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Abelson v. New York State Dept. of Correctional Services

Other Lower Courts

January 5, 2008

In the Matter of Ian Abelson, Plaintiff,
v.
New York State Department of Correctional Services, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

James J. Golia, J.

The Petition

Petitioner commenced this Article 78 proceeding requesting that the Court vacate the five year post-release supervision ("PRS") period added to his sentence by the respondent. Petitioner argues that the neither the sentencing minutes nor the Sentencing and Commitment Order include, as part of petitioner's sentence, a five year PRS term and therefore respondent's administrative imposition of the five year PRS sentence is invalid.

Respondent argues 1) that the petition should be dismissed on the grounds that: a) this court lacks jurisdiction to modify a order previously prepared and issued by another judge; b) the statute of limitations (CPLR 217) has run; and c) the petition fails to name the district attorney as a necessary party to this proceeding. 2) that PRS is required by Penal Law 70.45 and is an automatic provision which does not give respondent discretion in its enforcement; and 3) that the relief requested by the petitioner requires relitigation of a criminal matter and should be barred by the doctrine of res judicata or collateral estoppel.

Background

Petitioner was convicted of two counts of Second Degree Robbery and Attempted Grand Larceny in the 2nd degree. On October 24, 2002, Judge Herbert Altman sentenced the petitioner to two five-year determinate terms of incarceration for the robbery conviction and a three to six year term on the attempted grand larceny conviction.

Notwithstanding Judge Altman's sentence as set forth in the sentencing minutes of October 22, 2002, in the preparation of the Sentence and Commitment Order dated November 4, 2002, the sentence for the attempted grand larceny conviction was set forth as a two and a third to seven year sentence. Petitioner brought a motion pursuant to CPL 440.20 alleging, among other things, that Judge Altman's sentence on the grand larceny conviction was illegal and had to be corrected. Judge M. Wiley, deciding the motion due to Judge Altman's retirement, granted petitioner's motion to the extent that the sentence for the grand larceny conviction was corrected and petitioner was resentenced to a two and a third to seven year term instead of the three to six year term imposed by Judge Altman. The remainder of the sentence imposed by Judge Altman remained unchanged and a new Sentence and Commitment Order was issued, dated March 14, 2005.

Subsequent to the sentencing, an "Inmate Information" sheet was prepared by the Department of Correctional Services ("DOCS") stating that the petitioner was subject to post-release supervision for five years. It is imposition of the PRS, by DOCS, that is the subject of this petition.

The petitioner was released from prison in January 2007 and currently resides in Queens. In accordance with the requirements of the PRS, petitioner reports to the parole board in Jamaica.

Analysis

Respondent's arguments that the petition should be dismissed on the grounds: a) that this court lacks jurisdiction to modify an order previously prepared and issued by another judge; b) that the petition fails to name the district attorney as a necessary party to this proceeding; and c) that the relief requested is barred by the doctrine of res judicata or collateral estoppel are all without merit. Petitioner is not seeking to 1) modify a court order; 2)vacate a criminal sentence; or 3) relitigate a criminal matter, instead, petitioner is seeking a judicial review of an administrative act of the respondent. Where an individual is faced with an administratively imposed sentence there is no remedy to require the administrative body to review its determination other than an action seeking judicial review of the determination i.e. an article 78 proceeding. ( Waters v Dennison, 2006 NY Slip Op 26448, 13 Misc.3d 1105 [2006].)

Respondent's argument that Petitioner is barred by the statute of limitations is also without merit as there is nothing in the record, other than respondent's conclusory statement, to support a ...


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