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Hill v. Commissioner of Correctional Services

State of New York Supreme Court, Appellate Division Third Judicial Department


March 4, 2010

IN THE MATTER OF MASHAMA HILL, APPELLANT,
v.
COMMISSIONER OF CORRECTIONAL SERVICES ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: January 25, 2010

Before: Cardona, P.J., Peters, Spain, Lahtinen and Stein, JJ.

Appeal from a judgment of the Supreme Court (Donohue, J.), entered March 26, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner, a former prison inmate, was convicted of sexual abuse in the first and second degrees in 2002 and was sentenced as a second felony offender to an aggregate prison term of four years followed by three years of postrelease supervision. Realizing that it had sentenced petitioner in error, the sentencing court later amended petitioner's sentence to include a five-year period of postrelease supervision. In August 2005, petitioner moved, pursuant to CPL 440.20, to vacate his sentence on the ground that the period of postrelease supervision imposed by the court was unlawful. County Court (Sperrazza, J.) denied petitioner's motion, finding that the sentence was proper pursuant to Penal Law §§ 70.06 and 70.45. Petitioner thereafter commenced this CPLR article 78 proceeding seeking to again challenge the postrelease supervision portion of his sentence. Respondents moved to dismiss the petition on the grounds of, among other things, collateral estoppel. Supreme Court granted the motion and dismissed the petition. Petitioner appeals and we affirm.

We agree with Supreme Court that petitioner's current challenge to the postrelease supervision portion of his sentence, which was decided adversely to him in an earlier proceeding, is barred by collateral estoppel (see Matter of LaRocco v Goord, 43 AD3d 500, 500 [2007]). To the extent that petitioner advances in this proceeding new allegations regarding the resentencing procedures, we note that the current respondents (i.e., Commissioner of the Department of Correctional Services and Chair of the Division of Parole) do not have the authority to grant the relief requested of changing a sentence imposed by a court (see People v Sparber, 10 NY3d 457, 470 [2008]; Matter of Murray v Goord, 1 NY3d 29, 32 [2003]; Matter of LaRocco v Goord, 43 AD3d at 501).

We have examined petitioner's remaining contentions and find them to be without merit.

Cardona, P.J., Peters, Spain, Lahtinen and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100304

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