Wednesday, September 24, 2008

Sentences are Imposed by Judges and Not by DOCS

Norm Effman lived an appellate attorney's dream. On the morning of February 20, 2008 he argued two cases challenging the authority of the Department of Corrections to add a term of post release supervision {PRS} to a sentence when the sentencing judge has not imposed PRS. That afternoon, the Fourth Department issued two decisions (People ex rel. Burch v Goord 2008 NY Slip Op 01445 and People ex rel. Eaddy v Goord 2008 NY Slip Op 01446 ), in which the Court, expressly disavowed to of its prior decisions,granted Norm's clients' their requested releife, and joined the Second Circuit in holind ghtat judges and judges alone, impose sentences:

Supreme Court relied in part on our decisions in People v Hollenbach (307 AD2d 776, lv denied 100 NY2d 642) and People v Crump (302 AD2d 901, lv denied 100 NY2d 537). We reverse, however, because we agree with the decision of the Second Circuit Court of Appeals that, in the event that a court does not impose a period of postrelease supervision as part of a defendant's sentence, the sentence has no postrelease supervision component (Earley v Murray, 451 F3d 71, 76, reh denied 462 F3d 147; see People ex rel. [*2]Gerard [Colarusso] v Kralik, 44 AD3d 804, 804-805; People v Martinez, 40 AD3d 1012; see generally Hill v United States ex rel. Wampler, 298 US 460, 464). As the Court of Appeals has stated, postrelease supervision is a "direct consequence of a criminal conviction" (People v Catu, 4 NY3d 242, 244; see People v Louree, 8 NY3d 541, 545), and we conclude that it therefore must be expressly imposed by the court (see Earley, 451 F3d at 76). To the extent that our prior decisions in Hollenbach and Crump hold otherwise, they are no longer to be followed (see People ex rel. Eaddy v Goord, ___ AD3d ___ [Feb. 20, 2008]).

People ex rel. Burch v Goord [2008 NY Slip Op 01445].

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