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Supreme Court, Kings County, December 17, 2007
APPEARANCES OF COUNSEL
Anthony Stroman, defendant pro se. Charles J. Hynes, District Attorney (Joyce Slevin of
counsel), for plaintiff. {**18 Misc 3d at 618} OPINION OF THE COURT John M. Leventhal, J. Issue Presented The novel jurisdictional issue presented is whether the imposition of postrelease supervision (PRS) by the New York State Department of Correctional Services (DOCS) should be nullified when this court never imposed PRS on defendant, but a court of concurrent jurisdiction ruled that DOCS was correct in doing so in response to defendant's habeas corpus petition.[FN1] Facts In March of 1999, defendant Anthony Stroman entered a plea of guilty to burglary in the second degree and assault in the second degree as a second violent felony offender and was sentenced to two concurrent determinate terms of seven years.[FN2] It is undisputed that in the
sentencing proceeding, this court failed to notify the defendant that his sentence would include a period of PRS. The commitment order prepared and signed by the clerk also contained no mention of PRS.
The defendant was released from prison on November 22, 2004. On November 16, 2006, [*2]he was arrested and charged with{**18 Misc 3d at 619} assault in the second and third degrees, criminal contempt in the first degree, and obstructing governmental administration in the second degree. After a hearing on February 15, 2007, at which defendant pleaded guilty to one charge of
violating his PRS, he was returned to the custody of the DOCS.[FN3]
On or about June 1, 2007, defendant filed a petition for a writ of habeas corpus in Columbia County Supreme Court. The Acting Justice of that court issued a writ returnable before the Jefferson County Supreme Court on June 5, 2007 because the defendant was incarcerated at a
correctional facility in that county.[FN4]
On July 11, 2007, the defendant filed and served a "notice of Motion for Stay of Trial to Allow Motion for a Change of Venue."[FN5] Since the respondent did not oppose the defendant's request for a stay, the Jefferson County Supreme Court granted the defendant's motion and stayed the proceedings for 30 days.
The defendant failed to file a motion for a change of venue during the 30-day stay. Therefore, the Jefferson County Supreme Court decided the defendant's petition for a writ of habeas corpus on September 12, 2007. The petition was denied and dismissed.
On or about September 25, 2007, defendant made a motion before this court pursuant to CPL
440.20 to vacate the five-year period of PRS added to his sentence by DOCS, or, in the alternative, to clarify that his sentence never included and does not now include a five-year period of postrelease supervision. The People filed an answer on November 29, 2007.
Discussion
Ordinarily concepts of res judicata and collateral estoppel[FN6] would preclude this court from rehearing the identical issue decided by the Supreme Court, Jefferson County in the defendant's petition for a writ of habeas corpus; namely, whether the imposition of PRS by DOCS was properly imposed absent such condition being part of the plea bargain and sentence. Courts, however, are expressly authorized by the{**18 Misc 3d at 620} legislature to consider a motion to set aside a
sentence, "in the interest of justice and for good cause shown" where the identical issue was "previously determined on the merits" (CPL 440.20 [3]).[FN7] [*3]
The unfortunate reality is that the resolution of the PRS issue raised by the defendant in his writ in Jefferson County would have been different depending on the venue in which it was initially raised. This court is well aware of the split in authority within the various Appellate Divisions on whether or not a sentence imposed without PRS automatically includes or excludes such a period in the sentence. Had the defendant first brought his writ for habeas corpus in this court or any other court within the Second Judicial Department, he would have succeeded because the administrative addition of five years of PRS would not have been considered a part of his sentence (see e.g. People v Martinez, 40 AD3d 1012 [2007]; People v Brown, 39 AD3d 659 [2007]; People v Sebastian, 38 AD3d 576 [2007]; People v Wilson, 37 AD3d 855 [2007]). The defendant, however, declined to take advantage of the opportunity to change venue, and his writ was decided and denied on the merits by the Supreme Court of Jefferson County, which properly followed Fourth Department precedent holding that a period of PRS is automatically added to a sentence by operation of law (People v Carollo, 23 AD3d 1129 [4th Dept 2005]; see also Matter of Garner v New York State Dept. of Correctional Servs., 39 AD3d 1019 [3d Dept 2007]).
This court finds that the uncertainty in the law at the time of defendant's application for a writ of habeas corpus warrants this court to revisit the issue of the administrative addition of postrelease supervision in the "interest of justice and for{**18 Misc 3d at 621} good cause shown." The Court of Appeals most recent pronouncement on PRS was made in People v Hill (9 NY3d 189, 191 [2007]), in which it held that "the failure of a court to advise of postrelease supervision requires reversal of the conviction." In Hill, the defendant was not informed, either during his plea or during the sentencing proceeding, that his sentence included a five-year period of PRS. Defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction because he was not informed of the PRS. The motion was denied, but defendant's sentence was modified to 12

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