The People ex rel. Eduardo Baez, Appellant,v.Superintendent, Queensboro Correctional Facility, et al., Respondents.BriefN.Y.August 23, 20161• • THE .. 199 WATER STREET NEW YORK, NY 10038 TEL: 212-577-3300 FAX: 2 12-509-8481 www.legal-aid.org I• w LEGAL :-:10 AID ~-1 SOCIETY June 14, 2016 The Honorable 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. A 1/orney-in-Chief RE: People ex rel. Eduardo Baez v. Superintendent APL-20 15-00290 This letter is submitted in Reply to the submission by Assistant Solicitor General Bethany A. Davis Noll, on behalf of Respondent, dated May 13, 2016. POINT I The Court should entertain this appeal under the exception to the mootness doctrine. Baez concedes that his discretionary discharge from parole supervision renders the matter moot, as to him. He does not assert that Matter of Biondo, 60 N.Y.2d 832 (1983) is to the contrary. Nevertheless, he submits that the exception to the mootness doctrine applies. The factors to be considered in deciding whether to invoke the exception are 1) "a likelihood of repetition, either between the parties or among other members of the public"; 2) "a phenomenon typically evading review"; and 3) "a showing of significant or important questions not previously passed on, i.e., substantial and novel issues." Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707 at 714-15 (1980). The critical question under the "likelihood of repetition" criterion is whether there are other persons similarly situated to Baez who have either had their indeterminate sentences for drug offenses terminated pursuant to the mandatory sentence termination provisions of the Drug Law Reform Act, at a time when they are continuing to serve a concurrent sentence for a non- drug offense, or who will become eligible in the future for such termination of sentence. This class of individuals includes persons who were sentenced for drug offenses committed prior to the effective date of the 2004 Drug Law Reform Act. Although Baez' counsel is not aware of any such particular cases, Respondent Department of Correctional Services and Community Supervision is uniquely situated to answer this question, based on its own records. Respondent does not assert that Baez' case is unique and that the issue presented herein is unlikely to recur. For purposes of this Court' s review, it should therefore be assumed that the issue may recur between DOCCS and "other members of the public." Notably, while Respondent emphasizes that Baez was convicted of a Federal offense soon after his drug sentence was terminated, the holding below would apply equally to a defendant who has been on law-abiding, unrevoked parole for years after one but not all of his sentences were terminated under the Drug Law Reform Act provision. With respect to whether the case presents "a phenomenon typically evading review," this Court has recognized that "potential ramifications from delays" in the administrative process may support a conclusion that an issue "will typically evade judicial review." Coleman ex rei Coleman v. Daines, 19 N.Y.3d 1087 at 1090 (2012). If a case like Baez' recurs after Baez' challenge is dismissed as moot, Respondent will clearly take the same position it takes here, and the decision below at the Appellate Division will be binding precedent in the trial court if the individual brings a writ or Article 78 proceeding. Most likely, that decision would be considered authoritative until and unless this Court once again granted leave and resolved the matter. In this matter, approximately twenty-two (22) months elapsed between the issuance of Supreme Court' s order in Baez' favor and the Appellate Division' s decision reversing that order. During that time, a stay was in effect pursuant to CPLR § 5519( a) so Baez remained under parole supervision. An additional fifteen ( 15) months have now elapsed. A decision by this Court on the merits, if and when it is made, will occur well over three (3) years after Baez' original habeas comus petition was filed. Such delays are no one's fault; they are normal in the appellate process. A future litigant in Baez' position should not be compelled to endure that lengthy delay awaiting resolution of his argument, delay during which he may either face the prospect of illegal parole violation proceedings or actually be incarcerated pursuant to illegal parole violation proceedings, when this Court is capable of resolving the issue now by making a decision on the merits in Baez' case. During the period of appellate delay, the matter may or may not become moot as it did in Baez' case. If it did, that would be further evidence that the issue "typically evades review." If it did not, the individual would have suffered the kind of prejudicial delay that the Coleman Court cited in deciding to review the merits in that case. As to the final criterion identified by Matter of Hearst Corp., whether the issue presented is "substantial and novel," it is unquestionably "novel" and the Appellate Division deemed it sufficiently substantial to warrant an 8-page opinion. Moreover, this Court's grant of leave to appeal suggests that the Court already found the issue sufficiently "novel or of public importance" to merit substantive review. See Rules of the Court of Appeals§ 500.22(b)(4). 2 POINT II The Court should reverse the decision below. Baez relies on his letter dated February 4, 2016 with regard to the statutory-interpretation issues at the heart of this appeal. Baez submits that none of the authorities cited by Respondent effectively refute his legal argument. Baez wishes, however, to submit that Respondent seriously misrepresents the factual context of likely future appeals in arguing that a decision in favor of Baez would "confer a windfall" on persons similarly situated. Respondent's Letter at 26. In arguing that Baez was sentenced for a conspiracy that was "unrelated" to his drug offense, Respondent implicitly assumes that the sentencing court's decision to impose an 8-and-113-to-25-year sentence for conspiracy was unrelated to its decision to impose an aggregate 12-and-Y2 years-to-Life sentence for drug offenses. Clearly these decisions were not umelated. It is obvious from the plea minutes, Respondent's Exhibit C, that a plea bargain was negotiated that addressed both the drug charges and the conspiracy charge. It is obvious that the conspiracy plea and sentence did not affect either the minimum or the maximum terms that Baez would serve, because both minimum and maximum terms on the concurrent conspiracy sentence were less than the respective minimum and maximum on the drug charges. It is equally obvious that none of the parties anticipated the Drug Law Reform Act, which was enacted more than a decade after these guilty pleas took place. It is entirely speculative to conclude that Baez would have pled guilty to conspiracy and accepted a 25-year prison sentence had this sentence not apparently been meaningless in terms of the amount of prison time that he would actually be required to serve. It is equally speculative to conclude that Baez would have been convicted of conspiracy, or any other charge under the underlying indictment, had he not entered his guilty plea. Realistically, Baez' case presents the same situation addressed by this Court in People v. Monroe, 21 N.Y.3d 875 (2013). Given that most instances in which judges agree to impose concurrent sentences for separate and distinct crimes involve plea bargains, any future cases raising Baez' issue will probably be similar to Baez' case in this respect. Although the Court's decision in Monroe that defendant should be allowed to withdraw his guilty plea was premised at least in part on an explicit statement made by the trial court during the plea process, as a matter of substance there is no difference between Monroe's situation and Baez'. The record made clear that Monroe entered his plea with a specific understanding of how much time he would have to serve. This understanding was upended by the later application of the Drug Law Reform Act. Because of that, Monroe was permitted to withdraw his plea. Baez also entered his plea with such a specific understanding, which was upended by the later application of the Drug Law Reform Act. Any future litigant in Baez' position would almost surely be able to establish this either from the plea record or through a CPL Article 440 motion. 3 Because Baez' own case has become moot, it is not necessary to decide whether he would wish to withdraw his plea or should be allowed to do so. But the practical effect of a ruling in Baez' favor would be to reduce the likelihood of future plea withdrawal applications citing Monroe. The practical effect of a ruling against Baez would be to increase the likelihood of such applications. To the extent the Court values the importance of settling the law and making further litigation unnecessary, a decision in Baez' favor would serve this interest. POINT III Baez takes no position on Respondent's alternate request to schedule the matter for full briefing and oral argument. Baez' counsel would leave this question to the sound discretion of the Court, but would note that Respondent has not identified any facts or law that it would present during full briefing and oral argument that it has not been able to present pursuant to the § 500.11 summary procedure. 4 Very truly yours, f);~.e;;te: fk;tr#/(v Robert C. Newman Staff Attorney, Criminal Defense Special Litigation Unit The Legal Aid Society 199 Water St. New York, NY 10038 212-577-3354 1• ~ THE 199 WATERSTREET NEW YORK, NY 10038 TEL: 212-577-3300 FAX: 2 12-509-8481 www.legal-aid.org I • ,. LEGAL :-:10 AID =-1 SOCIETY June 14, 2016 The Honorable 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-2015-00290 The enclosed letter is submitted in Reply to Respondent's argument, submitted by Assistant Solicitor General Bethany A. Davis Noll on or about May 13, 2016. It is my understanding that in a telephone conference on May 17, 2016, the Court granted Baez permission to submit a Reply, in light of Respondent's new argument that the matter should be dismissed as moot. With Respondent' s consent, the Court gave the undersigned until June 15, 2016 to submit this Reply. Encl. Very truly yours, 1!dwt1; 6 ~A()/ Robert C. Newman Staf Attorney, Criminal Defense Special Litigation Unit The Legal Aid Society 199 Water St. New York, NY 10038 212-577-3354