The People, Respondent,v.Lawrence Blankymsee, Appellant.BriefN.Y.May 30, 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 - LAWRENCE BLANKYMSEE 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 April 18, 2013 TABLE OF CONTENTS PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT APPELLANT HAD AN EXPECTATION OF FINALITY IN HIS 5-YEAR DETERMINATE SENTENCES ONCE HE HAD BEEN INCARCERATED FOR 5 YEARS BECAUSE CONTINUED INCARCERATION DOES NOT AFFECT THE FINALITY OF A COMPLETED SENTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 i TABLE OF AUTHORITIES CASES Peoplev. Lingle,16 N.Y.3d 621 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 5, 6 People v. Sparber, 10 N.Y.3d 457 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 People v. Velez, 19 N.Y.3d 642 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Velez, 79 A.D.3d 542 (1st Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Wells, 28 Misc.3d 628 (Sup. Ct. Queens Co. 2010) . . . . . . . . . . . . . . 4 People v. Williams, 14 N.Y.3d 198 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 State v. Rashid, 16 N.Y.3d 1 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 STATUTES P.L. § 70.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7 P.L. § 70.40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ii PRELIMINARY STATEMENT This reply brief is submitted in response to the Brief for Respondent, received by Defendant-Appellant on April 3, 2013. ARGUMENT APPELLANT HAD AN EXPECTATION OF FINALITY IN HIS 5-YEAR DETERMINATE SENTENCES ONCE HE HAD BEEN INCARCERATED FOR 5 YEARS BECAUSE CONTINUED INCARCERATION DOES NOT AFFECT THE FINALITY OF A COMPLETED SENTENCE The People argue both that under section 70.30, multiple concurrent determinate and indeterminate 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” (Brief for Respondent at 11) and that “[t]he statute does not create a ‘new’ sentence; it merely provides DOCCS with a mechanism to determine how an inmate can discharge multiple sentences” (Brief for Respondent at 27). The People resort to that direct contradiction because they have no other way to reconcile this Court’s decisions in People v. Sparber, 10 N.Y.3d 457 (2008), and People v. Lingle,16 N.Y.3d 621 (2011), to avoid the double jeopardy bar that is apparent in Mr. Blankymsee’s case. The Court in Sparber recognized that, in the post-release supervision context, the sentence the defendant is serving is the sentence the court imposed 1 regardless of statutory sentencing requirements. 10 N.Y.3d at 469-70. In Lingle, the Court held that a defendant acquires an expectation of finality in his sentence once he has finished serving that sentence, and that PRS could be lawfully added to his determinate sentence only if he was still serving it. 16 N.Y.3d at 630. The People first attempt to show that Mr. Blankymsee was still serving his determinate sentence by positing that perhaps he began serving his indeterminate sentences before beginning to serve the determinate one (Brief for Respondent at 24-25). That argument does not apply in Mr. Blankymsee’s case because the court directed that all his sentences be served concurrently; they all commenced at the same time. Second, the People argue that because Mr. Blankymsee was charged with the knowledge that P.L. § 70.30 applied in his case, he knew that he would continue serving an “aggregate term” calculated by DOCCS beyond his 5-year determinate sentences and, therefore, could have had no expectation of finality in those sentences (Brief for Respondent at 11, 23-24). That argument is both logically unpersuasive and circular. Mr. Blankymsee was certainly charged with the knowledge that he would remain incarcerated even after he had served 5 years in prison, but that expectation has nothing to do with whether he expected that his 5-year determinate terms would be final at that point. Only if P.L. § 70.30 created a new sentence would he be charged with the knowledge that his sentence was not final. But since the People recognize that P.L. § 70.30 does not create a new 2 sentence, Mr. Blankymsee’s expectation of continued incarceration cannot be read as an expectation that his determinate sentences were not final. Indeed, the People completely ignore Mr. Blankymsee’s argument that P.L. § 70.30(1)(a) does not even purport to create a single aggregate sentence (see Brief for Defendant-Appellant at 11-12). That section treats the maximum terms of concurrent determinate and indeterminate sentences as merging and being satisfied by the longest maximum sentence, but it merely directs that the minimums be credited against one another. Section 70.40(1)(a)(iii), which sets the date of parole for persons serving concurrent determinate and indeterminate sentences, does not indicate in any way that the sentences are combined. It merely directs that such a person may be paroled “at any time after the expiration of the minimum period of imprisonment of the indeterminate sentence or sentences, or upon the expiration of six-sevenths of the determinate sentence or sentences, whichever is later.” Mr. Blankymsee could not have expected that he was serving only a single sentence when the statute specified that his multiple minimum prison terms were unaltered. Similarly, the Appellate Division’s finding that when he was resentenced Mr. Blankymsee was still serving “a single combined sentence” is without statutory support (A. 3 (Decision and Order at 2)). Statutory notification that Mr. Blankymsee would continue to be incarcerated beyond the end of his determinate 3 sentences was not notification that, in addition, his 5-year determinate terms would not be final when he had finished serving 5 years in prison. The People’s contradictory arguments make sense only if they are read as proposing a solution they do not state: that factors other than completion of a term of incarceration can deprive a defendant of an expectation of finality in that sentence far beyond its completion — indeed, in the case of a concurrent indeterminate life sentence, forever. Obliterating the bright-line rule this Court established in Lingle in such a way makes no sense, either legally or practically. In Lingle, 16 N.Y.3d at 630, this Court held that an expectation of finality arises when the defendant “completes the lawful portion of an illegal sentence and exhausts any appeal taken.” That decision clarified People v. Williams, 14 N.Y.3d 198 (2010), which had been read as holding that a defendant acquires an expectation of finality in a sentence upon release alone, even before completion of that sentence. People v. Velez, 79 A.D.3d 542 (1st Dept. 2010); People v. Wells, 28 Misc.3d 628 (Sup. Ct., Queens Co. 2010); see Williams, 16 N.Y.3d at 218 (“defendants’ release from incarceration erected a Double Jeopardy Clause barrier to any subsequent upward modifications of their original sentences”). By removing “release” from the double jeopardy equation in Lingle, the Court explained that release alone did not erect the double jeopardy barrier; it was the 4 completion of the sentence that did.1 Read together, therefore, Williams and Lingle do not permit the conclusion that continued incarceration on other sentences, even after completion of a particular sentence, delays a defendant’s expectation of finality in that sentence. Indeed, the idea that continued incarceration on other counts delays an expectation of finality in a fully-served sentence is directly opposite this Court’s observation in Williams, 14 N.Y.3d at 217, that “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.” It also appears to be opposite the Court’s rationale in Lingle, 16 N.Y.3d at 631, that there be a “meaningful standard by which to measure a reasonable expectation of finality.” The Court in Lingle eschewed a rule involving a determination of when a “significant” or “substantial” portion of the sentence was served in favor of the bright-line completion-of-sentence rule. Id. It should similarly eschew an alteration that would require determining what kind and duration of post-completion factors can delay the vesting of an expectation of finality, and leave the bright line firmly in place. 1 In People v. Velez, 19 N.Y.3d 642, 649 (2012) (“there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed”), this Court relied on the language from Williams that was essentially the same as the Court’s holding in Lingle, but did not mention release from prison, to hold that a resentencing to add PRS that took place after the defendant had finished serving his sentence violated double jeopardy. 5 Far from being a “single, definite, articulable event,” as the People claim (Brief for Respondent at 16), the rule they suggest would erase the Court’s current clear bright line and replace it with a moving target. For example, if release is a required condition for establishing an expectation of finality in a determinate sentence, a defendant serving a concurrent or consecutive life sentence might never acquire such an interest, and the courts would be free to alter that sentence years or decades after its completion. Since that outcome is contradictory to there being a “temporal limit” to the courts’ jurisdiction, determining what that limit would be, if not at completion of the determinate sentence, would be anything but clear.2 The People complain that “defendant himself would inconsistently apply 70.30 for certain purposes, but not for this one” (Brief for Respondent at 28). That is true: Mr. Blankymsee would apply P.L. § 70.30 for its intended purpose of calculating release dates, but not for the unintended purpose of creating a new sentence or avoiding the constitutional double jeopardy constraints of the sentences the court imposed. The question in this case is not should the statute 2 Eliminating the bright-line rule of completion of the determinate sentence would also invite a flood of additional litigation including, but not limited to, such questions as, would the rule be the same for concurrent sentences? For sentences imposed at the same time under different indictments? For sentences imposed under different indictments at different times? Can factors other than serving a longer consecutive or concurrent sentence delay acquisition of an expectation of finality in a sentence — such as that the defendant is serving PRS has not paid a fine or restitution, or is subject to an order of protection? The Court’s current bright-line rule that an expectation of finality in the sentence arises upon its completion answers all such questions. 6 be applied differently in different contexts; this Court answered that question in the affirmative in State v. Rashid, 16 N.Y.3d 1, 18-19 (2010) (see Brief for Defendant-Appellant at 16-17). Rather, the question is whether it may be applied in this case without violating double jeopardy. The answer to that is no. The People also complain that treating a sentence as completed when its term expires would give defendants like Mr. Blankymsee a windfall because PRS on the determinate sentence would be served immediately, during his service of other, longer sentences (Brief for Respondent at 31-32). That would, indeed, be an absurd windfall if it could happen, which it cannot. Post-release supervision has that name for a reason — the inmate doesn’t begin to serve it until he is released. But the timing of the service of PRS has nothing to do with the finality of a sentence that does, or does not, include such a term. A yet-to-be-served period of PRS does not prevent the defendant from acquiring an expectation of finality in the sentence upon completion of his prison term because nothing in Lingle suggests that by “completion of the sentence” this Court was referring to completion of both the prison term and PRS. In short, since P.L. § 70.30 did not create a single aggregate sentence or alter Mr. Blankymsee’s expectation of finality in his fully served 5 year determinate prison terms, the addition of PRS to those sentences after he finished serving them violated his constitutional right to double jeopardy. 7 CONCLUSION FOR THE REASONS STATED ABOVE AND IN MR. BLANKYMSEE’S PRINCIPAL BRIEF, THIS COURT MUST REVERSE THE RESENTEN- CING AND DIRECT THAT HIS ORIGINAL DETERMINATE SENTENCES WITHOUT POST- RELEASE SUPERVISION BE REINSTATED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant- Appellant _______________________ By: Paul Skip Laisure Of Counsel April 18, 2013 8