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Supreme Court, Bronx County, May 21, 2008
APPEARANCES OF COUNSEL
Legal Aid Society (Steven Banks and Elon Harpaz of counsel), for petitioner. Andrew M. Cuomo, Attorney General (Andrew Meier of counsel), for respondents.
{**20 Misc 3d at 517} OPINION OF THE COURT
Caesar D. Cirigliano, J.
Petitioner seeks a writ of habeas corpus on the grounds that his due process rights have been violated by the administrative imposition of a period of postrelease supervision (hereinafter PRS) by the respondent New York State Division of Parole (hereinafter Division).
On May 30, 2002, the Honorable Evelyn L. Braun of Queens County Supreme Court sentenced petitioner to a determinate term of five years' imprisonment for a single count of sexual abuse in the first degree. A period of PRS was not imposed at the time of sentence nor was a period of PRS added to petitioner's commitment sheet as per a copy of the same provided by respondents. Nevertheless, a five-year period of PRS was administratively imposed on petitioner which is not set to expire until August 27, 2011.
In 2006, petitioner was released and on June 21, 2006, parole violation warrant No. 468007 was issued and lodged against petitioner, charging him with violations of the conditions of his release. Petitioner waived his preliminary parole revocation hearing and, on September 18, 2006, he had his final parole revocation hearing. Petitioner was found to be in violation of the conditions of his release and a time assessment of 24 months was imposed. Petitioner is currently incarcerated at Mohawk Correctional Facility in Oneida County.
On October 15, 2007, Justice Braun issued a decision on a motion brought by the petitioner pro se in which he argued against the imposition of PRS. Justice Braun noted that "[o]n May 30, 2002, defendant was sentenced to a determinate term of imprisonment of five years. [*2]During the imposition of sentence, the Court did not refer to the period of post-release supervision which defendant was informed about during the plea allocution." Justice Braun made a determination that because she had advised petitioner during the plea allocution that a five-year period of postrelease supervision would accompany his determinate sentence, that the proper remedy was to resentence petitioner to the five-year PRS nunc pro tunc "in accordance to the plea entered on May 2, 2002." The matter was set down for resentencing and on February 29, 2008, Justice Braun resentenced defendant to a five-year PRS nunc pro tunc.
The issue before this court is whether a defendant could be violated for PRS where none existed. It is not this court's intention{**20 Misc 3d at 518} to review the decision or actions of a judge of concurrent jurisdiction; however, as the matter is before this court, the issue of the appropriateness of the imposition of PRS by the respondents must be addressed.
Discussion and Conclusion
Prior to the Court of Appeals recent holdings in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]) and People v Sparber (10 NY3d 457, 2008 NY Slip Op 03946 [2008]), numerous lower courts have addressed the question of whether the Department of Correctional Services (hereinafter DOCS) and/or the Division of Parole had the statutory authority
to administratively impose PRS where none has been pronounced by the sentencing court.[FN1] However, in Garner (at 362), the Court of Appeals very clearly held that "the combined command of CPL 380.20 and 380.40 is that the sentencing judge

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