| People ex rel. Gerard v Kralik |
| 2008 NY Slip Op 04895 [51 AD3d 1045] |
| May 27, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York ex rel. William A. Gerard, onBehalf of Rosendo Rivera, Petitioner, v James A. Kralik,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Andrew Meier of counsel), forrespondent.
Writ of habeas corpus in the nature of an application for the release of the detainee RosendoRivera from the Rockland County Jail.
Adjudged that the writ is sustained, without costs or disbursements; and it is further,
Ordered that the respondent James A. Kralik, the Superintendent of the Rockland CountyJail, is directed to immediately release the detainee Rosendo Rivera upon service upon him, orhis representative, of a certified copy of this decision, order and judgment.
On May 2, 2000, pursuant to his plea of guilty, the detainee was sentenced to a determinateprison term of two years upon his conviction of assault in the second degree. Neither thesentencing minutes nor the court's order of commitment mentioned the imposition of any periodof postrelease supervision. Nonetheless, as a result of a notice of violation issued by the NewYork State Division of Parole (hereinafter the Division of Parole), the detainee has been arrestedand is now being held in the Rockland County Jail for violating a period of postreleasesupervision imposed in connection with his May 2, 2000 conviction. Upon this Court's remittalof this matter to the Supreme Court, Rockland County, for a hearing and report on the issue ofwhether the detainee is being held solely based on an alleged violation of the terms of postreleasesupervision or whether there are independent charges against him which form the basis of hisdetention, the parties stipulated that the detainee is being held solely based on an allegedviolation of the terms of postrelease supervision.[*2]
The Division of Parole has no authority to impose aperiod of postrelease supervision, or any other component of a sentence (see Matter of Garnerv New York State Dept. of Correctional Servs., 10 NY3d 358 [2008]). Consequently,because the detainee is currently incarcerated due to his alleged violation of the terms of thepostrelease supervision improperly added to his sentence by the Division of Parole, the detaineeis entitled to immediate release from custody (see People ex rel. Gerard [Colarusso] v Kralik,44 AD3d 804 [2007]). Miller, J.P., Dillon, Balkin and McCarthy, JJ., concur.