Claude Barrette, Petitioner, For a Judgment under Article 78 of 7 the Civil Practice Law and Rules,
Robert Dennison, as Chairman of the New York State Board of Parole; the New York State Board of Parole; Brian Fischer, as Commissioner of the New York State Department of Correctional Services; and the New York State Department Of Correctional Services, Respondents.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Law Office of Raymond E. Kerno Attorney for Petitioner
Robert Dennison, Chairman New York State Board of Parole
Brian Fischer, Commissioner Department of Correctional Services Attorney General
Daniel Palmieri, J.
This petition for a judgment pursuant to CPLR article 78 vacating the respondents' determination placing the petitioner on post-release supervision is granted. The period of post-release supervision found in his conditions of release dated January 17, 2007 is hereby vacated and annulled, and respondents are prohibited from enforcing such post-release supervision as thereby imposed upon the petitioner upon his release from incarceration on January 22, 2007.
On May 22, 2001 petitioner, then 17 years of age, pled guilty to two counts of burglary in the second degree before the County Court, Nassau County (DeRiggi, J.). The plea bargain was that in exchange for the plea of guilty he would be sentenced to two concurrent determinate terms of seven years' incarceration. This sentence was imposed by Judge DeRiggi on July 20, 2001. A transcript of both the plea and sentencing proceedings are annexed to the petition, as well as the order of commitment. There is no indication in any of these papers that in accepting his plea, sentencing him or directing his commitment to the custody of the Department of Correctional Services ("DOCS") the County Court had sentenced the petitioner to post-release supervision ("PRS" or "supervision"), or had even discussed or implied that some additional form of punishment was or could be imposed under the law.
In July of 2006, while still in prison, the petitioner received a "time computation sheet" from the inmate records coordinator, in which a five year PRS component appeared as having been added. In September of 2006, believing that this period should not have been added, the petitioner, then acting pro se, moved to set aside his sentence pursuant to CPL 440.20. The County Court (LaPera, J.)  characterized the application as one not to set aside the sentence but rather as one for specific performance of that sentence. Holding, in effect, that the relief sought therefore placed petitioner outside the reach of CPLR 440.20, the Court denied the motion. Petitioner was thereafter released on January 22, 2007, having served his term of incarceration, as shortened by credit for good behavior.
Under the authority of the supervision directive, petitioner was assigned to a parole officer. She and her superiors later directed him to enter Creedmor Hospital in Queens Village, New York, for a 28-day in-patient addiction treatment and rehabilitation program. Now represented by an attorney, he reported as directed, but then brought on a writ of habeas corpus on the ground that his detention was founded on the alleged illegality of the PRS, under which authority he had been ordered to Creedmor. The writ ultimately was withdrawn as moot upon his release from Creedmor. However, while the proceeding was pending, and at the instance of the assigned Court (Gulotta, J.), petitioner's attorney wrote to an Assistant Counsel with DOCS in an attempt to resolve the matter. In that correspondence he asked that the PRS be vacated. By responsive letter dated July 17, 2007, counsel for DOCS indicated that his agency would not do so.
The record reveals that the present proceeding was commenced by the filing of a notice of petition and petition on August 15, 2007. It sounds in mandamus. Specifically, the notice states that the relief of vacating his PRS is founded on illegal acts of the respondents in that they, as "part of the Executive Branch of State government, usurped powers of the Judicial Branch" by "increasing the scope, length and breadth of Petitioner's sentence."  This is, of course, a claim founded on an allegedly unconstitutional act.
In their answer, the respondents advance several affirmative defenses/objections in point of law, both procedural and substantive. On the procedural side, they urge as follows: that the matter is untimely as brought beyond the four month statute of limitations applicable to Article 78 proceedings; that venue is proper in Albany County, as it was the location of respondents' principal offices and the situs of the determination challenged by petitioner; and that the proceeding should be dismissed for failure to join the Nassau County District Attorney. Substantively, the respondents contend that the claim is barred under the related doctrines of res judicata and collateral estoppel, based upon the CPL 440.20 litigation commenced by petitioner; that Appellate Division, Second Department case authority upon which petitioner relies should not be followed as contrary to the holdings of the Court of Appeals; and, finally, that the petitioner cannot seek relief with regard to a sentence to which he knowingly and voluntarily consented.
Initially, it is clear that as a general matter even claims couched in constitutional terms such as the one at bar are cognizable as Article 78 proceedings, and petitioners may thus be held to the four-month limitations period applicable thereto. See, Walton v New York State Dept. of Correctional Servs., 8 N.Y.3d 186(2007); Cloverleaf Realty of New York, Inc. v ...