Garner v. New York State Department of Correctional Services

Appellate Division of the Supreme Court of New York

Garner v. New York State Department of Correctional Services

39 A.D.3d 1019, 831 N.Y.S.2d 923

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 12, 2007

StatusPublished

Cited by12 cases

This text of 39 A.D.3d 1019 (Garner v. New York State Department of Correctional Services) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garner v. New York State Department of Correctional Services, 39 A.D.3d 1019, 831 N.Y.S.2d 923 (N.Y. Ct. App. 2007).

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Opinion

Lahtinen, J.

Appeal from a judgment of the Supreme Court (Malone, Jr., J.), entered June 27, 2005 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to prohibit respondents from imposing a period of postrelease supervision upon him.

Following an unsuccessful motion to vacate his sentence (see CPL 440.20 [1]) on the ground that the sentencing court did not inform him that he would be subject to a mandatory five-year period of postrelease supervision (see People v Lindsey, 302 AD2d 128, 129 [2003], lv denied 100 NY2d 583 [2003]; see also Penal Law § 70.45 [1]), petitioner commenced this proceeding to prohibit respondents from imposing that part of his sentence. As respondents are only enforcing, not imposing, a part of petitioner’s sentence which was automatically included by statute, they have not performed any judicial function, making prohibition an unavailable remedy (see Matter of Deal v Goord, 8 AD3d 769 [2004], appeal dismissed 3 NY3d 737 [2004]). Accordingly, the petition was properly dismissed, albeit for reasons different from those stated by Supreme Court.

Mercure, J.P, Spain, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Lahtinen, J.

Appeal from a judgment of the Supreme Court (Malone, Jr., J.), entered June 27, 2005 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to prohibit respondents from imposing a period of postrelease supervision upon him.

Following an unsuccessful motion to vacate his sentence (see CPL 440.20 [1]) on the ground that the sentencing court did not inform him that he would be subject to a mandatory five-year period of postrelease supervision (see People v Lindsey, 302 AD2d 128, 129 [2003], lv denied 100 NY2d 583 [2003]; see also Penal Law § 70.45 [1]), petitioner commenced this proceeding to prohibit respondents from imposing that part of his sentence. As respondents are only enforcing, not imposing, a part of petitioner’s sentence which was automatically included by statute, they have not performed any judicial function, making prohibition an unavailable remedy (see Matter of Deal v Goord, 8 AD3d 769 [2004], appeal dismissed 3 NY3d 737 [2004]). Accordingly, the petition was properly dismissed, albeit for reasons different from those stated by Supreme Court.

Mercure, J.P, Spain, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

39 A.D.3d 1019, 831 N.Y.S.2d 923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garner-v-new-york-state-department-of-correctional-services-nyappdiv-2007.

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