The People ex rel. Eduardo Baez, Appellant,v.Superintendent, Queensboro Correctional Facility, et al., Respondents.BriefN.Y.August 23, 2016120 BROADWAY, NEW YORK N.Y. 10271-0332 • PHONE (212) 416-8020 • FAX (212) 416-8962 *NOT FOR SERVICE OF PAPERS http://www.ag.ny.gov STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ERIC T. SCHNEIDERMAN ATTORNEY GENERAL BARBARA D. UNDERWOOD SOLICITOR GENERAL May 13, 2016 The Honorable John P. Asiello Clerk of the Court New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: People ex rel. Eduardo Baez v. Superintendent, APL-2015-00290 Dear Mr. Asiello, This letter is submitted to urge the Court either to dismiss this appeal as moot, or to schedule it for full briefing and oral argument in the normal course.1 1 The Court informed the parties by letter of December 15, 2015, that it was considering whether to examine the merits of this appeal by the alternative summary procedure of § 500.11 of this Court’s Rules of Practice. Appellant Eduardo Baez responded by letter dated February 5, 2016. Page 2 The issue in this appeal is whether, when a person is sentenced to concurrent terms for drug offenses and a non-drug conspiracy, the early termination of the sentences on the drug offenses has the effect of also terminating the sentence for conspiracy, through the interaction of Penal Law § 70.30 and the sentence-reduction provisions of the Drug Law Reform Act. In this appeal, Baez seeks to terminate his conspiracy sentence. He has now obtained that relief under a separate process not at issue here: in April 2016, the Board of Parole granted Baez a discretionary discharge from his conspiracy sentence. See Parole Board Discharge Decision Sheet, attached as Ex. A. Because this discretionary discharge provides Baez the same relief that he seeks in this case, his appeal should be dismissed as moot. That point is simple and straightforward, and can easily be addressed by this Court through the § 500.11 procedure. But if this Court is not inclined to dismiss the appeal as moot without further briefing and argument, and will therefore consider the merits of appellant’s claim, the Court should schedule the appeal for full briefing and argument. Baez asks this Court to interpret the relevant sentencing statutes in a manner that could result in early termination Page 3 of many sentences for non-drug crimes, merely because Baez was sentenced for a non-drug crime at the same time as he was sentenced to the life sentences required by the Rockefeller Drug Laws. Before considering that claim, the Court should have the benefit of a full presentation of the history and purpose of the relevant statutes, Moreover, Baez contends that there is a conflict on this point between the Second Department’s decision in this case and the Third Department’s decision in Matter of Walker v. Dennison, 36 A.D.3d 89 (3rd Dep’t 2006). Although we demonstrate below that the conflict is illusory, this Court’s examination of that claim would benefit from full briefing and argument in the normal course. 22 N.Y.C.R.R. § 500.11(b)(2). In the event that the Court proceeds under § 500.11, respondents submit the following arguments in support of the decision below. Page 4 STATEMENT OF THE CASE Statutory Background A. 1. The Drug Law Reform Act The Drug Law Reform Act, codified at Executive Law § 259-j(3-a),2 was enacted in 2004 for the purpose of mitigating harsh sentences for nonviolent drug crimes imposed under the Rockefeller Drug Laws. The Act directed the Division of Parole (now the Department of Corrections and Community Supervision (DOCCS)) to terminate indeterminate sentences for class A felonies under Article 220 of the Penal Law, i.e., certain nonviolent drug felonies, “after three years of unrevoked presumptive release or parole.” Executive Law § 259-j(3-a) (2004).3 The statute unambiguously directs early termination only of drug crimes that have no element of violence. See Executive Law § 259-j(3-a); Ch. 738, 2004 N.Y. Laws 3907, 3925-26. Cf. Penal Law § 70.02 (defining violent felony offenses). The limited scope of this termination provision 2 After the operative date for purposes of this appeal, Executive Law § 259-j(3-a) was repealed and re-enacted at Correction Law § 205(4). When the statute was re-enacted, it was changed to direct DOCCS to terminate the sentences rather than the Division of Parole. 3 For other, lesser-degree felonies under Article 220 and felonies under Article 221, generally related to possession or sale or narcotics, DOCCS must terminate the sentences after two years of unrevoked parole. Executive Law § 259-j(3-a) (2004). Page 5 reflects the narrow but important purpose of the Drug Law Reform Act, which was to mitigate the consequences of laws that provided “inordinately harsh punishment” for “non-violent drug offenders,” and to allow the State to reserve “harsh punishment” for “violent criminals.” Assembly Sponsor’s Mem., reprinted in Bill Jacket for ch. 738 (2004), at 6. 2. Penal Law Under the Penal Law, when an offender is convicted of multiple crimes and sentenced for them at the same time, Penal Law § 70.25 governs the determination of whether the sentences are to be concurrent or consecutive. See Penal Law § 70.25. Penal Law § 70.30 then governs DOCCS’s subsequent “calculation of terms of imprisonment” and describes how the multiple concurrent or consecutive sentences interact for purposes of calculating an offender’s overall prison and supervision terms. For multiple concurrent sentences, § 70.30 explains that the sentences “merge”—meaning that an offender serves the several sentences simultaneously. Penal Law § 70.30(1)(a). The statute further provides that the “maximum term” of each individual sentence will be deemed “satisfied by discharge of the term which has the longest Page 6 unexpired time to run.” Id. Thus, for example, if an offender receives two concurrent sentences that are respectively ten years and fifteen years, both sentences will not be deemed “satisfied” until the offender serves fifteen years. Id. Factual Background B. 1. Baez’s sentences for the unrelated crimes of conspiracy to commit murder in 1990, and sale of narcotics in 1992 In 1993, petitioner Baez was sentenced in a single proceeding on guilty pleas that arose out of two separate and distinct criminal transactions and indictments. He pled guilty to conspiracy in the second degree, a violation of Penal Law § 105.15, for conspiring with three other individuals in 1990 to commit murder. See Indictment at Count Four, People v. Baez, Indictment No. 1567/92 (Sup. Ct. Kings County) (“Indictment”), attached as Ex. B; Pleas Hr’g Tr. (“Tr.”) at 3:10-17, People v. Baez, Indictment No. 1893-92 (Sup. Ct. Kings County Mar. 2, 1993), attached as Ex. C.4 For this crime he was sentenced to a term of 4 Baez argues that this Court may not consider the conspiracy indictment and plea hearing transcript because they were not part of the record in Supreme Court. Ltr. at 3 n.1. But these documents are publicly filed court documents of which the Court may take judicial Page 7 imprisonment of eight and one-third to twenty-five years. Tr. at 15:6- 16:14. And he pled guilty to two counts of criminal sale of a controlled substance in the second degree, in violation of Penal Law § 220.41, for two 1992 sales of cocaine. Tr. at 12:11-14:13. For these drug crimes, he was sentenced to a cumulative sentence of twelve and a half years to life. (Appellate Division Record (“R.”) 27, 30, 32.) The court entered separate commitment orders, one stating the sentence for the conspiracy conviction and one stating the sentence for the drug-sale convictions. (R. 30-32.) The court ordered the sentence for conspiracy to run concurrently with the sentences for the drug crimes. (R. 30, 32.) 2. 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, the Division of Parole terminated Baez’s sentence on the two convictions of criminal sale of a controlled substance pursuant to the Drug Law Reform Act’s early-termination provision because Baez had notice. Kane v. Walsh, 295 N.Y. 198, 204 (1946). While these documents make clear that the murder conspiracy was not a drug crime under Article 220 of the Penal Law, that fact is already apparent from other documents in the record. Page 8 served three years on parole without a violation. (R. 28.) Baez continued under parole supervision on the conspiracy sentence. (R. 28, 35.) Shortly after his drug crime sentences were terminated, in 2009, Baez was arrested and convicted on federal charges of conspiring to possess and distribute cocaine. (R. 14, 39.) He served forty-six months on that sentence and is now serving four years of federal post-release supervision. (R. 14); Judgment in a Criminal Case, United States v. Baez, No. 09 Cr. 696 (D.N.J. Apr. 19, 2011). Because Baez’s federal crime constituted a parole violation under state law, DOCCS revoked Baez’s parole in January 2013 and reincarcerated him. (R. 14, 45-47.) As a result of his parole revocation, Baez was given a delinquent time assessment of time served plus three months. (R. 49.) Baez’s delinquency time resulting from service of his federal prison sentence meant that the maximum expiration date on his state sentence for conspiracy changed from February 2017 to May 2020. (R. 29, 35.) Page 9 The Proceedings Below C. In 2013, while incarcerated in state prison due to the revocation of his parole, Baez filed a petition for a state writ of habeas corpus in Supreme Court, Queens County. (R. 12-17.) In his petition, Baez argued that his conspiracy sentence should have been terminated under the Drug Law Reform Act at the same time as his drug sentences—even though the Act did not identify a conspiracy sentence as one that would be eligible for termination—on the ground that the conspiracy sentence had “merged” with his termination-eligible drug sentences under Penal Law § 70.30(1)(a). Before Supreme Court acted on Baez’s petition, Baez was again released on parole in April 2013. In May 2013, Supreme Court (Lopresto, J.) converted the habeas corpus proceeding to an article 78 proceeding and granted the petition. The court agreed with Baez that his conspiracy sentence should have been discharged by the termination of his drug sentences in 2009, and accordingly ordered DOCCS to “administratively terminate petitioner’s conspiracy sentence as of July 28, 2009,” and to “vacate with prejudice the parole violation warrant lodged against petitioner” and “the time assessment imposed” for the 2009 parole violation. (R. 8-9.) Page 10 In May 2015, the Appellate Division, Second Department, reversed Supreme Court’s order. The Appellate Division held that the Drug Law Reform Act “cannot be reasonably construed to terminate” Baez’s non-drug-related conspiracy sentence because the Act’s early- termination provision expressly applies only to specific nonviolent drug- related felony offenses set forth in Articles 220 and 221 of the Penal Law. People ex rel. Baez v. Superintendent, Queensboro Corr. Facility, 127 A.D.3d 110, 117-18 (2d Dep’t 2015). The Appellate Division also rejected Baez’s argument that the merger provisions of Penal Law § 70.30(1) required the premature termination of his conspiracy sentence. As the Appellate Division explained, § 70.30(1) is a calculation provision that does not affect the length of any underlying sentence (as reflected in the relevant commitment order), but rather addresses only the separate question of how multiple concurrent sentences affect the maximum expiration date of an offender’s sentence. In the present case, the Appellate Division held that DOCCS had properly applied § 70.30(1) because Baez’s twenty-five-year maximum term for the conspiracy was the sentence with the “longest unexpired time to run” after DOCCS had shortened the drug sentences under the Drug Law Reform Act. Id. at 118. Page 11 This Court granted Baez’s motion for leave to appeal. By letter dated December 15, 2015, the Court informed the parties that it was considering whether to hear the case pursuant to the alternative procedure set forth in 22 N.Y.C.R.R. § 500.11. The Board of Parole’s Decision to D. Grant a Discharge of Baez’s Sentence Under Executive Law § 259-j On April 22, 2016, the Board of Parole exercised its discretion to grant Baez an absolute discharge from his conspiracy sentence under a separate provision of the Executive Law not at issue in this case. Ex. A. That provision, Executive Law § 259-j(1), gives the Board of Parole the discretion to grant an “absolute discharge” of a sentence such as Baez’s conspiracy sentence after three years of unrevoked parole, if the Board determines that such discharge “is in the best interests of society.” Executive Law § 259-j(1).5 The Board of Parole’s decision to grant Baez a discretionary discharge under Executive Law § 259-j(1) was unrelated to Baez’s claims in this case. 5 A similar provision of the Correction Law allows DOCCS to grant a “merit termination” of a sentence to qualifying offenders if DOCCS determines that “merit termination is in the best interests of society.” See Correction Law § 205(2). That provision is not at issue here. Page 12 ARGUMENT POINT I THIS APPEAL SHOULD BE SUMMARILY DISMISSED AS MOOT In this appeal, Baez principally seeks the termination of his conspiracy sentence under Penal Law § 70.30 and the Drug Law Reform Act. But Baez has now received that relief under a different process— specifically, through the discretionary discharge of his conspiracy sentence under Executive Law § 259-j(1), which “shall constitute a termination of the sentence with respect to which it was granted.” As a result of the discharge, Baez has now been released from parole and is no longer under state supervision. His request to terminate his sentence is accordingly moot. See Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980). That conclusion is straightforward, and may be reached without full briefing and argument. Baez also argues that the termination of his conspiracy sentence would require the expungement of his 2013 parole revocation. (See R. 8- 9, 16.) Although the parole revocation would remain on Baez’s record if this Court dismisses this appeal, there no longer remains a live controversy concerning that 2013 revocation because, with Baez’s Page 13 release from state supervision, his earlier parole revocation causes him no concrete, non-speculative injury that this appeal can redress. The 2013 revocation originally had the effect of extending the maximum expiration date of Baez’s conspiracy sentence from February 2017 to May 2020. (R. 29, 35.) Now that the conspiracy sentence has been terminated, Baez’s parole revocation no longer has that—or any other—effect. Cf. Lindsay v. N.Y. State Bd. of Parole, 48 N.Y.2d 883, 884 (1979) (memorandum) (holding that a challenge to a parole violation was not moot as long as it could affect the ultimate expiration date of an ongoing sentence). The potential for future collateral consequences from the parole revocation is too remote to avoid mootness here. The revocation imposes no disabilities on Baez while he remains outside of state custody. The only conceivable consequence is that, in a future parole proceeding, the Board of Parole may consider the 2013 revocation as one of many factors weighing on the decision to grant parole. But that consequence will materialize only if Baez again violates state law, is returned to prison, and then becomes eligible for discretionary parole. This sequence of events is too speculative and uncertain to create a justiciable controversy. See Spencer v. Kemna, 523 U.S. 1, 12-13 (1998) Page 14 (holding that a federal habeas challenge to a parole revocation is moot after a sentence has expired). Moreover, even if Baez were to return to state prison and again be eligible for parole, it is far from clear that the 2013 revocation would materially affect any parole determination. The revocation would be “simply one factor” among many that the Board of Parole could consider in making such a determination. Id. And the fact of the revocation itself would likely have limited importance compared to the federal drug conviction that led to the revocation—and that will remain on Baez’s record regardless of the outcome of this appeal. See, e.g., Wilson v. Terhune, 319 F.3d 477, 482 (9th Cir. 2003) (recognizing that facts of underlying crime were more likely to influence a future parole determination than parole revocation itself). This Court’s decision in Matter of Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832 (1983), is not to the contrary. In Matter of Biondo, the Board of Parole’s appeal unit refused to consider the petitioner’s administrative appeal from a parole revocation after his sentence had expired. The petitioner then filed an article 78 lawsuit to challenge this determination. This Court held that the expiration of the petitioner’s sentence—which predated both the lawsuit and the decision under Page 15 review—did not render his challenge moot because it did not alter the relevant circumstances “since the commencement of [this] proceeding.” Id. at 834; see also Matter of Hearst Corp., 50 N.Y.2d at 714 (recognizing that mootness applies when there is a “change in circumstances” during the course of litigation). By contrast, this Court distinguished Matter of Biondo from a previous case where petitioner’s claims were moot because “the sentence expired after the article 78 proceeding had been commenced.” Id. at 834 (emphasis added). In addition, although this Court found in Matter of Biondo that the petitioner there could experience “lasting consequences” from his revocation, id., there is no indication that Baez would suffer such consequences here, as discussed above. Nor does this appeal fall within an exception to the mootness doctrine for issues that “inherently and typically” evade appellate review. See Matter of Boggs v. N.Y.C. Health & Hosps. Corp., 70 N.Y.2d 972, 974 (1988) (challenge to involuntary commitment was not kind of challenge that inherently evades appellate review); see also Matter of Hearst Corp., 50 N.Y.2d at 714-15. This appeal involves no inherently short-lived dispute that would preclude judicial review; to the contrary, Baez himself still had many years left on his sentence when this Court Page 16 granted leave to appeal. Cf. Coleman ex rel. Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012) (finding exception because of “relatively brief” period of respondents’ alleged violations). Baez’s claim only became moot because his conspiracy sentence was discharged through a process that is subject to the Board of Parole’s discretion and is not guaranteed to any offender. Because such a discretionary discharge is far from routine, there is no reason to believe that a future challenge similar to Baez’s would be rendered moot in the same way. Page 17 POINT II DOCCS WAS NOT REQUIRED TO TERMINATE BAEZ’S CONCURRENT CONSPIRACY SENTENCE WHEN IT TERMINATED HIS DRUG SENTENCES UNDER THE DRUG LAW REFORM ACT In the alternative, if this Court declines to dismiss Baez’s appeal as moot, it should calendar the case for full briefing and argument, and then affirm the decision below. The Appellate Division correctly held that Baez was not entitled to the premature termination of his conspiracy sentence as of the date that his drug sentences were terminated. Absent specific statutory authorization, DOCCS is prohibited from altering the length (or other material terms) of any lawful sentence. C.P.L. § 430.10. Baez does not dispute that the Drug Law Reform Act provides no such authority here, since its early- termination provision is limited to specific nonviolent drug offenses, and does not extend to conspiracy sentences. And contrary to Baez’s argument, Penal Law § 70.30(1)(a) also does not provide the required authorization because it governs only DOCCS’s calculation of the effect of multiple sentences, without providing any authority to modify the lengths of the sentences themselves. The Appellate Division’s ruling thus correctly follows the plain text and purpose of these statutory Page 18 provisions, and properly avoids granting Baez an inappropriate windfall in the form of a sentence reduction that the Legislature never intended. Penal Law § 70.30(1)(a) Does Not A. Authorize Any Reduction in the Length of Baez’s Conspiracy Sentence. Penal Law § 70.30(1)(a) states that, when an offender is serving multiple concurrent sentences, the “maximum term[s]” of any indeterminate sentences will be deemed “satisfied by discharge of the term which has the longest unexpired time to run.” Baez argues that this language required DOCCS to disregard the remaining years of his twenty-five-year conspiracy sentence when DOCCS terminated his drug sentences under the Drug Law Reform Act in 2009, since the drug sentences “had the longest unexpired time to run at the time” that they were terminated. Ltr. at 1-2. The Appellate Division correctly rejected this interpretation of Penal Law § 70.30(1)(a). The sole function of Penal Law § 70.30— including the specific language in § 70.30(1)(a) that is at issue here—is to guide DOCCS’s “[c]alculation of terms of imprisonment” when there are multiple concurrent or consecutive sentences. See People v. Buss, 11 N.Y.3d 553, 557 (2008). Penal Law § 70.30 does not on its own authorize Page 19 the reduction or termination of any of the underlying sentences themselves. Instead, to apply Penal Law § 70.30, DOCCS must first determine the substantive terms of an offender’s underlying sentences, based on commitment orders, any applicable judgments (such as a judgment vacating or modifying a previously imposed sentence), or, as here, any statute directly affecting the length or nature of a sentence. Only after DOCCS has identified the relevant universe of applicable sentences does it become appropriate to refer to Penal Law § 70.30 to calculate the offender’s overall prison term in light of all of these sentences. Here, DOCCS applied § 70.30(1)(a) correctly. The application of the Drug Law Reform Act’s early-termination provision to Baez’s drug sentences left him with the following concurrent sentences: (1) a now- complete seventeen-year term of imprisonment for his drug offenses (reduced by the Drug Law Reform Act from the original maximum term of life); and (2) a longer unexpired twenty-five-year term for his conspiracy sentence. Because the conspiracy sentence contains “the term which has the longest unexpired time to run,” the calculation rule of Penal Law § 70.30(1)(a) provides that Baez’s multiple concurrent Page 20 sentences will not be deemed satisfied until the expiration of the twenty-five-year conspiracy sentence. Baez’s contrary position misreads the language in Penal Law § 70.30(1)(a) providing that concurrent sentences shall be deemed “satisfied by discharge of the term which has the longest unexpired time to run.” That language simply authorizes the administrative practice of deeming multiple concurrent sentences to be in effect (and undischarged) until the time for all of the sentences has run. Put another way, this language provides that DOCCS will not consider multiple concurrent sentences to be satisfied so long as there remains “unexpired time” on any of the sentences.6 Here, prior to the recent discretionary discharge, there was indisputably “unexpired time” on one 6 Baez is thus wrong to assert that the State’s interpretation of Penal Law § 70.30(1)(a) would render the “satisfied by discharge” language superfluous of the provision’s “merger” language. The purpose of the “merger” language is to explain that an offender serves two or more concurrent sentences at the same time—effectively as part of a single “merged” sentence. See People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 269-270 (1957). By contrast, the “discharge” phrase has the distinct purpose of making clear that any time credits or credit forfeitures should be applied to the whole merged sentence for as long as the prisoner is confined and the combined concurrent sentences will not be deemed satisfied so long as unexpired time remains on any of the sentences. See e.g., In re Cowen, 166 P.2d 279, 282 (Cal. 1946); Matter of Noble v. DOCCS, 36 A.D.3d 1090 (3d Dep’t 2007). Page 21 of Baez’s indeterminate sentences—namely, the remainder of his twenty-five-year sentence for conspiracy. Under Penal Law § 70.30(1)(a), Baez’s concurrent sentences would not be deemed satisfied until this twenty-five-year conspiracy sentence had been discharged. Baez objects that this interpretation improperly required the “§ 70.30(1) calculation” to be made “after a drug sentence is terminated.” Ltr. at 2. But in fact many circumstances require DOCCS to make the Penal Law § 70.30 calculation after one of the concurrent sentences has been terminated. Many intervening changes can alter the length or even existence of a sentence during the time that the sentence is being served—for example, a court’s correction of a commitment order, see, e.g., Matter of Gonzalez v. Annucci, 136 A.D.3d 909, 911 (2d Dep’t 2016); or the modification or vacatur of a sentence on direct appeal or collateral review. DOCCS is under an ongoing duty to incorporate these intervening changes into its calculation of an offender’s overall prison term. Matter of Murray v. Goord, 1 N.Y.3d 29, 32 (2003); see also Matter of Flournoy v. Supreme Ct. Clerk, 122 A.D.3d 734, 736 (2d Dep’t 2014). And that duty requires DOCCS to reapply the calculation in Penal Law § 70.30(1)(a) if an intervening change alters the amount of time remaining on an offender’s concurrent sentences. Page 22 The statute’s use of the present tense—requiring DOCCS to identify the term that “has the longest unexpired time to run,” Penal Law § 70.30(1)(a)—confirms that the Legislature contemplated a renewed application of the provision whenever any substantive changes occur to the sentence. Indeed, Baez concedes that Penal Law § 70.30(1)(a) works in exactly this way if a sentence is modified by court order. As Baez acknowledges, when a court reduces or vacates a sentence (for instance, on direct appeal), any unexpired concurrent sentences would not thereby be reduced or vacated under Penal Law § 70.30(1)(a) even if the sentence thus modified originally had the longest unexpired time to run. Ltr. at 3 (conceding that “judicial reversal or vacatur of one of multiple concurrent sentences leaves the remaining sentences intact”). See also People ex rel. Maurer, 2 N.Y.2d at 269 (allowing concurrent sentencing for lesser-included offenses ensures that the offender will “not go unpunished if there is an error in his conviction for the highest degree of offense resulting in an acquittal”); People v. Monroe, 21 N.Y.3d 875, 877-78 (2013) (after a drug sentence was terminated, concurrent conspiracy sentence remained, but had to be vacated because of sentencing court’s misleading representations). The same result is true Page 23 for termination under the Drug Law Reform Act. When one sentence is terminated, the offender “is left with” the remaining sentence. See People ex rel. Ordonez v. Warden, Rikers Island Corr. Facility, 38 A.D.3d 212, 213 (1st Dep’t 2007). Baez attempts to distinguish “judicial reversal, vacatur, or modification of a sentence” from “termination” under the Drug Law Reform Act by asserting that judicial orders do not “discharge” a sentence. Ltr. at 3. But Baez cites no authority for the proposition that the Legislature’s action in the Drug Law Reform Act “discharges” an unexpired sentence, while judicial orders do not. In either case, the effect is the same: a sentence is terminated or reduced, with potential consequences for DOCCS’s calculation of the offender’s overall prison term under Penal Law § 70.30. Contrary to Baez’s contention (Ltr. at 2), the Third Department’s ruling in Matter of Walker v. Dennison, 36 A.D.3d 89 (3d Dep’t 2006), does not conflict with the decision below. In Walker, the offender’s concurrent sentences included both a drug sentence and a shorter assault sentence. Id. at 90. By the time the offender’s drug sentence was terminated under the Drug Law Reform Act, the offender had already served more than the maximum prison term authorized by the assault Page 24 sentence. Id. (See R. 15.) Thus, once the drug sentence was terminated, Walker had (1) a terminated drug sentence, and (2) an expired assault sentence. Because neither sentence had any “unexpired time to run,” the Third Department correctly held that Walker’s concurrent sentences had collectively been “satisfied” under Penal Law § 70.30(1)(a). See 36 A.D.3d at 91. Here, by contrast, Baez has yet to satisfy the maximum term for his conspiracy sentence. Nothing in Penal Law § 70.30(1)(a) permits him to evade that pending sentence simply because his drug sentences were terminated.7 7 Counsel for the parolee in Matter of Walker (the same counsel that represents Baez here) recognized and approved of this distinction in that proceeding: as counsel told the Third Department, “[i]f, independent of the drug sentence, a parolee would still ‘owe time’ toward a non-drug sentence he is also serving, he will continue to owe that time even after termination of the drug sentence.” (R. 25.) Baez’s case fits exactly this description. Page 25 The Drug Law Reform Act Confirms B. That Baez’s Conspiracy Sentence Does Not Qualify for Early Termination. Baez’s interpretation of Penal Law § 70.30(a)(1) should also be rejected because it conflicts with the Legislature’s intent in enacting the Drug Law Reform Act. Baez does not dispute that the Legislature intended only to authorize the automatic termination of sentences for specifically enumerated nonviolent drug offenses under Article 220 and 221 of the Penal Law. See Executive Law § 259-j(3-a) (2004). By listing only these specific offenses, the Legislature made clear that it did not intend to authorize the termination of sentences for other offenses through this provision, such as Baez’s sentence for conspiracy under Article 105 of the Penal Law. See Patrolmen’s Benevolent Ass’n v. City of N.Y., 41 N.Y.2d 205, 208-09 (1976) (“where . . . the statute describes the particular situations in which it is to apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded”) (quotation marks omitted). This Court has repeatedly cautioned that the Drug Law Reform Act’s targeted treatment of specific drug sentences should not be construed to authorize sentence modifications outside of the statute’s narrow scope. Thus, for example, this Court has held that the Page 26 termination or reduction of a sentence under the Drug Law Reform Act does not authorize a court to revisit whether that sentence is concurrent or consecutive with other sentences. See People v. Acevedo, 14 N.Y.3d 828, 831 (2010); People v. Norris, 20 N.Y.3d 1068, 1072 (2013). As these decisions confirm, the Drug Law Reform Act addresses only sentences for the specific nonviolent drug offenses enumerated in the statute— and no more. Baez’s argument here would radically expand the effect of a sentence termination under the Drug Law Reform Act by requiring the simultaneous termination of any other sentence that runs concurrent with a drug sentence. As the Appellate Division correctly held, accepting Baez’s argument “would undermine the salutary aims” of the Drug Law Reform Act’s early-termination provision and “confer a windfall” on Baez that the Legislature never intended. People ex rel. Baez, 127 A.D.3d at 119. It is undisputed that, if Baez had been sentenced only for the conspiracy, the Act would provide him no relief from his twenty-five-year maximum sentence. Yet Baez sought early termination of his conspiracy sentence because he committed and was simultaneously sentenced for an unrelated drug offense. In other words, Baez asserts that he should have been treated more favorably than Page 27 someone who committed only the crime of conspiracy to murder because, in addition to conspiring to murder someone, he also sold drugs. Neither the Drug Law Reform Act nor the Penal Law requires this perverse result. The Legislature’s judgment that certain sentences for nonviolent drug offenses were too harsh simply does not extend to other crimes—including the violent conspiracy that Baez engaged in here. The offense of conspiring with others to commit a crime poses a distinct and serious risk of societal harm because “partnership in crime . . . increases the likelihood that the criminal object will be successfully attained” while at the same time decreasing “the probability that the individuals involved will depart from their path of criminality.” Callanan v. United States, 364 U.S. 587, 593-94 (1961). Given that the Drug Law Reform Act was directed only at sentences for “‘low level’ drug offenders,” extending the Act to crimes such as conspiracy would be wholly inappropriate. See People v. Williams, 84 A.D.3d 1279, 1280- 81 (2d Dep’t) (holding that the Drug Law Reform Act’s resentencing provision does not apply to conspiracy), lv. denied, 17 N.Y.3d 823 (2011); see also People v Diaz, 68 A.D.3d 497, 498 (1st Dep’t 2009) (same); Page 28 People v. Vaughan, 62 A.D.3d 122, 125 (2d Dep’t 2009) (same) (citing C.P.L. § 430.10). Baez argues that the concern about an inappropriate windfall is exaggerated because Executive Law § 259-j(1) and Correction Law § 205(2) allow for discretionary termination of non-drug offenses. Ltr. at 3. Indeed, as explained above, Baez has received a discretionary termination of his sentence under Executive Law § 259-j(1). But there is a substantial difference between the discretionary termination authorized by these pre-existing statutes, and the automatic termination of his conspiracy sentence that Baez sought here by virtue of the treatment of his drug sentences under the Drug Law Reform Act. Automatic termination would have been a substantial and unwarranted windfall because it would have bypassed the discretionary review required under both Executive Law § 259-j(1) and Correction Law § 205(2). Finally, Baez falls back on the argument that the “answer” to the concern that he would have received an inappropriate windfall “lies with the Legislature.” Ltr. at 3 (quotation marks omitted). But the Legislature made its intentions clear when it enacted the Drug Law Reform Act to terminate only sentences for the specific set of nonviolent Page 29 drug-related offenses contained in Article 220 and 221 of the Penal Law. Baez’s attempt to leverage a termination under the Drug Law Reform Act to modify sentences for other offenses is simply an end-run around the Legislature’s express statutory limitation restricting automatic termination to sentences for certain listed offenses. By contrast, for other sentences, the Legislature has authorized the Board of Parole and DOCCS to terminate sentences only if either agency determines that such termination would be in the “best interests of society.” Executive Law § 259-j(1); Correction Law § 205(2). There is no call to circumvent this considered statutory scheme. Page 30 CONCLUSION For the foregoing reasons, the Court should dismiss this appeal. In the alternative, the Court should direct that the appeal proceed in the normal course and should affirm the Appellate Division and dismiss Baez’s petition. Respectfully submitted, By: ____________________________ BETHANY A. DAVIS NOLL Assistant Solicitor General 120 Broadway New York, NY 10271 (212) 416-6184 bethany.davisnoll@ag.ny.gov EXHIBIT A PAROLE BOARD DISCHARGE DECISION SHEET IN ACCORDANCE WITH THE PROVISIONS SET -FORTH IN EXECUTIVE LAW, SECTION 259-J, THE BOARD OF PAROLE HAS REVIEWED THIS CASE AND GRANTED AN ABSOLUTE DISCHARGE. THIS ACTION, EFFECTIVE ON THE DATE INDICATED BELOW, CONSTITUTES A TERMINATION OF THE SENTENCE(S) WITH RESPECT TO WHICH IT WAS GRANTED_ NAME: BAEZ, EDUARDO NYSID # 6926708-P AREA/BUREAU: BROOKLYN 3 ------------------------ APPROVED: EFFECTIVE DATE OF DISCHARGE ~f;'--+-"'i""----";:t;'-----~;:._/'----""b'"'--- * * * * * * * * * *********** * * * * * * * * * * * * * * * * * * * * * * * * * * * * D DEFERREDTOM.E. D DEFERRED __ MONTHS (Must have less than RESUBMIT IN ____ _ 24 months to M.E.) REASON FOR DEFERRAL/POSTPONEMENT: DATE COMMISSIONER DATE NOTE: If postponed, upon resubmission refer to the above Commissioner. Form 9030 (Rev. 1/07) D POSTPONED_ RESUBMIT ASAP WITH REQUESTED DOCUMENTS. COMMISSIONER EXHIBIT B ' N 0 t ~ , ~ E N T S. U P k ~ M ~ ~ ~ U H T 0 F F H ~ S T A T ~ U F N E W Y 0 R K C 0 U N T Y 0 F V 1 N G S CARL D AZ - A~O,VFO OEFENC•AN! i'ZKCh)7~6S ,J . EClVAF!OO BA!il - AFO VFO ,j .. DEfENCtANT 9Z:!I<0076~·7 J0·£1:E AOU I Rt - ll.F 0, \IF 0 OEFENI:JANT' ~Oi;:R IN THE SI<:CONO oe.•3R£€ ~-\ I:.R! rll I NAL. POS:SI?.~S I ON OF f~ wEAP•~lN iN ·rHE. SECOND f.)f::GREE CFI!MtNAL P0SS!::BSION OF A WEAPON iN THE TH!I'!O DEGRE!<: CONS.P i !'lACY 1 N TH£ SE(,()I'4(} N::c.RE.e: CRIMINAL FAC! L I T"' T I ON IN THE El:ECUkl) ['!f.<~REE U/-1-JC£ COPy APPFfOVEO AS . , FORM AND CO 1'0 DA TE: __ ..t2-b k--tN'riNr · ·1/)J1 ~ ~~· FOREPERSON . ~ CH-RL&S J HVN&S 0 I:; I'R I(; T .1~ TTORNE. •r THI£ C·E:CFE.NDANT::::, E.ACH A 1 C•, NC.t n1t:: orHe.Rs AND lNG IN TtiE: COVN TY OF K I NC•S, W I TH 1 Nl EN r TO Cl'> •./Sii T'HE DEATH OF CL l FTON ' I WOUNDS M~u t l'hll.IR lfr.S UPON Cl.. IF l()f" E$LA IF'!, AND fi-!E:REAFTE.R ANO !.:IN t:Jf'! • ... aoc•r NOm .. £R ., 1''0, C'>',F'VN SeA':; 1 <::•fl A8QU r NC•VEMSER .E:6, 1\il'JC., IN THE COUNTY Of' KINO$, !(NOW 1 NGLV AND VNLAWFULLV POSSESSED A LOADED AGAIN$\ ANOTHER. A$, THAT TERM IS C'EF i NE:O IN SE.t.:T! UN 1 ;;.O UF THE Cft I M I NAL PROCEDURE LAW, • • .• ' l. 'rH I 11(; Ct)IJNT ~'COMM I iJ&:O A S POL LQ\113 : TH!l: OE.FE t~OAN TS., .E ACH A I D I t40 THE OT HERS AND ACl' I NO IN ,CONCER T \II I TH O T HER Pli.H$>.)NfJ , UN <)R AI'K -...r r NQ VEJ\'IBe.-: A , KNOW I NOLY Af4C• ONL!~W~"UL LV POSS E S$ED A i..OAO£C> DEF' f.NDAN'T:S# ' ~OME OR Pl. ACt:: t.;Jf" EiLIS I NES;;;. _;: 1t-iE $ \.liSJ t::.CT MA T"(.Ii,l-'1 OF . THIS COVNT A!1 T HA'T TI::~M I S DEF" I NuO IN SEC.T I •::>N 1 .'~·0-·i:':f' ' L Alli . BEING . AN A~ "F"E4Y THE CRI M I NAL PFVE.Mf:hi.R 1!.'1', 19~)'J ir. THI: CO\ . .:NTY ur'· lUNGE>, WITH INTI:'.NT •' '.THll>T CONDUCT CC'N:in!TI.I'fiNO '!HIS AN.D fl/IC#fdl: PE:RSC:INS IU~f.3AGE IN ('fl {..;<1.1:£><; 'SUCH C()liOtJ<... r. At~!.) IN F'L'RTHE.RAN<:;E. OF SA •O t...:ONtlP I RAt.. Y ANt'J fN ~'E'R ~ !:O:FF£CT THE Of:I.J(C'l$ THEREOF, THE. FOLLOW!N& QVEH>T ACTS, AMONG DIAl DiD Pt...ACE A FIREARM INSIDE THE li.J88'r' f'fAOIAl'QR OF 44<:1 49TH STR£1£., BRCtOto .. vN m;.w YQRK. .. ·~· .,;'f!£:.NOER I NG A! D TC:• A WHO INTENDtO <.<.)!liMhT A CLASS A F"Et.<:JNV, I:'.N•)AGED It~ CQtELONV. CHAPt.aS J. HYNES OtSlRtC'i ATTORNEY' '-·l ~. • FLEAS£ TA.:.£ NOTIC£ t hl\t pursuant 10 t •. P. L. A'l't ic:le 255 ..-ithin forty-five d>~ys af•er arr:lif.\nmcnt an.J brlorr .,·C\mlllt•n,·t•mc:nt of trial. Upon 1Hpiroathut ut" tt11.• applic:abll' th~· T't•optc "i 11 mQvc the •ollrt to l•rt•o:lut.le .uny pr•!-tta .. t ~otion' maJc thereafter. ,;., 78 1-90 Sincerely, CHARLES J. HYN~S DistTict Attorney Kin&' C('unty EXHIBIT C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ,......-; 25 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRIMINAL TERM : PART 29 THE PEOPLE OF THE STATE OF NEW YORK CARL DIAZ and EDUARDO BAEZ, B E F 0 R E - against - Defendants. Kings supreme court Ind. Number 1893-92 Pleas 120 Schermerhorn Street Brooklyn, New York 11201 March 2, 1993 HONORABLE MICHAEL R. JUVILER, Justice A P P E A R A N C E S For the People: Charles Hynes, Esq. District Attorney Kings county BY: THERESA CORRIGAN, ESQ. Assistant District Attorn For Defendant Diaz: FRANK LOPEZ, ESQ. For Defendant Baez: HOWARD KIRSCH, ESQ. DIANE DORSEY, CSR, RMR offi al court Reporter .- II I i: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 /--~1 25 Proceeding COURT CLERK: This is the case on trial, carl Diaz and Eduardo Baez, 1893 of '92. (off-the-record discussion.) (Case set aside and later recalled.) * * 2 This is a recall of carl Diaz and Eduardo Baez. State your appearances for the record. MS. CORRIGAN: Theresa corrigan for the People. MR. LOPEZ: Frank Lopez for Carl Diaz. MR. KIRSCH: Howard Kirsch for Eduardo Baez. Your Honor, if it please the court 9 on behalf of Eduardo Baez I have an application. THE COURT: Yes. Everyone is free to be seated and comfortable please. MR. KIRSCH: Your Honor, after consultation with the court, the district attorney, and my client, Mr. Baez, Mr. Baez has authorized me to apply to the court to withdraw his previously entered pleas of not guilty and to plead guilty to the following counts. under Indictment Number 1893 of '92, he wishes to withdraw his previously entered plea of not guilty and plead guilty under count 8 of this indictment to the charge of criminal sale of a controlled substance in the second degree. And under count 11 of the same indictment to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceeding criminal sale of a controlled substance 1n the second degree in full satisfaction of Indictment Number 1893 of '92. 3 He further authorizes me to withdraw his previously entered plea of not guilty and to plead guilty to count 4 of Indictment Number 1567 of 1992 1 conspiracy in the second degree in full satisfaction of that indictment. THE COURT: Thank you. MR. LOPEZ: Most respectfully? your Honor, with regard to the defendant carlos Diaz, his application is to withdraw his previously entered pleas to Indictment Numbers 1567 of '92 and 1893 of '92, and to enter pleas on Indictment Number 1893 of the year '92 to three counts: The 8th count, the 11th count, and the 14th count, and that would be to criminal sale of a controlled substance in a second degree. Also, under 1567 of the year 1 92, he would be pleading to conspiracy to commit murder~ and that those pleas are in full satisfaction of both indictments. THE COURT: Thank you. You are free to be seated if you wish, Mr. Lopez. Thank you. MR. LOPEZ: Thank you, your Honor. THE COURT: Mr. Diaz, and Mr. Baez, I'm go1ng to ask you some questions. For all of my questions, we will /""'·:, lj i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 Proceeding have an order in which Mr. Diaz will answer rst, and then Mr. Baez, and some questions I will ask of only one of you. Do each of you understand English? DEFENDANT DIAZ: Yes. DEFENDANT BAEZ: Yes. THE COURT: Do either of you wish to have a court interpreter of Spanish? DEFENDANT DIAZ: No. DEFENDANT BAEZ: No. THE COURT: Have each of you had enough time to speak with his lawyer about pleading guilty? DEFENDANT DIAZ: Yes. DEFENDANT BAEZ: Yes. THE COURT: Are you satisfied with the representation given to you by your lawyer· Mr. Diaz? DEFENDANT DIAZ: Yes. THE COU Mr. Baez? DEFENDANT BAEZ: Yes. THE COURT: Are you under the influence now of alcohol or any drug? DEFENDANT DIAZ: No. DEFENDANT BAEZ: NO. THE COURT: Mr. Diaz, you are asking to plead guilty to charges in two indictments; and Mr. Baez, you are also, but for Mr. Diaz, there is one charge more than 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 Proceeding for Mr. Baez. I will call Lhe drug pleas indictment the drug indictment, and the other case I'll refer to as the homicide indictment. The agreement is as follows. For Mr. Diaz, you are asking to plead guilty under the drug indictment to three separate charges of criminal sale of a conLrolled substance in the second degree as a lesser included charge of Lhree charges of criminal sale of a controlled substance in the firsL degree. criminal sale in Lhe firsL degree is called a class Al felony. You are asking to plead guilty to Lhree lesser included charges of criminal sale in the second degree. Those are known as A2 felonies. Do you understand what I have said so far? DEFENDANT DIAZ: Yes. THE COURT: Mr. Baez, 1n the drug indictment, you are asking to plead guilty to two A2 felonies called criminal sale of a controlled substance in the second degree as a lesser included charge of charges 8 and 11 which at the moment are A1 felonies, criminal sale in the first degree. Do you understand what I have said? DEFENDANT BAEZ: Yes. THE COURT: In addition, each of you is asking 1 2 3 4 5 6 7 8 9 10 11 12 ,--., i 13 i i 14 15 16 17 18 19 20 21 22 23 24 25 6 Proceeding to plead guilty to one of the charges in the homicide indictment. That charge is charge number 4 called conspiracy in the second degree. It's a class B felony. Do each of you understand that? DEFENDANT DIAZ: Yes. DEFENDANT BAEZ: Yes. THE COURT: For Mr. Diaz, the agreement is as follows relating to the sentences. In the drug case under count 8, you would be sentenced the next time you are here to an indeterminate sentence on that charge of eight years to life. That means the minimum term is eight years. The maximum term is life imprisonment. under count 11, you would be sentenced to an indeterminate sentence of four and a half years to life; the minimum term being four and a half years. The max1mum term being life. at sentence would run consecutive y to the sentence of eight years to life that I just mentioned. For the remaining drug charges that you plead to, you would be sentenced to four and a half years to life. That sentence would run concurrently with the sentences I just mentioned. In addition for Mr. Diaz, you would be sentenced to pay restitution of the so-called buy money that the law enforcement agencies expended for those three sales of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 Proceeding drugs. For count eight, the buy money restitution for Mr. Diaz is $3,750. For count 11, it is $3,500. For count 14, it is $3,625. so Mr. oiaz' sentence will include paying back all of that money. It's almost $12,000. Do you understand what I have said so far Mr. Diaz? DEFENDANT DIAZ: Yes, Sir. THE COURT: Mr. Baez will not be sentenced to pay back restitution. Is that understood, Mr. Baez? DEFENDANT BAEZ: Yes, Sir. THE COURT: For both of you gentlemen, in the homicide case, you would be pleading guilty to conspiracy in e second degree, count number 4; and each would receive a sentence of eight and a third years to 25 years. That's an indeterminate sentence. The minimum term is eight and a third years. The maximum term is 25 years. For each of you, that sentence would run concurrently with the sentences I have already discussed in the drug case. so for Mr. Diaz and Mr. Baez, the total imp sonment sentence combined is 12 and a half to 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 / 25 8 Proceeding years. And Mr. Diaz would be 12 and a half years to life, not 12 and a half to 25. For Mr. Diaz, it would be a total combined prison sentence of 12 and a half years to life imprisonment:, Is that clear Mr. Diaz? DEFENDANT DIAZ: Diaz Yes, Sir. THE COURT: Mr. Baez, your prison sentence would be the same; a total combined sentence of 12 and a half years to life imprisonment. Is that clear? DEFENDANT BAEZ: Yes, Sir. THE COURT: Mr. Diaz would have additional sentence of restitution of the three purchase moneys that I just listed. Is that clear Mr. Diaz? DEFENDANT DIAZ: Yes, Sir. THE COURT: Mr. Diaz, except for what I have told you about your sentence, did anyone prom1se you anything else to make you plead guilty? DEFENDANT DIAZ: NO. THE COURT: Mr. Baez, did anyone promise you anything else regarding your sentence to make you plead guilty except what I just told you? DEFENDANT BAEZ: NO. THE COURT: Did either of you receive any other ; '] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 i ::1.1. 9 Proceeding promises of any other kind to make you plead guilty except what I have just discussed with you? DEFENDANT DIAZ: NO. DEFENDANT BAEZ: No, THE COURT: Mr. Diaz, and Mr. Baez, if you plead guilty, you are giving up rights that are very important. I want to go over some of these with you to make sure you are understanding that. Each of you has the right to keep your plea of not guilty. You do not have to plead guilty. Do you understand that? DEFENDANT DIAZ: Yes, Sir, DEFENDANT BAEZ: Yes, Sir. THE COURT: Each of you has the right to keep silent about any crime; but if you plead guilty, you give up that right and you will be t ling me about certain crimes. Is that understood? DEFENDANT DIAZ: Yes. DEFENDANT BAEZ: Yes. THE COURT: Each of you has the right to a trial with a jury in these cases. As a matter of fact, in the drug case, a jury panel is waiting one flight up to come to court to serve in this case. If you plead guilty, there won't be any trial. You will be convicting yourself of these crimes without a trial, and the conviction means !"" ,'1 ' ' li j 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 10 Proceeding the same ~hing when you plead guilty as it would mean if a Jury heard the case and found you guilty at that trial. Do you understand that Mr. Diaz? DEFENDANT DIAZ: Yes, Sir, THE COURT: Mr. Baez? DEFENDANT BAEZ: Yes. THE COURT: Each of you has the right to have any witnesses against you come to court so you can look at those witnesses and they can look at you, and your lawyers can ask them questions in front of the jury. That's called your right to confront the witnesses against you. That includes but is not limited to the undercover police officers. However, if you plead guilty now, you are giving up that right. No witnesses will be coming to court, and you will be convicting yourself just by your word to me without witnesses telling about t. Do you understand what I have said? DEFENDANT DIAZ: Yes. DEFENDANT BAEZ: Yes. THE COURT: As part of the agreement, each of you would be giving up your right to ask the higher court, the appeals courts, to review the sentence that I have promised you and to review your pleas of guilty. so if you plead guilty now and I sentence you, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I .J,U. 11 Proceeding these pleas and sentences become final without a higher court reviewing them, and you give up your right to ask the appeals court to review them. Do you understand that Mr. Diaz? DEFENDANT DIAZ: Yes. THE COURT: Do you understand that, Mr. Baez? DEFENDANT BAEZ: Yes. THE COURT: I and other judges before me have made certain rulings on evidence, including but not limited to the audibility of certain tapes. If you plead guilty now, none of those rulings stay in the case, and you won't be able to claim later that your conviction is not correct because the judge made a mistake in the rulings that have already be made. Do you understand that Mr. Diaz? DEFENDANT DIAZ: Diaz yes, THE COURT. Mr. Baez? DEFENDANT BAEZ: Yes. THE COURT: Mr. Diaz, has anyone threatened you or pressured you to make you plead guilty? DEFENDANT DIAZ: NO, Sir. THE COURT: Mr. Baez, has anyone pressured you or threatened you to make you plead guilty? DEFENDANT BAEZ: No, Sir. THE COURT: Mr. Diaz, are you pleading guilty /-·, . :l ·i I 1 2 3 4 5 6 7 8 9 10 11 12 /"·; 13 14 15 16 17 18 19 20 21 22 23 24 25 12 Proceeding voluntarily? DEFENDANT DIAZ: Yes, Sir. THE COURT: Are you pleading guilty, Mr. Baez, volunta ly? DEFENDANT BAEZ: Yes, Sir. THE COURT: Do each of you understand that if you plead guilty now but you change your mind about it later, I will not let you take back your plea of guilty? DEFENDANT DIAZ: Yes. DEFENDANT BAEZ: Yes, Sir. THE COURT: Then I'll proceed to the charges. we will start first with Mr. Diaz for each charge, and then I will ask Mr. Baez about that charge if it applies to him. The first charge we are talking about is a lesser included charge of count 8 in the drug case. It is called criminal sale of a controlled substance in the second degree, This charge says that each of you aiding each other in Brooklyn on November 1, 1991 committed the class A2 felony of criminal sale of a controlled substance in the second degree by knowingly and unlawfully selling a substance weighing at least one-half of an ounce containing a narcotic drug, namely cocaine to a person who it turned out was an undercover police officer. The 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceeding charge alleges Lhat that substance was crack/cocaine. charge? Do you understand this charge Mr. Diaz? DEFENDANT DIAZ: Yes, Sir. THE COURT: Is it true? DEFENDANT DIAZ: Yes, THE COURT: How do you plead to this charge? DEFENDANT DIAZ: Guilty, THE COURT: Mr. Baez, do you understand this DEFENDANT BAEZ: Yes, Sir. THE COURT: Is it true? DEFENDANT BAEZ: Yes. THE COURT: How do you plead LO this charge? DEFENDANT BAEZ: Guilty. THE COURT: e next charge for each of 13 s included in count 11 in the drug case. It is also a class A2 felony; criminal sale of a controlled substance in the second degree. This charge alleges that in Brooklyn on November 13, 1991, each of you helping each other commitLed that crime by knowingly and unlawfully selling a subsLance weighing at least one-half an ounce containing a narcotic drug, namely cocaine to a person who turned out to be an undercover police officer; and the charge alleges that that narcotic drug was crack/cocaine. /" 1 2 3 4 5 6 7 8 9 10 11 12 / .... 13 14 15 16 17 18 19 20 21 22 23 24 25 charge? Proceeding Do you understand this charge, Mr. Diaz? DEFENDANT DIAZ: Yes. THE COURT: IS i~ ~rue? DEFENDANT DIAZ: Yes. THE COURT: How do you plead to this charge? DEFENDANT DIAZ: Guilty. THE COURT: Mr. Baez, do you understand this DEFENDANT BAEZ: Yes. THE COURT: Is it true? DEFENDANT BAEZ: Yes. THE COURT: How do you plead to this charge? DEFENDANT BAEZ: Guilty. 14 THE COURT: The next charge 1s for Mr, Diaz alone. It is included in count 14 in the drug case, It is also called criminal sale of a controlled subs~ance in the second degree, a Class A2 felony. This charge alleges that Mr. Diaz and another person, Robert Cruz, each aiding the other in Brooklyn on January 27, 1992, committed that crime by knowingly and unlawfully selling a substance weighing at least one-half ounce containing a narcotic drug, namely cocaine to a person who ~urned ou~ to be an undercover police officer. The charge alleges that that was crack/cocaine. Do you understand is charge, Mr. Diaz? :j J 1 2 3 4 5 6 7 8 9 10 11 12 ,...---] I 13 I 14 15 16 17 18 19 20 21 22 23 24 25 Proceeding DEFENDANT DIAZ: Yes, Sir. THE COURT: Is this charge true? DEFENDANT DIAZ: Yes. THE COURT: How do you plead to this charge? DEFENDANT DIAZ: Guilty. THE COURT: The next charge that the two defendants are asking to plead guilty to is in the homicide case. It is count 4 in that case, Indictment 15 1567 of 1992. This is a class B felony called conspiracy in the second degree. Mr. Diaz and Mr. Baez, this charge alleges that each of you helping each other and another person in Brooklyn from october 15, 1990 to November 27, 1990 with intent that the crime of murder in the second degree, a Class A felony be performed, knowingly 11 lly agreed with each other and other people to do things to bring about that cr1me of murder in the second degree and to cause it to happen; and it charged that in furtherance of that conspiracy, certain overt acts were done by each of you to carry out that agreement. The charge does not allege that -- this particular charge does not allege that the murder was carried out, or that either of you is guilty of murder; but it charges that each of you is guilty of the class B felony of conspiracy in the second degree for conspiring 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceeding with each other and other people to commit a murder. Mr. Baez? Do you understand this charge, Mr. Diaz? DEFENDANT DIAZ: Yes, Sir. THE COURT: Is it true? DEFENDANT DIAZ: Yes. THE COURT: How do you plead to this charge? DEFENDANT DIAZ: Guilty. THE COURT: Do you understand to this charge DEFENDANT BAEZ: Yes. THE COURT: Is this charge true? DEFENDANT BAEZ: Yes. THE COURT: HOW do you plead LO this charge? DEFENDANT BAEZ: Guilty. 16 THE COURT: Does any lawyer on either side of the case have any questions for either of the two defendants? MR. LOPEZ: No, Your Honor. MR. KIRSCH: NO, Your Honor. MS. CORRIGAN: No, Your Honor. THE COURT: Do the People consent to the pleas and the sentences? MS. CORRIGAN: Yes, your Honor. THE COURT: Mr. Diaz, do you want me to accept your pleas of guilty? /" 1 2 3 4 5 6 7 8 9 10 11 12 ,,.-·: 13 14 15 16 17 18 19 20 21 22 23 24 ' ' 25 Proceeding DEFENDANT DIAZ: Yes, Sir. 17 THE COURT: Mr. Baez, do you want me to accept your pleas of guilty? DEFENDANT BAEZ: Yes, Sir. THE COURT: I except each defendant's pleas of guilty. The next date will be for sentencing. Each defendant is remanded for sentencing which will happen on March 22 at 2:00. MR. LOPEZ: Your Honor, most respectfully I'm going to be finishing in the Federal court. could we have it the following day at 2:00, March 23? THE COURT: Yes. The date lS changed to March 23 at 2:00 for each defendant, and we will order a presentence investigation; and each defendant is remanded. CERTIFIED THAT THE FOREGOING IS A TRUE AND ACCURATE TRANSCRIPT OF T E STENOGRAPHIC MINUTES IN THESE PROCEEDINGS. official court Reporter