The People, Respondent,v.Christopher Brinson, Appellant.BriefN.Y.May 30, 2013To be argued by PAUL SKIP LAISURE (15 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - CHRISTOPHER BRINSON, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY Attorney for Defendant-Appellant 2 Rector St., 10th Floor New York, N.Y. 10006 (212) 693-0085 Paul Skip Laisure Of Counsel April 18, 2013 TABLE OF CONTENTS PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT APPELLANT HAD AN EXPECTATION OF FINALITY IN HIS 10-YEAR DETERMINATE SENTENCE ONCE HE HAD BEEN INCARCER- ATED FOR 10 YEARS BECAUSE CONTINUED INCARCERATION DOES NOT AFFECT THE FINALITY OF A COMPLETED SENTENCE . . . . . . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 i TABLE OF AUTHORITIES CASES Peoplev. Lingle,16 N.Y.3d 621 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 5, 6 People v. Sparber, 10 N.Y.3d 457 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 People v. Velez, 19 N.Y.3d 642 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Velez, 79 A.D.3d 542 (1st Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Wells, 28 Misc.3d 628 (Sup. Ct. Queens Co. 2010) . . . . . . . . . . . . . . 4 People v. Williams, 14 N.Y.3d 198 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 State v. Rashid, 16 N.Y.3d 1 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7 STATUTES P.L. § 70.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 9 P.L. § 70.40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ii PRELIMINARY STATEMENT This reply brief is submitted in response to the Brief for Respondent, received by Defendant-Appellant on April 3, 2013. ARGUMENT APPELLANT HAD AN EXPECTATION OF FINALITY IN HIS 10-YEAR DETERMINATE SENTENCE ONCE HE HAD BEEN INCARCER- ATED FOR 10 YEARS BECAUSE CONTINUED INCARCERATION DOES NOT AFFECT THE FINALITY OF A COMPLETED SENTENCE The People argue both that “[u]nder section 70.30(1)(d), determinate and indeterminate terms of imprisonment are combined into a single term” (Brief for Respondent at 12) and that “the statute does not create a ‘new’ sentence, it merely provides DOCCS with a mechanism to determine how an inmate can discharge multiple sentences” (Brief for Respondent at 29). The People resort to that direct contradiction because they have no other way to reconcile this Court’s decisions in People v. Sparber, 10 N.Y.3d 457 (2008), and People v. Lingle,16 N.Y.3d 621 (2011), to avoid the double jeopardy bar that is apparent in Mr. Brinson’s case. The Court in Sparber recognized that, in the post-release supervision context, the sentence the defendant is serving is the sentence the court imposed regardless of statutory sentencing requirements. 10 N.Y.3d at 469-70. In Lingle, the Court held that a defendant acquires an expectation of finality in his sentence 1 once he has finished serving that sentence and that PRS could be lawfully added to his determinate sentence only if he was still serving it. 16 N.Y.3d at 630. The People first attempt to show that Mr. Brinson was still serving his determinate sentence by positing that perhaps he began serving his indeterminate sentences before beginning to serve the determinate one (Respondent’s Brief at 12, 25-26). But as Mr. Brinson has demonstrated, the sentencing court specifically directed that the determinate term be served first, in accordance with both logic and common practice, as this Court recognized in State v. Rashid, 16 N.Y.3d 1, 18-19 (2010) (see Brief for Defendant Appellant at 17-18). Mr. Brinson does not argue that he served his determinate sentence first because it was pronounced first, as the People claim (Brief for Respondent at 28). Rather, he argues that the judge said it would be served first, which made sense because sentences on more serious counts are typically imposed in descending order, presumably, because the most severe crime is of paramount importance (Brief for Defendant-Appellant at 22-23). The court’s specific language that the 10-year determinate sentence be served first, that it pronounced that sentence first, and that the determinate sentence was for the most serious crime, all lead inexorably to the conclusion that Mr. Brinson served his 10-year determinate sentence first. Second, the People argue that because Mr. Brinson was charged with the knowledge that P.L. § 70.30 applied in his case, he knew that he would continue 2 serving an “aggregate term” calculated by DOCCS beyond his 10-year determinate sentence and, therefore, could have had no expectation of finality in that sentence (Brief for Respondent at 12, 26). That argument is both logically unpersuasive and circular. Mr. Brinson was certainly charged with the knowledge that he would remain incarcerated even after he had served 10 years in prison in this case, but that expectation has nothing to do with whether he expected that his 10-year determinate term would be final at that point. Only if P.L. § 70.30 created a new sentence would he be charged with the knowledge that his sentence was not final. But since the People recognize that P.L. § 70.30 does not create a new sentence, Mr. Brinson’s expectation of continued incarceration cannot be read as an expectation that his determinate sentence was not final. Similarly, the Appellate Division’s finding that Mr. Brinson had “no reason to expect that discrete prison sentences” survive the application of P.L. § 70.30 was incorrect because the Sparber decision, knowledge of which Mr. Brinson was also charged, gave him every reason to believe his individual sentences “survived” DOCCS’s sentencing calculations (see A 3 (Decision and Order at 2)). In short, statutory notification that Mr. Brinson would continue to be incarcerated beyond the end of his determinate sentence, because of a sentence calculation statute, was not notification that, in addition, his 10-year determinate term would not be final when he had finished serving 10 years in prison. 3 The People’s contradictory arguments make sense only if they are read as proposing a solution they do not state: that factors other than completion of a term of incarceration can deprive a defendant of an expectation of finality in that sentence far beyond its completion — indeed, in the case of a consecutive indeterminate life sentence, forever. Obliterating the bright-line rule this Court established in Lingle in such a way makes no sense, either legally or practically. In Lingle, 16 N.Y.3d at 630, this Court held that an expectation of finality arises when the defendant “completes the lawful portion of an illegal sentence and exhausts any appeal taken.” That decision clarified People v. Williams, 14 N.Y.3d 198 (2010), which had been read as holding that a defendant acquires an expectation of finality in a sentence upon release alone, even before completion of that sentence. People v. Velez, 79 A.D.3d 542 (1st Dept. 2010); People v. Wells, 28 Misc.3d 628 (Sup. Ct., Queens Co. 2010); see Williams, 16 N.Y.3d at 218 (“defendants’ release from incarceration erected a Double Jeopardy Clause barrier to any subsequent upward modifications of their original sentences”). By removing “release” from the double jeopardy equation in Lingle, the Court explained that release alone did not erect the double jeopardy barrier; it was the completion of the sentence that did.1 Read together, therefore, Williams and 1 In People v. Velez, 19 N.Y.3d 642, 649 (2012) (“there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed”), this Court relied on the language from Williams that was essentially the same as the Court’s holding in Lingle, but did not mention release from prison, to hold that a resentencing to add PRS that (continued...) 4 Lingle do not permit the conclusion that continued incarceration on other sentences, even after completion of a particular sentence, delays a defendant’s expectation of finality in that sentence. Indeed, the idea that continued incarceration on other counts delays an expectation of finality in a fully-served sentence is directly opposite this Court’s observation in Williams, 14 N.Y.3d at 217, that “there must be a temporal limitation on a court’s ability to resentence a defendant since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts.” It also appears to be opposite the Court’s rationale in Lingle, 16 N.Y.3d at 631, that there be a “meaningful standard by which to measure a reasonable expectation of finality.” The Court in Lingle eschewed a rule involving a determination of when a “significant” or “substantial” portion of the sentence was served in favor of the bright-line completion-of-sentence rule. Id. It should similarly eschew an alteration that would require determining what kind and duration of post-completion factors can delay the vesting of an expectation of finality, and leave the bright line firmly in place. Far from being a “single, definite, articulable event,” as the People claim (Brief for Respondent at 17), the rule they suggest would erase the Court’s current clear bright line and replace it with a moving target. For example, if release is a 1(...continued) took place after the defendant had finished serving his sentence violated double jeopardy. 5 required condition for establishing an expectation of finality in a determinate sentence, a defendant serving a concurrent or consecutive life sentence might never acquire such an interest, and the courts would be free to alter that sentence years or decades after its completion. Since that outcome is contradictory to there being a “temporal limit” to the courts’ jurisdiction, determining what that limit would be, if not at completion of the determinate sentence, would be anything but clear.2 The People complain that “defendant himself would inconsistently apply 70.30 for certain purposes, but not for this one” (Brief for Respondent at 30). That is true: Mr. Brinson would apply P.L. § 70.30 for its intended purpose of calculating release dates, but not for the unintended purpose of creating a new sentence or avoiding the constitutional double jeopardy constraints of the sentences the court imposed. The question in this case is not should the statute be applied differently in different contexts; this Court answered that question in the affirmative in State v. Rashid, 16 N.Y.3d 1, 18-19 (2010) (see Brief for 2 Eliminating the bright-line rule of completion of the determinate sentence would also invite a flood of additional litigation including, but not limited to, such questions as: would the rule be the same for concurrent sentences? For sentences imposed at the same time under different indictments? For sentences imposed under different indictments at different times? Can factors other than serving a longer consecutive or concurrent sentence delay acquisition of an expectation of finality in a sentence — such as that the defendant is serving PRS has not paid a fine or restitution, or is subject to an order of protection? The Court’s current bright-line rule that an expectation of finality in the sentence arises upon its completion answers all such questions. 6 Defendant-Appellant at 17-19). Rather, the question is whether it may be applied in this case without violating double jeopardy. The answer to that is no. The People also complain that treating a sentence as completed when its term expires would give defendants like Mr. Brinson a windfall because PRS on the determinate sentence would be served immediately, during his service of other, longer sentences (Brief for Respondent at 33). That would, indeed, be an absurd windfall if it could happen, which it cannot. Post-release supervision has that name for a reason — the inmate doesn’t begin to serve it until he is released. But the timing of the service of PRS has nothing to do with the finality of a sentence that does, or does not, include such a term. A yet-to-be-served period of PRS does not prevent the defendant from acquiring an expectation of finality in the sentence upon completion of the prison term because nothing in Lingle suggests that by “completion of the sentence” this Court was referring to completion of both the prison term and PRS. The People fare no better with their novel, but preposterous, argument that because a defendant must be released from prison when he has served 6/7 of his sentence, Mr. Brinson must not have finished serving his determinate sentence at the time PRS was added to it because the last 1/7 was somehow held in abeyance until his release to parole after serving the indeterminate prison terms (Brief for Respondent at 34-37). That argument, which invents a sentencing scheme in 7 which portions of sentences disappear and then pop back into existence, bears no resemblance to the one that New York actually employs. Imagine, for example, that Mr. Brinson’s consecutive indeterminate sentences were dismissed on appeal after he had been incarcerated for 10 years. According to the People, because his 1/7 parole period had not yet been served at the time of the dismissal, he had not yet finished serving his 10-year prison term. Under the People’s proposed theory, even though Mr. Brinson had been incarcerated for 10 years, he would have to remain on parole beyond the 10-year sentence of his only remaining conviction to serve the as-yet-unserved period of that sentence. That is not, and has never been, the law in New York, which would credit all time incarcerated against the remaining sentence. The only other way dismissal of the indeterminate counts could be handled under the People’s delayed parole theory would be to remove him from parole immediately by virtue of the 1/7 parole period having snapped back into place at the end of his 10 years of incarceration upon the dismissal of the other counts. There is simply no provision anywhere in the Penal Law for any such sentencing gymnastics. Again, P.L. §§ 70.30 and 70.40 must be understood as calculation statutes. Those sections do not purport to divide consecutive sentences into component parts to be served alternately — here, it would be incarceration for 6/7 of a determinate sentence, followed by incarceration for 2/3 of one indeterminate 8 sentence, followed by incarceration for 2/3 of the other indeterminate sentence, followed by 1/7 of the first sentence to be served on parole, and then back to parole for 1/3 of each of the other two sentences. Rather, DOCCS calculates a single conditional release date and maximum expiration date taking all sentences into account. If some sentences are vacated, new dates are calculated. Nothing is held in abeyance. New York sentencing law has never been understood to function the way the People suggest, and they have supplied no authority for their view that it does. In fact, the DOCCS sentencing calculation in this case proves the People wrong: Mr. Brinson’s maximum expiration date was 1 year and 5 months after his conditional release date on all three sentences whereas, if the People’s theory was correct, he would have had that much parole on his determinate sentence alone. The DOCCS sentencing calculation does not account for the 1/3 parole associated with each indeterminate sentence that, under the People’s proposed theory, Mr. Brinson would have yet to serve. In short, since the P.L. § 70.40 conditional release requirement did not delay service of Mr. Brinson’s 10-year determinate sentence beyond 10 years, the addition of PRS to that sentence after Mr. Brinson finished serving it violated his constitutional right to double jeopardy. 9 CONCLUSION FOR THE REASONS STATED ABOVE AND IN MR. BRINSON’S PRINCIPAL BRIEF, THIS COURT MUST REVERSE HIS RESENTENCING AND DIRECT THAT HIS ORIGINAL DETERMI- NATE SENTENCE WITHOUT POST-RELEASE SUPERVISION BE REINSTATED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant- Appellant _______________________ By: Paul Skip Laisure Of Counsel April 18, 2013 10