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Sentencing and Commitment Order

Petitioner commenced a proceeding requesting that the Court vacate the five year post-release supervision (“PRS”) period added to his sentence by the respondent. Petitioner argues that the neither the sentencing minutes nor the Sentencing and Commitment Order include, as part of petitioner’s sentence, a five year PRS term and therefore respondent’s administrative imposition of the five year PRS sentence is invalid.

A Queens County Criminal lawyer said that Petitioner was convicted of two counts of Second Degree Robbery and Attempted Grand larceny in the 2nd degree. Thereafter, the Court sentenced the petitioner to two five-year determinate terms of incarceration for the robbery conviction and a three to six year term on the attempted grand larceny conviction.

Notwithstanding the sentence as set forth in the sentencing minutes of the hearing, in the preparation of the Sentence and Commitment Order, the sentence for the attempted grand larceny conviction was set forth as a two and a third to seven year sentence. Petitioner brought a motion pursuant to CPL §440.20 alleging, among other things, that the sentence on the grand larceny conviction was illegal and had to be corrected.

A successor Judge, deciding the motion due to former judge’s retirement, granted petitioner’s motion to the extent that the sentence for the grand larceny conviction was corrected and petitioner was resentenced to a two and a third to seven year term instead of the three to six year term imposed before.

Subsequent to the sentencing, an “Inmate Information” sheet was prepared by the Department of Correctional Services (“DOCS”)stating that the petitioner was subject to post-release supervision for five years. It is imposition of the PRS, by DOCS, that is the subject of this petition.

The petitioner was released from prison and currently resides in Queens. In accordance with the requirements of the PRS, petitioner reports to the parole board in Jamaica.

Respondent’s arguments that the criminal petition should be dismissed on the grounds: a) that this court lacks jurisdiction to modify an order previously prepared and issued by another judge; b) that the petition fails to name the district attorney as a necessary party to this proceeding; and c) that the relief requested is barred by the doctrine of res judicata or collateral estoppel are all without merit.

Respondent’s argument that Petitioner is barred by the statute of limitations is also without merit as there is nothing in the record, other than respondent’s conclusory statement, to support a finding that petitioner was aware of the PRS since 2002.

The imposition of post-release supervision by DOCS where the sentencing minutes and Sentencing and Commitment Order are silent on that issue has been the subject of a considerable amount of litigation throughout the State. Although the issue has not been resolved consistently across the judicial departments, the Second Department has been guided by the decision in a case, where the court stated that “PRS added administratively by DOCS and not imposed by a court is a nullity’ and thus must be vacated.”

Although not bound by the early decision, the courts have relied on it as a useful and persuasive authority and have consistently ruled that where the sentencing minutes and order of commitment fail to include any mention of PRS the administratively imposed PRS is not part of the sentence. Arson was not there.

Since it is undisputed that the sentencing and commitment order did not include any PRS provisions, this court finds the imposition of PRS by the respondent a nullity.

Respondent’s reliance on the cases is misplaced as the issue here is not whether PRS is automatic or a direct consequence of criminal conviction, but whether PRS can be administratively added to a criminal sentence ordered by a judge. With respect to the latter, the answer is no.

Accordingly, the petition is granted and the five year post-release supervision sentence administratively imposed on petitioner by respondent is vacated.

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