The People, Appellant,v.Angel Cintron, Respondent.BriefN.Y.February 11, 2014CENTER FOR APPELLATE LITIGATION 74 TRINITY PLACE- I JTH FLOOR, NEW YORK, NY 10006 TEL. (212) 577-2523 FAX 577-2535 AnORNf:"Y-IN-CHARvli ROBERTS. DEAN DEI'l!TY A TTO/INEY IN-CHARGI! ELAINE E. FRIEDMAN ASS/SlANT A11VIINI:"Y-JN-CHARGJ-: MARK W.ZENO SENIOR SUPERVISIN0 ATTORNEYS ABIGAIL EVERETT BARBARA ZOLOT SUPERVISING AITOIINEYS DAVID KLEM CLAUDIA S. TRUPP VIA FEDERAL EXPRESS Judges of the Court of Appeals New York Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 ---~--- February 19,2013 Re: People v. Angel Cintron (SSM) Your Honors: ASS/SlANT A TTORNEY-IN- CHARGH MARK W . Z ENO (212) 577-2523 EXT. 505 mzeno@cfal.org Respondent Angel Cintron submits the following written comments and arguments in support of his position on the merits, and in opposition to Appellant's letter, dated January 30, 2013 ("ApLtr"). Mr. Cintron's motion for the assignment of RobertS. Dean, Center for Appellate Litigation, as counsel, is pending before the Court. QUESTION PRESENTED Whether the Appellate Division correctly ruled that it would violate double jeopardy to add post-release supervision to respondent's sentence now that that sentence has been fully served and respondent's direct appeal has concluded, notwithstanding the fact that the People filed a notice of appeal challenging the vacatur of a legally imposed interim sentence. People v. Angel Cintron (SSM) Page 2 February 19,2013 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 ofPRS may not be imposed." People v. Williams, 14 N.Y.3d 198,217, cert. denied562 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 PRS 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 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 create an exception to Williams, but offer no reason to depart from the Williams bright-line rule apart from those considered and rejected as inadequate to defeat defendants' finality interest in Williams and Velez. The order of the Appellate Division should be affirmed. People v. Angel Cintron (SSM) Page 3 February 19,2013 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, 31/z to 7 years, and one year. No post-release supervision was imposed (A.29-30). 1 On April27, 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. The First Change of Sentence By motion dated November 29, 2007, respondent moved prose 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.34-39). The People responded in papers dated March 3, 2008. They 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." 1Numbers in parentheses preceded by "A" refer to pages of Appellant's Appellate Division appendix. People v. Angel Cintron (SSM) Page 4 February 19,2013 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, 31/z-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.64-70). 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 PRS term, arguing it had been illegally imposed, in reliance on People v. Williams, which had been decided a month earlier on February 23, 2010. The 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.11 0). Since Mr. Cintron's sentence had not yet expired, it had been lawful to resentence him. In a decision dated May 28, 2010,2 the court granted respondent's motion 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) . 21n a decision and order dated May 26, 2010, the court had ordered the same relief. That order was amended on May 28, 2010, to correct a typographical error. The People also ftled a notice of appeal from the amernded order (A.203) People v. Angel Cintron (SSM) Page 5 February 19,2013 The People's Appeal The People flied 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 (Decision & Order attached as exhibit A). 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 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 (exhibit A at 2). 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 3-4) People v. Angel Cintron (SSM) Page 6 ARGUMENT THE APPELLATE DIVISION CORRECTLY RULED THAT IT WOULD VIOLATE DOUBLE JEOPARDY TO ADD POST- RELEASE SUPERVISION TO RESPONDENT'S SENTENCE NOW THAT THAT SENTENCE HAS BEEN FULLY SERVED AND RESPONDENT'S DIRECT APPEAL HAS CONCLUDED, NOTWITHSTANDING THE FACT THAT THE PEOPLE FILED A NOTICE OF APPEAL CHALLENGING THE VACATUR OF A LEGALLY IMPOSED INTERIM SENTENCE. US CONST., AMENDS. V, XIV., NY CONST. ART. I, §6. Febtuary 19, 2013 Agreeing with the Second Department's decision in People v. Allen, 88 A.D.3d 735 (2011), the First Department ruled below that, under the plain language of Williams and Velez, post-release supervision may not now be added to respondent's sentence, because respondent has fully served his 1 0-year sentence and the People's time to challenge its legality expired more than ten years ago. People v. Williams, 14 N.Y.3d 198,217, cett. denied562 U.S._, 131 S.Ct. 125 (2010); People v. Velez, 19 N.Y.3d 642, 650 (2012); see, People v. Lingle, 16 N.Y.3d 621, 630 (2011). Velez emphasized that Williams was intended to create a bright-line rule: "[i]t was part of our purpose in Williams to identify 'a temporal limitation on a court's ability to resentence a defendant' ... -a clear point in time at which a resentencing to add PRS is constitutionally barred. As we said in Lingle, 'our rule in Williams ... promotes clarity, certainty and fairness .'" Velez, 19 N.Y.3d at 650 (internal citations omitted). Appellant asks this Court to create an exception to Williams' bright-line rule. Appellant contends that Williams shouldn't bar adding post-release supervision to an offender's sentence- even where the People's time to challenge the original sentence has expired years before, and the sentence has been fully served- if subjecting the offender to post-release supervision again "does not require imposing a new sentence," only reimposing an old one (ApLtr., at 3). Appellant's argument is largely procedural. Williams, by appellant's reckoning, shouldn't apply because another resentencing would be unnecessary. This Court can simply vacate the order that vacated the sentence that included post-release People v. Angel Cintron (SSM) Page 7 February 19, 2013 supervision, appellant contends (ApLtr at 3). But the Williams rule offers no room for such technical exceptions, creating "a clear point in time" after which courts have no authority to add post-release supervision to a defendant's sentence, regardless of whether the post-release supervision is added by supreme court or an appellate court. The People identify no valid reason to revisit Williams. The sole reasons they do offer have already been taken into account: that respondent was once subject to post-release supervision, and that appellant put respondent on notice by filing a notice of appeal that it intended to challenge the PRS-free sentence, are the same notice arguments that this Court has already considered. The fact that defendants with PRS-free sentences are aware that their sentences are illegal and subject to correction, or even that they have been serving post -release supervision for years, were the reasons this Court chose to defer finality until completion of the direct appeal and sentence. But once the defendant's appeals are exhausted and he completes his sentence, creating an exception that would undercut finality is not only unnecessary, but would also have the undesired effect of upsetting the "clarity, certainty and fairness," that the Williams bright-line rule promotes. As discussed in Point 1 ,post, Williams prohibits adding post-release supervision to respondent's sentence, regardless of whether a resentencing is necessary, because the Williams rule is not dependent upon the procedural mechanism employed to add post-release supervision, but the fact that a sentence is increased after defendant has accrued a legitimate expectation of finality in a lesser sentence. As discussed in Point 2) post, 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. Finally, as set forth in Point 3) post, contrary to appellant's claims, applying Williams to foreclose the addition of post-release supervision to respondent's sentence presents no danger that timely filed People's appeals will be dismissed if the illegal sentence appealed from has been completed before the appeal has been decided. People v. Angel Cintron (SSM) Page 8 February 19, 2013 1. Increasing Respondent's Sentence to Include Post-Release Supervision Would Violate the Williams Rule Regardless of Whether a Resentencing Is Necessary. The Williams rule is not a protection against "resentencing," but a protection against increasing a defendant's sentence once he has accrued a legitimate 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" (ApLtr at 3), 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 1 0-year sentence and his direct appeal had concluded years earlier. Two and one-half years have now passed since that legitimate expectation of finality in that PRS-free sentence accrued. That respondent was once subject to post-release supervision does not distinguish him from the Williams or Velez 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 People v. Angel Cintron (SSM) Page 9 February 19,2013 concluded defendants had accrued legitimate expectations of finality in their PRS-free sentences that forbid adding back PRS to them. 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. 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. 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. 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. 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. He remained subject to administratively imposed post-release supervision until supreme court "corrected" his sentence to include PRS. 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 "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 911. People v. Angel Cintron (SSM) Page 10 February 19, 2013 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 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. 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 the same notice argument rejected in Williams and Velez. Williams held that a defendant acquires a "legitimate expectation of finality" when his sentence has been fully served, "even though the defendant may be-as the defendants in Williams itself were-on notice that his original sentence was illegal." Velez, 19 N .Y.3d at 650. Velez held that the commencement of a Correction Law §601-d proceeding "cannot affect that 'legitimate expectation' because a defendant can have such an expectation even when he knows of the defect in his original sentence," and even when he is in the midst of a proceeding to correct that illegality. Velez, 19 N.Y.3d at 650. The Williams rule fixes "a clear point in time" after which PRS may not constitutionally added to an offender's sentence. Velez, 19 N.Y.3d at 650. A defendant's knowledge that his sentence is illegal and subject to correction- or is, as in Velez, in the process of being corrected - does not create an exception to the Williams rule, because that knowledge is already an integral part of the rule. The rule does not turn on a defendant's subjective knowledge of whether their sentence is illegal, subject to correction, or is in the process of being corrected. Rather, it takes as a given that every defendant knows that his sentence is illegal and can be corrected- at least up until the moment that it expires. Appellant has identified nothing about the People v. Angel Cintron (SSM) Page 11 February 19, 2013 filing of a notice of appeal challenging the court's order vacating respondent's resentence that excepts it from Williams' temporal limitation on the court's power to add post-release supervision to a defendant's sentence. 2. 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 (transcript of June 8, 2010, attached as exhibit B, at 2-3). Because respondent had reached the maximum expiration of the 10-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. 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 People v. Angel Cintron (SSM) Page 12 February 19, 2013 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; if., Hill v. United States ex rei. 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, 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 §4 70.20, 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). People v. Angel Cintron (SSM) Page 13 February 19, 2013 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 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., Rodrigue~ 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). 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 People v. Angel Cintron (SSM) Page 14 February 19, 2013 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" (ApLtr at 3, see, ApLtr at 4). Brown and Wison 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 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 could not 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). People v. Angel Cintron (SSM) Page 15 February 19, 2013 3. Endorsing a Rule that Forbids Increasing Respondent's Sentence to Include Post-Release Supervision Presents No Danger that Timely Filed People's Appeals Will Be Dismissed If the Illegal Sentence Appealed From Has Been Completed Before the Appeal Has Been Decided (ApLtr at 4). 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 limits the People's power to prosecute and punish,3 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. Appellant warns that if this Court affirms the dismissal of the People's appeal, the law in New York will be that "a People's appeal will be dismissed if the illegal sentence appealed from has been completed before the appeal is decided" (Ap.Ltr at 4). Those fears are unwarranted. Williams created a bright-line double jeopardy prohibition against resentencing if two conditions are met: (1) the defendant has completed his sentence; and (2) the defendant's direct appeal is exhausted or the time to appeal the conviction and/ or sentence has expired. 14 N.Y.3d 198. 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 flied challenges to sentences. Williams applies only if "the initial sentence has been served and the direct appeal has been completed (or the rime to appeal has expired)." Williams, 14 N.Y.3d at 217. if the People had time!J appealed respondent's original sentence- unlawfully imposed in 2001 because it contained no post-release supervision- respondent's 3The historical and contemporary limitations imposed by the Double Jeopardy Clauses of our State and Federal Constitutions all reflect an accommodation of the competing interests of a defendant's right to be free from the "potent instrument of oppression" that multiple prosecutions and punishments would threaten, United States v. Martin Linen Supp(y Co., 430 U.S. 564, 569 (1977), and society's interest in punishing those whose guilt is proven. United States v. Tateo, 377 U.S. 463, 466 (1964). People v. Angel Cintron (SSM) Page 16 February 19,2013 sentence would have been promptly corrected, and this case would not now be before the Court. Sentenced in September 2001, appellant did not challenge the legality of respondent's 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 expired in September 2002, 11 months after he was sentenced. CPL §440.40(1). While appellant did not timely file an appeal, respondent did. That appeal concluded in 2004, when the Appellate Division affirmed his conviction and sentence, 6 A.D.3d 338, and this Court denied leave to appeal. 3 N.Y.3d 657. The People made no complaint about the legality of respondent's sentence. It was not until six years later that the People flied a notice of appeal challenging the order that granted respondent's motion to vacate his sentence, which reimposed that post-release supervision-free 10-year sentence. The question presented by this case is not whether completion of sentence by a defendant requires denial of a People's timely challenge to that sentence, but whether a resentencing revives the People's right to challenge the sentence, regardless of whether defendant has completed it. As we have demonstrated, Williams 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. * * * Because, as demonstrated above, "recent, controlling precedent"- i.e., Williams and Velez- is dispositive of the issues raised here, we oppose the People's request to remove this case from SSM review and designate it for full briefing. NYCRR 500.11(b)(2). More, the People make no showing that this issue is anything other than a narrow issue oflaw unlikely to recur. NYCRR 500.11(b)(3). This case is unique, and unlikely to recur, especially now that Correction Law §601-d resentencings are all-but completed. While respondent did not specifically request the dismissal of the appeal ordered by the Appellate Division, he did argue that double jeopardy barred resentencing him, the legal basis for the First Department's dismissal. There is no reason to any further prolong resolution of these issues. People v. Angel Cintron (5 SM) Page 17 CONCLUSION FOR THE REASONS STATED ABOVE, THE ORDER OF THE APPELLATE DIVISION DISMISSING THE APPEAL SHOULD BE AFFIRMED. Respectfully submitted, ROBERTS. DEAN February 19,2013 Center for Appellate Litigation Attorney for Defendant-Respondent cc. Hon. Robert T. Johnson District Attorney, Bronx County 198 East 161 sr Street Bronx, NY 10451 Attn.: ADA Justin J. Braun Exhibit A Tom, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ. 6549- Ind. 2052 / 00 6550 The People of State of New York, Appellant, -against- Angel Cintron, Defendant-Respondent. Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), for appellant. Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for respondent. Appeal from order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about May 26, 2010, as amended on or about May 28, 2010, which granted defendant's CPL 440.20 motion to set aside a resentence of the same court and Justice to the extent that the resentence imposed a period of postrelease supervision, unanimously dismissed, as academic. Defendant's original sentence in 2001 unlawfully omitted postrelease supervision. The sentencing court corrected that defect in 2008 by adding a period of postrelease supervision (PRS) to the sentence. At the time of the resentencing, defendant had been released from prison but was still on conditional release. The maximum expiration date of defendant's sentence was in 2009. On March 31, 2010, defendant moved, pursuant to CPL 440.20 (1), to vacate the term of PRS because he was not in prison, but was on conditional release, at the time of the resentencing. When the motion was made, the Court of Appeals had not decided People v Lingle (16 NY3d 621 [2011]). In the order on appeal, the motion court vacated the term of PRS, concluding that the resentencing violated defendant's right against double jeopardy under People v Williams (14 NY3d 198 [2010], cert denied 562 US -, 131 S Ct 125 [2010]), and then resentenced defendant without the PRS term. The People correctly note this was error because defendant was still on conditional release at the time of the resentencing (see Lingle, 16 NY3d at 631 n 1). 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 (Williams, 14 NY3d at 217). In People v Velez (- NY3d 2012 NY Slip Op 05198, *5 [2012]), the Court of Appeals reiterated this rule, rejecting the People's argument that a different rule should apply where the resentencing 2 proceeding had commenced before defendant's original sentence expired but could not be completed until after the expiration date. Here, the People contend that because defendant's 2008 resentence, which appropriately included a term of PRS, was imposed before his maximum expiration date, we can now reimpose that sentence even though his sentence has been fully served. This argument ignores the language of both Williams and Velez that "'once the initial sentence has been served . . an additional term of PRS may not be imposed'" (Velez, 2012 NY Slip Op 05198, *5, quoting Williams, 14 NY3d at 217). Defendant 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. As in People v Allen (88 AD3d 735, 736 [2011]), "the relief 3 sought by the People is beyond this Court's power to grant," and thus the appeal must be dismissed as academic. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: OCTOBER 4, 2012 CLERK 4 Exhibit B 1 ) 2 3 4 5 6 7 8 9 10 11 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: CRIMINAL TERM: PART T-6 ---------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK Indictment 2052-2000 -against- ANGEL CINTRON, Defendant. ---------------------------------------x B E F 0 R E: 265 East 16lst Street Bronx, New York 10451 June 8, 2010 HONORABLE MARGARET L. CLANCY, Justice A P P E A R A N C E S: ROBERT T. JOHNSON, ESQ. District Attorney, Bronx County BY: JUSTIN BRAUN, ESQ. Assistant District Attorney CENTER FOR APPELLATE DIVISION BY: LAUREN SPRINGER , ESQ. Michael Ranita Senior Court Reporter 1 THE COURT CLERK: This is added to the calendar ) 2 This is number four, Angel Cintron, 2052 of 2000. Counsel ~ ~ 3 MS. SPRINGER: Lauren Springer, Center for 4 Appellate Division. 5 MR. BRAUN: Justin Braun for the Bronx District 6 Attorney's office. 7 THE COURT: Good morning, everybody. This case 8 was added to the calendar so that I can resentence the 9 defendant pursuant to the amended decision filed on May 10 actually, filed officially on June 1. You both have a cop; 11 of that. 12 In essence, pursuant to People v. Wilson, I will :) .. • ~ 13 .~ ' ' vacate the post-release supervision period that was impos ec ' ....... 14 back in June, I think, of 2008. 15 MR. BRAUN: Yes, your Honor. The People would 16 just note our continuing opposition. 17 THE COURT: Yes. So, what I'm doing is vacating 18 the defendant's sentence only as to the sentence I imposed 19 on the robbery in the first degree conviction, and that was 20 an amended sentence that was imposed -- let me get the 21 correct date -- June 18th of 2008. 22 So, that resentencing is now also vacated, and or. 23 the robbery in the first degree conviction, defendant is 24 sentenced to a determinate sentence of imprisonment of t 25 years with no post-release supervision pe~iod The rest 2 r.) 1 2 e y.' his sentencing remains as previously imposed, and this sentence is, once again, imposed nunc pro tunc back to 3 September 26th, 2001. And the People, I expect, will be 4 filing a notice of appeal. 5 I have prepared an order, a resentencing order, : 6 addition to the decision that I filed. Do you both have a 7 copy of that? 8 MS. SPRINGER: Yes, your Honor. 9 THE COURT: I think we've given you extra copies )p 1 0 to get to the Department of Corrections and parole board. 11 I mean, department of parole. Good luck to you .1 12 Mr. Cin t ron. >e<) 1 3 * * * * 14 1 5 I, Michael Ranita, a Senior Court Reporter for the StatE 16 of New York do hereby certify that the foregoing is a true and g 17 accurate transcript of the stenographi c minutes taken within. 'd 1 R ·as 19 2 0 Senior Court Reporter 21 o n 22 2 3 n 2 4 ) 25 of 3