| Matter of Quinones v New York State Dept. of CorrectionalServs. |
| 2007 NY Slip Op 10435 [46 AD3d 1268] |
| December 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of Joselito Quinones, Appellant, v New York StateDepartment of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered November29, 2006 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Commissioner of Correctional Servicesimposing a period of postrelease supervision on petitioner.
In 2004, petitioner was convicted after trial of a number of offenses, including attemptedmurder in the second degree, a class B violent felony, and sentenced to concurrent determinateterms of imprisonment, the greatest of which was 12½ years (see People v Quinones, 41 AD3d868 [2007]). Because he was not also explicitly sentenced to a period of postreleasesupervision, petitioner commenced this proceeding to annul the determination of theCommissioner of Correctional Services which added a five-year period of postreleasesupervision to his sentence (see Penal Law § 70.45 [2]). Inferring from our caselaw that petitioner's sentence automatically included postrelease supervision by operation of lawdespite the sentencing court's omission, Supreme Court found no error in the Commissioner'sdetermination and dismissed the petition.
We must reverse. The 2004 amendment of Penal Law § 70.45 (L 2004, ch 738,§ 35) now makes clear that the period of postrelease supervision for first-time violentfelony offenses, [*2]among others, is to be set in the court'sdiscretion between the minimum and maximum periods stated in Penal Law § 70.45 (2).Since the sentencing court here could have imposed less than a five-year period if it haddetermined the issue (see Penal Law § 70.45 [2] [f]), we cannot agree withrespondent that imposition of a five-year period was mandatory or a purely ministerial act on thepart of the Commissioner. Rather, we agree that "[t]he only cognizable sentence is the oneimposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequentproceeding, is of no effect" (People vDuncan, 42 AD3d 470, 471 [2007], quoting Earley v Murray, 451 F3d 71, 75[2d Cir 2006], cert denied 551 US —, 127 S Ct 3014 [2007]; see People v Royster, 40 AD3d885, 886 [2007], lv denied 9 NY3d 881 [2007]; People v Hill, 39 AD3d 1, 11 n 7 [2007], revd on othergrounds 9 NY3d 189 [2007]). To the extent that our prior decisions in Matter of Deal v Goord (8 AD3d769 [2004], appeal dismissed 3 NY3d 737 [2004]) and Matter of Garner v New York State Dept.of Correctional Servs. (39 AD3d 1019, 1019 [2007], lv granted 9 NY3d 809[2007]) reached a different conclusion, they should no longer be followed.
Mercure, J.P., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition granted.