The opinion of the court was delivered by: Michael C. Lynch, 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.
Petitioner Louis Medina, an inmate at the Gouverneur Correctional Facility, commenced this CPLR Article 78 proceeding seeking review of a determination by respondent New York State Department of Correctional Services (DOCS) to impose a five-year-period of post release supervision on his sentence pursuant to Penal Law § 70.45. By Decision and Order dated August 15, 2008, (Lynch, J.), this Court granted the petition, because, as the most recent cases from the Appellate Division and "the Court of Appeals make clear, only the sentencing judge is authorized to impose a period of postrelease supervision" (Matter of Smiley v. Department of Correctional Services, 52 AD3d 978; see Matter of Garner v. New York State Department of Correctional Services, 10 NY3d 358). Contending that there has been a change in the law that would change the prior determination, respondent now seeks leave to renew pursuant to CPLR §2221(e) .
A movant seeking leave to renew must, "demonstrate that there has been a change in the law that would change the prior determination" (CPLR §2221(e)). Here, respondent argues that Chapter 141 of the Laws of 2008 enacted on June 30, 2008, is a change in the law that would change this Court's prior determination. Specifically, respondent contends that leave to renew is appropriate because, since the enactment of Chapter 141, "courts have held that the proper result of an Article 78 such as petitioner's is dismissal, and the Court should not vacate the PRS component of the sentence during the pendency of the resentencing proceeding" (Higgins Affirmation, ¶9 [citing Solano v. New York State Department of Correctional Services, Index No 8507-07 (Sup. Ct. Albany County July 8, 2008)]).
Chapter 141 of the Laws of 2008, in relevant part, amends the Corrections Law to require, the Department of Corrections (hereinafter, DOCS) to notify the sentencing court when it becomes aware that an inmate's commitment order does not indicate that a term of post-release supervision was imposed at sentencing (Corrections Law §601-d (2)). Upon receipt of such notice, the sentencing court must then either (1) issue a superseding commitment order with an explanation if, in fact, a term of post-release supervision was imposed at sentencing (Corrections Law §601-d(2)); or, (2) appoint counsel and commence a proceeding to re-sentence the inmate within thirty days from the date it originally received notice the DOCS, and issue and enter a written determination (Corrections Law §601-d (4[a], [b], [d]). Unless the time frames are extended with the inmate's consent, the written determination to re-sentence the inmate must be issued within forty days from the date the sentencing court received notice from DOCS (Corrections Law §601-d (4) [d], [e]).
This Court does not agree that Chapter 141 of the Laws of 2008 is a change in the law that warrants renewal of the prior determination (cf. Solano, Supra; see Billups v. Fischer, 20 Misc 3d 1146). Indeed, the stated purpose of the Law was not to change the law that only the sentencing court can impose terms of post-release supervision, but to "provide a framework for a prompt, fair and careful response to [Matter of Garner, 10 NY3d 358 and People v. Sparber, 10 NY3d 457]" (Sponsor's Mem, Bill Jacket, L. 2008 ch 141). Notably, respondent does not advise whether, since the enactment of Chapter 141 of 2008, it has complied with Corrections Law §601-d.
Accordingly, respondent's motion to renew is denied and the Court's prior determination remains, except to clarify that the matter is remitted to the Department of Corrections for further proceedings in accordance with Chapter 141 of the Laws of 2008.
This memorandum constitutes the Decision and Judgment of this Court. All papers including this Decision and Judgment are returned to the attorneys for respondents. The signing of this Decision and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provision of that Rule respecting filing, entry and Notice of Entry.
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