The People, Appellant,v.Angel Cintron, Respondent.BriefN.Y.February 11, 2014Argued by JUSTIN J. BRAUN (10 minutes) ____________________________________________________________________________ Court of Appeals STATE OF NEW YORK S)))Q THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - ANGEL CINTRON, Defendant-Respondent ____________________________________________________________________ APPELLANT’S BRIEF _______________________________________________________________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Appellant 198 East 161st Street Bronx, New York 10451 (718) 838-7111; Fax (718) 590-6523 JOSEPH N. FERDENZI JUSTIN J. BRAUN Assistant District Attorney Of Counsel Date Completed: June 17, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The CPL § 440.10 Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Resentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The CPL § 440.20 Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The People’s Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT THE APPELLATE DIVISION’S DECISION ERRONEOUSLY ESTABLISHES A RULE THAT A PEOPLE’S APPEAL MUST BE DISMISSED IF A COURT VACATES A LAWFUL SENTENCE AND IMPOSES AN ILLEGAL SENTENCE THAT IS COMPLETED BEFORE THE APPEAL CAN BE DECIDED; IT MUST, THEREFORE, BE REVERSED BY THIS COURT . . . . . . . . . . . . . . . . . . . . . . . 10 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 TABLE OF AUTHORITIES Page CASES People ex rel. McLaughlin v. Board of Police Com'rs of Yonkers et al., 174 N.Y. 450, 456 (1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Acevedo, 17 N.Y.3d 297 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Allen, 86 N.Y.2d 599 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Allen, 88 A.D.3d 735 (2d Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . 14, 19 People v. Appleby, 71 A.D.3d 1545 (4th Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . 8 People v. Brown, 40 N.Y.2d 381 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Brown, 87 N.Y.2d 626 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Cintron, 6 A.D.3d 338 (1st Dept.), lv. denied, 3 N.Y.3d 657 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Cintron, 99 A.D.3d 439 (1st Dept. 2012) . . . . . . . . . . . . . . . . 1, 9, 13, 16 People v. Lingle, 16 N.Y.3d 621 (2011) . . . . . . . . . . . . . . . . . . . . . 9, 12, 13, 18, 22 People v. Minaya, 54 N.Y.2d 360 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Muniz, 91 N.Y.2d 570 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Peterkin, 71 A.D.3d 1402 (4th Dept. 2010) . . . . . . . . . . . . . . . . . . . . 7, 8 People v. Rodriguez, 18 N.Y.3d 667 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Sparber, 10 N.Y.3d 457 (2008) . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 18, 20 People v. Velez, 19 N.Y.3d 642 (2012) . . . . . . . . . . . . . . . . 9, 13, 16, 17, 18, 19, 20 People v. Williams, 14 N.Y.3d 198 (2010) . . . . . . 6, 7, 8, 11, 12, 16, 17, 18, 19, 20 People v. Yannicelli, 40 N.Y.2d 598 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Matter of Anderson v. Buchter, 19 A.D.3d 484 (2d Dept. 2005) . . . . . . . . . . . . . 22 Matter of Garner v. NYS Dept’t of Corr. Svces., 10 N.Y.3d 358 (2008) . . . . . . . 18 Mountain View Coach Lines, Inc. V. Storms, 102 A.D.2d 663 (2d Dept. 1984). . . .14 Selzer v. Baker, 295 N.Y. 145 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 United States v. DiFrancesco, 449 U.S. 117 (1980) . . . . . . . . . . . . . . . . . 15, 16, 20 United States v. Goldstein, 479 F.2d 1061 (2d Cir. 1973) . . . . . . . . . . . . . . . . . . 22 United States v. Rico, 902 F.2d 1065 (2d Cir.), cert. denied sub nom, 498 U.S. 943 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Wilson, 420 U.S. 332 (1975) . . . . . . . . . . . . . . . . . . . . . . . . 15, 20 ii STATUTES CORRECTION LAW § 601-d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18 CRIMINAL PROCEDURE LAW § 330.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 CRIMINAL PROCEDURE LAW § 440.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CRIMINAL PROCEDURE LAW § 440.20 . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 6, 11, 13, 17 CRIMINAL PROCEDURE LAW § 450.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 CRIMINAL PROCEDURE LAW § 470.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 PENAL LAW § 70.70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 PENAL LAW § 155.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PENAL LAW § 160.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PENAL LAW § 160.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 iii COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ANGEL CINTRON, Defendant-Respondent. ------------------------------------------------------------------X APPELLANT’S BRIEF STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of this Court, granted December 21, 2012, Angel Cintron appeals from an October 4, 2012, order of the Appellate Division, First Department (People v. Cintron, 99 A.D.3d 439 [1st Dept. 2012]), which dismissed the People’s appeal from the Amended Order and Order (entered on or about May 26, 2010, and May 28, 2010) granting defendant’s CPL § 440.20 motion to set aside the June 18, 2008, resentence (Clancy, J.).1 1 Defendant’s CPL § 440.20 motion concerned his judgment, originally rendered on September 26, 2001, in Supreme Court, Bronx County (Clancy, J.), wherein defendant was convicted, after a jury trial, of Robbery in the First Degree (Penal Law § 160.15), Robbery in the Third Degree (Penal Law § 160.05), and Petit Larceny (Penal Law § 155.25), and sentenced, as a second felony offender, to concurrent terms of imprisonment of ten years for the first-degree robbery, from three-and-one-half to seven years for the third-degree robbery, and one year for the petit larceny. On June 18, 2008, the court resentenced defendant to a determinate term of ten-years imprisonment together with five years of post-release supervision for the first-degree robbery count, an indeterminate term of three-and-one-half to seven years imprisonment for the third-degree Defendant has been released from custody and his ten-year sentence has expired. QUESTION PRESENTED Given that the lower court erroneously vacated a lawful sentence and imposed an illegal one, and given that the People timely filed an appeal from the vacatur and illegal sentence, did the Appellate Division correctly dismiss the People’s appeal because the illegal sentence was completed before the appeal could be decided? FACTS The Indictment By indictment number 2052/2000, filed on or about April 17, 2000, the Grand Jury of Bronx County charged that defendant committed Robbery in the First Degree (two counts), Robbery in the Third Degree (three counts), Grand Larceny in the Fourth Degree (three counts), Criminal Possession of Stolen Property in the Fifth Degree (three counts), Menacing in the Second Degree (two counts), and Criminal Possession of a Weapon in the Fourth Degree (two robbery count, and a determinate term of one-year imprisonment on the petit larceny count, the sentences to run concurrently and imposed nunc pro tunc to September 26, 2001. The People of the State of New York appealed from the May 26, 2010, Order of the Supreme Court, Bronx County (Clancy, J.), the May 28, 2010, Amended Order of the court, and a June 8, 2010 Order of the court, granting the defendant’s CPL § 440.20 motion to set aside his June 18, 2008, resentence, and resentencing him, once again, to a determinate term of ten-years imprisonment without post-release supervision for his conviction for first-degree robbery imposed nunc pro tunc to September 26, 2001. 2 counts)(Indictment; A.2 1-7). The indictment was subsequently amended to correctly reflect the date of the offense for six of the counts (Order Granting People’s Application to Amend the Indictment; A. 8-9). The Judgment On June 27, 2001, a jury found defendant guilty of Robbery in the First Degree, Robbery in the Third Degree, and Petit Larceny (June 27, 2001, Verdict Transcript; A. 10-21; Verdict Sheet; A. 22). On September 26, 2001, the Honorable Margaret L. Clancy sentenced defendant, as a second felony offender, to concurrent terms of imprisonment of ten years for the first-degree robbery, from three-and-one-half to seven years for the third-degree robbery, and one year for the petit larceny (People’s Second Felony Information; A. 23; Sentence Transcript; A. 24-30; Sentence and Commitment Sheet; A. 31; Amended Sentence and Commitment Sheet; A. 32). No period of post-release supervision was imposed at defendant's sentencing. The Appeal In November 2003, defendant, through his attorney, Lisa Joy Robertson, Esq., of the Center for Appellate Litigation, perfected his appeal to the Appellate Division, First Department. Defendant argued that he was denied his right to counsel at the investigatory lineups, the trial court erroneously neglected to instruct 2 Numerals preceded by “A.” refer to the pages of appellant’s appendix. 3 the jury that it should not commingle the evidence or consider it cumulatively with respect to each offense, and the sentence was harsh and excessive. On April 27, 2004, the Appellate Division unanimously affirmed defendant’s judgment of conviction, holding, inter alia, that it “perceive[d] no basis for reducing the sentence.” People v. Cintron, 6 A.D.3d 338 (1st Dept. 2004), lv. denied, 3 N.Y.3d 657 (2004). The CPL § 440.10 Motion In pro se motion papers dated November 29, 2007, defendant moved in Supreme Court, Bronx County, to vacate his judgment of conviction pursuant to CPL § 440.10,3 arguing that his plea was involuntary because this Court failed to inform defendant that he faced a period of post release supervision4 (see Defendant’s November 9, 2007, Pro Se Motion to Vacate the Judgment, unnumbered pp. 4-7; A. 36-39) The People submitted opposition papers dated March 3, 2008 (see People’s March 3, 2008, Opposition to Defendant’s Pro Se Motion to Vacate the Judgment; A. 43-61). While the motion was pending before 3 Defendant’s collateral attack on the sentence was incorrectly brought pursuant to CPL §440.10 rather than pursuant to CPL §440.20. 4 As the People noted in their reply papers, defendant’s contention that he pleaded guilty was conclusively refuted by, inter alia, the stenographic transcript of the jury verdict, which clearly indicates that defendant was found guilty following a jury trial (see June 27, 2001, Verdict Transcript; A. 10-21). 4 the court, on May 5, 2008, defendant was conditionally released to the custody of the Department of Parole to serve the remainder of his determinate sentence. On May 12, 2008, Justice Clancy issued a written decision denying defendant’s motion but acknowledging that post-release supervision was not imposed at defendant’s sentencing and ordering that defendant be resentenced pursuant to People v. Sparber, 10 N.Y.3d 457 (2008) (see May 12, 2008, Decision; A. 62-63). The Resentencing On June 18, 2008, Justice Clancy resentenced defendant to a determinate term of ten-years imprisonment together with five years of post-release supervision for the first-degree robbery conviction, an indeterminate term of three-and-one-half to seven years imprisonment for the third-degree robbery conviction, and a determinate term of one-year imprisonment on the petit larceny conviction. The sentences were to run concurrently and were imposed nunc pro tunc to the original sentence date of September 26, 2001 (see June 18, 2008, Resentencing Transcript; A. 64-70). No notice of appeal was filed from the resentencing. In a letter dated October 20, 2008, addressed to Justice Clancy and copied to defendant, the Division of Parole notified the court that, according to its records, defendant was a “designated person” pursuant to Correction Law § 601-d(1) given that a period of post-release supervision was not imposed at defendant’s original 5 sentencing and no period of PRS was indicated on defendant’s original sentence and commitment sheet (see October 20, 2008, Letter to the court from the Division of Parole; A. 71-82). In a letter dated November 10, 2008, addressed to the Division of Parole and copied to defendant and his attorney, Robert S. Dean, Esq., of the Center for Appellate Litigation, the Honorable John P. Collins notified parole that, on June 18, 2008, defendant was resentenced to include a term of five- years PRS, and, consequently, defendant was not a “designated person.” Justice Collins attached to his letter an amended sentence and commitment sheet indicating the five-year period of PRS imposed (see November 10, 2008, Letter to the Division of Parole from the Honorable John P. Collins; A. 83-84). The court subsequently forwarded the resentencing minutes as well (see December 18, 2008, Letter to the Division of Parole from the Honorable John P. Collins; A. 85-92). On October 11, 2009, defendant reached the maximum expiration date of his original sentence. The CPL § 440.20 Motion On March 31, 2010, defendant, through his attorneys, moved pursuant to CPL § 440.20(1), to set aside his June 18, 2008, resentence to the extent of vacating the five-year term of PRS. The motion was based on double jeopardy grounds and relied on the then recently decided decision of this Court in People v. Williams, 14 N.Y.3d 198 (2010). Defendant argued that, because he had been 6 conditionally released from prison before he was resentenced, and because Williams purportedly “established a bright-line rule that forbids adding post- release supervision to a defendant’s sentence once the defendant has been released from prison and the People’s time to appeal the sentence has expired,” his sentence should be vacated (see Defendant’s March 31, 2010, Motion to Set Aside the Sentence, Affirmation of Mark W. Zeno, ¶¶ 2, 9-13; A. 94-97). In papers filed April 13, 2010, the People opposed defendant’s motion. The People argued that Williams held that a defendant’s expectation in the finality of his sentence accrues only after he has finished fully serving his initial sentence on the maximum expiration date, and not simply upon his being released from prison (see People’s April 13, 2010, Opposition to Defendant’s Motion to Set Aside the Sentence, memorandum of law, p. 3; A. 109). Because defendant’s resentencing proceedings began before his maximum expiration date, and also because he was resentenced before that date, the People contended that his conditional release did not bar imposition of PRS (id., p. 4; A. 110). Defendant submitted a reply memorandum of law dated April 20, 2010, and a supplemental memorandum of law dated April 27, 2010, directing the court’s attention to the case People v. Peterkin, 71 A.D.3d 1402 (4th Dept. 2010) (see Defendant’s April 20, 2010, Reply Memorandum of Law; A. 124-130; Defendant’s 7 April 27, 2010, Supplemental Memorandum of Law; A. 131-176).5 The People filed a reply affirmation in opposition on April 28, 2010, and a supplemental affirmation in opposition on May 3, 2010 (see People’s April 28, 2010, Reply Affirmation in Opposition; A. 177-181; People’s May 3, 2010, Supplemental Affirmation in Opposition; A. 182-187). On May 26, 2010, Justice Clancy issued a written decision granting defendant’s motion, vacating his resentence to the extent of eliminating the period of post-release supervision, and ordering that he appear for resentencing in accordance with the decision (see May 26, 2010, Decision; A. 188-191). Justice Clancy held that “[t]he Williams Court made no reference to any defendant being resentenced after maximum release dates, let alone the maximum release dates being determinative of when finality accrued. Given the specificity of the Court’s ruling, without any qualification concerning the nature of an inmate’s release or the maximum release date, the People’s position is rejected” (id., pp. 3-4; A. 190-191). On May 28, 2010, the court issued an amended written decision, identical to the May 26, 2010 decision, with the exception that a typographical error regarding 5 The Peterkin court reversed a lower court’s resentencing a defendant to include a period of post-release supervision by citing its own precedent as established in People v. Appleby, 71 A.D.3d 1545 (4th Dept. 2010). Peterkin, 71 A.D.3d at 1402-1403. Appleby, in turn, held that, where the “[d]efendant had completed serving the determinate term of incarceration originally imposed by the court prior to the date on which the Department of Correctional Services (DOCS) sought a hearing on the issue of defendant's resentencing to a period of PRS,” the defendant could not be resentenced to include a period of PRS. Appleby, 71 A.D.3d at 1545. 8 defendant’s conditional release date was corrected (see May 28, 2010, Amended Decision; A. 192-195). On June 8, 2010, at a resentencing proceeding before the court and in a written order issued by Justice Clancy, defendant was resentenced on his first- degree robbery conviction, to a determinate term of ten years incarceration without any period of PRS nunc pro tunc to September 26, 2001 (see June 8, 2010, Resentencing Proceeding, pp. 2-3; A. 197-198; June 8, 2010, Resentencing Order, pp. 1-2; A. 199-200). The People timely filed a Notice of Appeal on June 1, 2010, and a Supplemental Notice of Appeal on June 3, 2010. The People’s Appeal On October 4, 2012, the Appellate Division, First Department unanimously dismissed the People’s appeal “as academic.” Cintron, 99 A.D.3d at 440. The appellate court held that, though the motion court’s vacatur and resentencing was error pursuant to People v. Lingle, 16 N.Y.3d 621 (2011), because defendant was still on conditional release at the time he was resentenced, the People could not “request reinstatement of the 2008 resentence . . . .” Id. Applying this Court’s decision in People v. Velez, 19 N.Y.3d 642 (2012), the Appellate Division elaborated that, “[d]efendant has a reasonable expectation of finality in his sentence, and a term of PRS cannot now be added because the maximum expiration date of his sentence passed several years ago.” Id. at 441. 9 On December 21, 2012, the Honorable Victoria A. Graffeo, Associate Judge of this Court, granted leave to appeal the Appellate Division’s decision. Pursuant to this Court's letter dated January 17, 2013, the instant matter was designated for examination of the merits pursuant to Rule 500.11 (“SSM” review). After the parties’ SSM submissions, in which appellant objected to SSM review, the matter was calendared for full briefing and argument. ARGUMENT THE APPELLATE DIVISION’S DECISION ERRONEOUSLY ESTABLISHES A RULE THAT A PEOPLE’S APPEAL MUST BE DISMISSED IF A COURT VACATES A LAWFUL SENTENCE AND IMPOSES AN ILLEGAL SENTENCE THAT IS COMPLETED BEFORE THE APPEAL CAN BE DECIDED; IT MUST, THEREFORE, BE REVERSED BY THIS COURT. In this case, the Appellate Division has ruled that this Court’s precedent does not allow the appeal of a wrongful vacatur of a lawful sentence. Neither this Court’s precedent nor any constitutional provision mandates this unfair result. Accordingly, this Court should undue the Appellate Division ruling and reaffirm the People’s ability to appeal from an illegal sentence. To fully understand the ramifications of the Appellate Division’s misapprehended dismissal of the People’s appeal in this case, it is necessary to appreciate how this matter evolved out of a series of errors in the lower courts. At defendant’s original sentencing in 2001, the trial court failed to impose the legally 10 required term of post-release supervision. See People v. Sparber, 10 N.Y.3d 457 (2008). It corrected this error on June 18, 2008, when it lawfully resentenced defendant so as to include a five-year term of PRS. Though defendant was conditionally released at the time of the resentence, his sentence of imprisonment had not expired; it would not expire until October 11, 2009. Defendant, however, did not seek to have his resentence set aside until long after he was resentenced and even after his expiration date had passed; on March 31, 2010, defendant filed a CPL § 440.20 motion asking that the PRS component of the sentence be vacated. Relying on People v. Williams, 14 N.Y.3d 198 (2010), defendant grounded his motion in double jeopardy principles; because he had been conditionally released from prison before he was resentenced, and because Williams purportedly “established a bright-line rule that forbids adding post-release supervision to a defendant’s sentence once the defendant has been released from prison and the People's time to appeal the sentence has expired,” he argued that his sentence should be vacated (see Defendant’s March 31, 2010, Motion to Set Aside the Sentence, Affirmation of Mark W. Zeno, ¶¶ 2, 9-13; A. 94-97; Defendant’s April 20, 2010, Reply Memorandum of Law; A. 124-130; Defendant’s April 27, 2010, Supplemental Memorandum of Law; A. 131-76). The People opposed the motion, arguing that PRS had been validly imposed because Williams should be interpreted to mean that imposition of PRS was barred only if 11 the defendant’s sentence of incarceration had reached its maximum expiration date (see People’s April 13, 2010, Opposition to Defendant’s Motion to Set Aside the Sentence, memorandum of law, pp. 3-4; A. 109-10; People’s April 28, 2010, Reply Affirmation in Opposition; A. 177-81; People’s May 3, 2010, Supplemental Affirmation in Opposition; A. 182-87). Defendant’s interpretation of Williams would be soundly rejected by this Court in People v. Lingle, 16 N.Y.3d 621 (2011). In Lingle, this Court unambiguously held that “an expectation of finality arises for purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts any appeal taken . . . ” Lingle, 16 N.Y3d at 630 (emphasis in original, citation omitted). This Court explicitly stated that its decision was consistent with People v. Williams, 14 N.Y.3d 198 (2010), a case in which the defendants could not be resentenced to include a period of PRS because they “had all completed their sentences (including any discharge on conditional release).” Id. (emphasis added). As to the class of defendants at bar in Lingle, because “the State’s action was not subjectively or standardlessly directed at particular individuals,” this Court also held that resentencing the defendants to include PRS before their maximum expiration date did not violate substantive due process. Id., at 632-33. Nonetheless, at the time defendant’s motion was pending, Lingle had yet to be decided, and defendant convinced the nisi prius court to erroneously grant his 12 motion. On May 28, 2010, by an Amended Order, and on June 8, 2010, by an Order, the court granted defendant’s CPL § 440.20 motion to set aside his June 18, 2008, sentence; the court then resentenced him to a determinate term of ten-years imprisonment without post-release supervision for his first-degree robbery conviction, imposing its sentence nunc pro tunc to September 26, 2001. Subsequently, on April 28, 2011, this Court decided Lingle. Seeking redress, the People filed a timely notice of appeal and perfected the appeal by filing a brief in June 2011. On October 4, 2012, however, the Appellate Division, despite the Lingle’s decision, failed to correct the lower court’s decision and, in fact, compounded the error by establishing a misapprehended rule with far-reaching implications. Though acknowledging that defendant’s 2010 resentence without PRS was illegal, the court sua sponte dismissed the People’s appeal on the grounds that this Court’s decision in People v. Velez, 19 N.Y.3d 642 (2012), erected a double jeopardy bar to the reinstatement of the lawful sentence imposed on June 8, 2010. The court held that “[d]efendant has a reasonable expectation of finality in his sentence, and a term of PRS cannot now be added because the maximum expiration date of his sentence passed several years ago.” Cintron, 99 A.D.3d at 441. The precedent cited by the Appellate Division to support its ruling was Velez. 13 The instant decision from the First Department, and similar precedent from the Second Department (People v. Allen, 88 A.D.3d 735 [2d Dept. 2011]),6 represents the current state of the law in New York; a People’s appeal will be dismissed if the illegal sentence appealed from has been completed before the appeal is decided.7 The enormous, and perhaps unintended, impact of the decisions of the First and Second Departments is illustrated by a simple hypothetical. Suppose that a trial court, in contravention of a law that required the imposition of a minimum sentence of one year incarceration (see, e.g., Penal Law § 70.70[2][a][i]), vacated a lawfully-imposed one-year sentence and imposed a sentence of sixty days in jail because of a mistaken belief that the prior sentence violated the Eighth Amendment. Under the rule established by the First and Second Departments, any timely appeal by the People would have to be dismissed if the defendant served the sixty days prior to completion of the appeals process. With regard to the People’s statutory ability to challenge the vacatur of a lawful 6 In Allen, the Second Department held that it was “beyond the Court’s power to grant” the People’s request that it reverse an erroneous vacatur of the defendant’s resentence (imposing post- release supervision after the defendant was conditionally released) and “remit the matter to that court for the imposition of a period of PRS.” People v. Allen, 88 A.D.3d 735, 735-736 (2d Dept. 2011). At the time of the pendency of the appeal, the “maximum expiration date of the defendant’s original sentence ha[d] passed . . . .” Id. at 736. 7 Because no other Appellate Division has decided this question, the First and Second Department rulings control all lower courts in this state. See Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 665 (2d Dept. 1984). 14 sentence and the imposition of an illegal sentence, this rule, which constitutes a misapplication of this Court’s double jeopardy precedent, cannot stand. In federal law, it is axiomatic that, “when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.” U.S. v. Wilson, 420 U.S. 332, 352-53 (1975). Moreover, in the context of sentencing, “[t]he double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence.” U.S. v. DiFrancesco, 449 U.S. 117, 136 (1980). Indeed, DiFrancesco noted: “[t]he defendant, of course, is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired.” Id.; see also U.S. v. Rico, 902 F.2d 1065, 1068-69 (2d Cir. 1990)(“The government has the statutory right to appeal certain sentences, specifically those below the Sentencing Guidelines . . . .”)(internal citations omitted), cert. denied sub nom, 498 U.S. 943 (1990). Similarly, in New York, this Court upheld the People’s invocation of appeal against the claim that such appeal violates the defendant’s double jeopardy rights. See People v. Minaya, 54 N.Y.2d 360, 365 (1981)(on a People’s appeal, the Court rejected the defendant’s attempt to distinguish DiFrancesco “on the ground that the defendant there had no expectation of finality because the Government was 15 expressly authorized by statute to challenge the sentence on appeal, while in this case there is no express statutory mechanism for correcting the error in the sentence.”). Turning to the logic espoused in the instant decision by the Appellate Division, that court held that, pursuant to Velez and Williams, “[a]lthough the People request reinstatement of the 2008 resentence, a term of PRS cannot now be added because . . . [t]o add this term . . . would violate [defendant’s] legitimate expectation of finality in his sentence . . . .” Cintron, 99 A.D.3d at 440 (citations omitted). Neither case, however, supports the Appellate Division’s holding. Velez does not stand for the double jeopardy proposition as stated by the court below given that this Court was dealing with a very different issue in that case. Velez, whose initial sentence did not include a period of PRS, was conditionally released at the time he received notice that he was a designated person pursuant to Correction Law § 601-d and resentencing proceedings had begun in order to, inter alia, obtain his original sentencing minutes. However, given the delay in procuring his minutes, the court was not able to resentence Velez to include a period of PRS until more than three months after the maximum expiration date of his original sentence had passed. Velez, 19 N.Y.3d at 646. Notwithstanding this fact, on appeal, the People argued, albeit unsuccessfully, that Velez’s resentence did not violate his constitutional rights 16 given that the resentencing proceedings had begun before his maximum expiration date even though he was actually resentenced after that date. Id., at 649-50. Unlike in Velez, the instant case does not require imposing a post-maximum- expiration-date new sentence. All that is required is reversal of the erroneous vacatur by means of the well-settled appellate remedy long codified and available to the People pursuant to CPL § 450.20(6)(“[a]n appeal to an intermediate appellate court may be taken as of right by the people from . . . [a]n order, entered pursuant to section 440.20, setting aside a sentence other than one of death”). Once the vacatur is reversed, defendant’s sentence reverts back to the lawful one imposed on June 18, 2008, well before defendant’s maximum expiration date of October 11, 2009. In Williams, this Court extensively analyzed the germane double jeopardy issues with regard to the resentencings imposing PRS. After a discussion of pertinent federal cases, this Court concluded:“the People are allowed to move to set aside or appeal a sentence on the ground that it is not authorized by law, which may delay final consideration of a case well beyond the one-year term specified in CPL 440.40.” Williams, 14 N.Y.3d at 217. In finding that, “[e]ven where a defendant’s sentence is illegal, there is a legitimate expectation of finality,” this Court specifically noted that such finality accrues “once the initial sentence has 17 been served and the direct appeal has been completed (or the time to appeal has expired).”8 Id. (emphasis added). This Court reaffirmed those principles in Lingle. That authority belies the idea that a defendant could have any expectation of finality in an illegal sentence that the government has timely appealed. A perusal of the point headings in Williams reveals that even the defendants there did not advocate such an idea. The defendant here, likewise, never advanced such an argument.9 This “failure” of advocacy is completely understandable because no 8 In his SSM papers, defendant, apparently, interprets the “time to appeal has expired” language to mean that the People are only assured an appeal from defendant’s original sentence; defendant faults the People for “not timely fil[ing] an appeal” from his original judgment, while congratulating himself that “[he] did.” He goes on to point out that “[t]he People made no complaint about the legality of [defendant’s] sentence . . until six years later” (defendant’s SSM papers, p. 16). Of course, defendant’s argument ignores the fact that, at the time defendant was originally sentenced, in September 2001, it was not, as a general matter, understood by courts, defense attorneys, and prosecutors that failure to pronounce the imposition of PRS at sentencing rendered a sentence illegal. This Court would not correct the widespread misunderstanding of the law until almost seven years later when it rendered its decisions in People v. Sparber, 10 N.Y.3d 457 (2008), and Matter of Garner v. NYS Dep’t of Corr. Svces., 10 N.Y.3d 358 (2008). Thus, despite defendant’s allusions that this Court must protect him from “potent instruments of oppression” that flow from the People’s pursuit of a legal appeal from his resentence in this case (defendant’s SSM papers, p. 15, n. 3), the People neither nefariously nor negligently failed to correct the illegality in defendant’s sentences shortly after he was sentenced in 2001; it was unknowable that error existed in the first instance at that time In any event, CPL § 450.20(6) provides a clear direct appellate remedy for the People to challenge defendant’s resentence, and nothing in Williams, or any other case, indicates that such remedy is not available here. 9 Defendant has, of course, since championed the Appellate Division’s conclusions. In his SSM papers, he asserts that “Williams and Velez are dispositive of the issue here” in that “[t]he People’s filing of a notice of appeal challenging the order that granted resentence is no different than the § 601-d notice the Court found insufficient to defeat defendant’s legitimate expectation of finality in Velez” (defendant’s SSM papers, p. 2). Defendant’s strained analogy fails to persuade. Correction Law § 601-d notice serves only to provide a defendant with notice that his current sentence, which was likely imposed years in the past, may be illegal and may require correction in the future after a proceeding where the defendant and the People may ultimately agree to a disposition anyway. In other words, the 601-d notice triggers only an uncertain and largely factual (continued...) 18 authority or rational line of reasoning would support such an exaggerated view of what the Double Jeopardy Clause bars. Moreover, the reasoning that defeats a defendant’s expectation of finality in those situations is even more compelling in the procedural scenario presented by this case, that is, one in which no resentencing need take place.10 In this regard, the People’s appeal here is no different than an appeal from the setting aside of a verdict. Indeed, in CPL § 330.30 cases, while double jeopardy precludes “the People from taking an appeal from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the 9 (...continued) exploration of a defendant’s current sentence that, according to Williams and Velez, does not, by itself, eliminate expectations of finality that can crystalize during the exploration period itself. By contrast, the People’s filing of a notice of appeal from an illegal resentence serves a completely different function and, accordingly, creates a different set of legal consequences in its wake. The filing of the notice of appeal serves to alert the defendant that, within the constraints of a statutorily-authorized appeal, the People are directly challenging a sentence on legal grounds by means of a highly circumscribed, time-sensitive action. The mechanism triggered is not an open- ended factual exploration wherein even the positions of the parties may not be immediately ascertained. Instead, the standard adversarial appellate process is set in motion, concluding with a decision of law from an appellate court. Such an appeal, of course, cannot be argued and decided instantaneously. As a practical matter, then, in order to guarantee that a timely appeal could result in a legal determination, it must be that the filing of the notice of appeal in this case froze the factual circumstances bearing on the question of double jeopardy and the Appellate Division’s conclusion that defendant’s expectation of finality did, nonetheless, crystalize during the pendency of the appeal was error. 10 Unlike appellants in Allen who “ask[ed the Appellate Division] to reverse the Supreme Court’s order and remit the matter to that court for the imposition of a period of PRS” (Allen, 88 A.D.3d at 735-36), here, the People simply ask this Court to vacate the trial court’s June 8, 2010, resentence, thereby reinstating the lower court’s June18, 2008, sentence. Since the June 18, 2008, sentence was imposed long before defendant had reached his maximum expiration date, and since no present “imposition” of anything is required, there is no Williams problem barring this Court from granting the People’s appeal. 19 defendant to stand retrial—or even if it would then be necessary for the trial court ‘to make supplemental findings,’” there is no bar where “there is available a determination of guilt which without more may be reinstated in the event of a reversal and remand.” People v. Brown, 40 N.Y.2d 381, 391 (1976); see also Wilson, 420 U.S. at 344-46. The reinstatement contemplated in a People’s appeal from the granting of a CPL § 330.30 motion is, therefore, analogous to the instant matter for double jeopardy purposes; here, if the instant People’s appeal is decided in the People’s favor, defendant does not need to be resentenced. As stated, the illegal sentence of June 8, 2010, would be vacated and his sentence would revert back to the lawful one imposed on June 18, 2008.11 There is no authority that 11 Defendant’s argument in his SSM papers that “[s]hould this Court grant the relief requested by appellant, . . . [defendant] would still be subject to the last sentence imposed unless and until he is resentenced” and that “[n]owhere does CPL § 470.20 authorize an increased sentence without resentencing” (defendant’s SSM papers, pp. 12-13) misconstrues the facts of this case and applicable law. As a threshold matter, vacating the illegal sentence in order to add the statutorily–required period of PRS does not “increase” the sentence. See Williams, 19 N.Y.3d at 217 (“Since criminal defendants are charged with knowledge of the relevant laws that apply to them [see e.g. United States v DiFrancesco, 449 US at 136], they are presumed to be aware that a determinate prison sentence without a term of PRS is illegal and, thus, may be corrected by the sentencing court at some point in the future [see generally People v Sparber, 10 NY3d at 471]”). Moreover, it remains that, if this Court orders that defendant’s 2010 resentence vacated, defendant’s sentence reverts back to the legal sentence imposed in 2008 without further modification. Since there would be no modification, no resentencing is necessary. The cases defendant cites for support, People v. Rodriguez, 18 N.Y.3d 667 (2012), and People v. Yannicelli, 40 N.Y.2d 598 (1976) (defendant’s SSM papers, p. 13) in which remittur for resentencing occurred for modification or to impose a sentence in legally acceptable manner, are plainly inapposite. Of pertinence, however, is this Court’s observation in Velez that “unnecessary resentencings might create problems in some contexts (cf. People v. Acevedo, 17 N.Y.3d 297, 299 [2011] [discussing the effect of resentencing on a “conviction’s utility as a predicate for enhanced sentencing” in other cases]).” Velez, 19 N.Y.3d at 651. Here, should this Court vacate defendant’s illegal 2010 resentence, subsequently resentencing defendant would indeed be unnecessary given the legal sentence imposed in 2008. 20 supports the proposition that such a result would violate the Double Jeopardy Clause. Regarding any lingering double jeopardy concerns, the procedural history of this case serves to dispell them. The People’s motion papers dated March 3, 2008, requested that defendant be resentenced to include the requisite five-year period of post-relief supervision while defendant was still imprisoned (see People’s March 3, 2008, Opposition to Defendant’s Pro Se Motion to Vacate the Judgment; A. 45). He was not conditionally released until May 5, 2008, and he did not reach his maximum expiration date until October 11, 2009. On June 18, 2008, before his maximum expiration date, defendant was resentenced. Yet, defendant did not move the court to vacate the resentence until March 31, 2010, long after his maximum expiration date. Plainly, as a result of moving the court at this late juncture, defendant waived any double jeopardy claim for the purposes of this appeal. It is clear that constitutional rights may be waived (see People ex rel. McLaughlin v. Board of Police Com’rs of Yonkers et al., 174 N.Y. 450, 456 [1903] [“It is well settled by authority that a man may waive any right that he has, whether secured to him by contract, conferred upon him by statute, or guarantied him by the Constitution”], particularly where no public policy or societal interests are involved. See Selzer v. Baker, 295 N.Y. 145, 149 (1946)(“As a general rule a 21 party may waive a statutory or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and cannot afterward invoke its protection”). It is also clear that double jeopardy claims may be waived, either expressly or impliedly (see People v. Muniz, 91 N.Y. 2d 570 [1998]; see also People v. Allen, 86 N.Y.2d 599, 601-602 [1995]), and that “no policy or societal interest requires us to place double jeopardy in a category with other nonwaivable defenses.” Allen, 86 N.Y.2d at 604. Indeed, defendants have, as a result of their litigation, waived double jeopardy. See, e.g., United States v. Goldstein, 479 F.2d 1061, 1067-68 (2d Cir. 1973)(where the defendants consent to a mistrial could be properly implied, they could not successfully argue double jeopardy); People v. Brown, 87 N.Y.2d 626, 630 (1996)(“when the defendant requests or consents to a mistrial, double jeopardy typically erects no barrier to a retrial”); Matter of Anderson v. Buchter, 19 A.D.3d 484, 485 (2d Dept. 2005)(where “the petitioner consented to the discharge of the jury at his first trial and to an adjournment of the trial date . . . [] he waived his claim that a retrial w[ould] subject him to double jeopardy”). Defendant should not be able to benefit from the delay caused by his own objection, an objection which, at the time it was filed (March 31, 2010), was non- meritorious. See Lingle, 16 N.Y.3d at 630-631. It would be unjust if the delay 22 sought by the defendant could now result in blocking the reimposition of a resentence that was entirely lawful at the time imposed. This Court should, therefore, hold that defendant cannot have an expectation of finality in an illegal sentence he brought about when the People have timely exercised their right to appeal. Given the dearth of justification for any other result, to hold otherwise, as the First and Second departments have done, would unfairly insulate a panoply of illegal sentences from appeal, frustrating penological goals and undermining clear statutory law. Accordingly, we respectfully ask this Court to reverse the Appellate Division’s decision and vacate the order resulting in the trial court’s June 8, 2010, resentence, thereby reinstating the lower court’s June 18, 2008, sentence that included a period of post-release supervision. 23 CONCLUSION FOR THE FOREGOING REASONS, THE APPELLATE DIVISION ORDER APPEALED FROM SHOULD BE REVERSED IN ALL RESPECTS AND DEFENDANT’S LAWFUL 2008 RESENTENCE MUST BE REINSTATED. Respectfully submitted, ROBERT T. JOHNSON District Attorney, Bronx County Attorney for Appellant ______________________________ By:JUSTIN J. BRAUN Assistant District Attorney JOSEPH N. FERDENZI JUSTIN J. BRAUN Assistant District Attorneys Of Counsel June 17, 2013 24