ISSUES PRESENTED

The common issues between these two unrelated cases are as follows:

1) Whether a period of post-release supervision ("PRS") is automatically imposed with each determinate sentence despite the Court's failure to advise the defendants of this mandatory condition?

2) When a court fails to include a PRS period in a defendant's sentence, is it lawful for DOCS to impose a PRS period by administrative fiat?

3) When a court fails to impose a PRS condition, are the consequences the same for those who pleaded guilty with those who are convicted after trial?

Defendant Kwame Davis moves for an order pursuant to C.P.L. § 440.20(1) to vacate the five-year PRS period administratively added to his sentence by the Department of Correctional Services ("DOCS") while incarcerated pursuant to his plea of guilty to Assault in the Second Degree, or in the alternative, to clarify that his sentence does not include any PRS period.

Defendant George Wilson, convicted of Assault in the First Degree after trial, files a C.P.L. § 440.20 motion to vacate his sentence on similar grounds, and to correct his illegal sentence by incorporating his PRS period into the remainder of his sentence.

In deciding these applications, the Court has considered both defendants' motions and the People's answers ^[FN1] and holds that both motions must be denied without prejudice until DOCS is served and given an opportunity to appear and to present its position.^[FN2]

BACKGROUND

Defendant Davis entered a plea of guilty to Assault in the Second Degree (P.L. § 120.05[2]), a class D violent felony (see P.L. § 70.02[1][c]) on May 10, 2002. The promised sentence was four years incarceration. It is undisputed that this Court, in both the plea and [*2]sentencing proceedings, failed to notify defendant that his sentence would include any PRS term. The commitment order prepared and signed by the clerk also contains no condition of PRS. The defendant contends that DOCS, however, administratively imposed five years of PRS to Davis's sentence.^[FN3] In his C.P.L. § 440.20 motion, Davis does not move to withdraw his guilty plea, but instead requests that this Court declare the PRS period imposed by DOCS a nullity. The People concede that, in light of the recent Second Department decisions discussed fully below, Davis's sentence "never included, and does not now include" any period of PRS.

Defendant Wilson caused serious injury to his ex-girlfriend on September 7, 1998. Wilson was found guilty after a jury trial of, inter alia, Assault in the First Degree (P.L. § 120.10), a class B violent felony (see P.L. § 70.02[1][a]). This Court sentenced Wilson to a period of incarceration of fifteen and a half years. The Court did not impose the mandatory PRS period as part of Wilson's sentence either orally or in writing. As a result, Wilson argues that absent the imposition of any PRS component, his sentence is illegal and requests this Court to modify his sentence to incorporate the PRS into the remainder of his prison term, thus deducting five years from his period of incarceration.^[FN4] In his appeal and previous C.P.L. § 440.20 motion,

Wilson never contested any imposition of the mandatory PRS period by DOCS based on the Court's failure to include this condition in his sentence.^[FN5]

However, to protect a defendant's due process rights and to allow him to "knowingly, voluntarily and intelligently choose among alternative courses of action", he must be aware of [*3]the post-release supervision component prior to his plea (Catu, 4 NY3d at 245 [A defendant may have declined to plea guilty if he knew that an additional PRS period will be a part of the

negotiated sentence.]). Therefore, a defendant is entitled to withdraw his plea whenever the trial court fails to advise him of the PRS component when the plea was entered (Catu, 4 NY3d at 244; see also People v. Van Deusen, 7 NY3d 744, 745 [2006] ["{T}he failure of a court to advise of postrelease supervision requires reversal of the conviction...even though the defendant did not establish that he would have declined to plead guilty."]).

The first question that the Court must address is whether Davis's (and Wilson's) challenge(s) herein are properly brought in a C.P.L. § 440 motion. Recently, the Court of Appeals in People v. Louree (8 NY3d 541 [2007]),held that the proper vehicle for challenging a court's sentence imposing PRS, when no mention is made of such condition in the plea agreement, is an appeal and not a C.P.L. § 440 motion.^[FN6]

Unlike the facts in Louree, PRS was not mentioned in the sentencing proceedings of Davis or Wilson. Although this is a matter of record, it is unclear when the condition of PRS was imposed by DOCS.^[FN7] In any event, PRS was not imposed by the Court and the Louree holding is not applicable under the facts of the cases sub judice. Thus, the defendants' challenges regarding the impositions of PRS need not be brought via direct appeal.

While the Court of Appeals has not discussed the validity of a PRS period administratively added by the DOCS, the Second Circuit Court of Appeals has held that the Constitution mandates "[t]he only sentence known to the law is the sentence or judgment entered upon the records of the court" and a sentence without the PRS component thus "never included, and does not now include, any period of post release supervision" (Earley v. Murray, 451 F3d 71, 76 fn1 [2006], cert den 127 S. Ct. 3014 [2007]; see also People v. Benson, 38 AD3d 563 [2007]).

The Appellate Divisions of the First, Third and Fourth Departments do not follow Earley and refuse to declare DOCS' administrative impositions of PRS a nullity. The Third and Fourth Departments simply held that PRS is added to a determine sentence automatically by operation of law (see Garner v. New York State Department of Correctional Services, 39 AD3d 1019 [3d Dept. 2007] [DOCS was only "enforcing, not imposing" the PRS sentence "automatically included by statute" and the prohibition of PRS was simply an "unavailable remedy."]; see also People v. Carollo, 23 AD3d 1129 [4th Dept. 2005] [Although the County Court failed to advise [*4]the defendant at the time of the plea, the five-year period of post-release supervision was not illegal because it was a "mandatory" part of the defendant's sentence.]).

The First Department has held that "[t]he Penal Law does not merely direct or require a court to impose PRS when imposing a determinate sentence," instead, it provides that "[e]ach determinate sentence also includes, as part thereof, an additional period of post-release supervision" (People v. Sparber, 34 AD3d 265, 265 [1st Dept. 2006], citing P.L. § 70.45[1]). Thus, the trial court's silence with respect to PRS does not necessarily render this period a nullity. When a PRS term appears in the commitment order, it has overcome any constitutional infirmity upon which the court's oral pronouncement was silent (Sparber, 34 AD3d at 266; see also People v. Lingle, 34 AD3d 287, 288 [1st Dept. 2006]). Thus, "written documents to clarify the aspect of a sentence" can be used to set forth "a provision already included in the sentence by operation of law" (Id.). However, where both the oral and written sentence fail to specify a period of PRS, "no period of post-release supervision is deemed to have been imposed" (People v. Hill, 39 AD3d 1, 12 [1st Dept. 2007]). Yet, since a sentence without the mandatory PRS component is unlawful, "the judge has the authority to modify it, sua sponte or otherwise" to include the proper PRS (Id. at 13).

The Second Department once held that "[a] determinate sentence without the postrelease supervision constitutes an illegal sentence" and a trial court had the inherent power to correct the unlawful sentence by adding the proper PRS period (People v. Otis Bell, 305 AD2d 694 [2d Dept. 2003]; see also People v. Hollis, 309 AD2d 764, 765 [2d Dept. 2003]). The Second Department has now departed from this view in more recent cases.

Relying on Earley and Hill v. United States ex rel. Wampler (298 US 460 [1936]), the Second Department now holds that a sentence without PRS does not demonstrate any illegality in the judgment or sentence term and that the sentence imposed "never included, and does not now include" any PRS when it was not in the sentencing minutes and the commitment order (see People v. Martinez, 40 AD3d 1012 [2007]; People v. Brown, 39 AD3d 659 [2007]; see also People v. Sebastian, 38 AD3d 576 [2007]; People v. Wilson, 37 AD3d 855 [2007]; People v. Noble, 37 AD3d 622 [2007]). The Second Department's split with the other departments may ultimately be resolved by the Court of Appeals (see People v. Sparber, 8 NY3d 885 [2007]; People v. Lingle, 8 NY3d 847 [2007]; People v. Thomas, 8 NY3d 850 [2007]).^[FN8]

Nonetheless, the First and Second Departments have both agreed that DOCS does not have the authority to impose a PRS period as part of defendant's sentence in the absence of a specific judicial order. Hence, the PRS period added administratively by DOCS in Davis is "a nullity" and "quite simply, never a part of the sentence" (Earley, 451 F3d at 76; see also Hill, 39 AD3d at 12).

This Court's inherent power to remedy an illegal sentence sua sponte is limited to "modifications to bring the sentence within the legal sentencing range that the defendant understood would be available upon conviction" (People v. Richardson, 100 NY2d 847, 851 [*5]

[2003], citing Campbell v. Pesce, 60 NY2d 165, 169 [1983]; see also People v. Moss, 234 AD2d 610, 611 [1996]). Therefore, the modification should be limited to "situations where the record in the case clearly indicates the presence of judicial oversight based upon an accidental mistake of fact or an inadvertent misstatement that creates ambiguity in the record" (Richardson, 100 NY2d at 853; see also People v. Wright, 56 NY2d 613, 614 [1982] [Although the trial judge mistakenly stated that the sentence imposed was to run concurrently, the record indicates that the defendant understood that the sentence was to run consecutively and thus the court has the inherent power to correct this inadvertent error.]; People v. Riggins 164 AD2d 797, 797-798 [1st

Dept. 1990] [The sentencing judge has no power to correct an unlawful sentence because the error is not discernible from the face of the record, nor did the action of the court correspond to any understanding or expectancy of either the People or the defendant.]).

Davis' Application

Here, without notifying Davis that he would be subjected to a PRS term as a consequence of his plea, the Court's failure cannot be considered as a mere mistake of fact or an inadvertent misstatement (Hill, 39 AD3d at 8 [2007] [A judge's failure to mention PRS is an "apparent mistake of law, not of fact, and was not an inadvertent misstatement' of the type which our reason tells us is a mere mistake.'"] {Citation omitted}; see also Richardson, 100 NY2d at 851). An illegal plea in violation of the Criminal Procedure Law may not be vacated by the Court, nor may the original charges be reinstated after sentence has commenced (Matter of Kisloff v. Covington, 73 NY2d 445, 450 [1989], citing Campbell, 60 NY2d at 167). Therefore, in Davis this Court does not have the authority to resentence defendant to include a period of PRS.

Wilson's Application

Instead of moving to set aside his PRS period, Wilson requests this Court to correct his illegal sentence by incorporating the PRS period into the remainder of his sentence. Since P.L. § 70.45 clearly specifies that the mandatory PRS period shall run in addition to the determinate sentence after a defendant is released, Wilson's request is clearly inconsistent with the provision of the statute and cannot be recognized as a valid remedy (see People v. Keile, 13 Misc 3d 1204(A) [2006] ["{D}efendant has no right to have the sentence modified so that the combined period of imprisonment and post-release supervision does not exceed the promised sentence...the court decides what sentence is appropriate in a particular case" and the defendant "cannot dictate what sentence the court shall impose."]).

Wilson's circumstances are distinguishable from that of Davis because Wilson was not convicted as a result of a guilty plea. Under the due process requirement, a defendant who enters a plea of guilty must be informed of the mandatory PRS term in order to "possess all the information necessary for an informed choice among different courses of action" (Van Deusen, 7 NY3d at 746). Here, Wilson's sentence was not a product of a plea bargain, but the result of a conviction after trial. Since he was bound by the jury's verdict to receive the sentence mandated by the statute, the Court's failure to inform him of the mandatory PRS was clearly not violative of defendant's due process rights.

Further, the Court of Appeals has held that trial courts have the inherent power to correct an illegal sentence as long as the modification is within the "legitimate expectations of what the final sentence should be" (see People v. Williams, 87 NY2d 1014, 1015 [1996]). Here, the defendant was aware that the sentence range for a conviction of Assault in the First Degree was [*6]from five to twenty five years (see P.L. § 70.02[3][a]). Even after adding five years of PRS to his fifteen and a half years incarceration, Wilson's sentence would still be within the maximum term he had been expected to serve. Even though the Second Circuit has indicated that a court may correct a sentence upon notice and returning a defendant to court (see Earley, 451 F.3d at 76), the Second Department has held that the Court may not correct Wilson's sentence to include an additional period of PRS even in a sentence after a jury verdict (see Benson, 38 AD3d 563 [Since the sentencing minutes and the commitment order did not mention the imposition of PRS after the defendant was convicted upon a jury verdict, the sentence actually imposed"never included, and does not now include," any period of PRS.]). This Court is bound by the Benson holding as is Wilson.

In light of the decisions of the Second Department in this area, the People concede that the failure of the Court to impose a PRS component to Davis's sentence during the plea allocution does not allow DOCS or the Court to impose such a sentence at this juncture. The People agree with Davis that the PRS period administratively imposed by DOCS to Davis's sentence is a nullity. However, this Court will not grant Davis's motion without first affording DOCS an opportunity to appear and be heard on their "right" to impose a mandatory period of PRS pursuant to P.L. § 70.45.^[FN9] Thus, the Court hereby denies Davis's motion without prejudice to renew with a directive for Davis to serve DOCS with such motion and to annex a copy of this decision herein.^[FN10]

The Court also denies Wilson's motion to incorporate the PRS into the remainder of his prison term. However, the Court does not bar Wilson from renewing his motion to clarify whether DOCS has in fact imposed a period of PRS. If Wilson chooses to do so, then he must serve DOCS with the motion to renew and inform DOCS that they are to appear to present their position before the Court. Wilson is also directed to serve DOCS with a copy of this decision along with any motion to renew.

The motions of the defendants are denied without prejudice to renew pursuant to this Court's directives herein.

This shall constitute the Decision and Order of the Court.

E N T E R

_____________________ [*7]

J. S. C