The People, Respondent,v.Rafael L. Belliard, Appellant.

Brief

N.Y.January 2, 2013

To Be Argued By: DAVID R. JUERGENS Assistant Public Defender Requested Time: 10 Minutes STATE OF NEW YORK * COURT OF APPEALS ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- RAFAEL L. BELLIARD, Appellant. ___________________________________________________ REPLY BRIEF FOR APPELLANT TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: DAVID R. JUERGENS Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4093 Fax: (585) 753-4234 Brief Completed: July 2, 2012 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i, ii REPLY POINT I: THE PROCEDURAL HURDLES RAISED BY THE PEOPLE DO NOT PROHIBIT THIS COURT FROM DECIDING THE SUBSTANTIVE MERITS OF MR. BELLIARD’S APPEAL. 1 A. No Remand is Necessary. 1 B. No Motion to Withdraw or Vacate the Guilty Plea Was Necessary. 1 C. No CPL 440 Motion Was Necessary Because The Record Adequately Established that Mr. Belliard Had an Undischarged State Sentence. 5 REPLY POINT II: MANDATORY CONSECUTIVE SENTENCING WAS AN INTEGRAL PART OF THE DEFENDANT’S PUNISHMENT AND A DIRECT CONSEQUENCE OF HIS GUILTY PLEA. 8 A. The Traditional Criteria Support Finding Penal Law § 70.25 (2-a) to be a Direct Consequence of a Guilty Plea. 8 B. The People’s Narrow Focus on the Strict Terms of the New Sentence Ignores the Tremendous Adverse Impact of Mandatory Consecutive Sentencing Under Penal Law § 70.25 (2-a). 10 C. The Proper Interpretation of People Ex Rel Gill v Greene. 13 CONCLUSION 15 i TABLE OF AUTHORITIES Federal Cases Brady v United States, 397 US 742 (1970) ................................................................ 7 Wilson v McGinnis, 413 F3d 196 (2d Cir 2005) ............................................... 12, 13 State Cases People ex rel Gill v Greene, 12 NY3d 1 (2009) ............................................... 13, 14 People v Fuggazzato, 62 NY2d 862 (1984) ............................................................11 People v Gravino, 14 NY3d 546 (2010) .................................................................10 People v Harnett, 16 NY3d 200 (2011) .................................................................8, 9 People v Hill, 9 NY3d 189 (2007) ............................................................................. 7 People v Louree, 8 NY3d 541 (2007) ........................................................................ 2 People v McAlpin, 17 NY3d 936 (2011) ................................................................... 3 People v Morbillo, 56 AD3d 694 (2d Dept 2008) ...............................................3, 14 People v Murray, 15 NY3d 725 (2010) ..................................................................... 3 People v Newbould, 83 AD3d 1570 (4th Dept 2011) ............................................4, 5 People v Pichardo, 1 NY3d 126 (2003) ..................................................................11 People v Qoshja, 17 NY3d 910 (2011) ...................................................................... 1 People v Stewart, 16 NY3d 839 (2011) ..................................................................... 3 ii People v Van Deusen, 7 NY3d 744 (2006) ................................................................ 6 People v Watts, 78 AD3d 1593 (4th Dept 2010) ....................................................... 4 State Statutes CPL 220.60 (3) .......................................................................................................... 2 CPL 440.10 ................................................................................................. 2, 3, 5, 11 CPL 440.10 (2) (c) ..................................................................................................... 2 Penal Law § 70.25 (1) (a) ............................................................................. 4, 11, 12 Penal Law § 70.25 (2-a) ................................................................................... passim Penal Law § 70.25 (2-b) ...........................................................................................12 1 REPLY POINT I: THE PROCEDURAL HURDLES RAISED BY THE PEOPLE DO NOT PROHIBIT THIS COURT FROM DECIDING THE SUBSTANTIVE MERITS OF MR. BELLIARD’S APPEAL. A. No Remand is Necessary. As a preliminary matter, the People’s suggestion that this Court may lack subject matter jurisdiction (see Respondent’s Brief, p.7) should be disregarded. In People v Qoshja (17 NY3d 910 [2011]) (the case cited by the People), this Court directed the Appellate Division to clarify whether its summary affirmance was based upon a valid waiver of the defendant’s right to appeal or an adverse decision on the merits of the defendant’s appeal. In waiver-of-appeal cases, the validity of the waiver itself would present a question of law. The defendant’s other appellate claims may or may not. Mr. Belliard’s case does not involve any waiver-of-appeal issue. Mr. Belliard argued below that, under the circumstances of this case, the plea defect (a failure to advise the defendant of a direct consequence of the guilty plea) required no motion to withdraw or vacate the guilty plea. Mr. Belliard never asked the Appellate Division to review the voluntariness of his plea in the interest of justice, and the Appellate Division did not do so. B. No Motion to Withdraw or Vacate the Guilty Plea Was Necessary. As William Shakespeare might have asked - Catu or not Catu? That is the question. 2 The People argue that a lack of preservation “not excusable under any legal principle” (Respondent’s Brief, p.9) infects this appeal. But a trial court’s failure to advise a defendant of a direct consequence of a guilty plea presents an issue falling within a recognized exception to the preservation rule. This Court has explained that a defendant cannot be expected to move to withdraw a guilty plea based upon a circumstance of which he was unaware (see People v Louree, 8 NY3d 541 [2007] [the defendant was not informed about the specific terms of PRS before the sentence was actually imposed, making it impossible for a CPL 220.60 (3) motion to be filed]). The People implicitly agree that plea withdrawal was not a realistic option for Mr. Belliard by acknowledging that “a motion to withdraw his guilty plea before sentencing may have been impractical” (Respondent’s Brief, p.11). The People argue, however, that “nothing relieved defendant of the obligation to seek relief pursuant to CPL 440.10” (Respondent’s Brief, p.11). Nothing, that is, except CPL 440.10 (2) (c); a provision that would require denial of the suggested CPL 440.10 motion because the plea defect (a failure to advise) is clear from the face of the record. Without question, the lower court did not advise Mr. Belliard of the mandatory impact of Penal Law § 70.25 (2-a). A CPL 440 motion is not needed to create a record to establish this fact. Mr. Belliard argues that his guilty plea was 3 not voluntary because he was not fully aware of a direct consequence of that plea and that this plea defect is a Catu-type error (see People v Morbillo, 56 AD3d 694 [2d Dept 2008]). “A Catu claim is indistinguishable from a challenge to the adequacy of the plea allocution . . . it is reviewable on direct appeal. In the absence of justification for a defendant's failure to pursue this issue in a direct appeal . . . such a claim may not be raised in a CPL 440.10 motion” (People v Stewart, 16 NY3d 839, 841 [2011]). There are some situations where a defendant must move to withdraw the guilty plea to preserve a Catu issue for appeal. For example, where a trial court advises the defendant (at the plea proceeding) that he would receive two years of PRS, but then advises him (at the outset of the sentencing proceeding) that the PRS term would be three years, the defendant must move to withdraw his guilty plea. Because the defendant could have sought relief from the sentencing court before imposition of the sentence, Louree’s rationale for dispensing with the preservation requirement would not apply (see People v Murray (15 NY3d 725, 726-727 [2010]; contrast People v McAlpin, 17 NY3d 936 [2011] [PRS was mentioned for the first time only moments before the sentence was imposed]). But again, because no one mentioned that Mr. Belliard’s “bargained for” sentences would run consecutively to his prior undischarged state sentence, no one 4 could reasonably expect Mr, Belliard to move to withdraw his guilty plea on that basis. Ultimately, the preservation issue (the necessity of a motion to withdraw or vacate the guilty plea) and the merits of this appeal (whether a trial court must advise a guilty-pleading defendant of the mandatory impact of Penal Law § 70.25 [2-a]) are two questions that must be decided together. Mr. Belliard will prevail or fail on both issues depending upon whether mandatory consecutive sentencing under Penal Law § 70.25 (1) (a) is a direct or a collateral consequence of the guilty plea. As a final comment on preservation, it should be noted that in People v Newbould (83 AD3d 1570 [4th Dept 2011]), a case cited by the People, the appellate attorney did not argue that the trial court’s failure to inform the defendant that his sentence would be served consecutively (Penal Law § 70.25 [2-a]) was a Catu–type error. On appeal, Newbould never contested the preservation requirement (see also People v Watts, 78 AD3d 1593 [4th Dept 2010] [in his pro se brief, the defendant did not argue that the plea defect involved a Catu-type error]). 5 C. No CPL 440 Motion Was Necessary Because The Record Adequately Established that Mr. Belliard Had an Undischarged State Sentence. The critical fact that triggers a trial court’s constitutional duty to advise a predicate felony offender of Penal Law § 70.25 (2-a)’s mandatory impact is the existence of a prior undischarged state sentence. If the record establishes that the prior state sentence was actually discharged, then the trial court acquires no constitutional duty to warn the defendant about consecutive sentencing (People v Newbould, 83 AD3d 1570 [4th Dept 2011]). If the record is insufficient to establish that the defendant had a prior undischarged state sentence at the time of the guilty plea, then a CPL 440 motion may be required to create such a record. In this case, however, the appellate record adequately established that Mr. Belliard’s had a prior undischarged state sentence for a drug offense (second- degree criminal possession of a controlled substance). Until now, the People have never argued otherwise. The trial prosecutor filed the Second Felony Drug Offender Information 1 which established a prior undischarged sentence - originally three years to life (March 10, 2003) with a re-sentence to three years of imprisonment, five years of PRS (June 1, 2006). Roughly one year later, the present guilty plea was entered (July 17, 2007). Both the prior and the new cases were prosecuted by the Monroe County District Attorney. Both convictions occurred in Monroe County Court. From arraignment through guilty plea, it was 1 A full copy is attached. 6 clear that Mr. Belliard had a prior undischarged state sentence (see Appellant’s Brief, pp. 5-8). At the Appellate Division, the prosecutor implicitly conceded the existence of a prior undischarged state sentence, arguing only that the appellate record did not show whether the new sentence was actually running consecutively or concurrently. Before this Court, the People still complain that the record does not establish whether the sentences are actually running consecutively or concurrently and now also complain that the record does not establish what actually happened with the PRS violation. The answer to the first complaint is that, by law (Penal Law § 70.25 [2-a]), the sentences must run consecutively. Concurrent sentences would be illegal. For purposes of this appeal, consecutive sentences can be presumed. The answer to the second complaint is that what actually happened to the PRS violation is irrelevant. This specific information does not have any direct impact on the voluntariness of Mr. Belliard’s plea. No matter what happened with the PRS violation, the fact remains that the trial court did not advise Mr. Belliard of the mandatory adverse impact of Penal Law § 70.25 (2-a). An involuntary guilty plea involves a violation of due process. Mr. Belliard did not possess “all the information necessary for an informed choice among different possible courses of action” (People v Van Deusen , 7 NY3d 744, 746 7 [2006]). At the time of the plea, he was not “fully aware” of the “actual value” of the commitments made to him (Brady v United States , 397 US 742, 755 [1970]). The constitutional error lies in the plea itself, not Mr. Belliard’s sentencing expectations (People v Hill, 9 NY3d 189, 193 [2007]). For this reason, the People’s complaints about any lack of proof establishing what happened after entry of the guilty plea are simply not on point. 8 REPLY POINT II: MANDATORY CONSECUTIVE SENTENCING WAS AN INTEGRAL PART OF THE DEFENDANT’S PUNISHMENT AND A DIRECT CONSEQUENCE OF HIS GUILTY PLEA. A. The Traditional Criteria Support Finding Penal Law § 70.25 (2-a) to be a Direct Consequence of a Guilty Plea. “The direct consequences of a plea – those whose omission from a plea colloquoy makes the plea per se invalid – are essentially the core components of a defendant’s sentence: a term of probation or imprisonment, a term of post-release supervision, a fine” (People v Harnett, 16 NY3d 200, 205-206 [2011]). Under the five traditional criteria for drawing a line between a direct and a collateral consequence, mandatory consecutive sentencing under Penal Law § 70.25 (2-a) must be considered direct. The People apparently do not dispute that the impact of Penal Law § 70.25 (2-a) is definite, immediate and automatic (three features of a direct consequence). For one collateral consequence feature (that the consequence is somehow “peculiar to the individual”), the People’s argument actually helps Mr. Belliard. As the People correctly point out, “consecutive sentencing is not peculiar to defendant Belliard’s personal circumstances as it applies to a broad categories [sic] of defendants with predicate crimes” (Respondent’s Brief, pp.25-26). This non- peculiarity is a feature consistent with a direct consequence. 9 For the other collateral consequence feature (that an outside agency controls the consequence) (People v Harnett, 16 NY3d 200, 205-206 [2011] [consequences “not within the control of the court system have been held to be collateral”]), the People attempt to portray the Department of Correctional Services (DOCS) as an agency with “control” over consecutive sentencing. The People state that, when the trial court is silent, “DOCS has the authority to structure the sentences consecutively.” The People then argue that DOCS’ “authority” in this situation means that “compliance with PL 70.25 (2-a) is not the exclusive responsibility of the sentencing court” (Respondent’s Brief, p.25). The inherent problem with the People’s argument is that DOCS has no discretionary authority to determine what the consequence will be. In fact, even the sentencing court has no lawful discretion to alter the consequence. Penal Law § 70.25 (2-a) mandates consecutive sentencing. This consequence, as a matter of law, flows from the imposition of the sentence. DOCS has no authority to ignore the sentencing court’s commitment order. And if the commitment order is silent, then DOCS must follow the statute. In truth, the agency has no “control” over the consequence. Stated plainly, all five traditional criteria for distinguishing a direct from a collateral consequence would identify mandatory consecutive sentencing under Penal Law § 70.25 (2-a) as a direct consequence. 10 B. The People’s Narrow Focus on the Strict Terms of the New Sentence Ignores the Tremendous Adverse Impact of Mandatory Consecutive Sentencing Under Penal Law § 70.25 (2-a). The People’s primary argument is that Penal Law § 70.25 (2-a) did not “enhance” Mr. Belliard’s sentence. In other words, Mr. Belliard “bargained for” a specific sentence (twelve years of imprisonment, five years PRS) and he received that sentence (Respondent’s Brief, p.26). The People argue that mandatory consecutive sentencing was not “an integral part of the punishment meted out upon a defendant’s conviction of a crime” (citing People v Gravino , 14 NY3d 546, 556 [2010]) (Respondent’s Brief, pp. 26-27). But the People do not suggest that Penal Law § 70.25 (2-a) was enacted for any purpose other than to increase the punishment of predicate felony offenders. The People admit that “defendant Belliard’s overall jail time might have been enlarged by consecutive sentences, but his 2007 sentence, standing alone, was left untouched” (Respondent’s Brief, p. 29). To agree that Penal Law § 70.25 (2-a) may have “enlarged” Mr. Belliard’s overall jail time, but then argue that “his 2007 sentence, standing alone, was left untouched” and was not “enhanced” splits verbal hairs and ignores reality. First, Mr. Belliard did not “bargain for” a consecutive sentence. Vital information was not provided to him. Mr. Belliard’s was sentenced to a specific period of time in prison (twelve years) with five years of PRS. Without the impact 11 of Penal Law § 70.25 (2-a), under the general default rule of concurrency, this specific period of time in prison would have been much shorter (presumably about nine years) (see Penal Law § 70.25 [1] [a] [“An indeterminate or determinate sentence shall run concurrently with all other terms”]). Second, this Court has long-recognized that a concurrent sentence offers a significant benefit to a guilty-pleading defendant. Where a guilty plea was induced by a promise of concurrency and that promise can no longer be fulfilled, the defendant may have the plea vacated. It makes no difference that the specific “terms” of the imposed sentence, when viewed in isolation, did not change (see People v Fuggazzato, 62 NY2d 862, 863 [1984] [“Defendant's plea having been induced by the understanding that the sentence would be concurrent with the sentence imposed for his conviction, since set aside, the plea must be vacated”]). Notably, a defendant’s guilty plea must be vacated even where the defendant serves the entire concurrent sentence before the other sentence is vacated. In People v Pichardo (1 NY3d 126, 129-130 [2003]), the defendant was serving a sentence for murder. He pleaded guilty to a drug felony in another county with a sentence of 1-to-3 years to run concurrently with the murder sentence. After he completed the 1-to-3 year sentence, the murder conviction was vacated. At the second trial, the defendant was acquitted. Shortly thereafter, he brought a CPL 440.10 motion to vacate his drug felony plea. The People opposed vacatur, 12 arguing that the defendant had actually received what he bargained for (a 1-to-3- year concurrent sentence). This Court disagreed and vacated the guilty plea, noting that the murder conviction was now a nullity in the eyes of the law and that the defendant, without the inducement of a concurrent sentence, may have decided to go to trial on the drug felony. That same possibility existed here. Actually, Mr. Belliard did go to trial. During the People’s case, Mr. Belliard entered the guilty plea, but was not told that the new sentence (twelve years of prison, five years of PRS) would run consecutively to the prior undischarged sentence (three years of prison, five years of PRS). While no explicit promise of concurrency was made, the record shows that Mr. Belliard was erroneously advised that concurrency was possible. At sentencing, the trial court was silent. Once again, but for the mandatory impact of Penal Law § 70.25 (2-a), Mr. Belliard would have received a concurrent sentence under the general default rule (Penal Law § 70.25 [1] [a]). The People contend that, in Wilson v McGinnis (413 F3d 196, 200 [2d Cir 2005]), the Second Circuit “rejected overall prison time as a demarcation for a direct consequence” (Respondent’s Brief, p. 29). This contention overstates the holding. In Wilson v McGinnis, the demarcation line for separating a collateral from a direct consequence was clearly drawn between sentencing discretion and no sentencing discretion. As the court explained: 13 “Wilson further maintains that the consecutive sentence was a direct consequence of his plea because § 70.25(2-b) made the imposition of that sentence mandatory and automatic. However, as the district court correctly observed, § 70.25(2-b) gives the sentencing court discretion to impose a concurrent sentence if it determines that such a sentence would be “in the interest of justice” and if the court finds either “mitigating circumstances that bear directly upon the manner in which the crime was committed” or determines that the defendant was a “relatively minor” participant in the crime. Wilson, 2004 WL 1534160, at *7. While the sentencing court clearly believed that Wilson did not qualify for either of the exceptions to § 70.25(2-b)'s consecutive sentencing requirement, it cannot be said that the court had no discretion to determine whether such an exception could be made or that the court erroneously failed to exercise its lawful discretion. Under these circumstances, we reject Wilson's contention that § 70.25(2-b) had such a “definite, immediate and largely automatic” effect on the range of punishment as to constitute a direct consequence of the plea.” “The two sentences were not contingent on one another, and it is inaccurate to assert, as Wilson does, that one sentence was increased by imposition of the other” (413 F3d at 200). But it was sentencing discretion that severed the connection between the two sentences. No sentencing discretion existed here. C. The Proper Interpretation of People Ex Rel Gill v Greene. The People misstate what this Court actually decided in People ex rel Gill v Greene (12 NY3d 1 [2009]) (a case that had nothing to do with plea voluntariness). It was not “specifically ruled” in Gill that the plea defect in Mr. Belliard’s case “cannot be classified as a Catu-type error” (Respondent’s Brief, p.13). This Court did not expressly reject “an analogy between a failure to advise about PRS and the 14 failure to advise about legally-mandated consecutive sentences per PL 70.25 (2-a)” (Respondent’s Brief, p.13). This Court’s finding, in a significantly different context, that “the analogy Gill draws between consecutive sentencing and PRS is flawed” (12 NY3d at 5) does not constitute an “unequivocal ruling” or “unambiguous language” that People v Morbillo has been overruled (Respondent’s Brief, p.14). While making these broad assertions, the People fail to explain why Gill provides such ironclad authority for their position. The People do not address the basic difference between a trial court’s constitutional duty to speak at the time of a defendant’s guilty plea and a trial court’s statutory duty to speak at the time of a defendant’s sentencing. These duties are not the same. Mr. Gill asked this Court to give him something to which he was not entitled – a concurrent sentence. In contrast, Mr. Belliard asks this Court to remedy the trial court’s failure to give him something to which he was entitled – notice of a direct consequence of his guilty plea. That mandatory consecutive sentencing under Penal Law 70.25 (2-a) can be inflicted upon a defendant at the time of sentencing, without requiring one word to be uttered by the sentencing court, makes it critically important (not less important) that the court utter a few words about this direct consequence at the time of the defendant’s plea. 15 CONCLUSION FOR THE FOREGOING REASONS, AND THOSE STATED IN MR. BELLIARD’S OPENING BRIEF, THE ORDER OF THE APPELLATE DIVISION SHOULD BE REVERSED AND THE GUILTY PLEAS SHOULD BE VACATED. Dated: July 2, 2012 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: DAVID R. JUERGENS Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4093 To Be Argued By: DAVID R. JUERGENS Assistant Public Defender Requested Time: 10 Minutes STATE OF NEW YORK * COURT OF APPEALS ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- RAFAEL L. BELLIARD, Appellant. ___________________________________________________ ATTACHMENT TO REPLY BRIEF FOR APPELLANT TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: DAVID R. JUERGENS Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4093 Fax: (585) 753-4234 Brief Completed: July 2, 2012 TABLE OF CONTENTS Second Felony Drug Offender Information ............................................................... 1