LEWIS v. WARDEN

Supreme Court properly concluded that petitioner's sentence did not include PRS, and that the term of PRS administratively imposed by the Department of Correctional Services (DOCS) was a nullity ( see 14 Misc 3d 468). The sentencing court failed to mention PRS at the time sentence was imposed. Even if petitioner was advised that he was subject to a term of PRS at his plea proceeding, petitioner was not sentenced to PRS because the PRS term "was not `pronounced' [by the court] as required by CPL 380.20 and 380.40" ( People v Sparber, 10 NY3d 457, 470).

Although the absence of PRS results in a sentence that is not in compliance with Penal Law § 70.45, DOCS lacks the authority to administratively impose a term of PRS, as "the sentencing judge — and only the sentencing judge — is authorized to pronounce the PRS component of a defendant's sentence" ( Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 362).

"[H]abeas corpus is an appropriate proceeding to test a claim that the relator has been imprisoned after having been deprived of a fundamental constitutional or statutory right in a criminal prosecution, including, but not limited to, the right to be tried and sentenced by a court having jurisdiction over the charge and the person" ( People ex rel. Keitt v McMann, 18 NY2d 257, 262; see CPLR 7002 [a]). Since the parole warrant alleged a violation of a nonexistent portion of petitioner's sentence, it was not a valid basis for his detention.

[ See 14 Misc 3d 468 (2006).]