On January 19, 2001, defendant was convicted, upon his plea of guilty, of assault in the first degree and sentenced to a determinate term of ten years imprisonment. In addition, a five-year period of post-release supervision (PRS) was imposed on him by the Department of Correctional Services (DOCS) (Penal Law § 70.45). Defendant now moves for an order vacating the five-year period of PRS, or, alternatively, reducing it to the minimum period of two and one-half years.

The relevant facts are as follows. On March 19, 1999, defendant was indicted, along with three co-defendants, of three counts of assault in the first degree (Penal Law § 120.10[1][2][4]), two counts of attempted robbery in the first degree (Penal Law § 110/160.15[1][3]), two counts of attempted robbery in the second degree (Penal Law § 110/160.10[1][2][a]), two counts of burglary in the first degree (Penal Law § 140.30[2][3}) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2]). The underlying allegations were that defendant, a New York City Police Officer, convinced a cousin and some friends to assault the mother of his four-year old daughter, to prevent her from proceeding with the child support matter she had initiated in Family Court. As a result of the assault, the woman was bound and gagged in front of her daughter and received multiple facial lacerations.

On January 2, 2001, defendant pleaded guilty to assault in the first degree (Penal Law § 120.10[1]), a class B violent felony, in full satisfaction of the indictment, in exchange for a determinate sentence of ten years imprisonment. Defendant waived his right to appeal his conviction and sentence as part of his negotiated plea.

On January 19, 2001, defendant was sentenced in accordance with the terms of the negotiated plea. Neither the sentencing minutes, nor my order of commitment, nor my notes mentioned the imposition of any period of PRS. After the sentencing proceedings, a five-year period of PRS was administratively imposed by DOCS.

By pro se motion dated August 14, 2003, defendant moved to vacate his judgment of conviction on the ground that he was not informed by the Court that his sentence included five years of PRS. By decision and order dated December 19, 2003, this Court ordered a hearing to determine whether defendant would have pleaded guilty if he had been made aware of the [*2]mandatory imposition of PRS. On July 12, 2004, defendant's counsel submitted a motion to withdraw defendant's motion to vacate his conviction, accompanied by a letter from defendant requesting withdrawal of the motion. The court dismissed the motion with prejudice.

By pro se motion dated October 19, 2006 defendant moved to vacate the five-year period of PRS, or, alternatively, to modify it to a period of two and one-half years. The People submitted their opposition papers on December 14, 2006. The People do not oppose the relief sought by defendant, but leave the determination to the Court's discretion. On January 12, 2007, the court received defendant's reply papers.

Upon reviewing the parties' submissions and the relevant case law, the Court concludes that defendant is entitled to have the five-year period of PRS stricken from his sentence.

Penal Law § 70.45 was enacted in 1998 to eliminate parole for certain crimes designated as "violent felony offenses," to establish determinate sentences for those crimes, and to include, as a part of the sentence, a mandatory period of PRS. Penal Law § 70.45[1] provides in relevant part that:

Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision.

When a determinate sentence is imposed upon a conviction of a class B or class C violent felony offense, the period of PRS "shall not be less than two and one-half years nor more than five years" (Penal Law § 70.45 [2][f]). Thus, in this case, the minimum period of PRS mandated by statute for defendant's conviction of a B violent felony was two and one-half years and the maximum period was five years.

A defendant who pleads guilty in exchange for a determinate sentence must be aware of the PRS component of that sentence in order to knowingly, voluntarily and intelligently enter his plea (see People v Van Deusen, 7 NY3d 744 [2006]; People v Catu, 4 NY3d 242 [2005]). A sentencing court's failure to advise a defendant of the PRS component of his sentence is a ground for vacatur of the plea (see People v Van Deusen, supra; People v Catu, supra). In this case, however, defendant does not seek that remedy. He seeks to have the five-year period of PRS stricken from his sentence based upon the ruling in Earley v Murray, 451 F3d 71 [2d. Cir. 2006], reh denied 462 F3d 147 [2006]).

In Earley v Murray, supra, the defendant was sentenced, in Kings County Supreme Court, to a six-year prison term for a violent felony offense. No mention was made during the plea or sentencing proceedings that his conviction also carried a mandatory five-year PRS term. Pursuant to Penal Law § 70.45, DOCS administratively added a five-year PRS period to his sentence. After unsuccessfully moving in State court to have the PRS stricken, defendant brought a federal writ of habeas corpus, claiming a constitutional due process violation.

The Second Circuit Court of Appeals ruled that the imposition of PRS by DOCS violated defendant's due process rights. The Court reasoned that "the judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment, and that any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect." In reaching its decision, the Second Circuit relied on United State ex rel. Wampler, 298 US 460 [1936], which held that a court clerk was unauthorized to add to the court's sentence commitment a condition that the defendant not be released until the $5000 fine imposed was paid. The Second Circuit concluded that the five-year PRS term added to Earley's sentence by [*3]DOCS violated "clearly established Supreme Court precedent" (451 F3d at 76). In a subsequent decision denying the People's petition for rehearing, the Second Circuit reiterated its view that, in the absence of PRS expressly being made part of the sentence by the judge, it cannot be deemed by statute to have been imposed at the time of the original sentence (462 F3d at 149-150).

Since Earley was decided, the First Department has rejected constitutional challenges to the sentencing court's failure to mention PRS in its oral pronouncement of a sentence (see People v Sparber, 34 AD3d 265 [1st Dept. 2006]; People v Lingle, 34 AD3d 287 [1st Dept. 2006], lv denied 8 NY3d 847 [2007]; see also People v Rivera, 36 AD23d 563 [1st Dept. 2007]; People v Thomas, 35 AD3d 192 [1st Dept. 2006]), lv denied 8 NY3d 850 [2007]). In concluding that a five-year period of PRS was already included in the sentence by operation of law, the First Department reasoned as follows:

Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision" (Penal Law § 70.45[2][emphasis added]), which, in defendant's situation, is precisely five years, with no discretion available (Penal Law § 70.45[1]). Therefore, even though the court's oral sentence was silent as to PRS, it necessarily included a five-year term thereof (citations omitted).

(People v Sparber, supra, 34 AD3d at 266). In addition to relying on Penal Law § 70.45[2], the First Department cited several decisions from the Fourth Department, which held that PRS is automatically included with a determinate sentence (People v Sparber, supra at 266).

Unlike the case at bar, in the Sparber line of cases, while the court's oral sentence was silent as to PRS, the commitment sheet contained the five-year PRS provision. Thus, the First Department reasoned that there was "no constitutional infirmity in the use of a written document to clarify an aspect of a sentence, upon which the court's oral pronouncement was silent, particularly where *** the relevant portion of the written document performs the ministerial function of setting forth mandatory consequence of the conviction" (see People v Sparber, supra at 266).

The First Department's determination that PRS is imposed by operation of law irrespective of whether the court makes an oral pronouncement at sentencing conflicts with the Second Circuit's determination in Earley. The interpretation of a federal constitutional question by a lower federal court, while not binding on state courts, "may be treated as useful and persuasive" (People v Kin Kan. 78 NY2d 54, 59-60 [1991]). When state and federal case law reach different results, the state case law takes precedence over federal case law in state court until the specific issues is addressed by the U.S. Supreme Court (see People v King Kan, supra at 60).

In Matter of Waters v Dennison (13 Misc 3d 1105 [Sup. Ct. Bronx County]), Justice Cirigliano, in vacating a five-year period of PRS administratively imposed by DOCS, concluded that adherence to Earley was warranted because of the "binding authority" of the U.S. Supreme Court's decision in Wampler, upon which Earley was based. Justice Cirigliano applied this same reasoning in vacating a five year period of PRS in People ex rel. Lewis v Warden (14 Misc 3d 468 [Sup Ct. Bronx County 2006]). This Court agrees with Justice Cirigliano's determination regarding the precedential effect of Earley, supra.

In any event, even assuming that the Sparber line of cases take precedence over Earley, [*4]they are distinguishable and therefore not controlling (see People ex rel. Johnson v Warden, 15 Misc 3d 1102[A] [Sup. Ct. Bronx County, Adler, J., 2007]). First, unlike the case at bar where the commitment sheet was silent as to PRS, the five-year period of PRS was recorded on the written commitment sheet in the Sparber line of cases. While the First Department did not base its departure from Earley on this distinguishing factor, it did conclude that the written document "satisf[ied] any constitutional requirement that a sentence be entered upon the records of the court'" (People v Sparber, supra, at 266, citing Hill v United States ex rel. Wampler, supra, 298 US at 464 ). In this case, however, there is no written document to satisfy the constitutional concerns raised in Wampler and Earley (see Matter of Waters v Dennison, supra; People ex rel. Lewis v Warden, supra).

A second distinction is that the five-year period of PRS imposed in the Sparber line of cases was mandatory because the defendants were second felony offenders (Penal Law § 70.45[2]). For violent felony offenders who are not second felony offenders, however, the statute permits the sentencing court to choose from within a range of periods of PRS and select the period it deems appropriate (see People v Hill, - NY3d- , 830 NYS2d 33 [1st Dept. 2007]). Since the defendant in the case at bar was convicted of a class B violent offense and was not a second felony offender, the sentencing court was authorized to impose a PRS period ranging between two and one-half to five years (see Penal Law § 70.45[2][f]).

The discretionary nature of the PRS period in this case makes it clearly distinguishable from the Sparber line of cases. While it is reasonable to construe Penal Law § 70.45(2) to deem a five-year period of PRS to have been imposed whenever a sentencing court fails to specify the period upon sentencing a second felony offender to a determinate sentence for a violent felony offense, where, as here, the statue permits the sentencing court choose from within a range of periods of PRS and select the period it deems appropriate, no period within the range enjoys any presumptive status (see People v Hill, supra at 39; People ex rel. Johnson v Warden, supra). Indeed, in the Sparber line of cases, in concluding that the sentences "necessarily included a five-year term thereof," the First Department noted that the period of PRS was "precisely five years, with no discretion available" (People v Sparber, supra at 266).

The element of discretion was considered significant by two of my colleagues in striking PRS administratively imposed by DOCS. In People ex rel. White v Warden, 2007 WL 329019 [Sup. Ct. Bronx County , Marcus, J., Jan. 26, 2007]), the defendant was convicted of a class D violent felony, which carried a PRS period of between one and one-half to three years. Neither the sentencing minutes nor the commitment sheet made any mention of period of PRS. After sentencing, DOCS imposed a three-year period of PRS. In concluding that the imposition of PRS by DOCS was void, Justice Marcus reasoned as follows:

In this case, then, the period of post-release supervision, even if "included," was not "precisely five years," "precisely three years," or any other period precisely set by the Penal Law. Instead, while the sentencing court could have imposed a period of three years, it also had discretion to impose a period of as little as one and a half years. Here, because the judge did not specify a period of post-release supervision either orally, or in the order of commitment, it appears that the discretion was exercised not by him, but by the Department of Correctional Services, which set that period at the maximum. Thus, whether or not Earley was correct in extending the holding in Wampler to cases in which there is no discretion as to the length of the period of post-release supervision that must be imposed, the provision at issue here included an element of discretion [*5]that makes Wampler clearly applicable.

Justice Adler employed similar reasoning in People ex rel.Johnson v Warden, supra. In that case, PRS was not mentioned during the sentencing proceeding or on the commitment sheet. After sentencing, DOCS administratively added a period of PRS. Since the defendant was not a second felony offender, the applicable period was discretionary. In concluding that no period of PRS was deemed to have been imposed, Justice Adler reasoned in part as follows:

In the current case, pursuant to PL 70.02 and PL 70.45, the sentencing court was entrusted with discretion in determining the amount of PRS to imposed. Therefore as the sentencing court did not impose a period of PRS, no period of PRS is deemed to have been imposed (People v Hill, supra at 6, 7; People ex rel. Lewis v Warden, supra).

Here too, as in People ex rel.Johnson v Warden, supra and People ex rel. White v Warden, supra, no period of PRS may be deemed imposed "by operation of law," since the amount of PRS was discretionary (see People v Hill, supra). Thus, I conclude that the action by DOCS of adding a five-year period of PRS upon defendant post-sentence violated his due process rights under state and federal law. Accordingly, defendant's motion is granted to the extent that the five-year period of PRS administratively imposed by DOCS is stricken.

Nonetheless, since the ten-year determinate sentence imposed on the date of sentencing was illegal because it did not include a period of PRS (Penal Law § 70.45), this Court has the inherent power to modify it, sua sponte or otherwise (see People v Wright, 56 NY2d 613 [1982]; People v Hill, supra at 41). Accordingly, it is ordered that defendant be returned to this Court on May 22, 2007 for further proceedings relating to the modification of his sentence to include a period PRS.

This constitutes the decision and order of this Court.



Dated:Bronx, New York

March 30, 2007