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. BRIEF AND APPENDIX 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 January 30, 2013 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Conviction and Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Resentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT ADDING A 5-YEAR TERM OF POST-RELEASE SUPERVISION TO MR. BLANKYMSEE’S TWO DETERMINATE SENTENCES AFTER HE HAD FINISHED SERVING THOSE SENTENCES AND WAS INCARCERATED ONLY ON CON- CURRENT INDETERMINATE SENTENCES VIOLATED DOUBLE JEOPARDY . . . . . . . . . . . . . . . . . . . . . 9 A. Because Mr. Blankymsee Had Finished Serving the Two 5-Year Determinate Prison Terms Pronounced By the Sentencing Judge Before He Was Resentenced, and Those Sentences Were Not Altered By Any Calculation of Release Dates Made Later By the Department of Corrections and Community Supervision, His Resentencing Violated Double Jeopardy. . . . . . . . . . . . . . 10 i B. Because Appellant Had an Expectation of Finality in His 5-Year Determinate Sentences When the Resentencing Court Imposed PRS After Appellant Had Served More Than 5 Years in Prison, the Resentencing Violated Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 APPENDIX Order Granting Leave to Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 1 The Decision & Order of the Appellate Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 2 Brief for Defendant-Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 4 Brief for Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 21 Transcript of May 20, 2004 Sentencing . . . . . . . . . . . . . . . . . . . . . . A 45 Transcript of October 20, 2010 Resentencing . . . . . . . . . . . . . . . . . A 56 DOCCS Inmate Information Printout . . . . . . . . . . . . . . . . . . . . . . . A 68 Pre-Sentence Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 70 Certification ii TABLE OF AUTHORITIES CASES Earley v. Murray, 451 F.3d 71 (2006) ................................................................ 3, 13 People v. Buss, 11 N.Y.3d 553 (2008) ......................................................... 4,15, 16 People v. Campanella, 297 A.D.2d 642 (2d Dept. 2002) .................................... 21 People v. Lingle, 16 N.Y.3d 621 (2011) ............................... 5, 9, 10, 11, 19, 23, 24 People v. Mills (Then), 11 N.Y.3d 527 (2008) ...................................................... 18 People v. Nieves, 27 Misc.3d 585 (Sup. Ct. N.Y. Co. 2010) .............................. 19 People v. Ramirez, 89 N.Y.2d 444 (1996) ............................................................. 12 People v. Sparber, 10 N.Y.3d 457 (2010) ............................................... 2, 7, 12, 13 People v. Trimm, 252 A.D.2d 673 (3d Dept. 1998) ............................................ 21 People v. Walltower, 27 Misc.3d 1205(a) (Sup. Ct. Queens Co. 2010) ............ 18 People v. Williams, 14 N.Y.3d 198 (2010) ......................................... 10, 19, 20, 24 State v. Rashid, 16 N.Y.3d 1 (2010) ................................................................... 4, 16 Stewart v. Scully, 925 F.2d 58 (2d Cir. 1991) .............................................. 5, 21, 22 United States v. DiFrancesco, 449 U.S. 117 (1980) ......................................... 9, 21 United States v. Silvers, 90 F.3d 95 (4th Cir. 1996) .............................................. 10 Williams v. Travis, 143 F.3d 98 (2d Cir. 1998) ................................................. 5, 22 CONSTITUTIONS N.Y. Const., Art. 1, §6 .......................................................................................... 9, 10 U.S. Const., Amend. V ......................................................................................... 9, 10 iii STATUTES N.Y. Crim. Proc. Law § 440.40 ............................................................................... 20 N.Y. Penal Law § 70.30(1) ................................................................................ passim N.Y. Penal Law § 70.40(1) ................................................................................ passim N.Y. Penal Law § 70.45 ...................................................................................... 13, 17 iv COURT OF APPEALS STATE OF NEW YORK ________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LAWRENCE BLANKYMSEE, Defendant-Appellant. ________________________________________ PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, granted April 4, 2012, appellant Lawrence Blankymsee appeals from an order of the Appellate Division, Second Department, entered February 21, 2012, affirming a resentence of the Supreme Court, Queens County, imposed on October 20, 2010, adding a period of 5 years of post-release supervision to appellant’s determinate sentences (Knopf, J.). On May 31, 2012, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel on this appeal. No stay has been sought. Appellant is currently at liberty but on parole pursuant to the judgment. This Court has jurisdiction pursuant to C.P.L. § 450.90(1) to entertain this appeal and review the issues raised. The issues raised was preserved by defense 1 counsel’s timely argument on October 20, 2010, before the resentencing court, that a resentencing would violate appellant’s double jeopardy protections. QUESTION PRESENTED WHETHER ADDING A 5-YEAR TERM OF POST-RELEASE SUPERVISION TO MR. BLANKYMSEE’S DETERMINATE SENTENCES AFTER HE HAD FINISHED SERVING THOSE SENTENCES AND WAS INCARCERATED ONLY ON CONCURRENT INDETERMINATE SENTENCES VIOLATED DOUBLE JEOPARDY. SUMMARY OF ARGUMENT In this case, the sentencing court imposed two determinate sentences of 5 years in prison and four indeterminate sentences, the longest of which was 8 to 16 years, all sentences to be served concurrently. The court did not impose a term of post-release supervision (“PRS”). When Mr. Blankymsee was returned to court after having been incarcerated for more than 5 years, but before his release from prison, the resentencing court, finding that he had not completed his sentence, imposed a 5-year term of PRS. The resentencing violated appellant’s double jeopardy protections because PRS was imposed after appellant had developed an expectation of finality in his sentence. In People v. Sparber, 10 N.Y.3d 457 (2010), this Court confirmed that the sentence a defendant must serve is the sentence the court imposed at 2 sentencing; it cannot be altered either by administrative correction of error or by invocation of mandatory legislative sentencing provisions. As a result, the separate prison terms the court imposed were the only sentences appellant was serving at the time of resentencing. Since the sentencing court had ordered that the indeterminate terms be served concurrently with the determinate terms, and appellant had finished serving the determinate terms, he had established an expectation of finality in those sentences such that they could not be altered to add a term of PRS. Sections 70.30 and 70.40 of the Penal Law, which set forth the ways in which the Department of Corrections and Community Supervision (“DOCCS”) must calculate service of concurrent and consecutive sentences in order to establish release and expiration dates, do not purport to create a single aggregate sentence from the multiple ones that were imposed by the sentencing judge. Nor could they, consistent with constitutional due process principles, effectuate such a change even if they purported to do so, because even a mandatory statutory provision cannot override the sentences actually imposed by the sentencing judge. The same result obtains even if the statutes purported to create a single aggregate sentence. Sparber mirrored the Second Circuit Court of Appeals’s decision in Earley v. Murray, 451 F.3d 71, 75 (2006), which held that a judge’s failure to impose a term of PRS meant that the defendant’s sentence included no 3 such term, even though the term was a mandatory requirement of the sentencing statute. If an illegal sentence, without PRS, remains unaltered by a statutory provision requiring its imposition, multiple sentences remain unaltered by a statute that purports to fuse them into a single sentence. This Court’s decision in People v. Buss, 22 N.Y.3d 553 (2008), is not to the contrary because this Court’s application of Penal Law §70.30 in that case was made in the context of the non-criminal Sexual Offender Registration Act (“SORA”). The Court deemed the consecutive sentences defendant was serving to be a single sentence in order to effectuate the statutory purpose of the SORA statute. That Buss was merely an application of the sentencing calculation statutes limited to the SORA context was made clear in State v. Rashid, 16 N.Y.3d 1, 19 (2010), in which this Court declined to find that Penal Law § 70.30 transformed multiple consecutive sentences into a single aggregate sentence so as to permit the State to file a civil management petition while the defendant was in custody on a sex offense. The Court found that the State could not avoid the “in custody on a sex offense” requirement by relying on the sentencing calculation provisions of Penal Law § 70.30. If those provisions had actually created a new sentence, the defendant in Rashid would have been serving that sentence such that service by the State would have been proper. This Court confirmed that no such new sentence had been created. 4 Even if Penal Law §§ 70.30 and 70.40 created a new aggregate sentence in this case, Mr. Blankymsee had an expectation of finality in his 5-year determinate term after 5 years had passed, such that double jeopardy principles still prohibited any alteration of his sentence at the time of his resentencing. Under federal precedent, a defendant’s expectation of finality becomes stronger as he finishes serving more and more of his sentence. Stewart v. Scully, 925 F.2d 58 (2d Cir. 1991); Williams v. Travis, 143 F.3d 98 (2d Cir. 1998). Since this Court, in People v. Lingle, 16 N.Y.3d 621 (2011), has drawn a bright line at the completion of a sentence for double jeopardy purposes in the sentencing context, when Mr. Blankymsee had been incarcerated for 5 years, a period coextensive with the length of his determinate prison terms as initially imposed by the judge, double jeopardy barred adding PRS to his sentence even if it had become part of a longer aggregate sentence. 5 STATEMENT OF FACTS The Conviction and Sentencing On April 28, 2004, appellant Lawrence Blankymsee was convicted, following a jury trial, of two counts of third-degree possession of a weapon (loaded firearm); two counts of third-degree possession of a weapon (previously convicted of a crime); two counts of third-degree possession of a controlled substance; and one count of seventh-degree possession of a controlled substance (A. 70). On May 20, 2011, the court sentenced him, as a second felony offender, to seven concurrent prison terms: determinate sentences of 5 years on the two loaded firearm counts, indeterminate sentences of 3 to 6 years on the remaining weapon counts, indeterminate sentences of 8 to 16 years on the two felony controlled substance counts, and a definite sentence of 1 year on the misdemeanor drug possession count (A. 52-54). The court said nothing about post-release supervision at sentencing. The Resentencing Mr. Blankymsee finished serving 5 years of incarceration in this case on June 6, 2009 (A. 68-69). More than sixteen months later, on October 20, 2010, he was returned to court because PRS had not been imposed at his original sentencing (A. 58-59). The court recognized that “he can’t get his [PRS] if he has 6 finished the sentence and been released from Corrections’ custody,” but stated that “[i]t is my understanding that he is still serving the sentence” (A. 59). Defense counsel objected to the imposition of PRS, arguing that since Mr. Blankymsee had already served more than the 5-year terms of his determinate sentences, “he would have maxed out on those counts” (A. 62). The court confirmed that counsel’s argument was that, once a defendant has completed his sentence “it is improper to impose a period of post-release supervision and that, to do so, constitutes double jeopardy” (A. 62). The People argued that “double jeopardy attaches when the prisoner has finality” and can “go back to his everyday life” with “no reason to expect that his sentence would ever be altered,” which was not true of Mr. Blankymsee, who had not yet been released from prison (A. 62- 63). The court stated that Mr. Blankymsee was still “serving his time,” but recognized that it was “[p]robably not the time he served on a determinate sentence” (A. 64). Since he had not been released, “the logic that the Court of Appeals uses in the Williams case really is not there where this is not a defendant who has gone back to his everyday life” (A. 64). Accordingly, the court imposed 5 years of PRS (A. 65). 7 The Appeal Mr. Blankymsee appealed, arguing before the Appellate Division, Second Department, that his resentencing violated federal and state double jeopardy because he had finished serving his determinate sentence before the court imposed PRS at his resentencing. Specifically, Mr. Blankymsee argued that P.L. § 70.30 had not created a new single aggregate sentence out of the concurrent sentences the judge had imposed (A. 12). Mr. Blankymsee also argued, in the alternative, that even if he had been serving a single aggregate sentence, his resentencing after having served more than 5 years nevertheless occurred after he had acquired an expectation of finality in the original sentence, and therefore violated double jeopardy (A. 14-18). The People argued that Mr. Blankymsee’s double jeopardy claim failed because he was serving a single aggregate sentence by operation of P.L. § 70.30 (A. 34-35). The Appellate Division held that the resentencing had not violated Mr. Blankymsee’s double jeopardy rights because “[a]t the time of the resentencing, the defendant was still serving ‘a single, combined sentence’ (People v. Brinson, 90 A.D.3d at 672).” (A. 2-3). Judge Graffeo granted Mr. Blankymsee permission to appeal to this Court (A. 1). 8 ARGUMENT ADDING A 5-YEAR TERM OF POST-RELEASE SUPERVISION TO MR. BLANKYMSEE’S TWO DETERMINATE SENTENCES AFTER HE HAD FINISHED SERVING THOSE SENTENCES AND WAS INCARCERATED ONLY ON CON- CURRRENT INDETERMINATE SENTENCES VIOLATED DOUBLE JEOPARDY. The Double Jeopardy Clause of the United States Constitution protects a defendant from having his sentence enhanced once he has developed a legitimate expectation of finality in the original sentence, even if it was illegal. United States v. DiFrancesco, 449 U.S. 117, 139 (1980). Because appellant Lawrence Blankymsee had completed both of his concurrent 5-year sentences for third- degree weapon possession 16 months before his resentencing, and the People’s time for challenging the legality of the sentences had expired, Mr. Blankymsee had a legitimate expectation in the finality of those sentences at the time of his resentencing. Accordingly, resentencing him to add a 5-year period of post-release supervision violated his constitutional double jeopardy guarantees. U.S. Const., Amend. V; N.Y. Const. Art. I, § 6; DiFrancesco, 449 U.S. at 139. Under People v. Lingle, 16 N.Y.3d 621, 630 (2011), this Court must vacate the unlawfully imposed terms of PRS. Even if this Court takes the view that the sentences the court imposed could be construed as having been somehow converted into a single aggregate 9 sentence, the resentencing still violated Mr. Blankymsee’s constitutional double jeopardy rights because once he had served more than the 5 years the court had imposed, he had developed a reasonable expectation of finality in the original 5- year sentences such that the addition of PRS violated his state and federal double jeopardy guarantees. U.S. Const., Amend. V; N.Y. Const., Art. 1, § 6. A. Because Mr. Blankymsee Had Finished Serving the Two 5-Year Determinate Prison Terms Pronounced By the Sentencing Judge Before He Was Resentenced, and Those Sentences Were Not Altered By Any Calculation of Release Dates Made Later By the Department of Corrections and Community Supervision, His Resentencing Violated Double Jeopardy In People v. Williams, 14 N.Y.3d 198, 219-20 (2010), and Lingle, 16 N.Y.3d at 630, this Court held that the Double Jeopardy Clause of the Fifth Amendment forbids the addition of PRS to a defendant’s determinate sentence after he has completely finished serving his sentence and the People’s time to appeal the sentence has expired. The Court based its determination on federal precedent holding that “a reasonable expectation of finality arises upon completion of an imposed sentence, resulting in the attachment of jeopardy precluding resentencing.” Williams, 14 N.Y.3d at 216 (citing United States v. Silvers, 90 F.3d 95, 101 (4th Cir. 1996)). It was undisputed at resentencing that Mr. Blankymsee had been incarcerated for significantly more than 5 years. Thus, he had completed his concurrent 5-year determinate sentences before he was resentenced. The only reason he remained incarcerated at the time of resentencing was that he was 10 serving longer concurrent indeterminate sentences on counts other than the ones to which PRS was attached. Under the unequivocal Lingle/Williams rule, that resentencing violated double jeopardy because Mr. Blankymsee had completed his 5-year determinate sentences, and the People’s time to appeal had expired, long before the date of his resentencing on those charges. See Lingle, 16 N.Y.3d at 630 (“an expectation of finality arises for purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts any appeal taken”). Contrary to the Appellate Division’s decision, Mr. Blankymsee’s sentences were not somehow converted into a single aggregate sentence by operation of the statute that sets forth how DOCCS is to calculate release dates of inmates serving concurrent determinate and indeterminate sentences. That interpretation both misreads P.L. § 70.30(1)(a) and violates the basic principle this Court recognized in Sparber: that a defendant’s sentence is what the judge pronounces at sentencing. The statutory sentence calculation scheme does not affect an alteration of sentences. It merely directs DOCCS’s calculation of service time and release dates. Subsection (1)(a) of P.L. § 70.30, which regulates the calculation of release dates when an inmate is serving concurrent sentences, does not purport to create a single new aggregate sentence. Under that subsection, “the time served under imprisonment on any of the sentences shall be credited against the minimum 11 periods of all the concurrent indeterminate sentences and against the terms of all the concurrent determinate sentences” (emphasis supplied). Only the maximum terms “merge in and are satisfied by” the longest maximum sentence; the minimum terms do not merge. Since there cannot be a single sentence with multiple minimum terms, subsection (1)(a) can be understood only as a sentence calculation directive, not a provision that alters or replaces sentences imposed by the trial court. Indeed, this Court has already recognized as much in People v. Ramirez, 89 N.Y.2d 444, 450 (1996), when it characterized, in dicta, the resulting calculation as “a single punishment measured by the sentence with the highest grade offense into which all the concurrent sentences merge” (emphasis supplied). The way DOCCS must calculate time that is to be served under concurrent sentences does not, and cannot, convert those sentences into a single aggregate sentence for another, more fundamental, reason as well. In Sparber, 10 N.Y.3d at 469-70, this Court recognized that courts must pronounce sentence upon conviction in the defendant’s presence, and that even a term required by statute is not a part of the sentence unless and until a sentencing judge imposes it. At issue in Sparber was the mandatory requirement that a predicate felony offender receiving a determinate sentence must serve 5 years of PRS. Although the sentencing court was without discretion to impose less PRS, or none at all, its 12 failure to pronounce the 5-year term of PRS nevertheless meant that PRS was not a part of the sentence. Id. Sparber mirrored federal court precedent that the sentence the defendant must serve is only what the judge pronounces at sentencing. Earley v. Murray, 451 F.3d 71, 75 (2006) (failure of sentencing judge to pronounce a term of post-release supervision prevented Department of Correctional Services from adding it to defendant’s sentence). Thus, a judge’s failure to impose PRS results in a sentence that does not include PRS — even if the term is mandated by a statute that purports to make it automatically applicable by operation of law. Sparber, 10 N.Y.3d at 469; see P.L. § 70.45(1). The People nevertheless argued in the Appellate Division that, since the calculation of the aggregate amount of time to be served under Mr. Blankymsee’s concurrent sentences took place automatically by operation of law under P.L. § 70.30, his sentences were transformed into a single aggregate sentence that he had not yet finished serving when he was resentenced. The logical — and legal — contradiction is obvious: DOCCS can no more alter sentences imposed by a court by aggregating them pursuant to P.L. § 70.30 than it can alter a sentence by adding PRS that a court did not impose, even though, in each case, a statutory mandate is involved. Since the sentencing court imposed separate, concurrent sentences, not a single aggregate sentence, Mr. Blankymsee is serving separate 13 concurrent sentences, not a single aggregate one. The aggregate “sentence” purportedly created by DOCCS was nothing more than the application of a statutory calculation method designed to ensure the correct, uniform calculation of release dates associated with the service of concurrent determinate and indeterminate sentences imposed by a judge. The People cited no authority in the Appellate Division for the proposition that a court is free to resentence a defendant who has finished serving his sentence merely because he is serving a longer concurrent sentence (see A. 34-35). Rather, their entire analysis depended upon a finding that Mr. Blankymsee was serving a single aggregate sentence calculated by DOCCS rather than the separate concurrent sentences imposed by the court, a finding precluded by Sparber. The judge in this case imposed multiple concurrent prison sentences: two determinate sentences of 5 years each, and four indeterminate sentences, the longest of which were 8 to 16 years. The sentencing judge said nothing about how DOCCS was to calculate potential release dates with respect to those sentences. Nor did he purport to convert them to a single aggregate sentence. Since Mr. Blankymsee completed the determinate sentences the court had imposed prior to his resentencing to add PRS, the resentencing violated his federal and state double jeopardy rights under Lingle and Williams, which categorically preclude resentencing after the defendant has finished serving the sentence the 14 judge imposed. That he would not be released after finishing that sentence because of his incarceration on longer concurrent indeterminate sentences did not convert his 5-year sentences into something the judge had not imposed. This Court’s decision in People v. Buss, 11 N.Y.3d 553, 557 (2008), is not to the contrary. In that case, the Court held that, for Sexual Offender Registration Act (“SORA”) purposes, consecutive sentences can be deemed to have been “made into one.” The Court relied on P.L. § 70.30(1)(d) to find that defendants who were serving consecutive sentences on crimes not subject to SORA could nevertheless be considered “Detained Sex Offenders” subject to civil management under SORA. Id. at 557. The court noted, however, that it was reasonable to require that the defendant “identify himself as a sex offender when ultimately released from prison, even though his sex offense would have expired before SORA became effective had he not committed his later crime,” because the purpose of SORA is to protect the public. Id. at 558. That this Court deemed the consecutive sentences to be a single sentence for SORA purposes did not amount to a holding that DOCCS calculations under P.L. § 70.30(1)(d) convert separate, discrete consecutive sentences into a single aggregate sentence in any other context. In any event, since Buss involved consecutive sentences, not concurrent ones, its holding does not control this case. See p. 5-6, ante. 15 In fact, this Court recognized in State v. Rashid, 16 N.Y.3d 1, 18-19 (2010), that in the Article 10 civil management context, P.L. § 70.30 does not create a single aggregate sentence out of multiple concurrent sentences. Under Article 10, the State must file a civil management petition while the defendant is in custody on a qualifying sex offense or sexually-motivated offense. Id. at 17. The Court specifically held that the State could not avoid this Article 10 filing requirement by relying on a DOCCS calculation under P.L. § 70.30. That calculation did not mean that the defendant was serving a single aggregate sentence derived from the sex offense for which civil management was sought and an unrelated consecutive sentence. Thus, the State’s attempt to initiate Article 10 proceedings after the defendant had finished serving his sex offense sentence, but before he had completed parole related to the unrelated consecutive sentence, was unlawful. Id. at 18-19. This Court distinguished Buss from Rashid on the ground that Article 10 contained a comprehensive and specific scheme for determining what sentences are subject to civil management while SORA did not. Rashid, 16 N.Y.3d at 17-18. But that distinction would have been impossible if P.L. §§ 70.30(1)(d) and 70.40(1)(a)(iv) actually created a single aggregate sentence out of multiple consecutive sentences. Had that been the case, Rashid would have been serving that single sentence when the Article 10 petition was filed because he was still on 16 parole. There would have been no occasion to determine whether the P.L. § 70.30 sentencing provisions should be used to determine eligibility because the new sentence was already a fait accompli. The Court’s holding in Rashid that he had finished serving his sex offense sentence therefore supports the conclusion that the defendant in Buss was merely “deemed” to be serving a single sentence for SORA purposes, not that DOCCS’s sentence calculations had actually created a single new aggregate sentence. When this Court’s reasoning in Buss, the only case in which this Court treated a P.L. § 70.30 sentence calculation as if it were an aggregate sentence, is compared with its reasoning in Rashid, it is clear that it was the purpose of the Sexual Offender Registration Act (“SORA”) — protection of the public — that led the Court in Buss to permit the filing of a hearing notice after the offender’s sentence was complete, but before he was released from prison.1 That a statutory purpose might be served by a resentencing is irrelevant when determining whether a resentencing violates constitutional double jeopardy protections (as opposed to conducting a hearing in a collateral proceeding like SORA). Thus, that P.L. § 70.45's purpose is to ensure that post-release supervision be served is irrelevant 1 Indeed, waiting until the last possible moment to conduct a SORA hearing potentially benefits the defendant as well, who can use the additional time to complete further rehabilitative programs hoping to convince the court to make a downward departure in registration level. 17 when determining whether imposition has been done in a timely manner for double jeopardy purposes. This Court reached a similar conclusion in People v. Mills (Then), 11 N.Y.3d 527 (2008), when it held that separate sentences must be treated separately in the Drug Law Reform Act (“DLRA”) context. In that case, defendant Then sought resentencing for 1999 and 2003 A-II felony convictions. Under the 2005 DLRA, which applied to A-II drug felonies, a defendant who was within three years of parole eligibility, or had been released to parole, was not eligible for resentencing. Then, who had been released to parole on the 1999 case but was more than 3 years from parole eligibility on the 2003 case, argued that he was eligible for resentencing in both cases. Id. at 533. This Court held that Then’s parole status in each case controlled eligibility for that case. Therefore, he was ineligible for resentencing in the 1999 case despite his subsequent incarceration in the 2003 case, but he was eligible in the 2003 case. Id. at 537. While Mills did not specifically address P.L. §§ 70.30(1) or 70.40(1)(a)(iv), its reasoning is consistent with the Court’s holding in Rashid. Other courts also have refused to apply P.L. § 70.30(1)(d) in the DLRA context on the ground that to do so would conflict with the ameliorative purpose of the DLRA. In People v. Walltower, 27 Misc.3d 1205(a) (Sup. Ct. Queens Co. 2010), the court ruled that “the primary function” of P.L. § 70.30 “is to allow for 18 the ready calculation of parole eligibility,” and the “primary goals of the 2009 DLRA are not served” by using that statute to deny resentencing. See People v. Nieves, 27 Misc.3d 585, 592-93 (Sup. Ct. N.Y. Co. 2010) (same). These cases confirmed that sentencing calculations made pursuant to P.L. §§ 70.30 and 70.40 do not alter court-imposed sentences by converting them into a single new aggregate sentence. The statutes may be used to determine custodial status for SORA purposes, but they do not serve the same role with respect to the Mental Hygiene Law or the DLRA. That would not be true if P.L. §§ 70.30 and 70.40 actually converted consecutive sentences into one indivisible aggregate sentence; that would be the sentence the defendant was serving for all purposes, not subject to a court’s determination as to the appropriateness of the operation of those sections in a particular context. Williams 14 N.Y.3d at 217, and Lingle, 16 N.Y.3d at 630, do not suggest a contrary rule. While it is true that in Williams this Court discussed a defendant’s release from prison as a factor indicating finality, that language led to confusion with respect to defendants who had been released to parole. The Court cleared up that confusion in Lingle, by holding 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.” Id. (emphasis in original). No longer could release from prison be relied upon by defendants as creating an 19 expectation of finality in the sentence. A fortiori, if release from prison does not give rise to an expectation of finality, neither is it a prerequisite for finality. Rather, it is the completion of the sentence that controls. At Mr. Blankymsee’s original sentencing, PRS was never mentioned. For over 5 years, he operated with the legitimate expectation that his determinate sentence would be 5 years long. That expectation was reinforced by the fact that the People’s one-year window to move to change his sentences had long-since expired. See C.P.L. § 440.40. Because, at the time of the resentencing, Mr. Blankymsee had completely finished serving his determinate sentences and the People’s time to appeal those sentences had expired, jeopardy had attached and the window available for resentencing had closed. See Williams, 14 N.Y.3d at 216. Accordingly, the Appellate Division’s decision should be reversed and the unlawfully-imposed term of PRS vacated. B. Because Appellant Had an Expectation of Finality in His 5-Year Determinate Sentences When the Resentencing Court Imposed PRS After Appellant Had Served More Than 6 Years in Prison, the Resentencing Violated Double Jeopardy. Even if the sentences the court imposed could possibly be construed as having been somehow converted into a single aggregate sentence, the State and Federal Double Jeopardy Clauses both prohibited his resentencing because he had, nonetheless, developed a legitimate “expectation of finality in the original 20 sentence.” United States v. DiFrancesco, 449 U.S. 117, 139 (1980). This was so even though that original sentence was illegal. Stewart v. Scully, 925 F.2d 58 (2d Cir. 1991); People v. Campanella, 297 A.D.2d 642 (2d Dept. 2002); People v. Trimm, 252 A.D.2d 673 (3d Dept. 1998). All the relevant factors in this case show that Mr. Blankymsee, having served more than 5 years of his 5-year determinate sentences, had a legitimate expectation in the finality in those sentences, and therefore resentencing him to add a 5-year period of post-release supervision violated double jeopardy. In Stewart v. Scully, 925 F.2d 58, Stewart was sentenced to 10 to 20 years for attempted murder. Three years later, he filed a C.P.L. §440.20 motion, pointing out that, since his crime was not an “armed” felony, his minimum sentence could not exceed a third of his maximum sentence. The court resentenced him to 8 to 24 years. The United States Court of Appeals for the Second Circuit held that the increase in his maximum sentence violated double jeopardy because, despite its illegality, by the time Stewart had served 3 years of his sentence, he had developed a legitimate expectation of finality in it: “the key to double jeopardy analysis of a sentence increase is whether the defendant had a legitimate expectation in the finality of his original sentence.” 925 F.2d at 63. It also noted that Stewart’s maximum sentence had “real impact” on him, as it controlled, inter alia, the duration of his parole. Id. at 64. 21 In contrast, in Williams v. Travis, 143 F.3d 98 (2d Cir. 1998), Williams was originally sentenced to 3½ to 7 years. The People immediately informed the court that the sentence was illegal because Williams was a first felony offender, and within a week the court resentenced him to 3½ to 10½ years. The Second Circuit found that double jeopardy had not been violated. It distinguished Stewart v. Scully in that Stewart, having served 3 years of his 10-to-20-year sentence, had a “far stronger expectation of finality” in his original sentence than Williams, who was resentenced after only a week. 143 F.3d at 99. In particular, it noted that “the government's ability to appeal the defendant's sentence” was an “important factor bearing upon a defendant's expectation of finality,” and that, unlike Stewart, Williams was resentenced within both the 30 days available to the People to appeal under C.P.L. §460.10(1), and the year available to them to move to set an illegal sentence aside under C.P.L. §440.40(1). Id. Thus, the federal double jeopardy cases draw a clear distinction between illegal sentences that are corrected promptly and those that are not. The longer a defendant serves under his original sentence before its illegality is corrected, the greater his expectation of finality. Compare Williams v. Travis, 143 F.3d at 99; with Stewart v. Scully, 925 F.2d at 63. Here, all the relevant factors establish that Mr. Blankymsee’s right not to be placed in double jeopardy was violated when he was resentenced, after having served more than 5 years of his 5-year determinate sentence, to add 5 years of 22 post-release supervision to it. At Mr. Blankymsee’s original sentencing, post- release supervision was never mentioned (see A. 52-54). He was simply sentenced to two determinate terms of 5 years, and to four indeterminate terms the greatest of which were two 8-to-16 year terms (A. 52-54). Because the court ordered that all the sentences be served concurrently, Mr. Blankymsee was still in prison even though he had finished serving the 5-year determinate sentences. There was nothing that occurred at the original sentencing to make Mr. Blankymsee even contemplate the possibility that he could eventually end up with 5 years of post- release supervision added to his sentence. And neither the People nor anyone else ever brought the illegality of Mr. Blankymsee’s sentence to the court’s attention in anything remotely approaching a timely manner. Under the federal Double Jeopardy Clause, if Stewart had an expectation of finality 3 years into his 10-to-20- year sentence, Mr. Blankymsee obviously had such an expectation in the finality of a 5-year determinate sentences after having been incarcerated longer than 5 years. Mr. Blankymsee had an expectation of finality in a sentence without PRS at the time of his resentencing even under the state and federal Double Jeopardy Clauses as construed by this Court in Lingle, 16 N.Y.3d at 630. In Lingle, the Court held that a double jeopardy violation turned not on whether the defendant had been released, but rather on whether he had served the maximum term 23 imposed by the sentencing court. Thus, defendants who had been released after serving six-sevenths of their sentences could be resentenced because, until the last seventh had expired, they had not acquired an expectation of finality in those sentences. Here, in contrast, Mr. Blankymsee acquired a reasonable expectation of finality of his 5-year determinate sentences as soon as he had been incarcerated for 5 years. Unlike the Lingle defendants, he had already served an amount of time equal to the maximum term imposed by the judge when he was resentenced. His expectation of finality in a sentence without PRS arose, therefore, not just from the fact that over 6 years had elapsed since Mr. Blankymsee was originally sentenced, see Stewart, 925 F.2d at 63, but also because he had served an amount of time equal to the duration of his determinate sentence. Cf. Lingle, 16 N.Y.3d at 630. That Mr. Blankymsee had not been released by the time of the resentencing was immaterial. In Williams, 14 N.Y.3d at 216, this Court found that double jeopardy barred resentencing in cases involving defendants who had completed their sentences and had been released from prison. When defendants suggested that release from prison alone barred resentencing, this Court clarified in Lingle that it is the completion of the sentence, not release from prison, that controlled for double jeopardy purposes. 16 N.Y.3d at 630-31. Read together, Lingle and 24 Williams teach that when a defendant has served the maximum amount of time the court imposed, he has reached an expectation of finality in that sentence. If an earlier release does not trigger double jeopardy protections, a later release cannot delay them. Finally, a holding to the contrary would unjustifiably treat criminal defendants with multiple concurrent sentences differently for double jeopardy purposes from defendants serving a single sentence. Obviously, under Lingle, someone serving two concurrent determinate 5-year sentences could not be resentenced after he had been incarcerated for 5 years. Under the rule announced by the Appellate Division in Mr. Blankymsee’s case, however, he could have been resentenced on his 5-year determinate term after a delay of nearly 16 years — over three times the length of his determinate sentence. In other cases, the delay could be far greater. There is no logical or equitable reason to establish different triggering periods for defendants serving identical sentences based on the existence of other sentences imposed at the same time. Double Jeopardy should attach on a per-sentence basis and there is no justification for elongating the applicable period. Adopting a rule permitting resentencing long after the defendant has finished serving the number of years the judge imposed on a particular count, just because he was also required to serve more time due to other convictions, would be fundamentally unfair. 25 CONCLUSION FOR THE REASONS STATED ABOVE, THIS COURT MUST REVERSE THE RESENTENCING AND DIRECT THAT MR. BLANKYMSEE’S ORIGINAL DETERMINATE SENTENCE WITHOUT POST-RELEASE SUPERVISION BE REINSTATED. Respectfully yours, LYNN W. L. FAHEY Attorney for the Defendant-Appellant 2 Rector Street, 10th Floor New York, NY 10006 (212) 693-0085 By: Paul Skip Laisure Of Counsel January 30, 2013 cc. RICHARD A. BROWN District Attorney Queens County 125-01 Queens Blvd. Kew Gardens, NY 11415 Attn: Tina Grillo 26