d 71 [2006], reh denied 462 F3d 147 [2006]; but see People ex rel. Garner v Warden,Rikers Is. Correctional Facility, 40 AD3d 243 [2007]; People ex rel. Joyner v NewYork State Div. of Parole, 15 Misc 3d 1133[A]; cf. People v Lingle, 34 AD3d 287 [2006]; People v Sparber, 34 AD3d 265[2006]). Accordingly, because the detainee is currently incarcerated due to his alleged violationof the terms of the postrelease supervision improperly added to his sentence by the New YorkState Division of Parole, the detainee is entitled to immediate release from custody (cf. Earleyv Murray, 451 F3d 71 [2006]). Crane, J.P., Angiolillo, Carni and McCarthy, JJ., concur.