| Matter of Pace v Fischer |
| 2009 NY Slip Op 02611 [60 AD3d 1070] |
| March 31, 2009 |
| Appellate Division, Second Department |
| In the Matter of Tyrone Pace, Appellant, v Brian S.Fischer, Respondent. |
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In a proceeding pursuant to CPLR article 78 to review a determination of the New YorkState Department of Correctional Services dated March 7, 2007, which affirmed a decision of theSuperintendent of Green Haven Correctional Facility dated February 7, 2007, affirming adecision of the Inmate Grievance Response Committee dated February 2, 2007, which, in effect,denied, without a hearing, the petitioner's application to delete from his sentence a five-yearperiod of postrelease supervision which had been administratively added by the New York StateDepartment of Correctional Services, the petitioner appeals from a judgment of the SupremeCourt, Dutchess County (Dolan, J.), dated September 19, 2007, which dismissed the petition aspremature.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is reinstated and granted, the determination dated March 7, 2007, is annulled, theadministrative decisions dated February 7, 2007, and February 2, 2007, respectively, are vacated,and the petitioner's application is granted.
The petitioner, an inmate at Green Haven Correctional Facility, was convicted in 2000 ofrape in the first degree, and was sentenced to a determinate term of imprisonment of 15 years.The sentencing judge did not impose a period of postrelease supervision (hereinafter PRS), andno such period was mentioned in the order of commitment. Sometime after the petitioner beganserving his sentence, the New York State Department of Correctional Services (hereinafter theDOCS) administratively added a five-year period of PRS to his sentence. The petitioner filed agrievance with prison officials, challenging the addition, by the DOCS, of the PRS period to hissentence. The grievance was, in effect, denied, and that result was [*2]affirmed by the Superintendent of the correctional facility and thenby the Central Office Review Committee of the DOCS.
The petitioner then commenced this proceeding pursuant to CPLR article 78, seeking toannul the determination of the DOCS. The Supreme Court dismissed the petition as premature.The petitioner appeals and we reverse.
Contrary to the Supreme Court's conclusion, the fact that approximately eight yearsremained to be served on the petitioner's prison term before he would begin serving any periodof PRS did not render this CPLR article 78 proceeding premature. The DOCS did not object toor oppose either the petitioner's invocation of its grievance procedure to challenge its alterationof his sentence or the petitioner's filing of the grievance prior to the end of his prison term.Having pursued and exhausted his administrative remedies, and having obtained a finaldetermination from the agency, the petitioner was entitled to promptly challenge thatdetermination in a CPLR article 78 proceeding (see Walton v New York State Dept. ofCorrectional Servs., 8 NY3d 186, 194-195 [2007]). Accordingly, the Supreme Court shouldhave reached the merits of the petition, and we do so now.
Sentences are imposed by courts, not by administrative agencies (see Matter of Garner vNew York State Dept. of Correctional Servs., 10 NY3d 358 [2008]). Contrary to theargument made by the DOCS in its pleading in this case, PRS "is not automatically included inthe pronouncement of a determinate sentence, and thus a defendant has a statutory right to havethat punishment imposed by the sentencing judge" (id. at 363). In adding a period ofPRS to the petitioner's sentence, the DOCS usurped the function of the sentencing judge, andacted "beyond [its] limited jurisdiction over inmates and correctional institutions" (id. at362).
Thus, the administrative determination of the DOCS that it properly added the period of PRSto the petitioner's sentence was "affected by an error of law" (CPLR 7803 [3]). The SupremeCourt, therefore, should have granted the petition, annulled the final determination of the DOCSdated March 7, 2007, vacated the administrative decisions dated February 7, 2007, and February2, 2007, respectively, and granted the petitioner's application to delete from his sentence thefive-year period of PRS administratively added by the DOCS. Prudenti, P.J., Dillon, Eng andLeventhal, JJ., concur.