In the Matter of Highland v. Goord, 2007 NY Slip Op 32942(U) (N.Y. Sup. Ct. 9/20/2007), 0875006/2007.
| Decision Date | 20 September 2007 |
| Docket Number | RJI # 01-07-ST7578.,No. 0875006/2007.,Index No. 8750-06.,0875006/2007. |
| Citation | 2007 NY Slip Op 32942 |
| Parties | In The Matter of KEVIN HIGHLAND, Petitioner, v. GLENN S. GOORD, COMMISSIONER OF THE DEPARTMENT OF CORRECTIONAL SERVICES; ROBERT DENNISON, CHAIRMAN OF THE NEW YORK STATE DIVISION OF PAROLE, Respondents, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. |
| Court | New York Supreme Court |
Kevin Highland, Inmate No. 98-A-7082, Petitioner, Pro Se, Marcy Correctional Facility Marcy, NY.
Andrew M. Cuomo, Attorney General, State of New York, Attorney For Respondent, The Capitol, Albany, New York, (Richard Lombardo, Assistant Attorney General of Counsel)
DECISION/ORDER/JUDGMENT
The petitioner, an inmate at Marcy Correctional Facility, is currently serving the following sentences of imprisonment: (1) a term of six to twelve years upon the conviction of a charge of attempted murder second degree pursuant to a sentence and commitment dated March 12, 1999; (2) a term of six years upon the conviction of a charge of robbery first degree pursuant to a sentence and commitment dated March 12, 1999; (3) a term of fifteen years on the conviction of a charge of robbery second degree pursuant to a sentence and commitment dated September 20, 1999; and (4) a term of two to six years on conviction of a charge of criminal sale of a controlled substance third degree pursuant to a sentence and commitment dated November 19, 1998. It appears that none of the sentences expressly include a period of post release supervision. It is undisputed that the respondent Department of Correctional Services has added a five year period of post release supervision to petitioner's sentence.
Under Penal Law § 70.45 (1), "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision." In this instance, Penal Law § 70.45 clearly required imposition of 5 years of post release supervision, unless at the time of sentence, the wart specified a shorter period of time, not less than two and one half years (see Penal Law § 70.45 [2], L 1998, C 1, § 44, eff August 6, 1998, applicable to offenses committed on or after September 1, 1998). In this instance, the respondent indicates that the offense of robbery first degree (for which a six year determinate sentence was imposed) was committed on October 19, 1998; while the offense of robbery second degree (for which a fifteen year determinate sentence was imposed) was committed on September 15, 1998. Thus both were committed after the effective date of the relevant amendments to Penal Law § 70.45.
A number of New York Courts, including the Court of Appeals, have stressed the mandatory nature of Post release supervision under Penal Law § 70.45. As stated in People v Catu (4 NY3d 242 [2005]):
"Postrelease supervision is a direct consequence of a criminal conviction. In eliminating parole for all violent felony offenders in 1998, the Legislature enacted a scheme of determinate sentencing to be followed by periods of mandatory postrelease supervision (see L 1998, ch 1 [Jenna's Law]), and defined each determinate sentence to also include[], as a part thereof, an additional period of post-release supervision' (Penal Law § 70.45 [1]; see also Senate Mem in Support, 1998 McKinney's Session Laws of NY, at 1489 []). Whereas the term of supervision to be imposed may vary depending on the degree of the crime and the defendant's criminal record (see Penal Law § 70.45 [2]), imposition of supervision is mandatory and thus has a definite, immediate and largely automatic effect on defendant's punishment.'"
(id. at p. 244, emphasis supplied). he Fourth Department Appellate Division has described the application of Penal Law § 70.45 in similar terms. In People v Bloom (269 A.D.2d 838, 703 N.Y.S.2d 763 [4th Dept. 2000]), where the trial Court failed to specify a period of post release supervision at sentencing, the Court stated:
(People v Bloom, supra, at 838; see also People v Thweatt, 300 AD2d 1100 at 1101 [4th Dept., 2002]). In People v Hollenbach (307 AD2d 776 [4th Dept., 2003]) it was stated that (Hollenbach, at 776, emphasis supplied, citations omitted). The Third Department Appellate Division, in a case very close to the one at bar, dismissed an inmate's CPLR Article 78 proceeding brought to prohibit the Department of Correctional Services from adding Post release supervision to his sentence where the sentencing judge had failed to mention Post release supervision (see Matter of Deal v Goord, 8 AD3d 769 [3rd Dept., 2004], appeal dismissed 3 NY3d 737, reconsideration denied 4 NY3d 795]).
In June of 2006, the Second Circuit Court of Appeals took a strikingly different position on this issue. In Earley v Murray (451 F3d 71, 75-76 [2d Cir 2006], reh denied 462 F3d 147), a state prisoner brought a habeas corpus action in Federal Court challenging imposition of post release supervision by the New York State Department of Corrections. The Court of Appeals, relying heavily upon Hill v United States ex rel. Wampler (298 US 460 [1936])1, ruled that federal constitutional law prohibits the Department of Correctional Services from adding post release supervision to any determinate sentence if the court did not impose such a term at sentencing (Early, 451 F3d at 75). The Court reasoned that "[t]he judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment"; and that "[a]ny alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect" (id.). As...
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