The People ex rel. Eduardo Baez, Appellant,v.Superintendent, Queensboro Correctional Facility, et al., Respondents.BriefN.Y.August 23, 20161'0 be ;lrguC'd by : BETHANY D,\VIS NOLL tr) Ulwu te:; l'eq ue:;ted Supreme Court , Queen:; County - Index No. SP 038/201 3 .. .. $ upreme (/[ourt of tbe $tate of ..'flew !>od, ~ppellate i!Bibi5'ion - $econb i!Bepartment PEOP LE Of THE STATE OF NEW YORK ex rei. E DUARDO BAEZ, • Petitioner· Respondent , -against· Docket No, 2013-07534 SUPEIUNTENDENT, Queensboro Correctiona l Facility; New Yor k State Department of COl'l'ectional Services and Comm uni ty Supervision, Respondents-Appellants. BRIEF FOR APPELLANTS RICH,RV D EARrN(1 nt!p llty S,) licilO G~ .. '/(-'.''Gi :3t:l'H,\NY D,,\\lS NOI,! . , .. ', . , ; ' ~. ' ERIC T. SCHNEIDERMAN Attorney General of the State of New Yo,." Attorney for Appellants [20 Broadway, 25th Ploor New Y,' r k, New York ' (\2 ' ! .>! '~) ·f j G-fl T8 t i = TABLE OF CONTENTS Page TABLE OF AUTHORITIES .. .. ................ . " ..... ... .. . " .. " .......... .......... ii PRELIMINARY STATEMENT ................ .. ............................... " .. 1 QUESTION PRESENTED ... ............ .... ... ..... ................... ...... . .. ... .. 3 STATEMENT OF THE CASE .......... ... ..... ............ ... ..... ...... 3 A. Baez's Sente nces for Conspiracy to Comm it Murde,' and for Sale of Drugs, Based on Unre lated Incidents .................................................... ... 3 B. Baez's Parole and Subsequent Arrest and Conviction on Federal Drug Charges ................... ......... 5 C. Supreme Cour t's Decision ...................................... ........ 7 ARGUMENT .. ........... .. ...... .. ..... .... .... .. ... ................................. ......... 9 BAEZ'S SENTENCE FOR CONSPIRACY TO COMMIT MURDER DOES NOT QUALIFY FOR TERM INAT ION UNDER THE STATUTE ............. ... .... .... . 9 A. The Drug Law Reform Act of 2004 Express ly Does Not Apply to Baez's Conviction for Conspiracy to Commit Murder ..................................... . 9 B. Penal Law § 70.30(I )(a) Does Not Require Termination of Baez's Murder Conspi racy Sentence .. ..... ............ .................................................. .. 13 CO NCLUSION ........ .. .... ......... ...... ............ ..... ........ .... .. .. .. ......... ...... 20 TABLE OF AUTHORITIES Cases Page(s) Matter of State of NY. u. Rashid, 16 N.Y.3d 1 (2010) ................................ ..•... . , ..... ........ ... ............. 14 Matter of Walher v. Denniso n, 36 A.D.3d 89 (3d Dep't 2006) ......... ... ... ... .. ..... ........ .... ...... 7, 15, 16 Nlatter of Campbell u. Evans, 105 A.D.3d 1277 (3d Dep't 2013) .................. ...... .... .. .. ..... .. .... .. 18 Matter of Roballo v. Smith. 63 N.Y.2d 485 (1984) ... ........................... .. .. .... .. ...... ......... 14 People ex reI. Ordonez u. Warden Rikers Island Corr. Facility, 10 Misc. 3d 241 (Sup. Ct. Bronx County 2005) ...................... ... 10 People ex reI. Ordonez u. Warden, R ikers Island Corr. Facility, 38 A. D.3d 212 (l st Dep't 2007) ...... ...... ........... .. ........ ............ .... . 11 People v. Acevedo, H N.Y.3d 828 (2010) ............. ................ ...... .. .......... ....... ......... 10 People u. Pndger, 81 A. D.2d 729 (3d Dep't 1981) ........................ ....... ... ... .. .... ..... 18 People u. Norris, 20 N.y'3d 1068 (201 3) .. .... .. ............ . ... ................................ 10 State Statutes C P.L. R. 5519 ........... ...... ... ....... ..... ..................... ······· ............. .................... 8 Executive Law § 259·j ...... .. .. ....... .......... ..................................... ..... passim Pe nal Law § 70.30 ............ ...... .. ......................... ·· .. ··· .. ...... .. ·· .. ...... 13, 15 tl TABLE OF AUTHORITIES (cont'd) Misce llaneou s Authorities Page (s) N.Y. State Asse mbly Sponsor's Mem., reprinted in Bill J acket fo r ch . 738 (2004) ... ... .... ... .. ............. ..... .... ........... .. ... .. 9 III I I , PRELIMINARY STATEMENT To mitigate past ove rly harsh sentences for nonviolent drug se ntences, the Drug Law Reform Act of 2004 included a provision directing corrections officials to terminate an offender's sentence fo r designated drug offenses if the offender served th ree consecutive years on parole without a violation. The question in this appeal is whether termination of t he dru g- related se nte nces of petitioner Eduardo Baez under this provision also results in termination of his sentence for a n entirely unrelated conviction for co nsp iracy to commit murder, mere ly because t he drug sente nces and the nondrug sentence were ordered to run concurrent ly. This Cour t should reverse the ruling of Supreme Co urt, Quee ns County (Lopresto, J.S.C.) tha t the sentence on Baez's conviction for conspiracy to commit murder should be termina ted, along with the te rmin ation of the drug sentences. It is undisputed tha t the Drug Law Reform Act does not direct terminat ion of a sentence for the offense of conspiracy to com mit murder under any circumstances. Nor is it disputed that Baez has not yet served the maximum term of his conspIracy sentence. which IS twenty·five years. Baez t hus remains subject to that sentence. The co ntrary result ordered by S upreme Court wou ld confer a n improper windfall on Baez. There is no question that if Baez had bee n co nvicted only of t he offense of conspiracy to commit mu rder, he would still be serving his sentence on that cha rge today. Under Sup reme Co urt's ruling, however, t he sente nce on t he conspiracy charge is cut short si mply because Eaez was also convicted of drug-related offenses based on enti rely distinct facts, and because those drug sentences we re terminated early pursuant to the Drug Law Reform Act. The Legislature could not have intended its reforms to drug sentencing to have , uch irrational conseque nce~ for criminal sentences having noth.ing to do with drug offenses. 2 1 QUESTION PRESENTED Shou ld petitioner's sentence for the oftense of conspiracy to commit murder, which has not reached its maximum term, be terminated merely because his co ncurrent sentences for unre lated drug offe nses are term inated under the Drug Law Reform Act of 2004? Supreme Court answered in the affirmative. STATEMENT OF THE CASE A. Baez's Sen tences for Cons piracy to Commit Murder and for Sale of Drugs, Based on Unrelated Incidents Baez was sentenced on the same day, Apri l 7, 1993, for criminal convictions aris ing from two se parate indictments and from enti rely distinct fa ctua l episodes. The court entered sepa rate judgments, one corresponding to each indictme nt, a nd ordered the sentences unde r the sepa rate judgments to run concurre ntly. One crim inal judgment reflected Bae z's conviction on one count of conspiracy in the second degree, in violation of Pena l Law § 105. 15. He received a sente nce of 8-1/3 to 25 years in prison on tha t conviction. (R. 32.) The conspIracy conviction involved a 3 murder Baez com mitted in concert with three other individuals in late 1990. Pleas Hr'g Tr. at 15:6·16:14, Mar. 2, 1993, People u. Baez, (Sup. Ct., Kings County , Ind . No. 1893·92) ("Tr."). The other criminal judgment ente red on the same day reflected Baez's conviction on two counts of criminal sale of a controlled substance in the second degree , in vio lation of Penal Law § 220.4 1. He was se ntenced to consecutive te rms of 8 years to life and 4·1/2 yea rs to life , respective ly, on those conv ictions, which resulted in a cumulative sentence of 12·1/2 years to life. (R. 27, 30.) The drug conv ictions involved sa les of large quantities of crack/cocaine to undercover officers during a three· month period M. the end of 1992. (R. 44.) As noted, the sente nce for conspi racy to commi t murder was ordered to run concurrently wit h the sentence on the drug charges. (R. 30. 32.) 4 B. Baez's Parole and Subsequent Arrest and Conviction on Federal Drug Charges Baez was paroled on July 25, 2006. (R. 28, 36.) Effective July 28, 2009, t he Division of Parole terminated Baez's sentence on the two convictio ns of criminal sale of a controlled subs tance pursuant to a provision of the Drug Law Reform Act of 2004 because Baez had served three years on parole without a violation, as the statute requires for termination of sente nces for el igible drug offenses. (R. 28.) See Drug Law Reform Act of 2004, Executive Law § 259-j(3-a) (2004)l The Division of Parole did not term inate Baez's sente nce on the conviction for conspiracy to commit murder (R. 4, 28) because Executive Law § 259-j(3-a) provided no authority to terminate a se ntence fo t' a nondrug offense, let alone for a serious offense of vio lence such as conspiracy to commi t murder. Bacz thus continued unde!" parole supervision on the conspiracy sente nce . (R. 28, 35.) His maxi mum expiration date, which had been life I After the operative date for purposes of this appeal, the statute was repealed and re-codified at Correction Law § 205(4). 5 under the drug sa le co nvictions , was recalcu lated based on the nonterminated cons piracy se nte nce to February 9, 2017, re fl ecting his maximum sentence of 25 yea rs on t hat convictio n. (R. 28, 35.) On September 16, 2009, Baez was a rrested by federal authorities in New J ersey and cha rged in fede ral court with conspiring to possess a nd distribute cocaine. (R. 39.) He se rve d 46 months in federal prison on that sentence and is now serving four years of supervi sed rele ase in the federal system. (R. 1'1 1111 II. 12); Judgme nt in a Cr imi na l Case, United States v. Baez, No. 09 Cr. 696 (D.NJ Apr. 19, 2011), ECF No. 54. Following his re lease from federa l prison, New York began pa ro le revocation proceedi ngs against Baez. On January 16, 2013, petitioner pleaded guiJty to a parole violation. (R. 14 1) 11 ; R. 45-47.) He was give n a delinque nt time assessment of time served plus three months. a nd released from state prison on Apri.l 16, 2013. (R. 49.) Petitioner's delinque ncy t ime resulting fro m service of his federa l prison se ntence meant that hi s maxim u m expiration date on his state sentence for co nsp iracy to commit murder became May 3, 2020. (R. 29,35.) 6 C. Su pl'eme Court's Decision Around March 20 13, while he was st ill in state prison se rvmg the t ime assessment for the 2009 parole violation, Baez filed a petition for a writ of habeas corpus in Supreme Court, Queens Cou nty. (R. 12- 17.) He sought te rmination of his se ntence on the conv iction for conspiracy to commit murder under Executive Law § 259-](3-a). Though consp iracy to com mit murder is not one of t he offenses for wh ich termination is available under § 259-j (3-a) , and though Baez had not co mpleted the twe nty-five- year maximum term of the sentence for co nspiracy to comm it murder, Baez argued that the sentence for conspiracy should a lso he te rminated because it had been merged by s tatute with the concurrent drug sentences. He relied on the Third Department's decision in Matter of Walker v. Dennison, 36 A.D.3d 89 (3d Dep't 2006) , which terminated a sentence for assau lt that had been statutorily merged with a drug sente nce, when the offender had already served more than the maximum term of the assault sentence at the time that the drug sentence was terminated. (R. 15.) 7 By order dated May 6, 20 13, Supreme Court, Queens County (Lopres to, J .S. C. ) conve rted the habeas corpus special proceeding to a n Art icle 78 special proceeding and granted the petition. The cou rt orde red the Department of Corrections and Community Supervis ion (DOCCS) , formerly the Division of Pa role, to "admin istratively te rminate petitioner's conspiracy sentence as of Ju ly 28, 2009" and to "vacate with prej udice the parole viola tion warrant lodged agai nst petitioner" and "the time assessment imposed" for the 2009 pa role viola t ion.' (R. 3-9.) 2 Baez re mains on parole s uperVISlOn purs ua nt to the a utoma tic stay, C.P.L.R. 5519(a) (1 ), and agree ment of the parties. See Pet 'r.-Resp't Resp . to Mot. ~'I 4, 6 (2d Dep't , filed Aug. 13, 2013); Order. Motion No. 2013-07534, 2013 N.Y. Slip . Op. 83G44(U) (2d Dep't Aug. 28, 2013). 8 ARGUME NT BAE Z'S SENTENCE FOR CONSPIRACY TO COMMIT MURDER DOES NOT QUALIFY FOR TERMINATION UNDER THE STATUTE A. The Drug Law Reform Act of 2004 Express ly Does Not Apply to Saez's Conviction for Conspiracy to Commit Murder. The Drug Law Reform Act of 2004 required the Division of Pa role to ter minate the criminal se nte nce of ce rtain parolees who remained on parole for at leas t three years without a parole violation while "serving an ind eterminate sente nce for a class A fe lony offense defined in article two hundred twenty of t he penal law." Executive Law § 259-j(3-a). Article 220 of the Pe nal Law "olely de"cribes controlled s ubstances offe nses. The purposes of the Drug Law Reform Act were to reform laws that provided "inordinately harsh punis hment for low level non-violent drug offenders," direct reso urces towards providing "drug treatment to addicts," and allow the State to put its resources instead towards "ha rsh punishme nt" for "violent crimina ls." N. Y. State Assembly Sponsor's Me m. , reprinted in Bill J acket for ch. 738 (2004), at 6. 9 Co nsequen t ly, the offenses eligible for ter mination of sentence under the Act a re nonviolent drug crimes described til Penal Law article 220. A court applying the Drug Law Reform Act does not have "discretion to fas hion new se nte nces" but mus t ope rat.e within the constraints of t he Act. People v. Norris, 20 N. Y. 3d 1068, 1072 (2013) (no discretion to change a consecutive drug se ntence to a concurrent se nte nce); People v. Acevedo, 14 N.Y.3d 828, 831 (2010) (no di scretion to change consecutive weapon possession convictio n) . Specifically , here, the Act "does not give the court authority to terminate any se nte nce othe r than the se ntence for defendant's dru g conviction." People ex rel. Ordonez v. Warden Rikers Island Corr. Facility, 10 Misc. 3d 241 , 243·44 (S up. Ct. Bronx County 2005), aii'd, 38 A.D.3d 212 (1 st Dep't 2007). Thus, where an offe nder has one se nte nce for a drug offense t hat is e ligible for terminatio n, and a concu rrent se nte nce for a nondrug offe nse that is not eligible for termination, if the drug sente nce is te rminated, the individual "is left wit h a se ntence" on the nondru g offense. 10 People ex reI. Ordonez u. Warden, Rikers Island Carr. Facili ty, 38 A.O.3d 212, 213 (1st Oep't 2007). He re, Baez's drug sentences were properly te rminated by the Divis ion of Pa role pursuant to the Drug Law Reform Act. The se ntence for conspiracy to commit murder should not a lso have bee n termina ted by Supreme Court, however , beca use that offense is plainly not covered by the Act. Baez's sente nce for conspiracy to commit murder in the second degree is a viola tion of Penal Law § 105.15, in Article 105 of the Pe na l Law. (R. 33); Indictmen t, Co un t Four, People u. Baez (Sup. Ct. Kings County Ind . No. 1567· 92) ("I ndictment"), The termination provis ion does not a pply to th is nondru g olIe nse , because it applies only to ce rtain controlled subs tance offenses described in Article 220 of the Penal Law. Executive Law § 259-j(3-a). The inappropria teness of orde ring t he se nte nce for conspiracy terminated is furt he r underscored by the fact t hat the co nspiracy charge was cha rged in a wholly se parate indictment from the one that charged the drug offenses, and t he conspiracy charge involved a murder that occurred two years 11 before the d"ug sa les t hat resulted in the controlled substances charges. Indictme nt, Co unt Four; 1'1'. at 15:11-20. Terminati ng the conspi racy sentence here also grants an imp rope r wi ndfall to Baez merely because he was co nvicte d of both consp iracy to co mmit murder and unrelated d rug offenses. Had Baez committed only the conspiracy offense, he clearly would still be subject to sentence on that offense because he has not yet served the twenty-five ·year maximum term of that sentence. Unde r Supreme Court's ruling, Baez is better off because he not only co nspi red to murder someone, but a lso sold dru gs In unrelated incide nts, than he would be if he had e ngaged only In t he murder conspiracy. This result makes no sense. and the Legislature cou ld not have inte nded it. The termination of the sentence for the conspiracy offense also co nflicts with the purpose of the Drug Law Reform Act. Baez's conviction foJ' co nspiracy to co mmit murder s hows that he is not the nonviolent drug offe nder targeted by the Drug Law Reform Act, but in fact is a violent offender of the sort w hom the reforms acknowledged should rece ive ser io us punishment. It is antithetical 12 to the purpose of the statu te to terminate a se nte nce for conspiracy to co mmit murder t hat is wholly unrelated to the drug offense Baez co mm itted, when Baez has not yet se rved the maximum term of the conspiracy sente nce . B. Penal Law § 70.30(I)(a ) Does Not Require Termination of Baez's Murder Conspiracy Sentence. Baez argues that his se nte nce on the conspiracy charge should be termina ted because that se ntence "merged" with the concurrent se nte nces on the drug offenses under Pena l Law § 70.30(1)(a). (R. 15.) Section 70.30(1)(a) provides that concurre nt sente nces me rge and the "maximu m te rm" of t he merged sentences will be "satisfied by discha rge of t he term which has the longest unexpired time to run." Penal Law § 70.30(1)(a). Baez argues that hi s conspiracy sentence should be deemed "sat is fied by discharg'e" of h is drug sentences beca use the drug se nte nces had the "longest unexpired time to run," at least until they were terminated early. (R. 15.) But sect ion 70.30(1)(a) does not me rge sente nces fo r a ll ~l urposes, and the separate indictments and convictions 13 themselves did not merge 01' disappear. (R. 30, 32; Indictment) The merger rule is esse ntially a standard for calculating concurre nt sentences; its core function is to direct "how the aggregate le ngth of those se ntences should be calculated." Matter of Roballo v. Smith, 63 N.Y.2d 485, 489 (1984). The merge r rule does not combine se nte nces into one in all respects. In lvIatter of State of N. Y. v. Rashid, for example. the Court of Appea ls explained that Pena l Law § 70.30(1)(a) does not operate to merge sente nces for purposes of determining a n offender's eligibility for civil management under Article 10 of the Mental Hygiene Law, holding that t his outcome "would distort th [e] statutory sc heme." 16 N.Y.3d L 16 (2010). Here too, the merger provision does not merge the se ntences for purposes of determining whethe r they should be terminated unde r the Drug Law Reform Act. As we showed above, a pplying the merger provis ion of Penal Law § 70.30(1)(a) to requ ire termination of the se ntence for conspiracy to commit murder in these circumstances would di stort the language and purpose of Executive Law § 259-j(3-a). See supra ll-1 2. 14 Moreove r, eve n if the merger ru le con trolled he re, under the plai n terms of Penal Law § 70.30(1)(a) t he conspiracy se nte nce now has the "longest unexpired time to run" and is the refore not discha rged. Pe nal Law § 70.30(1)(a) provides that whe n concu rrent se nte nces merge, the "maximum term" of the merged se nte nces will be "satisfied by discharge of the term which has t he longest unexpired time to run." Here, the effect of terminat ing the drug se nte nces ea rly was to reduce the length of those se ntences-indeed, the ve ry purpose of the Drug Law Reform Act was to mitigate t he hars hness of drug sentences under prior law. Following the effective reduction of the drug se ntences, the se ntence for conspiracy to commit murder beca me the longest sentence. In other word s, the conspiracy se ntence beca me "the term which hard] the longest unexpired time to run." [d. Thus, even under the merger r ule, DOeeS was correct to recalculate Baez's maximum expiratio n date based on the maximum term of the conspiracy sente nce. Contrary to Baez's argument be low, Matter of Walher v. Dennison docs not counsel otherwise . In Walher, the Third 15 Department ruled that a n assault sentence th a t had bee n merged with a drug-re la ted sentence should be dee med te rminated when the dru g sente nces were term inated because the assault sente nce would a lready have run well before the early termination of the drug se ntences occurred. 36 A. D.3d a t 90; Br. for Res p'ts a t 10, Matter of Walker, 36 A. D.3d 89 (No. 500231). Thus, in the a bse nce of the offe nder's sentence for the controlled substa nce offense to which t he early te rm ination provis ion applied, the offe nder's sente nce for assaul t already would have expired by t he tim e t he drug se ntence was terminated. Matter of Walker, 36 A.D. 3d at 91. The reasoning of Walker does not apply to cases, like this one, whe re the sentence for a nondrug offense has not run a t the t ime t ha t the se ntence fo r the drug offense is te rminated early. In fact, cou nsel for the pa rolees in Walker (the same counse l t hat re prese nts Baez here) express ly re presented to t he court tha t " if, independent of the dru g sente nce, a parolee would s till 'owe time' toward a non-drug sente nce he is also serving, he will co ntinue to owe t hat ti me even after termination of the dru g sentence ." (R. 25.) Baez's case fits exactly this description: his sentence for 16 conspiracy to co mmit murder, a separate crime, has not reached its maximum . Baez would serve his co nspiracy sentence until 2020 if he had never bee n subject to the drug-related se ntence at alL (R. 29. 35.) He continues "to owe that time" following termination of his drug sentences. The Legislature , in enacting the Drug Law Reform Act, was aware of Penal Law § 70.30, a nd nonetheless ex pressly directed the reform terminating these drug sale sentences to apply only to the specific set of offenses in Article 220 of the Pena l La w. Saez attempts to bring within the statute other sente nces for other offe nses that are not described in Article 22O-no matter how severe the offenses are- whenever such sentences a re ordered to run concW'rently with any drug se ntence. Baez thereby seeks an end-run around the express statutory limitation restricting term inatio n to offenses described in Penal Law Article 220. This would be directly cont ralY to the la nguage and purposes of the Drug Law Reform Act. If drug se nte nces in New York had not bee n undu ly harsh under prior law, and thus had not required reduction through drug law reform legislation, Saez would still be serving time on 17 his conspiracy sen te nce now. For examp le, if the maximum term of his drug se ntences had not origina lly bee n life, but had instead expired at seventee n years (ap proximately the effective length of t he dru g se nte nces after their early termination), Baez would now have time rema ining on the twenty-fIve-year maximum on his co nspiracy charge. The same wou ld be true if Baez had originally been se nte nced to a maxi mum of life on the drug offe nses , but a court had later reduced or vacated those sentences. See People v. F".dger, 81 A. D.2d 729, 729 (3d Dep't 1981) (afte r concurre nt se nte nce vacated, the new maximum te rm became the sentence re maining on the un-vacated se nte nce); see also Matter of Camp bell !!. Evans, !Or; A.D.3d 1277, 1277 (3d De p't 201 3) (noting recalculation after dru g se nte nces were terminated begins with first non-terminated sentence). The outcome should be no diffe rent he re, merely because the Legisla ture, not a court, ma de the determina tion that the original sentence on the drug offenses was exceSSIve. 18 By havin g his sentences for his drug co nvictions terminated long before the ir original maximum te rm of life, Baez rece ived the full benefit of the reform of New York's drug se nte ncing laws. Saez goes too fa r by attempting to capitalize on the fact tha t his drug sentences were originally harsh by a lso ob taining reduction of a separate and wholly unrelated sentence for a nand rug offe nse . Given the windfa ll that te rminating the murder co nspiracy sente nce would grant Baez, it could not have bee n t he Legislature's in tent to authorize terminatio n of his se nte nce for a nondrug offense before its maximum expiration date, merely because the concurrent sentences on his drug convictions were term inated. 19 CONCLUSION For the foregoing reasons , the decision below should be reversed and the petition dismissed. Dated: New York, NY November 1, 2013 Respectfully submitted, ERI C T. SCHNEIDERMAN Attorney General of the State of New Yor" 'Attorney for Appellants RICHARD P. D EARING Deputy Solicitor General BETILA.NY A. D AVls NOLL Assistant Solicitor General of Counsel 'DAVIS NOLL sSlstant olicltor General 120 Broadway New York, NY 10271 (212) 416·6184 Reproduced on Recycled Paper 20 CERTIFI CATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 670.10.3(1) The foregoing brief was prepared on a computer. A proportiona lly spaced typeface was used, as follows: Na me of type face: Century Schoolbook Point size : 14 Line spacin g: Double The total number of words in the brief, inclusive of point head ings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of se rvice, certificate of compliance, or a ny authorized addendum containing sta t utes, rules, regulations, etc., is 3, 217. -