Special Edition July 2008 Published by Prisoners’ Legal Services of New York

NEW DEVELOPMENTS REGARDING POST-RELEASE SUPERVISION
DOCS and Parole File Class Action; State Passes New Legislation
Since the Spring 2008 issue of Pro Se went to
press, there have been a number of developments
regarding Post-Release Supervision (PRS). First,
DOCS and Parole filed a class action lawsuit
designed to prevent the release of anyone serving a
determinate term without post-release supervision.
Second, shortly after the class action lawsuit was
filed, but before any decision was reached, the State
passed new legislation concerning PRS. This
special edition of Pro Se traces the history of the
PRS issue and takes a look at the two developments
since our Spring issue.
Background
Before 1995, nearly all sentences in New York
were indeterminate sentences with a minimum and
a maximum. People released before the maximum
were subject to parole supervision until the
maximum expiration of the sentence.
In 1995, the State began to impose determinate
sentences. Determinate sentences do not provide for
discretionary release by the Parole Board. Oneseventh of a determinate sentence is good time, and
if the good time is not taken by the DOCS Time
Allowance Committee (TAC), a person could get
out on a Conditional Release (CR) date, after
serving six-sevenths of the determinate sentence. A
person released at the CR date would be subject to
parole supervision until the maximum expiration.

On September 1, 1998, the statutory framework
for determinate sentences was modified by adding
a requirement in Penal Law § 70.45 that every
determinate sentence must include a period of PRS.
The period of PRS begins after release from prison
and is in addition to the underlying determinate
sentence. In most cases the period is five years, but
in some cases it can be less. Between September 1,
1998 and some time in 2003, judges in many cases
did not mention PRS either at the plea or sentencing
proceeding. Beginning in September 1998, when
people began to arrive in state prison with
determinate sentences that required PRS but where
no PRS was included in the commitment, DOCS
administratively added the required period of PRS
to the sentence. DOCS’ position was that the Penal
Law required the period of PRS automatically,
regardless of whether it was mentioned by the
sentencing court.
People v. Catu
The first major court decision from the New
York Court of Appeals to address PRS was People
v. Catu, 4 N.Y.3d 242 (2005). There, New York’s
highest court ruled that if at the proceeding where
the defendant entered a plea of guilty the sentencing
court failed to inform the defendant that PRS would
be required as part of a determinate sentence, then
the defendant is entitled to vacate the original plea,

This project is supported in part by grants from the New York State Division of Criminal Justice Services, the New York State Bar
Foundation, and the Tompkins County Bar Association. Points of view in this document are those of the author and do not represent
the official position or policies of the grantors.

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Special Edition July 2008

on the ground that the plea was not knowing and
voluntary.
Earley v. Murray
In 2006, the Second Circuit decided Earley v.
Murray, 451 F.3d 71 (2d Cir. 2006). There, the
federal appeals court held that as a fundamental
matter of constitutional law, all components of a
sentence must be imposed by the sentencing court.
In particular, the court held that PRS must be
imposed by the sentencing court to be part of a
sentence and that DOCS does not have the authority
to administratively add PRS to a sentence.
Even after Earley v. Murray was decided,
DOCS continued to administratively impose PRS.
DOCS is bound by decisions of the state courts, and
the state courts are bound by decisions of the U.S.
Supreme Court. However, decisions of the lower
federal courts, such as the Second Circuit, may be
viewed as persuasive, but they are not binding on
state courts. People v. Kin Kan, 78 N.Y.2d 54.
After Earley v. Murray was decided, state courts
began to adopt its holding. By the early part of
2008, all four of New York’s appellate divisions
had adopted the holding of Earley v. Murray, that
PRS must be imposed by the sentencing court in
order to be part of a sentence.
Garner and Sparber
In April 2008, New York’s Court of Appeals
issued two decisions in which it clearly held that
PRS must be imposed by the sentencing court, and
cannot be added administratively to a sentence by
DOCS. The cases are Matter of Garner v. DOCS,
10 N.Y.3d 358 (1988) and People v. Sparber,
10 N.Y.3d 457 (1988). As a result of these two
decisions, it is now clear beyond all dispute that
PRS must be imposed by the sentencing court in
order to be part of a sentence. However, it is equally
clear that a determinate sentence (imposed since
September 1, 1998) without PRS is an illegal
sentence.
Courts generally have inherent authority to
correct an unlawful sentence. While a DA has a
one-year deadline to make a motion to correct a
sentence, if the sentence is unlawful, the court has
the inherent authority to correct it and there is no

deadline for doing so. In both Garner and Sparber,
the Court of Appeals referred to re-sentencing, that
is, a re-sentencing procedure at which the
sentencing court could impose PRS and thereby
correct the unlawful sentence. The Court ordered resentencing in Sparber, where the parties were still
serving the underlying determinate sentences.
However, in Garner, where the petitioner had
completed his determinate sentence and returned to
DOCS custody as a PRS violator, the Court
suggested that re-sentencing might be possible, but
did not resolve that issue. PLS believes there is a
very strong argument that for people who have
completed the sentence imposed by the sentencing
court, re-sentencing would be unlawful in that it
would violate the double jeopardy clause of the U.S.
Constitution.
DOCS’ Re-Sentencing Project
After Garner and Sparber were decided, DOCS
began a re-sentencing project. This involved
identifying all inmates affected--that is, all inmates
with determinate sentences for which PRS was
required but in which PRS did not appear to be
imposed by the court. DOCS has begun
communicating with courts to request that the
courts re-sentence these individuals to impose PRS.
DOCS’ re-sentencing plan includes holding affected
inmates in DOCS custody and maintaining affected
releasees under Parole supervision until resentencing is complete.
The State’s Class Action Lawsuit
On June 4, 2008, the State, DOCS, and the
Division of Parole commenced a class action in
state supreme court, asking the court to approve
their re-sentencing plan. In the class action, the
State asked the court to issue an order granting
DOCS and Parole the legal authority to continue to
hold or maintain supervision over people who have
completed their sentences, and who are held or
supervised solely on the basis of PRS which was
never imposed by a court. The defendants in the
State’s lawsuit were four individuals named as
representatives of a purported class of all people
with determinate sentences that do not have the
required periods of PRS. PLS and the Legal Aid

Special Edition July 2008

Society have worked together to defend against this
lawsuit. The court has not granted the relief sought
by the State. In light of the recently passed statute
on PRS (see below), it now appears that the State
will withdraw, or at least will no longer pursue, the
class action.
New PRS Legislation
As the legislative session was concluding in
June 2008, the State Assembly and State Senate
both passed a bill which addresses the problem of
people who received determinate sentences where
the sentencing court did not impose the statutorily
required period of PRS. Governor Paterson signed
this bill into law on June 30, 2008. Key provisions
of this new law are:

< when DOCS becomes aware that a sentencing
court failed to impose PRS where required by
law, DOCS is required to send a notice to the
court immediately;
< within 10 days of receiving the notice, the court
must assign counsel for the defendant and
schedule an appearance which must occur
within 20 days after the court receives the
notice;
< the court must hold a re-sentencing hearing
within 30 days of receiving the notice, and is
required to issue a decision regarding resentencing within 40 days of receiving the
notice; and
< if the DA consents, the court is authorized to reimpose the original determinate sentence with
no period of PRS.
First, if the original determinate sentence was
the result of a plea, and the defendant was not aware
that PRS would be part of the sentence, he has
aright to withdraw the plea, and go back to the
position he was in before entering a plea. The new
bill is only written in terms of the court’s authority

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to correct an unlawful sentence through resentencing. But, for people whose determinate
sentences resulted from a plea, the defendant’s right
to withdraw the plea may trigger a new plea
bargaining process, or possibly a trial, rather than
just a re-sentence.
Second, for people who have completed the
original sentence as imposed by the court, the
double jeopardy clause of the U.S. Constitution
would appear to prohibit re-sentencing, while the
statute requires it unless the DA consents to reimposition of the original sentence without PRS.
Third, if you are confined in prison or jail solely
on the basis of a PRS violation, where PRS was
never imposed as part of your sentence, then, when
you appear for re-sentencing, you should argue that
you are entitled to immediate release from custody,
on the ground that, if there was not a valid period of
PRS, there could not be a valid PRS violation. If
there was not a valid, court-imposed period of PRS,
a PRS violation warrant is just as much a nullity as
administratively-imposed PRS, and does not
authorize confinement.
What To Expect
In light of the new statute, people with
determinate sentences and no court-imposed PRS
can expect to be returned to court for re-sentencing
proceedings. The new statute requires that the resentencing proceedings take place in a very short
time frame. Because the new statutory deadlines for
re-sentencing are so short, i.e., 40 days from first
notice to the court to any re-sentencing decision, it
is unlikely that PLS will be able to address these
cases through habeas corpus, since it is likely the resentencing will be decided before PLS could obtain
the documents needed to support a habeas corpus.
If you are returned to court for a re-sentencing
procedure, the court will assign an attorney to
represent you.
Take care and best of luck.

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Special Edition July 2008

PLS OFFICES AND THE FACILITIES SERVED

Requests for legal representation and all other problems should be sent to the local office that covers the prison in
which you are incarcerated. Below is a list identifying the prisons each PLS office serves:
ALBANY
301 South Allen Street, Albany, NY 12208
Prisons served: Arthurkill, Bayview, Beacon, Bedford Hills, Mt. McGregor, Summit Shock, CNYPC, Coxsackie,
Downstate, Eastern, Edgecombe, Fishkill, Fulton, Great Meadow, Greene, Greenhaven, Hale Creek, Hudson, Lincoln,
Marcy, Midstate, Mid-Orange, Mohawk, Oneida, Otisville, Queensboro, Shawangunk, Sing Sing, Sullivan, Taconic,
Ulster, Wallkill, Walsh, Washington, Woodbourne.
BUFFALO
Statler Towers, Suite 1360, 107 Delaware, Avenue, Buffalo, NY 14202
Prisons served: Albion, Attica, Buffalo, Collins, Gowanda, Groveland, Lakeview, Livingston, Orleans, Rochester,
Wende, Wyoming.
ITHACA
102 Prospect Street, Ithaca, NY 14850
Prisons served: Auburn, Butler, Camp Georgetown, Monterey Shock, Camp Pharsalia, Cape Vincent, Cayuga,
Elmira, Five Points, Southport, Watertown, Willard.
PLATTSBURGH
121 Bridge Street, Suite 202, Plattsburgh, NY 12901
Prisons served: Adirondack, Altona, Bare Hill, Camp Gabriels, Chateaugay, Clinton, Franklin, Gouverneur,
Lyon Mountain, Moriah Shock, Ogdensburg, Riverview, Upstate.

Pro Se is printed and distributed free through grants from the New York State Bar Foundation
and the Tompkins County Bar Association.