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The court disagrees as to the exclusivity of the remedy


A man was sentenced to concurrent terms of three years for assault in the second degree and one year for promoting prostitution in the fourth degree. At the time of sentencing, the court did not impose the mandatory period of post-release supervision as required by the law. In spite of a five-year period of post-release supervision was administratively imposed the man was released to post-release supervision. He was then be supervised by the division of parole. Lewd conduct was involved.

Subsequently, the man was charged with violating four conditions of his release to parole supervision and was declared delinquent with respect to his parole obligation. Later, a parole warrant was issued and lodged, and the man was served with a notice of violation and violation of release report on the same date. At his preliminary parole hearing, the hearing officer made a finding of probable reason. The man’s final parole revocation hearing was scheduled and prior to it, the man brought an instant writ alleging that his period of post-release supervision was improper.

The man’s primary argument was based upon the recent decision of previous related case which held in part that post-release supervision is not merely a direct consequence of a determinate sentence but is in fact part of the sentence itself and as such it may only be imposed by the sentencing judge and a nullity if imposed administratively after sentencing. Hence, the man argues that the five-year post-release supervision imposed upon him by the department of correctional was unlawful and therefore the parole violation warrant must be vacated.

The opponent, however, argues that the man must move by other ruling as it is the proper remedy to challenge the imposition of the post-release supervision. The opponent also relies on recent Supreme Court decisions where it dismissed writs on the ground that the motion is the proper vehicle for challenging the imposition of post-release supervision. In addition, the opponent further argues that the recent case is a federal decision and, thus, it is not controlling the pattern in the court.

The opponent also cites another previous case in which it stands for the proposition that the interpretation of federal constitutional law by a lower federal court is credible but not binding authority on the courts. However, the opponent relies on the first previous related case to argue that the decision requires the man to exhaust his administrative remedies, which include a motion, prior to filing of it, and that failure to file it must result in the dismissal. SORA could be invoked.

Moreover, relying on the recent appellate division case which held that the post-release supervision is included in the sentence and that the constitutional requirement that a sentence be entered upon the records of the court is satisfied where the court, acting through a court clerk, imposes post-release supervision in the commitment sheet. As a result, the opponent argues that if post-release supervision is imposed in the commitment sheet is sufficient and the court does not need to entertain a motion. However, if the post-release supervision is not in the commitment sheet, since the first department has held that the post-release supervision is automatically imposed, the man’s only relief is to file a motion.

In response to the opponent’s argument regarding the previous related case, the man submits a photocopy of his commitment sheet and signed only by the clerk of the court detailing the man’s stated sentence. However, it does not allude to, state, or indicate any period of post-release supervision.

Sources revealed that in the instant case, the man is currently imprisoned as a result of an administratively imposed period of post-release supervision and it is within his right to inquire as to the cause of such detention. Specifically, the man has a right to inquire as to the reason why he should be imprisoned on a parole violation for rape when he was sentenced to a determinate period of time and served said time. Further, he has a right to inquire why he has been given an additional period of supervision by the department of correctional, an administrative agency, when he was not informed of it by his sentencing judge on the record. For that reason, a writ is a proper remedy to address the legality or illegality of an administratively imposed five-year period of post-release supervision.

The court stated that they have reviewed all of the decisions by its colleagues who have addressed the failure of the court to advise the man at the time of sentence of the imposition of post-release supervision and have read all the cases cited within their decisions. The court also agrees in their opinions that the man has the right and option to review an improper sentence by either a motion. But, the court disagrees as to the exclusivity of the remedy.

Moreover, the court also reviewed those cases that hold that the post-release supervision is automatically included in the sentence and thus obviates the need for a judge to clearly set forth on the record that the post-release supervision is part of the sentence unless the judge seeks to shorten the mandatory five-year period.

Based on records, the law states that each determinate sentence also includes, as a part thereof, an additional period of post-release supervision. Further, the sentence imposed by a sentencing judge is controlling. It is the sentence that constitutes the court’s decision and authorizes the custody of the man.

In a previous related case, the court stated that a trial court has the constitutional duty to ensure that the man, before pleading guilty, has a full understanding of what the plea connotes and its consequences. Even if the court is not required to engage in any particular litany when allocating the man, due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action upon to the man. Sexual abuse is serious.

Moreover, the court held that an offender pleading guilty to a determinate sentence must be aware of the post-release supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of post-release supervision requires reversal of the conviction. Furthermore, the court emphasized the mandatory component of the imposition of the post-release supervision.

Based on records, there is no doubt that the court of appeals sought to ensure that the due process rights of the offender were being protected in cases where said the man takes a plea and that failure to advise him of that additional part of his sentence results in the reversal of the said conviction. The necessity of protecting an offender’s due process rights does not reside exclusively in cases where an offender takes a plea but it extends, as well, to cases where an offender is being sentenced after trial. For that reason, the court clearly express on the record the terms and conditions of the sentence and must be satisfied that the man has a complete understanding of what the sentence entails.

Consequently, as the action by the department of correctional of administratively imposing post-release supervision upon the man post-sentence, it violates the man’s due process rights under the constitution and the writ is thereby sustained.

If you were sentenced for a crime and you want to contest the court’s decision, you can seek legal assistance from the Bronx County Criminal Attorney. However, if you want an expert who specializes on sex crime related cases, you can hire the Bronx County Prostitution Lawyer. Simply visit or give a call at Stephen Bilkis and Associates office for your queries.

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