Summary
In Garner, the Court of Appeals held that the Department of Correctional Services may not administratively add a mandatory period of postrelease supervision onto a sentence where such period was not pronounced by the sentencing judge.
Summary of this case from State of New York v. MyersOpinion
No. 98679.
April 12, 2007.
Appeal from a judgment of the Supreme Court (Malone, Jr., J.), entered June 27, 2005 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to prohibit respondents from imposing a period of postrelease supervision upon him.
Elliott Garner, New York City, appellant pro se.
Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondents.
Before: Mercure, J.P., Spain, Carpinello and Kane, JJ.
Following an unsuccessful motion to vacate his sentence ( see CPL 440.20) on the ground that the sentencing court did not inform him that he would be subject to a mandatory five-year period of postrelease supervision ( see People v Lindsey, 302 AD2d 128, 129, lv denied 100 NY2d 583 [2003]; see also Penal Law § 70.45), petitioner commenced this proceeding to prohibit respondents from imposing that part of his sentence. As respondents are only enforcing, not imposing, a part of petitioner's sentence which was automatically included by statute, they have not performed any judicial function, making prohibition an unavailable remedy ( see Matter of Deal v Goord, 8 AD3d 769, appeal dismissed 3 NY3d 737). Accordingly, the petition was properly dismissed, albeit for reasons different from those stated by Supreme Court.
Ordered that the judgment is affirmed, without costs.