Petitioner, who was acting pro se at the time, commenced this proceeding effectively seeking an order prohibiting the respondents from imposing upon him a period of post release [*2]supervision by the Division of Parole following his release form the Department of Correctional Services. Respondents have submitted a verified answer in opposition to the relief requested, including a statement of the grounds for the respondents actions. Petitioner, after being assigned counsel due to his subsequent incarceration on a violation of the terms of such post release supervision, submitted papers in reply to the respondents' answer.

The record reflects that on or about March 30, 2000, the petitioner Gregory L. Jackson, was sentenced, as a second violent felony offender, to a determinate sentence of eight and one-half years and an indeterminate sentence of three to six years upon convictions in County Court, Tompkins County, for the crimes of Burglary in the Second Degree and Criminal Possession of Stolen Property in the Third Degree, respectively. The petitioner was also sentenced on that date upon convictions in that Court for three Class A misdemeanors, with each carrying a one year definite sentence. All of the sentences imposed upon the petitioner that date were directed to run concurrently with each other. Further, it is undisputed that the Sentence & Commitment form prepared at the time of petitioner's sentencing and the Sentencing Order signed by the Court on March 30, 2008, made no mention of any post release supervision (PRS) to be imposed upon the petitioner upon his release form incarceration. Petitioner was released from the Department of Correctional Services on March 24, 2008, upon reaching the maximum expiration date on his sentences and was placed in post release supervision through the Division of Parole.

Petitioner commenced this proceeding on April 15, 2008, by filing a Notice of Petition and Petition seeking habeas corpus relief. By letter/order dated April 28, 2008, this Court directed that this matter would be treated as an Article 78 proceeding, since the petitioner was not in custody at that time, and set a return date of June 11, 2008, in connection with the matter. The record further reflects that on or about May 18, 2008, the petitioner was arrested on a warrant issued due to alleged violations of the terms of his post release supervision and was incarcerated in the Tompkins County Jail. Petitioner was assigned counsel on the parole violation and said counsel filed an order to show cause with this Court seeking the immediate release of the petitioner on the grounds that the placement of the petitioner under post release supervision was without authority and illegal since he was never sentenced to a term of post release supervision. Upon the return date on said order to show cause, where counsel from the Attorney General's Office and the Tompkins County District Attorney's Office participated in the conference conducted thereon, this Court issued a Supplemental Order dated May 30, 2008, which vacated the parole violation warrant, directed that the petitioner by released from the Tompkins County Jail and further directed that the petitioner would not be subject to post release supervision by the Division of Parole during the pendency of this proceeding. The Court confirmed at said conference, that the Tompkins County District Attorney's Office had already filed an motion in County Court, Tompkins County, seeking to re-sentence the petitioner in connection with the convictions referred to above. Thereafter, on June 11, 2008, the return date of the Article 78 proceeding, the parties submitted on their papers. The Court has been informed that, as of this date, the petitioner has not been re-sentenced in connection with the underlying convictions in County Court. [*3]

Petitioner, through his assigned counsel, asserts that he cannot be legally placed under the supervision of the Division of Parole at this time because he was not sentenced to a term of post release supervision at the time of his original sentencing, citing Matter of Garner v. New York State Department of Correctional Services, 10 NY3d 358, 2008 NY Slip Op 03947. Petitioner also correctly points out that the respondents have acknowledged in their answering papers that the recent Court of Appeals decisions on this issue have held that the Department of Correctional Services is without authority to administratively pronounce or impose the post release component of a defendant's sentence since that action is solely within the province of the sentencing judge. (See, Matter of Garner, supra at page 362; see also, People v, Sparber, 10 NY3d 457, 2008 NY Slip Op 03946).

Although the respondents recognize that they lack authority to administratively impose a term of post release supervision upon the petitioner herein, they contend that the petitioner's underlying sentence is illegal since it did not comply with the statutory mandate that a term of post release supervision be imposed (Penal Law Sec. 70.45) and argue that the petitioner should be re-sentenced so that an appropriate term of post release supervision can be imposed. Respondents have requested that this Court transfer the matter to County Court, Tompkins County, for further proceedings regarding the petitioner's underlying sentence.

Upon review and consideration of the papers submitted, the Court has determined that the petition herein should be granted to the extent that it seeks to prohibit the respondents from imposing a term of post release supervision upon the petitioner and from proceeding with any attempts to impose consequences against the petitioner for any alleged violations of the conditions of post release supervision that were administratively imposed upon him by the respondents because of the petitioner's illegal sentence.

It is clear that the respondents have no authority to impose a term of post release supervision upon the petitioner, since that is solely within the province of the sentencing judge. Matter of Garner, supra at page 362; Matter of Smith v. Fischer, 50 AD3d 1279, 1280; Matter of Dreher v. Goord, 46 AD3d 1261, 1262; Matter of Quinones v. New York State Department of Correctional Services, 46 AD3d 1268, 1269. Respondents shall therefore be precluded from imposing such terms upon the petitioner and any previous term or conditions of post release supervision imposed upon the petitioner by the respondents shall be void.

Further, under the circumstances presented, in this Court's view, the respondents should also be precluded from imposing any consequences against the petitioner for any alleged violations of the conditions of post release supervision that were previously administratively imposed upon him by the respondents because of the petitioner's illegal sentence. (See, People ex rel. Benton v. Warden, ___ NYS2d ___, 2008 NY Slip Op 28190).

Lastly, the Court finds that a transfer of this matter to County Court, Tompkins County, is not necessary, since the Tompkins County District Attorney's Office has already filed a motion in that Court seeking to re-sentence the petitioner. [*4]

Accordingly for the reasons set forth above, it is

ORDERED and ADJUDGED that the petition is hereby granted to the extent that the respondents are hereby prohibited from administratively imposing any term or conditions of post release supervision upon the petitioner in the absence of any pronouncement of same in the petitioner's sentence and the previous conditions of post release supervision that were administratively imposed upon the petitioner by the respondents are hereby declared void, and it is further

ORDERED and ADJUDGED that New York State Parole Violation Warrant No. 592533 shall continue to be vacated, and it is further

ORDERED and ADJUDGED that the respondents are hereby prohibited from bringing any parole violation proceedings against the petitioner in connection with any conditions of post release supervision that were previously administratively imposed upon the petitioner by the respondents between April 12, 2000 and the date of this Decision and Judgment, and it is further

ORDERED and ADJUDGED that this Court declines to address any issues regarding the potential re-sentencing of the petitioner, since it finds that such issues are not properly before this Court.

This shall constitute the Decision and Judgment of the Court. No costs are awarded.

Dated, June 30, 2008.__________________________

ROBERT C. MULVEY

J.S.C.