This petition for a judgment pursuant to CPLR article 78 vacating the respondents' determination placing the petitioner on post-release supervision is granted. The period of post-release supervision found in his conditions of release dated January 17, 2007 is hereby vacated and annulled, and respondents are prohibited from enforcing such post-release supervision as thereby imposed upon the petitioner upon his release from incarceration on January 22, 2007.

On May 22, 2001 petitioner, then 17 years of age, pled guilty to two counts of burglary in the second degree before the County Court, Nassau County (DeRiggi, J.). The plea bargain was that in exchange for the plea of guilty he would be sentenced to two concurrent determinate terms of seven years' incarceration. This sentence was imposed by Judge DeRiggi on July 20, 2001. A transcript of both the plea and sentencing proceedings are annexed to the petition, as well as the order of commitment. There is no indication in any of these papers that in accepting his plea, sentencing him or directing his commitment to the custody of the Department of Correctional Services ("DOCS") the County Court had sentenced the petitioner to post-release supervision ("PRS" or "supervision"), or had even discussed or implied that some additional form of punishment was or could be imposed under the law.

In July of 2006, while still in prison, the petitioner received a "time computation sheet" from the inmate records coordinator, in which a five year PRS component appeared as having been added. In September of 2006, believing that this period should not have been added, the petitioner, then acting pro se, moved to set aside his sentence pursuant to CPL 440.20. The County Court (LaPera, J.) ^[FN1] characterized the application as one not to set aside the sentence but rather as one for specific performance of that sentence. Holding, in effect, that the relief sought therefore placed petitioner outside the reach of CPLR 440.20, the Court denied the motion. Petitioner was thereafter released on January 22, 2007, having served his term of incarceration, as shortened by credit for good behavior.

Under the authority of the supervision directive, petitioner was assigned to a parole [*2]officer. She and her superiors later directed him to enter Creedmor Hospital in Queens Village, New York, for a 28-day in-patient addiction treatment and rehabilitation program. Now represented by an attorney, he reported as directed, but then brought on a writ of habeas corpus on the ground that his detention was founded on the alleged illegality of the PRS, under which authority he had been ordered to Creedmor. The writ ultimately was withdrawn as moot upon his release from Creedmor. However, while the proceeding was pending, and at the instance of the assigned Court (Gulotta, J.), petitioner's attorney wrote to an Assistant Counsel with DOCS in an attempt to resolve the matter. In that correspondence he asked that the PRS be vacated. By responsive letter dated July 17, 2007, counsel for DOCS indicated that his agency would not do so.

The record reveals that the present proceeding was commenced by the filing of a notice of petition and petition on August 15, 2007. It sounds in mandamus. Specifically, the notice states that the relief of vacating his PRS is founded on illegal acts of the respondents in that they, as "part of the Executive Branch of State government, usurped powers of the Judicial Branch" by "increasing the scope, length and breadth of Petitioner's sentence." ^[FN2] This is, of course, a claim founded on an allegedly unconstitutional act.

In their answer, the respondents advance several affirmative defenses/objections in point of law, both procedural and substantive. On the procedural side, they urge as follows: that the matter is untimely as brought beyond the four month statute of limitations applicable to Article 78 proceedings; that venue is proper in Albany County, as it was the location of respondents' principal offices and the situs of the determination challenged by petitioner; and that the proceeding should be dismissed for failure to join the Nassau County District Attorney. Substantively, the respondents contend that the claim is barred under the related doctrines of res judicata and collateral estoppel, based upon the CPL 440.20 litigation commenced by petitioner; that Appellate Division, Second Department case authority upon which petitioner relies should not be followed as contrary to the holdings of the Court of Appeals; and, finally, that the petitioner cannot seek relief with regard to a sentence to which he knowingly and voluntarily consented.

Initially, it is clear that as a general matter even claims couched in constitutional terms such as the one at bar are cognizable as Article 78 proceedings, and petitioners may thus be held to the four-month limitations period applicable thereto. See, Walton v New York State Dept. of Correctional Servs., 8 NY3d 186 (2007); Cloverleaf Realty of New York, Inc. v Town of Wawayanda, 43 AD3d 419 (2d Dept. 2007). The issue here is when that period began.

In the context of mandamus, the clock starts to run from the refusal of the body or officer to act or to perform an act enjoined by law after a demand to do so. Austin v Board [*3]of Higher Education of the City of New York, 5 NY2d 430 (1959). The burden is on the public body to make its refusal to act clear, so that a potential petitioner would know that a final and binding determination had been made. Matter of Castaways Motel v Schuyler, 24 NY2d 120, 125 (1969).

In the instant matter the Court cannot find that the answer of the People to the petitioners' pro se CPL 440.20 motion constitutes the triggering event, as urged by respondents. The relief sought in this motion was to set aside an act of the sentencing court, not any one of the present Executive Branch respondents. Although the act of which petitioner complained was actually one undertaken by an agency, and both parties to the motion clearly understood this, the procedural route taken insured that his real adversary would not be a party to the criminal litigation. As a result, the opposition of the People to vacatur of Judge DeRiggi's sentence could not constitute a final negative determination by such agency.

Indeed, in its opposition to the CPL 440.20 motion the People responded that the defendant/petitioner should have commenced an Article 78 proceeding against the Department of Corrections, but did not state or imply that such agency already had denied the petitioner's request. Nor did the District Attorney indicate that her opposition amounted to such a denial. She could not do so in any event, as the District Attorney could not represent any of the respondent agencies, including the Department of Corrections. That task, as is evident here, falls to the Attorney General. Executive Law § 63(1). Put another way, the District Attorney did not speak, and could not speak, for any of the present respondents. Accordingly, her answer in opposition was in no way that of any of the respondents, the parties whose acts and refusal to act form the basis of this proceeding, and thus the District Attorney's statement did not begin the running of the four-month period.

Rather, the Court holds that the period did not begin to run until the answer of the DOCS attorney on July 17, 2007, as this was the first clear refusal by the agency to do as demanded by the petitioner. Matter of Castaways Motel v Schuyler, supra . This proceeding, commenced within 30 days of that refusal, is therefore timely.

Next, the Court disagrees with respondents that venue was proper only in Albany County. Pursuant to CPLR 506(b), venue for an Article 78 proceeding is proper

"in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located.." (Emphasis added.)

Here, and notwithstanding the nature of the respondents and the Albany address on the July 17, 2007 DOCS letter refusing the petitioner's request, the "material events" took place not where the petitioner was incarcerated but rather where he was sentenced, because [*4]it is that sentence and the record of that sentence that are material here. ^[FN3] This distinguishes the instant case from the cases relied upon by the respondents, especially the Second Department case they highlight, Matter of Vigilante v Dennison, 36 AD3d 620 (2d Dept. 2007). In Vigilante venue in Kings County was found improper because the issue was an adverse parole determination, which was affirmed on administrative review in Albany County, and was thus held the proper county to hear the proceeding.

The issue before this Court is whether the sentence of the County Court, Nassau County supports the imposition of PRS. Indeed, in his letter to petitioner's attorney the Assistant Counsel for DOCS refers to the silence of the sentencing court as justification for the five-year PRS "by operation of law" under stated sections of the Penal Law. Given respondents' own reliance not on events that took place after incarceration began, but rather on the sentence and a statute, and the absence of any administrative review elsewhere, venue in Nassau County is not improper.

Next, the Court disagrees that the District Attorney is a necessary party. The relief sought has nothing to do with matters properly within the purview of her office (as indicated by the suggestion by the ADA who handled the CPL 440.20 motion that an Article 78 be brought against DOCS), and no act or omission on her part can further affect any ruling here. She therefore is not a party who must be joined "if complete relief is to be accorded between the persons who are parties", nor can she be "inequitably affected by a judgement..." CPLR 1001(a). The one Appellate Division, Second Department case cited for the proposition that the District Attorney must be joined so held because respondents were Justices of the Supreme Court, and the relief sought was to preclude a retrial in a criminal action which obviously involves the District Attorney. Matter of Thomas v Justices of the Supreme Ct. of State of NY, Queens County, 304 AD2d 585 (2d Dept. 2003); see, CPLR 7804(i).

Turning to matters of substance, the Court disagrees with the respondents that under the related doctrines of res judicata and collateral estoppel the result of the CPL 440.20 motion bars the petitioner from arguing again that post-release supervision was an illegal addition to the sentence. As is made clear from Judge LaPera's decision, that issue never was reached because that Court looked only to arguments that might be made to set aside the sentence imposed by Judge DeRiggi, and found none. There was no discussion relevant to the issues to be decided here except for the comment that the petitioner was in reality seeking specific performance of his sentence, and was not actually asking that it be set aside. The motion court did not grant or deny specific performance, but rather decided only that there was nothing raised by the defendant/petitioner that would justify setting aside the sentence.

Accordingly, Judge LaPera never issued any ruling on PRS, nor necessarily [*5]determined that issue. This is unlike what occurred in People ex rel. Garner v Warden, Rikers Is. Correctional Facility, 40 AD3d 243 (1st Dept. 2007), relied upon by respondents. There, the Appellate Division, First Department found that in deciding the CPLR 440.20 motion "the sentencing court specifically held that the challenged aspect of the sentence [five years of PRS] was not unauthorized, illegally imposed or otherwise invalid." The Appellate Division thus found that the sentencing court "necessarily determined" the claim being made in the subsequent proceeding that was now before it on appeal. As noted, no such determination has been made previously here.

The contention advanced by the respondents that this Court should not set aside a sentence to which the defendant willingly and knowingly agreed raises a straw man in that (as correctly pointed out by Judge LaPera) petitioner does not want that sentence set aside. He wants it enforced as issued, because it did not include supervision. Respondents are, rather, pointing to their own position that imposition of the two determinate sentences and the sentencing court's silence as to post-release supervision necessarily included five years of PRS as a matter of law.

This leads, at last, to the key argument advanced by the respondents: that notwithstanding Appellate Division, Second Department authority to the contrary, this Court should not excise the PRS imposed on petitioner upon his release because the Court of Appeals has made it clear that such supervision is a mandatory part of a determinate sentence for violent felony offenders. People v Catu, 4 NY3d 242 (2005). This is a category into which the petitioner falls by dint of his conviction for burglary in the second degree, which is a class C violent felony. Penal Law § 70.02(1)(b); § 70.45(2)(f) [PRS for class C violent felonies to be 2/12 - 5 years].

However, the authority binding this Court does not allow for this result. In refusing to set aside sentences challenged under CPL 440.20 where the record revealed no imposition or discussion of post-release supervision, the Second Department consistently has held that defendants could not obtain that relief based on the sentencing court's silence, because each got exactly what he or she bargained for: a fixed period of incarceration with no post-release supervision. People v Martinez, 40 AD3d 1012 (2d Dept. 2007); People v Royster, 40 NY3d 885 (2d Dept. 2007); People v Noble, 37 AD3d 622 (2d Dept. 2007); People v Wilson, 37 AD3d 855 (2d Dept. 2007). These cases post-date Catu, and their holdings are unaffected by the more recent People v Louree, 8 NY3d 541 (2007), which reaffirmed Catu, except to the extent that the Louree Court stated that because the trial court's failure to mention post-release supervision is clear from the face of the record, a CPL 440 motion cannot be made by a defendant. Id., at 546. That likely means that there will be few, if any, additional appellate cases addressing this issue in the context of a CPL 440 motion.

In any event, the undersigned is of course bound by the Second Department's present view of the matter, inasmuch as it has spoken on the issue. Mountain View Coach [*6]v Storms, 102 AD2d 663 (2d Dept. 1984). ^[FN4] The Second Department cases cited above all held that the absence of any such component meant that the moving defendants could not take back their pleas on the ground that they were never advised that this component existed, because such a component did not in fact exist.

It is therefore clear that sentencing belongs wholly to the court, and the records of the court made in doing so are the only ones that have legal force. See also, Hill v United States ex rel. Wampler, 298 US 460 (1936). In view of the foregoing and the well-established rule that prison officials are conclusively bound by the contents of commitment papers that accompany a prisoner (Matter of Murray v Goord, 1 NY3d 29 [2003]; Middleton v State of New York, 54 AD2d 450 [3d Dept. 1976], affd 43 NY2d 678 [1977] on op below), which here contained no provision for post-release supervision, this Court concludes that respondents had no authority to extend or otherwise modify the sentence imposed by Judge DeRiggi by adding this component shortly before the petitioner was to be released from incarceration. In short, Judge DeRiggi's sentence did not include a period of post-release supervision, even granting that this was something that should have been included, and respondents action of adding this to the sentence imposed by the County Court therefore was illegal. It must be vacated and enforcement of any such supervision prohibited.

This shall constitute the Decision, Order and Judgment of this Court.

E N T E R

Dated: January 3, 2008

_____________________________

Hon. Daniel Palmieri

Acting Supreme Court Justice