Petitioner brings this CPLR Article 78 application challenging the determination by respondent, the New York State Department of Correctional Services ("DOCS"), to administratively impose a period of post-release supervision onto petitioner's sentence. Respondent opposes the petition through an answer.

On or about November 6, 2000, petitioner was sentenced as a second felony offender to a determinate term of imprisonment of eight (8) years upon his conviction of Robbery in the Second Degree. The sentencing court did not impose any period of post-release supervision [*2]("PRS"). However, petitioner subsequently was informed that DOCS had determined that his sentence was subject to a mandatory five-year period of PRS.

Petitioner filed a grievance with DOCS, alleging that the administrative imposition of PRS was unlawful. Petitioner's grievance was denied by respondent through its Central Office Review Committee ("CORC"), and that denial was affirmed on June 20, 2007. Petitioner has completed his sentence of imprisonment and currently is on parole supervision until September 25, 2008, his maximum expiration date, due to respondent's grant of good time.

The Penal Law mandates that a sentence imposed upon a violent felon include a period of post-release supervision (see Penal Law §§ 70.00; 70.45). However, in Matter of Garner v New York State Dept. of Correctional Services (2008 NY Slip Op 03947[April 29, 2008]), the Court of Appeals held that respondent may not administratively add a mandatory period of PRS onto a sentence where, as here, it was not pronounced by the sentencing judge. In view of this holding, petitioner is entitled to a writ of prohibition barring respondent from administratively adding a PRS term to his sentence.

However, in Matter of Garner, supra, the Court also recognized, in a footnote, that its holding was "without prejudice to any ability that either the People or DOCS may have to seek the appropriate resentencing of a defendant in the proper forum" (citing People v DeValle, 94 NY2d 870, 871 [2000]). Given that the sentence imposed upon petitioner is not authorized by the Penal Law (see People v. Sparber, 2008 NY Slip Op 03946 [April 29, 2008]), the Court will grant respondent's request to stay its order for a period of sixty (60) days in order to allow respondent or the People to make an appropriate application to the sentencing court.

Accordingly, it is

ORDERED, ADJUDGED and DECREED that petitioner's application is granted, and respondent is hereby prohibited from administratively imposing on petitioner any period of post-release supervision; and it is further

ORDERED that this Decision, Order and Judgment shall be stayed for a period of sixty (60) days from the date of its issuance in order to allow respondent or the People to make an appropriate application to the sentencing court.

This memorandum constitutes the Decision, Order & Judgment of this Court. All papers including this Decision, Order and Judgment are returned to counsel for respondent. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated: Albany, New York

April 29, 2008

RICHARD M. PLATKIN

A.J.S.C.