| People ex rel. Foote v Piscotti |
| 2008 NY Slip Op 04738 [51 AD3d 1407] |
| May 23, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York ex rel. Lucas Foote,Appellant, v Richard J. Piscotti, as Sheriff, Wayne County,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent-respondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), enteredFebruary 13, 2007 in a habeas corpus proceeding. The judgment denied the petition.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs and the writ of habeas corpus is sustained, and
It is further ordered that respondent is directed to discharge petitioner from custodyforthwith.
Memorandum: Petitioner commenced this habeas corpus proceeding contending that theDepartment of Correctional Services (DOCS) lacked the authority to include a period ofpostrelease supervision in petitioner's sentence calculation because the sentencing court had notimposed a period of postrelease supervision. County Court erred in refusing to sustain the writ ofhabeas corpus based upon its conclusion that postrelease supervision was mandated by law andthat nullification of postrelease supervision would render petitioner's sentence invalid. As theCourt of Appeals has written, "[b]ecause CPL 380.20 and 380.40 collectively provide that only ajudge may impose a [postrelease supervision] sentence, we conclude that DOCS may not do so"(Matter of Garner v New York StateDept. of Correctional Servs., 10 NY3d 358, 360 [2008]). Present—Scudder, P.J.,Martoche, Green, Pine and Gorski, JJ.