I previously reported that the Appellate Division, Fourt Department, in People of State of New York ex rel. Lucas Foote v Piscotti, held that persons charged with violating the terms of post release supervision not imposed by judges are entitled to immediate release. In fact, the other three Appellate Divisions have all issued similar decisions (People ex rel Lewis Ward, __ AD3d __, 2008 WL 2051102 [1st Dept 5/1/08]; People ex rel Gerard v Kralik, 2008 NY Slip Op 04895 [2nd Dept 5/27/08]; Prendergast v NYS Dept of Corrections, __ AD3d __, 2008 WL 1902192 [3d Dept 5/1/08]).

Seems pretty clear. So what has our State done with the hundreds of persons currently being incarcerated in New York state based on violations of PRS not imposed by judges? They have sent memos to the judges about how they can get them re-sentenced, and have written to the inmates telling them they will be subject to re-sentencing, but have taken no steps to release these people being held without any valid commitment order or to inform them that they are being illegally detained and are entitled to release forthwith. The Attorney General has taken the position that even when the commitment do not show any judicially imposed sentence of PRS and when the only PRS was illegally imposed by DOCS the person should be held in custody because the commitment order may be incorrect.

Phrased differently, the Attorney General, without citing any authority, argues that, rather than being bound by the terms of commitment orders, DOCS is free to ignore them since they may be incorrect (sort of a presumption of irregularity). And the argument is that, based on this possibility, the person can be detained despite the absence of any commitment order justifying continued custody. In a different context, the Fourth Department held in People v Williams, 191 AD2d 989 [4th Dept 1993] “The police are not at liberty to arrest and hold a suspect while they search for evidence sufficient to justify their action [citations omitted].”