The People of the State of New York ex rel. Keith Huff, Petitioner,
Warden, Rikers Island Correctional Facility, and New York State Division of Parole, Respondents.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
For the Petitioner: Steven Banks, Esq. Elon Harpaz, Esq. Of Counsel
For the Respondent Division of Parole: Hon. Andrew Cuomo Attorney General of the State of New York Ass't Attorney General Andrew Meier Of Counsel
Michael R. Sonberg, J.
Petitioner moves by writ of habeas corpus for dismissal of a parole warrant on the basis that he is being illegally detained. Specifically, petitioner contends that because he was not expressly informed by the sentencing court of a period of postrelease supervision and as there is no mention of postrelease supervision in the plea proceedings or in the commitment papers, the Department of Correctional Services ("DOCS") cannot modify his sentence to include postrelease supervision. Petitioner claims that DOCS exceeded its authority when it imposed postrelease supervision and, as he is being held on a parole warrant pursuant to an alleged violation of the conditions of postrelease supervision, his due process rights have been violated. He seeks vacatur of the parole warrant as well as the period of postrelease supervision.
On February 26, 2002, in Supreme Court, New York County (A. Silverman, J.), petitioner pleaded guilty to a Class "B" violent felony of attempted murder in the second degree (PL §§ 110/125.25) and was sentenced, as a first time felony offender, to a determinate sentence of five years imprisonment. PL 70.02. Although postrelease supervision is a mandatory component of such a sentence as required by Penal Law 70.45 , it is undisputed that neither the plea nor the sentencing proceedings referred to postrelease supervision and there is no reference to postrelease supervision in the commitment order.
On April 17, 2007, petitioner was released but was made subject by DOCS to five years postrelease supervision. It is unclear when the condition of postrelease supervision was imposed by DOCS; however, petitioner was to be supervised by Division of Parole until March 7, 2011. On August 27, 2007, respondent Division of Parole (hereafter "respondent") issued parole warrant #483245, charging petitioner with various violations of the terms of postrelease supervision. Petitioner is currently being held at Rikers Island Correctional Facility, pending the completion of his parole revocation proceedings.
Respondent argues that a writ of habeas corpus is not the appropriate forum to seek relief of a postrelease supervision claim. Rather, it contends, the proper remedy is a motion to vacate the judgment of conviction pursuant to CPL 440.10 or a direct appeal. Respondent cites as its authority the recent Court of Appeals decision in People v Hill, 9 N.Y.3d 189(2007). It argues that by bringing this writ, petitioner is attempting to circumvent the prescribed postrelease supervision element of his sentence which was imposed by operation of law. Respondent argues that it had no administrative discretion as to whether to enforce the postrelease supervision; rather, it says, it was automatic since it was mandated by statute. Respondent contends that if petitioner is unhappy with his status, he may pursue the vacatur of his plea, the remedy discussed by the Court of Appeals in Hill, supra.
The purpose of habeas corpus is "to test the legality of the detention of the person who is the subject of the writ." People ex rel Robertson v New York State Div. of Parole, 67 N.Y.2d 197 (1986); People ex rel Shapiro v Keeper of City Prison, 290 N.Y. 393 (1943); People ex rel Menechino v Warden, 27 N.Y.2d 376 (1971); People ex rel Von Fossen v Dillon, 72 A.D.2d 166 (4th Dept 1980). Under CPLR 7002 (a),
A person illegally imprisoned or otherwise restrained in his liberty within the state . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance. A judge authorized to issue writs of habeas corpus having evidence, in a judicial proceeding before him, that any person is so detained shall, on his own initiative, issue a writ of habeas corpus for the relief of that person.
Here, petitioner was imprisoned on a parole violation after he was sentenced to a determinate period of time, served his period of incarceration, and was given an additional period of supervision by DOCS, an executive branch agency, which had not been imposed by the sentencing court. A writ of habeas corpus is a proper remedy to address the legality or illegality of an administratively imposed period of postrelease supervision. See People ex rel White v Warden, 15 Misc.3d 360 (Sup.Ct. Bronx Co. 2007, Marcus, J.); People ex rel Santos v Warden, 17 Misc.3d 1120 [A] (Sup.Ct. Bronx Co. 2007, Gross, J.); People ex rel Lewis v Warden, 14 Misc.3d 468, 471 (Sup.Ct. Bronx Co. 2006, Cirigliano, J.); People ex rel Brown v Warden, Index No. 757036/07 (Sup.Ct. Bronx Co., April 4, 2007, Boyle, J.,); People ex rel Mazario v Warden, 16 Misc.3d 1109A (Sup.Ct. Bronx Co. 2007, Dawson, J.).
This court believes that it is required to grant petitioner's application by virtue of the November 8, 2007 decision of the Appellate Division, First Department, in
People v Figueroa, -- A.D.3d --, 846 N.Y.S.2d 87, 2007 NY Slip Op 08352 (1st Dept 2007). In that decision, the First Department unequivocally held that DOCS lacked the authority to add a period of postrelease supervision which had not been mentioned during sentencing nor included in the court's order of commitment; rather, it held that DOCS was "conclusively bound" by the contents of the commitment papers. Id. (emphasis in original). The Appellate Divisions in the Second and Third Departments have subsequently held to the same effect. Matter of Dreher v Goord,
-- A.D.3d --, 2007 NY Slip Op 10430, 2007 WL 4530872 (3d Dept Dec. 27, 2007); Matter of ...