| People ex rel. Turner v Sears |
| 2009 NY Slip Op 05055 [63 AD3d 1404] |
| June 18, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Michael Turner,Appellant, v Lawrence Sears, as Superintendent of Franklin Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 5, 2007in Franklin County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In 1999, petitioner pleaded guilty to the crime of robbery in the second degree and receivedthe agreed-upon sentence of five years in prison, to run concurrently with a sentence in NewJersey for a parole violation. Neither the sentencing minutes nor the commitment order containany reference to the imposition of a period of postrelease supervision (see Penal Law§ 70.45). The Department of Correctional Services (hereinafter DOCS), however, includeda five-year period of postrelease supervision in calculating his sentence.
Petitioner was released from New York custody in 2003 and finished serving his sentence inNew Jersey. After his release from New Jersey custody in 2005, petitioner failed to report toNew York parole officials for the postrelease supervision portion of his 1999 sentence. Petitionerwas arrested in August 2006 for violation of parole and returned to DOCS custody. Petitionerthen commenced this CPLR article 70 proceeding challenging the legality of his [*2]incarceration. Supreme Court, following then extant case law,dismissed the petition, prompting this appeal.
Initially, as the record reflects that petitioner was released on parole during the pendency ofthis appeal, habeas corpus relief is not available (see People ex rel. McAdoo v Taylor, 31 AD3d 847, 848 [2006]; People ex rel. Limmer v McKinney, 23AD3d 806, 807 [2005]). As the matter affects the period of petitioner's postreleasesupervision, however, rather than dismissing the appeal as moot, we convert the CPLR article 70proceeding to a CPLR article 78 proceeding (see CPLR 103 [c]; People ex rel. Rodriguez v Warden, RikersIs. Correctional Facility, 61 AD3d 494 [2009]).
Turning to the merits, "only the courts have the authority to impose a postrelease supervisioncomponent of a sentence" (Matter ofMarino v Fischer, 52 AD3d 985, 986 [2008]; see Matter of Garner v New York State Dept. of Correctional Servs., 10NY3d 358, 362 [2008]). As DOCS acted outside its jurisdiction in administrativelyimposing a sentence of postrelease supervision on petitioner, such a sentence had no effect(see Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d at 362;Matter of Dreher v Goord, 46AD3d 1261, 1262 [2007]). Accordingly, a parole warrant alleging a violation of thisineffectual portion of petitioner's sentence cannot be a valid basis for his detention (see People ex rel. Lewis v Warden, OtisBaum Correctional Ctr., 51 AD3d 512, 512-513 [2008]; People ex rel. Gerard [Colarusso] vKralik, 44 AD3d 804, 805 [2007]).
Peters, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, petition converted to a CPLR article 78 proceeding andpetition granted to the extent of annulling the determination by the Department of CorrectionalServices imposing a period of postrelease supervision on petitioner as well as any outstandingparole violation warrant that may be based thereon.