This motion by petitioner for an order pursuant to CPLR §2221(d)(2), granting reargument of petitioner's Article 78 proceeding, withdrawing the decision and order of this Court dated May 21, 2007 and issuing a new decision granting Article 78 relief, is resolved as follows.

Motion to reargue granted, and upon such reargument, the court adheres to the determination in its decision, order and judgment, dated and entered May 21, 2007. [*2]

Petitioner was sentenced to a determinate sentence of nine (9) years as a result of his conviction of the class B violent felony offense of manslaughter 1st degree on November 25, 2003. The sentencing minutes are silent with respect to five (5) years post-release supervision ("PRS") pursuant to Penal Law §70.45(2).Petitioner urges that the New York State Department of

Correctional Services ("DOCS") thereafter arrogated to itself the sentencing judge's authority by unilaterally imposing the PRS to his sentence. (Reply Affirmation, ¶10.) The argument is contrary to the decisional and statutory authorities of this state.

On this application, the respondent has provided a copy of petitioner's plea allocution, dated November 6, 2003. The presiding justice clearly informed petitioner that he could have been sentenced up to twenty-five (25) years in jail. The judge promised petitioner a determinate sentence of nine (9) years and further, informed him of the PRS component, as part of his guilty plea. Petitioner indicated he understood and then plead guilty. (Answering Affirmation, Exhibit A, pg. 6.)

The imposition of five (5) years of PRS pursuant to Penal Law §70.45(2) is mandatory because of the type of crime to which petitioner plead guilty.

DOCS has no administrative discretion in that regard. The rule in the Second Judicial Department unequivocally provides that a determinate sentence without the PRS component constitutes an illegal sentence. (People v. Bell, 305 AD2d 694 [2d Dept. 2003] lv to app den 100 NY2d 592 [2003].)

In Bell, supra, the defendant did not seek to either vacate or void the plea bargain he negotiated. He attempted to have the PRS component of his sentence struck because he was never advised of the mandatory terms of PRS. The appellate court found the claim without merit.

In this proceeding, the record reveals that petitioner was explicitly forewarned of PRS on the occasion of his plea allocution. Petitioner is not challenging his underlying conviction. His use of an Article 78 proceeding to circumvent the prescribed PRS element is incorrect. It would appear that petitioner is attempting to adhere to the benefit of the plea bargain he knowingly entered without the consequence of PRS which was an articulated component of that agreement. If petitioner is unhappy with his plea, he may pursue, if so disposed, the remedy discussed by the Court of Appeals in People v. Catu, 4 NY3d 242 (2005), cited by this Court in its decision, order and judgment of May 21, 2007. The more recent decision in People v. Louree, 8 NY3d 541, 545-546 (2007) provides instructive guidance.

On this application, the Court considered the notice of motion supported by an affirmation with two (2) exhibits, affirmation in opposition with two (2) exhibits, and reply affirmation.

The foregoing constitutes the decision and order

of the Court.

Dated:Poughkeepsie, New York

August 16, 2007

ENTER

Hon. James D. Pagones, A.J.S.C.

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