By MICHAEL VIRTANEN
Associated Press

ALBANY - New York's highest court ruled Tuesday that the Department of Correctional Services cannot impose post-release supervision on inmates as they exit prison when the sentencing judge neglected to.

The Court of Appeals concluded that Elliott Garner was subject to five years of mandatory supervision as a second felony offender. However, Garner said he first learned about that when corrections officials presented him with a conditional release agreement four years later as he was leaving prison. He signed it "under protest." Because of continued drug use, he was sent back to prison for violating terms of his supervision.

A convicted burglar, he filed suit challenging the authority of corrections officials to add to the 5-year sentence he had been given under his plea bargain.

"The sentencing judge - and only the sentencing judge - is authorized to pronounce the PRS component of a defendant's sentence," Judge Carmen Beauchamp Ciparick wrote. Chief Judge Hon. Judith Kaye and Hon. Victoria Graffeo, Hon. Susan Read, Hon. Robert Smith, Hon. Eugene Pigott and Hon. Theodore Jones concurred. "PRS represents a significant punishment component that restricts an individual's liberty."

They reversed a lower appeals court, which had concluded corrections officials were "only enforcing, not imposing" a part of Garner's sentence automatically included by law.

Corrections spokesman Eric Kriss said Tuesday the ruling may affect 700 current inmates, as well as others currently on post-release supervision. "We are still unclear and uncertain as to the various avenues of relief that may be available to inmates," he said.

"Garner is on parole," Kriss said. "I think what this ruling means is he's a free man."

The unanimous Court of Appeals said its ruling does not prevent state officials from seeking to have Garner, 45, resentenced "in the proper forum."

However, his attorney Elon Harpaz doubted that will happen. The corrections department will now have to delete post-release supervision from the record of Garner, who will no longer be on parole, he said.

It was estimated that corrections officials added post-release supervision to 8,400 defendants, and the state Parole Division can no longer enforce those, said Harpaz, of the Legal Aid Society of New York City. "That's the bottom line right now."

A call to the Parole Division was not immediately returned Tuesday.

The court said Garner was not advised of the additional five years of post-release supervision either when his plea deal was explained or at sentencing in Brooklyn, and it was not recorded on his sentencing commitment order.

In five other cases Tuesday where inmates challenged supervision that wasn't mentioned at sentencing, the Court of Appeals sent them all back to the trial courts for hearings "that will include proper pronouncement of the relevant PRS term."

Two cases involved plea bargains, according to the court. In one, the five years of additional supervision was recorded only on a commitment sheet prepared by a court clerk. In the other, it was noted on the commitment sheet, on a worksheet signed by the judge and was mentioned when the plea deal was explained.

Three cases involved jury verdicts where the commitment sheet and another court document cited the post-release supervision.

"In all five of these cases, there exists no procedural bar to allowing the sentencing court to correct its PRS error," the court ruled unanimously.

In 2006, a federal appeals court said the department's administrative addition of post-release supervision not included at sentencing violated another inmate's "due process guarantees."