Opinion
08-0450.
Decided May 19, 2008.
This is a habeas corpus proceeding that was originated by the petition of Alan Robinson, by his attorney Charles Alvarez, Esq., verified on March 17, 2008, and filed in the Clinton County Clerk's Office on March 19, 2008. Petitioner, who was an inmate at the Clinton Correctional Facility, but has been released from DOCS custody to post-release parole supervision, challenged his continued incarceration in the custody of the New York State Department of Correctional Services. The Court issued an Order to Show Cause on March 21, 2008, and has received and reviewed respondents' Return, dated April 11, 2008, as well as petitioner's Reply thereto, dated April 18, 2008. On April 29, 2008, a telephone conference was conducted to discuss the impact on this proceeding, if any, of petitioner's April 1, 2008, Correction Law § 402 commitment and physical transfer to the Central New York Psychiatric Center (CNYPC), a New York State Office of Mental Health(OMH) facility in Oneida County. By letter dated May 5, 2008, however, counsel for the petitioner advised chambers that on that date his client was scheduled to be conditionally released from DOCS custody to post-release parole supervision. Counsel requested that the Court issue an order converting this habeas corpus proceeding into a proceeding for judgement pursuant to Article 78 of the CPLR and a further order terminating petitioner's administratively-imposed period of post-release supervision. By letter dated May 8, 2008, the respondents oppose petitioner's conversion request. After noting that the period of post-release supervision was administratively imposed when petitioner was originally released from DOCS custody to post-release supervision on November 13, 2006, the respondents assert that a converted Article 78 proceeding challenging that imposition would be "untimely," presumably pursuant to the four-month statue of limitations set forth in CPLR § 217(1). By letter dated May 12, 2008, counsel for the petitioner responded to respondents' letter in opposition.
Presumably, the petitioner's conditional release to post-release supervision has been accompanied by discharge from his commitment to the CNYPC.
"DOCS has a continuing, nondiscretionary, ministerial duty' to make accurate calculations of terms of imprisonment, a duty that requires it to correct known errors." Patterson v. Goord, 299 AD2d 769, 770, quoting Cruz v. New York State Department of Correctional Services, 288 AD2d 572, 573, app dis 97 NY2d 725 (other citations omitted). Accordingly, the Court finds no statute of limitations at bar under the circumstances of this case. See Bottom v. Goord, 96 NY2d 870. The Court notes that if it were to adopt respondents' position on this point the petitioner could only challenge the administrative imposition of the period of post-release supervision by violating one or more conditions of his release, being returned to DOCS custody as a post-release supervision violator and commencing a new habeas corpus proceeding. Rather than countenance such an absurd result the Court will convert this habeas corpus proceeding into a proceeding for judgment pursuant to Article 78 of the CPLR and consider the merits of the petition.
On March 1, 2001, the petitioner was sentenced in Supreme Court, New York County, as a second felony offender, to a determinate term of imprisonment of 3 years upon his conviction of the crime of Attempted Robbery 2 . Neither the sentence and commitment order nor the sentencing minutes makes reference to any period of post-release supervision (Penal Law § 70.45). DOCS nevertheless computed petitioner's sentence as including a five-year period of post-release supervision. The petitioner was conditionally released from DOCS custody to post-release parole supervision on November 13, 2006. His post-release supervision, however, was revoked following a final parole revocation hearing conducted on April 25, 2007. A modified delinquency date of February 5, 2007, was established and a 15-month delinquent time assessment imposed. The petitioner was returned to DOCS custody as a post-release supervision violator on June 4, 2007. This proceeding ensued.
The petitioner asserts that DOCS unlawfully imposed the five-year period post-release supervision inasmuch as the sentencing judge failed to do so. This Court agrees. See Garner v. New York State Department of Correctional Services, ___NY3d ___(2008 WL 1860082), People v. Sparber, ___ NY3d ___( 2008 WL 1860092), Prendergast v. State of New York Department of Correctional Services, ___AD3d ___( 2008 WL 1902192), Quinones v. New York State Department of Correctional Services , 46 AD3d 1268 , and Dreher v. Goord, 46AD3d 1261. Under the circumstances of this case, moreover, the Court finds that relief in the context of a CPLR Article 78 proceeding is available. See People ex rel Eaddy v. Goord , 48 AD3d 1307 , lv den 855 NYS2d 314 and People ex rel McBride v. Alexander, 46 AD3d 849.
Finally, although the Court is not persuaded that it would be appropriate to stay its judgment so as to provide the appropriate authorities with additional time to seek a re-sentencing of the petitioner, this Decision and Judgment is issued without prejudice to the ability that either the people or DOCS may have to seek such re-sentencing. See Garner v. New York State Department of Correctional Services, ___ NY3d ___( 2008 WL 1860082).
Based upon all of the above, it is, therefore, the decision of the Court and it is hereby
ADJUDGED, that this habeas corpus proceeding is converted into a CPLR Article 78 proceeding; and it is further
ADJUDGED, that the respondents are prohibited from adding or enforcing a period of post-release supervision to the petitioner's sentence of imprisonment and, to the extent that a period of post-release supervision has already been added, said period of post-release supervision is vacated.