Respondent New York State Division of Parole (Division) moves pursuant to CPLR 2221(d) for leave to reargue its prior motion to dismiss petitioner's writ of habeas corpus. Petitioner opposes the Division's application.

By writ of habeas corpus submitted to this Court on October 31, 2007, petitioner sought an order vacating a parole warrant lodged against him and directing his release from custody on the ground that the period of post-release supervision (PRS) imposed on him administratively by the Department of Correctional Services (DOCS) after sentencing was a nullity. The Division moved to dismiss, arguing that petitioner was barred from challenging the imposition of PRS under the doctrines of res judicata and collateral estoppel since he had already litigated the issue in an Article 78 proceeding commenced in the Wyoming County Supreme Court, which ruled that PRS was properly imposed.

By decision and order dated December 13, 2007, this Court granted the habeas corpus petition, concluding that petitioner was not barred by the doctrines of res judicata or collateral estoppel since the issues raised in his Article 78 proceeding and habeas corpus petition were not the same. Specifically, the legality of petitioner's detention and the validity of the parole [*2]violation warrant lodged against him after his release from Attica were not before the Wyoming County Supreme Court. This Court also noted that the habeas corpus petition sought relief that could not have been sought in the Article 78 proceeding, i.e., release from custody.

The Division seeks to reargue that determination on the ground that the Court misapprehended a matter of law. Relying on the First Department's determination in People ex rel. Garner v Warden (40 AD3d 243 [1st Dept. 2007]), the Division maintains that the issues raised in both proceedings were the same, even though different relief was sought.

Upon reviewing the parties' submissions, the Court grants reargument, and, upon reargument, adheres to its prior determination granting habeas corpus relief to petitioner and denying the Division's motion to dismiss, albeit for somewhat different reasoning.

In People ex rel. Garner v Warden, supra, the First Department concluded that the dismissal of an Article 78 proceeding commenced in Albany County challenging the administrative imposition of PRS had res judicata effect on a habeas corpus petition subsequently brought in the Bronx. Notably, the First Department gave res judicata effect to the Albany County Supreme Court's determination even though it did not share the Third Department's substantive view that PRS is automatically included by statute.^[FN1]

On April 29, 2008, however, the Court of Appeals resolved the split among the Appellate Divisions and held that PRS "is not automatically included in the pronouncement of a determinate sentence" (see Matter of Garner v New York State Dept. of Correctional Services, NY3d , 2008 NY Slip Op.03947, 3-4 [Apr. 29, 2008]; see also People v Sparber, NY3d , 2008 NY Slip. Op.03946 [Apr. 29, 2008]). The Court ruled that DOCS may not administratively add a mandatory period of PRS onto a sentence, and that a defendant has a statutory right to have that punishment imposed by the sentencing judge. In a footnote, however, the Court recognized 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" (see Matter of Garner, supra at 4, n. 4, citing People v DeValle, 94 NY2d 870, 871 [2000]). In People v Sparber, supra, which consisted of five appeals, rather than striking PRS from the sentences, the Court found that "there exists no procedural bar to allowing the sentencing court to correct its PRS error," and remitted the five matters to the Supreme Court for resentencing to include the proper pronouncement of the relevant PRS term.

Applying the Court of Appeals' recent determinations here, I conclude that petitioner was properly granted habeas corpus relief. The Wyoming County Supreme Court's determination of petitioner's Article 78 petition should not be given res judicata effect since the Fourth Department precedent on which it relied was expressly overruled by the Court of Appeals in Matter of Garner and Sparber, supra. Notably, petitioner's sentence has not been corrected by the sentencing court to include PRS. Accordingly, since the administrative imposition of PRS was improper, petitioner was entitled to the habeas corpus relief granted by this Court.

[*3]This constitutes the decision and order of this Court.

Dated:Bronx, New York

May 19, 2008