| Matter of Prendergast v State of N.Y. Dept. of Corrections |
| 2008 NY Slip Op 04038 [51 AD3d 1133] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of John Prendergast, Appellant, v State of New YorkDepartment of Corrections, Respondent. |
—[*1]
In the Matter of JOHN
PRENDERGAST,
Appellant,
v
STATE OF NEW YORK DEPARTMENT OF
CORRECTIONS,
Respondent. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Egan, Jr., J.), entered November 30, 2007 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent finding that petitioner's prison sentenceincluded a period of postrelease supervision.
As is relevant here, petitioner was sentenced as a second felony offender to a 15-year prisonterm upon his conviction after trial of robbery in the first degree (see People v Prendergast, 27 AD3d487 [2006], lv denied 6 NY3d 851 [2006]). The sentencing court did not impose aperiod of postrelease supervision. However, upon petitioner's receipt into the prison system,respondent administratively calculated his sentence to include five years of postreleasesupervision. Petitioner then commenced this proceeding challenging that determination. Relyingon case law from this Court, Supreme Court concluded that postrelease supervision wasautomatically included in petitioner's sentence pursuant to Penal Law § 70.45 anddismissed the petition.
Subsequent to Supreme Court's judgment, the Court of Appeals has determined thatrespondent may not administratively impose periods of postrelease supervision (Matter of Garner v New York State Dept.of Correctional Servs., 10 NY3d 358, 362 [2008]; see Matter of Donhauser v Goord, 48 AD3d 1005, 1006 [2008]; Matter of Dreher v Goord, 46 AD3d1261, 1262 [2007]). Inasmuch as petitioner's sentence can be altered [*2]only by a judge in a subsequent proceeding (see Earley vMurray, 451 F3d 71, 75 [2d Cir 2006], cert denied sub nom. Burhlre v Earley, 551US —, 127 S Ct 3014 [2007]; Matter of Quinones v New York State Dept. of Correctional Servs., 46AD3d 1268 [2007]), we must reverse.
Cardona, P.J., Carpinello, Rose, Kavanagh and Stein, JJ., concur. Ordered that the judgmentis reversed, on the law, without costs, petition granted and matter remitted to respondent forfurther proceedings not inconsistent with this Court's decision.