The People ex rel. Eduardo Baez, Appellant,v.Superintendent, Queensboro Correctional Facility, et al., Respondents.BriefN.Y.Aug 23, 2016'1\) tH.' ;ll"t-!UC,! b~, . BEl'H.\N\ LI. \\ 1,S :-Jl)L L Supreme Cotln. Queens Coumy - Index No. SP 038/~() 13 . -- g,npreme ([omt of tue $>tate of ~e'm !>orh ;clppellate :i!) ilJis'ion - seconb tiSepartmel1t PEOPLE OF THE ST.~TE OF NEW YORI, ex reI. EDUARDO BAEZ, Petitioner-Respondent, -against- Docket No . 2013-07534 SUPERINTENDENT. Queensbol'o Correctional r aci lity: New York S tate Depa rtIrlent of Co rrectional Se rvices and Community Supe rvision, Respondents ·Appellants. REPLY BRIEF FOR APPELLANTS ERIC T . SCHNEIDERMAN AUo/"ll PY GPrLf'rrIJ 0/ thf) Siwl' 0/ New Yor;\~ .-\ttornev for \ppel!ant.s _ \. _ . i.I,\ <'.:, ,'(rl ,' i "j" ,\ )",,~\:1i '".' ! :,'!' "Q,\"\~:hl\\?l\. ~5th "Pl""c1' ,\" .. ,,-. ~'\-'1·1, \.i \'. y",~, l ~ \\_: • t ' '~-l '-..:, TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...... ... .. . ......... ...... .. .... ............ ........... ii PRELIMINARY STATEMENT.. . ....... . ...... ........... .. ...... ............ 1 ARGUMENT BAEZ'S SENTENCE FOR CONSPIRACY TO COMMIT MURDER DOES NOT QUALIFY FOR TERMINATION UNDER THE STATUTE .. .... ... .. ......... .. ...... .. .............................. 2 A. The Drug Law Reform Act Expressly Does Not Apply to Baez's Conspiracy Sentence ............................ 2 B. Penal Law § 70.30(1)(a) Does Not Require Termination of Baez's Murder Conspiracy Sentence ..... .......................... ............ ............................ .. 3 C. Baez's Argument that He May Seek to Withdraw his Plea is Irrelevant to This Appea L ......... ..... ..... .. .... ... 7 CONCLUSION ....... .. ......... ..... ... .... ..... ...... .... ... . .... ..... .. .... ... ... ....... 12 1 TABLE OF AUTHORITIES Cases Page Chateau Rive Corp. v. Enclave Dev. Assoc. , 22 A.D.3d 445 (2d Dep't 2005) ................... ...... .. ................. 11 Matter of State v. Rashid. 16 N.Y.3d 1 (2010) ......... ...... ........................ ....... ...... .... ....... ........ 6 Matter of Walker u. Dennison, 36 A.D.3d 89 (3d Dep't 2006) ... ... ... ....... .............. ... ...... .... .. ..... 4 People ex reI. Ordonez u. Warden of Rikers Island Correctional Facility, 38 A.D.3d 212 (1st Dep't 2007)........ ....................... .. ........... 4 People v. Buss, 11 N.y'3d 553 (2008) ............. .............................. ............. ....... 5, 6 People u. Monroe, 21 N.y'3d 875 (2013) .............. ..... ...... ... ................................. 8, 10 Statutes Penal Law § 70. 30 .... ... ... ............. .. . ...... ...... ............ ... .. ............ 3, 5 .. II PRELIMINARY STATEMENT Baez's unexpired conspiracy sentence should not have been terminated. The Drug Law Reform Act of 2004. Executive Law § 259-j(3-a) (2004),1 does not direct terminat ion of a conspiracy sentence under any circumstances. And Baez has not yet served the maximum term of his conspiracy sentence, which would expire in 2020. The fact that, for the purpose of computing his time, h is co nspiracy se ntence was merged with concurrent drug se ntences imposed for a factually distinct episode does not change that ana lysis. The drug sentences were terminated under the Drug Law Reform Act long before his consplracy sentence would otherwise end. To ter minate his conspiracy sentence now with those drug sentences, would grant him an inappropriate windfall in direct contravention of the Act. 1 The statute has been re-codified as Correction Law § 205(4). ARGUMENT BAEZ'S SENTENCE FOR CONSPIRACY TO COMMIT MURDER DOES NOT QUALIFY FOR TERMINATION UNDER THE STATUTE Saez's sente nce fo r conspiracy is plain ly not cove red by t he Drug Law Reform Act. The a rguments Saez raises in opposition do not and cannot change that basic fact, wh ich is dispositive in this appeal. A. The Drug Law Reform Act Expressly Does Not Apply to Baez's Conspiracy Sentence. S aez argues that we cite no support for the argu me nt t hat the se ntence -termination provision of t he Drug Law Reform Act does not a pply to no n·drug sentences such as Baez's conspiracy sente nce. Baez Br. a t 8. But t his inapplica bility is clear from the face of t he sta tute. The offenses eligible for termination of sente nce under the Act a re nonviolent dru g crimes described in Pena l Law article 220. while Baez's sentence for conspiracy in t he second degree is a violation of Pe nal Law § 105.15, in article 105 of the Pe nal Law. (R. 32.) Thus, t he language of the Act itself demonstrates tha t it expressly does not apply to Saez's co ns piracy sentence. See Appellants Br. at 9-11. 2 B. Penal Law § 70.30(1)(a) Does Not Require Termination of Baez's Murder Consp iracy Sentence. Baez re lies (Br. at 4-8) on the merger ru le for calculating criminal sente nces, set fort h in Penal Law § 70.30(1)(a) , to argue that his conspiracy se nte nce s hould be termina ted with h is concurrent drug sentences. As we have shown, eve n if § 70.30(1)(a) ap plied here, it would not result in term ination of Baez's sen te nce for conspiracy. See Appella nts Br. a t 15. The effect of terminating t he drug se ntences early was to reduce the length of those sentences. Followi ng the reduction of the drug sentences , the consplracy se ntence beca me "t he te rm which ha rd] t he longest unexpired t ime to run ," Penal Law § 70.30(a)(1) , a nd so Baez will not sat isfy his sentence until he discharges the conspiracy sentence. Baez has not meaningfully rebutted t his point. He ar gues that our ap proach reads the words "satisfied by discharge" out of the statute. Baez Br. at 8. Not so . Baez overlooks the fact that the Drug Law Reform Act 's te rmination provision serves as a form of sente nce reduction. When a concurrent sente nce tha t starts out as the longest of several concurrent sentences is red uced to become shorter than another of the concurrent sentences for whatever reason- whether by operation of the Drug Law Reform Act or decision by a court of a ppeal or ot herwise-that reduced se ntence is no longer the term that has "the longest unexpired time to run. " Therefore, following the reduction, the full merged se ntence is "satisfied by d ischarge" of t he term that is now the longest- which, in t his case , is the conspiracy charge. Baez has not pointed to any s ituation \Vhe 1'8 an unexpired se ntence is terminated or deemed satisfied simply beca use it was merged with a sente nce that was originally longer. The cases t hat B ." ....... 1- ~ n \ "K" r 11 ' " n' 36 " n " ] sn aez CILes \ or. a~ 0 ·0), l V1Ul.u:r U/ YYULf~e ,. u . uennl,son, .c\.LJ.0U ':J (3d Dep't 2006), and People ex rei. Ordonez u. Warden of Rikers Island Correctional Facility, 38 A.D.3d 212 (1st Dep't 2007), do not hold that an unexpired and unrelated sente nce should be terminated along with a concurrent drug sentence under the Drug Law Reform Act. In both cases. defendants had already served the fu ll te rm on their nondrug sente nces when the drug sente nces we re terminated. See Appellants Br. at 16. In this case, by contrast, the sentence for the nondrug offense will not reach its maximum until 2020. (R. 29. 35.) Moreover, the merger rule of § 70.30(1)(a) does not properly apply here in any event. The rule did not merge Baez's conspiracy and drug sente nces for all purposes. See Appellants Br. at 13-14. The merger rule is essentially a standard for calculating multiple concurrent sentences; it does not combine sentences into a single sentence for all respects. Contrary to Baez's contentions (Br. at 5, 8), People u. Bu.ss , 11 N.y'3d 553 (2008), does not hold otherwise. In Buss, the Court of Appeals held that two consecutive sentences yielded a single sentence under Penal Law § 70.30 for purposes of calculating an offender's registration requirements under the Sex Offender Registration Act (SORA) upon release. Buss was on parole from an earlier sex offense when he was convicted of an attempted murder for a "brutal sex ual and physical assault." Id. at 556. SORA became effective after the maximum date of Buss's original sex offense sentence but while he was still incarcerated on the attempted murder. Thus, when Buss was finally released on his 5 attem pted murder se ntence, he argued t hat SORA should not ap ply. The court rejected thi s a r gument holding t hat t he goa ls of SORA are "best served by recogn izing t hat a person who is retur ned to prison while on parole for a sex offense contin ues to be s ubject to his sex offense sentence for t he duration of the aggregate sentence." Id. at 558. Thus, the merger r ule applies outside t he sentence - calculation co ntext only if it would serve the purpose of the statute convictions merged and disappeared for all purposes; rathel', it held t hat the pu rposes of SORA were served by req uiring Buss to registe r as a sex offender after he served the end of his co nsecutive sentences. And in Matter of State u. Rashid, the Court of Appeals held that the mer ger rule did not apply u nder a rt icle 10 of t he Me ntal Hygie ne Law because it "would distort" that statutory scheme. 16 N.Y3d 1, 16 (2010) . Here, the Drug Law Reform Act was a imed at ameliorating the effect of t he drug laws on nonviolent offenders. See Appellants Br. at 10. The purposes of the Drug Law Reform Act are not 6 served by expanding it to include a se ntence for a nondrug crime of conspiracy to co mmit murder so the merger rule shou ld not be applied here if it would be understood to have that effect. C. Baez's Argument that He May Seek to Withdraw his Plea is Irrelevant to Thi s Appeal. Baez admits that termination of his conspiracy to murder sen tence could be a windfall. Baez Br. at 9. Instead of cou ntering that argument, Baez engages in conjecture a bout a n unrelated issue relating to whether his guilty plea would be deemed involuntary now tha t h is co ns piracy sentence is longer than his drug sentences. He argues that he may have "agreed to accept a 25-year sentence fo r conspiracy" only because he pled guilty to the ciru g offenses at t. he sa me t.im e ann knew t.hat the sentences would be concurrent. Id. at 10-11. But these conte ntions about vol unta riness of guilty pleas a re irrelevant. The only issue in t his case is how to read the sentence- terminatio n provision in the Drug Law Reform Act, which applies equally to defendants who were convicted afte r a t ria l and defendants who pleaded guil ty. It is plain from t he la nguage of the 7 Drug Law Reform Act that the Legislature did not intend defendants to rece ive the windfa ll of termination of a se nte nce for a nondrug offense under that s tatute. Whether terminating Baez's drug sentence may raise issues regarding his guil ty plea on t he unrelated cons piracy offense is a separate question from whether t he Drug Law Reform Act authorizes the termination of his sentence on the unrelated conspiracy charge. Moreover, Baez's conjecture regarding his gu ilty plea does not hold up. Baez rece ived the maximum sentence for his crime of conspiracy. In pleading guilty to t he consp iracy, Baez faced a murder charge. J ndictment, Count Four, People v. Baez (Sup. Ct. Kings County i ndo No. 1567-92). 8ven if it is appropriate to assu me that, afte r pleading guilty to a lesser-inc luded offense , Baez the n had a choice of whether to "agree to accept a 25-year sentence" (Br. at 10), t he fact that Baez received the maximum se ntence for his crime demonstrates that he likely had very iittie room to negotiate his plea on the conspiracy. Baez ma kes a veiled threat to seek to vacate his plea under People V. Monl'oe. 21 N.Y.3d 875 (2013) , on the theory that Baez 8 would not ha ve pleaded guilty to the consp iracy charge unless he was also pleading to the longer concurre nt drug sentences. Baez Br. at 12-13. He argues that if his plea were vacated, he would rece ive something that is even "closer to a 'windfall. '" Id. at 12. As we have shown, this argument has no application to the statutory ques tion under the Drug Law .Reform Act that is at issue in this case. Indeed , a motio n by Baez to withdraw his plea would expose him to the original indictment, which included a murder charge, as we ll as t he lesser charge of conspiracy to which he ultimately pleaded guilty. Baez and his crimina l attorney will be free to assess whether seeking withdrawal of the plea on the conspiracy charge is in Baez's best interest, but that future strategic choice a nd the outcome of any proceedings that may ensue have no re leva nce to this case. Moreover, the facts of Monroe are dis tinguishable from Baez's situation because t he sentencing judge in l\1onl"Oe "specifically represented" to Monroe t hat his new guilty plea wou ld add only "an additional yea r and a half in effect before pa role" to a sentence he was already serving. 21 N.Y.3d at 877. 9 No such explicit promise was made in Baez's case. See Plea Hr'g Tr. at 7:21-23, (Mar. 2, 1993), People u. Baez (Sup. Ct. Kings County [nd. No. 1893-92). [n add ition, the suggestion that Baez may be able to seek re lie f from hi s plea based on a wholly separate issue does not cha nge the fact that terminating his conspi racy sentence and releasing him from parole simply because his drug sentences were terminated is inappropriate. In fact, in Monroe, the defendant was seeking relief from his guilty plea on a remaining drug-conspiracy sentence, after other concurrent sentences for drug sentences were >y rrJ )terminated, 21 N.Y.3d at 877, confirming that the ordinary '~ i: 1 ., . D L R f' A" d . ' . I operatlO l1 at the ru g aw e arm ct IS to 1'8 uce or terminate only drug- sale sente nces under Penal Law article 220, leaving any concurrent sentences in place. * * * Baez complains (Br. a t 2- 4) that DOCCS's opening brief cited publicly available documents from Baez's underlying criminal cases to exp lai n more fully the sentence that Baez seeks to have te rminated and to illustrate how inappropriate it is to terminate lO that unre la ted sentence merely because his drug. sa le se ntences have been terminated.' See Appe llants Br. at 11. DOCCS's citation to Baez's conspiracy indictment and plea hearing transcript was an appropriate reference to publicly filed court documents of ,/ P.Mr./ I, which the Court may take judicial notice. Chateau Rive Co!!..' v:ly,I!//I.?/1 r I I '1IJs' I J V' I ~i I' ~ /; 1. / ,'" Enclave Dev. Assoc. , 22 A.D.3d 445,446 (2d Dep't 2005) !"And th se " c')'Jj, / 'It ' r' \' I I ) f. documents do not raise a new factual question for this Court. But /j·C,.f(/ ~ see Baez Br. at 3. Nothing about the facts of t he crime a l tel~ - DOCCS's main point: Baez was sentenced for conspiracy under article 105 of the Penal Law, not article 220 of the Penal Law, and his conspiracy sentence therefore is not covered by the Drug Law Reform Act. , Though these documents are official court documents and available to the public for inspection, because Baez's co u nsel claims that the documents were not provided to him (Baez B1'. at 2) , we have mailed copies of the documents to Baez's counsel for his convenience prior to filing this reply brief. Should the Court wish to receive a copy of the documents as well, Appellant wil l supply them to the Cour t. 11 CONCLUSION For the foregoing reasons, the decision below s hould be reve rsed and the petition dismissed. Dated: New York, NY December 26, 201 3 Respectfully s ubmitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New Yor" Attorney for Appe llants ,.--By: ~~" _ . '- - . HA · DAVIS NOLL ----&lic!'hu· .. Gene ---~ __ AS.s i~~ ~ral R ICHARD P. D EAH INC Dcputy Solicitor Gcneral BETHANY A. D AVIS NO LL Assistant Solicitor General of Counsel l20 Broadway New York, ~TY 10271 (212) 416-6184 Reproduced on Recycled Paper 12 CERTIFI CATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 670.10. 3(1) The foregoi ng brief was prepared on a compute r. A proportionally s paced typeface was used , as follows: Name of typeface: Century Schoolbook Point size: 14 Line spacing: Double The total num ber of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum contain ing statutes, rules, regulations, etc. , is 2,050.