The People, Respondent,v.Tyrell Norris, Appellant.BriefN.Y.February 7, 2013To be argued by PAUL SKIP LAISURE (15 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - TYRELL NORRIS, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY Attorney for Defendant-Appellant 2 Rector St., 10th Floor New York, N.Y. 10006 (212) 693-0085 Paul Skip Laisure Of Counsel September 10, 2012 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT NEITHER DLRA 3 NOR ANY OTHER PROVISION OF NEW YORK LAW LIMITS A RESENTENCING COURT’S AUTHORITY TO IMPOSE CONCURRENT SENTENCES ON COUNTS AS TO WHICH RESENTENCING IS ORDERED, NOTWITHSTANDING THAT THE COURT HAD ORIGINALLY ORDERED THAT THE TO-BE-VACATED SENTENCES BE SERVED CONSECUTIVELY . . . . . . . . . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 i TABLE OF AUTHORITIES CASES People v. Acevedo, 14 N.Y.3d 828 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 People v. Beasley, 42 A.D.3d 639 (2d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Berry, 89 A.D.3d 954 (2d Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Catu, 4 N.Y.3d 242 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Concepcion, 85 A.D.3d 811 (2d Dept. 2011) . . . . . . . . . . . . . . . . . 2, 6 People v. Dais, 19 N.Y.3d 335 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Highsmith, 79 A.D.3d 1741 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Lexington Sixty-First Assoc., 38 N.Y.2d 307 (1976) . . . . . . . . . . . . . 1 People v. Paulin, 17 N.Y.3d 238 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 6 People v. Santiago, 17 N.Y.3d 246(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6 STATUTES N.Y. Criminal Procedure Law § 400.21(2)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 N.Y. Criminal Procedure Law § 440.46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 N.Y. Penal Law § 70.25(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 N.Y. Penal Law § 70.70 (2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 N.Y. Penal Law § 70.70 (3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 N.Y. Penal Law § 70.70 (4)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2011 N.Y. Laws 477, ch. 62, pt. C, subpt. B . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ii PRELIMINARY STATEMENT This reply brief is submitted in response to the Brief for Respondent, received by Defendant-Appellant on August 20, 2012, and in compliance with the Court’s deadline of September 11, 2012, for reply. ARGUMENT NEITHER DLRA 3 NOR ANY OTHER PROVISION OF NEW YORK LAW LIMITS A RESENTENCING COURT’S AUTHORITY TO IMPOSE CONCURRENT SENTENCES ON COUNTS AS TO WHICH RESENTENCING IS ORDERED, NOTWITHSTANDING THAT THE COURT HAD ORIGINALLY ORDERED THAT THE TO-BE-VACATED SENTENCES BE SERVED CONSECUTIVELY. As this Court has recognized, the Drug Law Reform Acts generally, and DLRA 3 in particular, are broadly ameliorative statutes. In People v. Paulin, 17 N.Y.3d 238, 244 (2010), this Court recognized that “[t]he purpose of the 2009 DLRA, like that of its predecessors, the 2004 and 2005 DLRAs (L 2004, ch 738; L 2005, ch 643), was to grant relief from what the Legislature perceived as the ‘inordinately harsh punishment for low level non-violent drug offenders’ that the Rockefeller Drug Laws required (Assembly Sponsor's Mem, Bill Jacket, L 2004, ch 738, at 6).” DLRA 3 must, therefore, be broadly interpreted so as to maximize its ameliorative effect. People v. Lexington Sixty-First Assoc., 38 N.Y.2d 307, 311 1 (1976) (remedial statute “should be liberally construed so that its beneficent purpose may, so far as possible, be attained”) (see Brief for Defendant-Appellant at 21-23). The People argue that the statute prevents a resentencing court from determining whether determinate prison terms on counts as to which the defendant is entitled to be resentenced should be served concurrently instead of consecutively, as the sentences being replaced were originally imposed. Because neither DLRA 3 nor any other provision of New York law imposes any such limitation, and because the nature of the resentencing actually requires that the court reconsider the relationships between the new determinate sentences, the resentencing court in this case erred in ruling that it had no authority to do so. In their response, the People ignore one of DLRA 3's most important features — that there is a presumption in favor of resentencing. People v. Concepcion, 85 A.D.3d 811, 812 (2d Dept. 2011); People v. Beasley, 42 A.D.3d 639 (2d Dept. 2008). Indeed, their characterization of the statute as permitting judicial “leniency” for “deserving” defendants (Brief for Respondent at 36 & n. 10) is telling. It does not accurately reflect the Legislature’s intent that lengthy sentences be replaced by shorter ones as a matter of course and that only in exceptional cases, in which the People can show that substantial justice dictates that a defendant not be resentenced, should he be deprived of the ameliorative effect of the statute. 2 Thus, the statute directs that, in most situations, the court must offer a shorter sentence. That directive is inconsistent with an interpretation that the statute prevents the substitution of shorter concurrent sentences for longer consecutive ones because of its silence on the matter. It is also inconsistent with the fact that each time this Court has addressed the ameliorative scope of DLRA 3, it has adopted an interpretation permitting the broadest ameliorative effect. In Paulin, 17 N.Y.3d at 244, this Court held that incarcerated parole violators are eligible for resentencing and in People v. Santiago, 17 N.Y.3d 246, 247(2011), it held that even released parole violators were eligible for resentencing so long as they were incarcerated when their motions were filed. In both instances, this Court held that even provisions designed to limit who would be eligible for relief should be read to permit as broad resentencing relief as possible. To read into the legislation a restriction that is not there at all would be counter to legislative intent. The People’s position also ignores the fact that the very nature of the resentencing requires a court to fashion an entirely new scheme. The Legislature did not merely reduce the applicable sentencing terms, as the People suggest (Brief for Respondent at 24, referring to a resentencing court’s “authority to determine the length of the terms of imprisonment”). Rather, the court must replace indeterminate sentences with determinate sentences and add a period of post- 3 release supervision that was not a part of the original sentences. As this Court has held, post-release supervision is a significant component of the overall sentence. People v. Catu, 4 N.Y.3d 242, 245 (2005). In addition, the earliest release date of a determinate prison term comes later in the sentence than is true for indeterminate ones. To deprive the court of the ability to reconsider the relationship of counts to one another, while requiring it to add terms and conditions that were not previously imposed, would pervert the resentencing process and lead to such unintended results as occurred in this case in which the offered sentence actually would have increased the minimum incarceration period from 15 to 18 years in prison.1 DLRA 3 also permits the resentencing court to impose new sentences on lower counts imposed at the same time as the class B counts that are the primary focus of the statute. This provision ensures that when a court imposes a lesser sentence on a defendant’s class B counts, the ameliorative effect is not diminished by the existence of longer class C or D sentences. Again, the only sensible conclusion that can be drawn from the statutory scheme is that the Legislature 1 Mr. Norris’s three consecutive 5 to 10 year sentences require that he serve at least 15 years in prison. He would be eligible for conditional release on the proposed consecutive 7 year sentences after having served 6/7 of that 21-year aggregate sentence (See Brief for Defendant- Appellant at 26-27). 4 intended the resentencing court to consider all ramifications of the new sentences so as to ensure that the resentencing provides meaningful relief to the defendant.2 The People claim that an interpretation preventing reconsideration of a previous consecutive sentences order is nevertheless inescapable because DLRA 3 is a “comprehensive and highly structured law,” and its failure to explicitly address the question whether the resentencing court can alter the relationships between newly-imposed sentences must be read as prohibiting such a change (Brief for Respondent at 21, 28). The DLRA’s specificity, however, has to do with eligibility for resentencing. Its provisions closely regulate who can be resentenced; it is much less specific with respect to whether an eligible defendant can be resentenced or, if he is resentenced, what that sentence should be. The three “highly structured” examples cited by the People relate to eligibility: whether a parole violator is eligible for resentencing, whether defendant is eligible for resentencing on non-drug counts, and whether a defendant is eligible for resentencing on lesser drug counts (Brief for Respondent at 28-30). Once 2 The People’s suggestion that the resentencing court could have imposed a lesser aggregate sentence by offering a lower sentence on each count (Brief for Respondent at 40) misses the point. The question is not whether the court could have done something different, but whether the court was incorrect about what it was authorized to do. A court may reasonably conclude that a particular sentence (in this case, 7 years) is appropriate for a particular count regardless of its relationship to other counts. A court that comes to that conclusion, but incorrectly determines that it is bound to order that the sentences consecutively, will have failed to exercise its full discretion under DLRA 3. 5 eligibility for resentencing is determined, however, the court has broad discretion with respect to what sentence it may impose. First, whether “substantial justice” dictates that an eligible defendant not be resentenced is left undefined. While the Appellate Division has established that the standard for denying resentencing is a high one, see Concepcion, 85 A.D.3d at 812; People v. Berry, 89 A.D.3d 954, 956 (2d Dept. 2011), the Legislature left its application to the discretion of the resentencing court. Second, the Legislature provided for broad discretion with respect to length of sentence. The range for a first felony offender 1 to 9 years; that for a second felony offender is 2 to 12 years; and that for a second violent felony offender is 6 to 15 years. P.L. §§ 70.70 (2)(a); (3)(b); (4)(b). Thus, the Legislature did not micro-manage the resentencing process; it provided broad discretion to resentencing courts with respect to the sentences they could impose. Given that structure, there is no basis for concluding that any potential ruling not specifically addressed by it is prohibited. In fact, this Court has already twice rejected arguments by the People urging that the Court read restrictions into the statute that the Legislature did not include. See Paulin, 17 N.Y.3d at 244 (“There is no need to read into the 2009 DLRA a nontextual exception for parole violators”); Santiago, 17 N.Y.3d at 247 (refusing to “write into a statute an exception that 6 simply is not there,” which would have prohibited resentencing of defendants released before decision on their motions). The People also argue that changing the relationship of counts subject to resentencing is unlawful because it is not authorized under P.L. § 70.25 (Brief for Respondent at 26-27). But that statute is silent with respect to revisiting a consecutive sentences order upon resentencing. Since Mr. Norris was resentenced on all three sale counts at the same time, P.L. § 70.25( 1) authorized the imposition of concurrent sentences.3 Nothing in that statute removed that authorization just because the indeterminate sentences that were being vacated had previously been ordered to run consecutively. The resentencing court was free under P.L. § 70.25(1) to order that Mr. Norris’s new determinate sentences be served concurrently. The People point out that in People v. Dais, 19 N.Y.3d 335, 336 (2012), and its companion case People v. Stanley, this Court held that a resentencing court is without authority to revisit a second felony offender adjudication (Brief for Respondent at 31-32). A closer look at Dais/Stanley, however, reveals that this is true only to the extent that the statutory bar of C.P.L. § 400.21(2)(8) applies. In 3 In People v. Acevedo, 14 N.Y.3d 828 (2010), the defendant was not being resentenced on all the counts as to which he was requesting a concurrent sentences order. Accordingly, he was not entitled under § 70.25 to have that “other” count run concurrently with the resentenced drug counts. Id. at 831. 7 Stanley, in particular, this Court held that the defendant was entitled to a de novo review of his second violent felony offender status but not whether he was a second felony offender. Since his second felony offender status had been specifically determined at his original sentencing the C.P.L. § 400.21(2)(8) bar against relitigating a previous second felony offender adjudication did not apply. Thus, all that Dais/Stanley stands for is the unremarkable proposition that C.P.L. § 400.21 only bars reconsideration of facts actually determined in the original predicate felony offender adjudication. There being no statutory bar to revisiting a consecutive sentences order, however, Dais/Stanley has no application to this case. Try as they might, the People can find no provision in statute or case law that prevents a court from revisiting the relationship between counts all of which are subject to resentencing. As was demonstrated in Mr. Norris’s principal brief, because People v. Acevedo, 14 N.Y.3d 828 (2010), holds only that a DLRA resentencing court cannot alter the relationship of counts not subject to resentencing to those that are, that case is inapposite as well. Finally, the People make a last-ditch attempt to establish a legislative intent contrary to logic and the spirit of the overall statute by claiming that the 2011 amendment to C.P.L. § 440.46 reflecting the merger of the Department of Corrections with the Division of parole ratified, by omission the Fourth 8 Department’s decision in People v. Highsmith, 79 A.D.3d 1741 (2011). Highsmith held that a DLRA resentencing court could not reconsider its previous consecutive sentences order. Id. The People’s ratification claim is wrong for two reasons. First, since Highsmith was decided mere days before the enactment of the 2011 amendments, it is extremely unlikely that the Legislature seriously considered that decision when it enacted them (see Brief for Respondent at 32-33). Second, and more important, the 2011 amendment was a universal enactment that changed “Department of Correctional Services” to “Department of Corrections and Community Supervision” wherever that term appeared throughout the Criminal Procedure Law, Penal Law and all other New York statutes. See 2011 N.Y. Laws 477, ch. 62, pt. C, subpt. B. The enactment simply was not a substantive amendment silently adopting the one-sentence holding of an Appellate Division decision on an admittedly arcane topic that had just been issued. In sum, since DLRA 3 is an ameliorative statute that should be broadly construed to afford maximum benefit, and because neither it nor any other statutory provision prevents a resentencing court from ordering that sentences on newly-imposed counts run concurrently, the fact that the vacated sentences on those counts had been running consecutively is not a bar to a concurrent sentencing order. Accordingly, the resentencing court’s determination that it was 9 without authority to issue such an order was error and the case should be remanded to the Supreme Court for resentencing. CONCLUSION FOR THE REASONS STATED ABOVE, AND IN MR. NORRIS’S MAIN BRIEF, THIS COURT SHOULD REVERSE THE SUPREME COURT OR D E R O F F E R I N G C O N S E C UTIVE DETERMINATE SENTENCES AND REMAND TO THAT COURT FOR RESENTENCING. Respectfully submitted, LYNN W.L. FAHEY Appellate Advocates Counsel for Defendant-Appellant Of Counsel Paul Skip Laisure September 10, 2012 10