| Matter of Donhauser v Goord |
| 2008 NY Slip Op 01669 [48 AD3d 1005] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of David Donhauser, Appellant, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the Supreme Court (McDonough, J.), enteredMarch 14, 2007 in Albany County, which dismissed petitioner's application, in a proceedingpursuant to CPLR article 78, to review a determination of respondent finding that petitioner'ssentence included a period of postrelease supervision.
As a second violent felony offender, petitioner was sentenced, among various terms, to aprison sentence of 12 years for burglary in the second degree. The sentencing court did notimpose any period of postrelease supervision. After petitioner entered the prison system, theDepartment of Correctional Services calculated his time by including a five-year period ofpostrelease supervision. Contending that his sentence does not explicitly include a period ofpostrelease supervision, petitioner commenced this proceeding to review the determination ofrespondent which found that petitioner's sentence included a period of postrelease supervision.Relying upon our previous case law that postrelease supervision was automatically included as apart of petitioner's sentence pursuant to Penal Law § 70.45, Supreme Court dismissed thepetition.
Subsequent to Supreme Court's dismissal, this Court held that postrelease supervision [*2]sentencing is exclusively the province of the courts (see Matter of Dreher v Goord, 46AD3d 1261, 1262 [2007]). Since the only legally cognizable sentence is one imposed by ajudge, "[a]ny alteration to that sentence, unless made by a judge in a subsequent proceeding, is ofno effect" (Earley v Murray, 451 F3d 71, 75 [2d Cir 2006], cert denied 551 US—, 127 S Ct 3014 [2007]; seeMatter of Quinones v New York State Dept. of Correctional Servs., 46 AD3d 1268[2007]). Accordingly, we must reverse.
Cardona, P.J., Spain, Kavanagh and Stein, JJ., concur. Ordered that the judgment is reversed,on the law, without costs, petition granted and matter remitted to respondent for furtherproceedings not inconsistent with this Court's decision.