Opinion
No. KAH 08-00325.
October 3, 2008.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered October 29, 2007 in a habeas corpus proceeding. The judgment denied the petition.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NEAL J. MAHONEY OF COUNSEL), FOR PETITIONER-APPELLANT.
ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Before: Hurlbutt, J.P., Centra, Peradotto, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law without costs, the habeas corpus proceeding is converted to a CPLR article 78 proceeding in the nature of prohibition, the petition is granted and judgment is granted in favor of petitioner as follows: "It is ADJUDGED that respondent is prohibited from imposing upon petitioner a period of postrelease supervision."
Memorandum: Petitioner commenced this habeas corpus proceeding contending that respondent lacked the authority to impose a period of postrelease supervision because the sentencing court had not done so. We note at the outset that, because petitioner has been released from custody and restored to postrelease supervision, habeas corpus relief is no longer available to him ( see People ex rel. Gill v Greene, 48 AD3d 1003, 1004). Instead of dismissing the proceeding as moot, however, we convert the proceeding to one pursuant to CPLR article 78 in the nature of prohibition, and we consider the merits of the appeal ( see CPLR 103 [c]; People ex rel. Eaddy v Goord, 48 AD3d 1307, 1308; Gill, 48 AD3d at 1004). As petitioner correctly notes, the sentencing court did not impose a period of postrelease supervision and, "[b]ecause CPL 380.20 and 380.40 collectively provide that only a judge may impose a . . . sentence [of postrelease supervision], we conclude that [respondent] may not do so" ( Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 360; see People ex rel. Gerard v Kralik, 51 AD3d 1045; People ex rel. Foote v Piscotti, 51 AD3d 1407; People ex rel. Lewis v Warden, Otis Baum Correctional Ctr., 51 AD3d 512).