The above named defendant, proceeding pro se, has moved this court to "modify a sentence of Post Release Supervision...". The defendant was convicted upon a plea of guilty to the C violent felony of Robbery in the Second Degree (PL 160.10(2)(a)), and sentenced on July 10, 2001, to a determinate sentence of three and one-half years. It is not disputed that no mention was made at the time of the plea or the sentencing about post release supervision, nor that upon his release from state prison, five years of post release supervision was imposed upon him by the Department of Correctional Services.^[FN1]

The defendant now seeks to have the court impose the "minimum of 2 ½ yrs of PRS

instead of the excessive 5 yrs that the DOCS imposed." Although he does not mention sections of law, he has effectively moved pursuant to CPL 440.20(1) & (4), to vacate his sentence, and thereafter be re-sentenced. Such would apparently result in his release from the incarceration imposed as a result of a recent parole violation, he now having served over two and one half years of his post release supervision.

The People argue that the CPL 440 relief is not available. Such is based upon the authority of the recent case of People v. Louree, (8 NY3d 541 [2007]), which held that an objection pursuant to People v Catu (4 NY3d 242 [2005]) may not be raised by way of a CPL 440 motion, but only by a direct appeal of the conviction.

Catu however, involved a motion to vacate the judgment of conviction, which is governed by different standards than a motion, as is presented here, to set aside the sentence. The court is required to deny a motion to vacate a judgment of conviction if [*2]

"sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, [and] no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him..." CPL 440.10(2)(c).

No comparable provision exists in CPL 440.20, which governs a defendant's motion to set aside a sentence.

The Court of Appeals has held that "[p]ost release supervision is a direct consequence of a criminal conviction" (People v. Catu, supra, at 244), and that upon a properly perfected appeal, "the failure of a court to advise of post release supervision requires reversal of the conviction." Id at 245.

It does not necessarily follow however, that the sentence itself "was unauthorized, illegally imposed or otherwise invalid as a matter of law." (CPL 440.20(1)). To the contrary, the Fourth Department, by which this court is bound, has held in cases similar to this, that the imposition of the five years of post release supervision is imposed by operation of law. No mention of it, is required by the sentencing court. (PL 70.45(2); People v Hollenbach, 307 AD2d 776, (4th Dept., 2005), lv. den. 100 NY2d 642 (2003); People v. Crump, 302 AD2d 901, (4th Dept., 2003), lv. den. 100 NY2d 537 (2003)).

The motion is accordingly denied.

Dated: October 16, 2007

________________________________________

Hon. Dennis F. Bender, JCC