The People, Appellant,v.Angel Cintron, Respondent.BriefN.Y.February 11, 2014 OFFICE OF THE DISTRICT ATTORNEY, Bronx County ROBERT T. JOHNSON 198 East 161st Street (718) 838-7111 District Attorney Bronx, New York 10451 Fax 590-6523 January 30, 2013 To the Honorable Judges Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Angel Cintron Indictment No. 2052/2000 Letter pursuant to Rule 500.11 Your Honors: Pursuant to this Court’s letter dated January 17, 2013, designating this appeal for examination of the merits pursuant to Rule 500.11 (“SSM” review), appellant, the People of the State of New York, submits the following letter in support of our appeal. As directed by this Court, an original and two copies of this letter, together with proof of service of one copy on respondent, and three copies each of the Appendix and all briefs submitted to the Appellate Division are enclosed. PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of this Court, granted on December 21, 2012, appellant appeals from an October 4, 2012, order of the Appellate Division, First Department (People v. Cintron, 99 A.D.3d 439 [1st Dept. 2012]), which dismissed the People’s appeal from the Amended Order and Order (entered on or about May 26, 2010, and May 28, 2010) granting defendant’s CPL § 440.20 motion to set aside the June 18, 2008, resentence. This Court has jurisdiction to entertain this appeal pursuant to CPL § 490.50(1). QUESTION PRESENTED Given that the lower court erroneously vacated a lawful sentence and imposed an illegal one, and given that the People timely filed an appeal from the vacatur and illegal sentence, did the Appellate Division correctly dismiss the People’s appeal because the illegal sentence was completed before the appeal could be decided? 1 STATEMENT OF FACTS On September 26, 2001, a judgment was rendered in the above-captioned matter in Supreme Court, Bronx County (Clancy, J.), convicting defendant, after a jury trial, of Robbery in the First Degree (Penal Law § 160.15), Robbery in the Third Degree (Penal Law § 160.05), and Petit Larceny (Penal Law § 155.25), and sentencing him, as a second felony offender, to concurrent terms of imprisonment of ten years for the first-degree robbery, from three-and-one-half to seven years for the third-degree robbery, and one year for the petit larceny. The maximum expiration date of the sentence was October 11, 2009. On June 18, 2008, the court resentenced defendant to a determinate term of ten-years imprisonment together with five years of post-release supervision for the first-degree robbery count, an indeterminate term of three-and-one-half to seven years imprisonment for the third-degree robbery count, and a determinate term of one-year imprisonment on the petit larceny count, the sentences to run concurrently and imposed nunc pro tunc to September 26, 2001. On March 31, 2010, defendant, through counsel, moved pursuant to CPL § 440.20(1) to set aside his June 18, 2008, sentence to the extent of vacating the five-year term of PRS. Relying on People v. Williams, 14 N.Y.3d 198 (2010), defendant grounded his motion in double jeopardy principles; because he had been conditionally released from prison before he was resentenced, and because Williams purportedly “established a bright-line rule that forbids adding post-release supervision to a defendant’s sentence once the defendant has been released from prison and the People’s time to appeal the sentence has expired,” he argued that his sentence should be vacated (see Defendant’s March 31, 2010, Motion to Set Aside the Sentence, Affirmation of Mark W. Zeno, ¶¶ 2, 9-13; A. 94-97; Defendant’s April 20, 2010, Reply Memorandum of Law; A. 124-130;1 Defendant’s April 27, 2010, Supplemental Memorandum of Law; A. 131-76). The People opposed his motion, arguing that PRS had been validly imposed because Williams should be interpreted to mean that imposition of PRS was barred only if the defendant’s sentence of incarceration had reached its maximum expiration date (see People’s April 13, 2010, Opposition to Defendant’s Motion to Set Aside the Sentence, memorandum of law, pp. 3-4; A. 109-10; People’s April 28, 2010, Reply Affirmation in Opposition; A. 177-81; People’s May 3, 2010, Supplemental Affirmation in Opposition; A. 182-87). On May 28, 2010, by an Amended Order, and on June 8, 2010, by an Order, the court granted defendant’s CPL § 440.20 motion to set aside his June 18, 2008, sentence; the court then resentenced him to a determinate term of ten-years imprisonment without post-release supervision for his first-degree robbery conviction, imposing its sentence nunc pro tunc to September 26, 2001. The People filed a timely notice of appeal and perfected the appeal by filing a brief in June 2011. Subsequently, this Court decided People v. Lingle, 16 N.Y.3d 621 (2011). On October 4, 2012, the Appellate Division, while acknowledging that defendant’s 2010 resentence without PRS was illegal, sua sponte dismissed the People’s appeal on the grounds that this Court’s decision in People v. Velez, 19 N.Y.3d 642 (2012), erected a double jeopardy bar to the “A.” refers to pages of the People’s Appendix submitted to the Appellate Division.1 2 reinstatement of the lawful sentence imposed on June 8, 2010. The court held that “[d]efendant has a reasonable expectation of finality in his sentence, and a term of PRS cannot now be added because the maximum expiration date of his sentence passed several years ago.” Cintron, 99 A.D.3d at 441. ARGUMENT THE APPELLATE DIVISION’S DECISION ERRONEOUSLY ESTABLISHES A RULE THAT A PEOPLE’S APPEAL MUST BE DISMISSED IF A COURT VACATES A LAWFUL SENTENCE AND IMPOSES AN ILLEGAL SENTENCE THAT IS COMPLETED BEFORE THE APPEAL CAN BE DECIDED. The stark facts of this case present a scenario in which the Appellate Division has ruled that this Court’s precedent does not allow the appeal of a wrongful vacatur of a lawful sentence. However, neither this Court’s precedent nor any constitutional provision mandates such an unfair result. The only binding precedent cited by the Appellate Division was People v. Velez, 19 N.Y.3d 642 (2012). But Velez does not stand for the proposition stated by the Appellate Division. Indeed, this Court was dealing with a very different issue in that case. Velez, whose initial sentence did not include a period of PRS, was conditionally released at the time he received notice that he was a designated person pursuant to Correction Law § 601-d and resentencing proceedings had begun in order to, inter alia, obtain his original sentencing minutes. However, given the delay in procuring his minutes, the court was not able to resentence Velez to include a period of PRS until more than three months after the maximum expiration date of his original sentence had passed. Velez, 19 N.Y.3d at 646. Notwithstanding this fact, on appeal, the People argued, albeit unsuccessfully, that Velez’s resentence did not violate his constitutional rights given that the resentencing proceedings had begun before his maximum expiration date even though he was actually resentenced after that date. Id., at 649-50. The instant case, to the contrary, does not require imposing a new sentence. All that is required is reversal of the erroneous vacatur. Once the vacatur is reversed, defendant’s sentence reverts back to the lawful one imposed on June 18, 2008, well before the maximum expiration date of October 11, 2009. In this regard, the People’s appeal here is no different than an appeal from the setting aside of a verdict. Indeed, in CPL § 330.30 cases, while double jeopardy precludes “the People from taking an appeal from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the defendant to stand retrial—or even if it would then be necessary for the trial court ‘to make supplemental findings,’” there is no bar where “there is available a determination of guilt which without more may be reinstated in the event of a reversal and remand.” People v. Brown, 40 N.Y.2d 381, 391 (1976); see also U.S. v. Wilson, 420 U.S. 332 (1975). The reinstatement contemplated in a People’s appeal from the granting of a CPL § 330.30 motion is, therefore, analogous to the instant matter for double jeopardy purposes; here, if the instant People’s appeal is decided in the People’s favor, defendant does not need to be resentenced. As stated, the illegal sentence of June 8, 2010, would be vacated and his sentence would revert back to the lawful one imposed on June 18, 2008. There is no authority that supports the proposition that such a result would violate the Double Jeopardy Clause. 3 Nonetheless, given the instant decision from the First Department, and similar precedent from the Second Department (People v. Allen, 88 A.D.3d 735 [2d Dept. 2011]), the current state of the law in New York is that a People’s appeal will be dismissed if the illegal sentence appealed from has been completed before the appeal is decided. That the First and Second Departments have2 reached the wrong result is illustrated by a simple hypothetical. Suppose that a trial court, in contravention of a law that required the imposition of a minimum sentence of one year incarceration (see, e.g., Penal Law § 70.70[2][a][i]), vacated a lawfully-imposed one-year sentence and imposed a sentence of sixty days in jail because of a mistaken belief that the prior sentence violated the Eighth Amendment. Under the rule established by the First and Second Departments, any timely appeal by the People would have to be dismissed if the defendant served the sixty days prior to completion of the appeals process. Such a result is not commanded by the United States Constitution or this State’s Double Jeopardy Clause. In fact, the authority is to the contrary. In federal law, it is axiomatic that, “when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.” Wilson, 420 U.S. at 352-53. Moreover, in the context of sentencing, “[t]he double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence.” U.S. v. DiFrancesco, 449 U.S. 117, 136 (1980). Indeed, DiFrancesco noted: “[t]he defendant, of course, is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired.” Id.; see also U.S. v. Rico, 902 F.2d 1065, 1068-69 (1990)(“The government has the statutory right to appeal certain sentences, specifically those below the Sentencing Guidelines . . . .”)(internal citations omitted), cert. denied sub nom, 498 U.S. 943 (1990). Similarly, in New York, this Court upheld the People’s invocation of appeal against the claim that such appeal violates the defendant’s double jeopardy rights. See People v. Minaya, 54 N.Y.2d 360, 365 (1981)(on a People’s appeal, the Court rejected the defendant’s attempt to distinguish DiFrancesco “on the ground that the defendant there had no expectation of finality because the Government was expressly authorized by statute to challenge the sentence on appeal, while in this case there is no express statutory mechanism for correcting the error in the sentence.”). More recently, in Williams, this Court extensively analyzed the germane double jeopardy issues with regard to the resentencings imposing PRS. After a discussion of pertinent federal cases, this Court concluded:“the People are allowed to move to set aside or appeal a sentence on the ground that it is not authorized by law, which may delay final consideration of a case well beyond the one-year term specified in CPL 440.40.” Williams, 14 N.Y.3d at 217. In finding that, “[e]ven where a defendant’s sentence is illegal, there is a legitimate expectation of finality,” this Court specifically noted that such finality accrues “once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired).” Id. (emphasis added). This Court reaffirmed those principles in People v. Lingle, 16 N.Y.3d 621 (2011). Because no other Appellate Division has decided this question, the First and Second Department2 rulings control all lower courts in this state. See Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 665 (2d Dept. 1984). 4 That authority belies the idea that a defendant could have any expectation of finality in an illegal sentence that the government has timely appealed. A perusal of the point headings in Williams reveals that even the defendants there did not advocate such an idea. The defendant here, likewise, never advanced such an argument. This “failure” of advocacy is completely understandable because no authority or rational line of reasoning would support such an exaggerated view of what the Double Jeopardy Clause bars. Moreover, the reasoning that defeats a defendant’s expectation of finality in those situations is even more compelling in the procedural scenario presented by this case, that is, one in which no resentencing need take place.3 No defendant can have an expectation of finality in an illegal sentence he brought about when the People have timely exercised their right to appeal. To hold otherwise, as the First and Second departments have done, undermines the People’s right to appeal the vacatur of a lawful sentence and, instead, insulates a panoply of illegal sentences. Accordingly, we respectfully ask this Court to reverse the Appellate Division’s decision and to vacate the trial court’s June 8, 2010, resentence, thereby reinstating the lower court’s June18, 2008, sentence that included a period of post-release supervision. APPELLANT’S OBJECTION TO ALTERNATIVE SSM REVIEW Given the importance of correcting the Appellate Divisions rulings in this case, and pursuant to Rule 500.11(c)(2), the People submit that this appeal should be designated for full briefing and argument. Rule 500.11(b) states that cases may be designated sua sponte for SSM review on the basis of “(1) questions of discretion, mixed questions of law and fact or affirmed findings of fact, which are subject to a limited scope of review; (2) recent, controlling precedent; (3) narrow issues of law not of statewide importance; (4) nonpreserved issues of law; (5) a party’s request for such review; or (6) other appropriate factors.” An examination of the factors here reveals that this case is not a good candidate for alternative SSM review. First, this case does not involve a discretionary decision, a mixed question, or an affirmed finding of fact. Second, given the Appellate Division’s novel reading of Velez, there is no controlling precedent on the issues presented; though the Appellate Division cited Velez for support, as noted, that case is inapposite and does not control the double jeopardy issue raised here. Third, given the likelihood that Cintron will now be cited by defendants in a wide range of cases to shield themselves from review of their illegal sentences, plainly, this case has broad legal implications of statewide importance. Fourth, this case does not involve issues requiring preservation. Fifth, neither party has, to date, requested SSM review. In regard to the sixth and final factor, the People note that the issue presented, whether a meritorious People’s appeal must be dismissed where a defendant’s illegal sentence is completed Unlike appellants in Allen who “ask[ed the Appellate Division] to reverse the Supreme Court’s3 order and remit the matter to that court for the imposition of a period of PRS” (Allen, 88 A.D.3d at 735-36), here, the People simply ask this Court to vacate the trial court’s June 8, 2010, resentence, thereby reinstating the lower court’s June18, 2008, sentence. Since the June 18, 2008, sentence was imposed long before defendant had reached his maximum expiration date, and since no present “imposition” of anything is required, there is no Williams problem barring this Court from granting the People’s appeal. 5 before the appeal can be decided, was neither briefed nor argued below. Indeed, as noted, defendant never raised an argument on this point, the Appellate Division, sua sponte dismissed the People’s appeal, and the People, therefore, had no opportunity to address this issue in the first instance. Appellant, therefore, respectfully objects to alternative SSM review and submits that the issue presented warrants full briefing and oral argument before this Court. Respectfully submitted, Justin J. Braun Assistant District Attorney cc: Mark W. Zeno, Esq. 6