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 REPLY 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: August 28, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT DEFENDANT DID NOT HAVE A LEGITIMATE EXPECTATION OF FINALITY FROM HIS TIMELY-APPEALED ILLEGAL RESENTENCE, THIS COURT’S PRECEDENT SUPPORTS THAT CONCLUSION, AND THE APPELLATE DIVISION’S DECISION TO THE CONTRARY ERRONEOUSLY ELIMINATES THE PEOPLE’S ABILITY TO APPEAL AN ILLEGAL SENTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 TABLE OF AUTHORITIES Page CASES People v. Somerville, 3 Misc.3d 593, 2004 N.Y Slip Op. 24031 (Sup. Ct. Kings Co. 2004), aff’d, 33 A.D.3d 733 (2d Dept. 2006), lv. denied, 8 N.Y.3d 950 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Sparber, 10 N.Y.3d 457 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Williams, 14 N.Y.3d 198 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 5 Pirro v. Angiolillo, 89 N.Y.2d 351 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 United States v. Bello, 767 F.2d 1065 (4th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . 6 United States v. Bryce, 287 F.3d 249 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . 6 United States v. DiFrancesco, 449 U.S. 117 (1980) . . . . . . . . . . . . . . . . . . . . . . 2, 3 United States v. Murray, 144 F.3d 270 (3rd Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 6 United States v. Shue, 825 F.2d 1111 (7th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . 6 STATUTES CIVIL PRACTICE LAW AND RULES ARTICLE 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CRIMINAL PROCEDURE LAW § 440.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CRIMINAL PROCEDURE LAW § 450.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CRIMINAL PROCEDURE LAW § 450.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CRIMINAL PROCEDURE LAW § 450.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6 CRIMINAL PROCEDURE LAW § 470.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 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 REPLY BRIEF STATEMENT Appellant submits this brief in reply to the brief filed by counsel for defendant-respondent Angel Cintron. THE FACTS The facts can be found on pp. 2-10 of appellant's original brief filed with this Court.1 1 In defendant’s statement of facts in his respondent’s brief, he mistakenly states that the People did not include his March 31, 2010, Motion to Set Aside the Sentence in the Appellant’s Appendix (respondent’s brief, p. 5, n. 2); a copy of that motion can be found in Appellant’s Appendix on pages A. 93-102. ARGUMENT DEFENDANT DID NOT HAVE A LEGITIMATE EXPECTATION OF FINALITY FROM HIS TIMELY-APPEALED ILLEGAL RESENTENCE, THIS COURT’S PRECEDENT SUPPORTS THAT CONCLUSION, AND THE APPELLATE DIVISION’S DECISION TO THE CONTRARY ERRONEOUSLY ELIMINATES THE PEOPLE’S ABILITY TO APPEAL AN ILLEGAL SENTENCE. Defendant’s reply boils down to the following argument: defendant’s expectation of finality crystalized at the moment he reached the maximum expiration date of his illegal sentence (even though the People’s appeal of that sentence was timely and pending) because the instant appeal is not a “direct appeal” and, therefore, this Court’s precedent in People v. Williams, 14 N.Y3d 198 (2010), forbids the People from “reviv[ing] [appellant’s] long-since-expired right to challenge the sentence, regardless of whether defendant has completed it” (respondent’s brief, p. 7, 19). Defendant’s argument does not withstand scrutiny. As United States v. DiFrancesco, 449 U.S.117, 136 (1980), involving a federal prosecutor’s appeal from a sentence, teaches: [T]he basic design of the double jeopardy provision, that is, as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution’s statutorily granted right to review a sentence. This limited appeal does not involve a retrial on the basic issue of guilt or 2 innocence. . . . The 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. To be sure, the appeal may prolong the period of any anxiety that may exist, but it does so only for the finite period provided by the statute. Id. In People v. Williams, 14 N.Y.3d 198 (2010), this Court, noting, inter alia, DiFrancesco, found that “[e]ven where a defendant’s sentence is illegal, there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired).” Williams, 14 N.Y3d at 217 (emphasis added).2 There is no question, then, that a timely direct appeal of an illegal sentence does not run afoul of double jeopardy protections and the People are, thus, entitled to seek redress of an illegal sentence by means of a timely statutorily-authorized appeal. Faced with these well-settled principles, defendant attempts a legal slight-of- hand by baldly claiming that the instant appeal is not, in fact, a “direct appeal” as identified in Williams. He argues by allusion that, in that case, this Court intended to establish the rule that the People could only seek redress from defendant’s originally-imposed sentence and not his subsequent illegal resentence without offending double jeopardy principles and “reviv[ing]” a “long-since-expired right 2 To the extent defendant claims that the People seek “to revisit Williams or to depart from it with an exception” (respondent’s brief, p. 9), defendant misconstrues our argument; indeed, the People rely on the Williams holding to show that defendant’s double jeopardy arguments are unavailing under the law announced by this Court. 3 to challenge the sentence” (respondent’s brief, p. 19-20). Nothing in Williams supports defendant’s novel reading and, in fact, applicable law as embodied both in the relevant cases and in statute demonstrate that the instant appeal is exactly the kind of “direct appeal” contemplated by Williams. Pursuant to CPL §§ 450.20(4) and (6) the People are permitted to appeal “[a] sentence other than one of death” and/or “[a]n order[] entered pursuant to [CPL] section 440.20” to an intermediate appellate court as of right. As elaborated by CPL § 450.30(3), “[a]n appeal from a sentence, within the meaning of this section and sections 450.10 and 450.20, means an appeal from either the sentence originally imposed or from a resentence following an order vacating the original sentence” (emphasis added). Notably, these statutes fail to distinguish, as defendant attempts to do, between a People’s appeal from an initial sentence, what defendant would label a “direct appeal,” and a subsequent resentence, what defendant would categorize as some other type of as yet unidentified appeal. Plainly, in statutory law, defendant’s semantic machination is unsupported. It remains so under the precedent of this Court as well. In regard to whether an appeal from a resentence constitutes a “direct appeal,” this Court’s word-choice in Pirro v. Angiolillo, 89 N.Y.2d 351 (1996), is instructive. The procedural history of Pirro v. Angiolillo case is as follows: (i) defendant Bryan Cohen and the Westchester County Department of Probation moved post-sentence to modify the 4 terms and conditions of Cohen’s probation; (ii) the People opposed the motion and argued that the sentencing court was prohibited from changing the sentence; (iii) the nisi prius court rejected the People’s arguments, ordered Cohen released from jail with home confinement and electronic monitoring; (iv) the People “took a direct appeal, purportedly under CPL 450.30(3)” and brought a CPLR article 78 proceeding prohibiting the enforcement of the lower court’s order; (v) the Appellate Division, Second Department, rejected both the People’s direct appeal of the resentence and their petition for article 78 relief; and (iv) leave was granted to this Court solely to review the rejection of the petition. Id. at 354-355 (emphasis added). In its analysis of the pertinent issues, this Court held: “CPL § 450.30(3), the provision petitioner cited as the predicate for the People’s direct appeal in People v. Cohen, is available only where the trial court has vacated a sentence for legal invalidity (see, CPL 450.30[2], [3]). It has no application where, as here, a concededly legal sentence has been altered on purely discretionary grounds” Id., at 359 (emphasis added). Thus, as Pirro v. Angiolillo makes plain, a People’s appeal from sentence or resentence, as authorized by CPL § 450.30(3), et. al, constitutes a “direct appeal,” the same as that discussed in Williams. Accordingly, because defendant had been legally sentenced on June 18, 2008, to include the requisite five-year period of post-relief supervision while he was still imprisoned, he did not move the court to 5 vacate that sentence until March 31, 2010 (long after his maximum expiration date), and the court erroneously resentenced him on June 8, 2010, to a determinate term of ten years incarceration without any period of PRS, the People are entitled to have their direct appeal of the 2010 resentence decided on the merits by the intermediate appellate court and such a direct appeal does not violate defendant’s double jeopardy rights.3 The Appellate Division’s dismissal of the instant appeal was, therefore, erroneous, and the 2010 resentence must now be vacated by this Court. Given defendant’s novel “direct appeal” argument, it is clear that such action is necessary to uphold the People’s appellate rights to correct an illegal sentence and to prevent the Appellate Division’s decision from casting doubt as to meaning of CPL § 450.30. Finally, as noted in our initial submission to this Court, reversal of the nisi prius court’s 2010 vacatur would result in defendant’s sentence reverting back the sentence that was lawfully-imposed in 2008. Therefore, despite defendant’s 3 See People v. Somerville, 3 Misc.3d 593, 606, 2004 N.Y. Slip Op. 24031 at *8 (Sup. Ct. Kings Co. 2004)(“where a defendant seeks to vacate his sentence, he has in effect waived his ‘expectation of finality’ in the sentence (United States v Bryce, 287 F3d 249, 256 [2002]; United States v Murray, 144 F3d 270, 275-279 [1998]; United States v Shue, 825 F2d 1111, 1115 [1987]; United States v Bello, 767 F2d 1065, 1070 [1985]). Once the defendant seeks to nullify the sentence, he cannot later complain that he had an ‘expectation of finality’ in that which he sought to nullify (id.).”), aff’d, 33 A.D.3d 733 (2d Dept. 2006), lv. denied, 8 N.Y.3d 950 (2007). 6 protestations to the contrary, no resentencing (respondent’s brief, pp. 23-24) would be necessary in this case. Defendant seems to concede as much in arguing “[s]hould this Court grant the relief requested by appellant, i.e. ‘reversal of the erroneous vacatur,’ respondent would still be subject to the last sentence imposed . . .” (id., p. 23). The last sentence imposed, of course, was that imposed by the court in 2008. Defendant’s concern that a “harsher” sentence would be “imposed” now by “[a]n appellate court” (respondent’s brief, p. 24) is simply misplaced - no further corrective action need be taken by any court once the 2010 resentence is vacated.4 4 Defendant’s insistence that he would have to be resentenced pursuant to CPL § 470.20 and People v. Sparber, 10 N.Y.3d 457 (2008), if this Court reverses (respondent’s brief, p. 24) is unwarranted. In fact, CPL § 470.20 offers appellate courts wide latitude in fashioning remedies to correct particularized injustices: “[u]pon reversing or modifying a judgment, sentence or order of a criminal court, an intermediate appellate court must take or direct such corrective action as is necessary and appropriate both to rectify any injustice to the appellant resulting from the error or defect which is the subject of the reversal or modification and to protect the rights of the respondent.” Here, of course, the “necessary and appropriate” corrective action is to vacate the illegal resentence and allow defendant’s sentence to revert back his lawful 2008 sentence, which also protects respondent’s due process rights since no resentencing would take place. Sparber does not mandate a resentencing in these circumstances. In Sparber, the illegal sentences in question were original, so vacatur alone of those sentences would have left the defendants without any sentences at all; therefore, vacatur without resentencing would have been insufficient corrective action to resolve the illegalities. In this case, by contrast, if the 2010 resentence is vacated, reversion to a legal sentence would result and, therefore, the Sparber remedy is inapposite and unnecessary. 7 CONCLUSION FOR THE FOREGOING REASONS, THE 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 August 28, 2013 8