The People, Appellant,v.Angel Cintron, Respondent.

Brief

N.Y.February 11, 2014

To be argued by MARK W. ZENO (10 Minutes) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - ANGEL CINTRON, Defendant-Respondent. DEFENDANT-RESPONDENT’S BRIEF Robert S. Dean Attorney for Defendant-Respondent Center for Appellate Litigation 74 Trinity Place New York, NY 10006 (212) 577-2523 mzeno@cfal.org MARK W. ZENO Of Counsel August 16, 2013 TABLE OF CONTENTS TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Original Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The First Change of Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Second Change of Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The People’s Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Because Respondent Completed His Sentence More than Three Years Ago, and His Direct Appeal More than Nine Years Ago, It Would Violate Double Jeopardy to Add Post-Release Supervision to His Sentence Now, Even though the Court Erroneously Vacated Post-Release Supervision from His Sentence Three Years Ago, and the People Filed a Notice of Appeal from That Resentence. US Const., Amends. V, XIV., NY Const. Art. I, §6; People v. Williams, 14 N.Y.3d 198, 217, cert. denied 562 U.S. _, 131 S.Ct. 125 (2010). . . . . . . . . . . . 7 A. This Court Should Not Revise the Williams Rule.. . . . . . . . . . . . . . . 10 1. That CPL §450.20(6) Offers the People a Procedural Mechanism for Challenging the Resentence Does Not Distinguish this Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 i 2. That Respondent Was Once Subject to Post-Release Supervision Does Not Distinguish Him from Velez or the Williams Defendants.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3. That Respondent Received a Notice of Appeal Rather than a Correction Law §601-d Notice Does Not Distinguish Him from Velez or the Williams Defendants.. . . 15 4. Society’s Interest in Requiring Respondent to Serve Post- Release Supervision Is Not Different than Its Interests in Requiring Velez or the Williams Defendants to Serve Post- Release Supervision.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 B. Increasing Respondent’s Sentence to Include Post-Release Supervision Would Violate the Williams Rule Regardless of Whether a Resentencing Is Necessary... . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 ii TABLE OF AUTHORITIES Cases Hill v. United States ex rel. Wampler, 298 U.S. 460 (1936). .......................................... 23 People v. Allen, 88 A.D.3d 735 (2d Dep’t 2011). ........................................... 6, 8, 22, 27 People v. Brinson, _ N.Y.3d _, 2013 Slip Op. 04758 (June 26, 2013). .......................... 8 People v. Brown, 40 N.Y.2d 381 (1976).................................................................... 26, 27 People v. Lingle, 16 N.Y.3d 621 (2011).................................................................. 8, 9, 16 People v. Rodriguez, 60 A.D.3d 452 (1st Dep’t 2009). .................................................. 13 People v. Velez, 19 N.Y.3d 642 (2012). .................................................................... passim People v. Williams, 14 N.Y.3d 198. ........................................................................... passim People v. Yannicelli, 40 N.Y.2d 598 (1976). ................................................................... 25 State v. Schubert, 212 N.J. 295 (2012). .............................................................................. 9 United States v. DiFrancesco, 449 U.S. 117 (1980). .................................................. 20, 21 United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). ................................... 10 United States v. Wilson, 420 U.S. 332 (1975)................................................................. 26 Statutes Correction Law §601-d. ........................................................................................... passim CPL §440.20. ..................................................................................................................... 1 CPL §440.40(1). ............................................................................................................. 19 CPL §450.20(6). ......................................................................................................... 1, 12 iii CPL §460.10(1)(a).......................................................................................................... 18 CPL §470.20. ............................................................................................................ 24, 25 CPL §470.40(1). ............................................................................................................. 24 CPL §380.20. ...................................................................................................... 22, 23, 25 CPL §380.40(1). ................................................................................................. 22, 23, 25 iv COURT OF APPEALS STATE OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : ANGEL CINTRON, : Defendant-Respondent. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X PRELIMINARY STATEMENT By permission of Associate Judge Victoria A. Graffeo, granted on December 21, 2012, the People appeal from an October 4, 2012 order of the Appellate Division, First Department, dismissing the People’s appeal from an order and an amended order granting defendant’s CPL §440.20 motion to set aside a June 18, 2008 resentence. QUESTION PRESENTED Whether, because respondent completed his sentence more than three years ago, and his direct appeal more than nine years ago, it would violate double jeopardy to add post-release supervision to his sentence now, even though the People filed a notice of appeal from the court’s resentence that erroneously vacated post-release supervision. 1 SUMMARY OF ARGUMENT In People v. Williams, this Court held 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).” When the defendant reaches these milestones, “the sentences are beyond the court’s authority and an additional term of PRS may not be imposed.” People v. Williams, 14 N.Y.3d 198, 217, cert. denied 562 U.S. _, 131 S.Ct. 125 (2010). In People v. Velez, the Court underscored that Williams created a bright-line rule, and that no amount of prior notice to defendant that his sentence was illegal and subject to challenge diminished the finality that accrued upon defendant’s completion of sentence and the direct appeal: even the commencement of a Correction Law §601-d proceeding for the express purpose of correcting an illegal PRS-free sentence did not defer the defendant’s “legitimate expectation” of finality. 19 N.Y. 642, 649-50 (2012). Williams and Velez are dispositive of the issue here. Mr. Cintron is protected from any imposition (or reimposition) of post-release supervision because he has completed his sentence, and his direct appeal of the conviction and sentence has been completed. A defendant’s legitimate expectation of finality vests once his appeal is exhausted and his sentence is served, regardless of whether a statutorily authorized challenge to that sentence is underway. The People’s filing of a notice 2 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. A defendant can have a legitimate expectation of finality in a sentence he knows to be illegal and under challenge. The People ask this Court to revise the Williams rule or create an exception to it, but offer recycled justifications: most were considered and rejected as inadequate to defeat defendants’ finality interest in Williams and Velez. Respondent’s fresh offerings do not withstand even minimal scrutiny. The order of the Appellate Division should be affirmed. STATEMENT OF FACTS The Original Sentencing Respondent was convicted after trial of first- and third-degree robbery, and petit larceny. He was sentenced, as a second felony offender, to concurrent prison terms of 10 years, 3½ to 7 years, and one year. No post-release supervision was imposed (A.29-30). Respondent’s direct appeal concluded more than nine years1 ago. On April 27, 2004, the Appellate Division, First Department affirmed respondent’s conviction and sentence, finding “no basis for reducing the sentence.” 6 A.D.3d 338. This Court denied leave to appeal on July 21, 2004. 3 N.Y.3d 657. Numbers in parentheses preceded by “A” refer to pages of Appellant’s Appendix.1 3 The First Change of Sentence By motion dated November 29, 2007, respondent moved pro se to vacate his conviction on an erroneous ground: even though he’d been convicted after trial, he raised a Catu claim, mistakenly alleging that his guilty plea was involuntary because he had not been told that his sentence would include a period of post- release supervision (A.36-39). The People responded in papers dated March 3, 2008. They correctly noted that respondent’s claim did not lie: because respondent had not pleaded guilty, his guilty plea could not be involuntary. The People did, however, request that respondent “be brought before [the court] ... so that it may re-sentence defendant to the same determinate sentence and impose the requisite five-year period of post-release supervision in order to satisfy due process concerns” (A. 43-46). Respondent was conditionally released to parole on May 5, 2008 (Appellant’s Brief in the Appellate Division at 6). In a decision and order dated May 12, 2008, the court denied respondent’s motion to vacate his conviction, but stated that it “had neglected to impose the statutorily mandated 5-year period of post-release supervision” at sentencing (A.62). The court vacated respondent’s sentence so that it could “correct his illegal sentence to include the mandatory 5 year period of post-release supervision” (id). 4 On June 18, 2008, the court vacated respondent’s “entire sentence,” as well as the “administratively imposed five years post-release supervision period,” and reimposed the same 10-year, 3½-to-7-year, and one-year sentences it had previously imposed, but added “five years post-release supervision on” respondent’s sentence for first-degree robbery (A.68-70). On December 8, 2009, Mr. Cintron reached what would have been the maximum expiration date of the 10-year sentence. The Second Change of Sentence By motion dated March 31, 2010, respondent sought to vacate his post- release supervision, arguing that it had been illegally imposed, in reliance on People v. Williams, which had been decided a month earlier on February 23, 2010. The2 People opposed, arguing that although respondent had been conditionally released before he was resentenced, he had not yet completed his sentence. According to the People’s reading of Williams, a defendant could lawfully be resentenced so long as he had not reached the maximum expiration of his sentence (A.110). Since Mr. Cintron’s sentence had not yet expired, it had been lawful to resentence him (id). Defendant’s motion has been omitted from People’s Appendix.2 5 In a decision dated May 28, 2010, the court granted respondent’s motion3 to vacate the resentence that included post-release supervision, stating that, “it was error to resentence defendant after his release from incarceration, when he had an expectation of finality in the court’s original sentence” (A.195). On June 8, 2010, with respondent present in the courtroom, the court vacated the resentence on the first-degree robbery that had imposed 5 years’ post-release supervision, and resentenced respondent on the first-degree robbery to a 10-year determinate sentence with no post-release supervision (A.197-98; attached as exhibit B, at 2-3). The People’s Appeal The People filed a notice of appeal from the May 28, 2010 order that granted respondent’s motion to vacate his 2008 resentence (A.201). A year later, on June 13, 2011, the People perfected their appeal. After argument, the Appellate Division, First Department dismissed the People’s appeal (A.205-08). Citing the Second Department’s decision in People v. Allen, 88 A.D.3d 735 (2011), and this Court’s decision in People v. Velez, 19 N.Y.3d 642 (2012), the court held that, even though the People were correct that supreme court should not have vacated the term of PRS, because respondent “was still on In a decision and order dated May 26, 2010, the court had ordered the same3 relief. That order was amended on May 28, 2010, to correct a typographical error. The People also filed a notice of appeal from the amernded order (A.203) 6 conditional release at the time of the [prior] resentencing,” PRS could not be reimposed: Although the People request reinstatement of the 2008 resentence, a term of PRS cannot now be added because the maximum expiration date of defendant’s sentence has passed. To add this term to his sentence would violate his legitimate expectation of finality in his sentence, which has been fully served (A.206). Because the Appellate Division did not have the power to grant the relief requested by the People, it dismissed the appeal as academic (id. at 207-08). ARGUMENT BECAUSE RESPONDENT COMPLETED HIS SENTENCE MORE THAN THREE YEARS AGO, AND HIS DIRECT APPEAL MORE THAN NINE YEARS AGO, IT WOULD VIOLATE DOUBLE JEOPARDY TO ADD POST-RELEASE SUPERVISION TO HIS SENTENCE NOW, EVEN THOUGH THE COURT ERRONEOUSLY VACATED POST-RELEASE SUPERVISION FROM HIS SENTENCE THREE YEARS AGO, AND THE PEOPLE FILED A NOTICE OF APPEAL FROM THAT RESENTENCE. US CONST., AMENDS. V, XIV., NY CONST. ART. I, §6; PEOPLE V. WILLIAMS, 14 N.Y.3D 198, 217, CERT. DENIED 562 U.S. _, 131 S.CT. 125 (2010). Appellant asks this Court to revise the Williams rule. Williams held 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).” Appellant argues that, even if defendant has fully served his sentence, his direct appeal has been completed, and the People’s time to appeal the original PRS-free sentence has expired, any sentence correction that follows a resentence should not be barred by double 7 jeopardy. The People’s statutory right to appeal from a resentence, they contend, trumps defendant’s double jeopardy right not to be subjected to an increased sentence after his sentence has been fully served and his direct appeal has been completed. Agreeing with the Department’s decision in People v. Allen, 88 A.D.3d 735 (2011), the First Department here found Williams controlling and dismissed appellant’s appeal: under the plain language of Williams and Velez, post-release supervision cannot now be added to respondent’s sentence, because he has fully served his ten-year sentence (its maximum expiration passed more than three years ago), completed his direct appeal, and the People’s time to challenge the legality of that sentence expired more than a decade ago. People v. Williams, 14 N.Y.3d 198, 217, cert. denied 562 U.S. _, 131 S.Ct. 125 (2010); People v. Velez, 19 N.Y.3d 642, 650 (2012); see, People v. Brinson, _ N.Y.3d _, 2013 Slip Op. 04758 (June 26, 2013)(“The temporal limitation demarcation occurs once the sentence is served and the appeal is completed, or the time for such appeal has expired.”); People v. Lingle, 16 N.Y.3d 621, 630 (2011)((“[T]here 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 )” quoting Williams, 14 N.Y.3d at 217). In the three years since this Court decided Williams, it has twice been asked to revisit its rule: in Lingle, by a group of defendants, and in Velez, by the People. 8 Each time the Court has declined, citing the need for “clarity, certainty and fairness” in this area of law otherwise fraught with confusion and uncertainty. Velez, 19 N.Y.3d at 650, quoting People v. Lingle, 16 N.Y.3d 621, 631 (2011). Because the question of whether double jeopardy bars a sentence increase is a function of the defendant’s expectations about whether his sentence is final, the Williams rule was devised to identify “a clear point in time” after which the addition of post- release supervision is constitutionally forbidden. Velez, 19 N.Y.3d at 650. See, State v. Schubert, 212 N.J. 295, 309-14 (2012)(citing Williams and holding that, even though “an illegal sentence is correctable at any time,” double jeopardy forbid addition of supervision for life after sentence had been fully served, because it cannot “be said that defendant, at least by the time he was discharged from probation, did not have a legitimate expectation of finality in his sentence”). Yet appellant again asks this Court to revisit Williams’ bright-line rule. As discussed in Point A, post, the People identify no valid reason to revisit Williams or to depart from it with an exception. The reasons they do offer are either recycled ones this Court has already considered, or logically flawed. If a distinction can be drawn between respondent and the Williams and Velez defendants, it is that respondent has a more legitimate expectation of finality in his PRS-free sentence: whereas each of the Williams and Velez defendants were actually serving PRS when they appeared for resentencing, it has now been more 9 than three years since respondent stopped serving PRS when it was removed at a resentencing. As discussed in Point B, post, appellant’s alternate contention that Williams doesn’t apply because no resentencing would be necessary here misses the point: Williams does not bar resentences — it bars sentence increases — and a “reversal” of “the vacatur” as appellant calls it (App.Brf. at 17), would increase respondent’s sentence. In any event, even if the Williams rule forbids only increased sentences imposed at resentencings, it forbids reimposing post-release supervision here, because reimposing post-release supervision after a sentence that includes post-release supervision has been vacated and the defendant has been resentenced to a PRS-free sentence, requires resentencing. A. This Court Should Not Revise the William s Rule. The Williams sentence-correction proscription, like all double jeopardy limitations, is the product of an accommodation of competing interests. See, e.g., United States v. Martin Linen Supply Co., 430 U.S. 564, 568 (1977)(“now that Congress has removed the statutory limitations [on the government’s right to] appeal and the relevant inquiry turns on the reach of the Double Jeopardy Clause itself, it has become necessary to take a closer look at the policies underlying the Clause in order to determine more precisely the boundaries of the Government’s appeal rights in criminal cases” [internal quotations omitted]). On the one hand, it protects society’s interest in insuring that defendants are subject to lawful 10 sentences by allowing sentence corrections well beyond the one-year limit imposed on the People by the Criminal Procedure Law. Williams, 14 N.Y.3d at 217 (“Since criminal defendants are charged with knowledge of the relevant laws that apply to them ..., 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” [internal citations omitted]). On the other, it protects the legitimate interest of a defendant in the finality of his sentence by forbidding corrections to their detriment once the sentence has been fully served and the direct appeal completed. Id. (“Even 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)”). Appellant offers a variety of reasons for why the interests to be accommodated here are different than those previously considered and reflected in the Williams rule. Some, appellant contends, warrant departure from Williams because respondent herein had a lesser expectation of finality in his PRS-free sentence. Another warrants departure, in appellant’s view, because applying Williams under these circumstances would portend dire consequences for society, widely cutting off the People’s right to challenge illegal sentences. But all of those reasons have either been considered by this Court and are reflected in its Williams 11 rule and the Court’s subsequent adherence to that rule in People v. Velez, or do not withstand even minimal scrutiny. 1. That CPL §450.20(6) Offers the People a Procedural Mechanism for Challenging the Resentence Does Not Distinguish this Case. In Williams and Velez this Court held that the court had both statutory (by virtue of Correction Law §601-d) and inherent authority to correct the defendants’ sentences. Williams, 14 N.Y.3d at 212-13; Velez, 19 N.Y.3d at 647-49. Yet neither the court’s inherent or statutory right trumped defendants’ constitutionally protected legitimate expectation of finality. Williams, 14 N.Y.3d at 217-19; Velez, 19 N.Y.3d at 649-50. While the statutory provision authorizing review is different here, it reflects no different interests than those already considered. 2. That Respondent Was Once Subject to Post-Release Supervision Does Not Distinguish Him from Velez or the William s Defendants. Velez and each of the Williams defendants had been subject to post-release supervision when their sentences expired, albeit administratively by DOCCS, and their sentences were later “corrected” by the sentencing court to include post- release supervision, but this Court nonetheless concluded defendants had accrued legitimate expectations of finality in their PRS-free sentences that forbid adding back PRS to them. 12 Defendant Rodriguez, for example, was in custody serving time for a violation of DOCCS-imposed post-release supervision at the time his determinate sentence expired. Rodriguez’s ongoing imprisonment — as his original maximum expiration date came and went — was actual notice that his illegal sentence had already been corrected. 14 N.Y.3d at 212. When Rodriguez challenged his post- release supervision in supreme court, the court concluded that it had the power to correct his sentence to include PRS, even though he had reached the maximum expiration of his sentence, and corrected it in open court in defendant’s presence. Id. When Rodriguez challenged the inclusion of PRS in his sentence on appeal, the First Department found that his sentence had been lawfully corrected to include PRS. People v. Rodriguez, 60 A.D.3d 452 (2009)(“[t]he court clearly acted under the authority granted to it by the Legislature,” the First Department held, when it “corrected” Rodriguez’s sentence to include PRS). When his case was argued before this Court, Rodriguez had been continuously subject to post-release supervision since his release from prison years earlier — first administratively imposed, then court imposed, and then affirmed by the Appellate Division. Rodriguez had every reason to believe that his sentence had already been legally and finally corrected. Yet this Court found that Rodriguez accrued a legitimate expectation of finality in the earlier sentence. 13 Defendant Velez was not only subject to an administratively imposed term of post-release supervision when he reached the maximum expiration of his determinate sentence, but he was in the midst of a Correction Law §601-d proceeding to correct that sentence. 19 N.Y.3d at 646. He remained subject to administratively imposed post-release supervision until supreme court “corrected” his sentence to include PRS. Id. He then remained subject to post-release supervision through his appeal, until the Appellate Division reversed, and this Court affirmed, finding that a challenge to a PRS-free sentence –- even while defendant is continuously on PRS — “cannot affect” a defendant’s “legitimate expectation” that his PRS-free sentence is final, “because under the theory of Williams a defendant can have such an expectation even when he knows of the defect in his original sentence.” Velez, 19 N.Y.3d at 650. If there is a hierarchy of types of notice that would defeat an offender’s expectation of finality in an illegal sentence, then the notice confronting Rodriguez and Velez trumps the notice confronted by respondent here. Rodriguez had been imprisoned following sentence correction by DOCCS, had that sentence corrected by a court to include PRS, and that correction had been affirmed on appeal by the Appellate Division. Velez had his sentence administratively corrected to include PRS by DOCCS, had a §601-d proceeding commenced to judicially confirm DOCCS’s administrative correction of that sentence before his 14 sentence expired, and that proceeding had concluded with supreme court correcting his sentence to include PRS. But this Court still found that Rodriguez and Velez had legitimate expectations of finality in their original PRS-free sentences because of the “temporal limitation” imposed by the Williams rule: their sentences could not be corrected to include PRS because their direct appeals had been concluded and their sentences fully served. That respondent here was once on post-release supervision does not distinguish him from Velez or the Williams defendants. 3. That Respondent Received a Notice of Appeal Rather than a Correction Law §601-d Notice Does Not Distinguish Him from Velez or theWilliam s Defendants. Appellant attempts to distinguish a notice of appeal from a Correction Law §601-d notice because, he offers, a “601-d notice triggers only an uncertain and largely factual exploration of a defendant’s current sentence,” and, in contrast, an appeal is “a highly circumscribed, time sensitive action” and not an “open-ended factual exploration” (App.Brf. at 18-19, n. 9). By appellant’s reckoning, the uncertainty triggered by a notice of appeal is materially distinguishable from the effects of a §601-d notice. He argues that, while the focused and time-sensitive nature of an appeal defeats a defendant’s legitimate expectation of finality, a §601-d notice does not. 15 Appellant’s distinctions do not withstand analysis; he appears to have it backwards. By statute, a §601-d proceeding can and should be completed within 40 days. Velez, 19 N.Y.3d at 648-49. A notice of appeal need not even be filed until 30 days after a resentencing, and triggers a process that lasts years; the notices of appeal here were filed more than three years ago (appellant did not file his Appellate Division brief until a year after his notice of appeal). A §601-d proceeding resolves on the single record-based question of whether the sentencing court imposed post release supervision— if the court imposed post-release supervision, no action is necessary; if the court did not, then the court must impose the mandated term. Lingle, 16 N.Y.3d at 634 (“[t]he sole remedy” for a Sparber error it to “remit for a resentencing so that the judge can make the required pronouncement”); Velez, 19 N.Y.3d at 650 (where record of sentence is unavailable, court can impose PRS anyway, because, “if it turns out the resentencing was unnecessary, little harm will be done” ). An appeal following a post-release supervision resentencing can involve diverse and complicated factual and legal issues with unpredictable results. See, e.g., Williams, 14 N.Y.3d 198 (reversing four Appellate Division resentence affirmances, and affirming the dismissal of an Article 78 petition challenging the court’s authority to resentence); Lingle, 16 N.Y.3d 621 (affirming five Appellate Division resentence affirmances, and reversing an Appellate Division reversal of a resentence). 16 Measured from the defendant’s perspective, it cannot be said that the notice of appeal from the resentence which eliminated PRS here cast any more uncertainty on the defendant’s PRS-free sentence than, for example, the §601-d notice calling for reexamination of defendant Velez’s PRS-free sentence. Appellant’s argument that a defendant cannot have a legitimate expectation of finality in an illegal sentence when the People have appealed from an order vacating a sentence that included PRS, is not distinguishable from the notice argument rejected in Williams and Velez. 4. Society’s Interest in Requiring Respondent to Serve Post- Release Supervision Is Not Different than Its Interests in Requiring Velez or the William s Defendants to Serve Post- Release Supervision. Appellant also contends that society’s interest in protecting the People’s right to add PRS to respondent’s sentence is distinguishable from its interest in insuring that the Williams or Velez defendants served post-release supervision. Appellant insists that the First and Second Department’s decisions here and in Allen portend “enormous... unintended” consequences, by foreclosing “timely appeal[s]” of illegal sentences by the People if those appeals are not completed before the defendant has completed his illegal sentence (App.Brf. at 14). Appellant’s fears are unwarranted. Appellant is correct insofar as he notes that the Williams rule’s application of the Double Jeopardy Clause limits relief that would otherwise be available to the People. But every application of the Clause 17 limits the People’s power to prosecute and punish, and Williams already balanced the competing interest of a defendant in the finality of his sentence and that state’s interest in insuring that defendants are subject to legal sentences. There is no danger that a timely filed challenge to a sentence will be dismissed if it does not reach its conclusion before the defendant completes his sentence, because the Williams rule does not apply to timely filed challenges to sentences. Williams applies only if “the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired).” Williams, 14 N.Y.3d at 217. Appellant’s hypothetical proof of his position — that a timely taken People’s appeal of an illegal 60-day sentence “would have to be dismissed if the defendant served the sixty days prior to completion of the appeals process” (App.Brf. at 14) — entirely ignores the second part of the Williams sentence- correction prohibition. By its express terms, Williams does not apply to timely challenges to sentences. The same is true here. If the People had timely appealed respondent’s original sentence – unlawfully imposed in 2001 because it contained no post-release supervision – respondent’s sentence would have been promptly corrected, and this case would not now be before the Court. Respondent was sentenced in September 2001, but appellant did not challenge the legality of respondent’s 18 sentence until June 2010, nearly nine years later. The People’s time to “timely” appeal respondent’s sentence expired in October 2001, 30 days after he was sentenced (CPL §460.10(1)(a)), and their time to “timely” move to set it aside expired in September 2002, a year after he was sentenced. CPL §440.40(1). Respondent’s sentence was complete more than three years ago when the Court vacated the post-release supervision from it on June 8, 2010, and respondent’s direct appeal was complete more than nine years ago when this Court denied him leave to appeal on July 21, 2004. It was not until six years after respondent’s direct appeal concluded, that the People filed a notice of appeal challenging the order that granted respondent’s motion to vacate his sentence, which had reimposed that post-release supervision-free 10-year sentence. The question presented by this case is not whether respondent’s completion of his sentence requires denial of a People’s timely challenge to that sentence, but whether a resentencing revives the People’s long-since-expired right to challenge the sentence, regardless of whether defendant has completed it. Williams has already answered that question, fixing “a clear point in time” after which post-release supervision may not be added to a defendant’s sentence: when a defendant completes his sentence and exhausts his direct appeal, two conditions that were met here before the People filed their notice of appeal. That the 19 challenge was timely lodged against a resentence does not affect this settled principle. Appellant excuses the People’s failure to timely challenge respondent’s illegal PRS-free sentence, because, “as a general matter,” it was not understood at the time of his sentencing that the failure to pronounce PRS was an error (App.Brf. at 18, n. 8). True enough. But the same was said by the People in Williams and Velez, and that “widespread misunderstanding” was insufficient to defeat the defendants’ legitimate expectations of finality once their sentences expired. This Court need not find that the prosecutor acted “nefariously or negligently” as appellant suggests (App.Brf. at 18, n. 8), only that respondent had a legitimate expectation of finality in his sentence. On this question the Court has already spoken; once defendant’s sentence expired after the conclusion of his direct appeal, he had a protected legitimate interest in its finality. B. Increasing Respondent’s Sentence to Include Post-Release Supervision Would Violate the William s Rule Regardless of Whether a Resentencing Is Necessary. Respondent alternately contends that Williams does not even apply here, because Williams applies to resentences and no resentencing would be necessary, because “[a]ll that is required is reversal of the erroneous vacatur” (App.Brf. at 17). The Williams rule is not a protection against “resentencing,” but a protection against increasing a defendant’s sentence once he has accrued a legitimate 20 expectation of finality in that sentence. Velez, 19 N.Y.3d at 650 (“Williams says that ‘once the initial sentence has been served ... an additional term of PRS may not be imposed.’” quoting Williams, 14 N.Y.3d at 217 [emphasis added in Velez]); United States v. DiFrancesco, 449 U.S. 117, 137 (1980) (relevant question is whether “increase of a sentence ... constitutes multiple punishment in violation of the Double Jeopardy Clause”). The double jeopardy protection at issue here guards against “multiple punishments” and “increased sentences,” not the procedural act of a resentencing. Williams, 14 N.Y.3d at 215; DiFrancesco, 449 U.S. at 142 (“in the double jeopardy context it is the substance of the action that is controlling, and not the label given that action”). Whether respondent’s sentence is increased by a resentencing, or a restoration of a previous iteration of that sentence by a “reversal of [an] erroneous vacatur” (App.Brf. at 17), or a “rever[sion] back” to a prior sentence (id.), the effect is the same: respondent would be subjected to post-release supervision years after the People’s time to challenge the original sentence expired, and after respondent completed his PRS-free sentence in 2010. See, decision of First Department (recognizing that reversal of order granting vacatur would require “reimpos[ing]” sentence that included PRS). When respondent was resentenced to ten years without post-release supervision in September 2010, his legitimate expectation of finality vested under Williams, because he had fully served the 10- 21 year sentence and his direct appeal had concluded years earlier. Because three years have now passed since that legitimate expectation of finality in that PRS-free sentence vested, double jeopardy forbids its increase, regardless of whether a resentencing is necessary. Even if the Williams rule only proscribes increased sentences imposed at resentencings, it forbids reimposing post-release supervision here, because, as the First department held, and the Second Department held in People v. Allen, reimposing post-release supervision after a sentence that includes PRS has been vacated and the defendant has been resentenced to a PRS-free sentence, requires resentencing. When respondent was last in court on this matter, on June 8, 2010, he was resentenced to a ten-year sentence with no post-release supervision: ... on the robbery in the first degree conviction, defendant is resentenced to a determinate sentence of imprisonment of ten years with no post-release supervision period. The rest of his sentencing remains as previously imposed, and this sentence is, once again, imposed nunc pro tunc back to September 26, 2001 (A.197-98). Because respondent had reached the maximum expiration of the ten-year sentence six months earlier (on December 8, 2009), his sentence was complete at the time of resentencing. Respondent has fully served the sentence last imposed; if the court is to increase that sentence to his detriment, he has statutory and constitutional rights to have it imposed by the court in his presence at a resentencing proceeding. 22 As this Court held in People v. Sparber, when it found that the administrative addition of post-release supervision was unlawful and remitted for judicial resentencing: CPL 380.20 and 380.40(1) collectively require that ... [t]he defendant must be personally present at the time sentence is pronounced. These commands are unyielding..... Importantly, no statutory exemptions exist for PRS sentences.... [A defendant] has a statutory right to hear the court’s pronouncement as to what the entire sentence encompasses, directly from the court. 10 N.Y.3d 457, 469-70 (2008)(internal citations and quotations omitted). No “method other than pronouncement in the defendant’s presence” suffices. Id. at 471; cf., Hill v. United States ex rel. Wampler, 298 U.S. 460 (1936)(it is the sentence imposed by the sentencing judge is controlling; only that sentence authorizes the custody of a defendant). Should 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 unless and until he is resentenced in a manner that complies CPL 380.20 and 380.40. That the People did not appeal that resentence, but instead appealed the order vacating the previously imposed resentence that included post-release supervision, does not change this result. When this Court (or an intermediate appellate court) vacates an illegal sentence (which would be required if this Court grants the People the relief they request, i.e., vacates the vacatur), and does not impose a reduced sentence, 23 remitting to the trial court for resentencing is the required remedy. An appellate court cannot impose a harsher sentence than that imposed by the trial court without remitting for pronouncement of sentence at a resentencing. No less is required by the Criminal Procedure Law’s appellate corrective action provisions. Where, as appellant asks here, this Court reverses an appellate court’s order that affirmed “a criminal court judgment, sentence or order,” CPL §470.40(1) states that this Court must “take or direct such corrective action as the lower appellate court would have been authorized or required to take under CPL §470.20, had it reversed or modified the criminal court. That statute, CPL §470.20, governs “corrective action” that may be taken in the case of reversal or modification by an intermediate appellate court. It provides generally that an intermediate appellate court must “take or direct such corrective action as is necessary and appropriate to rectify any injustice to the appellant resulting from error ... and to protect the rights of the respondent.” CPL §470.20(1). Nowhere does CPL §470.20 authorize an increased sentence without resentencing. While the statute does not purport to specify the required corrective action in every circumstance, the rules that it does specify require that, when a defendant-respondent is at risk of having an increased sentence imposed, the matter must be remitted for resentencing. For example, where an appellate court modifies by finding legal insufficiency with respect to less than all counts, the 24 appellate court “must either reduce the total sentence ... or remit the case to the criminal court for re-sentence.” CPL §470.20(3); see also, CPL §470.20(4)(where appellate court modifies by reducing a conviction to one for a lesser included a offense, it must “remit the case to the criminal court with a direction that the [criminal court] sentence the defendant accordingly”). Section 470.20 thus permits an appellate court to “reduce the total sentence,” or “remit” to the criminal court to determine an appropriate sentence, or even to “remit” with a direction that the criminal court impose a sentence. But nowhere does it authorize an appellate court to take an action that would subject a defendant to a sentence greater than the one last imposed, without a remittal for resentencing. Where the defendant is at risk of being subjected to a harsher sentence, the “rights of respondent” can only be “protect[ed]” by a remittal for a resentencing that complies with CPL 380.20 and 380.40. See, e.g., Rodriguez, 18 N.Y.3d 667 (remitting for resentencing to consider whether concurrent and consecutive sentences should be realigned to achieve 40-year aggregate sentence, even where sentencing court expressed intent to impose aggregate 40-year sentence); People v. Yannicelli, 40 N.Y.2d 598 (1976)( where Court determined that fines had been imposed upon defendants in procedurally flawed manner, case remitted for resentencing). 25 The People cite no statute or caselaw that would authorize this Court to reinstate the previously vacated sentence without a resentencing, i.e., without an in-person in-court pronouncement to respondent that he is once again subject to post-release supervision. The People’s sole support for their contention that no resentencing would be necessary is by analogy. By the People’s reckoning, respondent’s current PRS-free sentence could simply be rolled back to a prior one that included PRS, and that would be “no different” than the reversal of an appeal from the setting aside of a verdict. Citing this Court’s decision in People v. Brown, 40 N.Y.2d 381, 391 (1976), and the United States Supreme Court’s decision in United States v. Wilson, 420 U.S. 332 (1975), appellant observes that, in the case of People’s appeals from orders setting aside verdicts, so long as there is a prior guilty verdict that can be “reinstated” there is no double jeopardy violation in the case of reversal. By analogy, here, too, the People argue, there would be no double jeopardy violation in the case of reversal, because the “sentence would revert back to” the previously imposed “lawful one” (App.Brf. at 17 & 20 n. 11). Brown and Wilson offer no support for the People’s argument that respondent’s prior sentence can be reinstated without violating his legitimate expectation of finality in the sentence he has already fully served. The People ignore the fact that Brown and Wilson’s double jeopardy challenges to appeals by the People and the government rested on defendants’ protection “against retrial 26 for the same offense following a previous acquittal,” Brown, 40 N.Y.2d at 386; see, Wilson, 420 U.S. at 343-44, whereas the Williams rule rests on an entirely separate double jeopardy protection, i.e., “the right not to be punished more than once for the same crime.” Williams, 14 N.Y.3d at 214. That a People’s appeal of a motion to set aside a guilty verdict does not violate the double jeopardy protection against a retrial following an acquittal does not speak whatsoever to the question of whether a defendant’s constitutionally protected legitimate expectation of finality in a sentence is violated if a prior sentence is reinstated after it has been fully served, and the time to appeal it has expired. See, Brown, 40 N.Y.2d at 386 (“Each protection serves different purposes and is surrounded by its own exceptions thereby complicating exposition of which rule attaches in different procedural situations”). Since post-release supervision cannot be reimposed upon respondent without a resentencing, and Williams – even by the People’s arguments – forbids resentencing, the First Department correctly ruled that the relief sought by the People was beyond its power to grant. Accord, People v. Allen, 88 A.D.3d at 736 (dismissing People’s appeal as academic where, as here, People appealed order vacating resentence that had included PRS, because relief would have required imposition of PRS in violation of Williams). 27 CONCLUSION FOR THE REASONS STATED ABOVE THIS COURT SHOULD AFFIRM THE APPELLATE DIVISION’S ORDER. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation Attorney for Defendant-Respondent ________________________ Mark W. Zeno Of Counsel August 16, 2013 28