On November 18, 2004 the petitioner, an inmate currently at Elmira Correctional Facility, was sentenced, after trial, as a second felony offender to the following terms of imprisonment: 25 years for attempted murder, second degree; 25 years for assault, first degree; three and one half to seven years for criminal possession of a weapon, third degree (two counts)^[FN1]; and 15 years for criminal possession of a weapon, second degree ^[FN2]. It is undisputed that neither the sentencing minutes nor the written sentence and commitment made any mention of a period of post release supervision. Notwithstanding this fact, the New York State Department of Correctional Services ("DOCS") administratively added a period of five years of post release supervision to petitioner's sentence. On September 13, 2006 petitioner's attorney wrote a letter to DOCS requesting that the post release supervision be eliminated from the petitioner's sentence. In a determination dated December 14, 2006 the request was denied. The instant CPLR Article 78 proceeding, initially commenced in the First Department Appellate Division, sought two forms of relief: (1) to review the December 14, 2006 determination of respondent Fischer; and (2) to prohibit Supreme Court Justice Charles Tejada (the sentencing judge) from re-sentencing the petitioner (as a means of preventing him from correcting the sentence by adding a period of post-release supervision). The respondents made a cross-motion to dismiss the petition. The Appellate Division, by order entered April 12, 2007, directed that the petition, to the extent that it sought relief against respondent Fischer, be transferred to Supreme Court, Albany County. It further ordered that the application against Supreme Court Justice Charles Tejada be denied. As a result, the Court now has before it the undecided portion of the cross-motion of respondent Fischer. The petition alleges that respondent's determination to impose a period of post release supervision violates principles of double jeopardy and due process, including US Constitution Amendments V, VI, XIV, New York State Constitution Article I § 6, and CPL § 380.40.

Under Penal Law § 70.45 (1), "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision." In this instance, Penal Law § 70.45 (2), as it existed in 2004, clearly required imposition of 5 years of post release supervision, since attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the third degree are violent felony offenses under [*2]Penal Law § 70.02 (1), and since the petitioner was sentenced as a second felony offender under Penal Law § 70.06 (6) (see Penal Law § 70.45 [2]).

A number of New York Courts, including the Court of Appeals, have stressed the mandatory nature of post release supervision under Penal Law § 70.45. As stated in People v Catu (4 NY3d 242 [2005]):

"Postrelease supervision is a direct consequence of a criminal conviction. In eliminating parole for all violent felony offenders in 1998, the Legislature enacted a scheme of determinate sentencing to be followed by periods of mandatory postrelease supervision (see L 1998, ch 1 [Jenna's Law]), and defined each determinate sentence to also include[], as a part thereof, an additional period of post-release supervision' (Penal Law § 70.45 [1]; see also Senate Mem in Support, 1998 McKinney's Session Laws of NY, at 1489 [describing postrelease supervision as a distinct but integral part of the determinate sentence']). Whereas the term of supervision to be imposed may vary depending on the degree of the crime and the defendant's criminal record (see Penal Law § 70.45 [2]), imposition of supervision is mandatory and thus has a definite, immediate and largely automatic effect on defendant's punishment.' "

(id. at p. 244, emphasis supplied).

The Court is keenly aware of the Circuit Court of Appeals decision in Earley v Murray (451 F3d 71, 75-76 [2d Cir 2006], reh denied 462 F3d 147). In Earley a state inmate brought a habeas corpus proceeding in Federal Court challenging imposition of post release supervision by the New York State Department of Correctional Services. The Court of Appeals, relying heavily upon Hill v United States ex rel. Wampler (298 US 460 [1936])^[FN3], ruled that federal constitutional law prohibits the Department of Correctional Services from adding post release supervision to any determinate sentence if the court did not impose such a term at sentencing (Earley, 451 F3d at 75). The Court stated that "[t]he judgment of the [sentencing] court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment"; and "[a]ny alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect" (id.). As enunciated in Earley, a term of post release supervision can be added only by the trial court at a re-sentencing proceeding (id. at 76).

The Court is mindful of the current division of opinion among the various Appellate Divisions on the issue. The First Department, in People v Sparber (34 AD3d 265 [ 2006]) declined to follow Earley, holding that even when a sentencing court is silent with respect to the issue, each determinate sentence under Penal Law § 70.45 (1) is [*3]deemed to include a period of post release supervision (see also People v Thomas, 35 AD3d 192 [1st Dept., 2006; People v Lingle, 34 AD3d 287 [1st Dept., 2006]). In People v Hill (39 AD3d 1 [2007], revd ___ NY3d ___, November 15, 2007 ^[FN4]) the First Department stated that "it is sensible to construe Penal Law § 70.45(2) to deem a five-year period of post-release supervision to have been imposed whenever a sentencing court fails to specify the period upon sentencing a second felony offender to a determinate sentence for a violent felony offense pursuant to Penal Law § 70.04 or § 70.06" (see id., at 10). It was stated, however, that where a defendant is sentenced as a first violent felony offender (under Penal Law §70.02) DOCS imposition of a five year term of post release supervision is unlawful (see id.). The Second Department has held that where a sentencing court fails to impose a period of post release supervision DOCS has no authority to administratively add it to the inmate's sentence (see People v Wilson, 37 AD3d 855 [2007]; People v Noble, 37 AD3d 622 [2007]; People v O'Shea, ___ AD3d ___ [November 13, 2007]). The Third Department has held that the imposition of post release supervision is not a judicial function and therefore may be imposed administratively (see Matter of Deal v Goord, 8 AD3d 768 [2004]; People v Boyer, 36 AD3d 1084 [2007]; Matter of Garner v New York State Department of Correctional Services, 39 AD3d 1019 [2007], mot for lv to app granted 9 NY3d 809 [2007]). The Fourth Department, in pre-Earley decisions, has held that there is no need for a sentencing court to specify a period of post release supervision since the period was included in the sentence under Penal Law § 70.45 (2) (see People v Bloom, 269 AD2d 838 [2000], lv denied 94 NY2d 945; People v Stanley, 309 AD2d 1254 [2003]; People v Hollenbach, 307 AD2d 776 [2003]).

Under the circumstances, the Court finds that it must follow Matter of Deal (supra) and Matter of Garner (supra). Inasmuch as post release supervision was automatically included as a part of the petitioner's sentence, its inclusion in the DOCS computation is not a judicial function and does not implicate petitioner's rights to due process. Nor does it violate the constitutional prohibition against double jeopardy. There was no re-sentencing, since "respondents [were] only enforcing, not imposing, a part of petitioner's sentence which was automatically included by statute" (Matter of Garner v New York State Dept. Of Correctional Services, supra). The Court does not discern any violation of CPL § 380.40, which requires that the defendant be personally present when sentence is pronounced.

Lastly, the Court must point out that it is mindful (and concerned) that in neither [*4]the Deal case (supra) which was pre-Earley, nor the Garner case (supra) which was post-Earley, did the Third Department ever address the constitutional issues being raised here. Notwithstanding this fact, the Court is of the view that it cannot simply ignore these decisions, which were pronounced with undeviating clarity.

The Court has reviewed and considered petitioner's remaining arguments and contentions and finds them to be without merit.

The Court finds that the cross-motion to dismiss the petition must be granted, as the petition fails to state a cause of action.

Accordingly it is

ORDERED, that the cross-motion to dismiss the petition is granted; and it is

ORDERED and ADJUDGED, that the petition be and hereby is dismissed.

This shall constitute the decision, order and judgment of the Court. All papers are returned to the attorney for the Respondent who is directed to enter this Decision/Order/Judgment without notice and to serve petitioner with a copy of this Decision/Order with notice of entry.

ENTER

Dated:December 5, 2007S/_______________________________________

Troy, New YorkSupreme Court Justice

George B. Ceresia, Jr.