This application for the assignment of counsel and petition for a judgment pursuant to CPLR Article 78 are resolved as follows.

Application denied. Petition dismissed.

Article 78 proceedings do not qualify for assignment of counsel. They are to be determined on papers submitted by the inmate and the Attorney General. This proceeding does not fall within the purview of County Law Article 18-b or Executive Law §259-i.

On November 25, 2003, petitioner was sentenced to a determinate sentence of nine (9) years as a result of his conviction of the crime of manslaughter 1st degree in violation of Penal Law §125.20, a class B violent felony offense [Penal Law §70.02(1)(a)].

The commitment for petitioner's sentence is silent regarding post-release supervision ("PRS"). The sentencing minutes are also silent in that regard (Petition, Exhibits A and B).

Penal Law §70.45 imposes mandatory post-release supervision for inmates sentenced to a determinate sentence. In petitioner's circumstances, the period is five (5) years. [Penal Law §70.45(2).]

Petitioner is not challenging his underlying conviction. A plain reading of the petition indicates the relief he seeks is in the form of mandamus, that is, to compel action favorable to him. In this instance, it would be a judicial directive requiring the Department of Correctional Services ("DOCS") to withhold the automatic administrative imposition of five (5) years PRS set forth in Penal Law §70.45(2). The argument is unavailing.

The case of People v. Catu, 4 NY3d 242 (2005) is both instructive and binding. The sentencing court in Catu, as in petitioner's experience, failed to advise the defendant of the PRS component of his sentence. As a result of that omission, the defendant was deprived of the opportunity to "knowingly, voluntarily and intelligently choose among alternative courses of [*2]action." (People v. Catu, supra, pg. 245). The defendant's conviction was reversed on that basis. The fact that the defendant was subject to PRS was not in dispute.

Here, petitioner is challenging an administrative action imposed by statute. It is not the function of this court to alter the mandate of the New York State Legislature as codified in Penal Law §70.45(2). Petitioner's remedy is to address his underlying conviction as discussed in People v. Catu, supra.

Petitioner's remaining arguments are without merit.

On this application, the Court considered the order to show cause supported by an affidavit, verified petitioner with three (3) exhibits and verified answer with four (4) exhibits.

The foregoing constitutes the decision, order and judgment

of the Court.

Dated:Poughkeepsie, New York

May 22, 2007

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

TO:

051607 decision,order&judgment