| People ex rel. McBride v Alexander |
| 2007 NY Slip Op 10191 [46 AD3d 849] |
| December 18, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York ex rel. Maureen McBride, onBehalf of Jorge Soto, Petitioner, v George B. Alexander, as Chairman of the New YorkState Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael J. Keane and AndrewMeier of counsel; Damian Noto on the brief), for respondent.
Writ of habeas corpus in the nature of an application for the release of former detainee JorgeSoto from a purported sentence of postrelease supervision.
Ordered that, pursuant to CPLR 103 (c), the matter is converted into a proceeding pursuant toCPLR article 78 in the nature of prohibition seeking to prohibit the respondent from enforcingthe sentence of postrelease supervision; and it is further,
Ordered that the order to show cause for a writ of habeas corpus and the petition for a writ ofhabeas corpus are deemed to be an order to show cause and a petition in a proceeding pursuant toCPLR article 78 in the nature of prohibition; and it is,
Adjudged that the petition is granted, without costs or disbursements, and George B.Alexander, Chairman, New York State Division of Parole, is prohibited from enforcing thesentence of postrelease supervision imposed upon Jorge Soto upon his release from incarcerationon December 12, 2006.
Pursuant to promises made at the time of guilty pleas taken by formerdetainee Jorge Soto, the sentencing courts sentenced him to determinate prison terms of 3½years upon his conviction of attempted robbery in the first degree and seven years upon hisconviction of assault [*2]in the second degree, with the sentencesto run concurrently. Thereafter, upon Soto's release from incarceration at the conclusion of hissentences, he was notified by the New York State Division of Parole (hereinafter the Division ofParole) that he was subject to its continuing supervision by virtue of Penal Law § 70.45.He was subsequently found to have violated the conditions of release and detained in upstateNew York as a consequence of that violation. Upon being released from confinement andthereafter having his movement and living arrangements restricted by the Division of Parole, thismatter was commenced.
Preliminarily, we find that Soto's claims would "be best reviewed in a proceeding pursuant toCPLR article 78" (People ex rel. DeFlumer v Strack, 212 AD2d 555, 555 [1995])."[A]ppellate courts are empowered to convert a civil proceeding into one which is proper in formunder CPLR 103 (c) making whatever order is necessary" (People ex rel. Brown v New YorkState Div. of Parole, 70 NY2d 391, 398 [1987]). We therefore convert this matter into aproceeding pursuant to CPLR article 78 for a writ of prohibition, note that it is timely, and grantthe petition.
Neither the sentencing minutes nor the sentencing courts' orders of commitment mentionedthe imposition of any period of postrelease supervision. Therefore, the sentences actuallyimposed by the courts never included, and do not now include, any period of postreleasesupervision (see People ex rel. Gerard[Colarusso] v Kralik, 44 AD3d 804 [2007], and the cases cited therein). Thus, there wasno basis to subject Soto to postrelease supervision by the Division of Parole. Accordingly, Sotohas established a clear right to prohibition, and is entitled to the immediate cessation of theenforcement, by the Division of Parole, of the terms of the postrelease supervision improperlyadded to his sentences. Crane, J.P., Rivera, Florio and Balkin, JJ., concur.