Court of Claims of New York.
Sidney BURCH, Claimant,
v.
STATE of New York, Defendant.

No. 115299.
July 24, 2009.

Joel Berger, Esq., for Claimant.

Andrew M. Cuomo, New York State Attorney General, by Michael T. Krenrich, Esq., Assistant Attorney General, for Defendant.

FRANK P. MILANO, J.

*1 Claimant moves for summary judgment as to defendant's liability for this wrongful confinement claim, as alleged in claimant's first cause of action. The claim alleges that defendant unlawfully added a period of mandatory post-release supervision (PRS) onto claimant's sentence of incarceration even though the PRS term was never imposed by the sentencing judge. Claimant further alleges that the administratively imposed PRS term ultimately resulted in claimant's unlawful confinement for nearly three years, until claimant's release on February 25, 2008, pursuant to a Memorandum Order of the Appellate Division, Fourth Department, issued upon a writ of habeas corpus ( People ex rel Burch v. Goord, 48 AD3d 1306 [4th Dept 2008] ).

Claimant has also alleged a cause of action for violation of his federal constitutional rights. The federal constitutional cause of action is not the subject of either the claimant's motion for partial summary judgment or defendant's cross-motion for summary judgment. The Court notes, however, that it is well-settled that no cause of action for damages against the State of New York exists for an alleged violation of an individual's rights under the United States Constitution since the State is not a ?person? amenable to suit pursuant to 42 USC § 1983 ( see Matter of Gable Transport, Inc. v. State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v. State of New York, 286 A.D.2d 496, 498 [2d Dept 2001]; Zagarella v.. State of New York, 149 A.D.2d 503 [2d Dept 1989]; Davis v. State of New York, 124 A.D.2d 420, 423 [3d Dept 1986) ] ).

Defendant opposes the motion and cross-moves for summary judgment dismissing the claim. Defendant's cross-motion to dismiss will be considered first.

Defendant concedes that the facts essential to resolution of these motions ?are not in dispute.? On September 7, 2004, claimant pled guilty to violating conditions of his probation, previously imposed for a conviction of Attempted Robbery in the Second Degree. Bronx County Supreme Court, pursuant to a plea bargain, revoked his probation and sentenced claimant to a determinate term of two years incarceration on the original conviction of Attempted Robbery in the Second Degree. Neither the sentence imposed nor the sentencing commitment order included a period of post-release supervision.

Despite the clear and unambiguous terms of the sentence and sentencing commitment order, defendant administratively imposed a three year period of PRS to the claimant's sentence, to commence upon his release from incarceration on May 20, 2005. This, even though the sentencing judge had discretion to set claimant's (a first time violent felony offender) term of PRS, had the judge imposed it, at between 1 1/2 and 3 years under Penal Law 70.45(2). While subject to the administratively imposed period of PRS, claimant was declared delinquent for violating the PRS terms, arrested and incarcerated from August 30, 2005 until released on February 25, 2008, in accordance with the Memorandum Order of the Appellate Division, Fourth Department, described above.

*2 To establish that he was wrongfully confined, claimant must prove that ?(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged? ( Broughton v. State of New York, 37 N.Y.2d 451, 456 [1975], cert denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929; Krzyzak v. Schaefer, 52 AD3d 979 [3d Dept 2008] ).

Defendant concedes that claimant satisfies the first three elements of the claim for wrongful confinement but argues that the confinement was privileged. ?Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged ... and everyone connected with the matter is protected from liability for false imprisonment? ( Holmberg v. County of Albany, 291 A.D.2d 610, 612 [3d Dept 2002], lv denied 98 N.Y.2d 604 [2002] ).

Defendant asserted as defenses that the claim failed to state a cause of action and that the defendant's actions ?were privileged as being judicial, quasi-judicial or discretionary determinations ... and therefore defendant is immune from liability for such actions.? In opposing claimant's motion and in its cross-motion for summary judgment, defendant argues that ?both the plain language of the statute and the then prevailing decisional law required Claimant to serve a three year period of PRS as a mandatory component of his determinate sentence.?

This Court considered and rejected a similar assertion of defendant that it was either permitted or mandated by statute to administratively impose a term of PRS on claimant, and that the confinement was therefore privileged, in Donald v. State of New York (24 Misc.3d 329 [Ct Cl 2009] ). In Donald, defendant relied upon Penal Law §§ 70.00(6) and 70.45(1), rather than Penal Law § 70.45(2) which it now cites, in making its statute-based argument, but defendant's assertion of privilege remains unpersuasive in view of the absence of express statutory authority to administratively impose PRS, the explicit statutory instruction (CPL §§ 380.20 and 380.40) that only a court may impose sentence and the fact that Penal Law § 70.00(6) expressly stated at all relevant times that the court, and not DOCS or any other administrative agency, is required to impose any applicable term of PRS:

?Determinate sentence. Except as provided in subdivision four of this section and subdivisions two and four of section 70.02, when a person is sentenced as a violent felony offender pursuant to section 70.02 or as a second violent felony offender pursuant to section 70.04 or as a second felony offender on a conviction for a violent felony offense pursuant to section 70.06, the court must impose a determinate sentence of imprisonment in accordance with the provisions of such sections and such sentence shall include, as a part thereof, a period of post-release supervision in accordance with section 70.45.? (emphasis added).

*3 Nor did, as defendant argues, ?prevailing decisional law? require or permit defendant to exercise discretion or authority to impose a term of PRS on claimant and thus render defendant immune from liability.

In support of this proposition, defendant cites, among other cases, two federal district court actions which involved allegations of violation of the federal due process rights of the plaintiffs based upon unlawful imposition of PRS, Sinclair v. Goord and Doe (CV-1317-LEK-RFT [ND NY, filed March 10, 2009] ), and Scott v. Fischer, et al. (2009 WL 928195, 07-CV-11303-NRB [SD NY, filed March 30, 2009] ). The federal decisions, in finding the defendants' conduct in imposing PRS objectively reasonable in that it did not violate clearly established law, did not address the following: The explicit statutory instruction (Criminal Procedure Law §§ 380.20 and 380.40) that only a court may impose sentence; that Penal Law § 70.00(6) expressly stated at all relevant times that the sentencing court, and not DOCS or any other administrative agency, is required to impose any applicable term of PRS; that ?prior decisional law? relying only on decisions holding that PRS was ?automatically? included in the sentence ignores an even greater number of decisions from the same time period in which a sentencing court's failure to impose PRS was held to be unlawful; that a state agency acting in the clear absence of jurisdiction is not entitled to immunity; that long-ago decided decisions, federal and state, clearly established that sentencing is exclusively a judicial prerogative; and that the New York State Department of Correctional Services had, prior to the emergence of the PRS issue, acted beyond its jurisdiction by similarly inserting itself administratively in the sentencing process and, as a consequence, was repeatedly found liable for wrongful confinement ( Donald, 24 Misc.3d at 339-341).

Defendant's selective reliance on ?prevailing decisional law? is particularly specious as defendant had begun the practice of administratively imposing PRS terms on inmates similarly situated to claimant before any ?prevailing decisional law? had emerged. In Donald v. State of New York (cited above) for instance, defendant administratively imposed the PRS term on inmate Donald just prior to Donald's release from incarceration on July 10, 2000. All but one of the cases cited by defendant as ?prior decisional law? are dated after 2000. That some lower courts subsequently, and mistakenly, sanctioned defendant's extra-jurisdictional and illegal actions does not, after the fact, confer privilege or immunity upon defendant for wrongfully confining claimant.

And again, as noted in Mickens v. the State of New York 2009 N.Y. Slip Op 29256 [Ct Cl 2009] ), defendant's (and the federal district courts') reliance upon ?prior decisional law? holding that PRS was ?automatically included? in the sentence ?overlook[s] an even greater number of decisions from the same time period in which a sentencing court's failure to impose PRS was held to be unlawful.?

*4 Specific to this claim, defendant's claim of reliance on ?prior decisional law? to support a defense of immunity is unsupported by the facts. Defendant imposed the PRS term on claimant on his release from incarceration on May 20, 2005. By that time, the Court of Appeals had already issued its opinion in People v. Catu (4 NY3d 242, 245 [March 24, 2005] ) in which the court held that ?a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action.? Surely defendant, in carefully tracking PRS decisional law, as suggested in its cross-motion papers, would have learned that ?[p]ostrelease supervision is a direct consequence of a criminal conviction? and that ?the court must advise a defendant of the direct consequences of the plea? ( Catu, 4 NY3d at 244). If, as mandated by Catu, a guilty plea must be vacated upon a sentencing court's failure to advise the pleading defendant of the PRS requirement prior to defendant pleading guilty, then clearly defendant was aware approximately two months prior to May 20, 2005, that it had no authority to administratively impose a PRS term upon claimant more than six months after his plea (under the same circumstances as Catu ) in the sentencing court.

Further, it is clear that where, as here, a state agency has ?acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are prosecutorial or quasi-judicial in nature? ( Pietra v. State of New York, 71 N.Y.2d 792, 796 [1988] )

As set forth at length in Donald, any claim of defendant to have been acting in good faith under a mistaken belief that it was required or permitted to add a PRS term on claimant is unpersuasive in view of the complete absence of statutory authority to do so, the explicit statutory instruction (CPL §§ 380.20 and 380.40) that only a court may impose sentence, together with ?long-ago decided decisions, federal and state, making it clear that sentencing is exclusively a judicial prerogative.?

Finally, the Donald decision reminds that defendant has, in the past, acted beyond its jurisdiction by inserting itself in the sentencing process and found itself liable for wrongful confinement for having done so. In People ex rel Johnson v. Martin (283 App.Div. 478, 481 [4th Dept 1954], affd 307 N.Y. 713 [1954] ), the court instructed that:

?The passing of sentence upon one convicted of a crime as well as the suspension of sentence is the sole prerogative and duty of the court. The judge must fix the punishment and the limits thereof within the bounds which the Legislature has provided for the crime. The Commissioner of Correction by himself or acting through his agents has no authority to sentence a prisoner nor to fix the limits of his confinement.?

*5 The Johnson decision resulted in a series of successful wrongful confinement lawsuits in the Court of Claims by inmates similarly situated to Johnson ( see Waterman v. State of New York, 207 Misc. 773 [Ct Cl 1955], affd 1 A.D.2d 235 [4th Dept 1956], affd 2 N.Y.2d 803 [1957] ); Williams v. State of New York (5 A.D.2d 936 [3d Dept 1958], lv denied 4 N.Y.2d 678 [1958]; Brown v. State of New York, 10 Misc.2d 833 [Ct Cl 1958], appeal dismissed 6 A.D.2d 1022 [4th Dept 1958] ); Todzia v. State of New York, 53 Misc.2d 200 [Ct Cl 1967] ).

Defendant further asserts that claimant would be provided a ?windfall? were he to obtain monetary damages for wrongful confinement because he would have been required to serve the administratively imposed PRS term of three years except for ?the sentencing court's error.?

Initially, it is again particularly troublesome in the instant matter, as in Donald, that defendant usurped the discretion vested in the sentencing court under Penal Law § 70.45(2) to impose a PRS term upon claimant of between 1 1/2 and 3 years, by unlawfully imposing any term of PRS upon claimant, let alone presumptively adding the maximum term of three years.

More importantly, defendant's contention ignores the possibility that if defendant had acted lawfully upon learning of the ?sentencing court's error? and sought judicial re-sentencing as statutorily provided (CPL §§ 380.20 and 380.40), claimant may have chosen to withdraw his plea ( Catu, 4 NY3d at 244), be tried on the violation of probation charges and be acquitted.

Catu, explains, at 245, that:

?Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction. The refusal of the trial court and Appellate Division to vacate defendant's plea on the ground that he did not establish that he would have declined to plead guilty had he known of the postrelease supervision was therefore error.?

Defendant's contention further ignores the possibility that, even now, should defendant seek re-sentencing of claimant, the sentencing court could decline to impose a PRS term (Correction Law § 601-d [5][b] ). The commentaries to the statute note that:

?The review provided for by this section will ensure the validity of the defendants' underlying convictions, although it is possible that some defendants may avoid serving all or a portion of their period of PRS as a result? (Bonacquist, Practice Commentary, McKinney's Cons Laws of NY, 2009 Electronic Update, Correction Law § 601-d).

Defendant, citing several Court of Claims decisions, including Vazquez v. State of New York (23 Misc.3d 1101[A] [Ct Cl 2009] ), also suggests that if defendant had not acted improperly and outside its authority in administratively imposing PRS upon claimant, but instead the sentencing court had properly imposed the PRS sentence, claimant would have had to serve the statutorily required PRS term and thereby, accordingly, has suffered no injury.

*6 Vazquez stated at relevant part as follows:

?Lastly, even if the conduct of DOCS was exclusively ministerial, no liability may be imposed because, for the reasons set forth above, the conduct was not tortious ( Tango v. Tulevech, 61 N.Y.2d at 40; see also Lauer v. City of New York, supra). As this Court indicated in Collins v. State of New York, (UID No.2007-015-252 [Ct Cl, December 31, 2007] Collins, J.)[7], had the sentencing Court informed the claimant of the period of postrelease supervision there would be no cause of action as the period of postrelease supervision prescribed in Penal Law § 70.45 is mandatory for individuals subject to a determinate sentence . Neither this claimant nor the movant in Collins alleged that the sentence imposed was not one subject to postrelease supervision pursuant to the Penal Law. Here, as in Collins, all that is alleged is that the claimant was made subject to postrelease supervision, which the facts indicate was consistent with the statutory requirement applicable to determinate sentencing. Under these circumstances it cannot be said that the conduct complained of was tortious or the cause in fact of the claimant's injuries.? (emphasis added).

Defendant's argument, which asserts that claimant has no cause of action for wrongful confinement and/or suffered no injury by reason of defendant's actions because, had claimant's PRS term been initially imposed by the sentencing court or had the defendant sought re-sentencing by the sentencing court, claimant would have been lawfully confined and/or suffered no injury, is circular in its reasoning: Claimant was not wrongfully confined and/or suffered no injury because he would have been confined anyway if properly sentenced in the first instance or if the defendant had subsequently acted lawfully.

This argument can be described, to use a common sports aphorism, as ?no harm, no foul.? But in the Court's view, harm, in the form of either incarceration or otherwise restricted liberty, accrued until claimant was either lawfully sentenced by a court of law or released from incarceration or parole supervision.

It is this Court's opinion that the harm, once done, is not excused or said to be without tangible, meaningful redress by suggesting that had lawful procedures been followed, this claimant, or other similarly situated claimants, would have or may have endured, by lawful judicial action, the same limitation of liberty that defendant unlawfully imposed.

It is further clear that subsequent legal proceedings favorable to the defendant cannot serve as justification for defendant's prior extra-jurisdictional and illegal confinement of claimant ( Broughton, 37 N.Y.2d at 458, ?[a]fter the fact judicial participation cannot validate an unlawful arrest; only probable cause existing at the time of arrest will validate the arrest and relieve the defendant of liability?).

Defendant further ignores the holding in Matter of State of New York v. Randy M. (57 AD3d 1157, 1159 [3d Dept 2008] ):

*7 ?[R]espondent could not validly be incarcerated for violating a term of postrelease supervision which was not properly imposed ... The court's later resentencing of respondent did not operate retroactively to cure the illegal imposition of postrelease supervision, meaning respondent could not validly be punished for violating the terms of postrelease supervision until after it was imposed by a court.? (emphasis added).

The invalidity of defendant's suggestion that claimant cannot recover because he would have been confined anyway had he been properly sentenced is further illustrated by the holding in Montanaro v. State of New York (42 Misc.2d 851 [Ct Cl 1964] ). In Montanaro, the claimant was confined at a state hospital on August 23, 1960 based upon an order of commitment issued by a local court judge which was later found to have been issued improperly because the police officer who had arrested claimant had not signed the underlying criminal information and because claimant had not yet been arraigned on the charge. On September 12, 1960, a proper order of commitment was issued by a county court. The Montanaro court held, at 855, ?that the claimant was unlawfully confined from August 23, 1960 to September 12, 1960 and for this confinement is entitled to damages in the amount of $2,000.? In total, the claimant was confined in the state hospital from August 23, 1960 to March 3, 1961, at which time she was released on convalescent status. Under defendant's reasoning, there could be no recovery because the claimant could have been lawfully confined between August 23, 1960 to September 12, 1960, if she had been arraigned and if the officer had signed the information.

Because the imposition of post-release supervision on claimant by defendant was a legal nullity, claimant was unlawfully confined by its terms and could not be lawfully imprisoned for violating its terms. Any period of claimant's confinement caused by DOCS' unlawful and extra-jurisdictional imposition of the post-release supervision is not privileged and is actionable by claimant.

Defendant's cross-motion for summary judgment is denied.

Claimant seeks partial summary judgment, on his first cause of action, as to defendant's liability for wrongful confinement.

?A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law ... If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment? ( Ware v. Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006] ).

Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue ( Svoboda v. Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006] ).

*8 ?In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion? ( Archambault v. Martinez, 120 A.D.2d 632, 632-633 [2d Dept 1986] ). Further, ?mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient? to defeat a motion for summary judgment ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ).

Claimant has shown that he satisfies each of the elements of a wrongful confinement claim. Defendant opposes the summary judgment motion on the grounds that the confinement was privileged and that defendant is immune from liability.

Defendant's reliance upon privilege and immunity were considered and rejected above.

In view of the foregoing, claimant is granted summary judgment as to defendant's liability for the wrongful confinement of claimant, proximately resulting from the unlawful administrative addition of post-release supervision to claimant's sentence. Claimant bears the burden at trial of proving the specific number of days that claimant was impermissibly confined, the manner in which he was so confined, whether by incarceration or otherwise, as a direct result of the imposition of post-release supervision by DOCS, and the damages which he specifically incurred by reason of such confinement.

The claimant's motion for summary judgment as to liability is granted as described above. Defendant's cross-motion for summary judgment is denied. A trial to determine damages will be scheduled.

Evan Collins et al., Appellants
v
State of New York, Respondent.
Supreme Court, Appellate Division, Fourth Department, New York
October 9, 2009

APPEARANCES OF COUNSEL
Louis Rosado, Buffalo, for appellants.Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), for respondent.

OPINION OF THE COURT

Centra, J.

I
Claimants made an application for permission to file a late notice of claim against defendant for, inter alia, unlawful imprisonment, alleging that the New York State Division of Parole (Division) improperly imposed a five-year period of postrelease supervision (PRS) upon Evan Collins (claimant) that ultimately resulted in his confinement. We conclude that the order granting claimants' motion for leave to renew and, upon renewal, adhering to the prior decision denying claimants' application should be affirmed.

II
The facts of this case are not in dispute. By judgment rendered May 26, 1999, claimant was convicted upon his plea of guilty of, inter alia, attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [former (4)]) and was sentenced as a second felony offender. Although a five-year period of PRS was mandatory pursuant to Penal Law § 70.45, Supreme Court (Mario J. Rossetti, A.J.) did not impose any period of PRS. Upon claimant's release from prison after *48 serving the sentence, the Division administratively imposed a five-year period of PRS. Claimant was arrested approximately two years later and incarcerated on a parole detainer warrant. Claimant then filed a petition for a writ of habeas corpus, alleging that he was being illegally detained because he was never advised by the court, the prosecutor, or defense counsel that his sentence would include a period of PRS. Supreme Court (M. William Boller, **2 A.J.) granted the petition to the extent of quashing the parole detainer warrant and vacating the five-year period of PRS imposed by the Division. Claimant was subsequently released from custody.

Approximately seven months later, claimants made an application in the Court of Claims for permission to file a late notice of claim against defendant based on ?excusable neglect and/or for good cause.? The proposed claim included causes of action for unlawful imprisonment, invasion of privacy, abuse of process, extreme emotional distress, and loss of consortium, all allegedly caused by the Division's imposition of a period of PRS. Defendant contended in opposition that, inter alia, the claim was without merit because a period of PRS was mandated. The court denied the application after considering the relevant factors and, although the court thereafter granted the motion of claimants for leave to renew their application, it adhered to its prior decision.

III
We note at the outset that the order granting the motion of claimants for leave to renew their prior application and adhering to the court's prior decision superseded the order denying the application from which claimants now appeal (see Loafin' Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985 [1990]). We nevertheless exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the superseding order (see CPLR 5520 [c]; Miller v Richardson, 48 AD3d 1298, 1300 [2008], lv denied 11 NY3d 710 [2008]).

IV
?The Court of Claims has broad discretion in determining whether to grant or deny an application for permission to file a late notice of claim and its decision will not be disturbed absent a clear abuse of that discretion? (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [2009]; see Scarver v State of New York, 233 AD2d 858 [1996]). In determining whether to *49 grant such an application, the court must consider, inter alia, the following factors:
?whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy? (Court of Claims Act § 10 [6]; see Matter of Smith v State of New York, 63 AD3d 1524 [2009]).


(1) In view of the relevant factors, particularly ?whether the claim appears to be meritorious? (Court of Claims Act § 10 [6]; see Smith, 63 AD3d 1524 [2009]), we conclude that the court did not abuse its discretion in adhering to its prior decision denying the application. We agree with the court that the proposed claim did not have merit, and we conclude that ? ?it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the claimant[s' application]? ? (Martinez, 62 AD3d at 1226).

V
The gravamen of the proposed claim is unlawful imprisonment based upon the Division's imposition of a period of PRS. Penal Law § 70.45 was enacted in 1998 and required a period of PRS to be imposed on determinate sentences for offenses committed on or after September 1, **3 1998. As originally enacted, the statute provided that ?[e]ach determinate sentence also includes, as a part thereof, an additional period of [PRS]? (§ 70.45 [former (1)]). Despite the mandate of the statute, many courts failed to impose a period of PRS when sentencing a defendant to a determinate sentence, as occurred here. In those instances, often nonjudicial court personnel, the Division or, most frequently, the Department of Correctional Services (DOCS), would impose a period of PRS. In fact, it has been estimated that the Division or DOCS imposed a period of PRS upon ? ?tens of thousands' ? of defendants (State of New York v Myers, 22 Misc 3d 809, 811 [2008]).

On appeal from the judgments of conviction in such cases, the defendants contended that, because the sentencing court did *50 not pronounce a period of PRS, they were not subject to any such period. This Court and others had consistently held for several years that the sentencing court was not required to specify a period of PRS during sentencing pursuant to Penal Law § 70.45 (see e.g. People v Hollenbach, 307 AD2d 776 [2003], lv denied 100 NY2d 642 [2003]; People v Crump, 302 AD2d 901 [2003], lv denied 100 NY2d 537 [2003]; People v Bloom, 269 AD2d 838 [2000], lv denied 94 NY2d 945 [2000]). Indeed, in People v DePugh (16 AD3d 1083, 1083 [2005]), we wrote that a period of PRS ? ?is mandatory for determinate sentences and is automatically included in the sentence? ? (see Hollenbach, 307 AD2d at 776). In 2006, however, the United States Court of Appeals, Second Circuit, invalidated the administrative imposition of a period of PRS by DOCS when the sentencing court failed to sentence the defendant to such a period (Earley v Murray, 451 F3d 71, 76-77 [2006], cert denied sub nom. Burhlre v Earley, 551 US 1159 [2007]). The Second Circuit wrote that ?[t]he only cognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect? (id. at 75).

In early 2008, the Court of Appeals in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]) and People v Sparber (10 NY3d 457 [2008]) determined that only a court may impose a period of PRS. The Court explained in Garner that ?DOCS was acting in a judicial capacity? when it administratively imposed a period of PRS and that ?the sentencing judge?and only the sentencing judge?is authorized to pronounce the PRS component of a defendant's sentence? (10 NY3d at 362). The Court determined in Sparber that, to remedy the improper imposition of a period of PRS, the matter must be remitted to the sentencing court for resentencing (10 NY3d at 471-472), and it reasoned that ?the failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy? (id. at 472).

As a result of the decisions in Garner and Sparber, the Legislature enacted Correction Law § 601-d, which outlined the procedure for resentencing defendants who were sentenced between September 1, 1998 and June 30, 2008 to a determinate term without ?imposition of any term of [PRS]? (§ 601-d [1]). Correction Law § 601-d (2) requires DOCS or the Division to inform the sentencing court upon discovering that a defendant's commitment order does not include any period of PRS. The *51 sentencing court must commence a proceeding to resentence the defendant within 30 days of receiving such notice (§ 601-d [4] [c]). At the resentencing hearing, the court may impose a period of PRS or, upon the consent of the People, the court may reimpose the originally imposed determinate sentence without any period of PRS (see Penal Law § 70.85).

VI
After the Garner and Sparber decisions, several defendants who had been incarcerated as a result of the imposition of a period of PRS by nonjudicial court personnel, the Division, or DOCS brought claims or applied for permission to file late notices of claim against defendant for unlawful imprisonment. In fact, counsel for defendant indicated at oral argument of this appeal that approximately 250 similar cases were currently pending. The cases have had varying outcomes before the Court of Claims, and there has yet to be an Appellate Division decision on **4 whether the claims or proposed claims have merit.

A claimant or plaintiff asserting a cause of action for unlawful imprisonment ?must establish that the defendant intended to confine the [claimant or] plaintiff, that the [claimant or] plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged? (Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; see Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). It is the last element that claimants herein will be unable to establish. ?A detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction? (Davis v City of Syracuse, 66 NY2d 840, 842 [internal quotation marks omitted]; see Holmberg v County of Albany, 291 AD2d 610, 612 [2002], lv denied 98 NY2d 604 [2002]). In other words, ?where the illegal imprisonment is pursuant to legal process which is valid on its face, the State cannot be held liable in damages for wrongful detention . . . [unless] the court issuing the process lacked jurisdiction of the person or the subject matter? (Harty v State of New York, 29 AD2d 243, 244 [1968], affd 27 NY2d 698 [1970]).

There is no question that the legal process by which claimant was confined was valid on its face. The issue, however, is whether the Division lacked jurisdiction to impose a period of PRS. ?There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction*52 over the subject matter. The former is privileged, the latter is not? (Sassower v Finnerty, 96 AD2d 585, 586 [1983], appeal dismissed 61 NY2d 756 [1984], lv denied 61 NY2d 608, 985 [1984]; see Harley v State of New York, 186 AD2d 324 [1992], appeal dismissed 81 NY2d 781 [1993]). That distinction is not always straightforward (see e.g. Nuernberger v State of New York, 41 NY2d 111, 113 [1976]), but we fortunately are guided by the recent Garner decision. In Garner, the Court of Appeals analyzed whether the petitioner was entitled to CPLR article 78 relief in the nature of prohibition, which requires a showing that a ?body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction? (CPLR 7803 [2]; see Garner, 10 NY3d at 361). In determining that the petitioner was entitled to a writ of prohibition barring DOCS from administratively imposing a five-year period of PRS, the Court held that, in imposing that term, ?DOCS was acting in a judicial capacity . . . [and that such] act was in excess of DOCS's jurisdiction? (Garner, 10 NY3d at 362). We note that, although the Court held that the imposition of a period of PRS by DOCS was ?solely within the province of the sentencing judge? (id.), the Court used the phrase ?in excess of DOCS's jurisdiction? rather than stating that DOCS was ?without? jurisdiction. Indeed, the Court further characterized the act of DOCS as ?beyond [its] limited jurisdiction over inmates and correctional institutions,? thus indicating that DOCS was not wholly without jurisdiction in the first instance (id.).

We likewise conclude that, here, the imposition of a period of PRS by the Division was in excess of its jurisdiction, not in the complete absence of jurisdiction, and that the act was therefore privileged. At the time the Division imposed the period of PRS, it was acting pursuant to case law holding that a period of PRS was automatically included in a sentence, even in the event that the sentencing court did not pronounce a period of PRS (see e.g. DePugh, 16 AD3d 1083 [2005]). While the Court of Appeals in Garner and Sparber determined that a period of PRS may not be administratively imposed, DOCS and the Division are not always precluded from clarifying the sentence of a defendant. For example, in People ex rel. Gill v Greene (12 NY3d 1, 5-6 [2009]), the Court determined that, where the sentencing court failed to pronounce that the sentence imposed was either consecutive to or concurrent with a previous, undischarged sentence, it was proper for DOCS to calculate the sentences to run consecutively, as required by the statute. Thus, in certain *53 instances, DOCS has the power to calculate sentences in accordance with the relevant statutes, without direction from the sentencing court. The Division here was also not wholly without jurisdiction or without ?some competence over the cause? (Nuernberger, 41 NY2d at 113). It simply acted in excess of the jurisdiction it did have, and we thus conclude that **5 its actions were privileged and that claimants are unable to establish a claim for unlawful imprisonment.

VII
(2) We also agree with defendant that the cause of action for unlawful imprisonment does not appear to be meritorious because claimants cannot establish that the Division's alleged unlawful action caused them any injury. As noted above, case law and recent legislative action have resulted in the resentencing of defendants who were sentenced to a determinate term without any period of PRS (see Correction Law § 601-d; Penal Law § 70.85; Sparber, 10 NY3d at 465, 471-472). At the time claimant was sentenced as a second felony offender based on his conviction of a class E violent felony, a five-year period of PRS was mandated (see Penal Law § 70.45 [former (2)]). Thus, if the sentencing court had been alerted to the fact that it failed to impose a period of PRS, the court would have imposed the same five-year period of PRS at the resentencing hearing that the Division itself imposed. While the procedure by which the period of PRS was imposed was improper, the actual imposition thereof was not. We therefore conclude that claimants cannot establish that they were injured by the Division's imposition of a period of PRS (see Mickens v State of New York, 25 Misc 3d 191 [2009]).

VIII
Accordingly, we conclude that the order should be affirmed.

Scudder, P.J., Hurlbutt, Martoche and Smith, JJ., concur.

It is hereby ordered that the order so appealed from is unanimously affirmed, without costs.

Court of Claims of New York.
Farrah DONALD, Claimant,
v.
The STATE of New York, Defendant.

No. 115414.
Feb. 5, 2009.

**436 Trevett Cristo Salzer & Andolina P.C., by: Kevin K. McKain, Esq., for Claimant.

Andrew M. Cuomo, New York State Attorney General, by: Michael T. Krenrich, Esq., Assistant Attorney General, for Defendant.

FRANK P. MILANO, J.

*330 Claimant moves pursuant to CPLR 3212 for partial summary judgment as to defendant's liability on this wrongful confinement claim. The claim alleges that the New York State Department of Correctional Services (DOCS) unlawfully added a period of mandatory post-release supervision (PRS) onto claimant's sentence even though the PRS term was never imposed by the sentencing judge. Claimant further alleges that the administratively imposed PRS term ultimately resulted in claimant's unlawful confinement ?for a period of at least 676 days,? until claimant's release on May 28, 2008 pursuant to a Judgment and Order of the Monroe County Supreme Court, issued upon a writ of habeas corpus.

Defendant opposes the motion and cross-moves for dismissal of the claim, pursuant to CPLR 3211(a)(7), ?on the grounds that the claim fails to state a cause of action against the defendant.?

Defendant concedes that the facts essential to resolution of these motions ?are not in dispute.? On August 17, 1999, claimant was sentenced by the Monroe County Supreme Court to a determinate term of two (2) years incarceration upon a conviction of criminal possession of a weapon in the third degree. Neither the sentence nor the sentencing commitment order included imposition of a period of post-release supervision.

Despite the clear and unambiguous terms of the sentence and sentencing commitment order, DOCS administratively imposed a three-year period of PRS to the sentence, to commence upon claimant's release from incarceration on July 10, 2000. This, even though the sentencing judge had discretion to set claimant's (a one-time violent felony offender) term of PRS, had he imposed it, at between 1 1/2 and 3 years under Penal Law 70.45(2). While subject to the administratively imposed period of PRS, claimant was arrested and subsequently convicted of criminal possession of a controlled substance in the fourth degree. On April 5, 2002, claimant was sentenced to an indeterminate term of three (3) to six (6) years of incarceration. According to the claim, at the time of the April 5, 2002 sentencing, it was *331 determined that claimant had failed to complete his administratively imposed period of PRS under the 1999 sentence and therefore was deemed to owe three (3) months on his 1999 sentence and twenty-five (25) months on the PRS term.

Claimant was conditionally released on the April 5, 2002 sentence on or about September 29, 2005. According to the claim, claimant would have been conditionally released on or about August 14, 2004 had he not been deemed to have owed three (3) months on his 1999 sentence and twenty-five (25) months on the administratively imposed PRS term, resulting in unlawful confinement of 411 days.

The claim further alleges that upon claimant's conditional release on September 29, 2005, claimant's:

**437 ?[T]ime under post-release supervision was scheduled to expire in or about September 2009. This date accounts for local jail-time credits applied to the previous indeterminate sentence and the seven hundred fifty-three days of post-release supervision time still deemed to be owed by the Claimant.?

Claimant was again incarcerated on or about September 12, 2007 as a result of a parole violation. At that time, again according to the claim: ?[T]he maximum expiration date of Claimant's post-release supervision time was estimated to be October 8, 2009.? The claim asserts that:

?Absent the DOC's unlawful assessment of post-release supervision time onto the original sentence and the consequential carry-over of this time in connection with the second sentence, Claimant's most recent sentence would have expired on or about August 14, 2007. Instead, Claimant was incarcerated until May 28, 2008, and, had it not been for the Supreme Court's order of Claimant's release pursuant to a Writ of Habeas Corpus, Claimant would remain unlawfully incarcerated as of the date of this Claim.?

The affidavit of claimant's attorney states that as of May 28, 2008, claimant had been further unlawfully confined for a period of 265 days, in addition to the 411 days of wrongful confinement suffered prior to his conditional release on September 29, 2005, aggregating to unlawful confinement ?for a period of at least 676 days.?

[1] Headnote Citing References The defendant's cross-motion to dismiss the claim for failure to state a cause of action will be considered first. As previously indicated, defendant does not challenge the salient facts set *332 forth in the claim, but rather argues that the claim fails as a matter of law. Specifically, defendant asserts that claimant cannot prove an essential element of a claim for wrongful confinement.

[2] Headnote Citing References To establish that he was falsely confined, claimant must prove that ?(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged? ( Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257; Krzyzak v. Schaefer, 52 A.D.3d 979, 860 N.Y.S.2d 252 [3d Dept. 2008] ).

[3] Headnote Citing References Defendant concedes that claimant satisfies the first three elements of the claim for wrongful confinement but argues that the confinement was privileged. ?Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged ... and everyone connected with the matter is protected from liability for false imprisonment? ( Holmberg v. County of Albany, 291 A.D.2d 610, 612, 738 N.Y.S.2d 701 [3d Dept. 2002], lv. denied 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016 [2002] ).

[4] Headnote Citing References In the context of typical wrongful confinement claims arising in correctional facilities, privilege arises based upon the quasi-judicial nature of prison disciplinary proceedings ?and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, the State has absolute immunity for those actions? ( Holloway v. State of New York, 285 A.D.2d 765, 766, 728 N.Y.S.2d 567 [3d Dept. 2001] ). The privilege arises from the exercise of ?discretionary authority for which the State has absolute immunity? ( Holloway, 285 A.D.2d at 766, 728 N.Y.S.2d 567).

**438 Defendant can point to no valid judicial sentence or order directing claimant's alleged wrongful confinement (to the extent that it was increased by administrative imposition of the period of PRS), nor can it credibly argue that it was exercising privileged quasi-judicial discretionary authority, and instead argues that the confinement was privileged in that it was imposed ?under color of law or regulation, specifically in accordance with regulations? ( Gittens v. State of New York, 132 Misc.2d 399, 402, 504 N.Y.S.2d 969 [Ct. Cl. 1986] ).

Defendant identifies no express language in any statute or regulation which required or permitted DOCS to impose a period of PRS on claimant, relying solely upon Penal Law sections 70.00(6) and 70.45(1), which defendant describes, during the time period in which DOCS administratively imposed the PRS, as *333 ?mandat[ing] that each determinate sentence shall include, as a part thereof, a period of post-release supervision.?

Defendant argues that DOCS ?was acting directly in accordance with Penal Law §§ 70.00[6] and 70.45[1], therefore, Claimant's confinement was privileged and the cause of action for unlawful imprisonment is without merit.? The statutory sections cited by defendant give DOCS no authority to impose a period of PRS.

On the contrary, Penal Law 70.00(6) expressly states that the court, and not DOCS or any other administrative agency, is required to impose any applicable term of PRS:

?Determinate sentence. Except as provided in subdivision four of this section and subdivisions two and four of section 70.02, when a person is sentenced as a violent felony offender pursuant to section 70.02 or as a second violent felony offender pursuant to section 70.04 or as a second felony offender on a conviction for a violent felony offense pursuant to section 70.06, the court must impose a determinate sentence of imprisonment in accordance with the provisions of such sections and such sentence shall include, as a part thereof, a period of post-release supervision in accordance with section 70.45.? (emphasis added).

In further support of its cross-motion, defendant provides the legislative bill jacket for ?Chapter 1 of the Laws of 1998 otherwise known as Jenna's Law',? which added the PRS provisions to the Penal Law. Nothing in the bill jacket indicates a legislative intent that post-release supervision could be administratively imposed on a convicted person subject to Jenna's Law if the sentencing court failed to do so. Jenna's Law, in fact, implemented the provisions of Penal Law 70.00(6) which expressly and exclusively reserves the imposition of PRS to the sentencing court. Moreover, the germane question is whether DOCS' actions were privileged, not, as defendant argues, whether Jenna's Law contemplates or creates a private right of action.

The United States Court of Appeals, Second Circuit, in a habeas corpus proceeding, citing long-established principles clearly articulated by the United States Supreme Court, considered whether DOCS could administratively impose a term of PRS to a New York State inmate's sentence pursuant to Penal Law 70.45. In Earley v. Murray, 451 F.3d 71, 74 [2nd Cir.2006], the court noted that:

*334 ?Seventy years ago, the Supreme Court established that the sentence imposed by the sentencing judge is controlling; it is this sentence that constitutes the court's judgment and authorizes the custody of a defendant. Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936).?

**439 The Earley court further stated that the United States Supreme Court decision in Wampler (cited above), ?went on to articulate a broader holding: The judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment? (451 F.3d at 75).

Earley, at 75, points out the ?unlawful? nature of DOCS administrative imposition of post-release supervision:

?The only cognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect.

The sentence imposed by the court on Earley was six years in prison. The judgment authorized the state to incarcerate him for six years and no more. Any addition to that sentence not imposed by the judge was unlawful. Yet Earley was subjected to further custody. Post-release supervision, admitting of the possibility of revocation and additional jail time, is considered to be custody.' See Jones v. Cunningham, 371 U.S. 236, 240-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (holding that parole satisfies the ?in custody? requirement of habeas petitions); Peck v. United States, 73 F.3d 1220, 1224 n. 5 (2d Cir.1995) (holding that supervised release satisfies the ?in custody? requirement of habeas petitions).?

Next, the Earley court rejected the argument that because a period of PRS is mandated by statute it is necessarily part of the sentence by operation of law and that the omission of the mandatory term could be corrected administratively:

?New York law provides the appropriate remedy: If an inmate has received an illegal sentence, the state may move to have the offending sentence vacated and the defendant resentenced by a judge ...

Thus, when DOCS discovered the oversight made by Earley's sentencing judge, the proper course would have been to inform the state of the problem, not to modify the sentence unilaterally. The state *335 then could have moved to correct the sentence through a judicial proceeding, in the defendant's presence, before a court of competent jurisdiction ...

Finally, Earley recognizes that:

The additional provision for post-release supervision added by DOCS is a nullity? (451 F.3d at 76).

The New York State Court of Appeals considered and rejected DOCS administrative imposition of PRS to a convicted person's sentence in Garner v. New York State Department of Correctional Services, 10 N.Y.3d 358, 362, 859 N.Y.S.2d 590, 889 N.E.2d 467 [2008]:

?Here, petitioner demonstrated his right to a writ of prohibition barring DOCS from administratively adding a five-year PRS term to his sentence. First, by imposing that term upon petitioner, DOCS was acting in a judicial capacity. As we explained today in People v. Sparber, 10 N.Y.3d 457, 470 [859 N.Y.S.2d 582, 889 N.E.2d 459] [2008], the combined command of CPL 380.20 and 380.40 is that the sentencing judge-and only the sentencing judge-is authorized to pronounce the PRS component of a defendant's sentence. Second, this act was in excess of DOCS's jurisdiction; indeed, such action was solely within the province of the sentencing judge. And third, petitioner is clearly entitled to the relief that he seeks because DOCS's imposition of the PRS term contravenes the CPL's express mandate that sentencing is a judicial function and, as such, lies beyond DOCS's limited jurisdiction**440 over inmates and correctional institutions.?

Particularly troublesome in the instant matter is that DOCS usurped the discretion vested in the sentencing court under Penal Law § 70.45(2) to impose a PRS term upon claimant of between 1 1/2 to 3 years.

In Quinones v. New York State Department of Correctional Services, 46 A.D.3d 1268, 1269, 848 N.Y.S.2d 757 [3d Dept. 2007], the court, citing the availability of the sentencing court's discretion in setting the length of PRS for one-time violent felony offenders (as here) stated that:

?Since the sentencing court here could have imposed less than a five-year period if it had determined the issue (see Penal Law § 70.45[2][f] ), we cannot agree with respondent that imposition of a five-year period was mandatory or a purely ministerial act on the part of the Commissioner. Rather, we agree that [t]he only cognizable sentence is the one imposed *336 by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect' ( People v. Duncan, 42 A.D.3d 470, 471 [840 N.Y.S.2d 805] [2007], quoting Earley v. Murray, 451 F.3d 71, 75 [2d Cir.2006], cert. denied 551 U.S. ----, 127 S.Ct. 3014 [168 L.Ed.2d 752] [2007] ).?

Further it appears that, Quinones involved a case where, as here, Penal Law § 70.45(2), as originally enacted in 1998 and unchanged until amended, effective January 13, 2005, applied.

In short, DOCS imposition of post-release supervision on claimant was done not ?under color of law or regulation, specifically in accordance with regulations,? but rather was unlawful, beyond its jurisdiction and a legal nullity. Such conduct cannot be said to be privileged.

Defendant further suggests that claimant's sole remedy for the unlawfully imposed period of PRS is to move to be resentenced by an appropriate court. Defendant relies upon People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] in advancing this argument. In Sparber, the court rejected the argument that DOCS ?flawed? administrative imposition of PRS required expungement of the statutory requirement of PRS rather than resentencing of the affected convicted persons:

?We conclude that the procedure through which PRS was imposed upon these defendants was flawed as it did not comply with the statutory mandate. To remedy this error, rather than striking PRS from the sentences as urged by defendants, these matters must be remitted to Supreme Court for resentencing and the proper judicial pronouncement of the relevant PRS terms? (10 N.Y.3d at 465, 859 N.Y.S.2d 582, 889 N.E.2d 459).

Sparber discussed the available procedural remedies to correct the failure of sentencing courts to impose PRS, settling on resentencing as the sole remedy for such procedural error. This claim is an action for damages for the tort of wrongful confinement. Claimant is not seeking expungement of the PRS requirement of the Penal Law and does not question that resentencing may be sought. Indeed, on the record before this Court it would appear that no one has ever sought, to this day, the remedy defendant now suggests limits claimant, that of being resentenced. Claimant here is seeking compensation for having been confined as a result of an unlawful sentence imposed by an administrative agency purporting to exercise a ?judicial function ... beyond [its] limited jurisdiction over inmates and correctional institutions? ( Garner, 10 N.Y.3d at 362, 859 N.Y.S.2d 590, 889 N.E.2d 467).

**441 *337 Sparber, echoing the concerns of the Quinones court, also stated that:

?These concerns are particularly acute where, as in the case of defendant Rodriguez, the PRS term may vary and must be set at the court's discretion (see e.g. Penal Law § 70.45[2][b]-[f] )? (10 N.Y.3d at 470, 859 N.Y.S.2d 582, 889 N.E.2d 459).

And unlike Sparber, in which convicted persons sought to be entirely relieved of any PRS obligation by reason of the sentencing court failing to impose it initially (for which, as the Court of Appeals indicated, the remedy is for the matter to be returned to the sentencing court for pronouncement of the correct sentence), this Court faces whether a subsequent resentence acts, nunc pro tunc, to cure already endured confinement that was imposed without authority or privilege.

To that point, it has recently been held that the subsequent resentencing of a convicted person subject to PRS under Penal Law 70.45, who had not been judicially sentenced to PRS, cannot cure an illegally imposed period of PRS by DOCS.

In Matter of State of New York v. Randy M., 57 A.D.3d 1157, 870 N.Y.S.2d 490 [3d Dept. 2008], Randy M. was convicted in May 1999 of sexual abuse in the first degree and endangering the welfare of a child. The court imposed concurrent sentences of five years and one year in prison, respectively, but did not impose the mandatory period of five years of post-release supervision required by Penal Law 70.45. DOCS unilaterally imposed PRS on Randy M. upon his release from prison on March 20, 2003. In August 2007, Randy M. was reincarcerated for violating the conditions of his supervision.

In July 2008, DOCS, pursuant to (Mental Hygiene Law 10.05[b] ), provided the Office of Mental Health and the Attorney General with notice that Randy M. may be a detained sex offender who was nearing his anticipated release date. The Attorney General obtained a securing order from Erie County Supreme Court to prevent Randy M.'s release from DOCS' custody. That same day, Kings County Supreme Court resentenced Randy M. to his original sentence plus five years of post-release supervision.

The Attorney General then commenced a sex offender civil management petition and obtained an ex parte order authorizing DOCS to retain Randy M. pending a Mental Hygiene Law probable cause hearing. Randy M. then sought a writ of habeas corpus directing his immediate release from custody.

Supreme Court partially granted Randy M.'s application, finding that DOCS could not retain Randy M. in its custody on the *338 basis of the alleged violation of post-release supervision. But instead of ordering immediate release, the court ordered that Randy M.'s release be stayed pending the probable cause hearing. Randy M. then moved to dismiss the civil management proceeding. The court denied that motion. Randy M. appealed the orders denying his motion to dismiss the civil management proceeding and denying his release in the habeas corpus proceeding.

The Randy M. court held, at p. 1159, 870 N.Y.S.2d 490, that:

?Because respondent was not lawfully in the custody of an agency with jurisdiction and was not a detained sex offender, he was entitled to dismissal of the civil management proceeding and should immediately be released. It is now clear that DOCS has no authority to impose any portion of a sentence, including mandatory postrelease supervision, and any administratively-imposed aspect of a sentence is a nullity (see **442 Matter of Garner v. New York State Dept. of Correctional Servs., 10 N.Y.3d 358, 362 [859 N.Y.S.2d 590, 889 N.E.2d 467] [2008]; Matter of Dreher v. Goord, 46 A.D.3d 1261, 1262 [848 N.Y.S.2d 758] [2007]; see also Matter of Marino v. Fischer, 52 A.D.3d 985, 986 [858 N.Y.S.2d 610] [2008] ). As Supreme Court correctly held, and the Attorney General does not contest, respondent could not validly be incarcerated for violating a term of postrelease supervision which was not properly imposed ... The court's later resentencing of respondent did not operate retroactively to cure the illegal imposition of postrelease supervision, meaning respondent could not validly be punished for violating the terms of postrelease supervision until after it was imposed by a court.? (emphasis added).

Similarly, in People ex rel. Benton v. Warden, Adolescent Receiving Detention Ctr, 20 Misc.3d 516, 521, 862 N.Y.S.2d 763 [2008], the court held that administrative imposition of a term of post-release supervision where the sentence did not provide for PRS was a legal nullity and violated the convicted person's due process and statutory rights. The Benton court further found that the convicted person could not be punished for violation of the terms of PRS, even though a judge resentenced him and imposed PRS nunc pro tunc after he was charged with the PRS violation (20 Misc.3d at 521, 862 N.Y.S.2d 763).

Because the imposition of post-release supervision on claimant by DOCS was a legal nullity, claimant could not be lawfully *339 confined for violating its terms. Any period of claimant's confinement caused by DOCS' unlawful and extra-jurisdictional imposition of the post-release supervision is not privileged and is actionable by claimant.

Moreover, this is not the first time DOCS has acted beyond its jurisdiction by inserting itself in the sentencing process nor is it the first time that it faces liability for wrongful confinement for having done so. In People ex rel. Johnson v. Martin, 283 App.Div. 478, 128 N.Y.S.2d 690 [4th Dept. 1954], affd. 307 N.Y. 713, 121 N.E.2d 538 [1954], an order granting a writ of habeas corpus was issued by the Wyoming County Court where the inmate (Johnson) claimed that he had been wrongfully confined by the State beyond his lawful sentence. The issue in Johnson is described at p. 480, 128 N.Y.S.2d 690:

?It was relator's contention that under the commitment of the Yates County Court, dated May 27, 1947, his term of imprisonment was for a maximum of five years pursuant to section 288 of the Correction Law and that his term had expired. The position of the State is that, no maximum having been fixed by the sentencing court upon sentence, the relator could be held in custody for the maximum time provided by law as punishment for burglary, third degree, which maximum is ten years. (Penal Law, § 407.)?

The Johnson court found that because Johnson's maximum term at the time of sentencing was five years, the State had no authority to hold him beyond that period, reminding that:

?The passing of sentence upon one convicted of a crime as well as the suspension of sentence is the sole prerogative and duty of the court. The judge must fix the punishment and the limits thereof within the bounds which the Legislature has provided for the crime. The Commissioner of Correction by himself or acting through his agents has no authority to sentence a prisoner nor to fix the limits of his confinement? (283 App.Div. at 481, 128 N.Y.S.2d 690).

The Johnson decision resulted in a series of successful wrongful confinement lawsuits in the Court of Claims by inmates **443 similarly situated to Johnson ( see Waterman v. State of New York, 207 Misc. 773, 138 N.Y.S.2d 854 [Ct. Cl. 1955], affd. 1 A.D.2d 235, 149 N.Y.S.2d 381 [4th Dept. 1956], affd. 2 N.Y.2d 803, 159 N.Y.S.2d 702, 140 N.E.2d 551 [1957] ); Brown v. State of New York, 10 Misc.2d 833, 173 N.Y.S.2d 925 [Ct. Cl. 1958], appeal dismissed 6 A.D.2d 1022, 179 N.Y.S.2d 856 [4th Dept. 1958]; Todzia v. State of New York, 53 Misc.2d 200, 278 N.Y.S.2d 291 [Ct. Cl. 1967].

*340 Of particular note is Williams v. State of New York, 5 A.D.2d 936, 172 N.Y.S.2d 206 [3d Dept. 1958], lv. denied 4 N.Y.2d 678, 176 N.Y.S.2d 1025, 152 N.E.2d 255 [1958], in which the court stated, at p. 937, 172 N.Y.S.2d 206 that:

?The applicable statutes effective at the time of sentence were open to differing interpretations; but it became settled by People ex rel. Johnson v. Martin, 283 App. Div. 478 [128 N.Y.S.2d 690], affd. 307 N.Y. 713 [121 N.E.2d 538] that a commitment for an indefinite term such as the one here considered was deemed to be for a period of five years.?

In Williams, the court not only rejected the suggestion that ?differing interpretations? of the law prior to Johnson excused the confinement but also rejected a privilege argument:

?The State in effect argues for a reconsideration of the statutory interpretation made in People ex rel. Johnson v. Martin (supra.) which we do not regard as open; but its main point is that it is protected from liability for any error resulting from the quasi-judicial nature of the determinations of delinquency and the warrants for detention of the Parole Board ( Nastasi v. State of New York, 275 App.Div. 524 [90 N.Y.S.2d 377]; affd. 300 N.Y. 473 [88 N.E.2d 658] ). But the warrants as they appear in the record before us merely direct that ?said prisoner be retaken? and the return of the prisoner to the custody of the warden. When the warden received him he is required to look to the basic judgment and the statute under which it is given to determine how long to hold the prisoner. Thus, the Superintendent of Elmira and the Warden of Auburn properly received the claimant, but the prisoner was required to be discharged when five years of the sentence had been served; and when the Warden of Sing Sing in March, 1954 received the prisoner under parole warrant he was required to examine by what authority he could hold him and for what period. As the court held in habeas corpus, the sentence had fully expired, and judgment for claimant seems justified? (5 A.D.2d at 937, 172 N.Y.S.2d 206).

These cases demonstrate that even assuming defendant in the instant case claims to have been acting in good faith under a mistaken belief that it was required or permitted to add a PRS term on claimant (notwithstanding an absence of statutory authority to do so and long-ago decided decisions, federal and state, making it clear that sentencing is exclusively a judicial prerogative), it is no defense to a wrongful confinement claim. *341 The fact that the law was ?open to differing interpretations? prior to the Johnson decision and that the confinement of the claimants took place prior to the Johnson decision did not excuse the State's actions or shield it from liability.

The singular role given the judiciary in sentencing persons convicted of a crime recognizes that the government's awesome power to restrict liberty, to imprison, must be strictly circumscribed and subject to the faithful and correct application of law. Recognizing claimant's cause of action for wrongful confinement under these facts **444 reaffirms that critically important, necessary limitation of governmental power.

Defendant's cross-motion to dismiss the claim for failure to state a cause of action for wrongful confinement is denied.

Claimant seeks partial summary judgment as to defendant's liability for wrongful confinement with damages to be determined after trial.

?A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law ... If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment? ( Ware v. Baxter Health Care Corp., 25 A.D.3d 863, 864, 807 N.Y.S.2d 679 [3d Dept. 2006] ).

Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue ( Svoboda v. Our Lady of Lourdes Memorial Hospital, Inc., 31 A.D.3d 877, 817 N.Y.S.2d 772 [3d Dept. 2006] ).

?In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion? ( Archambault v. Martinez, 120 A.D.2d 632, 632-633, 502 N.Y.S.2d 234 [2d Dept. 1986] ). Further, ?mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient? to defeat a motion for summary judgment ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

[5] Headnote Citing References *342 The verified claim alleges that claimant was wrongfully confined as a direct result of the imposition of PRS by defendant. Defendant concedes that PRS was improperly imposed upon claimant but argues that claimant has not shown, as a matter of law, that he was incarcerated for violation of the wrongfully imposed PRS. Defendant's argument ignores the fact that PRS is itself custody and a form of confinement, albeit substantially less restrictive than incarceration:

?Post-release supervision, admitting of the possibility of revocation and additional jail time, is considered to be custody.? ( Earley, 451 F.3d at 75).

The New York State Court of Appeals recognizes that PRS is a limitation on liberty, a form of confinement:

?PRS represents a significant punishment component that restricts an individual's liberty? ( Garner, 10 N.Y.3d at 362-363, 859 N.Y.S.2d 590, 889 N.E.2d 467).

Defendant's assertion that claimant has not proven actual incarceration as a result of the illegally imposed PRS is thus insufficient to defeat claimant's motion for summary judgment as to defendant's liability for wrongful confinement (as opposed to contesting the extent of damages arising from the wrongful confinement).

Defendant also opposes the summary judgment motion on the grounds that the confinement was privileged, that resentencing is claimant's sole remedy, that the Monroe County Supreme Court Judgment and Order on the habeas corpus petition is not res judicata in this action, that no private cause of action exists for violation of Penal Law 70.45 and that claimant has not proven the specific number of days **445 that claimant was imprisoned as a direct result of the PRS.

Defendant's reliance upon privilege as a defense and upon resentencing as the sole remedy were considered and rejected above. Claimant does not allege any cause of action arising under Penal Law 70.45 nor does claimant allege that the Monroe County Supreme Court Judgment and Order on the habeas corpus petition is res judicata in this action.

Claimant concedes that a factual issue exists as to the specific number of days that claimant was confined as a direct result of the PRS.

In view of the foregoing, claimant is granted summary judgment as to defendant's liability for the wrongful confinement of claimant, directly resulting from the unlawful administrative addition of post-release supervision to claimant's sentence. *343 Claimant bears the burden at trial of proving the specific number of days that claimant was impermissibly confined, the manner in which he was so confined, whether by incarceration or otherwise, as a direct result of the imposition of post-release supervision by DOCS, and the damages which he specifically incurred by reason of such confinement.

The claimant's motion for summary judgment as to liability is granted as described above. Defendant's cross-motion to dismiss the claim is denied. A trial to determine damages will be scheduled.

The People of the State of New York ex rel. Sidney Burch, Appellant
v
Glenn S. Goord, as Commissioner of New York State Department of Correctional Services, Respondent.
Supreme Court, Appellate Division, Fourth Department, New York
February 20, 2008
CITE TITLE AS: People ex rel. Burch v Goord
HEADNOTE
Crimes
Sentence
Postrelease Supervision.-If court does not impose period of postrelease supervision as part of defendant's sentence, sentence has no postrelease supervision component.



Wyoming County-Attica Legal Aid Bureau, Attica (Norman P. Effman of counsel), for petitioner-appellant.Andrew M. Cuomo, Attorney General, Albany (Emil J. Bove, Jr., of counsel), for respondent-respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered January 15, 2007 in a habeas corpus proceeding. The judgment denied the petition.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law without costs and the writ of habeas corpus is sustained, and

It is further ordered that respondent is directed to discharge petitioner from custody forthwith.

Memorandum: On September 7, 2004, petitioner admitted to violating the terms of a sentence of probation imposed in Supreme Court, Bronx County, upon his conviction of attempted robbery in the second degree. He was sentenced to a determinate term of imprisonment of two years, but the court did not impose a period of postrelease supervision. During petitioner's term of imprisonment, respondent, New York State Department of Correctional Services (DOCS), added a three-year period of postrelease supervision to petitioner's sentence. Petitioner was released from prison in May 2005, but in July 2005 he was declared delinquent by the Division of Parole and was returned to DOCS, where he remains imprisoned. *1307

Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that he was being illegally detained beyond the maximum two-year term of imprisonment imposed by the court. In denying the petition, Supreme Court relied in part on our decisions in People v Hollenbach (307 AD2d 776 [2003], lv denied 100 NY2d 642 [2003]) and People v Crump (302 AD2d 901 [2003], lv denied 100 NY2d 537 [2003]). We reverse, however, because we agree with the decision of the Second Circuit Court of Appeals that, in the event that a court does not impose a period of postrelease supervision as part of a defendant's sentence, the sentence has no postrelease supervision component (Earley v Murray, 451 F3d 71, 76 [2006], reh denied 462 F3d 147 [2006]; see People ex rel. Gerard [Colarusso] v Kralik, 44 AD3d 804, 804-805 [2007]; People v Martinez, 40 AD3d 1012 [2007]; see generally Hill v United States ex rel. Wampler, 298 US 460, 464 [1936]). As the Court of Appeals has stated, postrelease supervision is a ?direct consequence of a criminal conviction? (People v Catu, 4 NY3d 242, 244 [2005]; see People v Louree, 8 NY3d 541, 545 [2007]), and we conclude that it therefore must be expressly imposed by the court (see Earley, 451 F3d at 76). To the extent that our prior decisions in Hollenbach and Crump hold otherwise, they are no longer to be followed (see People ex rel. Eaddy v Goord, 48 AD3d 1307 [2008]). Present-Hurlbutt, J.P., Smith, Centra, Green and Gorski, JJ.

The People of the State of New York ex rel. William Eaddy, Appellant
v
Glenn S. Goord, as Commissioner of New York State Department of Correctional Services, Respondent.
Supreme Court, Appellate Division, Fourth Department, New York
February 20, 2008
CITE TITLE AS: People ex rel. Eaddy v Goord
Wyoming County-attica Legal Aid Bureau, Attica (Norman P. Effman of counsel), for petitioner-appellant.Andrew M. Cuomo, Attorney General, Albany (Emil J. Bove, Jr., of counsel), for respondent-respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered December 5, 2006 in a habeas corpus proceeding. The judgment denied the petition.

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 adding a period of postrelease supervision to petitioner's sentence of imprisonment.?

Memorandum: On July 5, 2001, petitioner was sentenced in Supreme Court, Queens County, to a determinate term of imprisonment of six years upon his conviction of rape in the first degree. The court did not impose a period of postrelease supervision. During petitioner's imprisonment, respondent, New York State Department of Correctional Services (DOCS), added *1308 a five-year period of postrelease supervision to petitioner's sentence of imprisonment. At the time of his release from imprisonment in December 2005, petitioner refused to sign a form indicating that he would adhere to the terms of postrelease supervision, and he was returned to DOCS in May 2006 following his arrest for violating those terms. Petitioner then commenced this proceeding seeking a writ of habeas corpus on the ground that he was being illegally detained beyond the six-year term of imprisonment imposed by the court. Here, as in People ex rel. Burch v Goord (48 AD3d 1306 [2008]), the court relied in part on our decisions in People v Hollenbach (307 AD2d 776 [2003], lv denied 100 NY2d 642 [2003]) and People v Crump (302 AD2d 901 [2003], lv denied 100 NY2d 537 [2003]) in denying the petition. Petitioner has subsequently been released to the Division of Parole until December 2010.

We note at the outset that a writ of habeas corpus is no longer available to petitioner inasmuch as he has been released on parole (see **2 People ex rel. Murray v Bartlett, 89 NY2d 1002 [1997]). Nevertheless, we convert this 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. McBride v Alexander, 46 AD3d 849 [2007]; see generally People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391, 398 [1987]).

For the same reasons set forth in our decision in Burch, we reverse the judgment herein. We again note that, to the extent that our prior decisions in Hollenbach and Crump hold otherwise, they are no longer to be followed. Present-Hurlbutt, J.P., Smith, Centra, Green and Gorski, JJ.

United States Court of Appeals,
Second Circuit.
Sean EARLEY, Petitioner-Appellant,
v.
Timothy MURRAY, Respondent-Appellee.

Docket No. 04-4098-pr.
Argued: Jan. 25, 2006.
Decided: June 9, 2006.

*72 David Samel, New York, NY, for Petitioner-Appellant.

Amy Appelbaum, Assistant District Attorney (Charles J. Hynes, District Attorney, Kings County, Leonard Joblove and Victor Barall, Assistant District Attorneys, on the brief), Brooklyn, NY, for Respondent-Appellee.

Before WALKER, Chief Judge, LEVAL and SOTOMAYOR, Circuit Judges.


JOHN M. WALKER, JR., Chief Judge.

Petitioner-Appellant Sean Earley was sentenced to six years' incarceration pursuant to a plea agreement. Unbeknownst to Earley, his counsel, the prosecutor, and the sentencing judge, New York had recently passed a law mandating a term of post-release supervision (?PRS?) for convictions such as Earley's. Subsequently, the New York Department of Correctional Services (?DOCS?), without informing Earley, administratively added a five-year PRS term to Earley's sentence. More than a year later, upon learning of this addition to his sentence, Earley moved in state court to have the sentence amended to reflect the plea agreement by removing any term of supervision. After the state courts denied his motion and his appeal, Earley filed a petition for a writ of habeas corpus in the Eastern District of New York. The district court (Edward R. Korman, Chief Judge ) denied Earley's petition. This court granted a certificate of appealability, and we now vacate the district court's decision and remand the case.

*73 BACKGROUND
In February 2000, Sean Earley pleaded guilty to attempted burglary in the second degree. Pursuant to the plea agreement between Earley and the State of New York, he was sentenced to six years in prison. No term of post-release supervision following the six years of incarceration was included in the sentence announced in court by the judge, the written judgment, or the written order of commitment signed by the clerk of the Kings County Supreme Court. New York had recently passed a statute imposing a mandatory term of PRS that should have applied to Earley. See N.Y. Penal Law § 70.45 (?Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision.?). But as Earley, his counsel, the prosecutor, and the judge were not aware of the new law, Earley was not informed of this mandatory provision during plea negotiations, the plea allocution, or at the time his six-year sentence was imposed. Sometime between his sentencing in February 2000 and February 2002, DOCS administratively added a five-year term of PRS to Earley's sentence without informing Earley.

After hearing rumors from fellow inmates in October 2001 that DOCS had added periods of PRS to the sentences of certain inmates, Earley became concerned. He requested a statement of his sentence and transcripts of his plea and sentencing proceedings. Sometime in early February 2002, Earley says he received confirmation that a five-year PRS period had, in fact, been added to his sentence. The transcripts he received around the same time confirmed that no PRS period had been mentioned at either his plea or sentencing.

After exhausting his administrative remedies in an unsuccessful attempt to have the PRS term removed from his sentence, Earley moved in state court pursuant to section 440.20 of the New York Criminal Procedure Law to be resentenced according to the terms imposed by the sentencing judge. See N.Y.Crim. Proc. Law § 440.20. He argued that the modification to his sentence violated his due process rights and that he had received ineffective assistance of counsel.

The state court denied Earley's motion. While acknowledging that Earley should have been told about the PRS term, the court found that, because the PRS term is mandatory under New York law, Earley's request to eliminate it from his sentence could not be granted. The state court also denied Earley's ineffective-assistance-of-counsel claim, finding that Earley had failed to demonstrate that he had suffered any prejudice as a result of his counsel's alleged errors. The Appellate Division denied leave to appeal.

Earley then filed a petition for a writ of habeas corpus in federal district court, again raising both due process and ineffective-assistance claims and again asking for the PRS term to be removed from his sentence. The district court initially dismissed the petition as untimely because Earley had not filed his petition within one year of his conviction. After Earley moved for a rehearing on the basis that he had not been permitted to reply to the state's submissions that raised the question of timeliness, the district court granted rehearing. It reconsidered its earlier ruling and again denied Earley's petition. The district court acknowledged that the timeliness issue would require a hearing to inquire into the date Earley first became aware of the addition to his sentence and went on to deny the petition on the merits. This court granted Earley's motion for a certificate of appealability with respect to his claims that (1) his due process rights were violated and (2) he received ineffective*74 assistance of counsel. This appeal followed.

DISCUSSION
[1] Headnote Citing References This court reviews a district court's denial of a habeas corpus petition de novo. Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir.2001). Once a claim has been ?adjudicated on the merits? by the state court, our review of the state court's decision is subject to the deferential standard set out in section 104(3) of the Antiterrorism and Effective Death Penalty Act of 1996 (?AEDPA?), Pub.L. No. 104-132, 110 Stat. 1214, 1219 (codified at 28 U.S.C. § 2254(d)). Under AEDPA, an application for a writ of habeas corpus may not be granted unless the state court's adjudication of the claim was ?contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.? 28 U.S.C. § 2254(d)(1).

[2] Headnote Citing References[3] Headnote Citing References[4] Headnote Citing References The ?contrary to? clause of section 2254(d)(1) is violated if the state court reaches a result opposite to the one reached by the Supreme Court on the same question of law or arrives at a result opposite to the one reached by the Supreme Court on a ?materially indistinguishable? set of facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An ?unreasonable application? of Supreme Court law occurs if the state court identifies the correct rule of law but applies that principle to the facts of the petitioner's case in an unreasonable way. Id. at 413, 120 S.Ct. 1495. The question is whether the state court's application of clearly established federal law is objectively unreasonable, id. at 409, 120 S.Ct. 1495, where objectively unreasonable means ?some increment of incorrectness beyond error,? Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000). Because Earley's claims were adjudicated on the merits by the state court, AEDPA deference applies to those determinations.

[5] Headnote Citing References Seventy years ago, the Supreme Court established that the sentence imposed by the sentencing judge is controlling; it is this sentence that constitutes the court's judgment and authorizes the custody of a defendant. Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936). In Wampler, a federal trial judge orally sentenced the petitioner to eighteen months in prison and a $5,000 fine. The clerk of the court, following a local practice known to the court, added the condition that the defendant remain in custody until his fine was paid. The Supreme Court held that the clerk did not have the power to alter the sentence imposed by the court, and therefore the added condition was void. Justice Cardozo, speaking for a unanimous Court, announced a basic principle of criminal sentencing: ?The only sentence known to the law is the sentence or judgment entered upon the records of the court.... Until corrected in a direct proceeding, it says what it was meant to say, and this by an irrebuttable presumption.? Id. at 464, 56 S.Ct. 760 (internal citations omitted). The Court went on to write that a ?warrant of commitment [prepared by the clerk] departing in matter of substance from the judgment back of it is void.... ?The prisoner is detained, not by virtue of the warrant of commitment, but on account of the judgment and sentence.? ? Id. at 465, 56 S.Ct. 760 (quoting Biddle v. Shirley, 16 F.2d 566, 567 (8th Cir.1926)).

We recognize differences between the facts of Wampler and those before us. In Wampler, the decision whether to keep the defendant in custody pursuant to payment of a fine was, by law, within the discretion of the sentencing judge. Here, by contrast, state law required that Earley be sentenced to a PRS term. Early in his *75 analysis, Justice Cardozo noted this factor, writing that ?[t]he choice of pains and penalties, when choice is committed to the discretion of the court, is part of the judicial function. This being so, it must have expression in the sentence, and the sentence is the judgment.? Id. at 464, 56 S.Ct. 760 (emphasis added).

Had the Court stopped there, the holding of Wampler might extend only to those cases where punishment subsequently added to the defendant's sentence by administrative personnel relates to a matter within the court's discretion; it might have no application to a case such as ours, which involves a mandatory provision. But Wampler went on to articulate a broader holding: The judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment. Wampler thus provides clearly established Supreme Court precedent supporting Earley's claim. See also Greene v. United States, 358 U.S. 326, 329, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959) (quoting Wampler's assertion that ?the only sentence known to the law is the sentence or judgment entered upon the records of the court?); Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir.1979). The only cognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect.

[6] Headnote Citing References The sentence imposed by the court on Earley was six years in prison. The judgment authorized the state to incarcerate him for six years and no more. Any addition to that sentence not imposed by the judge was unlawful. Yet Earley was subjected to further custody. Post-release supervision, admitting of the possibility of revocation and additional jail time, is considered to be ?custody.? See Jones v. Cunningham, 371 U.S. 236, 240-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (holding that parole satisfies the ?in custody? requirement of habeas petitions); Peck v. United States, 73 F.3d 1220, 1224 n. 5 (2d Cir.1995) (holding that supervised release satisfies the ?in custody? requirement of habeas petitions). Earley was released from prison in 2004 but was reincarcerated for violating the terms of his PRS and is currently in prison.

[7] Headnote Citing References Earley's imprisonment was authorized not by the sentence as calculated by DOCS but by the judgment of the court. See Wampler, 298 U.S. at 465, 56 S.Ct. 760 (?The prisoner is detained, not by virtue of the warrant of commitment, but on account of the judgment and sentence.? (citation and internal quotation marks omitted)); see also United States v. A-Abras Inc., 185 F.3d 26, 29 (2d Cir.1999) (holding that the written judgment of commitment is simply evidence of the oral sentence); United States v. Marquez, 506 F.2d 620, 622 (2d Cir.1974) (holding that the oral sentence constitutes the judgment of the court and that it is that sentence that provides the authority for the execution of the sentence); Kennedy v. Reid, 249 F.2d 492, 495 (D.C.Cir.1957) (same); Wilson v. Bell, 137 F.2d 716, 721 (6th Cir.1943) (same); Hode v. Sanford, 101 F.2d 290, 291 (5th Cir.1939) (same). If, as in Wampler, an erroneous order of commitment prepared by the clerk of court with the court's knowledge cannot alter the sentence imposed by the court, then plainly a later addition to the sentence by an employee of the executive branch cannot do it. Only the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty. Wampler, 298 U.S. at 464, 56 S.Ct. 760 (?In any collateral inquiry, a court will close its ears to a suggestion that the sentence entered in the minutes is something other than the authentic expression of the sentence of the judge.?). *76 The state court's determination that the addition to Earley's sentence by DOCS was permissible is therefore contrary to clearly established federal law as determined by the United States Supreme Court.FN1

FN1. Although Wampler does not identify the source of the rule that it announces, we believe that it is based in the due process guarantees of the United States Constitution. Wampler does not hold that the defendant could not have been sentenced to the punishment that the state attempts to impose on him. It simply recognizes that he was not sentenced to that punishment. Any deficiency in the sentence could have been corrected through the proper procedures. The Supreme Court thus recognizes that procedural requirements in sentencing demand that a sentence must be imposed by a judge, on the record, in court.


The state contends that a five-year PRS was mandated by statute and therefore necessarily part of Earley's sentence by operation of law. We disagree. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), upon which the state relies, provides that a sentencing court may increase a defendant's sentence when it has omitted a mandatory component of that sentence without running afoul of the Double Jeopardy Clause, id. at 166-67, 67 S.Ct. 645, but that case does not contemplate allowing the increase to take place other than at a resentencing proceeding. In anticipation of such errors, and consistent with Bozza, New York law provides the appropriate remedy: If an inmate has received an illegal sentence, the state may move to have the offending sentence vacated and the defendant resentenced by a judge. See N.Y.Crim. Proc. Law § 440.40. Section 440.40 provides, in relevant part, that ?[a]t any time not more than one year after the entry of a judgment, the court in which it was entered may, upon motion of the people, set aside the sentence upon the ground that it was invalid as a matter of law.? Id. § 440.40(1). The defendant and his counsel must be informed of such a motion and given an opportunity to appear in opposition to the motion. Id. § 440.40(4). If the court grants the people's motion, it must then resentence the defendant in accordance with the law. Id. § 440.40(5).

Thus, when DOCS discovered the oversight made by Earley's sentencing judge, the proper course would have been to inform the state of the problem, not to modify the sentence unilaterally. The state then could have moved to correct the sentence through a judicial proceeding, in the defendant's presence, before a court of competent jurisdiction. See Wampler, 298 U.S. at 464, 56 S.Ct. 760 (?If the [order of commitment] is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth.?).

New York's Department of Correctional Services has no more power to alter a sentence than did the clerk of the court in Wampler. Earley's sentence was therefore never anything other than the six years of incarceration imposed on him by the judge at his sentencing hearing and recorded in his order of commitment. The additional provision for post-release supervision added by DOCS is a nullity. The imposition of a sentence is a judicial act; only a judge can do it. The penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence.

Because we find that clearly established Supreme Court precedent renders the five-year PRS term added to Earley's sentence by DOCS invalid, we vacate the district court's judgment and remand the case for that court to determine whether Earley's petition for a writ of habeas corpus was timely filed. Should the district court *77 determine that the petition was timely, it is instructed to issue a writ of habeas corpus excising the term of post-release supervision from Earley's sentence and relieving him of any subsequent penalty or other consequence of its imposition. Our ruling is not intended to preclude the state from moving in the New York courts to modify Earley's sentence to include the mandatory PRS term.FN2 Because we have determined that New York's modification of Earley's sentence violates clearly established federal law and requires us to grant his habeas petition in the event the petition was timely, we need not consider Earley's claim that his counsel was ineffective.

FN2. It is not clear whether such a motion could be made at this time under New York law, which appears to require such motions to be filed within one year of the entry of judgment. N.Y.Crim. Proc. Law § 440.40. Any such questions will be for the New York courts to decide in the event such an application is made.


CONCLUSION
The judgment of the district court is vacated and the case remanded for further proceedings consistent with this opinion.