In the past several months, there have been a great number of decisions, both published and unpublished, dealing with the question of whether a defendant is entitled to habeas corpus release when being held in custody after a finding that the particular defendant is in violation of [*2]the conditions of post-release supervision The argument has been that, since the sentencing judges involved in each of the criminal cases never said on the record that the defendants would be subject to post-release supervision after incarceration, the current detention is illegal because the judges involved had not officially included that term as a part of the sentence. The question has been answered in a myriad of different ways, and there is currently no consensus, even among the intermediate state appellate courts, of whether the defendants who make such an argument are entitled to be released from such confinement, and, if they are, under what circumstances. These are three of only seven cases before this single judge, and they were all submitted for decision in the last four weeks.^[FN1] Many more are calendared already for future weeks on the "writ" calendar, which is a part of Bronx County Supreme Court convened each Wednesday at Rikers Island, and they will be decided by several other judges. And there are petitions filed all over the state under consideration by judges in those jurisdictions which raise the same issues. Final, binding resolution of the question is very important, not only to the defendants involved in each case, but also to the public.

Post-release supervision was established by the legislature in 1998 as a mandatory follow-up period to a determinate sentence for violent felony offenders. This legislation is commonly known as "Jenna's Law." Violent felony offenders are now required to serve at least six-sevenths of a determinate prison sentence, followed by mandatory five year periods of post-release supervision for second violent felony offenders, and mandatory periods of between one and a half to five years post-release supervision for first time felony offenders. There are many thousands of defendants serving determinate sentences after being convicted of committing violent felony offenses following the enactment of Jenna's Law. And, by law, they are all subject to mandatory periods of post-release supervision.

The Court of Appeals ruling in People v. Catu, 4 NY3d 242 (2005), was issued nearly seven years after the legislature mandated that violent felony offenders be subject to mandatory post-release supervision. That case clarified that, at least in terms of bargained-for sentences, the defendant had to be actually advised that a mandatory period of post-release supervision would be part of the sentence; if a defendant is not so advised, then that defendant is entitled to petition to have the plea vacated. If the defendant does not seek this remedy, then that defendant would be subject to mandatory post-release supervision. Presumably, in light of Catu, all state trial judges have been careful to mention the mandatory post-release supervision period in such cases both at the time of the plea negotiations, and at the time of sentence.

But there are obviously many defendants who were sentenced to determinate sentences prior to Catu, and who could presumably be in the same positions as the defendants in these [*3]cases. These defendants were each sentenced to state prison as second violent felony offenders years before Catu was decided; Joyner was sentenced to five years in state prison following his conviction for attempted robbery in the second degree in New York County in 2000; Smith was sentenced to seven years in state prison following his conviction for burglary in the second degree in Kings County in 2000; and Ramos was sentenced to five years in state prison following his conviction for assault in the second degree in New York County in 2002. In each of these cases, brought before the court on habeas corpus applications, the defendants involved seek a remedy different than the one recognized as valid in Catu. They are not asking to have their pleas vacated because they were not informed they would be subject to mandatory periods of post-release supervision. Rather, they are seeking to be released from prison after having been returned to custody based on allegations that they each violated conditions related to their post-release supervision. The case law in this area has centered around the question of whether the department of corrections or department of parole had the authority to enforce the legislature's mandate that the definite sentences for defendants convicted of violent felony offenses committed after September 1, 1998 must include a period of post-release supervision where the court failed to specify that period on the record at the time of sentence. For this court, at this time, in these cases, the answer to that question is now "Yes."

The First Department, whose decisions bind this court, recently recognized the validity of a lower court determination holding that the imposition of a "mandatory period of post-release supervision [is] not [un]authorized simply because it was to be enforced by corrections or parole authorities." People ex. rel. Garner v. Warden, Riker's Island Correctional Facility, 2007 NY Slip Op 3789 (1st Dept. May 1, 2007). In that case, the defendant had been convicted of attempted burglary in the second degree following a plea of guilty in Supreme Court, Kings County on January 21, 2000. The trial judge did not state on the record that the defendant would be subject to a mandatory five year period of post-release supervision at the time sentence was pronounced, nor did the paperwork prepared by the court clerk on the sentencing date note that mandatory five year period of post-release supervision. The Department of Corrections, in their own paperwork, noted that the sentence would include a five year period of post-release supervision. Upon the defendant's release from prison on April 9, 2004, he filed a motion with the trial judge, pursuant to CPL § 440.20(1), to vacate the post-release-supervision-part of his sentence, on the ground that he had not been informed at the time he pled guilty that his sentence would include that mandatory period. That court denied the motion. Notably, the defendant never sought to have his plea vacated.

The defendant then commenced an Article 78 proceeding in Albany County to prohibit the New York State Department of Correctional Services from imposing the requisite period of post-release supervision. In affirming the Supreme Court's decision to dismiss the defendant's Article 78 application, the Third Department held that the New York State Department of Correctional Services was "only enforcing, not imposing, a part of [defendant's] sentence [and therefore] they have not performed a judicial function." Matter of Garner v. New York State Department of Correctional Services, ___ AD3d ____, 831 NYS2d 923 (3rd Dept. 2007).

The defendant subsequently commenced a proceeding in the "writ part" of the Supreme Court, Bronx County, to vacate a warrant issued after the defendant violated a condition of his post-release supervision, and was sent to the custody of the New York City Department of [*4]Corrections, arguing that the period of post-release supervision had been illegally imposed by the New York State Department of Correctional Services. It was the denial of that application that was affirmed by the First Department.^[FN2] And, as of now, that is the precedent that this court must follow in cases which are factually similar to Garner.

The relevant facts for each of these cases is, for all intents and purposes, the same. In each of these cases, the defendants were convicted of violent felony offenses following negotiated guilty pleas, and were sentenced as second violent felony offenders. They each received determinate sentences, as required by law. The trial judges involved did not, in any case, tell the defendants on the record that their sentences would include mandatory five year periods of post-release supervision. None of the paperwork prepared by the court clerks at the time of sentencing noted the five year post-release supervision periods. Either the New York State Department of Correctional Services or the New York State Division of Parole noted the applicable post-release supervision periods on their own paperwork prior to releasing the defendants from prison, and the defendants were each given copies of that paperwork Each of the defendants involved in these cases was subsequently taken into custody as a result of warrants issued for their arrests following allegations that they violated various conditions imposed in connection with post-release supervision, and they each challenge the legality of their detentions, and they ask for release pursuant to writs of habeas corpus. Given that these cases are factually indistinguishable from Garner, the court must conclude that these defendants are not being held in custody because of any illegal action on the part of the division of parole services or the department of corrections, but instead are being held in custody pursuant to alleged violations of the terms of their mandatory post-release supervision. Accordingly, their petitions requesting habeas corpus release from custody on the ground that their current detentions are illegal are dismissed. Matter of Garner, 2007 NY Slip. Op. 3789 (1st Dept., May 1, 2007).

This court is not unmindful of the many decisions of Supreme Court judges in Bronx County which have reached the opposite results. See e.g. People ex. Rel White v, Warden, Rikers Island, 15 Misc 3d 360 (Sup. Ct. Bronx Co 2007) (containing a list and discussion of recently decided cases). None of those decisions were issued after Garner, and appear to be at odds with that decision. The court is also mindful of the seemingly opposite results reached by the Second Department in People v. Noble, 37 AD3d 622 (2nd Dept. 2007) and People v. Wilson, 37 AD2d 855 (2nd Dept. 2007), but this court, of course, is not bound by those decisions in light of the First Department's binding ruling.

And, the court is also extremely mindful of the decision in Earley v. Murray, 451 F.3d 71, rehearing denied, 462 F.3d 147 (2nd Cir 2006), on remand, 2007 WL 1288031 (May 1, 2007, E.D.NY, Korman, J). in which the Second Circuit held that defendant Earley's federal constitutional rights had been violated when the sentencing judge failed to state on the record that the defendant's sentence included a period of post-release supervision, and the Department of Corrections had noted the period on its own paperwork. Of course, a New York State court is not bound in this instance by this ruling by the federal appellate court. People v. Kin Kan. 78 NY2d 54, 60 (1991). And, in light of Garner, it is questionable whether any trial judge in the First [*5]Department should be looking to Earley at all, even if that judge were to find the ruling persuasive. To the extent that this court should be considering that case, this court respectfully disagrees with Earley for several reasons.

First of all, it relies on Matter of Hill, Warden v. United States ex rel. Wampler, 298 U.S. 460 (1936), for its conclusion that the legislatively-mandated period of post-release supervision is somehow not part of the sentence if the judge does not specifically say so at the time of sentencing. In Wampler, the Court was faced with a very specific question; namely, whether "the provision in the commitment for imprisonment for non-payment of fines and costs which was inserted by the Clerk but not included in the sentence orally pronounced by the judge is (a) void or (b) merely irregular?" Id. at 463. In that case, the Court recognized that, at the time, a federal district court judge, as a matter of "discretion . . . [could] direct . . . that [a] defendant shall be imprisoned until [a] fine was paid." Id. In the District of Maryland, where the case originated, there was a "practice" for a clerk to include such a provision in the written judgment papers even though the judge in the case had not made an oral pronouncement of that term at the time of sentencing. Because the decision to imprison in this situation was a discretionary one, and because there was no indication that the judge in that case had exercised discretion and ordered Mr. Wampler imprisoned pending payment of the fine, the Court held that the clerk's notation did not legally reflect the actual sentence. Indeed, the Court specifically held that "[the choice of pains and penalties, when choice is committed to the discretion of the court, is part of the judicial function. This being so, it must have expression in the sentence, and the sentence is the judgment." Id. at 464. The Court distinguished this situation from those in which the terms of sentencing are specifically spelled out by "law" or a "written rule." Id. at 465 -66. Since there were no written rules or laws in Maryland mandating a period of incarceration pending payment of a fine in all cases, the defendant in that case was entitled to habeas corpus release.

In Earley, the Second Circuit acknowledged all of this. But, it found that the actual holding in Wampler was in fact much broader: "The judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment." Earley, 451 F.3d at 75. This court disagrees with that broader interpretation of the holding as applied to New York cases involving mandatory post-release supervision for several reasons. First of all, as Justice Cardozo stated in Wampler, the holding itself has to be limited to the facts of the case, and those facts indicated that the period of incarceration noted by the court clerk was really a matter of judicial discretion, and not mandatory. Wampler, 298 U.S. at 464 -65 ("The questions [certified to the Court] are to be read . . . in light of the preliminary statements certifying the facts out of which the questions have arisen."). Second, the cases cited within Wampler for the proposition that mandatory conditions of sentences written in either the law or memorialized in rules had to be imposed regardless of whether there was an oral pronouncement by the court are still good law. See, e.g. Rio Grande Irrigation Co. v. Gildersleeve, 174 U.S. 603 (1899); Detroit Heating & Lighting Co. v. Kemp, 182 F. 847 (D. Maryland 1910)(each cited in Wampler). And, Wampler also recognized that the remedy available in cases in which there was a legal error in a sentencing proceeding that resulted in the pronouncing of an illegal sentence is for the sentencing court to "correct [the sentence] so it may speak the truth." Wampler, 298 U.S. at 464 (citing People ex. rel. Trainor v. Baker, 89 NY 460 (1882)). Simply put, Wampler did not deal with a situation in which a state statute mandated a definite, non-discretionary sentencing [*6]result.

Moreover, in Earley, the court acknowledged that New York has recognized procedures for courts to correct defects when an illegal sentence is imposed. The court, however, incorrectly found that this power is limited to situations in which the prosecutor seeks to correct an invalid sentence by moving to do so within one year of the sentencing, pursuant to CPL § 440.40. Earley, at 77 n.2 . The court's inherent power is in fact much broader. Indeed, a New York State trial court has the authority to make corrections involving illegally imposed sentences at any time, as part of its inherent powers. See e.g. People v. Wright, 56 NY2d 613 (1982); People v. Hill, ___ AD3d ____, 830 NYS2d 33, 41 (1st Dept. 2007); People v. Andre Rodriguez, 2007 NY Slip Op 50640U (Sup. Ct. Bronx County 2007). ^[FN3] And, where such a correction is possible, a defendant will not be entitled to release pursuant to habeas corpus. See Trainor, 89 NY at 464 - 65 (cited in Wampler, 298 U.S. at 464).

Here, there has been a law on the books in New York State for nearly 9 years that mandates that a period of post-release supervision is a "definite, mandatory and largely automatic effect on defendant's punishment." Catu, 4 NY2d at 244. In other words, each sentence must include such a period. No judge has discretion to eliminate post-release supervision from a sentence for a person convicted of committing a violent felony offense. And no one — no court clerk, no corrections officer, no one working with the State Division of Parole — can add post-release supervision to a judge's sentence for a violent felony offender since, by law, each sentence must already include such a period. In fact, it appears that the Division of Parole would itself be in violation of the law if it did not enforce the statute mandating post-release supervision and supervise all violent felony offenders following their release from state prison, as "Jenna's Law" requires.

Every judgment of conviction for a second violent felony offense includes a discretionary period of determinate incarceration, within a minimum and maximum range set by the legislature, and a mandatory five year period of post-release supervision. In these cases, the judgments of conviction included both the incarceratory periods actually pronounced, and the five year period of post-release supervision period mandated by law. Since that is the law, habeas corpus release is entirely inappropriate. Therefore, each of these defendant's petitions for habeas corpus release are dismissed.

Dated: Bronx, New York

May 8, 2007____________________________________

Hon. Ralph Fabrizio [*7]

Acting Justice of the Supreme Court