By notice of motion dated May 12, 2006, defendant moves pro se, for an order setting aside his sentence pursuant to CPL §440.20. As an alternative, defendant moves for a hearing to determine whether such sentence should be set aside. By affirmation in opposition dated July 28, 2006, the People oppose defendant's motion.

Defendant's affidavit in support of the motion alleges that the sentencing court did not sentence him to post-release supervision (PRS), and that, consequently, the Department of Correctional Services (DCS) is not authorized to subject him to such supervision. Defendant also claims that because PRS was never part of any plea agreement and was not mentioned during sentencing, his sentence to PRS constitutes cruel and unusual punishment. Defendant requests that the Court eliminate PRS or reduce his prison sentence by five years.

Defendant's instant motion does not address either his conviction or sentence under indictment number 3272/2000. Nor does it seek to vacate either his plea or the conviction under indictment number 6140/99. Instead, it seeks solely to modify the sentence under indictment 6140/99 by deleting that portion which imposes a period of five years of post release supervision or other alternative relief. Defendant's motion papers do not include transcripts of either the plea or sentence under indictment number 6140//99.

Assistant District Attorney (ADA) Seth Lieberman submitted an affirmation in opposition to the motion and a memorandum of law. ADA Lieberman asserts that defendant has used the wrong procedure vehicle of a motion pursuant to CPL §440.20(1) rather than a CPLR Article 78 proceeding to review of the conduct of the DCS. He further contends that PRS is mandatory in every determinate sentence and its imposition is therefore neither invalid, unauthorized or illegal. The opposition papers do not include a transcript of defendant's plea or sentence under indictment 6140/99.

The following facts are undisputed. On July 27, 1999, defendant, acting in concert with three others ordered Chinese food to be delivered to an apartment located at the Bayview Projects in Brooklyn with the intention of robbing the delivery man in route. When Mr. Bao Kai Ren [*2]went to the building location to deliver the food, the defendant accosted and forcibly removed from him the food and a sum of United States currency. During the course of the theft, defendant placed his arm around Mr. Ren's neck while one of the co-defendants cut Mr. Ren's face with a sharp object. Mr. Ren received approximately sixty stitches to his face in connection with this injury.

For these acts, defendant was charged, by Kings County Indictment Number 6140/99, with the following crimes: two counts of Robbery in the first and second degree; one count of Robbery in the third degree, Grand Larceny in the fourth degree, Petit Larceny, and Criminal Possession of Stolen Property in the fifth degree; three counts of Assault in the first and second degree, one count of Assault in the third degree, Menacing in the second degree and Criminal Possession of a Weapon in the fourth degree.

On January 7, 2000, defendant pleaded guilty to Robbery in the first degree in satisfaction of the indictment. The indictment did not charge an armed felony as defined in CPL.§1.20 (41). The defendant was seventeen years old at the time and had no prior convictions, youthful offender adjudication, or juvenile delinquency adjudication on a designated felony act. As an "eligible youth", as defined in CPL 720.10, the court promised to sentence defendant as a youthful offender, with a prison sentence of no more than one to three years subject to certain conditions. The court advised that if the defendant's pre-sentence report from the department of probation determined that defendant was youthful offender eligible, then the court would be prepared to release defendant to an "alternative to incarceration" program, defer sentencing and give the defendant an opportunity to demonstrate by his compliance with the program, conditions that his sentence should be less than one to three years. The court further informed the defendant that in order to be sentenced as a youthful offender, he was required not to be re-arrested and to make every court appearance until his sentencing. Defendant was warned that if he violated either of those conditions, the Court would no longer be bound by its promise and would be able to deny youthful offender treatment and sentence the defendant as a felon to a prison term of up to twenty-five years on the class B felony conviction.

During the course of the plea proceedings, the court did not mention the possibility of post-release supervision. The court assigned defendant to the "Cases" program, with the understanding that defendant might be sentenced to probation if he successfully completed the program.

On March 29, 2000, defendant, acting in concert with three others, forcibly took from Jefferson Miller a sum of United States currency, a book bag, and the sneakers from his feet. During the course of taking, defendant handed what appeared to be a gun to one of his accomplices. For this conduct, defendant was charged by Kings County Indictment Number 3272/2000, with, among other crimes, Robbery in the first degree as an armed felony, defined in CPL.§1.20 (41). On November 13, 2000, after a jury trial on Indictment Number 3272/2000, defendant was found guilty of Robbery in the first degree.

On January 18, 2001, the Court denied youthful offender treatment to the defendant on both indictments and sentenced him on each conviction to Robbery in the first degree to a prison term of twelve years, to be served concurrently with each other. There is no dispute that the Court did not mention post-release supervision during the defendant's plea or at sentencing under indictment number 6140/99. Defendant filed a notice of appeal with respect to each judgment of [*3]conviction, but never perfected either appeal, and ultimately withdrew each appeal. Defendant remains incarcerated.

The Court of Appeals has held in People v Catu, 4 NY3d 242, that a defendant pleading guilty to a determinate sentence must be made aware of the post release supervision component of that sentence in order to knowingly, voluntarily, and intelligently choose among alternative courses of action and the failure of a court to advise post release supervision requires reversal of the conviction.

Here, however, the defendant did not plead guilty to a determinate sentence under indictment number 6140/99. At the time of the plea the defendant was seventeen years old and had no prior conviction, or juvenile delinquent or youthful offender adjudications. He was therefore capable of being sentenced as a youthful offender to five years probation, or to an indeterminate sentence maximum for a class E felony, namely, one and one third to four years incarceration.(Penal §§ 60.02 [2] and 70.00[2][e] and [3][b]).

The court took defendant's plea to robbery in the first degree finding that he was eligible for youth offender treatment pursuant to CPL §720.10(1)and (2). Had the defendant abided by the terms of the plea agreement, he would have been sentenced as a youthful offender and received no more than a determinate sentence of one to three years in prison. Inasmuch as the court promised to sentence the defendant to no more than a determinate sentence of one to three years, their was no requirement to inform the defendant about PRS. Defendant's plea was in exchange for an opportunity to successfully complete an alternative to incarceration program. He was warned of the possible sentence if he failed the program and was enticed by the possibility of a favorable sentence if he fulfilled the requirements of the program. Defendant ultimately failed to meet the conditions of his plea and was sentenced after trial of indictment number 3272/00 and sentenced to concurrent terms of incarceration under both indictments.

Defendant moves pursuant to CPL §440.20 to modify his sentence under indictment 6140/99 by contesting the legality of the imposition of a period of PRS.

CPL §440.20(1) states, in pertinent part, that at any time after the entry of judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed, or otherwise invalid as a matter of law.

A period of PRS is automatically included in every determinate sentence of imprisonment "as part thereof" (see Penal Law §§70.00 [6], 70.45[1]; Deal v Goord, 8 AD3d 769 [3rd Dept.]). The court's failure to inform defendant explicitly of the post-release supervision does not entitle defendant to the remedy he requested (People v Boyce, 12 AD3d 728 [3rd Dept. 2004]; People v Crump, 302 AD2d 901 [4th Dept. 2003]). Pursuant to Penal Law §70.45(2)(f) the period of post-release supervision for a determinate sentence shall be not less than two and one-half years nor more than five years whenever a determinate sentence of imprisonment is imposed pursuant to subdivision three of section 70.02 of this article upon a conviction of a class B or class C violent felony offense.

Defendant, by his motion, narrowed the issue under review to the propriety of the imposition of five years of PRS. For the aforementioned reasons defendant may not set aside the [*4]period of PRS through the instant motion. Inasmuch as the defendant has failed to demonstrate that the sentence imposed was unauthorized, illegally imposed, or otherwise invalid as a matter of law the application is denied. However, the court will amend the written sentence commitment to reflect a period of a five-year post release supervision under indictment 6140/99 and 3272/2000 (see People v Sparber, 34 AD3d 265 [1st Dept. 2006]; People v Lingle, 34 AD3d 287 [1st Dept. 2006]). In Sparber and Lingle, the courts held that a written sentence commitment including post release supervision satisfies federal constitutional requirements under Early v Murray, 451 F3d 71 [2nd Cir. 2006].

The foregoing constitutes the decision and order of the court.

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J.S.C