The People, Respondent,v.Lawrence Blankymsee, Appellant.

Brief

N.Y.May 30, 2013

To 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 LAWRENCE BLANKYMSEE, 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 QN1185/01 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Re-Sentencing Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 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.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 B. 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 TABLE OF AUTHORITIES Page No. Cases Gonzalez-Fuentes, 607 F.3d 864 (1st Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 18 In re Mason, 100 N.Y.2d 56 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Matter of State of New York v. Rashid, 16 N.Y.3d 1 (2010). . . . . . . . . 28, 29 Missouri v. Hunter, 459 U.S. 359 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Montstream v. Superintendent, Bedford Hills Corr. Facility, 486 Fed. Appx. 164 (2d Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Blankymsee, 92 A.D.3d 890 (2d Dept. 2012). . . . . . . . . . . . . . . . . 6 Morrissey v. Brewer, 408 U.S. 471(1972). . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Brinson, 90 A.D.3d 670 (2d Dept. 2011). . . . . . . . . . . . . . . . . 6, 25 People v. Buss, 11 N.Y.3d 553 (2008). . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Delk, 59 A.D.3d 733 (2d Dept. 2009). . . . . . . . . . . . . . . . . . . . . . 30 People v. Gammon, 19 N.Y.3d 893 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. KinKan, 78 N.Y.2d 54 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Konstantinides, 14 N.Y.3d 1 (2009). . . . . . . . . . . . . . . . . . . . . . . 35 People v. Lingle, 16 N.Y.3d 621 (2011) . . . . . . . . . . . . . . . . . . . . . . . passim People v. Martinez, 74 A.D.3d 434 (1st Dept. 2010). . . . . . . . . . . . . . . . . . 27 People v. Merejildo, 45 A.D.3d 429 (1st Dept. 2007). . . . . . . . . . . . . . . . . 30 ii People v. Mills (Then), 11 N.Y.3d 527 (2008). . . . . . . . . . . . . . . . . . . . . . . 29 People v. Sparber, 10 N.Y.3d 457 (2008).. . . . . . . . . . . . . . . . 14, 27, 28, 34 People v. Velez, 19 N.Y.3d 642 (2012).. . . . . . . . . . . . . . . . . . . . . . . . 17, 18 People v. Walltower, 27 Misc.3d 1205(a) (Sup. Ct. Queens Co. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Williams, 14 N.Y.3d 198 (2010). . . . . . . . . . . . . . . . . . . . . . passim People v. Wright, 56 N.Y.2d 613 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Stewart v. Scully, 925 F.2d 58 (2d Cir. 1991).. . . . . . . . . . . . . . . . . . . . 33, 34 United States v. DiFrancesco, 449 U.S. 117 (1980).. . . . . . . . . . . . . . . . . . 26 United States v. Pettus, 303 F.3d 480 (2d Cir. 2002). . . . . . . . . . . . . . . . . . 26 Whalen v. United States, 445 U.S. 684 (1980). . . . . . . . . . . . . . . . . . . . . . . 26 Williams v. Travis, 143 F.3d 98 (2d Cir. 1998). . . . . . . . . . . . . . . . . . . . . . 34 Statutes C.P.L. § 440.40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Corr. Law § 803.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Penal Law § 70.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Penal Law § 70.45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23n.2, 29n.3 Penal Law § 220.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4 Penal Law § 220.16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 iii Penal Law § 220.50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Penal Law § 265.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4 Penal Law § 265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Other Authorities Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1296 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 iv COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : : -against- : LAWRENCE BLANKYMSEE, : 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 February 21, 2012, order of the Appellate Division, Second Department, affirming an October 20, 2010, re-sentence of the Supreme Court, Queens County (Knopf, J.). In 2004, defendant was convicted, after a jury trial before the Honorable Stanley Katz, of two counts of Criminal Possession of a Controlled Substance in the Third Degree, four counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]), and Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03). On May 20, 2004, the court adjudicated defendant a second felony offender and sentenced him to two concurrent indeterminate terms of incarceration of from eight to sixteen years on the drug possession convictions, two concurrent indeterminate terms of incarceration of from three to six years on two of the weapon possession convictions, two concurrent determinate terms of five years of incarceration on the other weapon possession convictions, and a one-year definite term of incarceration for his seventh- degree controlled substance possession conviction. The court failed to mention the statutorily mandated post-release supervision. Six years later, on October 20, 2010, after being notified by the Department of Correctional Services that the court had failed to impose PRS, the court re-sentenced him by adding two concurrent five-year terms of post- release supervision to his two concurrent determinate five-year sentences. He now appeals from the Appellate Division’s affirmance of that re-sentence. INTRODUCTION On April 17, 2001, while responding to a 911 call of shots fired, police officers observed defendant sitting in the driver’s seat of a motor vehicle matching the description of a vehicle that had been observed driving away from the area where the shots had been fired. Officers approached the car and 2 observed a gun in the center console of the car. Defendant was apprehended and the police recovered the following: a loaded black Bryco nine-millimeter handgun, a quantity of heroin in excess of two ounces, and an electronic scale containing heroin residue from the center console; a loaded nine-millimeter Ruger handgun, which had been reported stolen years earlier in Florida; and a quantity of heroin from defendant’s wallet. For these acts, defendant was charged with two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[12]), two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03), four counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1], [4]), Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03) and Criminal Possession of Drug Paraphernalia in the Second Degree (Penal Law § 220.50-3) (Queens County Indictment Number QN11185/01). Defendant proceeded to trial before the Honorable Stanley Katz and a jury. The jury returned a verdict finding defendant guilty of two counts of Criminal Possession of a Controlled Substance in the Third Degree, four 3 counts of Criminal Possession of a Weapon in the Third Degree (Penal Law 265.02[1]), and Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03). On May 20, 2004, the court adjudicated defendant a second felony offender and sentenced him to two concurrent indeterminate terms of incarceration of from eight to sixteen years on his third-degree drug possession convictions, two concurrent indeterminate terms of incarceration of from three to six years on two of the third-degree weapon possession convictions, two concurrent determinate terms of five years’ incarceration on the other weapon possession convictions, and a one-year definite term of incarceration for his seventh-degree controlled substance possession conviction. The court failed to mention the statutorily mandated post-release supervision. The Department of Correctional Services notified the court, pursuant to section 601(d) of the Correction Law, that the court had failed to impose PRS and that re-sentencing was necessary to correct the mistake. As a result, the case was placed on the court’s calendar and counsel was appointed to represent him. Defendant had been continually incarcerated from his arrest 4 on April 17, 2001, and, at the time of his re-sentencing, his conditional release date was May 20, 2020, and his maximum release date was October 4, 2028.1 At the re-sentencing on October 20, 2010, the People asked the court to add a term of five years of post-release supervision to defendant’s sentence. The defense counsel responded that defendant had already completed his two concurrent five-year determinate terms and was serving only his indeterminate consecutive terms of eight to sixteen years’ incarceration and, as such, it was improper to add the post-release supervision. Counsel further argued that the imposition of post-release supervision now would violate defendant’s rights against double jeopardy. Rejecting defendant’s argument, the court re-sentenced him by adding two concurrent five-year terms of post-release supervision to his two concurrent determinate five-year sentences. The court concluded a term of post-release supervision was required because defendant had not been released, he was still serving his time and, relying upon the logic from People v. At the time of this conviction, defendant owed approximately nine years for an1 earlier, unrelated conviction, which was added as consecutive time to the sentences imposed herein and resulted in nine years being added to the maximum of eight to sixteen year indeterminate sentence. 5 Williams, 14 N.Y.3d 198 (2010), the court found that defendant had not gone back to “his everyday life and his everyday pursuits.” The Re-sentencing Appeal On October 19, 2011, defendant, through counsel, appealed his re- sentencing to the Appellate Division, Second Department, arguing that, inter alia, re-sentencing to add PRS violated the proscription against double jeopardy since he had completed his two five-year determinate terms prior to the re-sentencing. Defendant alternatively argued that even if he had not completed his two five-year terms, re-sentencing him six years after the original sentencing violated double jeopardy because in that time he had developed a reasonable expectation of finality in his determinate sentences. On February 21, 2012, the Appellate Division, Second Department, unanimously affirmed defendant’s re-sentencing. People. v. Blankymsee, 92 A.D.3d 890 (2d Dept. 2012). Citing to People v. Lingle, 16 N.Y.3d 621 (2011) and People v. Brinson, 90 A.D.3d 670 (2d Dept. 2011), the court held that defendant’s re-sentencing did not violate double jeopardy or due process since “he had not yet completed serving his originally imposed sentence of imprisonment at the time he was resentenced.” Blankymsee, 92 6 A.D.3d at 890. Further relying on Brinson, the Court held that “defendant was still serving a ‘single, combined sentence.’” 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. 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 7 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 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 8 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 of the public and the re-acclimation 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 9 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. 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 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 10 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 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. Section 70.30 dictates the manner in which multiple concurrent determinate and indeterminate sentences are served. Under that section, the sentences are effectively aggregated or merged, resulting in a single term with a maximum expiration equal to that of the conviction with the longest sentence. 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 completed. And, as in Lingle and Williams, defendant was presumed to have been aware that his sentence was illegal and 11 could be corrected up until the time it was completed. As such, defendant had 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. Thus, the re-sentencing did not violate double jeopardy. 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 12 is concluded, and he has reason to believe he has fully completed his sentence and will suffer no further restraint. 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 at 198, and People v. Lingle, 16 N.Y.3d at 621, 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, 13 he had no expectation of finality in his original sentence and 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 People v. 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 14 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 15 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 16 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 17 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, 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). 18 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, all of which are to be served concurrently, the time served under any of the sentences is credited against the minimum term of the indeterminate sentences and the determinate term. The maximum terms “merge in” and are “satisifed by the discharge of the term whihc has the longest unexpired time to run.” Penal Law § 70.30(1)(a). This statute thus provides the precise manner in which multiple concurrent sentences merge and are 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 five-year concurrent determinate term was subsumed into his 8 to 16 year indeterminate term, and, since it is the largest, the 8 to 16 controls. And, under section 70.30, defendant could not and did not satisfy any of the sentences until he satisfied the merged term. Moreover, he was presumed to know the law, specifically that the sentence was illegal and that his sentence was subject to correction. For this 19 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 conviction was served consecutively to the undischarged portion of his 1983 20 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 of recidivism posed by sex offenders’” and that this goal is “best served by 21 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 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. Moreover, application of 70.30 is supported by the terms of the PRS statute itself. Under the PRS statute, PRS only commences upon a 22 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: 10-20). 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 imposing an arbitrary rule, 70.30 provides a sound legal basis for determining how a sentence including both determinate and indeterminate sentences is 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). 23 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 section in the Penal Law, Correction Law, or Executive Law, the defendant serves neither the determinate nor the indeterminate sentence first, but serves 24 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. Defendant further argues that use of section 70.30 and People v. Buss is inappropriate here, as they involve only statutory language or 25 interpretation, and the issue in this case, double jeopardy is one on constitutional dimension (Defendant’s Brief: 17). 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. That applying the sentencing statutes in the Penal Law and Correction Law to ascertain when a defendant obtains an expectation of finality is appropriate is also supported by this Court’s holding in Sharlow. There this Court silently applied the Correction Law statute that allows for 26 conditional release prior to the maximum expiration of a sentence with the application of good time (see Corr. Law § 803), demonstrating that the sentencing statutes are an integral part of the analysis of the crystallization of an expectation of finality. 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- 20), 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’s 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 SORA purposes would somehow require the pronouncement of a new sentence. Likewise, Sparber was not implicated when Sharlow was 27 conditionally released prior to reaching his completion of his seven-year sentence, the only sentence he received from the lower 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 merges defendant’s terms into his largest indeterminate term and then enables defendant to receive credit for good behavior up to one-third of his maximum time. Penal Law§ 70.30(4); Corr. Law § 803(1)(b). While defendant would readily take advantage of 70.30 for this purpose, 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: 16-18). 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 ‘count’ for purposes of eligibility for civil management,” and which also specifies which defendants subject to multiples sentences will be eligible for 28 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. 3 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: 18). 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. 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 Indeed, it is pretty simple, PRS commences upon an inmates release from3 incarceration. Penal Law § 70.45. 29 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 (Defendant’s Brief: 18-19) 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 a similar conclusion in People v. Merejildo, 45 A.D.3d 429 (1st Dept. 2007). Thus, contrary to defendant’s claim, 70.30 has 30 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: 25) 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 31 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. 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 70.30 applies, since, at the time of his re-sentencing, he had been incarcerated for longer than the determinate sentence imposed he obtained an expectation of finality in his determinate sentence (Defendant’s Brief: 20-25), because it rejected a similar argument in Lingle. And there is nothing here that warrants a different finding than Lingle. That he is subject to other longer indeterminate sentences that merged with his determinate sentence requiring him to be incarcerated longer than if he had only received the determinate sentence, 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. 32 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 33 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: 22). 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 34 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 an amount of time equal to the length of his determinate sentence when he is also serving a longer indeterminate sentence triggers an expectation of finality since it is contrary to Williams and Lingle. * * * * 35 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. 36 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