| Matter of Dreher v Goord |
| 2007 NY Slip Op 10430 [46 AD3d 1261] |
| December 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of Robert Dreher, Appellant, v Glenn S. Goord, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondents.
Kane, J. Appeal from a judgment of the Supreme Court (McCarthy, J.), entered December27, 2006 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to prohibit respondents from imposing a period of postrelease supervision uponhim.
Upon his plea of guilty, petitioner was convicted of several crimes including assault in thesecond degree. County Court (Corning, J.) sentenced petitioner as a second felony offender to,among other terms, seven years in prison for the assault conviction. The court did not impose anyperiod of postrelease supervision. After petitioner entered the prison system, the Department ofCorrectional Services (hereinafter DOCS) calculated his time by including a five-year period ofpostrelease supervision. Petitioner commenced this proceeding seeking a writ of prohibitionagainst respondents, essentially precluding DOCS from imposing a period of postreleasesupervision. Supreme Court dismissed the petition, prompting petitioner's appeal.
We reverse. While Penal Law § 70.45 (1) provides that "[e]ach determinate sentencealso includes, as a part thereof, an additional period of post-release supervision," sentencingremains the province of the courts. The Legislature did not authorize DOCS to impose any [*2]period of postrelease supervision (compare Correction Law§ 601-a). Under Correction Law § 601-a, DOCS' wardens are required to contact theprosecuting district attorney when it appears that a person was "erroneously sentenced as asecond, third or fourth offender." If the district attorney agrees, the warden must contact thesheriff of the county, who in turn must take the person before the sentencing court for purposesof resentencing (see Correction Law § 601-a; compare CPL 440.40 [1]).The Legislature has thus shown that while DOCS has some role in correcting an unlawfulsentence, the courts are responsible for actually imposing a correct sentence. "The onlycognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless madeby a judge in a subsequent proceeding, is of no effect" (Earley v Murray, 451 F3d 71, 75[2d Cir 2006], cert denied 551 US —, 127 S Ct 3014 [2007]; accord People v Duncan, 42 AD3d470, 471 [2007]). To the extent that our prior decisions have held otherwise (see Matter of Garner v New York StateDept. of Correctional Servs., 39 AD3d 1019, 1019 [2007], lv granted 9 NY3d809 [2007]; Matter of Deal v Goord,8 AD3d 769, 769-770 [2004], appeal dismissed 3 NY3d 737 [2004]), they should nolonger be followed (see Matter of Quinones v New York State Dept. of CorrectionalServs., 46 AD3d 1268 [2007] [decided herewith]). Accordingly, petitioner is entitled to awrit prohibiting respondents from imposing upon him any period of postrelease supervisionwhich was not included by a court as part of petitioner's sentence.
Cardona, P.J., Peters, Spain and Rose, JJ., concur. Ordered that the judgment is reversed, onthe law, without costs, and petition granted.