The People, Respondent,v.Christopher Brinson, Appellant.BriefN.Y.May 30, 2013To be argued by ANASTASIA SPANAKOS (TIME REQUESTED: 15 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against CHRISTOPHER BRINSON, Defendant-Appellant. W444444444444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-5810 JOHN M. CASTELLANO ANASTASIA SPANAKOS Assistant District Attorneys Of Counsel APRIL 3, 2013 Queens County Indictment Number 3997/98 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Defendant’s Re-sentencing Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . 5 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT DEFENDANT’S RE-SENTENCING DID NOT VIOLATE DOUBLE JEOPARDY BECAUSE HE HAD NOT COMPLETED HIS ORIGINAL SENTENCE, AND, UNDER THIS COURT’S PRECEDENT, HE HAD NO LEGITIMATE EXPECTATION OF FINALITY IN THAT ILLEGAL SENTENCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. Under Section 70.30, Defendant’s Original Determinate Sentence Was Aggregated with His Indeterminate Sentence Imposed at the Same Time under the Same Judgment of Conviction And, Because Defendant Was Still Serving this Term at the Time of Re-sentence, His Re-sentence Did Not Violate Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 B. Even Assuming His Single Determinate Sentence Can Be Viewed Independently From Section 70.30, Defendant Could Not Have Completed That Sentence Until He Served a Period of Conditional Release Resulting from That Sentence.. . . . . . . . . . . . . . . . . . 34 C. This Court Has Previously Rejected Defendant’s Argument That the Mere Service of a Substantial Portion of His Sentence Is Enough to Create an Expectation of Finality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 ii TABLE OF AUTHORITIES Page No. Cases Brinson v. Annetts, __ F.3d __, CV-05-5582, 2008 U.S. Dist. LEXIS 76388 (E.D.N.Y. 2008).. . . . . . . . . . 3n.3-4n.3 Gonzalez-Fuentes v. Molina, 607 F.3d 864 (1st Cir. 2010) . . . . . . . . . . . . 19 In re Mason, 100 N.Y.2d 56 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Matter of State of New York v. Rashid, 16 N.Y.3d 1 (2010). . . . . . . . . 30, 31 Missouri v. Hunter, 459 U.S. 359 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Montstream v. Superintendent, Bedford Hills Corr. Facility, 486 Fed. Appx. 164 (2d Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . 27 Morrissey v. Brewer, 408 U.S. 471(1972). . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Brinson, 1 A.D.3d 443 (2d Dept. 2003). . . . . . . . . . . . . . . . . . 3n.1 People v. Brinson, 302 A.D.2d 471 (2d Dept. 2003). . . . . . . . . . . . . . 3n.1, 6 People v. Brinson, 90 A.D.3d 670 (2d Dept. 2011). . . . . . . . . . . . . . . 5, 6, 26 People v. Buss, 11 N.Y.3d 553 (2008). . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Delk, 59 A.D.3d 733 (2d Dept. 2009). . . . . . . . . . . . . . . . . . . . . . 32 People v. Gammon, 19 N.Y.3d 893 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. KinKan, 78 N.Y.2d 54 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Konstantinides, 14 N.Y.3d 1 (2009). . . . . . . . . . . . . . . . . . . . . . . 40 iii People v. Lingle, 16 N.Y.3d 621 (2011). . . . . . . . . . . . . . . . . . . . . . . . passim People v. Martinez, 74 A.D.3d 434 (1st Dept. 2010). . . . . . . . . . . . . . . . . . 29 People v. Merejildo, 45 A.D.3d 429 (1st Dept. 2007). . . . . . . . . . . . . . . . . 33 People v. Mills (Then), 11 N.Y.3d 527 (2008). . . . . . . . . . . . . . . . . . . . . . . 31 People v. Sharlow, 16 N.Y3d 621 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Sparber, 10 N.Y.3d 457 (2008).. . . . . . . . . . . . . . . . . . . . . . passim People v. Velez, 19 N.Y.3d 642 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 People v. Walltower, 27 Misc.3d 1205(a) (Sup. Ct. Queens Co. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Williams, 14 N.Y.3d 198 (2010). . . . . . . . . . . . . . . . . . . . . . passim People v. Wright, 56 N.Y.2d 613 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Stewart v. Scully, 925 F.2d 58 (2d Cir. 1991).. . . . . . . . . . . . . . . . . . . . 38, 39 United States v. DiFrancesco, 449 U.S. 117 (1980).. . . . . . . . . . . . . . . . . . 27 United States v. Pettus, 303 F.3d 480 (2d Cir. 2002). . . . . . . . . . . . . . . . . . 27 Whalen v. United States, 445 U.S. 684 (1980). . . . . . . . . . . . . . . . . . . . . . . 27 Williams v. Travis, 143 F.3d 98 (2d Cir. 1998). . . . . . . . . . . . . . . . . . . . . . 39 Statutes Corr. § 803. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 36 C.P.L. § 440.46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 iv Penal Law § 70.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Penal Law§ 70.40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 34, 35, 41 Penal Law § 70.45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24n.2 Penal Law § 155.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Penal Law § 160.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Penal Law § 160.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Penal Law § 265.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Other Authorities Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1296 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 v COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : : -against- : CHRISTOPHER BRINSON, : Defendant-Appellant. : ---------------------------------------------------------------------x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, defendant appeals from a December 6, 2011, order of the Appellate Division, Second Department, affirming an April 28, 2010, re-sentence of the Supreme Court, Queens County (Kohm, J.). In 2000, after a jury trial before the Honorable Robert C. Kohm, defendant was convicted of Robbery in the Second Degree, Robbery in the Third Degree, and Grand Larceny in the Fourth Degree. On July 14, 2000, defendant, a second felony offender, was sentenced to a determinate term of ten years of imprisonment for the second-degree robbery conviction, and indeterminate terms of from three to six years for the third-degree robbery conviction and two to four years for the grand larceny conviction. The indeterminate terms were ordered to be served concurrently to each other and consecutive to the determinate term. The court failed to mention the statutorily mandated post-release supervision. Almost ten years later, on April 28, 2010, after being notified by the Department of Correctional Services that the court had failed to impose post-release supervision (PRS), the court re-sentenced defendant, who had been in continuous custody since his arrest in 1999, by adding a five-year term of PRS nunc pro tunc to his July 14, 2000 sentence, which he was still serving. He now appeals from the Appellate Division’s affirmance of that re- sentencing. INTRODUCTION On December 3, 1998, defendant demanded money from Surrinder Singh and, after he refused, defendant grabbed Mr. Singh in a threatening manner, causing Mr. Singh to give defendant twenty dollars. Three days later, on December 6, 1998, defendant and two other males approached Mr. Singh, placed a knife to his stomach, and forced him to give them fifty dollars. 2 For these acts, defendant was charged with Robbery in the First Degree (Penal Law § 160.15-3), Robbery in the Second Degree (Penal Law § 160.10-1), Robbery in the Third Degree (Penal Law § 160.05), Grand Larceny in the Fourth Degree (Penal Law § 155.30-5), and Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01-2)(Queens County Indictment Number 3997/98). Thereafter, defendant proceeded to trial before the Honorable Robert C. Kohm and a jury. At the conclusion of the trial, defendant was convicted of second- and third-degree robbery and fourth-degree Grand Larceny. On July 14, 2000, defendant, a second felony offender, was sentenced to a determinate term of ten years of imprisonment for the Robbery in the Second Degree conviction, and indeterminate terms of from three to six years for Robbery in the Third Degree and two to four years for Grand Larceny in the Fourth Degree. The indeterminate terms were ordered to be served concurrently to each other and consecutive to the determinate term. The court failed to mention the statutorily mandated post-release supervision. 1 Defendant appealed his conviction in 2002 and after the case was remitted for a1 Wade hearing, his conviction was affirmed. See People v. Brinson, 1 A.D.3d 443 (2d Dept. 2003); People v. Brinson, 302 A.D.2d 471 (2d Dept. 2003). Defendant also sought a federal writ of habeas corpus, which was denied. Brinson v. Annetts, __ F.3d __, CV-05-5582, 2008 3 In March, 2010, the Department of Correctional Services notified the court, pursuant to section 601(d) of the Correction Law, that it had failed to impose PRS and a re-sentencing was necessary to correct the mistake. Consequently, the case was placed on the court’s calendar on April 28, 2010. Defendant, who had been continuously incarcerated in state custody since arrest on December 8, 1999, was produced in court and represented by counsel. Defendant argued that the PRS should not be imposed because he already completed his ten-year determinate term and was only serving his indeterminate consecutive terms of three to six and two to four years’ incarceration at that time. He did not explain why he believed that the determinate sentence was served before the consecutive indeterminate sentences, all of which were imposed at the same time. The court re-sentenced him by adding a five-year term of PRS nunc pro tunc to July 14, 2000. The court concluded that defendant had not yet completed the incarceratory portion of his sentence, and, pursuant to section 70.45 of the Penal Law, a term of PRS was mandated. U.S. Dist. LEXIS 76388 (E.D.N.Y. 2008)(Trager, J.). 4 Defendant’s Re-sentencing Appeal On June 2, 2011, defendant, through counsel, appealed his re- sentencing to the Appellate Division, Second Department, arguing, inter alia, that re-sentencing to add PRS violated the proscription against double jeopardy since he had completed his ten-year determinate sentence prior to the re- sentencing. Defendant also argued that section 70.30 could not create a new, single sentence because that would violate the rule in People v. Sparber, 10 N.Y.3d 457 (2008), which requires that sentences be pronounced by the court. On December 6, 2011, the Appellate Division, Second Department, affirmed defendant’s re-sentencing. People v. Brinson, 90 A.D.3d 670 (2d Dept. 2011). The court held that since defendant was still serving “what the statute regards as a single, combined sentence at the time of the resentencing, [he] did not have an expectation of finality” in the determinate portion of the sentence. Id. at 672. The court explained that under this Court’s recent decision in People v. Lingle, 16 N.Y.3d 621 (2011), “‘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’” and that re-sentencing to add PRS prior to completion of the sentence does not violate due process. Id. at 670-71. As such, the court explained, the decisive question 5 was whether defendant was still subject to his determinate sentence, which it answered in the affirmative. In addition, the court stated that the same reasoning this Court relied upon when it used section 70.30 of the Penal Law to calculate a defendant’s multiple sentences for SORA purposes in People v. Buss, 11 N.Y.3d 553 (2008), applies in the PRS context. Extending this Court’s reasoning that, since defendants have presumptive knowledge of the laws that apply to them, they are presumed to be aware that a determinate sentence without PRS is illegal and may be corrected in the future, the Appellate Division concluded that defendant is also presumed to know that, by statute, his sentence is aggregated into a single term. Thus, the court concluded that defendant “has 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.” Brinson, 90 A.D.3d at 671-72. SUMMARY OF ARGUMENT The Appellate Division correctly concluded that defendant’s re- sentencing while he was still incarcerated for the crimes of which he was convicted at trial was permissible under this Court’s decisions in People v. 6 Williams, 14 N.Y.3d 198 (2010), and People v. Lingle, 16 N.Y.3d 621 (2011), and did not violate the double jeopardy clause. Under those cases, a defendant develops an expectation of finality that bars re-sentencing only when he or she has been released from prison and has completed serving the sentence as originally imposed. This Court explained that defendants are presumed to know that their sentences are illegal and may be corrected up until that point. Moreover, prior to release, defendants have at most a future unrealized expectation of what might occur after expiration of the original sentence, and do not yet have any legitimate expectation of finality with regard to any post- incarceration requirements. Here, defendant did not have an expectation of finality at the time of his re-sentence because he had not completed serving his sentences on this judgment. As the Appellate Division observed, section 70.30 of the Penal Law requires that determinate and indeterminate sentences be combined, yielding a single aggregate term for all of the crimes for which a defendant is sentenced on the same judgment of conviction. Thus, a defendant does not satisfy his sentences individually, he satisfies the combined or aggregated term of the sentences imposed under the same judgment of conviction. In this case, at the time of re-sentencing, defendant was still incarcerated pursuant to, and had not 7 completed, the sentences originally imposed on this judgment of conviction. He was thus presumed to know, under Lingle and Williams, that his sentence was illegal and subject to correction. Similarly, defendant at most possessed, at the time of re-sentence, an unrealized future expectation of what would occur when released, rather that a legitimate expectation that he would not be subject to any requirements once the incarceratory portion of his sentence was concluded. As a result, re-sentencing defendant to a future term of post-release supervision was entirely proper. Moreover, as the Appellate Division observed, application of section 70.30 to this case is supported by this Court’s decision in People v. Buss, 11 N.Y.3d 553 (2008). In that case, this Court applied the statute to post- incarceration requirements under the Sex Offender Registration Act (“SORA”), holding that it was “reasonable to apply section 70.30 to the question of whether a prisoner who has been given multiple sentences is subject to all of his sentences for the duration of his term of imprisonment.” Buss, 11 N.Y.3d at 557. This was in part because of the purpose of the statute and the fact that the defendant in that case could not begin registering under the act, triggering its protections for the public, until the defendant was released from prison. So too here, it is reasonable to apply 70.30 as the purpose of PRS is the protection 8 of the public and the re-integration of the offender into society – a purpose that cannot be effectuated until defendant is released from prison. Furthermore, based upon 70.30, it is clear that defendant’s claim that he had completed his original ten-year determinate sentence at the time of the re-sentence is fatally flawed. In raising this contention, defendant assumes that he served his ten-year determinate sentence before his indeterminate sentences, and reasons that because he was incarcerated for more than ten years, his determinate sentence must have been completed. But nothing in the Penal law or Criminal Procedure Law provides for one sentence being served before another when those sentences are imposed at the same time under the same judgment of conviction. Nor does defendant accrue any right or privilege at the completion of one of his sentences once the terms of incarceration have been aggregated. Indeed, section 70.30 provides just the opposite – that the sentences are served as an aggregate and that rights accrue as that aggregate sentence is served. In addition, defendant’s belated claim that the court’s fortuitous order of pronouncement of the sentences as part of a single judgment of conviction determines the order of service of the sentence has no statutory or other support, nor does it possess any compelling logic. 9 Still further, even if, despite the clear provisions of section 70.30, defendant’s sentences could be seen as separate and even if the determinate sentence could somehow be assumed to have been discharged first, despite the absence of any authority to that effect, defendant could not prevail here. Under sections 70.30 and 70.40, defendant’s aggregate minimum combines only six- sevenths of his determinate term with the minimum of his indeterminate sentences and the remaining one-seventh of the determinate term is to be served as a period of conditional release, after he is no longer incarcerated. Thus, in no sense is defendant’s determinate sentence wholly discharged prior to his release from incarceration under all of his sentences. And because, even under this conception of his sentences, defendant had not served his determinate sentence at the time he was re-sentenced, the re-sentencing was entirely proper. See People v. Sharlow, 16 N.Y3d 621(2011)(decided with People v. Lingle)(defendant properly re-sentenced while still on conditional release from original determinate sentence). Consequently, because defendant was incarcerated on this case at the time the re-sentence was conducted and because he had no legitimate expectation that his sentence was final, the addition of post-release supervision 10 did not violate the double jeopardy clause. Accordingly, the decision and order of the Appellate Division, Second Department should be affirmed. ARGUMENT DEFENDANT’S RE-SENTENCING DID NOT VIOLATE DOUBLE JEOPARDY BECAUSE HE HAD NOT COMPLETED HIS ORIGINAL SENTENCE, AND, UNDER THIS COURT’S PRECEDENT, HE HAD NO LEGITIMATE EXPECTATION OF FINALITY IN THAT ILLEGAL SENTENCE. The sentencing court’s addition of post-release supervision while defendant was still incarcerated on this case did not violate the double jeopardy clause. This Court’s decisions in People v. Lingle, 16 N.Y.3d 621 (2011) and People v. Williams, 14 N.Y.2d 198 (2010), establish that re-sentencing a defendant to add a term of post-release supervision does not violate double jeopardy if the re-sentencing occurs before the defendant is released from prison and completes his original sentence. This Court reasoned in those cases that defendants are presumed to know the relevant statutes that apply to them and, in those circumstances, that a determinate sentence without post-release supervision is illegal. As a result, defendants in that position have no expectation of finality in their original sentences. When the originally imposed sentence is completed, however, and the defendant has been released, he has 11 a reasonable expectation that he has no further restraint under that sentence. Here, at the time of the re-sentencing, defendant was still incarcerated on this case and his originally imposed sentences had not yet expired. And, as in Lingle and Williams, defendant was presumed to have been aware that his sentence was illegal and could be corrected up until the time it was completed. Thus, the re-sentencing did not violate double jeopardy. Defendant nevertheless argues that, although he was still incarcerated on this case at the time of the re-sentence, he had completed his determinate sentence and had only his indeterminate sentences remaining. Defendant, however, provides no source or authority for the proposition that his determinate sentence was served first, before his indeterminate term, or that he ever had or was given a reasonable expectation to that effect. Indeed, the Penal Law, which defendant is presumed to know, provides otherwise. Under section 70.30(1)(d), determinate and indeterminate terms of imprisonment are combined into a single term under a formula that adds the determinate term and the minimum of the indeterminate term together. Because defendant was still serving that aggregate term when he was re-sentenced, and was presumed to know the law, he had no reason to expect that his determinate sentence was being served first, before his indeterminate sentence. As such, defendant had 12 no reasonable expectation that he had served his determinate sentence at the time of the re-sentence and the addition of post-release supervision was proper. Moreover, as the Appellate Division held, this conclusion is fully supported by this Court’s decision in People v. Buss, 11 N.Y.3d 553 (2008), in which this Court applied 70.30 to conclude that the registration requirements of the Sex Offender Registration Act commence after the entire aggregate term is served, not before. The purpose of SORA, this Court reasoned, is to ensure registration while the defendant is at liberty in his or her community, and thus the objective of the statute would not be served by commencing the registration period while a defendant is incarcerated. So too here, the purpose of the PRS statute is to ensure supervision after incarceration, and application of 70.30 in this context ensures that supervision takes place. Finally, as in the Lingle cases, defendant had at most a future, unrealized expectation of what would occur upon his eventual release. Changing that unrealized expectation is vastly different from imposing an additional term of a sentence after a defendant has been released, his sentence is concluded, and he has reason to believe he has fully completed his sentence and will suffer no further restraint. 13 In short, because defendant had not completed his original sentence, because he was presumed to know the law and had no reason in law or fact to believe that he had finished serving his determinate sentence, and because the re-sentencing court at most interfered with an unrealized and unfounded expectation, the re-sentencing did not violate the double jeopardy clause. A. Under Section 70.30, Defendant’s Original Determinate Sentence Was Aggregated with His Indeterminate Sentence Imposed at the Same Time under the Same Judgment of Conviction And, Because Defendant Was Still Serving this Term at the Time of Re-sentence, His Re-sentence Did Not Violate Double Jeopardy. Under People v. Williams, 14 N.Y.3d 198 (2010), and People v. Lingle, 16 N.Y.3d 621 (2011), defendant’s re-sentencing did not violate double jeopardy because he had not completed his original sentence and he had no expectation of finality at the time of the re-sentence. By statute, defendant’s determinate sentence merged with his indeterminate sentence to produce an aggregate term of incarceration as to all the sentences imposed under the same judgment of conviction. Because defendant had not finished serving that aggregate term, he had no expectation of finality in his original sentence and 14 his re-sentencing thus did not violate double jeopardy under the Williams and Lingle analysis. In Williams, this Court held that the federal double jeopardy clause barred re-sentencing, as that provision precludes re-sentencing after a defendant has been released from prison and has finished serving his sentence. Id. at 217. Importantly, this Court set the point at which an expectation of finality arises in an illegal sentence on a definite, articulable event – the defendant’s release from prison and completion of his sentence – rather than judging finality by the length of time the defendant had served in prison. This ruling was based in part on the Court’s analysis and adoption of federal law under which, according to this Court, re-sentences are permissible prior to completion of the original sentence and prohibited thereafter. Williams, 14 N.Y.3d at 215-218. Reiterating what it had originally stated in Sparber, 10 N.Y.3d 457 (2008), the Williams court stated that courts have the inherent authority to correct the failure to impose post-release supervision because it creates an illegal sentence. Id. at 212-213. Further, the Williams Court recognized that “defendants are charged with knowledge of the relevant laws that apply to them” and “are presumed to be aware that a determinate sentence without a term of PRS is 15 illegal and, thus, may be corrected by the sentencing court at some point in the future.” Id. at 217. In addition, “so long as an illegal sentence is subject to correction, a defendant cannot claim a legitimate expectation that the originally-imposed, improper sentence is final for all purposes.” Id. This Court further held, however, that, even with respect to an illegal sentence, “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.” Williams, 14 N.Y.3d at 217. This Court then fixed the point at which the expectation of finality arises, and the double jeopardy clause attaches, at the moment that the defendant has completed the originally-imposed sentence and has been released from confinement. Id. Notably, in defining where this “temporal limitation” stood the Court did not rely on the amount of time that had passed since the imposition of the original sentence or a subjective or fluctuating point in time. Indeed, it specifically rejected the one-year time limit imposed on the People’s ability to move to set aside a defendant’s sentence under C.P.L. § 440.40. Instead, the Court stated that a defendant’s legitimate expectation of finality – and, thus, double jeopardy – attaches at the completion of the determinate sentence after 16 the defendant has been released from confinement. Id. at 217, 219-220. As such, this Court chose a single, definite, articulable event as the point when an expectation of finality attaches; not an amorphous assessment of the “substantiality” of the sentence already served and not any multi-factor test requiring the assessment and weighing of multiple considerations. Consequently, Williams’ language and analysis established that the failure to impose post-release supervision can be corrected after the original sentencing without running afoul of the proscription against double jeopardy as long as the defendant has not completed his original sentence and been released from custody. Next, in Lingle, this Court considered several PRS re-sentencing cases where the defendants had not been released or had been released but had not completed the conditional release portion of their sentence. In describing its Williams holding, this Court stated 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” Lingle, 16 N.Y.3d at 630. The Court noted that, in Williams, it stated that while defendants are presumed to know that a determinate prison sentence without post-release supervision is illegal and that it can be corrected and is not final for all purposes, there also 17 must be a temporal limitation on re-sentencing because lower courts do not have “perpetual jurisdiction” over defendants. Id. The Court rejected the Lingle defendants’ suggested rule that re-sentencing should be precluded when a significant or substantial portion of the incarceratory sentence has been served because it “supplies no meaningful standard by which to measure a reasonable expectation of finality” and, by contrast, the Williams rule “promotes clarity, certainty and fairness.” Id. at 631. The Court also rejected the proposition advanced by defendant Sharlow, a companion case decided together with Lingle, that upon conditional release he obtained an expectation of finality in his sentence. In response to this argument, the Court explained that “someone released conditionally knows, almost by definition, that he has not yet paid his full debt to society, whereas someone whose sentence has expired can legitimately think of his punishment as in the past.” Lingle, 16 N.Y.3d at 631, n.1; see also People v. Velez, 19 N.Y.3d 642 (2012)(“a defendant who is conditionally released before his sentence expires has not served his sentence within the meaning of Williams”). Moreover, the Court’s rule reflected a sensible distinction between upsetting an expectation that has been realized by completion of the sentence 18 and release from prison and disturbing an unrealized expectation about events that might or might not occur in the future. As Judge Friendly put it, “there is a human difference between losing what one has and not getting what one wants.” Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1296, 1297 (1975); see also Morrissey v. Brewer, 408 U.S. 471(1972); Gonzalez- Fuentes v. Molina, 607 F.3d 864, 882 (1st Cir. 2010) (same). Together, Williams and Lingle establish that an expectation of finality crystalizes for double jeopardy purposes when a defendant has reached two milestones – release from incarceration and completion of his original sentence. Before that time, the defendant is presumed to know that the sentence is illegal and subject to correction. That release and completion of sentence is the determinative point is supported by this Court’s description of its Williams holding in subsequent cases. In People v. Gammon, 19 N.Y.3d 893 (2012), this Court explained that in Williams it “held that once defendants had satisfied their original judgments by completing their sentences and been released from incarceration at the termination of their sentences, a reasonable expectation of finality had attached. . . .” Gammon, 19 N.Y.3d at 896; see also People v. Velez, 19 N.Y.3d 642, 650 (2012). 19 Where a defendant is sentenced both to a determinate and an indeterminate term of incarceration, the completion of those sentences is governed by section 70.30 of the Penal Law. When a defendant is serving multiple determinate and indeterminate sentences, some of which are to be served consecutively, the minimum term of the indeterminate sentences are added to determinate sentence to arrive at an aggregate maximum term. Penal Law § 70.30(1)(d). The minimum term is calculated by adding sixth-sevenths of the determinate term to the minimum indeterminate term. This statute thus provides the precise manner in which multiple sentences are aggregated and discharged. Here, under Williams and Lingle, since he was still incarcerated under, and in the process of discharging, his original judgment of conviction, defendant had not developed a legitimate expectation of finality in his original sentence. Applying section 70.30, defendant’s ten-year determinate term and the minimum of his indeterminate terms, imposed concurrently to each other but consecutively to his determinate term, were added together to produce a maximum sentence of 13 years and a minimum sentence of approximately 8 ½ years. And, under section 70.30, defendant could not and did not satisfy any of the sentences until he satisfied the aggregate. Moreover, he was presumed 20 to know the law, specifically that the sentence was illegal and that his sentence was subject to correction. For this reason alone, defendant was properly re- sentenced under the double jeopardy clause. Moreover, like the Lingle defendants, defendant at most lost a future expectation concerning what his obligations might or might not be upon his release. Unlike the defendants in Williams, he did not lose anything he had, simply something he might one day have had. Upsetting defendant’s future hope was thus materially different from upsetting the expectations of the Williams defendants that had been realized by their release from prison and the service of their sentences. Therefore, both generally and as applied here, the distinction and the reasoning upon which this Court’s rule is based lead to the conclusion that defendant’s re-sentence did not violate the double jeopardy clause. This Court’s decision in People v. Buss, 11 N.Y.3d 553 (2008), provides further support for application of 70.30 to this case. In Buss, the defendant was sentenced to two to six years for a 1983 sex assault. In 1987, while on parole supervision for the earlier conviction, he was arrested for stabbing an acquaintance, resulting in a attempted murder conviction for which he received a ten-to-twenty year prison sentence. The sentence on the 1987 21 conviction was served consecutively to the undischarged portion of his 1983 sex assault conviction. Buss, 11 N.Y.3d at 555-556. When Buss was released in 2002, it was determined that his 1983 sex assault conviction made him eligible for SORA. Buss appealed, arguing that he was not subject to SORA because his 1983 sentence had expired before SORA became effective and, similar to defendant’s contention here, that he completed serving his sexual assault sentence in 1989, six years after he received it. The People responded that, under section 70.30, Buss was still serving the sentence on his 1983 sex assault conviction. Id. at 556-557. This Court found that it was “reasonable to apply section 70.30 to the question of whether a prisoner who has been given multiple sentences is subject to all of his sentences for the duration of his term of imprisonment.” Id. at 557. The Court acknowledged that “[u]nderlying Penal Law § 70.30 is the proposition that concurrent sentences and consecutive sentences yield single sentences, either by merger or by addition.” Id. The Court went on to hold that “for SORA purposes a prisoner serving multiple sentences is subject to all the sentences, whether concurrent or consecutive, that make up the merged or aggregate sentence he is serving.” Id. at 557-558. The Court reasoned that the primary goal of SORA “to ‘protect the public from the danger 22 of recidivism posed by sex offenders’” and that this goal is “best served by recognizing that a person who is returned to prison while on parole for a sex offense continues to be subject to his sex offense sentence for the duration of the aggregate sentence,” even though, had Buss not committed the later crime, the sex offense sentence would have expired before SORA’s effective date. Buss, 11 N.Y.3d at 558. Here too, application of the statute promotes the legislative intent of PRS – to ensure supervision upon an inmate’s release from custody. The plain meaning of section 70.45 sets forth that the legislature intended for those released from sentences of incarceration to be subject to post-release supervision. Application of 70.30 here ensures that that supervision will take place when all of the defendant’s sentences of incarceration have expired and defendant is actually released into the community. Because here, as in Buss, adoption of 70.30 promotes the legislative purpose of the statute that imposes the post-incarceration requirements – the SORA statute in Buss and the PRS statute in this case – it is “reasonable to apply section 70.30 to the question of whether a prisoner who has been given multiple sentences is subject to all of his sentences for the duration of his term of imprisonment.” Id. at 557. 23 Moreover, application of 70.30 is supported by the terms of the PRS statute itself. Under the PRS statute, PRS only commences upon a defendant’s release from custody. In fact, it would be both illogical and2 impossible as a practical matter for PRS to apply prior to a defendant’s release. But that is precisely what defendant suggests here – that the determinate sentence expired, and the five-year period of PRS began, before he was released from custody (Defendant’s Brief: 9-23). Defendant’s position is thus entirely untenable under the terms of the PRS statute and inconsistent with any reasonable understanding of the purpose and effect of that statute. There is simply no logical basis for an incarcerated defendant to be serving PRS while confined on other sentences. In addition, application of 70.30 to the PRS context has the great virtue that it can be easily interpreted and applied – an essential requirement where, as here, it may be put into practice in thousands of cases. Indeed, absent application of the statute, the law provides no way of knowing when or how multiple determinate or indeterminate sentences are satisfied. Rather than The statute sets forth that “[a] period of post-release supervision shall commence2 upon the person’s release from imprisonment to supervision . . .” Penal Law § 70.45 (5)(a)(emphasis supplied). The statute provides that when a defendant is re-incarcerated on a new sentence, his PRS is held in abeyance during the re-incarceration. Penal Law § 70.45 (5)(f). 24 imposing an arbitrary rule, 70.30 provides a sound legal basis for determining how a sentence including both determinate and indeterminate sentences is discharged, and one that a defendant – presumed to know the law – can and should rely on in coming to a legitimate expectation of finality. Moreover, applying 70.30 to PRS proceedings is logical because, as with the Williams/Lingle bright-line rule, it is not subjective and it provides a clear, uniform, and precise basis for resolving any questions. Such clarity will promote the application of this precedent for the lower courts and for DOCCS, which administer PRS for every felony conviction resulting in a determinate sentence, clearly implicating thousands of cases state-wide each year. Nevertheless, defendant argues that, although he was still incarcerated on this case at the time of the re-sentence, he had completed his determinate sentence and had only his indeterminate sentences remaining. Defendant, however, provides no source or authority for the proposition that his determinate sentence was served first, before his indeterminate term, or that he ever had or was given a reasonable expectation to that effect. Indeed, the Penal Law, which defendant is presumed to know, provides otherwise. Nor does the statute, or any statute for that matter, set forth any particular order to serving the sentences. As such, under 70.30 or any other 25 section in the Penal Law, Correction Law, or Executive Law, the defendant serves neither the determinate nor the indeterminate sentence first, but serves an aggregate term to satisfy the entire judgment of conviction. Thus, contrary to defendant’s contention, neither the determinate nor the indeterminate term is served first – indeed, they are not served individually at all, but are aggregated into a term that must be served in its entirety. Because defendant was still incarcerated under this judgment at the time of the re-sentence, the re- sentence did not violate double jeopardy. Moreover, as Williams and Lingle make clear, defendant is presumed to know the law with regard to his original sentence. Because there is no provision in law establishing that the determinate term is served first, and because there is in fact a provision that establishes otherwise, defendant had no legitimate reason to believe or expect that his determinate sentence was served first. As the Appellate Division put it, given 70.30, defendant had “no reason to expect that discrete prison sentences . . . survive such that, as he serves the aggregated sentence, he is sequentially completing his punishment for each particular conviction.” Brinson, 90 A.D.3d at 671-672. For this reason too, defendant did not have a legitimate expectation of finality in his ten-year sentence when PRS was added. 26 Defendant further argues that use of section 70.30 and People v. Buss is inappropriate here, as they involve only statutory language or interpretation, and the issue in this case, double jeopardy, is one on constitutional dimension (Defendant’s Brief: 13, 19). But application of the Penal Law sections regarding the calculation of and release from the sentences is appropriate in considering whether defendant legitimately acquired an expectation of finality in his determinate sentence. This is so because double jeopardy jurisprudence relies heavily upon legislative intent. See United States v. Pettus, 303 F.3d 480 (2d Cir. 2002); see also Missouri v. Hunter, 459 U.S. 359 (1983); Whalen v. United States, 445 U.S. 684 (1980); United States v. DiFrancesco, 449 U.S. 117 (1980); Montstream v. Superintendent, Bedford Hills Corr. Facility, 486 Fed. Appx. 164 (2d Cir. 2012). The Second Circuit has held that “so long as the legislature speaks directly so that criminal defendants are put on notice of the potential sentences they could receive, those expectations are not violated.” Pettus, 303 F.3d at 488. Thus, application of the sentencing statutes is appropriate to ascertain the reasonableness of defendant’s expectation of finality here. The propriety of applying the sentencing statutes in the Penal Law and Correction Law to ascertain when a defendant obtains an expectation of 27 finality is also supported by this Court’s holding in Sharlow. There this Court silently applied the Correction Law statute that allows for conditional release prior to the maximum expiration of a sentence with the application of good time in determining the point at which double jeopardy barred correction of the sentence (see Corr. Law § 803), demonstrating that the sentencing statutes are an integral part of the expectation of finality analysis. Further, defendant’s assertion that he served his determinate sentence first because it was pronounced first and common sense dictates that the largest sentence be served first (Defendant’s Brief: 22-23), is unpersuasive. First, nothing in statute or caselaw suggests that the order of pronouncement of sentences within the same judgment of conviction determines the order in which those sentences are served. Second, the order of the pronouncement is often based upon the order of the counts in the indictment. As such, if defendant’s assertion is correct, then the prosecution, who drafts the indictment, not the Court, may actually determine the order of satisfaction of the sentence. There is simply no reason to believe that the legislature wished to draw any connection between the order of counts in the indictment, as determined by the prosecutor, and the order in which individual sentences 28 should be served. Indeed, the legislature’s design in this regard is evident in 70.30. Defendant’s attempt to characterize the People’s argument as untenable because it suggests the creation of a “new” or altered sentence under 70.30, which, under People v. Sparber, 10 N.Y.3d 457 (2008), would have to be pronounced at the time of the original sentencing (Defendant’s Brief: 11- 16), is unpersuasive. The statute does not create a “new” sentence; it merely provides DOCCS with a mechanism to determine how an inmate can serve or discharge multiple sentences at the same time. See People v. Martinez, 74 A.D.3d 434 (1st Dept. 2010)(applying 70.30 to determine DLRA eligibility and if defendant serving time on violent felony does not add or alter sentence). Indeed, the statutory formula does no more than allow for the practical satisfaction of the sentences imposed by a court. Moreover, the People’s3 interpretation here is no different than that of this Court in Buss, and there was no suggestion in that case that use of the statute to combine sentences for In no event is the aggregate specified in 70.30 more than what defendant has already3 been told. Under the statute, the determinate sentence is combined with the minimum of the indeterminate sentences. Thus, defendant here was told that he would receive a ten-year determinate sentence and a three to six year indeterminate sentence, for a total of 13 to 16 years, but the statute converts the term of incarceration into only 13 years. Thus, no need arises to inform the defendant of any increase or additional term, as Sparber requires. Nothing in Sparber requires that a defendant be informed at the time of sentence of an early release or the reduction of an aggregate sentence under section 70.30(1)(e). 29 SORA purposes would somehow require the pronouncement of a new sentence. Likewise, Sparber was not implicated when Sharlow was conditionally released prior to reaching his completion of his seven-year sentence, even though it was different from what was initially imposed by the court. Therefore, Sparber is not implicated by the application of 70.30 in determining that defendant was still subject to his determinate sentence. Further, defendant himself would inconsistently apply 70.30 for certain purposes, but not for this one. Application of 70.30 effectively converts the sentence into a determinate term, and then allows for the defendant to be release when six-sevenths of the entire 13 year term is served. Penal Law§ 70.40(1)(a)(iv). While defendant would readily take advantage of 70.30 for this purpose (Defendant’s Brief: 12), he would reject its application for the equally valid purpose of determining when his sentence expires and when PRS begins. Defendant’s reliance on Matter of State of New York v. Rashid, 16 N.Y.3d 1 (2010), for the proposition that 70.30 should not be applied in the PRS context is also unavailing (Defendant’s Brief: 17-20). This Court did not apply 70.30 in Rashid because, as defendant acknowledges, Article 10 itself contained “a comprehensive and complex scheme that defines which offenses 30 ‘count’ for purposes of eligibility for civil management,” and which also specifies which defendants subject to multiples sentences will be eligible for civil commitment. Rashid, 16 N.Y.3d at 15-16. The statute thus specifically provided the answer to the question of which defendants subject to multiple sentences were included within its provisions. In fact, this Court found that “[s]uperimposing Penal Law § 70.30 on article 10 for purposes of making eligibility determinations would distort this statutory scheme.” Id. at 16. Here, no similar statutory scheme exists superceding section 70.30, and its provisions should have full force and effect. Moreover here as in Buss, applying 70.30 promotes the statutory purpose of the PRS statute, to provide for supervision once a defendant is released. 4 Likewise, defendant’s reliance on People v. Mills (Then), 11 N.Y.3d 527 (2008), does not support his position that defendant’s separate multiple sentences must be treated separately (Defendant’s Brief: 20). In the Mills companion case, Then, the defendant applied for DLRA re-sentencing on a 1999 class A-II felony drug conviction and on a 2003 class A-II felony drug conviction obtained while Then was on parole for his 1999 conviction. Indeed, it is pretty simple, PRS commences upon an inmates release from4 incarceration. Penal Law § 70.45. 31 Defendant argues that this case establishes that this Court treated Then’s sentences separately, but he misreads that case. In Then, at re-sentencing, the People did not contest defendant’s eligibility for re-sentencing on his later case. As such, this Court’s ruling did not address the propriety of his re- sentencing on his 2003 conviction or a comparison of the treatment of his two re-sentencing applications. Instead, this Court’s decision makes clear that its ruling was based upon its interpretation of the legislative intent of the DLRA and the specific eligibility provisions of that statute. In addition, the separate sentences in the Then cases resulted from two separate crimes committed years apart and defendant had been paroled on the first crime when he committed the second crime. As such, the sentences had not resulted from same indictment as occurred here; thus, for this reason too, Then is not applicable. Similarly, defendant’s reliance on People v. Walltower, 27 Misc.3d 1205(a) (Sup. Ct. Queens Co. 2010), for the proposition that 70.30 has not been applied in DLRA cases is unavailing given that the First and Second Departments have done just that. In People v. Delk, 59 A.D.3d 733 (2d Dept. 2009), the Second Department applied 70.30 to hold that the defendant was still serving a sentence on a violent felony offense making him ineligible for DLRA re-sentencing. In an alternative holding, the First Department came to 32 a similar conclusion in People v. Merejildo, 45 A.D.3d 429 (1st Dept. 2007). Thus, contrary to defendant’s claim, 70.30 has been applied in the DLRA context and, as discussed above, it is reasonable to apply it here. Defendant’s complaint that he is being treated unfairly because there is a different trigger point for the crystallization of the expectation of finality for him as a result of his multiple sentences compared to inmates who only receive a single sentence (Defendant’s Brief: 28) should be rejected. The Appellate Division’s application of 70.30 promotes a fair, logical, and consistent application of PRS. A defendant with multiple sentences is situated differently from one with a single sentence, as one with multiple sentences has committed more crimes, with different length sentences, and requires a different, delayed release date. As such, varied treatment for defendants situated differently is appropriate and reasonable. Indeed, if anything, defendant’s proposed rule, to treat him as if he only received a single sentence, would be illogical and unfair to those who actually did only receive single sentences. Moreover, under defendant’s interpretation of the statutes, he would receive an unjustifiable windfall, as his PRS would commence while he was still incarcerated and, by the time he was released, he would not have to serve an entire five years of PRS. Thus, as defendant has multiple sentences 33 he cannot compare himself to a defendant who merely received one determinate sentence. Consequently, under Williams and Lingle and section 70.30, as defendant had not been released or completed his sentences on his judgment of conviction, he had not obtained an expectation of finality in his illegal sentence and his re-sentencing did not violate double jeopardy. B. Even Assuming His Single Determinate Sentence Can Be Viewed Independently From Section 70.30, Defendant Could Not Have Completed That Sentence Until He Served a Period of Conditional Release Resulting from That Sentence. Even assuming that defendant’s single determinate sentence continued to exist, and could be discharged independently of the aggregate term mandated by section 70.30, defendant still cannot prevail on his claim. This is so because defendant’s determinate sentence is not completed until after his release from incarceration. Under section 70.40, when a defendant is subject to determinate and indeterminate sentences, only six-sevenths of the determinate term is used to ascertain the aggregate minimum and one-seventh of the determinate sentence is designated as conditional release, which is to be served upon release from incarceration. Since an amount equal to one-seventh of the 34 determinate sentence cannot be discharged until after release, even if defendant’s sentences did not aggregate, that portion of the sentence was not satisfied at the time he was re-sentenced. Accordingly, even under defendant’s assumption, his re-sentence did not violate double jeopardy. Section 70.40(1)(a)(iv) provides that a person who is serving one or more determinate sentences and one or more indeterminate sentences that run consecutively finish the incarceratory portion of the sentence after six- sevenths of the determinate term and the minimum of the indeterminate terms.5 Under section 70.40(1)(b), the unserved portion of the term is served as parole under the supervision of DOCCS. Thus, even assuming that the sentences are6 not discharged in the aggregate as section 70.30 provides, one-seventh of the determinate sentence can only be served after the defendant is released from incarceration. Accordingly, that portion of the determinate sentence could not be deemed served prior to release. The contrary position implied by “A person who is serving one or more than one indeterminate sentence of5 imprisonment and one or more than one determinate sentence of imprisonment which run consecutively 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.” Penal Law § 70.40(1)(a)(iv). “Every person so released shall be under the supervision of the state department of6 corrections and community supervision for a period equal to the unserved portion of the term, maximum term, aggregate maximum term, or period of post-release supervision.” Penal Law § 70.40(1)(b)(2d par.). 35 defendant’s argument – that he completed his entire determinate sentence, including any portion that would be served on conditional release – is clearly refuted by section 70.40. Further, as this Court noted in Sharlow, a companion case to Lingle, even defendants who have actually been conditionally released have yet to pay their full debt to society, their sentences have thus not yet concluded, and re-sentencing is entirely permissible. Lingle, 17 N.Y.3d at 631, n.1. Since defendant here was re-sentenced prior to release, and thus prior even to the service of the conditional release portion of his sentence, he had not served his entire sentence at that time. Moreover, as this Court held in Lingle, defendant is presumed to know the relevant laws that apply to him. Thus, he was presumed to be aware that upon the service of the incarceratory portion of his sentence, he would be subject to conditional release as result of his determinate sentence. In addition, it can be presumed that defendant had actual knowledge that he would receive good behavior allowance equal to no more than one-seventh of his determinate sentence since the Department of Corrections and Community Supervision provides defendants with a copy of the law that implements the good behavior allowances. See Corr. Law § 803(6); see also Lingle, 16 N.Y.3d at 633. As such, since he would still owe time when he was released he could not obtain 36 a legitimate expectation of finality while still incarcerated in or until finished serving the conditional release period on parole. In short, should defendant’s determinate sentence be viewed in a a vacuum, his argument still fails because he could not have completed his determinate sentence prior to his release and service of his determinate term on conditional release. C. This Court Has Previously Rejected Defendant’s Argument That the Mere Service of a Substantial Portion of His Sentence Is Enough to Create an Expectation of Finality. This Court should quickly reject defendant’s argument that, even if his sentences were considered in the aggregate, since he has been incarcerated for such a substantial portion of his sentence that he obtained an expectation of finality in his determinate sentence (Defendant’s Brief: 24-28), because it rejected this identical argument in Lingle. And there is nothing here that warrants a different finding than Lingle. That he is subject to other sentences that when aggregated require a longer incarceration for him than he would otherwise had if he had only been sentenced on one conviction, does not dilute this Court’s determination that release and completion of sentence are the appropriate prerequisites for a finding of an expectation of finality. 37 Further, defendant’s extensive reliance on Stewart v. Scully, 925 F.2d 58 (2d Cir. 1991), is unpersuasive as it does not support defendant’s argument that he had a legitimate expectation of finality in his original sentence when he was re-sentenced (Defendant’s Letter at 14). Indeed, in Lingle, this Court rejected Stewart’s analysis and found that the case was distinguishable. In Stewart, the defendant’s sentence was the result of a negotiated plea and the defendant’s re-sentencing contravened the original promise made to the defendant. During the plea allocution and as set forth in the plea agreement, the court expressly told the defendant that his maximum range was ten to twenty years and, at sentencing, defendant was sentenced to ten to twenty years of incarceration. After realizing that the relationship between the minimum and maximum was incorrect – the minimum should have been one-third of the maximum – the defendant filed a post-conviction motion. To correct the error, the plea court vacated the illegal sentence and re- sentenced defendant to eight to twenty-four years of incarceration. The Second Circuit held that the increase in the maximum period of incarceration the defendant could serve violated double jeopardy because that defendant had a legitimate expectation of finality in the maximum term of the sentence. The court so concluded because he was promised a maximum no greater than 38 twenty years but was given a maximum four years longer than he had been informed prior to his plea. Stewart, 925 F.2d at 64. Here, in contrast with Stewart, defendant was sentenced after trial and was not given any promise as to his sentence or any inducement to plead guilty. Thus, unlike Stewart, defendant was “not caught unaware when a sentencing agreement was changed.” Lingle, 16 N.Y.3d at 631. Stewart is also factually distinguishable because the increase in Stewart extended the defendant’s prison sentence while here the increase only resulted in the imposition of post-release supervision and did not alter defendant’s expected release date and commencement of his liberty. Accordingly, Stewart does not establish that an expectation of finality existed here. Nor does defendant’s reliance upon Williams v. Travis, 143 F.3d 98 (2d Cir. 1998), fare any better (Defendant’s Brief: 25-26). As with Stewart, Williams is distinguishable because the conviction was obtained by a guilty plea and not a trial. And, Williams’s reliance upon the People’s time to appeal the defendant’s sentence is wholly inapposite, given that this Court has specifically previously rejected that argument. Williams, 14 N.Y.3d at 219, n. 4; Sparber, 10 N.Y.3d at 471, n. 6; People v. Wright, 56 N.Y.2d 613, 615 (1982). Further, the Second Circuit’s 1998 double jeopardy analysis on a plea 39 case has no weight here since the binding authority for this Court is its own recent precedent that, as discussed above, sets forth a definitive bright-line rule when double jeopardy precludes the correction of the improper imposition of PRS – a defendant’s release from incarceration and completion of his sentence. In addition, even if Stewart or Williams were more analogous to this case, this Court would not be bound by it and should not adopt it. This Court has made clear on several occasions that even case law directly on point from the lower federal courts, including the Second Circuit, is not binding on this Court See People v. Konstantinides, 14 N.Y.3d 1, 13 (2009); In re Mason, 100 N.Y.2d 56 (2003); People v. KinKan, 78 N.Y.2d 54, 60 (1991). Moreover, here, assuming Stewart’s rule would acknowledge that a legitimate expectation of finality arose in a case like this – a rather significant assumption – that rule would be inconsistent with the language, analysis, and holding of the Williams and Lingle decisions. Briefly, this Court should rejected defendant’s assertion that his service of a substantial portion of his sentence alone triggers an expectation of finality since, as this Court stated in Lingle, it “supplies no meaningful standard by which to measure a reasonable expectation of finality.” Lingle, 17 N.Y.3d at 631. 40 * * * * In sum, defendant’s re-sentencing did not violate double jeopardy since he had yet to obtain a legitimate expectation of finality in his original judgment of conviction. Like the defendants in People v Lingle, he was still incarcerated under the sentences imposed in this case when the re-sentencing took place. Defendant’s contention that he had already discharged his determinate sentence has no foundation in law or fact, and, indeed, sections 70.30 and 70.40 provide otherwise. Moreover, application of section 70.30, like its application in Buss, supports the legislative purpose behind the post- incarceration requirements. For these reasons, the Appellate Division’s order should be affirmed. 41 CONCLUSION For the reasons set forth above, defendant’s re-sentencing should be affirmed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: _________________________ Anastasia Spanakos Assistant District Attorney JOHN M. CASTELLANO ANASTASIA SPANAKOS Assistant District Attorneys of Counsel April 3, 2013 42