[*1]Decided on June 5, 2008

The People of the State of New York ex rel. Angel Hernandez, Petitioner, against Superintendent, Oneida Correctional Facility, NEW YORK STATE DIVISION OF PAROLE, NYS DEPARTMENT OF CORRECTIONAL SERVICES, Respondents.

CA2008-001437



APPEARANCES [on submission]:

for petitioner:STEVEN BANKS, ESQ.

Elon Harpaz, Esq. of counsel

The Legal Aid Society of NY

Parole Revocation Defense Unit

199 Water Street

New York, NY 10038

for respondents:ANDREW M. CUOMO, ESQ., ATTORNEY GENERAL

G. Lawrence Dillon, Esq., of counsel

207 Genesee Street

Utica, NY 13501

Anthony F. Shaheen, J.

On May 13, 2008Angel Hernandez filed this Habeas Corpus petition, through his attorney, for immediate release from the custody, alleging that the Department of Correctional Services inappropriately added a five-year term of post-release supervision to his commitment. His papers were received by this Court on May 13, 2008 at which time this Court immediately signed a Writ of Habeas Corpus and transmitted same to petitioner's counsel by fax-transmission the same date. Counsel for petitioner waived production of petitioner, and this Court made the Writ returnable after May 27, 2008, to wit June 4, 2008, at petitioner's request so that service could be effectuated. Petitioner's counsel effected service of this Writ by regular mail on respondents and on the Utica Regional Office of the Attorney General, and the Attorney General served and filed a "Return" dated May 23, 2008.

The underlying facts reveal that petitioner was sentenced in Bronx County Supreme Court [Lawrence Tonetti, J.] on September 22, 1999 pursuant to a plea bargain on two (2) separate indictments, to consecutive terms of imprisonment as follows: a determinate term of five (5) years for Robbery in the First Degree and an indeterminate term of one (1) to three (3) years for Criminal Sale of a Controlled Substance in the Third Degree. This Court has reviewed the transcript of the sentencing minutes, which confirms that the Sentencing Court did not apprise petitioner of the statutorily mandated additional period of post-release supervision as part of petitioner's sentence; and the Attorney General concedes this fact in its Return filed in response to this Writ of Habeas Corpus. This Court has also reviewed the Court Clerk's record of the sentencing commitment, which indicates no imposition of a period of post-release supervision. Nevertheless, a five-year period of post-release supervision was administratively imposed by the Department of Correctional Services and petitioner was released to said post-release supervision, which is scheduled to expire on February 6, 2010. On October 24, 2007, Parole Violation Warrant #473989 was executed against petitioner, charging him with violating the terms of his administratively imposed post-release supervision. After a final parole revocation hearing on November 16,2007, he was found to have violated the terms of his post-release supervision and was given a time assessment of twelve (12) months.

Respondents, through the Attorney General, do not dispute that but for the administratively imposed five-year term of post-release supervision, petitioner has reached his maximum expiration date. Respondents concede that the sentence and commitment form issued by the sentencing Court is silent regarding post-release supervision; and respondents further concede that the Court of Appeals and the Fourth Department have recently held that the Department of Correctional Services cannot administratively add a mandatory period of post-release supervision, which may only be pronounced by the sentencing Judge (see People ex rel. Foote v. Piscotti,AD3d, 2008 NY Slip Op. No. 4738, 2008 NY App. Div. Lexis 4492 [4th [*2]Dept. 5-23-08]; see also Matter of Elliott Garner v. NYS Department of Correctional Services, et al.,NY3d, 2008 NY Slip Op. No. 57, 2008 WL 1860082 [4-29-08]; see also People ex rel Sidney Burch v. Goord, 48 AD3d 1306 [2-20-08], appeal deniedAD3d, 2008 NY Slip Op. No. 3941, 2008 NY App. Div. Lexis 3662 [4th Dept. 4-25-08]). However, relying on the Court of Appeals decision in People v. Sparber (NY3d, 2008 NY Slip Op. No. 3946; 2008 NY LEXIS 1053 [4-29-08]), which was decided the same day as Matter of Elliott Garner (id.), respondents take the position that when a Court fails to advise a defendant regarding the mandatory post-release supervision component of a determinate term of imprisonment, the proper remedy is the vacatur of the sentence and remittal for re-sentencing so the trial Judge can make the required pronouncement concerning post-release supervision (which is a statutory component of a determinate term of imprisonment). The Court of Appeals in Sparber held that to permit petitioner to serve a determinate sentence without a period of post-release supervision violates the statutory mandate, and that the sole remedy is remittal. Respondents further assert that petitioner is not entitled to retain his determinate sentence without a period of post-release supervision, and they ask this Court to remit this Habeas Corpus proceeding to the trial court that presided over the criminal matter for re-sentencing in the County of conviction where the District Attorney can be made a party to the proceeding.

This Court has carefully reviewed the recent, relevant line of cases and notes that the Court of Appeals decision to remit the Sparber defendants back to the trial court for re-sentencing involved defendants who were challenging their sentences while still incarcerated on their original sentences. In contrast, the instant petitioner Angel Hernandez has reached the maximum expiration date of his sentence and was released to parole supervision. But for the period of post-release supervision which was improperly imposed by the Department of Correctional Services, petitioner would not now be incarcerated. Accordingly, petitioner is entitled to be discharged from custody. Although the Department of Correctional Services may not impose such a period of post-release supervision, there is nothing in this Court's Decision which prevents the sentencing court from vacating petitioner's sentence and re-sentencing him.

Based on the facts and circumstances herein, and in light of the recent Court of Appeals Decisions in Matter of Elliott Garner (supra), as well as the Fourth Department's Decisions in People ex rel. Foote (supra) and People ex rel Sidney Burch (supra), it is hereby

ORDERED AND ADJUDGED that Angel Hernandez [DIN #99-A-5765] be discharged from the custody of respondents Superintendent Oneida Correctional Facility, New York State Division of Parole and New York State Department of Correctional Services, and from further detention by virtue of Warrant #473989 under which petitioner Angel Hernandez is currently being held; and it is further

ORDERED AND ADJUDGED that respondents be and hereby are directed to immediately release and discharge Angel Hernandez from such detention.[*3]

This constitutes the Decision, Order and Judgment of the Court.

Dated:June 5, 2008

/s/ Anthony F. Shaheen

ANTHONY F. SHAHEEN, J.S.C.