The People, Respondent,v.Christopher Brinson, Appellant.BriefN.Y.May 30, 2013To be argued by PAUL SKIP LAISURE ((? 11inutesJ Court of Appeals STATE OF NEW YORK PEOPLE OFTHE STATE OF NEW YORK, Respondent, - against- CHRISTOPHERBRINSON, Defendant-Appellant. BRIEF AND APPENDIX FOR DEFENDANT-APPELLANT LYNNW. L. FAHEY Attorney for Defendant-Appellant 2 Rector St., 10th Floor New York, NY 10006 (212) 693-0085 Paul Skip Laisure OfCounsel January 25, 2013 INDEX TABLE OF AUTHORITIES 111 PRELIMINARY STATEMENT 1 QUESTION PRESENTED 2 SUMMARY OF ARGUMENT 2 STATEMENT OF FACTS 6 The Conviction and Sentencing . 6 The Resentencing 6 TheAp~~...........................7 ARGUMENT ADDING A 5-YEAR TERM OF POST-RELEASE SUPERVISION TO MR BRINSON'S DETER- MINATE SENTENCE AFTER FIE HAD FINISHED SERVING THAT SENTENCE AND WAS INCARCERATED ONLY ON CON- SE£CUTIVE INDETERMINATF'; SENTEmCES VIOLATED DOUBLE JEOPARDY 9 A. Appellant I-lad Finished Serving His 10-Year Determinate Prison Term By the Time He \vas Resentenced Because That Was the Sentence Pronounced By the Sentencing Judge, and It Was Not Altered By any Calculation of Release Dates Made Later By the Department of Corrections and Community Supervision. . 10 B. Because Appellant Had an Expectation of Finality in TIis 10-Year Determinate Sentence When the Resentencing Court Imposed PRS After Appellant Had Served More Than 10 Years in Prison, the Resentencing Violated Double Jeopardy 24 CONCLUSION 29 APPENDIX Order Granting Leave to Appeal ........................... Al The Decision & Order of the Appellate Division A 2 Brief for Defendant-Appellant A 5 Brief for Respondent . A 23 Reply Brief for Defendant Appellant . . . . . . . . . . . . . . . . . . . . . . .. A 46 Transcript ofJuly 14,2000 Sentencing. . . . . . . . . . . . . . . . . . . . . .. A 54 Transcript of April 28, 2010 Resentencing . A 67 DOCCS Inmate Information Printout. . . . . . . . . . . . . . . . . . . . . .. A 71 1995 Pre-Senetence Report . 2000 Pre-Sentence Report . Certification 11 A 73 A 85 TABLE OF AUTHORITIES CASES Earlev v. Murray, 451 F.3d 71 (2006) 3, 14 People v. Buss, 11 N.Y.3d 553 (2008)................................................. 4,17, 18, 19 People v. Campanella, 297 A.D.2d 642 (2d Dept. 2(02) 24 People v. Lingle, 16 N.Y.3d 621 (2011) 5,9,10,11,21,27,28 People v. Mills (Then), 11 N.Y.3d 527 (2008) 20 People v. Nieves, 27 Misc.3d 585 (Sup. Ct. N.Y. Co. 2010) 21 People v. Ramirez, 89 N.Y.2d 444 (1996) 13 People v. Sparber, 10 N.Y.3d 457 (2010) 2,7,14 People v. Trimm, 252 AD.2d 673 (3d Dept. 1998) 24 People v. Walltower, 27 Misc.3d 1205(a) (Sup. Ct. Queens Co. 2010) 20 People v. Williams, 14 N.Y.3d 198 (2010) 10,21,24,28 State v. Rashid, 16 N.Y.3d 1 (2010) 4,17,18,23 Stewart v. Scully, 925 F.2d 58 (2d Cir. 1991) 5, 24, 25, 26, 27 United States v. DiFrancesco, 449 U.S. 117 (1980) 9,24 United States v. Silvers, 90 F.3d 95 (4'h Cir. 1996) 10 Williams v. Travis, 143 F.3d 98 (2d Cir. 1998) 5, 25, 26, 27 CONSTITUTIONS NY Const., Art. 1, §6 9, 10 U.S. Const., Amend. V 9 111 u.s. Const., Amend. v 10 STATUTES N.Y. Crim. Proc. Law § 440.40 23 N.Y. Penal Ioaw§ 70.30(1) passim N.Y. Penal Law § 70.40(1) passim N.Y. Penal Law § 70.45 14, 19 IV COURT OF APPEALS STATE<; OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CHRISTOPHER BRINSON, Defendant-Appellant. PRELIMINARY STATEMENT By permission ofthe Honorable Victoria A Graffeo, AssociateJudge ofthe Court of Appeals, granted April 4, 2012, appellant Christopher Brinson appeals from an order of the Appellate Division, Second Department, entered December 6, 2011, affirming a reseentencing by the Supreme Court, Queens County, imposed on April 28,2010, adding a period of 5 years of post-release supervision to appellant's sentence (Kohm, J .). On May 31, 2012, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel on this appeal. No stay has been sought. Appellant is currently at liberty but on parole pursuant to the judgment. This Court has jurisdiction pursuant to c:.P.L. § 450.90(1) to entertain this appeal and review the issues raised. The issue raised was preserved by defense 1 counsel's timely argument on .April 28, 2010, before the resentencing court, that a resentencing would violate appellant's double jeopardy protections. QUESTION PRESENTED WHlrrHER ADDING A 5·YEAR TERM OF POST-RELEASE SUPERVISION TO MR. BRINSON'S DETERMINATE,; SENTENCE AFTlm HE HAD FINISHED SERVING THAT SENTENCE AND WAS INCARCERATED ONLY ON CONSECUTIVE INDETERMINATE SEN- TENCES VIOLATED DOUBLE JEOP ARDY SUMMARY QF ARGUMENT In this case, the sentencing court imposed a determinate term of 10 years in prison and concurrent indeterminate terms of 2 to 4 and 3 to 6 years in prison, and ordered that the shorter indeterminate terms be served consecutive to the determinate term. The court did not impose a term of post-release supervision ("PRS'). Wben Mr. Brinson was returned to court after having been incarcerated for more than 10 years, but before his release from prison, the resentencing court, finding that he had not completed his sentence, imposed a 5-year term ofPRS. The resentencing violated appellant's double jeopardy protections because PRS was imposed after appellant had developed an expectation of finality in his sentence. In People v. Sparber, 10 N.Y.3d 457 (2010), this Court confirmed that the sentence a defendant must serve IS the sentence the court imposed at 2 sentencing; it cannot be altered either by administrative correction of error or by invocation ofmandatory legislative sentencing provisions. As a result, the separate prison terms the court imposed were the only sentences appellant was serving at the time of resentencing. Since the sentencing court had ordered that the indeterminate terms be served consecutively to, i.e. after, the determinate term, and appellant had finished serving that term, he had established an expectation of finality in that sentence such that it could not be altered to add a term of PRS. Sections 70.30 and 70.40 of the Penal Law, which set forth the ways in which the Department of Corrections and Community Supervision CDOCCS") must calculate service of concurrent and consecutive sentences in order to establish release and expiration dates, do not purport to create a single aggregate sentence from the multiple ones that were imposed by the sentencing judge. Nor could they, consistent with constitutional due process principles, effectuate such a change even if they purported to do so, because even a mandatory statutory provision cannot override the sentences actually imposed by the sentencing judge. The same result obtains even if the statutes purported to create a single aggregate sentence. Sparber mirrored the Second Circuit Court of Appeals's decision in Earley v. Murrav, 451 F.3d 71, 75(2006), which held that a judge's failure to impose a term ofPRS meant that the defendant's sentence included no such term, even though the term was a mandatory requirement of the sentencing 3 statute. If an illegal sentence, without PRS, remains unaltered by a statutory provision requiring its imposition, multiple sentences remain unaltered by a statute that purports to fuse them into a single sentence. This Court's decision in People v. Buss, 22 N .Y.3d 553 (200S), is not to the contrary because this Court's application of Penal Law §70.30 in that case was made in the context of the non-criminal Sexual Offender Registration Act ("SORA"). The Court deemed the consecutive sentences defendant was serving to be a single sentence in order to effectuate the statutory purpose of the SORA statute. That Buss was merely an application ofthe sentencing calculation statutes limited to the SORA context was made clear in State v. Rashid, 16, N.Y.3d 1, 19 (2010), in which this Court declined to find that Penal Law § 70.30 transformed multiple consecutive sentences into a single aggregate sentence so as to permit the State to file a civil management petition while the defendant was in custody on a sex-offense. The Court found that the State could not avoid the "in custody on, a sex offense" requirement by relying on the sentencing calculation provisions of Penal Law § 70.30. If those provisions had actually created a new sentence, the defendant in Rashid would have been serving that sentence such that service by the State would have been proper. This Court confirmed that no such new sentence had been created. 4 Even if Penal Law §§ 70.30 and 70.40 created a new aggregate sentence in this case, Mr. Brinson had an expectation of finality in his 1O-year determinate term after 10 years had passed, such that double jeopardy principles still prohibited any alteration of Mr. Brinson's sentence after he had served 10 years of his aggregate sentence. Under federal precedent, a defendant's expectation of finality becomes stronger as he finishes serving more and more of his sentence. Stewart v. Scullv, 925 F.2d 58 (2d Cit. 1991); Williams v. Travis, 143 F.3d 98 (2d Cit. 1998). Since this Court, in People v. Lingle, 16 N. Y.3d621 (2011), has drawn a bright line at the completion of a sentence for double jeopardy purposes in the sentencing context, when Mr. Brinson had been incarcerated for 10-years, a period coextensive with the length ofhis determinate prison term as initially imposed by the Judge, double jeopardy barred adding PRS to his sentence even if it had become part of a longer aggregate sentence. 5 STATEMENT OF FACTS The Conviction and Sentencing Mr. Brinson was convicted of robbery in the second and third degrees and grand larceny in the fourth degree in connection with two robberies of the same complainant, one involving the use of a knife (A 86). On July 14,2000, the court imposed a determinate sentence of 10 years in prison on the second-degree robbery count without mentioning any term of post-release supervision ("PRS"), and indeterminate terms of 3 to 6 years and 2 to 4 years on the third-degree robbery and fourth-degree grand larceny counts, respectively (A. 64). The court ordered that the indeterminate counts "shall run concurrent with each other but consecutive to [the determinate count]" (A. 64-65). The Resentencing Mr. Brinson was brought to court on April 28, 2010, for a resentencing hearing to determine whether PRS should be imposed with respect to his 1G-vcar determinate sentence (A. 68). At that point, Mr. Brinson had been incarcerated continuously since his December 8, 1999, arrest, a period of more than 10 years (A. 71-72). The court acknowledged that PRS had not been imposed when Mr. Brinson was initially sentenced and the People did not dispute that Mr. Brinson had been incarcerated longer than ten years in this case (A-68-70). Although the People did not explicitly mention Mr. Brinson's 1995 conviction of attempted 6 criminal sale of a controlled substance in the third degree (A. 86, 81-82), they suggested that 5 years of post-release supervision would be "appropriate" (A 69). Defense counsel argued that, since Mr. Brinson had been incarcerated for over 10 years, he had finished serving his H)-year determinate sentence (A. 69). That he was still incarcerated with respect to consecutive indeterminate sentences on other counts did not change the fact that he had an expectation of finality in the determinate sentence he had finished serving (A. 69). Without analysis, the court stated, "[t]he court doesn't find that the sentence has already been completed," and imposed 5 years of1'RS nunc pro tunc to July 14,2000 (A. 70). The Appeal Mr. Brinson appealed, ario'Uing before the Appellate Division that his resentencing violated his federal and state double jeopardy protections because he had finished serving his determinate sentence before the court imposed 1'RS at his resentencing. Specifically, he argued that P.L. § 70.30 had not created a new single aggregate sentence out ofthe consecutive sentences the judge had imposed (I\. 11- 14), and that a holding to the contrary would violate the rule this Court announced in Sparber, 10 N.Y.3d 457, that the sentence a defendant is serving is the sentence the Judge pronounces, regardless of statutory requirements (A. 49-50). Mr. Brinson also argued, in the alternative, that even if he was serving a single aggregate sentence, his resentencing after having served more than 1() years 7 nevertheless occurred after he had acquired an expectation of finality in the original sentence in violation of his double jeopardy protections (A. 15-19). The People argued that Mr. Brinson's double Jeopardy claim failed because he was serving a single aggregate sentence by operation ofP.L § 70.30 (A. 35-39). The Appellate Division held that, because Mr. Brinson was charged with the knowledge that the Department of Corrections and Community Supervision ("DOCCS") aggregates consecutive sentences into a single sentence under P.L § 70.30, he had no reason to expect that discrete prison sentences nonetheless survive such that, as he serves the aggregated sentence, he is sequentially completing his punishment for each particular conviction. Thus, the defendant, who was serving what the statute regards as a single combined sentence at the time of the resentencing, did not have an expectation of finality in the portion of the sentence attributable to his conviction of robbery in the second degree (A 3). Judge Graffeo granted Mr. Brinson permission to appeal to this Court (A 1). 8 ARGUMENT ADDING A 5-YEAR TERM OF POST-RELEASE SUPERVISION '1'0 MR. BRINSON'S DETER- MINATE SENTENCE AF'fER HE HAD FINISHED SERVING THAT' SENTENCE AND WAS INCARCERATED ONLY ON CONSECUTIVE INDETERMINATE SEN- TENCES VIOLATED DOUBLE JEOPARDY The Double Jeopardy Clause of the United States Constitution protects a defendant from having his sentence enhanced once he has developed a legitimate expectation of finality in the original sentence, even if it was illegal. United States v. DiFrancesco, 449 U.S. 117,139 (1980). Because appellant Christopher Brinson had completed his 10-year determinate sentence before the resentencing that added PRS to that term, and he was incarcerated only on a longer consecutive indeterminate sentence, Mr. Brinson had a legitimate expectation in the finality of his sentence at the time of resentencing. Accordingly, resentencing him to add a 5·-year period ofPRS to this sentence violated his constitutional double jeopardy guarantees. U.S. Const., Amend. V; N.Y. Const., Art. 1, §6; DiFrancesco, 449 U.S. at 139; People v. Lingle, 16 N.Y.3d 621, 630 (2011). Accordingly, the unlawfully imposed term ofPRS should be vacated. Even if this Court takes the view that the sentences the court imposed could be construed as having somehow been converted into a single aggregate sentence, the resentencing still violated Mr. Brinson's constitutional double 9 jeopardy rights because, once he had served more than the 10 years the court had imposed, he had developed a reasonable expectation of finality in that sentence such that the addition of PRS violated his federal and state double jeopardy guarantees. U.S. Const., Amend. V; N.Y. Const., Art. 1, § 6. A. Appellant Had Finished Serving His 1O·Year Determinate Prison Term By the Time He Was Resentenced Because That Was the Sentence Pronounced By the Sentencing Judge, and It \\!as Not Altered By any Calculation ofRelease Dates Made Later By the Department ofCorrections and Community Supervision. InPeoplev. Williams, 14N.Y.3d 198,219-20 (2010), and Lingle, 16 N.Y.3d at 630, this Court held that the Double Jeopardy Clause of the Fifth Amendment forbids the addition of PRS to a defendant's determinate sentence after he has completely finished serving that sentence and the People's time to appeal the sentence has expired. The Court based its determination on federal precedent holding that "a reasonable expectation of finality arises upon completion of an imposed sentence, resulting in the attachment of jeopardy precluding resentencing." Williams, 14 N.Y.3d at 216 (citing United States v. Silvers, 90F.3d 95, 101 (4th Cir, 1996)). It was undisputed at his resentencing that Mr. Brinson, who had been continually incarcerated since his arrest on December 8,1999, had been incarcerated for more than TO years (A. 69,70). Thus, he had completed his TO-year determinate second-degree robbery sentence before he was resentenced. The only reason he remained incarcerated was that he was serving consecutive 10 time on the third-degree robbery and fourth-degree grand larceny convictions. The unequivocal Lingle/Williams rule applies in this case because Mr. Brinson had completed his determinate sentence and the People's time to appeal had expired long before his resentencing. See Lingle, 16 N.Y.3d at 630 ("an expectation of finality arises for purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts any appeal taken"). Contrary to the Appellate Division's decision, Mr. Brinson's sentences were not somehow converted into a single aggregate sentence by operation of the statutes that set forth the ways in which DOCCS is to calculate the service of consecutive determinate and indeterminate sentences. That interpretation both misreads P.L. §§ 70.30 and 70.40, and violates the basic principle this Court recognized in Sparber: that a defendant's sentence is what the judge pronounces at sentencing. The statutory sentence calculation scheme does not effect an alteration of sentences. Itmerely directs DOCCS's calculation ofservice time and release dates. Indeed, with respect to consecutive sentences, the determination ofmaximum and minimum service dates is addressed in separate and distinct statutes - one that addresses maximum time to be served, and one that addresses parole and conditional release dates. The calculation of the maximum expiration date is controlled by § 70.30, which is entitled, "Calculation of terms of imprisonment" 11 (emphasis supplied). Subsection (l)(d) of that statute directs that, if a defendant is serving consecutive determinate and indeterminate sentences, "the minimum term or terms of the indeterminate sentence or sentences and the term or terms of the determinate sentence or sentences are added to arrive at an aggregate maximum term of imprisonment," except that "the aggregate maximum so calculated" cannot be less than the longest maximum term (emphasis supplied). C3iven its repeated use of the term "calculated," § 70.30 does not purport to create a new maximum sentence; it merely directs DOCCS to calculate when the defendant must be released, having served the maximum time required under his various sentences. The defendant's earliest release date is calculated pursuant to P.L. § 70.40, which is entitled "Release on parole; conditional release; presumptive release." Subsection (1)(a)(iv) directs that a defendant "may be paroled at any time after the expiration of the sum of the minimum or aggregate minimum period of the indeterminate sentence or sentences and six sevenths of the term or aggregate term of imprisonment of the determinate sentence or sentences." Thus, P.L. ~ 70.40, which references the "sum" ofminimum and six-sevenths time, does not.v purport to create a new minimum sentence. It merely establishes the date on which the defendant may be released, having served the minimum time required under his various sentences. 12 Subsection (l)(a) ofP.L. § 70.30, which regulates the calculation of release dates when an inmate is serving concurrent sentences, makes even more clear that the overall statutory calculation scheme does not operate to create a new sentence. Under that subsection, "the time served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent indeterminate sentences and against the terms of all the concurrent determinate sentences" (emphasis supplied). Only the maximum terms "merge in and are saris fled by" the longest maximum sentence; the minimum terms do not merge. Since there cannot be a single sentence with multiple minimum terms but only one maximum term, subsection (1)(a) can be understood only as a sentence calculation directive, not a provision that alters or replaces sentences imposed by the trial court. And if subsection (l)(a) is merely a calculation directive, there is no reason to consider the other sections ofthe overall statutory scheme to be anything other than sentence calculation directives. Indeed, this Court recognized as much in People v. Ramirez, 89 N.Y.2d 444, 450 (1996), when it characterized, in dicta, the resulting calculation as "a single punishment measured by the sentence with the highest grade offense into which all the concurrent sentences merge" (emphasis supplied). The way DOCCS must calculate time that is to be served under consecutive sentences does not, and cannot, convert those sentences into a single aggregate 13 sentence for another, more fundamental, reason as well. In People v. Sparber, 10 N.Y.3d 457, 469-70 (2008), this court recognized that courts must pronounce sentence upon conviction in the defendant's presence, and that even a term required by statute is not a part of the sentence unless and until a sentencing judge imposes it. At issue in Sparber was the mandatory requirement that a predicate felony offender receiving a determinate sentence must serve 5 years of PRS. Although the sentencing court was without discretion to impose less PRS, or none at all, its failure to pronounce the 5-year term ofPRS nevertheless meant that PRS was not a part of the sentence. Id. Sparber mirrored federal court precedent that the sentence the defendant must serve is only what the judge pronounces at sentencing. Earley v. Murray, 451 I·'.3d 71,75 (2006) (failure ofsentencing judge to pronounce a term of post-release supervision prevented Department of Correctional Services from adding it to defendant's sentence). Thus, a judge's failure to impose PRS results in a sentence that does not include PRS, even if the term is mandated by a statute that purports to make it applicable automatically by operation of law. Sparber, 10 N.Y.3d at 46970; see P.L. § 70.45(1). The People nevertheless argue that, since the calculation of the aggregate amount of time to be served under Mr. Brinson's consecutive sentences took place automatically by operation of law under P.L § 70.30, his sentences were 14 transformed into a single aggregate sentence that he had not yet finished serving when he was resentenced. The logical - and legal - contradiction is obvious: DOCCS can no more alter sentences imposed by a court by agf,l1:egating them pursuant to P.L § 70.30 than it can alter a sentence by adding PRS that a court did not impose, even though, in each case, a statutory mandate is involved. Since the sentencing court imposed separate, consecutive sentences, not a single aggregate sentence, Mr. Brinson is serving separate consecutive sentences, not a single aggregate one. The aggregate "sentence" purportedly created at by DOCCS was nothing more than the application of a statutory calculation method designed to ensure the correct, uniform calculation ofrelease dates associated with the service of consecutive sentences imposed by a judge. The People cited no authority in the Appellate Division for the proposition that a court is free to resentence a defendant who has finished serving his determinate sentence merely because he is serving a longer consecutive indeterminate sentence (A. 42-43). Rather, their entire analysis, and that of the Appellate Division, depended upon a finding that Mr. Brinson was serving a single aggregate sentence calculated by DOCCS rather than the separate consecutive sentences imposed by the court, a finding precluded by Sparber. But the judge in this case imposed three prison sentences: a determinate sentence of 10 years, an indeterminate sentence of 3 to 6 years, and another indeterminate sentence of 2 15 to 4 years. He ordered that the indeterminate sentences be served concurrently with each other but consecutively to the determinate sentence. The sentencing Judge said nothing about how DOCCS was to calculate potential release dates with respect to those sentences. Nor did he purport to convert them to a single aggregate sentence. The Appellate Division's decision charged Mr. Brinson with knowledge that DOCCS calculates an aggregate sentence so that he could have no expectation that his judge-imposed sentences survived. That conclusion, however, depends on whether the DOCCS calculation actually eliminated those judicially-imposed sentences and substituted a single aggregate sentence. Since it did not, Mr. Brinson did have an expectation that the sentences the Judge imposed "survived" and that he was "sequentially completing his punishment for each particular conviction" (A. 3). Since Mr. Brinson completed the determinate sentence the court imposed prior to his resentencing to add PRS, the resentencing violated his federal and state double jeopardy rights under Lingle and Williams, which categorically preclude resentencing after the defendant has finished serving the sentence the judge imposed. That he would not be released after finishing that sentence because of his additional consecutive sentences did not convert his 1O~year sentence into something the judge did not impose. 16 This Court's decision in People v. Buss, 11 N.Y.3d 553, 557 (2008), is not to the contrary. In that case, the Court held that, for Sexual Offender Rel:,>1stration Act ("SORA") purposes, consecutive sentences can be deemed to have been "made into one." The Court relied on P.L. § 70.30 to find that defendants who were serving consecutive sentences on crimes not subject to SORA could nevertheless be considered "Detained Sex Offenders" subject to civil management under SORA. Id. at 557. The Court noted, however, that it was reasonable to require that the defendant "identify himself as a sex offender when ultimately released from prison, even though his sex offense would have expired before SORA became effective had he not committed his later crime," because the purpose ofSORA is to protect the public. Id. at 558. That this Court deemed the consecutive sentences to be a single sentence for SORA purposes did not amount to a holding that DOCCS calculations under P.L. §§ 70.30(1 )(d) and 70.40(1) (a)(iv) convert consecutive sentences into a single aggregate sentence in any other context. In fact, this Court recognized in State v. Rashid, 16 N.Y.3d 1, 18-19 (2010), that in the Article 10 civil management context, P.L. §§ 70.30(1)(d) and 70.40(1 )(a)(iv) do not create a single aggregate sentence out of multiple consecutive sentences. Under Article 10, the State must file a civil management petition while the defendant is in custody on a qualifying sex offense or sexually 17 motivated offense. Id. at 17. The Court specifically held that the State could not avoid this Article 10 filing requirement by relying on a DOC:C:S calculation under P.L. § 70.30. That calculation did not mean that the defendant was serving a single aggregate sentence derived from the sex offense for which civil management was sought and an unrelated consecutive sentence. Thus, the State's attempt to initiate Article 10 proceedings after the defendant had finished serving his sex offense sentence, but before he had completed parole related to the unrelated consecutive sentence, was unlawful. Id. at 18-19. This Court distinguished Buss from Rashid on the ground that Article 10 contained a comprehensive and specific scheme for determining what sentences are subjectto civil management while SORA did not. Rashid, 16 N.Y.3d at 17-18. But that distinction would have been impossible if P.L. §§ 70.30(1)(d) and 70.40(1)(a)(iv) actually created a single aggregate sentence out of multiple consecutive sentences. Had that been the case, Rashid would have been serving that single sentence when the Article 10 petition was filed because he was still on parole. The Court's holding in Rashid that he had finished serving his sex offense sentence therefore supports the conclusion that the defendant in Buss was merely "deemed" to be serving a single sentence for SOR/\ purposes, not that DOCCS's sentence calculations had actually created a single new aggregate sentence. 18 This Court's holding in Rashid, cannot be reconciled with the holding the People seek in this case. If the defendant's sentences in Ihshid had already become a single aggregate sentence, Article 10 would have permitted the filing of a civil management petition any time prior to release from prison on the aggregate sentence that included the sexual offense conviction. There would be no occasion to determine whether the P.L. § 70.30 sentencing provisions should be used to determine eligibility because the new sentence was already a fait accompli. When Rashid is compared with Buss, the only case in which this Court treated a P.L. § 70.30 sentence calculation as if it were an aggregate sentence, it is clear that it was the purpose of the Sexual Offender Registration Act ("SORA") - protection of the public - that led the Court to permit the filing of a hearing notice after the offender's sentence was complete, but before he was released from prison.' That a statutory purpose might be served by a resentencing is irrelevant when determining whether a resentencing violates constitutional double jeopardy protections (as opposed to conducting a hearing in a collateral proceeding like SORA). Thus, that P.L. § 70.45's purpose is to ensure that post-release Indeed, waiting until the last possible moment to conduct a SORA hearing potentially benefits the defendant as well, who can use the additional time to complete further rehabilitative programs hoping to convince the court to make a downward departure in registration level. 19 supervision be served is irrelevant when determiningwhether imposition has been done in a timely manner for double Jeopardy purposes. This Court reached a similar conclusion in People v. Mills (Then), 11 N. Y.3d 527 (2008), when it held that separate sentences must be treated separately in the Drug Law Reform Act ("DLRA") context. In that case, defendant Then sought resentencing for 1999 and 2003 A~II felony convictions. Under the 2005 DLRA, which applied to A~II drug felonies, a defendant who was within three years of parole eligibility, or had been released to parole, was not eligible for resentencing. Then, who had been released to parole on the 1999 case but was more than 3 years from parole eligibility on the 2003 case, argued that he was eligible for resentencing in both cases. Td. at 533. This Court held that Then's parole status in each case controlled eligibility for that case. Therefore, he was ineligible for resentencing in the 1999 case despite his subsequent incarceration in the 2003 case, but he was eligible in the 2003 case. Td. at 537. While Mills did not specifically address P.L. §§ 70.30(1) or 70.40(1)(a)(iv), its reasoning is consistent with the Court's holding in Rashid. Other courts also have refused to apply P.L. § 70.30(1)(d) in the DLRA context on the ground that to do so would conflict with the ameliorative purpose of the DLRA. In People v. Walltower, 27 Misc.3d 1205(a) (Sup. Ct. Queens Co. 2(10), the court ruled that "the primary function" ofP.L.§ 70.30 "is to allow for 20 the ready calculation of parole eligibility," and the "primary goals of the 2009 DLRA are not served" by using that statute to deny resentencing. See People v. Nieves, 27 Misc.3d 585,592-93 (Sup. Ct. NY Co. 2(10) (same). These cases confirmed that sentencing calculations made pursuant to P.L. §§ 70.30 and 70.40 do not alter court-imposed sentences by converting them into a single new aggregate sentence. The statutes may be used to determine custodial status for SORA purposes, but they do not serve the same role with respect to the Mental Hygiene Law or the DLRA. That would not be true ifP.L. § 70.30 actually converted consecutive sentences into one indivisible aggregate sentence. If § 70.30 created a single aggregate sentence, that would be the sentence the defendant was serving for all purposes, not subject to a court's determination as to the appropriateness of the operation of § 70.30 in a particular context. Williams 14N.Y.3dat217, and Lingle, 16 NY3d at 630, do not suggest a contrary rule. While it is true that in \X!illiams this Court discussed a defendant's release from prison as a factor indicating finality, that language led to confusion with respect to defendants who had been released to parole. The Court cleared up that confusion in Lingle, by holding that "an expectation of finality arises for the purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts any appeal taken." Id. (emphasis in original). No longer could release from prison be relied upon by defendants as creating an 21 expectation of finality in the sentence. A fortiori, if release from prison does not give rise to an expectation of finality, neither is it a prerequisite for finality. Rather, it is the completion of the sentence that controls. For these reasons, since P.L. § 70.30 did not, and cannot, operate to convert Me Brinson's separate consecutive sentences into one sentence, and Me Brinson had already completed his lO·year determinate sentence when he was resentenced to add PRS, the resentencing violated his double jeopardy rights. The addition of PRS significantly increased Me Brinson's sentence. Without PRS, he would serve a total of 10 years on his lO-year determinate sentence: either incarcerated for the full 10 years or incarcerated for approximately 8'/2 years with 1'/2 years of supervision to follow. Instead, he must serve between 8 '/2 and 10 years in prison, with 5 years of supervision to follow. The People may argue that even if the Court finds that Mr. Brinson was serving separate sentences rather than a single aggregate sentence, he nevertheless has no expectation of finality in his 1O-year determinate sentence because he cannot demonstrate that he served that sentence first, before his indeterminate sentences. I Iowever, there are several facts that establish that he did, in fact, serve the determinate sentence first. The sentencing court imposed the longest term - the determinate sentence on count two, robbery in the second degree - first, as 1S customary. This Court has already recognized that sentencing order matters 22 when, in Rashid, 16 N .Y.3d at 18-19, it held that the filing of a civil management petition after the defendant had finished serving his sex offense sentence, but while still serving a later-imposed consecutive sentence, was untimely. This Court had no trouble determining that the sentence imposed first was being served first. Any doubt about that was resolved when the court here specifically directed that "[c]ount three and four shall run concurrent with each other but consecutive to count two" (sec A. 64, emphasis supplied). There is no way to read "consecutive to count two" other than that count two was to be served first and the other two counts were to be served afterward. Besides, common sense dictates that the longest sentence, the one imposed on the highest count of conviction, be considered paramount. It makes no sense that lesser sentences would be served first, before the primary sentence imposed in response to the defendant's most serious transgression. At Mr. Brinson's original sentencing, PRS was never mentioned. For over 10 years, he operated with the legitimate expectation that his determinate sentence would be 10 years long. That expectation was reinforced by the fact that the People's one-year window to move to change his sentences had long-since expired. See c.P.L. § 440.40. Because, at the time of the resentencing,Mr. Brinson had completely finished serving his determinate sentence and the People's time to appeal those sentences had expired, jeopardy had attached and the window 23 available for resentencing had closed. See Williams, 14 N.Y.3d at 216. Accordingly, the Appellate Division's decision should be reversed and the unlawfully-imposed term ofPRS vacated. B. Because Appellant Had an Expectation of Finality in His H)-Year Determinate Sentence When the Resentencing Court Imposed PRS .After Appellant I-lad Served More Than 10 Years in Prison, the Resentencing Violated Double Jeopardv. Even if the sentences the court imposed could possibly be construed as having been somehow converted into a single aggregate sentence, the State and Federal Double Jeopardy Clauses both prohibited resentencing because Mr. Brinson had, nonetheless, developed a legitimate "expectation of finality in the original sentence." United States v. DiFrancesco, 449 U.S. 117,139 (1980). This was so even though that original sentence was illegaL Stewart v. Scully, 925 F2d 58 (2d Cir. 1991); People v. Campanella, 297 A.D.2d 642 (2d Dept. 2(02); People v. Trimm, 252 AD.2d 673 (3d Dept. 1998). All the relevant factors in this case show that Mr. Brinson, having served more than 10 years of his 10-year determinate sentence, had a legitimate expectation in the finality of that sentence, and therefore resentencing him to add a 5-year period of post-release supervision to that sentence violated double jeopardy. In Stewart v. Scully, 925 F.2d 58, Stewart was sentenced to 10 to 20 years for attempted murder. Three years later, he filed a CP.L. §440.20 motion, 24 pointing out that, since his crime was not an "armed" felony, his minimum sentence could not exceed a third of his maximum sentence. The court resentenced him to 8 to 24 years. The United States Court of Appeals for the Second Circuit held that the increase in his maximum sentence violated double jeopardy because, despite its illegality, by the time Stewart had served 3 years of his sentence, he had developed a legitimate expectation of finality in it: "the key to double jeopardy analysis of a sentence increase is whether the defendant had a legitimate expectation in the finality of his original sentence." 925 F.2d at 63. It also noted that Stewart's maximum sentence had "real impact" on him, as it controlled, inter alia, the duration of his parole. 925 I'.2d at 64. In contrast, in Williams v. Travis, 143 F.3d 98 (2d Cir. 1998), Williams was originally sentenced to 3'12 to 7 years. The People immediately informed the court that the sentence was illegal because Williams was a first felony offender, and within a week the court resentenced him to 3'/2to 10'/2 vears. The Second Circuit, found that double jeopardy had not been violated. It distinguished Stewart v. Scullv in that Stewart, having served 3 years of his 1O-to-20-year sentence, had a "far stronger expectation of finality" in his original sentence than Williams, who was resentenced after only a week. 143 F.3d at 99. In particular, it noted that "the government's ability to appeal the defendant's sentence" was an "important factor bearing upon a defendant's expectation of finality," and that, unlike Stewart, 25 Williams was resentenced within both the 30 days available to the People to appeal under CP.L. § 460,10(1), and the year available to them to move to set an illegal sentence aside under C,P,L, § 440,40(1), 143 F,3d at 99, 'rhus the federal double jeopardy cases draw a clear distinction between illegal sentences that are corrected promptly and those that are not, The longer a defendant serves under his original sentence before its illegality is corrected, the greater his expectation of finality, Compare Williams v. Travis, 143 F,3d at 99; with Stewart v. Scully, 925 F2d at 63, Here, all the relevant factors establish that Mr. Brinson's right not to be placed in double jeopardy was violated when he was resentenced after having served more than 10 years of his 1O-year determinate sentence to add 5 years of post-release supervision to it. At Mr. Brinson's original sentencing, post-release supervision was never mentioned (A 64). He was simply sentenced to a determinate term of 10 years, and to indeterminate terms of 3 to 6 years and 2 to 4 years (A, 64). Because the court ordered that the indeterminate terms be served consecutively to the determinate term, Mr. Brinson was still in prison after having finished serving 10 years, There was nothing that occurred at the original sentencing to make Mr. Brinson even contemplate the possibility that he could eventually end up with 5 years of post-release supervision added to his sentence, And neither the People nor anyone else ever brought the illegality ofMr. Brinson's sentence to the Cour"s attention in anything remotely approaching a timely 26 manner. Rather, everything led him to the legitimate expectation that he would have to serve a sentence no longer than 10 years, Under the federal Double ] eopardy Clause, ifStewart had an expectation of finality 3 years into his 1O-to-20- year sentence, Mr. Brinson obviously had such an expectation in the finality of a lO-year sentence after having been incarcerated longer than 10 years, Mr. Brinson had an expectation of finality in a sentence without PRS at the time ofhis resentencing even under the state and federal Double]eopardy Clauses as construed by this Court in Lingle, 16 N.Y3d at 630, In Lingle, this Court held that a double jeopardy violation turned not on whether the defendant had been released, but rather on whether he had served the maximum terms imposed by the sentencing court Thus, defendants who had been released after serving six- sevenths of their sentences could be resentenced because, until the last seventh had expired, they had not acquired an expectation of finality in those sentences, Here, in contrast, Mr. Brinson acquired a reasonable expectation of finality of his lO-year determinate sentence as soon as he had been incarcerated for 10 years. Unlike the Lingle defendants, he served an amount of time equal to the maximum term imposed by the judge, His expectation of finality in a sentence without PRS arose, therefore, not just from the fact that nearly 10 years had elapsed since Mr. Brinson was originally sentenced, see Stewart, 925 F2d at 63, but also because he 27 had served an amount of time equal to the expiration of his determinate sentence. Cf. Lingle, 16 N.Y.3d at 630-31. That Mr. Brinson had not been released by the time of the resentencing was immaterial. In Williams, 14 N.Y.3d at 216, this Court found that double jeopardy barred resentencing in cases involving defendants who had completed their sentences and had been released from prison. \Xlhen defendants suggested that release from prison alone barred resentencing, this Court clarified in Lingle that it is the completion of the sentence, not release from prison, that controlled for double jeopardy purposes. 16 N.Y.3d at 630-31. Read together, Lingle and \Villiams teach that when a defendant has served the maximum amount of time the court imposed, he has reached an expectation of finality in that sentence. If an earlier release does not trigger double jeopardy protections, a later release cannot delay them. Finallv, a holding to the contrary would unjustifiably treat criminal defendants with multiple consecutive sentences differently for double Jeopardy purposes from defendants serving a single sentence. Obviously, under Lingle, someone serving a single determinate 10-year sentence could not be resentenced after he had been incarcerated for 10 years. Mr. Brinson, however, under the rule announced by the Appellate Division in this case, could have been resentenced on his 10-year determinate term after a delay of as long as nearly 16 years. In other 28 cases, the delay could be far greater, There is no logical or equitable reason to establish different triggering periods for defendants serving identical sentences based on the existence ofother sentences imposed at the same time, This is all the more true when, as in this case, the other sentences stemmed from an unrelated criminal act Double Jeopardy should attach on a per-sentence basis, and there is no justification for elongating the applicable period, Adopting a rule permitting resentencing long after the defendant has finished serving the number ofyears the judge imposed on a particular count, just because he was also required to serve more time due to other convictions, would be fundamentally unfair, CONCLUSION FOR THE REASONS STATED ABOVE, TIllS COURT MUST REVERSE THE RESENTENCING AND DIRECT THAT MR, BRINSON'S ORIGINAL DETERMINATE SENTENCE WITHOUT POST~RELEASESUPERVISION BE REINSTATED, Respectfully submitted, LYNN W, L, FAIIEY Attorney for Defendant- Appellant /~, Bv: Paul Ski, Of Counsel January 25, 2013 29