| People ex rel. Lewis v Warden, Otis Baum Correctional Ctr. |
| 2008 NY Slip Op 04435 [51 AD3d 512] |
| May 15, 2008 |
| Appellate Division, First Department |
| The People of the State of New York ex rel. Jackie Lewis,Respondent, v Warden, Otis Baum Correctional Center, et al.,Appellants. |
—[*1] Steven Banks, The Legal Aid Society, New York (Elon Harpaz of counsel), forrespondent.
Order, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), entered December 14, 2006,which granted the petition for a writ of habeas corpus seeking to vacate a parole warrant chargingpetitioner with violation of conditions of postrelease supervision (PRS), unanimously affirmed,without costs.
Supreme Court properly concluded that petitioner's sentence did not include PRS, and thatthe term of PRS administratively imposed by the Department of Correctional Services (DOCS)was a nullity (see 14 Misc 3d 468 [2006]). The sentencing court failed to mention PRS atthe time sentence was imposed. Even if petitioner was advised that he was subject to a term ofPRS at his plea proceeding, petitioner was not sentenced to PRS because the PRS term "was not'pronounced' [by the court] as required by CPL 380.20 and 380.40" (People v Sparber, 10NY3d 457, 470 [2008]).
Although the absence of PRS results in a sentence that is not in compliance with Penal Law§ 70.45, DOCS lacks the authority to administratively impose a term of PRS, as "thesentencing judge—and only the sentencing judge—is authorized to pronounce thePRS component of a defendant's sentence" (Matter of Garner v New York State Dept. of Correctional Servs., 10NY3d 358, 362 [2008]).
"[H]abeas corpus is an appropriate proceeding to test a claim that the relator has beenimprisoned after having been deprived of a fundamental constitutional or statutory right in acriminal prosecution, including, but not limited to, the right to be tried and sentenced by a courthaving jurisdiction over the charge and the person" (People ex rel. Keitt v McMann, 18NY2d 257, 262 [1966]; see CPLR 7002 [a]). Since the parole warrant alleged a violationof a nonexistent portion of petitioner's sentence, it was not a valid basis for his detention.Concur—Lippman, P.J., Andrias, Williams and McGuire, JJ.[FN*][See 14 Misc 3d 468 (2006).][*2]
Footnote *: This decision is withoutprejudice to an appropriate application for resentencing in the proper forum (see Garnerat 363 n 4).