By Larry Hertz
Eight years ago, Brooklyn resident Eliot Garner was sent to state prison for five years after he was convicted of attempted robbery. When the day came for Garner to be released from prison in 2005, he believed he had paid his debt to society for his crime.
But as Garner was about to leave the prison, he was in-formed he would be under the supervision of a parole officer for the next five years. When he asked why, Garner was told this period of so-called "post-release supervision" was part of all sentences handed out to people convicted of violent crimes - and under state statute, attempted robbery is classified as a violent crime.
The state Department of Correctional Services contended it had the right to impose post-release supervision. But Garner filed an appeal. And three months ago, the state's highest court, the Court of Appeals, decided Garner was right: He shouldn't have to serve his period of post-release supervision if a judge never told him about it.
"Only a judge may impose a (post-release supervision) sentence ... the Department of Correctional Services may not do so," the court said in its April 29 ruling.
The ruling by the Court of Appeals, coupled with similar decisions issued by four other state appellate courts and a federal appeals court, has affected the sentences of an estimated 10,000 state inmates and former inmates, according to David Bookstaver, spokesman for the Office of Court Administration.
In spring, the state Legislature passed a law outlining how these cases ought to be remedied. Now that the new law has been passed, judges who imposed post-release supervision and failed to mention that portion of the sentence must bring the affected defendants back to court. Several are expected to come before Dutchess County Court Judges Gerald V. Hayes and Thomas J. Dolan this month.
Elon Harpaz, a New York City Legal Aid attorney who handled Garner's case, said the mix-up stemmed from "muddy language" contained in the 1998 law that provided for post-release supervision of inmates convicted of violent crimes.
"The law didn't make it clear that judges were obligated to pronounce this post-release supervision, which is really just parole with another name," Harpaz said. "It left judges in a state of uncertainty."
The new state law gives some inmates the option of withdrawing their pleas and starting their cases over, but most defendants will probably be reluctant to do that, because they would have to negotiate new plea deals. But the law allows judges, with the consent of the district attorney, to waive post-release supervision for defendants who were not informed about this portion of their sentence.
District Attorney William Grady said the new law could potentially result in new trials for some of the defendants who elect to take back their guilty pleas. But Grady said he expected most of the cases returned to the Dutchess courts to be resolved without a trial.
"By voiding a plea, the offender reinstates the entire indictment, including many more charges than he pleaded guilty to," the district attorney said. "Therefore, if the offender were convicted after a new trial, he would be facing much more prison time than he had already in fact served."