People ex rel. Foote v. Piscotti

51 A.D.3d 1407, 857 N.Y.S.2d 515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2008
• Status: Published

Opinion

Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), entered February 13, 2007 in a habeas corpus proceeding. The judgment denied the petition.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law without costs and the writ of habeas corpus is sustained, and

It is further ordered that respondent is directed to discharge petitioner from custody forthwith.

Memorandum: Petitioner commenced this habeas corpus proceeding contending that the Department of Correctional Services (DOCS) lacked the authority to include a period of postrelease supervision in petitioner’s sentence calculation because the sentencing court had not imposed a period of postrelease supervision. County Court erred in refusing to sustain the writ of habeas corpus based upon its conclusion that postrelease supervision was mandated by law and that nullification of postrelease supervision would render petitioner’s sentence invalid. As the Court of Appeals has written, “[b]ecause CPL 380.20 and 380.40 collectively provide that only a judge may impose a [postrelease supervision] sentence, we conclude that DOCS may not do so” (Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 360 [2008]). Present—Scudder, PJ., Martoche, Green, Pine and Gorski, JJ.