Defendant Darren Edwards, having been convicted after a jury trial of assault in the second degree and assault in the third degree and sentenced to a seven-year determinate term of incarceration concurrent with a one-year definite term, has moved pursuant to Criminal Procedure Law §440.20 to set aside his sentence. He claims that the sentence has been illegally modified by the New York State Department of Correctional Services ("DOCS") to include a period of post-release supervision ("PRS") not imposed by the court. He seeks to have the period of post-release supervision excised from his sentence and to be re-sentenced without parole-release supervision to the terms of incarceration previously imposed by the court.^[FN1] The People oppose defendant's motion. For the reasons stated in this opinion, defendant's motion is denied. The court will, however, on its own motion, clarify that the terms of defendant's sentence include a mandatory period of five years' post-release supervision by ordering a re-sentencing procedure to be conducted in accordance with this opinion.

I.FACTUAL AND PROCEDURAL BACKGROUND

On August 13, 2001, defendant was arrested and accused of striking a man over the head with a glass object, twisting his arm and taking $14 from the victim's pants pocket. Police officers who arrested defendant claimed that he resisted arrest. He was indicted by a New York County grand jury and charged with three counts of robbery in the first degree and assault in the first and second degrees.

Defendant was convicted on August 1, 2002, after a jury trial, of the crimes of assault in the second (PL §120.05[2]) and third (PL §120.00) degrees. On August 26, 2002, the sentencing judge adjudicated him a predicate violent felony offender as the result of a January 24, 1989 conviction for attempted robbery in the second degree and sentenced him to a determinate term of seven years on the felony conviction and to a concurrent definite term of one year on the misdemeanor charge. Neither the judge's remarks in imposing sentence nor the order of [*2]commitment made any mention of the five-year period of post-release supervision mandated as part of the determinate sentence by PL §70.45(1) and (2).

Sometime after September 18, 2002, after he had commenced serving his determinate sentence, defendant received a notice from DOCS which indicated that his sentence included a five-year term of post-release supervision. (Affid. of Darren Edwards, dated November 1, 2006, in Support ["Def. §440.20 Affid."], and Exh. 2, Legal Date Computation form, dated September 18, 2002).

Defendant appealed his conviction to the Appellate Division, First Department. That court unanimously affirmed the judgment. (People v. Edwards, 16 AD3d 226 [1st Dept. 2005]). His application for leave to appeal to the Court of Appeals was denied (People v. Edwards, 5 NY3d 762 [2005]). On April 12, 2005, defendant filed a pro-se CPL §440.10 motion in this court, in which he claimed that he was denied effective assistance of counsel, and that the verdict in the case was against the weight of the evidence. On May 20, 2005, this court denied the motion in its entirety in a written decision and order.

II.CONTENTIONS OF THE PARTIES

A.Defendant's Claims

Defendant now seeks to set aside his sentence insofar as it includes the period of post-release supervision on the ground that DOCS exceeded its authority by adding that term to his sentence administratively. Relying on Earley v. Murray, 451 F3d 71 (2nd Cir. 2006)(Earley I), reh. denied, 462 F3d 147 (2006)(Earley II), he argues that his sentence includes only the two concurrent jail terms totaling seven years pronounced by the court, and no more, and that DOCS cannot modify that sentence to include a custodial term ^[FN2] not specified by the judge without violating defendant's federal constitutional rights to due process of law. He asks this court to re-sentence him to the term originally imposed by the trial court, excising the period of post-release supervision which he claims has been illegally imposed by DOCS. (Def. §440.20 Affid., at 2).

B.The People's Response

The People oppose the motion, arguing that defendant's sentence was neither unauthorized, illegally imposed nor otherwise invalid as a matter of law. Distinguishing those cases in which a defendant entered a guilty plea without full knowledge of its consequences and would be entitled to its vacatur on due process grounds (see People v. Catu, 4 NY3d 242 [2005]), the People claim that defendant has no remedy on this motion. They argue that under PL §70.45, defendant's determinate sentence of seven years included the five-year period of post-release supervision, which was a mandatory and definite "part thereof," under PL §70.45(1). (People's Memorandum in Opposition to Defendant's Motion to Set Aside Sentence Pursuant to CPL §440.20 ["Peo. §440.20 Memo"], at 5). The People urge this court to reject Earley v. Murray, [*3]supra , upon which defendant bases his due process claim, arguing both that it is factually inapposite, because the defendant there had entered a guilty plea without knowledge of the post-release supervision term, and that the Second Circuit there incorrectly applied United States Supreme Court precedent.

C.Defendant's Reply ^[FN3]

Defendant replies that any term of post-release supervision imposed upon him is invalid, and that the only sentence authorized under the law is the one imposed by the sentencing judge. He claims that if the People believed an additional term was required by law, their sole remedy was that of a CPL §440.40(1) motion made not more than one year after the entry of judgment to set aside the sentence as invalid. The "imposition" of post-release supervision by DOCS, defendant claims, violates constitutional guarantees of due process and equal protection, as well as settled decisional law making sentencing a judicial responsibility. He argues that as the court failed to impose, orally or in any writing, this custodial element of the sentence, DOCS is without authority to do so.

III.APPLICABLE LAW

A. Penal Law §70.45 and the Statutory Interpretation Cases

The Sentencing Reform Act of 1998 added a new section of the Penal Law (§70.45), which mandated post-release supervision as part of every determinate sentence, and established its terms. The first sentence of the statute provided: "Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision." The length of the period was fixed at five years unless the defendant was a first violent felony offender (PL §70.02). For such an offender, Penal Law §70.45(2) as originally enacted provided that the period of post-release supervision was, in the case of a class B or class C violent felony, five years, provided that "the court, at the time of sentence, may specify a shorter period" of not less than two and one-half years; and in the case of a class D or class E violent felony, three years, with the same proviso permitting the court to specify a period of not less than one and one-half years. (PL §70.45[2]).^[FN4]

Implementation of the provisions of PL §70.45 proved cumbersome. Courts unfamiliar with post-release supervision occasionally neglected to discuss or even mention its implications, and litigation ensued. Often these cases involved defendants who had bargained for a specified determinate sentence and then discovered that their pleas exposed them to extended supervision and the possibility of substantial additional jail time. These cases fell into two categories.

In the first group of cases, once informed of the PRS term, defendants sought either to [*4]withdraw their guilty pleas or vacate their judgments. In People v. Catu, supra , the Court of Appeals addressed such a case and, concluding that post-release supervision is a direct consequence of any conviction for which a determinate sentence is imposed, held that the failure of a court to advise a defendant who is entering a guilty plea of the added term of post-release supervision rendered the plea less than knowingly, voluntarily and intelligently entered. (Id., at 245). More recently, in People v. Van Deusen, 7 NY3d 744, 746 (2006), the Court of Appeals held that even where a defendant fails to establish that he or she would have refused to plead guilty if made aware of post-release supervision, the failure of a court to so advise requires reversal of the conviction.

In the second group of cases, however, a defendant who bargained for a specific determinate sentence without knowledge of the post-release supervision consequence had no interest in seeking withdrawal of the plea or vacation of the favorable judgment, but rather sought the imposition of the exact sentence pronounced by the court, i.e., the determinate sentence without the post-release supervision. In such cases, the appellate courts have struggled to fashion an appropriate remedy.

In a series of early Fourth Department cases addressing the issue, the Appellate Division concluded that the period of post-release supervision is added to a determinate sentence automatically, by operation of law, and that the sentencing judge need not specify its inclusion at the time of sentence. In People v. White, 296 AD2d 867 (4th Dept. 2002), the court ruled that where no mention was made at sentence or in the certificate of conviction, the term of post-release supervision "is mandatory for determinate sentences and is automatically included in the sentence . . . ." (citation omitted). And in People v. Bloom, 269 AD2d 838 (4th Dept.), lv. denied, 94 NY2d 945 (2000), in addressing the failure of a sentencing court to pronounce a discretionary term, the court held:

There was no need for the court to specify a period of post-release supervision. Under Penal Law §70.45(2), "[t]he length of the period of post-release supervision' is five years . . . unless the court specifies a shorter period" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law §70.45, 1999-2000 Interim Pocket Part, at 81).

In another early case, People v. Bell, 305 AD2d 694 (2nd Dept.), lv. denied 100 NY2d 592 (2003), the Appellate Division, Second Department similarly considered the case of a defendant who, on appeal, had no wish to vacate or void his plea. In Bell, the defendant instead sought modification of the judgment to strike the post-release supervision requirement which had been pronounced by the court at sentence, although not mentioned at the time of his plea. The Second Department refused to strike the PRS term, holding that "[a] determinate sentence without the post-release supervision constitutes an illegal sentence (see Penal Law §70.45)." (People v. Bell, 305 AD2d at 694).

In Matter of Deal v. Goord, 8 AD3d 769 (3rd Dept.), app. dism., 3 NY3d 737 (2004), [*5]reconsid. den., 4 NY3d 795 (2005), the Third Department affirmed the dismissal of an Article 78 petition which had sought to prohibit DOCS from imposing a term of post-release supervision not mentioned at sentence, stating:

Inasmuch as petitioner was sentenced to a determinate sentence for his commission of a violent felony in 1999, "a period of post-release supervision [was] automatically included" in his sentence by statute . . . . Since respondents are enforcing a statutorily-required part of petitioner's sentence, they have not performed any judicial function, making prohibition an unavailable remedy

Shortly thereafter, in People v. Adams, 13 AD3d 76 (1st Dept. 2004), lv. denied 4 NY3d 851 (2005), the First Department rejected defendant's claim that the trial court had failed to fix a term of post-release supervision when it used the phrase "the appropriate post-release supervision time." (Id.). Relying upon the Fourth Department's decision in Hollenbach, supra , the First Department characterized the five-year period of supervision as "the default period" of post-release supervision for a class C violent felony conviction, to be applied in discretionary cases, unless the court specifies a shorter period.(People v. Adams, supra , at 76).

Thus, as recently as 2004, as a matter of interpretation of state statutory law, the "automatic" inclusion of post-release supervision in every determinate sentence was established at least in the First, Third and Fourth Departments. In the Second Department, which appears not to have addressed the issue at that point, the Appellate Division in any case recognized that a determinate sentence without an attendant PRS term was an illegal sentence.

Within the past year, however, the consistency of appellate decisional law has been shattered. Commencing in late 2006 and continuing into early 2007, several First Department decisions have adopted a more nuanced approach to resolving post-sentence announcements of post-release supervision. In cases involving second violent felony offenders or second felony offenders, the mandatory five-year period of post-release supervision continues to be viewed as automatically included in the determinate sentence, irrespective of when, or whether, the sentencing judge ever expressly announced its inclusion as part of the sentence. Thus, in People v. Sparber, 34 AD3d 265 (1st Dept. 2006), the First Department held:

The Penal Law does not merely direct or require a court to impose PRS when imposing a determinate sentence; instead it provides that "Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision" (Penal Law §70.45[1][emphasis added]), which, in defendant's situation, is precisely five years (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 (see People v. Crump, 302 AD2d 901 [2003], lv. denied 100 NY2d 537 [2003]; People v. Thweatt, 300 AD2d 1100 [2002]; People v. Bloom, 269 AD2d 838 [2000], lv. denied 94 NY2d 945 [2000]).

(Id., at 265-266; see People v. Thomas, 35 AD3d 192 [1st Dept. [*6]

2006]; People v. Lingle, 34 AD3d 287 [1st Dept. 2006]).

In the case of a first violent felony offender, however, where the term of post-release supervision is discretionary, a recent First Department decision has now reached a different conclusion. In People v. Hill, - AD3d —, 830 NYS2d 33, 2007 NY Slip Op. 00589 (1st Dept. Jan. 30, 2007)("Anthony Hill"), the Appellate Division held that the absence of any express statutory language in §70.45(2) making the maximum term the default sentence (and contrasting PL §70.25[1][a], relating to consecutive and concurrent sentences, in that regard) supported the conclusion that no period of post-release supervision should be deemed to have been imposed if the judge had failed to specify the period of post-release supervision in sentencing a defendant under PL §70.02, where the court had discretion to impose a term less than the maximum. (Anthony Hill, supra , 2007 NY Slip Op., at 7).^[FN5] The court suggested that the language of Bloom and the other Fourth Department cases had misstated the language of PL §70.45 in suggesting the existence of a statutory default to the maximum term, and overruled the earlier First Department decision in People v. Adams, supra . (Anthony Hill, supra , at 7, n.8).

In Hill, the First Department did not appear to withdraw from its previous position as to predicate offenders, however. In contrasting sentences imposed pursuant to PL §70.02 with those imposed pursuant to PL §70.04 or §70.06, the Hill court stated, in dictum:

As is evident, it is sensible to construe Penal Law

§70.45(2) to deem a five-year period of post-release supervision 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 pursuant to Penal Law §70.04 or §70.06 (see People v. Lingle, 34 AD3d 287 [2006]; People v. Sparber, 34 AD3d 265 [2006]). After all, no period of post-release supervision is authorized other than the five year period specified in subdivision (2).

Thus, although lacking the obvious clarity of the earlier decisions, the new rule in the First Department for handling unannounced post-release supervision cases now appears to be that where the defendant is a second felony or second violent felony offender, the mandatory five-year period of post-release supervision is automatically included by operation of law. (E.g., People v. Sparber, supra ). Where the defendant is a first violent felony offender, however, no period of post-release supervision is deemed imposed. (People v. Hill, supra ).

Recent decisions of the Second Department, however, have taken an entirely different tack, as will be discussed in section III.B., infra.

B.Constitutional Challenges

Resolution of the problem of the imposition of a term of post-release supervision previously unannounced by the court is not fully resolved by resort to statutory interpretation, however, as constitutional concerns are raised in such circumstances. In Earley v. Murray, 451 [*7]F3d 71 (2nd Cir. 2006)(Earley I), reh. denied, 462 F3d 147 (2006)(Earley II), the United States Court of Appeals for the Second Circuit ruling in a state prisoner's habeas corpus proceeding found constitutionally infirm the imposition of post-release supervision in the absence of any oral or written record of such term having been made by the judge at sentencing.

In Earley I, defendant had taken a plea in state court to a violent felony offense and been sentenced to a six-year determinate term of imprisonment. The sentencing judge neither announced orally at the time of sentence nor included in the written judgment or order of commitment any mention of the fact that the conviction also carried a five-year term of post-release supervision. Subsequently, the defendant learned that DOCS had made a notation in his correctional records indicating that his sentence included a five-year term of PRS. Upon his release from prison, he was re-incarcerated for violating the terms of his supervision. After unsuccessfully moving in state court pursuant to CPL §440.20 to have the period of post-release supervision removed, Earley sought a writ of habeas corpus in federal court, claiming that the imposition of the term of post-release supervision violated his federal constitutional right to due process. The district court denied the petition.

On appeal, the Second Circuit held that the enforcement of the term of post-release supervision term by DOCS had violated Earley's constitutional right to due process of law. The court relied principally on the Supreme Court's decision in Hill v. United States ex rel. Wampler, 298 US 460 (1936). There the Supreme Court had considered a habeas petitioner's request to strike language placed by a clerk on his commitment order which had added to the sentence pronounced by the judge a condition that the petitioner was to remain imprisoned until his fine was paid. In granting the writ, Justice Cardozo, writing for the Court, held that a commitment order could not supercede the judgment and sentence imposed by the sentencing court, stating:

The only sentence known to the law is the sentence or judgment entered upon the records of the court. . . . Until corrected in a direct proceeding, it says what it was meant to say, and this by an irrebuttable presumption.

. . .

The court speaks through its judgment, and not through any

other medium.

(Id., 298 US at 464 [internal citations omitted], 465; Earley I,

451 F. 3d at 74).

In Earley, the Court of Appeals acknowledged factual differences between Wampler and the case before it, in that the former case involved a clerk substituting his judgment for the exercise of discretion of the sentencing judge, while the latter involved imposition of a term required by state law. (Earley I, at 74-75). Nonetheless, the court reasoned that Wampler forbade any increase in a custodial term at the hands of an administrator. Post-release supervision, the court observed, permitted the possibility of revocation and further incarceration. (Id. at 75). The court thus concluded:

The only cognizable sentence is the one imposed by the judge. Any alteration to that [*8]sentence, unless made by a judge in a subsequent proceeding, is of no effect.

Thereafter, DOCS sought rehearing based on the statutory language that under New York law, "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision" (PL §70.45[1]), arguing, as the Third and Fourth Departments had held, and as the First Department would later concur, that the period of PRS was automatically included whenever a determinate sentence is imposed, without any necessity that it be pronounced by the sentencing judge. The Second Circuit found this argument to have been "cleverly formulated," but, hewing to Justice Cardozo's articulation of the standard in Wampler, rejected it. The Court stated:

Whether it is DOCS administrators or the operation of New York law that works the alteration the alteration is of no effect. . . . Only the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty.

In language acknowledging, if not following, the Earley cases, the Appellate Division, First Department decisions in Sparber, Lingle and Thomas noted the existence in each case of a written commitment order completed by the court clerk contemporaneously with the sentencing which reflected the five-year period of post-release supervision. In Lingle and Thomas, that order and the case worksheet, both of which reflected post-release supervision, were also signed by the judge. In each case the First Department stated that the writing satisfied "any constitutional requirement that a sentence be entered upon the records of the court' (Hill v. United States ex rel. Wampler, 298 US 460, 464 [1936]; compare Earley v. Murray, 451 F3d 71, 76 [2d Cir. 2006])." (People v. Sparber, supra , at 266). The First Department further opined that it saw no constitutional infirmity in using a written document to clarify an aspect of the sentence on which the court's oral pronouncement had been silent, since the provision was already included in the sentence by operation of law. (Id.).

Very recently, the Appellate Division, Second Department in reviewing several cases ^[FN6] in which, as here, neither the sentencing minutes nor the court's order of commitment mentioned the imposition of any period of post-release supervision, held that as a consequence, no period of post-release supervision had ever been included in the sentences, citing Wampler and Earley.

In People v. Smith, — AD3d —, 829 NYS2d 226 {37 AD3d 499} (2nd Dept. 2007), the court dismissed an appeal by a defendant sentenced to a determinate sentence of eight years on the [*9]ground that defendant was not challenging the sentence actually imposed. In People v. Noble, — AD3d —, 2007 WL 465904 (2nd Dept. Feb. 13, 2007), the court upheld denial of a CPL §440.20 motion, finding that because the sentence imposed had "never included, and does not now include, any period of post-release supervision," the defendant had received "precisely the sentence for which he bargained," and had failed to demonstrate any illegality in the judgment or sentence which was subject to redress under CPL article 440. The Second Department has ruled virtually identically in several other cases. (See People v. Benson, - AD3d —, 2007 WL 678107 [2nd Dept. Mar. 6, 2007][declining to address claim raised on appeal after trial on ground that PRS was not part of sentence]; People v. Sebastian, — AD3d —, 2007 WL 678043 [2nd Dept. Mar. 6, 2007][affirming denial of article 440 motion]; and People v. Wilson, - AD3d —, 2007 WL 610734 [2nd Dept. Feb. 27, 2007][same]).

These recent decisional developments have significantly changed the earlier, apparently consistent, appellate landscape for these cases by creating a clear split between the First, Third and Fourth Departments, on the one hand, which find PRS automatically included in a determinate sentence, at least in the case of multiple felony offenders, and the Second Department and Second Circuit, on the other, which find it never to have been imposed.

C.Remedies

The state and federal appellate rulings discussed above have generated numerous, and varied, thoughtful responses from the state trial courts which have struggled to reconcile these inconsistencies in handling challenges to unannounced post-release supervision terms. Subsequent to the Earley cases, these challenges have been raised, as here, by CPL §440.20 motion, before or after incarceration on a violation of the PRS term;^[FN7] by petition for writ of habeas corpus;^[FN8] and by commencement of an Article 78 proceeding.^[FN9] One court of coordinate [*10]jurisdiction has recently opined that any of these three procedural routes permits review of the legality of the PRS aspect of the sentence (see Waters II, supra ), while others have disagreed. (Compare, e.g., People ex rel. White v. Warden, supra [approving habeas corpus as remedy and suggesting CPL article 440 proceedings likely unavailable], with Caban, supra [holding habeas corpus remedy unavailable and suggesting pursuit by CPL article 440 motion]; see also, Quinones, supra [finding re-sentencing and amendment of the commitment order unavailable on Article 78 application]).

Because of the result this court reaches in the instant case, however, it need not opine on the issue of the proper procedural vehicle for addressing these situations. In this case, defendant has moved to set aside the PRS provisions of his sentence pursuant to CPL §440.20 on the ground that it was unauthorized, illegally imposed and invalid as a matter of law.

Thus, this court is not constrained in its choice of remedial action to limit its review to the propriety of the actions of the Department of Correctional Services and may, if appropriate, set aside his sentence.

To determine the relief, if any, to which defendant Edwards is entitled, this court must resolve the questions before it in light of the conflicting interpretations of Wampler and Earley found in the First Department's Sparber-Lingle-Thomas line of cases, which clearly bind this [*11]court, but which differ factually from this case, on the one hand, and the decisions of the Second Department in the Smith-Noble-Wilson line of cases, on the other, which are factually identical to this case, and would, in the absence of controlling precedent in the First Department, dictate the decision here. (See People v. Turner, 5 NY3d 476, 482 [2005]; Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664-65 [2nd Dept. 1984]). This court must also carefully consider the implications for this case found in the recent decision of the First Department in Anthony Hill.

At the outset, it seems clear to this court for several reasons that the determination of the First Department in the Sparber line of cases, decided with awareness of the Second Circuit's rulings in Earley, that a five-year mandatory term of post-release supervision was "necessarily included" in every determinate sentence imposed on a predicate felony offender, such as defendant here, applies whether or not a contemporaneous writing was generated evincing that fact. First, the Sparber decision plainly indicates that the court views PRS as included in the sentence by virtue of the express terms of the statute itself:

The Penal Law does not merely direct or require a court to impose PRS when imposing a determinate sentence; instead, it provides that "Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision" (Penal Law § 70.45 [1] [emphasis added]), which, in defendant's situation, is precisely five years (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 . . . . Furthermore, the court, acting through its court clerk, set forth the PRS provision in the commitment sheet, thereby satisfying any constitutional requirement that a sentence be "entered upon the records of the court" (Hill v. United States ex rel. Wampler, 298 US 460, 464 [1936]; compare Earley v. Murray, 451 F3d 71, 75-76 [2d Cir 2006]). We see 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, as here, the relevant portion of the written document performs the ministerial function of setting forth a provision already included in the sentence by operation of law . . . .

(People v. Sparber, supra , 34 AD3d at 265-266)(some citations omitted). By citing the language of Penal Law §70.45(1), that "[e]ach determinate sentence . . . includes, as a part thereof," a term of post-release supervision, and by emphasizing the italicized language, the court has definitively expressed its view that the statue renders PRS incorporated into every determinate sentence. Likewise, in its concluding pronouncement that the PRS provision is already included in the sentence by operation of law, the First Department made clear that the mandatory five-year period of PRS is a part of the determinate sentence, irrespective of any oral, or written, pronouncement of that condition at the time of sentence. The holding of the case is contained in the first two sentences quoted above.^[FN10]

[*12]Second, the Sparber court is not suggesting that the written commitment order by the clerk is necessary to satisfy the due process requirements of Wampler and Earley: a clerk's notation on the commitment order is precisely what those cases condemned as insufficient to meet constitutional concerns in the imposition of a custodial sentence. The First Department finds no violation of Wampler, not because the PRS term was reflected in a writing, but because in its view, the PRS was, implicitly, imposed by the judge in pronouncing the determinate term.

Third, the First Department's subsequent decision in Hill

acknowledged, in dictum, that "it is sensible to construe PL §70.45(2) to deem a five-year period of post-release supervision to have been imposed" by operation of law in the case of a second felony offender being sentenced for a violent felony offense pursuant to PL §§70.04 or 70.06 (People v. Hill, supra , at 8). No mention was made in that connection of any further requirement that the PRS term be evidenced in some written form generated at the time of sentence.

This interpretation of the First Department's position, and the soundness of it, also finds some support in the decision of the Court of Appeals in People v. Catu, supra . There, the Court examined the purpose and legislative history of PL §70.45, as well as the role of the statute in the new determinate sentencing scheme established by the Legislature. The Court of Appeals explained:

Postrelease supervision is a direct consequence of a criminal conviction. In eliminating parole for all violent felony offenders in 1998, the Legislature enacted a scheme of determinate sentencing to followed by periods of mandatory postrelease supervision (see L. 1998, ch. 1 [Jenna's Law]), and defined each determinate sentence to "also include, as a part thereof, an additional period of post-release supervision" (Penal Law §70.45[1]; see also Senate Mem. In Support, 1998 McKinney's Session Laws of NY, at 1489 [describing postrelease supervision as a "distinct but integral part of the determinate sentence"]). Whereas the term of supervision to be imposed may vary depending on the degree of the crime and the defendant's criminal record (see Penal Law §70.45[2]), imposition of supervision is mandatory and thus "has a definite, immediate and largely automatic effect on defendant's punishment." (People v. Ford, 86 NY2d 397, 403 [1995]).

Therefore, although research has not revealed any First Department case addressing a [*13]complete absence of mention of post-release supervision at time of sentence, it seems clear that, at least until the New York Court of Appeals opines directly on the issue, the First Department case law would treat §70.45 as "necessarily including" the mandatory term of five years' PRS in any determinate sentence imposed on a second felony offender convicted of a violent felony, regardless of whether or not the clerk or the judge had made a written notation memorializing its inclusion in the sentence. Accordingly, this court's decision is controlled by the First Department case law, rather than that of the Second Department.

Having reached the conclusion that defendant Edwards' sentence necessarily included, by operation of law, the mandatory term of five years of post-release supervision, there remains the constitutional concern of whether the automatic imposition of the term, and its subsequent enforcement by DOCS, violate the defendant's rights to due process of law. Although the First Department, whose views of federal constitutional law must prevail in this court over decisions of intermediate federal appeals courts in the absence of a dispositive ruling by the United States Supreme Court (see People v. Kin Kan, 78 NY2d 54, 60 [1991]), has suggested that it may disagree with Earley's interpretation of Wampler,^[FN12] this court joins other courts of coordinate jurisdiction in recognizing that regardless of the New York State appellate courts' views of unannounced post-release supervision under Wampler, the federal courts of this circuit are poised to vacate any such term upon federal habeas review, absent compliance with Earley. (See People v. Giles, supra ; People v. Keile, supra ; People v. Cephus, supra ). For this reason, were this court merely to deny defendant's motion, and opine that post-release supervision had already been made part of his sentence prior to the notation by DOCS so indicating on defendant's legal date computation form, the federal courts would likely disagree. The situation would be perplexing and unmanageable: PRS would be included in defendant's sentence according to the law in the First Department, but it would not be included according to the law in the Second Circuit, absent a judicial proceeding so ordering.

Adhering to established First Department precedent, as this court must, requires denial on statutory grounds of defendant's motion for vacation of the PRS portion of his sentence of which he was informed by DOCS, because in his case, the mandatory five-year period of post-release supervision was automatically, and validly, imposed by operation of law under CPL §70.45(1) at the time the judge pronounced his determinate prison sentence, resulting in an authorized, legal and valid sentence. Indeed, were this court to grant his motion, it would render his sentence illegal.

Defendant has included in his arguments a claim that his constitutional rights to due process of law and equal protection are violated by the inclusion outside of the sentencing record [*14]of a period of post-release supervision. He has provided no factual or legal support for his vague and conclusory equal protection claim, which is denied. (CPL §440.30[4][a],[b]). With respect to due process, however, defendant raises a claim which the Second Circuit would very likely find colorable based upon Wampler and Earley.^[FN13]

In Earley I, the Second Circuit suggested a remedy to assure the legality of sentences while adhering to the due process rights of the defendant. The court observed that the Supreme Court in Wampler had acknowledged that "[a]ny deficiency in the sentence could have been corrected through the proper procedures." (Earley I, 451 F.3d at 76, n 1). As noted, the Earley court held that the proper procedure would require a re-sentencing proceeding as contemplated by law, with the judge presiding and defendant and counsel given notice and an opportunity to appear. (Id., at 76). The Second Circuit suggested that New York had an appropriate vehicle for making such a correction in CPL §440.40, which permits the prosecution to move for re-sentencing to correct an invalid sentence within one year of its entry.

In this case, however, the limitations period of CPL §440.40 has long since expired. Further, CPL §430.10 provides that "[e]xcept as otherwise specifically authorized by law," a sentence of imprisonment which has been imposed "in accordance with law . . . may not be changed, suspended or interrupted once the term or period of the sentence has commenced." Some courts of coordinate jurisdiction have concluded that these statutory provisions bar any judicial action to conform the sentence to law. (See People v. Crawford, supra ; People v. Ryan, supra , at 454-455).

The First Department's decision in Anthony Hill, however, has recognized "an exception to the statutory prohibition of CPL §430.10" in such circumstances. (Anthony Hill, supra , NY slip Op. at 11). In Hill, the First Department found a constitutional infirmity in the application of Sparber's rule of automatic inclusion of post-release supervision in a determinate sentence in the case of a first violent felony offender, as to whom the statute permitted the sentencing judge to exercise discretion within a range of PRS terms. Accordingly, the Hill court authorized a nisi prius court, sua sponte, to modify a previously imposed sentence which had not expressly included a term of post-release supervision, and which, the court held, was, for that reason, illegal, relying upon the decisions of the Court of Appeals in People v. Williams, 87 NY2d 1014 (1996), and People v. DeValle, 94 NY2d 870, 871-872 (2000). In those cases, the Court of Appeals recognized that a trial court has "the inherent power to correct an illegal sentence." (People v. Williams, supra , 87 NY2d at 1015).

In Williams, the sentencing court had discovered that it had incorrectly sentenced the defendant to an indeterminate term of three and one-half-to-seven years as a predicate felon, rather than as a first felony offender. Acting sua sponte, it then re-sentenced him to a term of three and one-half-to-ten and one-half years. The Court of Appeals upheld the modification of the sentence, finding that "the trial court had the inherent power to correct an illegal sentence." (People v. Williams, 87 NY2d at 1015; see People v. Richardson, 100 NY2d 847 [2003][adding that the modification must bring the sentence within the legal range which the defendant had [*15]understood would be available upon conviction]; People v. DeValle, supra [same]; People v. Whitfield, 276 AD2d 365 [1st Dept.], lv. denied 96 NY2d 740 [2000][same]).

Citing Williams, Richardson and DeValle, along with People v. Wright, 56 NY2d 613 (1982), a case which had upheld the court's sua sponte correction of its sentence to remedy an illegality where it had inadvertently misspoken in imposing concurrent, rather than consecutive sentences, the First Department in Hill announced an exception to CPL §430.10. It recognized the authority of a trial court to modify a sentence to correct its mistake in failing to expressly include a term of post-release supervision, in order to eliminate the illegality in the sentence.^[FN14] (Anthony Hill, supra , slip op. at 7).

In this case, defendant Edwards bases his claim that his sentence was unauthorized, illegally imposed and otherwise invalid as a matter of law under CPL §440.20 on the holding in the Earley cases that an unannounced PRS term, even if statutorily legally imposed, violates due process because it was not a part of the sentence pronounced by the judge. If defendant were to be re-sentenced to a term expressly including the PRS, no constitutional issues would remain under Earley, or its reading of Wampler. And, pursuant to Anthony Hill, such a proceeding would be a permissible procedural exception to CPL §430.10 under Williams and related cases, if done to correct the illegality recognized by the Second Circuit in Earley I and II.

Moreover, there would be no violation of CPL §430.10 in Edwards' case for the further reason that, on its facts, the re-sentencing will not have "changed, suspended or interrupted" defendant's sentence already imposed under New York statutes. (See People v. Giles, supra ). In any event, re-sentencing in this matter is "otherwise specifically authorized by law" because "courts have the inherent authority to remedy an illegal sentence by permitting modification." (People v. Richardson, supra , at 793). The modification here is, in actuality, merely a clarification for the record of the sentence previously imposed involving the maximum PRS term authorized by law, a sentence which was clearly available to defendant at the time of his conviction (see People v. DeValle, supra ), and which has already been statutorily imposed.

As the Court of Appeals recognized in People v. Catu, supra , in enacting the Sentencing Reform Act of 1998, "the Legislature enacted a scheme of determinate sentencing to be followed by periods of mandatory post-release supervision . . . and defined each determinate sentence to also include, as a part thereof, an additional period of post-release supervision'. . . ." (Id., at 244).

According to the author of the practice commentary on the new law, the Legislature expressed a dual purpose in incorporating a period of post-release supervision into each determinate sentence:

When an offender is returned to the community the State must provide for the welfare of that community and maintain its quality of life . . . . The communities that encounter [*16]these former inmates deserve protection from further victimization and maximum assurance that offenders will be successfully reintegrated into society.

For the foregoing reasons, defendant's motion pursuant to CPL §440.20 seeking to excise from his sentence the five-year term of post-release supervision mandated by PL §70.45 is denied.

Defendant will be brought before this court for clarification of his sentence in a judicial re-sentencing proceeding. He will be re-sentenced to the same determinate sentence previously imposed, with the mandatory period of post-relief supervision required by CPL §70.45 stated clearly for the record. The clerk is directed to assign counsel pursuant to County Law 18-B for the re-sentencing.

This opinion constitutes the decision and order of the court.

Marcy L. Kahn, J.S.C.

Dated: March 21, 2007

New York, New York