Jayson Torres, who commenced this proceeding pro se, is incarcerated in a New York State prison where he has served most of a determinate 10 year sentence imposed by a judge of this county.

Torres (Petitioner) was recently informed by Department of Correctional Services personnel (Corrections) that a five-year period of supervised release (PRS), a statutory euphemism for parole, would be added to his sentence. After exhausting the various administrative levels, Torres commenced this Article 78 proceeding. Petitioner's argument is that when he was sentenced, he received no notice of this statute, that it was never imposed and that therefore the PRS must be vacated.

New York State has added to its Penal Law a statute mandating that at sentencing, PRS must be added to a determinate sentence, to be served upon completion of a determinate sentence (Penal Law, art 70, §70.45). The supervision, which, in this case would be five years, would have all the usual requirements of parole and risks of technical or other violations, and the potential for an individual being returned to prison for a maximum of five additional years for the violation of parole (in addition to the sentence any new non-technical conviction would carry). "[S]upervision by and reporting to a parole officer, postrelease supervision may require compliance with any conditions to which a parolee may be subject...including, for example, a curfew, restrictions on travel, and substance abuse testing and treatment... A violation of a condition of postrelease supervision can result in reincarceration for at least six months and up to the balance of the remaining supervision period, not to exceed five years (see Penal Law § 70.45 [1])" (People v Catu, 4 NY3d 242, 245 [2005]).

The Respondents, represented by the Attorney General, denominate their opposition to this Article 78 proceeding as "opposition to Petition for Writ of Habeas Corpus." Notwithstanding that misnomer, the Court accepts the opposition papers. [*2]

Where there is a guilty plea, it is clear that notice of the supervised release statute is required, and that the PRS is to be imposed along with the determinate sentence. Lack of notice of this mandatory statute leads to the unknowing waiver of a right, as parole following a determinate sentence is, in essence, a sentence enhancement and is a factor that a defendant would have considered in plea negotiation or in deciding whether to enter a guilty plea. "The court's failure to advise the defendant at the time of the plea that his sentence would include a mandatory period of postrelease supervision prevented his plea from being knowing, voluntary, and intelligent" (People v Thompson, 848 NYS2d 540 {47 AD3d 648} [2d Dept 2008]; see also People v Hill, 9 NY3d 189 [2007]; People v Louree, 8 NY3d 541, 545 [2007], People v Catu, supra ).

In the instant case there was no guilty plea, but a conviction after trial. Whether a conviction is after trial or by plea, both are convictions, and the language of the statute does not distinguish in the application of supervised release. People v. Collado (2008 NY Slip Op 570 [1st Dept 2008]) and People v. Drummond (2008 NY Slip Op 285 [2d Dept 2008]), dealt with the issue of PRS in the context of mandatory sentence following convictions after trial.

In evolving cases, even if the sentencing judge did not address PRS, its notation by a clerk on commitment papers sent to Corrections, has sufficed. Thus, "although the court did not mention PRS [post-release supervision] during the sentencing proceedings, its worksheet and commitment sheet reflect that defendant's sentence includes a five-year term of PRS" (People v Collado, supra ). Therefore, a PRS term of mandatory length may be imposed by way of court documents (id.; see also People v Sparber, 34 AD3d 265, 266 [1st Dept 2006]).

Contrary to Respondents' position, the issue presented by the Court of Appeals in People v Hill (9 NY3d 189 [2007]), is different from the issue presented in cases like People v Figueroa (2007 NY Slip Op 8352 [1st Dept 2007]). The defendant in People v Hill sought to have the judgment of conviction vacated. Here, however, this Court is presented with a different issue, i.e., whether Corrections had the authority to modify the sentence imposed, and therefore People v Hill is not controlling (see People v Huff, 2008 NY Slip Op 50003U [Sup Ct, Bronx County 2008]). As held in People v Figueroa, the Department of Correctional Services lacked authority to add PRS to defendant's sentence, since "prison officials are conclusively bound by the content of commitment papers accompanying a prisoner" where there is no mention by sentencing judge, or in the commitment sheet or any other court record (People v Figueroa, supra citing, Matter of Murray, 1 NY3d 29 [2003]).

In the instant case, the sentencing minutes make no reference to PRS, nor do the commitment papers. Therefore, "the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision" (People v. Drummond, supra ). While Petitioner seeks vacatur of PRS, the Court must conclude that it never existed, the sentence has been almost completely served, and no PRS ever attached and does not now attach (see id.; see also People v. Figueroa, supra , citing People v Noble, 37 AD3d 622 [2007]) ("[s]ince, however, neither the sentencing minutes, nor the court's order of commitment, mentioned the imposition of any period of post-release supervision..., the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision'"). Similarly, in Barrette v Dennison (2008 NY Slip Op 50011U [Sup Ct, Nassau County 2008]), the court found that because the judge's sentence did not include a period of PRS, the Corrections act of adding this to the sentence was illegal, and therefore the decisions had to [*3]be vacated and enforcement of PRS prohibited.

PRS cannot be imposed by operation of law simply because it is deemed "mandatory." Nor can it be tacked on to a sentence by prison officials. Only a judge or justice, or, at least authorized court personnel making the entry on records of the proceedings and commitment can render the PRS provision valid. As noted, the Department of Correctional Services lacked authority to add PRS to Petitioner's sentence, since "prison officials are conclusively bound by the contents of commitment papers accompanying a prisoner" (People v Figueroa, supra , citing, Matter of Murray, 1 NY3d 29 [2003]).

Accordingly, where, as here, the sentence never included PRS, it cannot now be imposed. "We need not address the defendant's contention that post-release supervision not be part of his sentence. Neither the sentencing minutes nor the court's order of commitment mentioned the imposition of post-release supervision. Thus, the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision" (People v Drummond, supra ). Similarly, here, there is no PRS for the Court to vacate, because the PRS never existed.

It is hereby

ORDERED that the Petition is granted; and it is further

ORDERED AND ADJUDGED that the determination of Respondent State of New York Department of Corrections, dated July 5, 2007, and the underlying decisions deeming Petitioner's record to include post-release supervision are vacated; and it is further

ORDERED that upon completion of serving his underlying sentence, Petitioner be released without being subject to Penal Law §70.45.

This constitutes the Decision, Order and Judgment of the Court.

Dated: February 11, 2008

ENTER:

__________________________

J.S.C.