Opinion
4609/99.
Decided February 11, 2009.
STEVEN BANKS, ESQ., Legal Aid Society Criminal Appeals Bureau, Attorneys for defendant.
Attn: Elon Harpaz, Esq., A.D.A. HANNAH E.C. MOORE, Office of the District Attorney, Bronx County.
In this motion defendant seeks an order precluding resentencing under section 601-d of the Correction Law. On May 18, 2000, judgment was entered by this Court convicting defendant after a jury trial of assault in the second degree (P.L. § 125.05) and sentencing him to a determinate term of imprisonment of seven years. Defendant's appeal was denied and the judgment affirmed by the Appellate Division, First Department. People v Thomson, 309 AD2d 609 (1st Dep't 2003). Defendant's application for leave to appeal to the Court of Appeals was denied. People v Thompson, 1 NY3d 581 (2003).
On September 29, 2008, pursuant to Corr. L. § 601-d(2), the New York State Department of Correctional Services (hereinafter, "DOCS") notified this Court, defendant, and the District Attorney for Bronx County that defendant is a "designated person." Consistent with court protocol, the matter was referred to Hon. Eileen Koretz (J.H.O.) for a recommendation and proposed order following proceedings in accordance with Corr. L. §§ 601-d(4) and (5). J.H.O. Koretz determined that no period of post-release supervision (hereinafter, "PRS") had been pronounced at defendant's original sentencing on May 18, 2000. The People requested that defendant be resentenced, the sentence now to include that he is subject to a period of PRS as mandated by section 70.45 of the Penal Law. Defendant opposed the People's request and filed the instant motion to preclude resentencing on the grounds that the imposition of PRS at this point would violate defendant's constitutional rights against double jeopardy (U.S. Const. Amend. V) and to due process (U.S. Const. Amend. XIV[§ 1]), and that the Court has lost its jurisdiction to resentence him. The matter was transferred to this Court and the fully-submitted motion papers were delivered to chambers on December 16, 2008.
A "designated person" is a person whose sentence should have but did not include a period of post-release supervision and on whose commitment order post-release supervision was not recorded. Corr. L. § 601-d(1).
The Court has reviewed the applicable law and the following documents: (1) defendant's Affirmation (of Elon Harpaz, Esq.) In Opposition To Application To Resentence dated October 27, 2008 (hereinafter, "Harpaz Aff."); (2) defendant's Argument (memorandum of law) dated October 27, 2008; (3) defendant's Exhibits A and B; (4) People's Affirmation (of A.D.A. Hannah E.C. Moore) In Opposition To Motion To Preclude Resentencing dated November 14, 2008; (5) People's Memorandum Of Law dated November 2008; (6) People's Exhibits 1 through 4; (7) defendant's Affirmation (of Elon Harpaz, Esq.) In Reply To People's Memorandum Of Law Supporting Resentencing dated December 15, 2008 (hereinafter, "Reply Aff."); (8) defendant's Reply Memorandum Of Law dated December 15, 2008; and, (9) defendant's Exhibits (to Reply) A and B.
Upon consideration of all of the foregoing, and for the reasons that follow, defendant's motion to preclude resentencing is denied.
Factual Background
Pursuant to P.L. § 70.45, the sentence imposed by the Court on May 18, 2000, was mandated to include a period of PRS of defendant to follow his completion of the incarceration component of the sentence. The Court agrees with and adopts the determination of J.H.O. Koretz that no period of PRS was pronounced at the original sentencing proceeding. Following the initial sentencing proceeding defendant was properly delivered to the custody of DOCS to commence service of the determinate term of seven years imprisonment. It is undisputed that defendant has since completed said service, but neither party alleges the date on which defendant was released from the custody of DOCS, or whether he was released to the DOCS imposed, and thus unlawful, supervision of the Division of Parole. According to a document entitled "Sentence Terms and Dates," which defendant's counsel downloaded from the DOCS website (a copy of which is annexed to the Reply Aff. as Exhibit A), the maximum expiration date for the incarceration component of defendant's sentence was "07/10/2006," and according to another document downloaded from the DOCS website entitled "Inmate Information" (a copy of which is annexed to the Harpaz Aff. as Exhibit A), defendant was assigned a "Post Release Supervision Maximum Expiration Date." Consequently, the Court finds that defendant completed service of the incarceration component of his original sentence on July 10, 2006, and that on that date he was released by DOCS to the DOCS imposed supervision of the Division of Parole.
Since defendant's original sentence did not include a period of PRS, DOCS could not legally release him to or subject him to the supervision of the Division of Parole. See Matter of Garner v New York State Dep't of Correctional Services , 10 NY3d 358 , 362 (2008); People v Figueroa , 45 AD3d 297 , 298 (1st Dep't 2007).
Discussion
Defendant's motion to preclude this Court from resentencing him so as to impose the statutorily-required period of PRS which was not imposed when sentence was initially pronounced on May 18, 2000, is denied. Because it did not include PRS, defendant's sentence as imposed was less severe than the law mandated, and it was illegal. Resentencing is necessary to correct that illegality. Although defendant has fully served the incarceration component of the original albeit illegal sentence, resentencing violates neither the Double Jeopardy Clause of the Fifth Amendment, nor the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Nor has the Court been divested of jurisdiction to resentence defendant by his completion of the incarceration component of the original sentence, or the passage of time since the initial sentencing procedure. Therefore, defendant's motion to preclude resentencing is denied.
The Double Jeopardy Clause
Defendant argues that because he has fully served the incarceration component of the sentence which this Court pronounced on May 18, 2000, imposing PRS in a resentencing proceeding now would violate his rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. He contends that inasmuch as incarceration was the only punishment imposed in the initial sentencing proceeding, he had a legitimate expectation of finality in the original sentence upon completion of that incarceration. Defendant's argument is unavailing because there can be no expectation of finality in a sentence which is less severe than the law requires.
Defendant does not invoke the double jeopardy and due process protections accorded by the New York State Constitution ( see NY Const., art. I, §§ 1 and 6), nor does he argue that those provisions provide him any greater or different protections than those accorded by the United States Constitution.
The Double Jeopardy Clause does not provide a blanket prohibition against the imposition of additional punishment in a resentencing proceeding when such additional punishment could lawfully have been imposed as part of the original sentence. Unlike the prohibition against a second trial for the same alleged criminal conduct following an acquittal, the Double Jeopardy Clause is not an absolute bar to a second sentencing proceeding for the same conviction. United States v DiFrancesco, 449 U.S. 117, 133 (1980) ("Historically, the pronouncement of sentence has never carried the finality that attaches to an acquittal.") However, if a defendant has a legitimate expectation of finality in the severity of the original sentence, the constitutional proscription against double jeopardy prohibits the imposition of additional punishment in a second, separate proceeding even if such additional punishment was authorized by statute when the original sentence was pronounced. See United States v Halper, 490 U.S. 435, 450 n. 10 (1989) ("when the Government already has imposed a criminal penalty and seeks to impose additional punishment in a second proceeding, the Double Jeopardy Clause protects against the possibility that the Government is seeking the second punishment because it is dissatisfied with the sanction obtained in the first proceeding"); Jones v Thomas, 491 U.S. 376, 393-396 (1989) (Scalia, J., dissenting) (discussing Halper, DiFrancesco, Bozza v United States [ see infra], United States v Fogel [ see infra] and other opinions dealing with the issue).
"[T]he application of the double jeopardy clause to an increase in a sentence turns on the extent and legitimacy of a defendant's expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited by the double jeopardy clause. If, however, there is some circumstance which undermines the legitimacy of that expectation, then a court may permissibly increase the sentence." United States v Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987) (emphasis supplied). In other words, the legitimacy of a defendant's expectation of finality in the severity of a sentence is dependent upon objective circumstances or the absence thereof of a factual or legal nature which raise the possibility that the original sentence may be modified at a later time. See, e.g., United States v DiFrancesco, 449 U.S. at 139 (holding that where "Congress has specifically provided that the sentence is subject to appeal [by the Government]. Under such circumstances there can be no expectation of finality in the original sentence"); North Carolina v Pearce, 395 U.S. 711, 719-721 (1967) (holding that where defendant had successfully appealed his original conviction a factual circumstance of the defendant's own making the Double Jeopardy Clause did not preclude the imposition of a more severe sentence on reconviction); United States v Benbrook, 119 F.3d 338, 340 (5th Cir. 1997) (holding that "[w]hen a defendant challenges one of [multiple] interdependent convictions . . . he has no expectation of finality in the original sentence, having put at issue the validity of the entire sentence"). Further, where the objective circumstance undermining a defendant's expectation is of a legal nature the defendant is charged with knowledge of its existence, ( see, e.g., United States v Crawford, 769 F.2d 253, 257 [5th Cir. 1985], cert denied 474 U.S. 1103 [holding that defendant had no expectation of finality because he "is charged with knowledge that his sentence, if illegally imposed (here, because the Government was denied its right to allocution), is subject to correction under Fed.R.Crim.P. 35(a)"]), and a legitimate expectation of finality can not arise unless or until a point is reached where that circumstance has been extinguished due to the passage of time or the occurrence of an event ( see United States v DiFrancesco, 449 U.S. at 136 ["The defendant, of course, is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired"]).
A defendant can have no legitimate expectation of finality in a sentence which is less severe than the law requires even after he has fully served that sentence. Regardless of a defendant's personal hope or subjective belief, such illegal lenience is an objective legal circumstance which undermines the constitutionally recognizable legitimacy of his expectation of finality. See Jones v Thomas, 491 U.S. at 395 (Scalia, J., dissenting) (explaining that a defendant who receives such a sentence is "charged with knowledge that the court lacked statutory authority to impose the sub minimum sentence in the first instance"); Bozza v United States, 330 U.S. 160 (1947) (holding that the imposition of a statutorily required fine in a second proceeding five hours after the defendant had begun service of the imprisonment component of the original sentence did not violate the Double Jeopardy Clause); People v Whitfield, 276 AD2d 365 (1st Dep't 2000), lv denied 96 NY2d 740 (2001) (holding that increase in minimum term of indeterminate sentence would not violate Double Jeopardy Clause "because defendant had no legitimate expectation of finality in the original illegal sentence"); United States v Rourke, 984F.2d 1063, 1066 (10th Cir. 1992) (holding that addition of "statutorily mandated special parole term" in a second proceeding did not violate Double Jeopardy Clause because "[a] defendant cannot acquire a legitimate expectation of finality in a sentence which is illegal"); cf. Williams v Travis, 143 F.3d 98, 99 (2nd Cir. 1998) (holding that increase in maximum term of indeterminate sentence did not violate Double Jeopardy Clause because defendant "had no legitimate expectation of finality in his original sentence, which was not authorized by law, was appealable by the government, and was modified only a week after it was imposed"). Nor is that illegal lenience extinguished by the mere passage of time or the defendant's completion of the sub minimum sentence. See People v Melendez, 254 AD2d 74 (1st Dep't 1998), lv denied93 NY2d 855 (1999) (holding that imposition of indeterminate sentence required under second felony offender statute after defendant completed service of illegal one year sentence did not violate Double Jeopardy Clause); United States v Edmonson, 792 F.2d 1492, 1496 (9th Cir. 1986), cert denied 479 U.S. 1037 (1987) (holding that imposition of additional punishment after defendants had "already served all or part of their void sentences" did not violate Double Jeopardy Clause). Therefore, a defendant can have no legitimate expectation of finality in the severity of an illegally lenient sentence even after it has been fully served.
The legitimacy of an expectation of finality in the severity of a sentence does not have a subjective element; it is not a function of the knowledge, intelligence, or experience of the particular person whose sentence is at issue. See United States v Bryce, 141 F. Supp.2d 269, 276 (D. Conn. 2001), affd 287 F.3d 249 (2nd Cir. 2002) (at resentencing following his partially successful appeal, the defendant argued that the imposition of a higher sentence would violate the Double Jeopardy Clause; the court held that "assuming the defendant had a subjective expectation of finality once the government requested rehearing [before the Court of Appeals], his interest is not controlling").
Defendant's reliance upon United States v Silvers, 90 F.3d 95 (4th Cir. 1996), in support of his argument that "case law draws a bright line at the end of the sentence, making it clear that resentencing is no longer possible where the defendant has fully served the sentence pronounced by the court" (Harpaz Aff. at 8) is misplaced. Because the original sentences which the defendant in Silvers had fully satisfied were not illegal, a legitimate expectation in their finality arose when they had been fully served and the subsequent imposition of additional punishment on resentencing violated the Double Jeopardy Clause. Id., 90 F.3d at 101. In contrast, defendant here had no legitimate expectation of finality when the original sentence was imposed precisely because it was not legal, and no such expectation arose upon the expiration of the original sentence because it was then as it is now still illegal; in other words, the circumstance undermining the legitimacy of defendant's expectation of finality has not been extinguished. See United States v Arrellano-Rios, 799 F.2d 520, 523-525 (9th Cir. 1986) (holding that "increasing a legal sentence that already has been fully served would violate the Double Jeopardy Clause," and explaining that increasing an illegal sentence would not constitute double jeopardy even after it had been fully served).
Defendant's reliance upon Stewart v Scully, 925 F.2d 58 (2nd Cir. 1991) ( see Reply Aff. at 6), is also misplaced. As the Second Circuit Court of Appeals made clear in a subsequent opinion, the determinative factor for its holding that Stewart had a legitimate expectation of finality in the severity of his original sentence was that he had entered a guilty plea in reliance upon "specific assurances" from the sentencing court concerning the maximum punishment to which he would be subject. See Williams v Travis, 143 F.3d at 99.
Defendant's reliance upon two opinions from the Ohio Supreme Court ( State ex rel. Cruzado v Zaleski, 856 N.E.2d 263 [2006], and Hernandez v Kelly, 844 N.E.2d 301 [2006]) ( see Harpaz Aff, at 11-12) is unavailing for a different reason. In Hernandez, the court held that the failure to impose "postrelease control" rendered the original sentence void and that such additional punishment could not be imposed on resentencing because the defendant had fully served the void sentence. In Cruzado, the court, distinguishing Hernandez, held that postrelease control could be imposed, in part because the defendant had not yet fully served the original sentence. However, in each instance the holding was based upon the sentencing court's authority or lack thereof under Ohio statutory law. See Hernandez v Kelly, 844 N.E.2d at 305 ("an after-the-fact notification of Hernandez, who has served his seven-year sentence, would circumvent the objective behind R.C. 2929.14(F) and 2967.28 to notify defendants of the imposition of postrelease control at the time of their sentencing"). Neither the Double Jeopardy Clause nor any comparable provision in the Ohio State Constitution was discussed in either opinion. Indeed, the words "double jeopardy" do not appear in the Hernandez opinion and only in a two-sentence paragraph at the conclusion of the Cruzado opinion: "Finally, Cruzado's and amicus curiae's argument that prohibition is warranted based on double jeopardy is not meritorious. Double-jeopardy claims are not cognizable in prohibition." 856 N.E.2d at 269.
Defendant also cites three opinions from two intermediate appellate courts in the State of Florida ( Maybin v State, 884 So.2d 1174 [Fla. 2nd D.C.A. 2004], Willingham v State, 833 So.2d 237 [Fla. 4th D.C.A. 2002], and Sneed v State, 749 So.2d 545 [Fla. 4th D.C.A. 2000]) in support of his "bright-line" argument. ( See Harpaz Aff. at 13). However, this Court does not find those opinions persuasive, particularly since they provide no rationale or analysis and apparently rely on no authority other than Silvers, which is the only opinion cited in Sneed; Maybin and Willingham cite only Sneed. Moreover, as the Fourth Circuit Court of Appeals itself noted in Silvers, there simply is no "bright-line" at which resentencing is presumptively precluded under the Double Jeopardy Clause: "Based on DiFrancesco, we decline to declare a ruling which would provide defendants bright-line protection under the Double Jeopardy Clause at the point they exhaust their direct appeals. Instead, . . . the appropriate inquiry from DiFrancesco is whether at a particular point in time, the defendant has a legitimate expectation of finality in his sentence." 90 F.3d at 100.
The sentence which this Court imposed upon defendant on May 18, 2000, was illegally lenient. Pursuant to P.L. 70.45, the law required that defendant receive a determinate sentence of imprisonment plus a period of PRS. The sentence which this Court pronounced was a determinate term of imprisonment; because the Court did not pronounce that the sentence included a period of PRS that sentence was illegal, as incomplete. People v Sparber , 10 NY3d 457 , 469-471 (2008). "A determinate sentence without the post-release supervision constitutes an illegal sentence." People v Bell, 305 AD2d 694 (2nd Dep't 2003), lv denied 100 NY2d 592 (2003); see also People ex rel. Lewis v Warden, Otis Baum Correctional Facility, 51 AD3d 512 (1st Dep't 2008); People v Hill , 39 AD3d 1 , 13 (1st Dep't 2007), revd on other grounds 9 NY3d 189 (2007). A determinate term of imprisonment followed by a period of PRS is more severe than a determinate term of imprisonment which is not followed by a period of PRS. See People v Sparber, 10 NY3d at 470 (PRS constitutes "an additional punishment"); Matter of Garner v New York State Dep't of Correctional Services , 10 NY3d 358 , 362-363 (2008) ("PRS represents a significant punishment component that restricts an individual's liberty"). Therefore, the sentence imposed by this Court on May 18, 2000, was illegally lenient.
Resentencing defendant now so as to include the period of PRS which was required by statute at the time the original sentence was imposed would not violate the Double Jeopardy Clause. Defendant did not have a legitimate expectation of finality in the severity of the original sentence because it was illegally lenient and defendant is charged with knowledge of that undermining circumstance. See Bozza v United States, supra; People v Whitfield, supra; People v Melendez, supra. Defendant's expectation of finality was also undermined by the additional legal circumstance that New York courts have the inherent power to correct an illegal sentence. See People v DaValle, 94 NY2d 870 (2000) (holding that court had inherent power to resentence defendant, sua sponte, by running sentence consecutively with prior sentence where original pronouncement had illegally run it concurrently with prior sentence); People v Williams, 87 NY2d 1014 (1996) (holding that court had inherent power to resentence defendant who was not a predicate felon, sua sponte, to term of three and one-half to ten and one-half years where originally it had illegally sentenced defendant to three and one-half to seven years as a predicate felon). Neither of these undermining circumstances have been extinguished by defendant's service of the entire incarceration component of the original sentence; the sentence as imposed remains illegally lenient and the Court retains the inherent power to correct the illegality. Therefore, defendant never had and still does not have a legitimate expectation that he would not be subject to statutorily mandated punishment more severe than or in addition to that which was imposed by this Court on May 18, 2000, and the Double Jeopardy Clause does not preclude the Court from imposing such additional punishment in a second, separate proceeding.
The Due Process Clause
Defendant argues that the Due Process Clause of the Fourteenth Amendment to the United States Constitution precludes a court from correcting an illegally lenient sentence once a defendant has fully served that illegal sentence. ( See Harpaz Aff. at 14-16). He contends that at some point after completing the punishment pronounced by this Court on May 18, 2000, he "developed a fully crystalized expectation of finality" ( id. at 15), such that "resentencing to correct [that admittedly] illegal sentence [would be] inconsistent with notions of fairness embodied in the due process clause" ( id. at 15). Defendant's argument is unavailing because it is founded on a faulty premise. The determination of whether an asserted right or interest is specially protected under the substantive component of the Due Process Clause is dependent not upon the subjective fairness or unfairness of the consequence of the state action which affects it, but upon an examination of the objective historical significance of the right or interest itself.
All of the authorities referred to in this section, including all of the authorities upon which defendant relies, are opinions of the Supreme Court of the United States or of the United States Court of Appeals, concerning claims made primarily under the Due Process Clause of the Fifth Amendment. As to the issues addressed in this discussion, of course, the analysis would be the same under either the Fifth or Fourteenth Amendment.
The context in which defendant argues is in the concept of substantive rather than procedural due process. He contends that whatever the procedure, resentencing would deprive him of a constitutionally protected right or interest, not that the resentencing process would be less than that which is constitutionally due. Nor does defendant specifically contend that he is asserting a specially protected fundamental right or liberty interest. However, if the interest he asserts is not entitled to enhanced protection it can not be disputed that resentencing would not violate due process since that action would clearly be rationally related to a legitimate government interest i.e., the imposition of a sentence required by law. Therefore, defendant's argument will be considered as if he were contending that he is asserting a fundamental right or liberty interest entitled to special protection under substantive due process.
As the Supreme Court of the United States has said:
Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nations history and tradition,' and implicit in the concept of ordered liberty,' such that neither liberty nor justice would exist if they were sacrificed.' Second, we have required in substantive-due-process cases a careful description' of the asserted fundamental liberty interest.
Washington v Glucksberg, 521 U.S 702, 720-721 (1997) (internal citations omitted).
The Supreme Court has also said that where the asserted fundamental right or interest is allegedly denigrated by "a specific act of a government officer," as opposed to a legislative enactment, the two-part analysis outlined in Glucksberg is not undertaken unless the executive abuse of power is so egregious that it "shocks the conscience." See County of Sacramento v Lewis, 523 U.S. 833, 845-847 (1998) ( but see concurring opinions of Kennedy, J. [which O'Connor, J., joins] [ id. at 856-858], and Scalia, J.[which Thomas, J., joins] [ id. at 860-865], expressing "concerns about using the phrase shocks the conscience' in a manner suggesting that it is a self-defining test" [ id. at 858]). The state action involved here consists of resentencing a convicted felon so as to impose upon him the punishment which the law requires. While it is difficult to characterize this action as legislative or executive, it can not be seriously contended, and defendant does not argue, that the action itself is egregious, much less so egregious that it shocks the conscience. Compare, e.g., Rochin v California, 342 U.S. 165, 172-173 (1952) (holding that forced pumping of a suspect's stomach was conduct "that shocks the conscience" and violates the "decencies of civilized conduct"). Defendant "cannot show the bad faith or deliberate misuse of power necessary to satisfy the Lewis test." United States v Sanders, 452 F.3d 572, 577 n. 4 (6th Cir. 2006) (finding no interest entitled to due process protection where defendant had fully served invalidly lenient sentence but government did not seek resentence until four years after his release). Thus, if the state action at issue here were properly characterized as executive, that would be an end to the discussion.
Even assuming that the action is legislative, defendant's argument is equally unavailing under the Glucksberg analysis. The liberty interest which defendant asserts, but fails to carefully describe, is best characterized as the right of a convicted felon to resist being resentenced to additional punishment mandated by law if he has fully served the original, illegally lenient sentence and the state has not sought resentencing for such an appreciable period of time that his expectation for continued freedom from the additional punishment has crystallized. Cf. Hawkins v Freeman, 195 F.3d 732, 747 (4th Cir. 1999) (describing in similar language the liberty interest asserted by a prisoner who had been mistakenly released to parole and claimed that his "expectations for continued freedom from incarceration" had "crystallized" due to the passage of "appreciable time" before the error was corrected).Defendant cites no federal or state authority, and this Court could find none, holding or supporting the proposition that the interest he asserts is a fundamental liberty interest specially protected under the Due Process Clause. Nor does defendant point to any antecedents in our Nation's history and tradition which would establish that the interest he asserts is "deeply rooted' and implicit in the concept of ordered liberty,' such that neither liberty nor justice would exist if [it] were sacrificed.'" Washington v Glucksberg, 521 U.S at 720-721.
Defendant's reliance upon three opinions from the United States Court of Appeals ( DeWitt v Ventetoulo, 6 F.3d 32 [1st Cir. 1993]; United States v Lundien, 769 F.2d 981 [4th Cir. 1985]; and, Breest v Helgemoe, 579 F.2d 95 [1st Cir. 1978]), the only authorities he cites in support of his argument, is misplaced. All of those opinions pre-date, and none of them apply, the substantive due process analysis laid out in Glucksberg and Lewis. All of those opinions discuss due process only in a general sense. And that discussion appears only as dicta mere speculation in Breest and Lundien. The First Circuit found a due process violation in DeWitt, but on facts so unusual and with no relevance to defendant's situation here that it concluded, "[i]n sum, this case is the very rare exception to the general rule that courts can after sentence, revise sentences upward to correct errors." 6 F.3d at 36; compare People v Materne, 72 F.3d 103, 106-107 (9th Cir. 1995) (finding no due process violation and distinguishing DeWitt on the basis that Materne's "sentence allows for no reasonable expectation of finality" because it was illegal). Therefore, none of the opinions which defendant cites support his underlying contention that his asserted liberty interest is specially protected under the Due Process Clause.
For which reason the Fourth Circuit later criticized and declined to follow either DeWitt or its own prior opinion in Lundien both of which relied heavily upon Breest. See Hawkins v Freeman, 195 F.3d at 748-750 ("For the same reasons we find Lundien . . . inapposite to issues presented by Hawkins's quite different claim, we find DeWitt similarly unpersuasive under current substantive due process law.")
"After a substantial period of time . . . it might be fundamentally unfair, and thus violative of due process for a court to alter even an illegal sentence. . . ." 579 F.2d at 101 (emphasis supplied).
"[D]ue process may also be denied when a sentence is enhanced after the defendant has served so much of his sentence that his expectations as to its finality have crystallized and it would be fundamentally unfair to defeat them." 769 F.2d at 987 (emphasis supplied).
In fact, the liberty interest which defendant asserts is not protected under the Due Process Clause. Defendant does not assert that a protected liberty interest to be free from additional punishment arose upon pronouncement of the original illegal sentence, during his imprisonment, or upon his release from the incarceration component of the original sentence. Rather, he asserts that this liberty interest was a consequence of his crystallized expectation of freedom which arose with the passage of time following his release. Thus, that crystallized expectation indeed, the fact that that expectation became "crystallized" is the linchpin of defendant's asserted liberty interest. However, defendant's subjective expectation, crystallized or not, is not a basis for special due process protection. As the United States Court of Appeals for the Fourth Circuit noted in analogous circumstances, "a claimant's crystallized expectations' . . . has been specifically rejected by the Supreme Court as a source of substantive due process right in related contexts (citations omitted)." Hawkins v Freeman, 195 F.3d at 749. In any event, "the asserted liberty interest the right to resist incarceration and to protect settled expectations of freedom' is not one protected by the Constitution when[, as here,] the defendant has been convicted, had that conviction affirmed, and the court seeks to impose a lawful sentence." United States v Sanders, 452 F.3d at 577 n. 4. Inasmuch as the interest which defendant asserts is not a fundamental right or liberty interest which is specially protected under the substantive component of the Due Process Clause, the Court is not precluded thereby from now imposing a statutorily mandated punishment more severe than or in addition to that which was imposed by this Court on May 18, 2000.
Loss of Jurisdiction to Resentence
Defendant argues that "[b]y failing to correct the illegal sentence before it had been fully served, the court has lost jurisdiction to do so now." (Harpaz Aff. at 16). However, he fails to cite a single authority which supports this conclusory statement, and the opinions which he does cite ( People v Drake, 61 NY2d 359; People ex rel. Harty v Fay, 10 NY2d 374, and; People v Quinones, 272 AD2d 228 [1st Dep't 2000]) do not do so. In Quinones, the Appellate Division held that the sentencing court was without jurisdiction to revoke the defendant's sentence of probation because the determination that he had violated probation had not been made until after the probationary period had expired. See People v Quinones, 272 AD2d at 229. In Drake and Harty, the Court of Appeals held that a court can lose jurisdiction to pronounce sentence where there is a lengthy and unexplained, and therefore unreasonable, delay between conviction and the initial pronouncement of sentence. See People v Drake, 61 NY2d at 367. There is no indication in any of the opinions defendant cites that the original sentence was illegal, or that resentencing had been undertaken to correct some other error.
In other words, an alleged violation is not a cause for revocation until it has been established at a violation of probation hearing. Since the defendant in Quinones was no longer subject to probationary supervision when that determination was made, there was simply no probation to be revoked and no sentence to be modified. Had the determination been made while the defendant was still on probation, the court would not have lost jurisdiction to resentence him simply because the resentencing proceeding took place after the probationary period had expired.
Indeed, when considered in light of averments in the Reply Aff., defendant's misplaced reliance upon Drake and Harty indicates that his contention that the Court has lost jurisdiction to resentence him is actually based upon the fact that time has passed since the initial sentencing proceeding and the fact that time has passed since his completion of the incarceration component of the original sentence. But this argument too, is unavailing. It is true that the proscription against unreasonable delay has been held to apply to resentencings. See People v Smith, 277 AD2d 178 (1st Dep't 2000). However, unlike delays between conviction and initial sentencing, there is no presumption of prejudice, so "a defendant must demonstrate prejudice resulting from the delay between sentencing and resentencing." People v Hatzman, 218 AD2d 185, 188 (4th Dep't 1996).
"The People seek to have defendant resentenced to a term of post-release supervision more than 8 years after the sentencing proceeding took place and almost 2½ years after defendant completed serving the only sentence ever imposed against him, a 7-year prison term that expired on Jul 10, 2006." (Reply Aff. at 1).
Defendant has failed to demonstrate prejudice and the delay in resentencing is not otherwise unreasonable. Where, as here, resentencing is necessary to correct an illegality in the initial sentencing proceeding or in the original sentence imposed it is a factor to be considered in the determination of the reasonableness of the delay and whether the defendant has been prejudiced thereby. See People v Smith, supra (holding that "[d]efendant's right to be sentenced without unreasonable delay [CPL 380.30(1)] was not violated by the elapse of three years between the original [procedurally defective] sentencing and resentencing"); People v Bryan, 231 AD2d 957 (4th Dep't 1996) (holding that "the delay in resentencing defendant following sentencing that failed to conform to CPL 380.20 does not divest the court of jurisdiction") lv denied 89 NY2d 862 (1996). Moreover, during the period since the initial sentencing proceeding defendant was incarcerated for a determinate term commensurate with both the original, albeit illegal sentence and that which the law required, and he was released to the albeit illegal DOCS imposed supervision of the Division of Parole on the same date and under the same conditions as he would have been had PRS been imposed at the initial sentencing proceeding. Nor does defendant allege that as a result of the delay in resentencing he has lived under any legal disability or been otherwise prejudiced in a manner which he would not have suffered if the illegality of his original sentence had been remedied sooner. Therefore, defendant has failed to demonstrate prejudice resulting from a delay in resentencing, the delay is not unreasonable, and this Court has not been divested of jurisdiction to correct the illegal sentence which it pronounced on May 18, 2000, by now imposing a period of PRS as required by statute in a separate resentencing proceeding.
Accordingly, for the foregoing reasons, defendant's motion to preclude resentencing on his conviction of assault in the second degree so as to impose a period of post-release supervision is denied. Defendant, his counsel, and the district attorney are directed to appear before this Court, Part T-23, courtroom 620, at !0:00 a.m. on Monday, March 2, 2009, for scheduling of the resentencing proceeding.
The foregoing constitutes the decision and order of the Court.