Who has the authority to impose a sentence on a criminal defendant? Is there any part of a sentence which may be imposed by the Department of Correctional Services? In two decisions from the Third Department last week, the Court held that only a judge may impose all parts of a sentence – Matter of Dreher v Goord, 2007 NY Slip Op 10430 and Matter of Quinones v New York State Dept. of Correctional Servs., 2007 NY Slip Op 10435.
In both cases the defendants had been convicted of various crimes and the court imposed determinate sentences. In doing so, however, the court failed to impose a required period of post release supervision (Penal Law § 70.45, ). Instead, in both cases, the Department of Correctional Services took it upon itself to add periods of post release supervision to the defendants’ sentences.
The Third Department held that this was impermissible. In article 78 proceedings commenced by the defendants, the Court stated that the only cognizable sentence is one imposed by a judge, and that any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect. The Court thus vacated the periods of post release supervision imposed by the Department of Correctional Services. It should be noted that in doing so, the Third Department stated that its prior decisions reaching different conclusions should not be followed.