The opinion of the court was delivered by: Marcy L. Kahn, 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.
Defendant Darren Edwards, having been convicted after a jury trial of assault in the second degree (PL §120.05) and assault in the third degree (PL §120.00) and sentenced*fn1 to a seven-year determinate term of incarceration concurrent with a one-year definite term and followed by a five-year term of post-release supervision has moved pursuant to Criminal Procedure Law §440.20(1) to set aside his sentence and for resentencing.
He claims that the term of post-release supervision was not legally imposed either at his original sentencing by the trial justice on August 26, 2002 or at a resentencing proceeding held by this court on May 15, 2007 (the resentencing proceeding) at which the term of post-release supervision was explicitly pronounced by the court. Relying on People v. Sparber, 10 NY3d 457 (2008) (Sparber II), he now claims entitlement to a further resentencing for the purpose of having this court consider whether to reduce the determinate term of incarceration imposed by the original sentencing court as well as his status as a second violent felony offender. He further seeks an order of this court declaring that, because the court at the resentencing proceeding failed to reconsider his determinate term, defendant was not lawfully placed on post-release supervision and that the violation of post-release supervision imposed on defendant by the Division of Parole (the Division) on October 15, 2008 and upon which he is now incarcerated should be expunged. The People oppose defendant's motion. For the reasons stated in this decision, defendant's motion is denied.
I. LEGAL HISTORY OF POST-RELEASE SUPERVISION SENTENCING
In legislation effective September 1, 1998, the New York State Legislature adopted determinate sentencing for all violent felonies and made post-release supervision mandatory for every determinate sentence. Among the statutes adopted was Penal Law §70.45,*fn2 which provides that "[e]ach determinate sentence... includes, as a part thereof, an additional period of post-release supervision..." (PL §70.45), which "shall commence upon the person's release from imprisonment to supervision by the division of parole" (PL §70.45), and the violation of which "shall subject the defendant to a further period of imprisonment up to the balance of the remaining period of post-release supervision...." (PL §70.45). The statute also provides that in cases such as this one, where the defendant is a predicate felon, "the period of post-release supervision... shall be five years." (PL §70.45).
After this enactment, many courts, including this one, assumed that the period of post-release supervision was included in every determinate sentence by operation of law, and did not specifically pronounce the term of post-release supervision when imposing sentence. The practice seems to have been especially prevalent in cases such as this one, where the term of mandatory post-release supervision had been set by statute. Where the New York State Department of Correctional Services (DOCS) received a prisoner sentenced to a determinate term but lacking any indication in the commitment order or sentencing minutes that the court had imposed post-release supervision in addition to the determinate term, DOCS and the Division, citing the mandatory nature of the post-release supervision term, would assess such terms for each violent felon as he or she completed serving their determinate term.
After a time, such defendants began to challenge these agencies' actions by petitions for writ of habeas corpus, Article 78 proceedings against the agency and in some instances, CPL §440.20 motions to set aside the post-release supervision portion of the sentence where the court had not pronounced the period of post-release supervision at the time of the defendant's plea or sentence.
The Court of Appeals first addressed one aspect of this situation in 2005 in People v. Catu, 4 NY3d 242 (2005), holding that where the court did not inform the defendant of the post-release supervision sentence at the time of the entry of the guilty plea, the defendant was entitled on appeal to the vacation of his plea. (Id. at 244). Other defendants, however, either were convicted after trial, or did not wish to lose the benefit of a favorable plea bargain, but still sought to challenge the action of DOCS in administratively adding a term of post-release supervision which had not been pronounced by the sentencing court.
In April 2008, the Court of Appeals in Sparber II, supra, held that where the sentencing court has failed to pronounce a mandatory term of post-release supervision as part of a sentence, the procedure by which the sentence is imposed is statutorily flawed. The Court further held that the trial court was empowered to correct the error upon remittal of the matter for resentencing. (Id. at 473). In a companion case, Garner v. New York State Dep't of Corr. Servs., 10 NY3d 358 (2008), the Court granted Article 78 relief prohibiting DOCS from administratively adding a period of post-release supervision where the sentencing court had failed to do so. (Id. at 362). The Court added a footnote stating that its "holding... is without prejudice to any ability that either the People or DOCS may have to seek appropriate resentencing of a defendant in the proper forum...." (Id. at 363 n.4).
Finally, in June 2008, the Legislature enacted Penal Law §70.85 and Correction Law §601-d to codify the rulings of the Court of Appeals in Sparber II and Garner and to establish procedures to be followed by DOCS, the Division and the courts where the court's commitment orders provided to DOCS did not reflect the imposition of post-release supervision by the sentencing court.
The relevant provision of the latter statute provides:
When... a case is again before the court pursuant to section six hundred one-d of the correction law or otherwise, for consideration of whether to resentence, the court may, notwithstanding any other provision of law but only on consent of the district attorney, reimpose the originally imposed determinate sentence of imprisonment without any term of post-release supervision, which then shall be deemed a lawful sentence.
II. FACTUAL AND PROCEDURAL HISTORY OF THE CASE
Familiarity with the factual and procedural history of the case prior to November 1, 2006 as discussed in this court's prior ruling in People v. Edwards, 15 Misc 3d 1115(A), 2007 WL 969416 (Sup. Ct. NY Co. 2007), appeal pending (Edwards I), is presumed.
In that litigation, by pro se motion dated November 1, 2006, defendant sought to set aside his sentence pursuant to CPL §440.20 on the ground that DOCS had exceeded its authority by adding to his sentence a five-year period of post-release supervision which had never been orally pronounced by the sentencing judge. On March 21, 2007, this court denied that motion in a written decision and order but, on its own motion, pursuant to People v. Richardson, 100 NY2d 847 (2003), People v. Wright, 56 NY2d 613 (1982) and then-prevailing Appellate Division, First Department precedent*fn3, and in light of Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), directed that defendant be produced for a resentencing proceeding (Edwards I, at 16) to "clarify that the terms of defendant's sentence include a mandatory period of five years' post-release supervision..." by pronouncing, in defendant's presence and with counsel representing him, the mandatory period of post-release supervision required by Penal Law §70.45.
On May 15, 2007, this Court held the resentencing proceeding pursuant to its March 21, 2007 decision and order. During that proceeding, after according defense counsel and defendant the opportunity to be heard (Transcript of Proceedings, May 15, 2007 [May 15, 2007 Tr.], at 16-17, 20-22), this court stated that "the sentence imposed by [the sentencing judge] on your conviction for assault in the second degree was a seven-year determinate term, and that term must be followed by five years of post-release supervision...." (May 15, 2007 Tr., at 23-24). The court made no amendment to defendant's commitment order, however, in view of the Appellate Division precedent then controlling. (See note 3, supra). On May 21, 2007, defendant filed a notice of appeal from the court's denial of defendant's motion.
On July 5, 2007, the Appellate Division, First Department denied defendant's motion seeking leave to appeal this court's March 21, 2007 denial of his CPL §440.20 motion. (People v. Edwards, 2007 NY Slip Op. 78942[U], AD3d [1st Dept. 2007]). On August 17, 2007, the Court of Appeals dismissed defendant's pro se application for leave to appeal from that denial. (People v. Edwards, 9 NY3d 875 ).
On August 28, 2007, defendant was conditionally released from the custody of DOCS to the Division to commence his period of post-release supervision. On or about May 23, 2008, a parole warrant was issued for defendant. On or about September 25, 2008, defendant was arrested in New York County and charged with petit larceny (PL §155.25) and was returned to Bronx County on the parole warrant the following day. Defendant subsequently pleaded guilty to the misdemeanor charge. On October 15, 2008, defendant was formally held in violation of his post-release supervision sentence and was assessed a fifteen-month prison sentence. On October 22, 2008, defendant was convicted in Bronx County Criminal Court, upon plea ...