In light of the recent decisions from the Court of Appeals in Matter of Garner v. New York State Correctional Services, 10 NY3d 358 (2008) and People v. Sparber, 10 NY3d 457 (2008), there are a large number of habeas corpus petitions being filed on behalf of defendants who are being held in custody due to violations of the conditions of post-release supervision. The law is clear that a "the sentencing judge and only the sentencing judge" can impose a term of post-release supervision. Garner, 10 NY3d at 362. And, if a judge has not done so, and this part of the sentence is "added" by a notation from the Department of Correctional Services, the petitioner's request for habeas corpus release must by granted. People v. Figueroa, 45 AD3d 297 (1st Dept. 2007). Of course, a Court must be very careful to scrutinize all records to ensure that the defendant's arguments are factually correct, and that a period of post-release supervision was not actually pronounced by a judge. This case underscores the need for such scrutiny, as the petitioner's allegations that he is a candidate for release under Figueroa are belied by actual court records.

Petitioner was convicted of Robbery in the Second Degree in Supreme Court, Queens County. He stole a woman's pocketbook outside her residence, and caused her physical injury in the process. On February 7, 2003, he was sentenced to a determinate term of imprisonment of five years. It was the defendant's second felony conviction. He was released to parole supervision on August 7, 2007. On October 27, 2007, at 1:25 a.m., he allegedly went to the robbery victim's house, in violation of an order of protection as well as in violation of his parole curfew. He allegedly stopped reporting to his parole officer on December 12, 2007. On December 22, 2007, he was arrested in Queens County and charged with criminal possession of a controlled substance in the seventh degree and criminal mischief. On December 27, 2007, he pled guilty to the controlled substance count, and received a conditional discharge. A warrant for his arrest for violating his post-release supervision was signed on January 18, 2008. The petitioner was scheduled for a final revocation hearing when he brought this writ in March, 2008.Here, as in each and every post-release case, the petitioner is seeking to be released from [*2]custody, via writ of habeas corpus, after having been incarcerated due to alleged violations relating to post-release supervision. The petitioner, in his pro se petition, stated that he was being held illegally because the trial judge had not pronounced a sentence in the robbery case which included a period of post-release supervision. He was assigned counsel pursuant to 18B, and that attorney drafted a petition, verified by the petitioner, in which petitioner once again swore that he was not sentenced by a judge to post-release supervision. No minutes for the plea or sentence were included with either petition, and the decision was held in abeyance, pending petitioner's receipt of the minutes. As of June 17, 2008, petitioner's attorney forwarded the minutes to the court. As counsel commendably acknowledged, the minutes clearly indicate that, on February 7, 2003, the Honorable James P. Griffin told the defendant, "your sentence is a determinate period of incarceration of five years with five years post-release supervision." As such, the post-release supervision component of the sentence was properly pronounced pursuant to the dictates of CPL §§380.20 and 380.40. Matter of Garner, 10 NY3d at 362.

In this case, counsel now argues that habeas corpus is still an appropriate remedy because the commitment papers prepared by the clerk did not reflect that post-release supervision was imposed by the judge, and that erroneous document has followed the defendant as he travelled from Queens County, through state prison, and to the Department of Correctional Services. That may have been a source of counsel's belief that the trial court did not impose post-release supervision, but it does not justify releasing the defendant from custody. Neither Sparber, nor Garner, nor any other case, requires vacatur of a sentence of post-release supervision due to a clerical error where a judge has actually pronounced a sentence including a period of post-release supervision. And, there may be other cases in which paperwork errors do not accurately reflect the sentence the judge actually pronounced.

It goes without saying that no petition for release pursuant to Sparber/Garner should be entertained without sentencing minutes being first provided by the petitioner. There will most likely be many cases where the minutes support release. But no one habeas corpus petition should be granted pursuant to Sparber/Garner without a review of sentencing minutes.Accordingly, petitioner's application for a writ of habeas corpus is denied. This Court also directs that the commitment order in this case should be amended to reflect a five-year period of post-release supervision

This opinion shall constitute the decision and order of the Court.

Dated: Bronx, New York_______________________

June 27, 2008Ralph Fabrizio, A.J.S.C.