By Notice of Motion dated January 25, 2007, defendant has moved before this Court to set aside his sentence pursuant to Criminal Procedure Law Section 440.20 on the ground that his sentence was unauthorized, illegally imposed or otherwise invalid as a matter of law. Specifically, defendant claims that his sentence is illegal because "NYS-DOCS MAY NOT add post-release supervision to a sentence that the Sentencing Court did not impose." (See, Defendant's Affidavit at ¶6). The People have filed an Affirmation in Opposition dated April 13, 2007. Pursuant to Criminal Procedure Law Section 440.30(7), the Court makes the following findings of fact and conclusions of law:

Findings of Fact:

On October 9, 1999, at around midnight in front of the Signal 13 Bar in Nyack, New York, defendant stabbed Edward Grigsby in the stomach and cut his thumb almost severing it. He was thereafter indicted by a Rockland County grand jury and charged with one count each of attempted murder in the second degree and assault in the first degree.

On July 19, 2000, after a jury trial, defendant was convicted of first degree assault and was acquitted on the murder charge. On August 10, 2000, the court (Meehan, J.) sentenced defendant to a determinate term of twelve and one-half years in state prison. Both the sentencing minutes and the Sentence and Commitment Order are silent with respect to the imposition of post-release supervision. (See, Sentencing Minutes dated August 10, 2000 attached to defendant's Affirmation and the Sentence and Commitment attached as Exhibit A to the Affirmation of Carrie A. Ciganek, Senior Assistant District Attorney dated April 13, 2007). However, on or about September 11, 2000, when defendant was admitted to Downstate Correctional Facility, defendant received a Legal Date Computation indicating that his sentence included a five-year period of post-release supervision. (See, Exhibit B attached to the Ciganek Affirmation).

Defendant appealed his conviction to the Appellate Division, Second Department. Defendant raised numerous claims on appeal but the only claim raised with respect to sentencing was defendant's claim that his sentence was harsh and excessive. The Appellate Division, Second Department affirmed defendant's conviction. People v. Corker, 309 AD2d 816 (2d Dept. 2003). Defendant's application for leave to appeal to the Court of Appeals was denied. People v. Corker, [*2]2 NY3d 761 (2004). In October 2004, defendant filed a petition for a writ of habeas corpus in federal district court but none of the four claims defendant raised related to post-release supervision. According to the People's Affirmation in Opposition, that petition is still pending. (See, Ciganek Affirmation at ¶9).

Conclusions of Law:

Pursuant to Penal Law Section 70.00(6), when a defendant is sentenced as a violent felony offender, "the court must impose a determinate sentence of imprisonment . . . and such sentence shall include, as a part thereof, a period of post-release supervision in accordance with section 70.45." A determinate sentence that is imposed without the post-release supervision constitutes an illegal sentence. See, People v. Bell, 305 AD2d 694 (2d Dept. 2003), citing, P.L. §70.45.

In the instant matter, it is undisputed that defendant was sentenced to a determinate sentence of twelve and one-half years as a violent felony offender upon his conviction after trial of Assault in the First Degree, a class "B" violent felony offense. It is also undisputed that the sentencing minutes and the Sentence and Commitment order are silent with respect to post-release supervision. As such, this Court concludes that defendant's sentence is illegal as imposed.

"It is well settled that a court has the inherent power to correct an unlawful sentence." People v. Hollis, 309 AD2d 764 (2d Dept. 2003), citing, People v. DeValle, 94 NY2d 870, 871-872 (2000). Although the court's ability to correct an unlawful sentence is restricted when the unlawful sentence is the product of a negotiated plea agreement, see, People v. Hollis, 309 AD2d at 765, that is not the case in the instant matter. Rather, in the instant matter, defendant's sentence was the result of a conviction after trial. Unlike People v. Catu, 4 NY3d 242 (2005), where the Court of Appeals held that a defendant pleading guilty to a determinate sentence must be aware of the post-release supervision component of his sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the court's failure in this case to advise defendant of post-release supervision when his sentence was imposed had no effect on defendant's conviction after trial. However, since the court failed to advise defendant, at the time of sentence, that his sentence included a period of post-release supervision, this Court concludes that defendant's sentence, as imposed, must be modified.^[FN1]

Moreover, although Penal Law Sections 70.00(6) and 70.45 specifically provide that determinate sentences also include, as a part thereof, an additional period of post-release supervision, this Court further concludes that it was improper for the New York State Department of Correctional Services (hereinafter "DOCS") to add a five-year period of post-release supervision to defendant's sentence. Not only is it the function of the court to "pronounce sentence in every case where a conviction is entered," P.L. §380.20, but "a sentencing determination is a matter committed to the exercise of the sentencing court's discretion, for it is that court's primary responsibility." People v. Suitte, 90 AD2d 80, 83 (2d Dept. 1982) (Citations omitted). [*3]

In the instant case, as previously mentioned, DOCS added a five-year period of post-release supervision to defendant's sentence. Yet, pursuant to Penal Law Section 70.45(2)(f), the period of post-release supervision was not automatically five years. See, P.L. §70.45(2). Rather, the period of post-release supervision for a defendant convicted of a class B violent felony offense, as was the case here, "shall be not less than two and one-half years nor more than five years." P.L. §70.45(2)(f). As such, the period of post-release supervision was a matter committed to the discretion of the sentencing court, and it is the function of this Court, not DOCS, to pronounce such sentence.^[FN2] As the Appellate Division, First Department recognized in People v. Hill, Penal Law Section 70.45(2) "cannot be construed to authorize the Department of Correctional Services to impose the appropriate period of post-release supervision whenever a trial court fails to perform the duty the statute enjoins it to perform. No language in the statute supports such a construction, and determining the appropriate sentence within the ranges prescribed by the Legislature is quintessentially a judicial function." People v. Hill, ___ AD3d ___, 830 NYS2d 33, 39-40, n.7 (1st Dept. 2007).

Based on the foregoing, and pursuant to the provisions of Criminal Procedure Law Section 440.30(3), this Court grants defendant's motion to set aside his sentence to the extent that defendant's sentence must be modified, on the record, so as to include a period of post-release supervision in accordance with Penal Law Section 70.45(2)(f). As such,

IT IS HEREBY ORDERED that defendant is to be brought before this Court for resentencing on June 4, 2007 at 9:30 a.m.; and

IT IS FURTHER ORDERED that the People are directed to submit to this Court an Order to Produce to ensure defendant's appearance on the above-scheduled date; and

IT IS FURTHER ORDERED that the People are to serve a copy of this Decision and Order on the Rockland County Office of the Public Defender within seven (7) days of this Order; and

IT IS FURTHER ORDERED that the Rockland County Office of the Public Defender is hereby assigned to represent the defendant in this matter.

This Decision shall constitute the Order of the Court.

E N T E R

Dated: New City, New York

April 27, 2007

HONORABLE VICTOR J. ALFIERI, JR.

J.C.C.

TO: [*4]

Attn: Carrie A. Ciganek, Sr. ADA

Wykeme Corker, Pro Se Defendant