Muldoon, Getz & Reston

Welcome to the law firm of Muldoon, Getz & Reston - Serving Rochester since 2003

Issues In NY Criminal Law--Vol. 7, #3

Issue: Post-Release Supervision

In 1998 the New York State Legislature enacted Jenna’s Law, which included a "determinate" sentence for violent felony offenses. (A "determinate"sentence is a flat, or fixed, term of imprisonment for a felony -- for example, six years, rather than an indeterminate sentence, such as five to 15 years).

A concomitant of a determinate sentence is "post-release supervision." Penal Law § 70.45. The purpose of post-release supervision was, according to the Governor’s Memorandum, to "eliminate parole." How this was to be accomplished is somewhat unclear -- the monitoring period after release from prison is named differently, but this was basically old wine in new bottles.

Violating post-release supervision (PRS), like violating parole, results in a further period of incarceration -- with PRS, at least six months, and up to the remaining period, which could be five years. Penal Law § 70.45(5)(d).

Determinate sentencing was implemented without difficulty, but with a significant number of defendants the post-release supervision (PRS) component was not. After all, parole was not what a judge pronounces, so it frequently was the case that no pronouncement of PRS was placed on the record at sentencing. Defendants pleaded guilty with the understanding that they would be serving nothing more than the determinate length of the sentence. Only while serving their upstate bid did they learn of the PRS epilogue.

Afterwards -- usually years later -- departments of the executive branch began to impose the PRS component. The apparent basis for this was a kind of "default" provision in Penal Law § 70.45(2): for example, under the previous version of subdivision 2, the judge could impose as little as 1½ years PRS with a first-time VFO conviction, but if the judge failed to state anything, the PRS term was to be five years.

This omission by many judges resulted in a plenitude of litigation in state and federal courts. In the ensuing years, courts have had to grapple with a variety of PRS issues that have arisen in different factual and procedural contexts: CPL 440.10, 440.20, CPLR article 78, habeas corpus, as well as federal habeas corpus.

The Court of Appeals has stated that where PRS was not part of plea negotiations but was stated at sentencing and therefore clear on the face of the record, a CPL article 440 motion is an inappropriate method to raise a PRS issue. People v Louree, 8 NY3d 541, 838 NYS2d 18 (2007). The Court of Appeals has also held that post-release supervision is a "direct," rather than "collateral," consequence of a conviction, which a defendant must be made aware of before pleading guilty. People v Catu, 4 NY3d 242, 792 NYS2d 887 (2005).

Questioning PRS

If a defendant pleaded guilty upon the promise of a specified amount of prison time, and PRS was never mentioned, is a defendant now entitled to vacate the guilty plea? Entitled to specific performance of the agreed-upon sentence? Or should PRS be added, despite its omission from the plea or sentence?

Similar concerns arise with a defendant who is convicted after trial -- is the sentence what was stated by the judge, or something else?

And if a portion of a sentence is not stated on the record, but a court clerk adds it to the commitment papers, what kind of notice is that?

Who’s the judge?

Is sentencing the function of the judicial branch, or may it be imposed administratively? The Second Circuit addressed an unstated PRS component in a federal habeas context (after a CPL 440.20 motion in state court). Based upon United States Supreme Court precedent, the Second Circuit held that a sentence is what the judge has pronounced in court. Any alteration of that sentence, unless by the judge in a subsequent proceeding, is of no effect. Earley v Murray, 451 F3d 71 (2006), rehearing denied 462 F3d 147 (2006).

What’s up, DOCS?

The role of the Department of Correctional Services in correcting an unlawful sentence is to provide timely notification to the district attorney. Correction Law § 601-a. A motion by the prosecution to correct an illegal sentence must be brought within one year. CPL 440.40. If not done so, the sentence, however imperfect, cannot thereafter be corrected by the prosecution or other agency of the executive branch of government.

To allow a PRS term, unstated at sentencing but imposed later on by an administrative agency, is a violation of due process, and perhaps violative of separation of powers as well.

Recent Appellate Division decisions are consistent with Earley v Murray. The Department of Corrections is without authority to impose PRS, as courts are authorized to impose the correct sentence. See, e.g., Dreher v Goord, 48 AD3d 1261, 848 NYS2d 758 (3d Dept 2007).

Knowing waiver of appellate review

The PRS mess also poses significant problems with waiver of the right to appeal. A defendant who pleads guilty and receives the sentence that was promised may have thereby waived the right to appeal. But if a defendant who supposedly waived appellate review has PRS imposed later on, has any "waiver" (knowing, voluntary and intelligent – the intentional relinquishment of a known right, People v Callahan, 80 NY2d 273, 590 NYS2d 46 (1992)) occurred? What of a defendant whose conviction has been appealed and resolved, and who only later finds out that the sentence was not what the sentencing judge said it was, but what DOCS or the Division of Parole has belatedly added?

PRS reveals a larger problem with New York’s sentencing statutes: they are ungodly complicated. The 2007 Commission on Sentencing Reform’s report (available on the Division of Criminal Justice website) is in agreement. An observation by Jacques Barzun may be apropos: "Few things are more characteristic of the modern mind than to take complication for improvement."


"I hate mankind, for I think myself one of the best of them, and I know how bad I am." -- Samuel Johnson


Henry’s Law

A scientific principle applicable to substances, including alcohol: the concentration of gaseous molecules in a system containing both gas and liquid. This is the basis of breath-test analysis, using a 2100 to 1 ratio, the assumed blood-breath partition ratio.
See blood-breath partition ratio.


Copyright© 1999-2008 by Gary Muldoon. All rights reserved.