The opinion of the court was delivered by: John C. Egan, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
This Amended Decision and Order supercedes the Decision and Order dated October 17, 2008*fn1. By Stipulation dated December 5, 2008, all parties consented to the issuance of an Amended Decision and Order in this action, based on the parties' recollection that, as a result of a prior Court conference, that plaintiffs' time to move for class certification and for leave to amend the complaint was extended until after such time that the defendants' motion to dismiss was decided. This Amended Decision and Order reflects this stipulation between the parties.*fn2
The defendants bring the instant motion seeking dismissal of the complaint filed by the State of New York (State), the New York State Department of Correctional Services (Department of Correctional Services), and the New York State Division of Parole (Parole) (collectively "plaintiffs"). The plaintiffs oppose the defendants' motion.
In their complaint, plaintiffs seek a declaratory judgment permitting plaintiffs to maintain custody of "tens of thousands of violent felons" who may have been illegally sentenced to post-release supervision (also referred to as "PRS") so that they may be systematically referred back to the sentencing courts, where all the necessary parties can be heard on the issues arising out of the illegal sentences. Plaintiffs allege that this referral is appropriate where it appears that mandatory post-release supervision may not have been imposed, so that the sentencing court can correct any sentencing errors and thereby "address the potential public safety crisis inherent in releasing tens of thousands of violent felons into the community without supervision."*fn3 Plaintiffs further allege that the present "proliferation of piecemeal, detached and inconsistent civil proceedings will push the criminal justice system to the brink of chaos....".*fn4 Plaintiffs also seek an order certifying certain classes of defendants (consisting of all of the individuals in plaintiffs' custody, for whom it appears that the documents in possession of plaintiffs do not record terms of post-release supervision) and permitting plaintiffs to maintain custody of the defendant classes*fn5 for certain specified periods*fn6 in order to afford plaintiffs the time to identify defendants subject to mandatory post-release supervision, to locate records that would indicate whether, for any such defendant, the original sentencing court did, in fact, pronounce post-release supervision, and to refer any defendant whose sentence did not include post-release supervision (or whose records are inconclusive) to a sentencing court to determine whether that defendant may require re-sentencing or release. Simply, plaintiffs seek an order permitting them to maintain custody and supervision of the defendant class members.*fn7
"Post-release supervision was established by the legislature in 1998 as a mandatory follow-up period to a determinate sentence for violent felony offenders. This legislation is commonly known as "Jenna's Law." Violent felony offenders are now required to serve at least six-sevenths of a determinate prison sentence, followed by mandatory five year periods of post-release supervision for second violent felony offenders, and mandatory periods of between one and a half to five years post-release supervision for first time felony offenders. There are many thousands of defendants serving determinate sentences after being convicted of committing violent felony offenses following the enactment of Jenna's Law. And, by law, they are all subject to mandatory periods of post-release supervision." People ex rel. Joyner v. New York State Div. of Parole, 2007 WL 1345702, 1 (S.Ct. Bronx County 2007).*fn8
Based on the enactment of Jenna's Law, it was the Department of Correctional Services' understanding that the imposition of post-release supervision was not a judicial function, and therefore could be imposed administratively by the Department of Correctional Services, even if the sentencing court was silent with respect to that issue.
While in 2006 the Second Circuit Court of Appeals ruled that federal constitutional law prohibited 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, the New York State Appellate Divisions were split on the issue. See, Earley v. Murray, 451 F3d 71, 75-76 (2nd Cir. 2006).*fn9 By February 2008, all four Departments of the Appellate Division followed the ruling of the Second Circuit.*fn10
Then, by Decision and Order dated April 29, 2008, the New York State Court of Appeals decided Garner v. New York State Dept. of Correctional Services, 10 NY3d 358 (2008). In Garner, the Court of Appeals held that the Department of Correctional Services may not administratively add a mandatory period of post-release supervision onto a sentence where such period was not pronounced by the sentencing judge. The Court also recognized, in a footnote, that its holding was "without prejudice to any ability that either the People or DOCS may have to seek the appropriate re-sentencing of a defendant in the proper forum." Id., at 363. In Garner, defendant reached the maximum expiration date of his sentence and was released to parole supervision. On the same date, the Court of Appeals decided People v. Sparber, 10 NY3d 457 (2008). In Sparber, (which involved five appeals) rather than striking post-release supervision from the sentences, the Court found that "there exists no procedural bar to allowing the sentencing court to correct its [post-release supervision] PRS error," and remitted the five matters to the trial court for re-sentencing to include the proper pronouncement of the relevant post-release supervision term.*fn11 Id. at 472. Notably, the Court of Appeals decision to remit the Sparber defendants back to the trial court for re-sentencing involved defendants who were challenging their sentences while still incarcerated on their original sentences. People ex rel. Hernandez v. Superintendent, Oneida Correctional Facility 20 Misc 3d 627, 629 (S.Ct. Oneida County, 2008). It was after the Court of Appeals' Decisions in Garner and Sparber that plaintiffs commenced the instant action.
Thereafter, on June 30, 2008, Legislation was passed which requires certain violent felons to appear for re-sentencing so that their statutorily required sentences of post-release supervision may be imposed. See Governor's Program Bill No.73 Memorandum; See, Chapter 141 of the Laws of 2008.*fn12 Specifically, the Legislation provides, in part, that upon notification by Department of Correctional Services that post-release supervision was not imposed on the commitment order of a "designated person"*fn13, within 30 days thereafter, the sentencing court shall commence a proceeding to consider re-sentencing. No later than forty days after receipt of such notice, the sentencing court shall issue and enter a written determination and order. See Correction Law §601-d*fn14
In support of their motion seeking dismissal of the plaintiffs' complaint, the defendants argue the following:
1)Plaintiffs' claim has been rendered moot based on the passage of Chapter 141 of the Laws of 2008 (effective June 30, 2008), which provides a statutory resolution to the post-release supervision sentencing issue. Chapter 141 of the Laws of 2008 amended the Corrections Law to establish a procedure governing the re-sentencing of persons upon whom a determinate sentence was imposed that was required by law to include a term of post-release supervision. Thus, defendants argue, plaintiffs have failed to raise a justiciable controversy.
2)An order requiring further incarceration is inequitable to those who would only be subject to post-release supervision and not incarceration. An order requiring incarceration is unnecessary as courts are currently dealing with a large volume of cases referred by the Department of Correctional Services without the need for equitable intervention by the court.
3)Plaintiffs are not entitled to a declaratory judgment as there is no prejudice. Further, the mandate of the Court of Appeals is clear.*fn15 Plaintiffs' claim is nothing more than a request for an ...