Marino v. Fischer

Jun 12, 2008
Versions:52 A.D.3d 985
858 N.Y.S.2d 610

In the Matter of Leo A. Marino, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent. [858 NYS2d 610]—

Lahtinen, J. Appeal from a judgment of the Supreme Court (Hard, J.), entered August 14, 2007 in Albany County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to prohibit respondent from imposing a period of postrelease supervision upon him.

In 2003, petitioner was convicted of numerous offenses, including burglary in the second degree, and was sentenced to concurrent determinate terms of imprisonment, without explicitly being sentenced to a period of postrelease supervision. Upon learning that respondent intended to subject him to a five-year period of postrelease supervision, petitioner commenced this CPLR article 78 proceeding to prohibit respondent from doing so. Supreme Court dismissed the petition, prompting this appeal.

Subsequent to Supreme Court‘s dismissal, the Court of Appeals and this Court have held that only the courts have the authority to impose a postrelease supervision component of a sentence (see Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 362 [2008]; Matter of Quinones v New York State Dept. of Correctional Servs., 46 AD3d 1268, 1269 [2007]; Matter of Dreher v Goord, 46 AD3d 1261, 1262 [2007]). Accordingly, as respondent‘s imposition of postrelease supervision was outside its jurisdiction, petitioner is entitled to a writ prohibiting respondent from imposing any period of postrelease supervision not included at sentencing by a court (see Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d at 362-363; Matter of Quinones v New York State Dept. of Correctional Servs., 46 AD3d at 1269; Matter of Dreher v Goord, 46 AD3d at 1262).

Cardona, P.J., Mercure, Kane and Kavanagh, JJ., concur. Ordered that the judgment is reversed, without costs, and petition granted.

CARDONA, P.J., MERCURE, KANE and KAVANAGH, JJ., concur.