Petitioner moves for a Writ of Habeas Corpus, premised upon a claim that the Department of Parole has detained him unlawfully based upon a violation of post release supervision ("PRS") erroneously imposed upon him by the New York State Department of Correctional Services ("DOCS"). Petitioner seeks an order compelling respondent to vacate the PRS and to vacate the parole warrant issued based upon the declaration of delinquency. Upon the submitted papers, this Writ of Habeas Corpus is dismissed and the petition is Denied.

Petitioner is incarcerated pursuant to a judgment of the New York State Supreme Court, New York County, convicting him after a plea of guilty to Attempted Criminal Possession of a Weapon in the Second Degree, (Penal Law §110/265.03), for which he was sentenced on December 21, 2000, to a determinate term of 3 years. A period of post release supervision was not orally imposed by the Court at the time of sentence.

Petitioner was released to parole supervision on September 5, 2002 at which time he agreed to abide by certain conditions of release. Petitioner was advised by DOCS that he was subject to 3 years post release supervision and he was to be supervised by the Division of Parole until September 5, 2005. He was informed prior to his release that failure to abide by the conditions of his release [*2][*3]would result in the revocation of his parole.

On November 8, 2002 a parole warrant was issued and ultimately lodged on August 2, 2006 for revocation proceedings, based upon a Violation of Release Report relating that petitioner left his residence without permission and he absconded leaving his whereabouts unknown. On August 2, 2006, petitioner was served with a Notice of Violation and the Violation of Release Report. At that time petitioner elected to have a preliminary revocation hearing. The hearing was held on August 10, 2006 at which time probable cause was established.

Petitioner's final revocation hearing was held on October 3, 2006 and parole was revoked. After the hearing, the Administrative Law Judge imposed a delinquent time assessment of twenty months.

Petitioner filed this Writ of Habeas Corpus, alleging that the period of PRS is improper in that it was erroneously imposed upon him by DOCS and not by the Court at the time of sentencing.

Petitioner was convicted after entering a plea of guilty and received a determinate sentence of 3 years imprisonment. There is no dispute that the Court did not orally impose on the record at the time of sentencing a period of post release supervision, which is required for a determinate sentence. Petitioner first became aware he was subject to a period of PRS when he was released on parole. Petitioner contends that a period of PRS may only be imposed by the Court and not DOCS. Respondent contends that the period of PRS is "automatically" imposed by operation of statute and as such respondents are merely enforcing a statutorily required part of petitioner's sentence and not performing a judicial function.

In support of his position that PRS may only be imposed by the court, petitioner relies on Earley v. Murray, 451 F.3d71 (2nd Cir. 2006). In Earley, the Second Circuit held that sentencing is a matter exclusively for the trial judge and since the imposition of post release supervision is a sentencing matter it must be imposed by the court, not an administrative agency such as DOCS. In Earley, the defendant did not move to vacate his plea but instead moved to have the period of PRS excised from his sentence. The Second Circuit held the imposition of PRS by the Department of Corrections is contrary to established federal constitutional law and a violation of due process. They held PRS was not part of the sentence and granted defendant's request to exercise the post release supervision. Similar to the defendant in Earley, the defendant in the instant matter requests excision of the improperly imposed PRS and the parole warrant to be vacated.

While the interpretation of a federal constitutional question by a lower federal court may serve as useful and even persuasive authority for our state courts, it is not binding. People v. Kin Kan, 78 NY2d 54, 574 NE2d 1042, 571 NYS2d 436 (1991), reargument denied, 78 NY 1008, 580 NE2d 1061, 575 NYS2d 458 (1991). Absent a ruling from the United States Supreme Court on a constitutional issue, when a conflict exists between the decisional law of the New York Court of Appeals and the intermediate Federal Court, the Court below should adhere to the rulings of the State Court of Appeals, People v. Joseph, 85 AD2d 546 (1981).

In New York, a period of post- release supervision is mandated for a determinate sentence according to Penal Law §70.45(1) which provides:

"Each determinate sentence also includes, as part thereof, an additional period of post-release supervision. Such period shall commence as provided in subdivision five of this section and a violation of any condition of supervision occurring at any time during such period of post-release [*4][*5]supervision shall subject the defendant to a further period of imprisonment of at least six months and up to the balance of the remaining period of post-release supervision, not to exceed five years. Such maximum limits shall not preclude a longer period of further imprisonment for a violation where the defendant is subject to indeterminate and determinate sentences."

It is clear from the language of the statute that the PRS provision is not a mere discretionary directive for the court to impose but rather a statutory "provision already included in the sentence by operation of law." People v. Sparber, No. 9509, 2006 NY App. Div. LEXIS 13267, at *1 (1st Dept. Nov. 9, 2006). See also, People v. Crump, 302 AD2d 901 (2003), lv denied 100 NY 2d537 (2003); People v. Thweatt, 300 AD2d 1100 (2002); People v. Bloom, 269 AD2d 838 (2000), lv denied 94 NY2d 945 (2000).

Petitioner argues that the Court's silence on the issue of PRS is fatal and therefore the period of PRS must be excised from his record. This argument is contrary to the recent Appellate Division decision in People v. Sparber, Id. In Sparber, the sentencing record was silent on the issue of PRS. After imposition of sentence, defendant's commitment papers were completed by the court clerk who included the appropriate term of post release supervision on the papers. The defendant challenged this period of PRS, claiming it was erroneously imposed by the clerk and not the court. The Appellate Division, First Department held "even though the court's oral sentence was silent as to PRS, it necessarily included a five-year term thereof and the "written document performs the ministerial function of setting forth a provision already included in the sentence by operation of law." Id at 3, 4.

Petitioner contends that the Court's failure to orally pronounce PRS was of no consequence in Sparber because of the completed commitment sheet containing the PRS period. According to Petitioner the only difference between a Sparber claim and an Earley claim is the completed commitment sheet, therefore a litigant may only prevail on an Earley claim if they establish that PRS was neither pronounced by the Judge or entered by the clerk on the commitment sheet. In the instant matter, petitioner contends he should prevail because the record was silent as to PRS and the commitment sheet is void of a PRS entry.

Contrary to petitioner's interpretation of Sparber, the First Department's holding was predicated upon several decisions from the Fourth Department in which that Court held that PRS is automatically included with a determinate sentence. In People v. Crump, 302 AD2d 901 (2003), the Court held "post release supervision is mandatory for a determinate sentence and is automatically included in the sentence." In People v. Thweatt, 300 AD2d 1100 (2002), the Court held County Court was not required to specify a period of post release supervision at the time of the plea or at sentencing. Further, if the Court did not specify a shorter period of PRS, the stated statutory amount was found to be imposed. In People v. Bloom, 269 AD2d 838 (2000), the Court held "there was no need for the court to specify a period of post-release supervision.", because according to Penal Law §70.45 a period of post release supervision is automatically included with the imposition of a determinate sentence. Following the rationale in these three cases, the First Department in Sparber concluded that post release supervision is automatically included in a determinate sentence. Additionally, the Court held there existed no constitutional infirmity with the use of a written document to "clarify an aspect of a sentence upon which the court's oral pronouncement was silent particularly where, as here the relevant portion of the written document performs the ministerial function of setting forth a [*6][*7]provision already included in the sentence by operation of law." Sparber citing United States v. Cofield, 233 F.3d 405, 406-408 [6th Cir2000], cert denied 532 U.S. 952 [2001])

The Court's failure to advise a defendant of the mandatory period of post release supervision does not entitle him to a modification of the sentence to eliminate or reduce the period of post release supervision. The only available potential remedy is withdrawal of the plea or a motion to vacate the judgment of conviction pursuant to Criminal Procedure Law Article 440. People v. Boyce 12 AD3d 728 (3rd Dept. 2004).

This Court does not have the power to vacate the parole warrant or to eliminate the period of mandatory PRS imposed.

The application for a Writ of Habeas Corpus is DENIED.

The foregoing shall constitute the decision and order of the Court.

Dated:

The Honorable Joseph Fisch