The People ex rel. Eduardo Baez, Appellant,v.Superintendent, Queensboro Correctional Facility, et al., Respondents.BriefN.Y.August 23, 2016I ·~· THE 199 WATER STREET NEW YORK. NY 10038 TEL: 212-577-3300 FAX: 212-509-8481 www.legal-aid.org I . ... ~ LEGAL • :wrn AID ::~I SOCIETY February 4, 201 6 John P. Asiello Chief Clerk, Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Dear Mr. Asiello: Blaine (Fin) V. Fogg President Seymour W. James, Jr. Attorney-In-Chief RE: People ex rei Eduardo Baez v. Superintendent APL-20 15-00290 This letter is being submitted in connection with the Court's review of the instant matter pursuant to Sect ion 500. 11 of the Rules. The letter contains Appellant's arguments and comments on the merits of the appeal. Appellant Baez received concurrent indeterminate sentences with maximum terms of Life, for drug offenses, and 25 years, for conspiracy_ The sentences were imposed on the same date. Afte r he had served more than 16 years of the concurrent sentences. the Life sentence was terminated pursuant to Executive Law § 259-j (3-a), now recodified as Correction Law § 205(4), a statute which mandates the termination of an indeterminate sentence on a drug charge "after three years of unrevoked parole." At that time, Baez had accumulated three years of unrevoked parole. The issue before the Court is whether the operation of P.L. § 70.30(1)(a), a provision which states that the maximum tenns of concurrent indetenninate sentences "shall merge in and be satisfied by discharge of the tenn which has the longest unexpired time to run," effect ively terminated the 25-year sentence as well, because that sentence was "satisfied" by "discharge" of the Life sentence. Supreme Court said "yes," and directed that Baez be discharged from parole supervision. The Appellate Division reversed and said "no." The initial point to be made is that "termination" of a sentence and the "di scharge" of a "tenn" mean the same thing. Correction Law § 205(5), which speaks of "merit terminations" of sentence, and "discharges from presumptive re lease, parole, conditional release or post-release supervision" refers to both words as signifying the end or conclusion of a penal sentence. Executive Law § 259-j, subds. (1) and (3), are explicit about this, stating that "a discharge granted under this provision constitutes a tennination of the sentence with respect to which it was granted." Matter of Walker v. DelUlison, 36 A.D.3d 89 (3rd Dept. 2006), on which Appellant relies, assumed that the "termination" and the "discharge" of a sentence are equivalent. Thus both statutory provisions are applicable and must be given effect. This case requires the Court to harmonize the two statutes: the former Executive Law provision, and the Penal Law provision. One issue dividing the parties, with respect to the Penal Law provision, is the question of when, in point of time, correctional authorities are to determine which of the two concurrent sentences has "the longest unexpired time to run." It has long been the practice of the Department of Corrections and Community Supervision, in cases where a pri soner is serving multiple concurrent sentences, to ascertain the sentence which has "the longest unexpired time to run" as of the date the latest of the concurrent sentences is imposed. This practice has been noted and approved in multiple appellate decisions. See People ex rei Weiss v. Reid, 65 A.D.2d 560 (2nd Dept. , 1978); Matter of Noble v. Department of Correctional Services, 36 A.D.3d 1090 (3ld Dept., 2007); Matter of Lynch v. Smith, 123 A.D. 3d 1279 (3rd Dept. , 2014); Matter of Williams v. Arllucci, 131 A.D.3d 1329 (3ld Dept. , 2015). In this case, where the sentences were imposed on the same date, the determination was made when Appellant was first received by DOCCS. At that time the Life sentence clearly had "the longest unexpired time to run," and just as clearly, it still had the longest unexpired time to run at the time it was terminated. Therefore, under the plain language of § 70.30(1), the shorter sentence was "satisfied by discharge" of the longer sentence, as Supreme Court correctly held. The State, and the Appellate Division, argue instead that the detennination is to be made after the termination, when one sentence has already ended and the other would obviously have "the longest unexpired time to run." The State would have DOCCS do a § 70.30( 1) calculation all over again after a drug senlence is terminated. Slale's Memorandum of Law in Opposition 10 Motion/or Leave 10 Appeal, af 10-11; Slale's Reply Brie/below, at 3. The Appellate Division stated that none of the terms had expired or been discharged "at the lime that [8aez] became eligible for relief' under the Executive Law provision, Slip Op. at 7, and that the 25-year sentence "had the longest unexpired term to run" after the Life sentence was terminated , i.e., when the 25-year sentence had become the only sentence. That statutory interpretation lacks any precedential support and is contrary to the key words of the statute. "In the construction of a statute, mean ing and effect should be given to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning." McKirmey's Statutes, § 231 . The State 's position in this matter would render superfluous the stalutory language dictating that the terms of other sentences shall "be satisfied by di scharge" of the term that has the longest unexpired time to run. P.L. § 70.30(1) is primarily a sentence-calculation provision, to be sure, but ifit were solely thai and no more, as the State contends, it would be enough to say thai shorter tenns merge into longer terms. The additional phrase that shorter terms shall "be satisfied by discharge" of the longer tenn has a distinct meaning, one that is applicable to Mr. Saez' case. The Third Department correct ly held in Matter of Walker v. Dennison, supra, that the final phrase of the statute, "satisfied by discharge ... ," is the relevant language and that this language "is clear and unambiguous." 36 A.D.3d at 91. The State would limit the holding of Walker to its facts, in which the non-drug sentences, if considered in isolation, had been completed at the time the prisoners became cligible for tennination of their drug sentences, as opposed to the instant case, where the non-drug sentence, if considered in isolation, had not been completed. This reading may be appealing on policy grounds, but it lacks support either in the language of the Walker decision or, more important, in the language of the statutes. Referring to a different legal context, the State emphasizes the point that judicial reversal or vacatur of one of multiple concurrent sentences leaves the remaining sentences intact. Slate's Brie/below al 18, citing People v. Fudger, 81 A.D.2d 729 (3ld Dept., 1981). This is true, but irrelevant. Termination of a sentence under fanner Executive La\.-v § 259-j (3 -a) means that sentence has been "discharged," i.e., completed, and that means under P.L. § 70.30(1)(a) that the concurrent shorter sentence is "satisfied." Judicial reversal, vacatur or modification of a sentence is not the "discharge" of a sentence. Where a court vacates a sentence and dismisses the underlying count, P.L. § 70.30(l)(a) does not come into play at all. When a court reduces a sentence and returns the prisoner to DOCCS custody, then DOCCS does a new calculation under § 70.30( 1)(a) to determine what sentence now has "the longest unexpired time to run." Neither situation involves the "discharge" of a sentence. Both are conceptually distinct from the instant case. In essence the State's argument and the Appellate Division's holding are based on policy concerns. They contend that Baez l and persons similarly situated are seeking "windfalls" and are seeking to gain an advantage, as a result of having been sentenced for bOlh drug and non-drug offenses, that they would nO[ have been able to gain had they been sentenced for the non-drug offenses alone. This concern is exaggerated. El igibility for mandatory sentence tennination does require three years of "unrevoked" parole supervision, and both Correction Law § 205 and Execut ive Law § 259-j allow discret ionary termination of sentence, and discharge from In its Brief to the Appellate Division, the State introduced factual material that was not pan of the record below, particularly, details concerning the underlying facts of the conspiracy charge against Baez. Baez' counsel argued that these references were inflammatory and should not be considered by the Appellate Division because they were outside the record below. Respondent's Brief (Point I, at 2-4). Baez further argued that he may in fact be entitled to withdraw his guilty plea pursuant to People v. Monroe,2l N.Y.3d 875 (2013), if the State prevails in this matter. Respondent's Brief (Point Ill, at 9-13.) The Appellate Division explic it ly took note of the non-record material, thus rej ecting the argument in Point I ofBaez' brief, and did not address Baez' discussion of the potential application of Monroe. Baez reaffirms the argument made in Point I of his appellate brief, and also contends that the State 's fact- based arguments not presented in Supreme Coun may not be considered here because, in general, fact-based arguments not raised in the coun of first instance may not be raised for the first time on appeal. See People v. Samms, 95 N.Y.2d 52 (2000), at 55-56. If this Coun believes that the underlying facts of Baez' conspiracy conviction are relevant and should be considered, thus transforming the case from an issue of statutory interpretation to an issue of whether Baez is personally deserving or undeserving of relief, the undersigned submits that Rule 500. I I review wou ld then be inappropriate. If these factual issues are to be considered, the undersigned would wish to further explore the circumstances of Baez' guilty pleas and to address that question in oral argument. supervision, after three years of unrevoked supervision, for persons convicted of conspiracy and other non-violent felonies, whether they were convicted of drug charges or not. The chief answer to the State's concern, however, lies in the words of this Court in Matter of Kalamis v. Smith, 42 N.Y.2d 191 , at 203 (1977): "Problems of this nature are to be found in any complex statutory scheme. Perhaps they are inhcrent in the nature of the intractable sentencing process itself. But whatever the reason, the remedy, if there is or should be one, lies with the Legislature." The Legislature, which almost surely did not consciously consider how Executive Law § 259-j (3 -a) and Penal Law § 70.30(1)(a) would interact, is free to revisit the issue. In the meantime, the statutory language requires that the order of the Appellate Division be reversed, and the order of Supreme Court reinstated. Very truly yours, ~ I '-----I-} ,: ~ :}('/j.// // . ./ 'Y>J/ hi (1/ , ' .. ~........ I .' - I . ' f Robert C. Newman Staff Attorney, Special Litigation Unit The Legal Aid Society 199 Water St. New York, N.Y. 10038