| People ex rel. Henderson v New York State Dept. of CorrectionalServs. |
| 2008 NY Slip Op 07483 [55 AD3d 1416] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York ex rel. Charles Henderson,Appellant, v New York State Department of Correctional Services,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent-respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), enteredOctober 29, 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 law withoutcosts, the habeas corpus proceeding is converted to a CPLR article 78 proceeding in the nature ofprohibition, the petition is granted and judgment is granted in favor of petitioner as follows: "It isADJUDGED that respondent is prohibited from imposing upon petitioner a period of postreleasesupervision."
Memorandum: Petitioner commenced this habeas corpus proceeding contending that respondentlacked the authority to impose a period of postrelease supervision because the sentencing court had notdone so. We note at the outset that, because petitioner has been released from custody and restored topostrelease supervision, habeas corpus relief is no longer available to him (see People ex rel. Gill v Greene, 48 AD3d1003, 1004 [2008]). Instead of dismissing the proceeding as moot, however, we convert theproceeding to one pursuant to CPLR article 78 in the nature of prohibition, and we consider the meritsof the appeal (see CPLR 103 [c]; People ex rel. Eaddy v Goord, 48 AD3d 1307, 1308 [2008];Gill, 48 AD3d at 1004). As petitioner correctly notes, the sentencing court did not impose aperiod of postrelease supervision and, "[b]ecause CPL 380.20 and 380.40 collectively provide thatonly a judge may impose a . . . sentence [of postrelease supervision], we conclude that[respondent] may not do so" (Matter ofGarner v New York State Dept. of Correctional Servs., 10 NY3d 358, 360 [2008]; see People ex rel. Gerard v Kralik, 51AD3d 1045 [2008]; People ex rel.Foote v Piscotti, 51 AD3d 1407 [2008]; People ex rel. Lewis v Warden, Otis Baum Correctional Ctr., 51 AD3d512 [2008]). Present—Hurlbutt, J.P., Centra, Peradotto, Green and Gorski, JJ.