The People, Respondent,v.Roberto Estremera, Appellant.BriefN.Y.October 10, 2017APL-2016-00077 To be argued by VINCENT RIVELLESE (10 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ROBERTO ESTREMERA, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 CHRISTOPHER P. MARINELLI VINCENT RIVELLESE ASSISTANT DISTRICT ATTORNEYS Of Counsel OCTOBER 21, 2016 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 POINT THE ORDER RE-IMPOSING DEFENDANT’S ORIGINAL SENTENCE WITHOUT POST-RELEASE SUPERVISION SHOULD BE AFFIRMED ............................................ 4 CONCLUSION ................................................................................................................... 15 -ii- TABLE OF AUTHORITIES STATE CASES Johnson v. Pataki, 91 N.Y.2d 214 (1997) .............................................................................. 10 People v. Catu, 4 N.Y.3d 242 (2005) ................................................................................ 2, 4-9 People v. Covington, 88 A.D.3d 486 (1st Dep’t 2011) ............................................................ 9 People v. Facen, 67 A.D.3d 1478 (4th Dep’t 2009) .............................................................. 10 People v. Farrar, 52 N.Y.2d 302 (1981) ................................................................................ 13 People v. Fuller, 57 N.Y.2d 152 (1982) ................................................................................. 13 People v. Green, 54 N.Y.2d 878 (1981) ................................................................................. 12 People v. Harris, 79 N.Y.2d 909 (1992) ................................................................................ 13 People v. Lingle, 16 N.Y.3d 621 (2011) ................................................................................. 13 People v. Mills, 117 A.D.3d 1555 (4th Dep’t 2014) ........................................................ 9, 12 People v. Pignataro, 22 N.Y.3d 381 (2013) ........................................................................... 8-9 People v. Reyes, 74 N.Y.2d 837 (1989) .................................................................................. 10 People v. Selikoff, 35 N.Y.2d 227 (1974) ............................................................................... 14 People v. Sparber, 10 N.Y.3d 457 (2008) ...................................................................... 4-11, 13 People v. Stroman, 36 N.Y.2d 939 (1975) .............................................................................. 13 STATE STATUTES Corr. Law § 601-d ................................................................................................................ 7-8 Criminal Procedure Law § 380.40 ...................................................................................... 12 Criminal Procedure Law § 380.50 ...................................................................................... 12 Criminal Procedure Law § 440.10 .................................................................................... 2, 7 Criminal Procedure Law § 440.20 .................................................................................... 2, 7 -iii- Criminal Procedure Law § 470.05 ...................................................................................... 10 Criminal Procedure Law § 470.15 ...................................................................................... 10 Criminal Procedure Law § 470.40 ...................................................................................... 10 Former Penal Law § 70.45 (1998) ........................................................................................ 5 Penal Law § 70.85 ........................................................................................ 1-2, 5, 7-9, 11-13 Penal Law § 110.00 ................................................................................................................. 1 Penal Law § 125.20 ................................................................................................................. 1 Penal Law § 125.25 ................................................................................................................. 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROBERTO ESTREMERA, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Eugene M. Fahey, Associate Judge of the Court of Appeals, defendant Roberto Estremera appeals from a December 29, 2015 order of the Appellate Division, First Department. By that order, the Appellate Division affirmed a November 19, 2010 order of the Supreme Court, New York County (Daniel P. FitzGerald, J.), based upon a February 5, 2001 judgment of the same court. By the 2001 judgment, defendant had been convicted, after a plea of guilty, of Attempted Murder in the Second Degree (Penal Law §§ 110.00, 125.25[1]) and Manslaughter in the First Degree (Penal Law § 125.20), and sentenced to concurrent determinate state prison terms of 25 years on each count. By the 2010 order, with the consent of the People pursuant to Penal Law § 70.85, the court held that defendant’s original sentence without post-release supervision would stand. Defendant is serving that sentence. -2- On August 11, 1999, defendant fired his gun at Jose and Pedro Falcon and others, mortally wounding Jose and leaving Pedro paralyzed for life. By Indictment Number 6769/1999, a New York County grand jury charged defendant and an accomplice with murder, attempted murder, and related lesser crimes for the shootings, and two other accomplices with hindering prosecution for helping the assailants escape. On December 13, 2000, defendant pleaded guilty before Justice FitzGerald to one count each of attempted second-degree murder and first-degree manslaughter, in exchange for the promise that he would receive a determinate prison term of 25 years on each count, to run concurrently with each other. On February 5, 2001, Justice FitzGerald sentenced defendant to the promised concurrent prison terms of 25 years. In papers dated October 25, 2009, and December 22, 2009, defendant moved the court pro se pursuant to Criminal Procedure Law Section 440.10 for an order vacating his plea pursuant to People v. Catu, 4 N.Y.3d 242, 244-45 (2005), arguing that he was entitled to vacatur because, at the time of his guilty plea, he was not informed that the promised sentence required and included a term of PRS. Defendant also complained pursuant to Section 440.20 that his sentence was illegal because it did not include the required PRS term. In a response dated July 20, 2010, pursuant to the legislative remedy for such PRS errors set forth in Penal Law Section 70.85, the People requested that the original sentence without a term of PRS be re-imposed. On October 15, 2010, counsel for -3- defendant filed a “Supplemental and Reply Affirmation,” arguing that the only appropriate remedy was vacatur of defendant’s plea. On November 19, 2010, in defendant’s absence, Justice FitzGerald denied the motion to vacate, declined to “resentence” defendant, and held that the original sentence without PRS “stands.” On December 17, 2010, counsel for defendant sought leave to appeal from the denial of the Article 440 motions. On January 18, 2011, Appellate Division Justice Dianne T. Renwick denied that application. On appeal to the Appellate Division from the November 19, 2010 proceedings, defendant contended that his sentence should be vacated and the case remanded for a new sentencing proceeding so that he could be present. On December 29, 2015, the Appellate Division unanimously affirmed. That court did not decide whether the 2010 proceedings constituted an appealable “judgment of resentence”; on the merits, the court rejected defendant’s argument on the ground that he “was not adversely affected by any alleged procedural defect in the court’s determination, including the fact that he was not present when the court let stand his original sentence, ‘because the result, i.e., freedom from having to serve a term of PRS, was in his favor’ ” (A. 2-3). On appeal to this Court, defendant contends that he had a right to be present at the proceeding at which the lower court announced that he would not have to serve the term of PRS that, at the time defendant pleaded guilty, was a statutorily required component of his sentence. Thus, defendant asks this Court to vacate his sentence so that he can have that same sentence “re-imposed” in his presence. -4- POINT THE ORDER RE-IMPOSING DEFENDANT’S ORIGINAL SENTENCE WITHOUT POST-RELEASE SUPERVISION SHOULD BE AFFIRMED (Answering Defendant’s Brief). In 1999, defendant fired a gun at Jose and Pedro Falcon, killing Jose and paralyzing Pedro for life; defendant was arrested and indicted for murder and attempted murder. In 2001, defendant pleaded guilty to manslaughter and attempted murder to satisfy that indictment, and he was promised a net state prison term of 25 years. At that time, the lower courts were under the impression that a term of PRS was deemed automatically to be included in any such sentence, and the judge who presided over defendant’s plea did not discuss PRS during the plea colloquy or at sentencing. Several years later, in People v. Catu, 4 N.Y.3d 242 (2005), People v. Sparber, 10 N.Y.3d 457 (2008), and their progeny, this Court made clear that PRS – while indeed required for a sentence such as defendant’s to be lawful – had to be announced in plea colloquys and pronounced orally at sentences. The State was then tasked with identifying and rectifying the illegal sentences of inmates subject to terms of PRS that had never been pronounced by a judge. To rectify the illegality in defendant’s sentence, therefore, defendant would have to have been returned to court to have PRS imposed orally. Were that to have taken place, defendant would have been entitled to vacate his plea pursuant to People v. Catu, and indeed, that was the basis for defendant’s Article 440 motions to vacate his plea and sentence. -5- To avoid the need for vacatur of defendant’s plea, the People were willing to dispense with the PRS pursuant to Penal Law Section 70.85, thereby remedying the Catu and Sparber errors. That remedy was all that was required. The fact that defendant was not present for the announcement that he would not have to serve a term of PRS provides no basis for relief, given that the proceeding inured to his benefit. Indeed, there is no dispute that the only thing that could happen at the requested resentencing proceeding is that defendant once again would receive the sentence that was already imposed in his presence once and that he is currently serving. A. The relevant proceedings spanned a decade, unfolding as PRS law developed, but can be summarized briefly. In 1998, the Legislature introduced PRS into the Penal Law’s sentencing scheme, declaring that a period of PRS – functionally very similar to parole – was automatically included in “each” determinate state prison sentence “as a part thereof.” Former Penal Law § 70.45 (1998). By 2000, therefore, lawyers and judges generally understood PRS to be included in such sentences by operation of law, regardless of whether PRS was expressly mentioned at the plea or sentencing proceedings. On December 13, 2000, defendant pleaded guilty before Justice FitzGerald to one count each of attempted second-degree murder and first-degree manslaughter, in exchange for the promise that he would receive a determinate prison term of 25 years on each count, to run concurrently with each other. Defendant waived all his trial rights -6- and admitted his guilt of the shooting, and he waived his right to appeal. As was unremarkable at the time, during the plea proceeding, the court did not mention the statutorily required term of PRS (A. 7-14). On February 5, 2001, Justice FitzGerald sentenced defendant to the promised concurrent prison terms of 25 years. Again, the court said nothing of the PRS term that was understood to be automatically included in such sentences, and the Sentence and Commitment Order likewise made no reference to PRS (A. 16-20). Defendant did not appeal, and he began serving his 25-year prison sentence. Subsequently, this Court clarified two principles that ultimately would revive defendant’s otherwise closed case: first, that if a plea is to be knowing and voluntary, any required PRS term must be mentioned during the plea proceeding (see, e.g., People v. Catu, 4 N.Y.3d 242 [2005]); and second, that if a sentence including PRS is to be valid, the PRS term must be expressly imposed by a judge’s oral pronouncement at sentencing, and not merely in writing or administratively (see, e.g., People v. Sparber, 10 N.Y.3d 457 [2008]). Moreover, because a determinate sentence without a term of PRS would be illegal, it would not be possible simply to strike the PRS term from a promised or actual sentence in order to satisfy a complaint either that PRS was not explained or pronounced – so, if a determinate sentence were to stand at all, it had to be with PRS. Id. These principles led to a flurry of litigation in cases where PRS either was not properly explained during the plea proceeding, not properly pronounced at the -7- sentencing proceeding, or both. Indeed, the Legislature enacted a procedure that essentially “recalled” cases where PRS was required but not properly imposed at sentencing, so that PRS could be imposed properly or other corrective action taken. See Corr. Law § 601-d. And of course, one such alternative corrective action that might be taken, in cases where the imposition of PRS would implicate the validity of a plea that did not mention PRS, might be vacatur of the plea. Thus, in 2008, in the wake of these legal developments, the Legislature enacted Penal Law § 70.85. This remedial statute permits a court, with the People’s consent, legally to “re-impose” a sentence that was, at its inception, illegally lenient due to the absence of PRS. Naturally, this statutory legalization of a previously illegally lenient sentence was undertaken in order to allow defendants who were promised sentences that did not appear to include PRS to enjoy lawfully specific performance of such a promise, and likewise, to allow the People to offer that specific performance of what would otherwise be an illegally lenient sentence as an alternative to undoing a conviction. See 2007 Legis. Bill Hist. N.Y. S.B. 8714. Ultimately, on October 25, 2009, defendant moved the plea court pro se pursuant to Criminal Procedure Law Section 440.10 for an order vacating his plea pursuant to Catu, arguing that he was entitled to vacatur because, at the time of his guilty plea, he was not informed that the promised sentence required and included a term of PRS. Defendant also complained pursuant to Criminal Procedure Law Section 440.20 and Sparber that his sentence was illegal because it did not include a properly pronounced -8- PRS term. On December 22, 2009, defendant, again pro se, filed a supplemental affidavit to his Article 440 motion raising the same claims. In a response dated July 20, 2010, the People agreed that defendant’s sentence should have included PRS, and that to impose PRS would create a Catu error due to the failure to mention PRS during the plea colloquy. For that reason, pursuant to the above-described legislative remedy for such PRS errors set forth in Penal Law Section 70.85, the People consented to defendant being permitted to serve his original sentence without a term of PRS. On October 15, 2010, counsel who had been appointed for defendant filed a “Supplemental and Reply Affirmation,” arguing that the only appropriate remedy was vacatur of the plea. On November 19, 2010, in defendant’s absence, Justice FitzGerald denied the Article 440 motions. With the consent of the People, the court stated that “the original sentence stands under 70.85” (A. 58). Justice FitzGerald also endorsed the file, noting that there was “no resentence” and that the “original sentence without PRS stands” (A. 61). B. The law is simple: a defendant who has received a sentence that is illegal without PRS must be resentenced to receive a sentence including PRS unless the interim remedy of Penal Law Section 70.85 is invoked. Sparber, 10 N.Y.3d 457; see Corr. Law § 601-d; People v. Pignataro, 22 N.Y.3d 381 (2013). Section 70.85 applies where: (1) the sentencing took place between September 1, 1998, and June 30, 2008; and (2) the sentencing court -9- was required to impose a PRS term but failed to pronounce one orally. See Penal Law § 70.85. In such a situation, the court “may, notwithstanding any other provision of law but only on consent of the district attorney, re-impose the originally imposed determinate sentence of imprisonment without any term of postrelease supervision, which then shall be deemed a lawful sentence.” Penal Law § 70.85; see People v. Pignataro, 22 N.Y.3d 381, 384-397 (2013). Hence, Section 70.85 has the effect of rendering a sentence without PRS lawful, even though it would otherwise be illegally lenient, so long as the People consent. Here, defendant was originally sentenced within the applicable time period, on February 5, 2001, and – understandably, given that Catu and Sparber had not yet been decided – the trial judge did not orally pronounce the PRS term in imposing that sentence. Absent correction, defendant’s sentence was illegal. However, by giving effect to the original sentence without PRS, the sentencing court gave defendant the remedy to which he was entitled, and that should end the matter without further consideration. Thus, as the Appellate Division held, the elimination of PRS from the sentence inured to defendant’s benefit, and he was not entitled to any further remedy on appeal. See also People v. Mills, 117 A.D.3d 1555, 1556-57 (4th Dep’t 2014); People v. Covington, 88 A.D.3d 486 (1st Dep’t 2011). Defendant does not contend that Penal Law Section 70.85 prohibited his resentencing to the originally promised sentence without PRS, but he complains that he should be resentenced again to the same thing while he is present (DB: 16-23). -10- Because the lower court’s order represents no determination adverse to defendant, his appeal should be dismissed. In any event, defendant should not be granted a resentencing proceeding. Preliminarily, in reviewing an Appellate Division order that affirms a sentence, this Court may “modify and direct corrective action that could have been imposed by [the] Appellate Division had it ‘modified the criminal court … sentence … upon the same … grounds.’ ” CPL § 470.40(1); Sparber 10 N.Y.3d 457, 472 n.8. And, the Appellate Division’s review of a criminal defendant’s appeal is limited to correcting any “error or defect in the criminal court proceedings which may have adversely affected the appellant.” CPL § 470.15(1). Similarly, in any appellate court in the state, the appeal must be determined “without regard to technical errors or defects which do not affect the substantial rights of the parties.” CPL § 470.05(1). Thus, where an appellate decision in a defendant’s favor cannot possibly provide him with substantive relief, in the form of remedying a substantively adverse judgment or alleviating some collateral consequence of the lower court’s decision, the defendant’s appeal is moot and academic, warranting dismissal of the appeal. See, e.g., Johnson v. Pataki, 91 N.Y.2d 214, 222 (1997) (an appeal presents a live controversy only where “the rights of the parties will be directly affected by the determination and where the judgment has ‘immediate consequence’ for them”); People v. Reyes, 74 N.Y.2d 837, 838 (1989) (the defendant’s challenge to his resentencing was moot because he had fully served his sentence); People v. Facen, 67 A.D.3d 1478, 1479 (4th Dep’t 2009) (to the extent that the defendant -11- challenged the imposition of PRS, “we note that the period of postrelease supervision has expired. Because we cannot afford defendant any meaningful relief with respect thereto, we dismiss that part of the appeal … as moot”). Judged by these principles, defendant’s appeal must be dismissed as academic because he cannot obtain any relief even if he were to win on the merits. Indeed, in 2001, in defendant’s presence, the sentencing court pronounced the sentence that he was promised and that he is now serving: 25 years in state prison. To be sure, in 2008, that sentence was deemed illegal under Sparber because it lacked an oral pronouncement of a term of PRS, and, accordingly, defendant would have to be resentenced in order to have the required PRS pronounced in his presence. But, because defendant was not told of PRS at the time of his plea, the imposition of PRS would have given him cause to undo his plea. Yet thanks to the re-imposition of the original sentence without PRS pursuant to Penal Law Section 70.85 – whether that action is deemed a resentencing or not – defendant is now subject only to the sentence that was orally pronounced at his original sentencing in 2001: 25 years in state prison. If he were to obtain a reversal because the Section 70.85 proceeding did not happen in his presence, the only thing that could be done for him would be to bring him to court to repeat in his presence what was said in his presence in 2001 and confirmed in his absence in 2010: that his sentence was 25 years in state prison. Procedural bar aside, defendant’s arguments should still be rejected. Defendant insists that he had the right to be present for the pronouncement in 2010 that he would -12- indeed be allowed to serve the formerly illegally lenient sentence that he had already been promised and told in 2001 that he would receive, and that his absence from the 2010 proceeding entitles him to another such proceeding at which he will be present. He recognizes (DB: 20) that demanding such a proceeding is – as then-Justice Fahey characterized it regarding the similarly situated defendant in Mills – an exercise in “futility [and] arrogance,” Mills, 117 A.D.3d at 1557, but he contends that the right to be present at sentencing is absolute. Defendant’s mistake is not in concluding that he had a right to be present at a sentencing proceeding, which he clearly would; it was in concluding that his relief from having to serve PRS amounted to a sentencing proceeding in the first place. The re-imposition pursuant to Section 70.85 of an illegal sentence without PRS, thereby rendering it legal, should not be considered a “resentencing” proceeding at which a defendant is entitled to be present. The Criminal Procedure Law certainly confers upon defendants the right to be present at and speak at their sentencing proceedings, and there is no dispute that the right extends to full “resentencing” proceedings as well. CPL §§ 380.40(1), 380.50(1); People v. Green, 54 N.Y.2d 878 (1981). But the “Transitional exception to determinate sentencing laws,” as Penal Law Section 70.85 is titled, is not an actual “resentencing” proceeding – where a court has some discretion to impose an appropriate sentence, and thus should permit the defendant to be heard before doing so – but rather an administrative correction of a sentence akin to a sentence modification on appeal. As noted, under Section 70.85, when required to -13- decide whether to resentence a defendant whose sentencing court failed to pronounce a required PRS term, “the court may, notwithstanding any other provision of law but only on consent of the district attorney, re-impose the originally imposed determinate sentence of imprisonment without any term of post-release supervision, which then shall be deemed a lawful sentence.” Thus, as the statute makes clear, such an “exception” to an otherwise necessary resentencing proceeding exists solely to excuse the failure to pronounce a required PRS term in order to give the defendant the benefit of his bargain and the prosecution the finality of the original plea, and not as a proceeding at which the parties advocate for the court to exercise sentencing discretion in their favor. This view makes sense, at least where, as here, the defendant can receive only the same sentence he is already serving and can contribute nothing to affect the result.1 Sentencing is an important part of a criminal case, and a defendant certainly has a right to be present at his sentencing proceeding. See Sparber, 10 N.Y.3d at 470 (citing People v. Harris, 79 N.Y.2d 909, 910 [1992]; People v. Fuller, 57 N.Y.2d 152, 158-159 [1982]; People v. Farrar, 52 N.Y.2d 302, 306 [1981]; People v. Stroman, 36 N.Y.2d 939, 940 [1975]; 1 Even where a defendant is subjected to the later imposition of PRS at a resentencing proceeding under Sparber, the prison portion of a defendant’s sentence may not be modified; only the imposition of PRS is in issue. See People v. Lingle, 16 N.Y.3d 621, 635 (2011). Of course, a defendant would certainly have a right to be present for the imposition of PRS were it to be imposed for the first time at such a proceeding, and the People do not dispute that. However here, defendant had already argued – and the People conceded – that he would be entitled to withdraw his plea were PRS to be imposed. Thus, defendant was not under any circumstances going to be sentenced to a term of PRS at the Section 70.85 proceeding. -14- People v. Selikoff, 35 N.Y.2d 227, 240-241 [1974]). After all, at sentencing proceedings, among other things, a judge exercises discretion to decide upon an appropriate sentence, a defendant learns the details of his sentence so that he knows what will happen to him, and the public sees the administration of justice. None of those concerns are present here. Thus, the only remedy required for the PRS error that existed in defendant’s case was the re-imposition of the sentence without PRS, pursuant to 70.85 – and as noted, defendant has already received that remedy. In short, this remedial statute permits a sentencing court, with the People’s consent, only to “re-impose” a sentence that had already been imposed in the defendant’s presence but which was, at its inception, illegally lenient due to the absence of PRS. Naturally, this statutory legalization of a previously illegally lenient sentence was undertaken in order to allow defendants who were promised sentences that did not appear to include PRS to enjoy specific performance of such a promise, and likewise, to allow the People to offer that specific performance of an illegally lenient sentence as an alternative to undoing a conviction. The statute does not authorize the court to impose any other sentence, and nothing defendant could have said would have affected that. Thus, no sentencing function took place. There should be no special right to be present for the technical proceeding at which the court did nothing more than confirm that what had already happened would now be deemed correct. -15- CONCLUSION The Court should dismiss defendant’s appeal. In the alternative, the order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: VINCENT RIVELLESE Assistant District Attorney CHRISTOPHER P. MARINELLI VINCENT RIVELLESE Assistant District Attorneys Of Counsel October 21, 2016