Opinion
75068/07.
Decided June 5, 2008.
Pursuant to CPLR Section 2221(e), petitioner has moved for leave to renew the Decision and Order of this Court dated August 15, 2007 (Fisch, J.) (the "Decision") denying his petition for a writ of habeas corpus on the ground that there has been a change in the law that would require a different outcome. For the reasons set forth below, petitioner's motion for leave to renew is granted, and the petition for a writ of habeas corpus is sustained.
This motion has been assigned to me as Justice Fisch has since left the bench.
The facts are fully set forth in the Decision and are only briefly recited herein. On May 30, 2001, petitioner was convicted in Supreme Court, New York County, of two counts of Criminal Possession of a Weapon in the Third Degree [Penal Law § 265.02(4)] and sentenced to a determinate term of five years imprisonment. A term of post-release supervision ("PRS") was not pronounced by the court at the time of sentence or entered upon the sentence and commitment. On or about December 3, 2004, petitioner was advised by the Department of Corrections ("DOCS") that he would also be subject to a five-year term of PRS, and was released under the supervision of the New York State Division of Parole . Thereafter, a parole warrant alleging violations of PRS was issued and lodged against petitioner, and on August 14, 2006, a final revocation hearing was held and a time assessment of 14 months was imposed.
It is not clear whether petitioner is currently being detained as a result of the PRS violation alone, or for some other, additional reason.
On or about April 11, 2007, petitioner filed a writ of habeas corpus alleging that PRS was improperly imposed upon him by DOCS in the absence of a direction to do so by the court. The Decision dismissed the writ in reliance upon the First Department's decision in People ex rel. Garner v. Warden, 40 AD3d 243 (1st Dept. 2007) (" Garner I"). In Garner I, the First Department affirmed the denial of a petition seeking to vacate a parole warrant for violations of PRS where PRS had been imposed by DOCS without a direction from the court. See Garner I, 40 AD3d at 243. In Garner I, the First Department relied in part upon the fact that the petitioner had previously filed an unsuccessful Article 78 petition seeking to prohibit DOCS from imposing PRS. See Garner I, 40 AD3d at 244 [citing Matter of Garner v. New York State Dept. of Correctional Servs., 39 AD3d 1019 (3rd Dept. 2007) (" Garner II")]. The First Department in Garner I accorded "res judicata effect" to the Third Department decision in Garner II. Id.
Petitioner filed a notice of appeal from the Decision on September 11, 2007.
After the First Department decided Garner I, it decided People v. Figueroa, 45 AD3d 297 (1st Dept. 2007). Petitioner claims that Figueroa constitutes a controlling "change in the law that would change the prior determination." CPLR § 2221(e). In Figueroa, the First Department held that DOCS "lacked authority to add PRS to defendant's sentence" in the absence of a direction by the court because DOCS was "conclusively bound by the contents of commitment papers accompanying a prisoner." Figueroa, 45 AD3d at 298 (citations and italics omitted).
More recently, the Court of Appeals decided Matter of Garner v. New York State Dept. of Correctional Servs., 10 NY3d 358 (2008) (" Garner III"). In Garner III, the Court of Appeals reversed the Third Department's decision in Garner II. Specifically, in Garner III, the Court of Appeals held that Garner was entitled to the "extraordinary" relief of a writ of prohibition "barring DOCS from administratively adding a five-year PRS term to his sentence." 10 NY3d at *2. The rationale for Garner III was that DOCS was "acting in a judicial capacity" that was "in excess of DOC's jurisdiction" by administratively imposing PRS in the absence of a direction by the court. Id.
Based upon Figueroa and Garner III, it is clear that there has been an appellate change in the law that is binding upon this Court and that would change the outcome of the Decision. Indeed, the Decision relied on Garner I, which relied in part on Garner II, which, in turn, was ultimately reversed in Garner III.
Finally, there do not appear to be any procedural bars to a motion for leave to renew here. Although a motion for leave to reargue must be made within "thirty days after service of a copy of the order . . . [with] notice of entry," [CPLR § 2221(d)(3)], a motion for leave to renew pursuant to CPLR Section 2221(e) is not subject to the same explicit statutory deadline. To the extent it has been held that a motion for leave to renew must be made within the time limits applicable to appeals or motions to reargue, see Glicksman v. Board of Ed., 278 AD2d 364 (2nd Dept. 2000), the First Department has held that when, as here, "the motion for leave to reargue [is] made . . . after [the] filing of a notice of appeal but prior to the perfection of the appeal, the granting of reargument [is] an appropriate exercise of the court's discretion." Leist v. Goldstein, 305 AD2d 468, 469 (1st Dept. 2003) (citations omitted).
Petitioner avers that he was never served with a copy of the Decision with notice of entry. This allegation has not been controverted.
Accordingly, based on the First Department's holding in Figueroa and the Court of Appeals' decision in Garner III, this Court is constrained to grant the petitioner's application for a writ of habeas corpus as it appears DOCS administratively imposed PRS upon petitioner. The motion for leave to renew the Decision is granted, the writ of habeas corpus is sustained, the parole warrant # 388635 is vacated, and pursuant to CPLR Section 7010, if there is no legal basis for Lopez's detention other than the violation of PRS administratively imposed by DOCS, this Court directs respondents to discharge Lopez forthwith.
The foregoing constitutes the Decision and Order of the Court.