The People, Respondent,v.Roberto Estremera, Appellant.BriefN.Y.October 10, 2017To be argued by: SAMUEL J. MENDEZ, ESQ. (Counsel requests 10 minutes) APL-2016-00077 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, — against — ROBERTO ESTREMERA, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant ALEXANDRA H. KEELING, ESQ. Supervising Attorney By: SAMUEL J. MENDEZ, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 (Tel.), (212) 402-4199 (Fax) July 29, 2016 i TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................... ii PRELIMINARY STATEMENT ................................................................. 1 QUESTION PRESENTED ........................................................................ 3 STATEMENT OF FACTS ......................................................................... 4 ARGUMENT MR. ESTREMERA SHOULD BE RESENTENCED IN HIS PRESENCE ...................................................................................... 7 A. The Court Resentenced Mr. Estremera in His Absence ............. 7 B. By Resentencing Mr. Estremera in His Absence, the Court Violated His “Unyielding” Right to Be Present .............. 11 C. The “Sole Remedy” Here Is a New Resentencing in Mr. Estremera’s Presence ................................................................ 16 CONCLUSION ........................................................................................ 24 ii TABLE OF AUTHORITIES CASES Garner v. N.Y. State Dep’t of Corr. Servs., 10 N.Y.3d 358 (2008) ...... 8, 15 Hogan v. Bohan, 305 N.Y. 110 (1953) ..................................................... 13 People ex rel. Joseph II. v. Supt. of Southport Corr. Facility, 15 N.Y.3d 126 (2010) ........................................................................... 15 People v. Acevedo, 17 N.Y.3d 297 (2011) ............................... 18–19, 21–22 People v. Boyd, 12 N.Y.3d 390 (2009)........................................................ 8 People v. Catu, 4 N.Y.3d 242 (2005) ............................................ 4–5, 8, 17 People v. Corley, 67 N.Y.2d 105 (1986) ............................................. 13–14 People v. Covington, 88 A.D.3d 486 (1st Dep’t 2011) ...................... passim People v. Edwards, 62 A.D.3d 467 (1st Dep’t 2009) ............................... 10 People v. Estremera, 134 A.D.3d 655 (1st Dep’t 2015) ................... passim People v. Estremera, 27 N.Y.3d 996 (2016) ............................................... 2 People v. Green, 54 N.Y.2d 878 (1981) .................................................... 12 People v. McClain, 35 N.Y.2d 483 (1974) .......................................... 12, 22 People v. Mills, 117 A.D.3d 1555 (4th Dep’t 2014) ................. 6, 18, 20–21 People v. Morales, 80 N.Y.2d 450 (1992) ................................................. 22 People v. Pignataro, 22 N.Y.3d 381 (2013).................................... 8–11, 18 People v. Rossborough, 27 N.Y.3d 485 (2016) ............................... 7, 12–13 iii People v. Sparber, 10 N.Y.3d 457 (2008) ......................................... passim People v. Stroman, 36 N.Y.2d 939 (1975) ............................................... 16 People v. Sturgis, 69 N.Y.2d 816 (1987) .................................................. 16 People v. Williams, 14 N.Y.3d 198 (2010) ............................... 8–10, 14, 17 United States v. Arrous, 320 F.3d 355 (2d Cir. 2003) ............................. 12 United States v. Salim, 690 F.3d 115 (2d Cir. 2012) .............................. 12 STATUTES N.Y. Correct. Law § 601-d ......................................................... 8–9, 14–15 N.Y. Crim. Proc. Law § 380.20 ................................................................ 21 N.Y. Crim. Proc. Law § 380.40 ........................................................ passim N.Y. Crim. Proc. Law § 380.50 ................................................................ 20 N.Y. Crim. Proc. Law § 440.10 .................................................................. 4 N.Y. Penal Law § 70.45 ............................................................................. 8 N.Y. Penal Law § 70.85 ................................................................... passim N.Y. Penal Law § 110 ............................................................................ 1, 4 N.Y. Penal Law § 125.20 ....................................................................... 1, 4 N.Y. Penal Law § 125.25 ....................................................................... 1, 4 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – ROBERTO ESTREMERA, Defendant-Appellant. APL-2016-00077 Ind. No. 6769/1999 (New York County) PRELIMINARY STATEMENT By permission of The Honorable Eugene M. Fahey, Judge of the Court of Appeals, granted April 6, 2016, this appeal is taken from an order of the Appellate Division, First Department, entered on December 29, 2015, which affirmed a judgment of the Supreme Court, New York County, rendered on November 19, 2010, resentencing Roberto Estremera to 25 years of incarceration without a term of post-release supervision. On February 5, 2001, after a plea of guilty, Mr. Estremera was convicted of manslaughter in the first degree, N.Y. Penal Law § 125.20, and attempted murder in the second degree, N.Y. Penal Law §§ 110/125.25(1), and was sentenced to a determinate term of 25 2 years of incarceration on each count, with the terms ordered to run concurrently (Daniel FitzGerald, J., at plea and sentencing). The court did not impose a term of post-release supervision. On November 19, 2010, with the consent of the District Attorney, Justice FitzGerald resentenced Mr. Estremera, pursuant to N.Y. Penal Law § 70.85, to 25 years of incarceration without a term of post-release supervision. In an order dated December 29, 2015, the Appellate Division, First Department, affirmed the judgment of resentence. People v. Estremera, 134 A.D.3d 655 (1st Dep’t 2015). On April 6, 2016, The Honorable Eugene M. Fahey granted Mr. Estremera leave to appeal to the Court of Appeals. People v. Estremera, 27 N.Y.3d 996 (2016). 3 QUESTION PRESENTED Under Criminal Procedure Law § 380.40, a defendant “must be personally present at the time sentence is pronounced.” In People v. Sparber, this Court held that this statutory command, which applies equally to resentencings, is “unyielding.” 10 N.Y.3d 457, 469 (2008). Accordingly, where a court has violated a defendant’s right to presence by resentencing him in his absence, “[t]he sole remedy . . . is to vacate the sentence and remit for a resentencing[.]” Id. at 471. Roberto Estremera was resentenced, in his absence, to a term of 25 years of incarceration without post-release supervision, pursuant to Penal Law § 70.85. Should there be a new resentencing as mandated by Sparber? 4 STATEMENT OF FACTS On December 13, 2000, Roberto Estremera pleaded guilty to one count of manslaughter in the first degree, N.Y. Penal Law § 125.20, and one count of attempted murder in the second degree, N.Y. Penal Law §§ 110/125.25(1), in exchange for a determinate sentence of 25 years of imprisonment on each count, to run concurrently. Plea Transcript at A. 10–14.1 There was no mention of post-release supervision (“PRS”) at the plea proceeding. See id. at A. 5–15. On February 5, 2001, Mr. Estremera was sentenced to the promised term of 25 years of imprisonment. Sentencing Transcript at A. 18. As at the plea, there was no mention of PRS at the sentencing proceeding. See id. at A. 17–19. Nor did the Sentence and Commitment Order, issued on the same date, indicate any term of PRS. See Sentence and Commitment Order at A. 20. On October 25, 2009, eight years after his sentencing, Mr. Estremera moved pro se to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10. Defendant’s 440 Motion at A. 24–27. Citing People v. Catu, 4 N.Y.3d 242 (2005), Mr. Estremera argued that his plea was 1 Page numbers preceded by “A.” refer to the Appendix. 5 not voluntary, knowing and intelligent because the court had failed to advise him that his promised sentence required a term of PRS. Id. Mr. Estremera also raised the issue that his sentence was illegal because it failed to include a term of PRS. Id. at A. 27–29. On July 20, 2010, the District Attorney responded to Mr. Estremera’s pro se motion. People’s Response to Defendant’s 440 Motion at A. 40. The District Attorney acknowledged that there had been a Catu error, but requested that Mr. Estremera’s motion be denied, and that he be resentenced to his original sentence, without a term of PRS, pursuant to the legislative remedy for Catu errors set forth in N.Y. Penal Law § 70.85. Id. at A. 50. On October 15, 2010, after appointment by the court, counsel for Mr. Estremera filed an Affirmation, arguing that the only appropriate remedy for the undisputed Catu error was vacatur of the plea. Defendant’s Supplemental and Reply Affirmation at A. 53–56. On November 19, 2010, in Mr. Estremera’s absence, the Supreme Court denied his motion to vacate the plea. Resentencing Transcript at A. 58. In order to resolve the issue of his illegal sentence, the court proceeded to resentence Mr. Estremera to his original determinate term 6 without PRS, pursuant to N.Y. Penal Law § 70.85. Id. On the same date, the court issued a written order stating: “No resentence. Original sentence with no PRS stands.” Resentencing Order at A. 61. On appeal from the resentencing, Mr. Estremera argued that the court had violated his right to be present by resentencing him in his absence. Appellant’s Brief at 8–10. Mr. Estremera argued that, as neither a waiver nor forfeiture had occurred, his absence at the resentencing was impermissible, and a new resentencing in his presence was required. Id. The Appellate Division, First Department, affirmed. Quoting from People v. Covington, 88 A.D.3d 486 (1st Dep’t 2011), and also citing People v. Mills, 117 A.D.3d 1555 (4th Dep’t 2014), the court stated: Even assuming, without deciding, that this appeal is properly before us as an appeal from a judgment of resentence . . . , notwithstanding that the court’s order expressly states: “No resentence. Original sentence with no PRS stands,” we find no basis for a remand. Defendant 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[.]” People v. Estremera, 134 A.D.3d 655, 655 (1st Dep’t 2015). 7 ARGUMENT MR. ESTREMERA SHOULD BE RESENTENCED IN HIS PRESENCE. This is a simple case. Under Criminal Procedure Law § 380.40 (“CPL 380.40”), Roberto Estremera had the “fundamental right” to be present at his resentencing. People v. Rossborough, 27 N.Y.3d 485, 488– 89 (2016); N.Y. Crim. Proc. Law § 380.40(1) (“The defendant must be personally present at the time sentence is pronounced.”). The Supreme Court violated Mr. Estremera’s right to be present when it resentenced him in his absence. Here, the remedy is not to change the law by requiring Mr. Estremera to show that he was prejudiced by the violation of his “unyielding” right under CPL 380.40. People v. Sparber, 10 N.Y.3d 457, 469 (2008). Rather, “[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing[.]” Id. at 471. A. The Court Resentenced Mr. Estremera in His Absence. Mr. Estremera was “up in Attica” Correctional Facility when the court resentenced him, pursuant to Penal Law § 70.85, to a term of 25 years in prison without PRS. Resentencing Transcript at A. 58. Penal 8 Law § 70.85 applies where, as in this case, “a determinate sentence was imposed between September [1, 1998], and [June 30, 2008], and was required by law to include a term of [PRS], but the court did not explicitly state such a term when pronouncing sentence.” N.Y. Penal Law § 70.85. Under such circumstances, “the court may, . . . but only on consent of the district attorney, re-impose the originally imposed determinate sentence of imprisonment without any term of [PRS], which then shall be deemed a lawful sentence.” Id.2 Here, despite section 70.85’s requirement that the court “re- impose” sentence, the trial court went out of its way to state that Mr. Estremera was not being resentenced. As the First Department noted in 2 The purpose of Penal Law § 70.85 is to “sav[e] guilty pleas” that would otherwise be invalid because plea courts failed to advise defendants that their sentences required PRS. People v. Boyd, 12 N.Y.3d 390, 393 (2009); see also People v. Catu, 4 N.Y.3d 242, 245 (2005) (the failure of a plea court to advise a defendant about mandatory PRS requires reversal of the conviction). In addition to providing a “legislative remedy for the defectiveness of the plea,” section 70.85 establishes a “mechanism to impose a determinate sentence without a term of PRS,” which would otherwise be unlawful. People v. Pignataro, 22 N.Y.3d 381, 386–87 (2013); see also N.Y. Penal Law § 70.45(1) (all determinate sentences must include a term of PRS). Correction Law § 601-d, enacted on the same day as Penal Law § 70.85, permits corrections officials “to notify sentencing courts that PRS [was not] properly imposed . . . and to have these defendants returned to the original sentencing courts for modification of their sentences[.]” People v. Williams, 14 N.Y.3d 198, 208 (2010). Together, the two statutes reflect a legislative effort to “deal with the significant number of incarcerated individuals whose status had been affected by the Catu and Garner/Sparber decisions.” Id. 9 its opinion, “the court’s order expressly states: ‘No resentence. Original sentence with no PRS stands[.]’” Estremera, 134 A.D.3d at 655; see also Resentencing Order at A. 61.3 Similarly, at the proceeding itself, the court did not state that Mr. Estremera was being resentenced, but rather that his “original sentence stands under 70.85.” Resentencing Transcript at A. 58. Based on these statements by the lower court, the First Department expressed uncertainty as to whether the proceeding at issue was a resentencing at all. See Estremera, 134 A.D.3d at 655. Contrary to the First Department’s opinion, and the sentencing court’s order, there is no doubt that what occurred here was a resentencing. This Court has consistently recognized that the “re- impos[ition]” of a sentence under Penal Law § 70.85 is a resentencing. See, e.g., Pignataro, 22 N.Y.3d at 386 (section 70.85 allows defendants to “be resentenced . . . without a PRS term”); Williams, 14 N.Y.3d at 208 (quoting the Governor’s Approval Memorandum as stating that the 3 The statement in question was a handwritten addition to a printed order listing a variety of alternative dispositions under Penal Law § 70.85 and Correction Law § 601-d. See Resentencing Order at A. 61. Among the printed dispositions was that, “[p]ursuant to Penal Law, § 70.85, . . . the defendant is re-sentenced to the originally imposed determinate sentence without any term of [PRS].” Id. 10 purpose of section 70.85 is to provide for “‘re-sentencing without a term of PRS’”). Moreover, as the First Department itself recognized in People v. Edwards, a resentencing court’s gloss on its proceedings does not alter the nature of those proceedings. 62 A.D.3d 467 (1st Dep’t 2009). In Edwards, as in this case, the lower court’s original pronouncement of sentence had “omitted any reference to [PRS].” Id. at 468. There, “the resentencing court [had] corrected the illegality . . . [by] adding PRS to the sentence in defendant’s presence.” Id. “[I]t [was] of no legal consequence,” the First Department observed, “that the resentencing court [had] described its remedy as a clarification of sentencing[.]” Id. What had taken place was a “[j]udgment of resentence.” Id. The First Department’s reasoning in Edwards applies with full force to this case. Here, court’s authority to impose a determinate sentence without PRS derived exclusively from Penal Law § 70.85. See, e.g., Pignataro, 22 N.Y.3d at 386 (“Prior to the enactment of section 70.85, . . . . courts had no legal authority” to impose a determinate sentence without PRS). Indeed, the court here acknowledged that it was acting “under the authority of Section 70.85.” Resentencing Transcript 11 at A. 58. Contrary to the court’s assertion, however, that it was merely “maintain[ing] the original sentence,” id., Penal Law § 70.85 requires that a court “re-impose the originally imposed determinate sentence[.]” N.Y. Penal Law § 70.85 (emphasis added). Only upon such resentencing shall a determinate sentence without PRS “be deemed a lawful sentence.” Id.4 There should be no confusion, therefore, that the proceeding at issue here was a “resentencing under Penal Law § 70.85.” Pignataro, 22 N.Y.3d at 383. B. By Resentencing Mr. Estremera in His Absence, the Court Violated His “Unyielding” Right to Be Present. This Court has recognized only three exceptions to the “unyielding” right to presence under CPL 380.40. Sparber, 10 N.Y.3d at 469. As is undisputed here, none of those exceptions applies to Mr. Estremera’s case. The court therefore violated Mr. Estremera’s right to presence when it resentenced him in his absence. 4 The People certainly expressed no doubt that what they were seeking in the trial court, and what they were defending on appeal, was a “resentencing pursuant to section 70.85.” People’s Response to Defendant’s 440 Motion at A. 42 (emphasis added); see also Respondent’s Brief at 4 (“The Order Resentencing Defendant Pursuant to Penal Law Section 70.85 Should Be Affirmed.”). 12 Just this year, this Court reaffirmed that a defendant’s right to be present at his sentencing is “fundamental.” Rossborough, 27 N.Y.3d at 488–49. This right, with its “deep roots” in the common-law right of allocution, People v. McClain, 35 N.Y.2d 483, 490 (1974), is embodied in the Federal Constitution. United States v. Salim, 690 F.3d 115, 122 (2d Cir. 2012). In New York, it is codified in CPL 380.40, which dictates that “[t]he defendant must be personally present at the time sentence is pronounced.” N.Y. Crim. Proc. Law § 380.40(1) (emphasis added).5 As this Court noted in its seminal decision in People v. Sparber, the terms of CPL 380.40 are “clear” and “unyielding.” 10 N.Y.3d at 469. Indeed, the statute sets forth only one exception, and it is an exception that proves the rule. Subsection 380.40(2), labeled “Exception,” states that, “[w]here sentence is to be pronounced for a misdemeanor or for a petty offense, the court may, on motion of the defendant, dispense with the requirement that the defendant be personally present.” N.Y. Crim. Proc. Law § 380.40(2). Even then, “[a]ny such motion must be accompanied by a waiver, signed and acknowledged by the defendant[.]” 5 Both the constitutional right and its statutory protections apply equally to resentencings. Salim, 690 F.3d at 122 (citing United States v. Arrous, 320 F.3d 355, 359 (2d Cir. 2003)) (constitutional right); People v. Green, 54 N.Y.2d 878, 880 (1981) (statutory right to make a statement). 13 Id. Thus, CPL 380.40 makes clear that, in all cases, the right to presence must be jealously guarded. In keeping with CPL 380.40’s clear mandate, this Court has been reticent to carve out novel exceptions to the right it secures. See Sparber, 10 N.Y.3d at 470 (“‘[O]nce the legislature has spoken, neither court nor judge may modify or change its pronouncement[.]’” (quoting Hogan v. Bohan, 305 N.Y. 110, 112–13 (1953))). Thus, the Court has recognized only two such exceptions: where a defendant expressly waives his right to be present at sentencing, and where he forfeits his right through misconduct. See Rossborough, 27 N.Y.3d at 488–89. Neither exception applies here. First, Mr. Estremera did not “knowingly, voluntarily and intelligently inform[] the court that he desire[d] to waive [his] fundamental right” to be present at resentencing. Id. at 489. Mr. Estremera, who was “up in Attica” Correctional Facility when the court resentenced him, was not notified of the court’s decision to proceed in his absence until after the proceeding was completed. Resentencing Transcript at A. 58. Nor did Mr. Estremera, on whose pro se motion the proceedings were taking place, see id., “willfully absent[] himself from 14 the court for the purpose of frustrating the proceedings.” People v. Corley, 67 N.Y.2d 105, 108 (1986). Thus, as is undisputed here, Mr. Estremera neither waived nor forfeited his right to be present at his resentencing. Finally, Penal Law § 70.85 and Correction Law § 601-d, the statutes providing for resentencings like the one here, do not introduce any exception to this framework. In fact, the language of Correction Law § 601-d indicates that the legislature had no such exception in mind. That statute provides that, after being notified by corrections officials that a defendant’s commitment order did not include a term of PRS, and absent a finding that PRS was pronounced at sentencing, the court “shall appoint counsel . . . and calendar such [defendant] for a court appearance[.]” N.Y. Correct. Law § 601-d(1)–(4) (emphasis added); see also Williams, 14 N.Y.3d at 208 (the purpose of section 601-d is “to have . . . defendants returned to the original sentencing courts for modification of their sentences”). It is evident from this language that the legislature did not intend for Penal Law § 70.85 or Correction Law § 601-d to create a silent exception to the “clear” commands of the sentencing statutes. Sparber, 10 N.Y.3d at 469. 15 That is even more evident when these statutes are read in their historical context. Penal Law § 70.85 and Correction Law § 601-d were enacted in response to this Court’s decisions in Sparber and Garner v. N.Y. State Dep’t of Corr. Servs., 10 N.Y.3d 358 (2008). People ex rel. Joseph II. v. Supt. of Southport Corr. Facility, 15 N.Y.3d 126, 131 (2010). In Garner, the Court held that “the sentencing judge—and only the sentencing judge—is authorized to pronounce the PRS component of a defendant’s sentence.” 10 N.Y.3d at 362. In Sparber, decided the same day as Garner, the Court held that a defendant has the “unyielding” right to be present at sentencing and to “hear the court’s pronouncement as to what the entire sentence encompasses, directly from the court[.]” 10 N.Y.3d at 469–70. Given that Penal Law § 70.85 and Correction Law § 601-d were a “response to Garner and Sparber,” Joseph II., 15 N.Y.3d at 131, it would be anomalous for the legislature to have intended to create an exception to the “unyielding” right announced in Sparber, without declaring any such intention. 10 N.Y.3d at 469. 16 Thus, because no exception to the right to presence applies here, the court violated Mr. Estremera’s right to presence by resentencing him in his absence. C. The “Sole Remedy” Here Is a New Resentencing in Mr. Estremera’s Presence. Where, as here, a defendant’s right to be present at resentencing has been violated, the “sole remedy . . . is to vacate the sentence and remit for a resentencing hearing[.]” Sparber, 10 N.Y.3d at 471 (citing People v. Sturgis, 69 N.Y.2d 816, 818 (1987); People v. Stroman, 36 N.Y.2d 939, 940 (1975)). In this case, the First Department denied Mr. Estremera a new resentencing because it found that he had not been “adversely affected” by his absence at resentencing. Estremera, 134 A.D.3d at 655; see also People v. Covington, 88 A.D.3d 486, 486–87 (1st Dep’t 2011) (finding no basis for a new resentencing because the “defendant would not derive any practical benefit” from one). The court found that Mr. Estremera “was not adversely affected . . . ‘because the result [of the resentencing], i.e., freedom from having to serve a term of PRS, was in his favor[.]’” 134 A.D.3d at 655 (quoting Covington, 88 A.D.3d at 486). This is a new 17 exception to an old rule, and one that is contrary to this Court’s jurisprudence. As an initial matter, the “result” of Mr. Estremera’s resentencing cannot be so easily characterized as “in his favor.” Mr. Estremera, after all, did not want to be resentenced pursuant to Penal Law § 70.85. Instead, Mr. Estremera sought the vacatur of his guilty plea under Catu, which held that a plea court’s failure to advise a defendant about PRS, as happened here, warrants reversal of the conviction. Defendant’s 440 Motion at A. 24–27. Indeed, Mr. Estremera argued vigorously against a 70.85 resentencing. See Defendant’s Supplemental and Reply Affirmation at A. 55 (“[T]his Court cannot, over Mr. Estremera’s objections, force him to accept his plea where it was unconstitutionally obtained.”). Rather than Mr. Estremera, it was the People who actively sought the result that was reached in Mr. Estremera’s absence. People’s Response to Defendant’s 440 Motion at A. 50; Resentencing Transcript at A. 58. That is typical of 70.85 resentencings, because such proceedings can go forward “‘only on consent of the district attorney,’” Williams, 14 N.Y.3d at 213 (quoting N.Y. Penal Law § 70.85); see also, 18 e.g., Pignataro, 22 N.Y.3d at 384 (“the People moved . . . to resentence defendant under Penal Law § 70.85,” over defendant’s request “to withdraw his involuntary plea”). Thus, it is hardly clear-cut that the denial of Mr. Estremera’s motion, and the re-imposition of his sentence in his absence, were “in his favor.” In any event, requiring Mr. Estremera to show that he was “adversely affected” by his exclusion from resentencing, Estremera, 134 A.D.3d at 655, or that he would “derive [a] practical benefit from a remand,” Covington, 88 A.D.3d at 486–87, is contrary to this Court’s jurisprudence. Instead of looking to the Court of Appeals’ clear guidance in Sparber, the First Department relied here on its own earlier decision in People v. Covington.6 Covington, in turn, relied on this Court’s decision in People v. Acevedo, 17 N.Y.3d 297 (2011). Thus, Acevedo is the root source of the purported requirement that Mr. Estremera show that he was “adversely affected” by being resentenced in his absence. The First Department’s reliance on Acevedo, however, is entirely misplaced. Acevedo did not set down a rule limiting the availability of 6 The only other case cited below was the Fourth Department case People v. Mills, which also relied on Covington. 117 A.D.3d at 1556. The holding in Mills, and then- Justice Eugene Fahey’s dissenting opinion in that case, are discussed below. 19 resentencings where a defendant’s right to be present has been violated. In fact, both of the defendants in Acevedo had already obtained the resentencings they had sought. 17 N.Y.3d at 300–02. Rather, the issue in that case was the effect of such resentencings going forward: specifically, whether such resentencing could be “employed . . . to leapfrog a sentence forward so as to vitiate its utility as a sentencing predicate.” Id. at 302. The language in Acevedo regarding the lack of “practical benefit defendants could . . . gain from the resentencings,” culled by the First Department here, must be read in that case’s distinct context. Id. at 302. In Acevedo, the Court merely declined to reward what it deemed a bad-faith “tactic” by defendants who had moved for resentencings with “no expectation that they would obtain ‘relief’” apart from “render[ing] their prior convictions useless as predicates[.]” Id. at 302–03. Moreover, the Court expressly limited its holding to the specific facts before it. Id. at 303 (“All that we would decide is that the Sparber relief these defendants obtained was not effective to avoid the penal consequences of reoffending.”). 20 Here, the Court should take guidance from the dissenting opinion of then-Justice Eugene Fahey in People v. Mills, a Fourth Department case that was cited in the decision below. 117 A.D.3d at 1556–57 (Fahey, J., dissenting). The defendant in Mills, as in this case, was resentenced pursuant to Penal Law § 70.85 in his absence. Id. at 1555– 56. The majority in Mills, like the First Department here, relied on the First Department case People v. Covington in denying the defendant a new resentencing. The Mills majority found that the “‘defendant was not adversely affected by any error, because the result, i.e., freedom from having to serve a term of PRS . . . , was in his favor[.]’” Id. at 1556 (quoting Covington, 88 A.D.3d at 486). In his dissenting opinion, then-Justice Fahey’s “analysis beg[an] with CPL 380.40(1), which plainly provides that, ‘[i]n general . . . [,] the defendant must be personally present at the time sentence is pronounced.’” Id. Noting that these statutes “apply to resentences,” then-Justice Fahey stated that: [T]he legislature built no exception for futility or arrogance—which is a fair characterization of defendant’s behavior—into CPL 380.40 or CPL 380.50, and I do not believe that we should find one here. To the extent that the First Department overlooked those statutes in the Sparber 21 case of People v. Covington . . . , I conclude that we should not rely on that precedent, but instead should honor and adhere to the sentencing procedures mandated by the legislature. There is no statutory basis for the exception proposed by the majority. The right to speak at one’s resentencing should be deemed fundamental. Id. at 1557. This Court should adopt the reasoning of its colleague, now- Judge Fahey, and hold that the instant case is not controlled by Covington and Acevedo, but by the “unyielding” terms of CPL 380.40. Sparber, 10 N.Y.3d at 469–70. In Sparber, this Court held that the right to be present at sentencing and “to hear the court’s pronouncement as to what the entire sentence encompasses, directly from the court,” serves a vital function within the criminal justice system: This practice promotes transparency and provides the defendant with a prompt and definitive statement regarding the consequences of his or her guilty plea or conviction. As a result, it greatly facilitates a defendant’s knowledge of his or her obligation to society, a defendant’s decision as to whether to pursue an appeal and the public’s understanding of the sentencing process. . . . CPL 380.20 and 380.40 reflect the view that sentencing is a critical stage of criminal proceedings . . . that is of monumental significance because it determines the price society will exact for the particular transgressions involved[.] Id. at 470 (citations and quotation marks omitted). 22 Accordingly, the Sparber Court held that a sentencing court’s failure to pronounce a defendant’s PRS term in his presence always requires remitter for resentencing. Id. at 470–71. Critically, that rule applies “even in cases with mandatory PRS terms,” id. at 470—in other words, cases in which there is no “practical benefit” to the defendant’s presence during pronouncement. Covington, 88 A.D.3d at 486–87. Indeed, in People v. Thomas, one of the companion cases to Sparber, the defendant had pleaded guilty with “full knowledge” that his sentence included a mandatory term of PRS. Id. at 466 n.3. Nevertheless, he was entitled to a “resentencing and the proper judicial pronouncement” of his sentence. Id. at 465; cf. People v. Morales, 80 N.Y.2d 450, 456 (1992) (“[A] defendant’s presence [at trial] serves a symbolic function, and thus the right does not rest exclusively on defendant’s potential contribution to the proceedings.”); McClain, 35 N.Y.2d at 490–91 (even after “all the early common-law justifications or uses for the allocution have long since disappeared,” a defendant’s right to make a statement at sentencing “remains a substantial right”). The Sparber Court noted that, unlike the relief sought by the defendants in Acevedo, the remedy for a violation of the right to 23 presence at sentencing is not a “windfall.” 10 N.Y.3d at 469. Rather, the “sole remedy” to which a defendant like Mr. Estremera is entitled under Sparber is vacatur of the sentence and remitter for a resentencing in accordance with his right to be personally present and heard. Id. at 471. This is, to be sure, a “limited form of relief.” Id. at 471 n.7. But, under Sparber, Mr. Estremera is entitled to it. Accordingly, this Court should vacate the sentence and remit for a new resentencing at which Mr. Estremera will have the right to be present. 24 CONCLUSION For all of the reasons stated above, this Court should vacate Mr. Estremera’s sentence and remit for a new resentencing at which Mr. Estremera will have the right to be present. Dated: New York, New York July 29, 2016 Respectfully Submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant ALEXANDRA H. KEELING, ESQ. Supervising Attorney By: ____________________________________ SAMUEL J. MENDEZ, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 (Tel.), (212) 402-4199 (Fax) To be submitted by VINCENT RIVELLESE New York Supreme Court Appellate Division - First Department 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 (212) 335-9000 danyappeals@dany.nyc.gov VINCENT RIVELLESE ASSISTANT DISTRICT ATTORNEY Of Counsel POINT THE ORDER RESENTENCING DEFENDANT PURSUANT TO PENAL LAW SECTION 70.85 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. In 2001, defendant pleaded guilty to manslaughter and attempted murder, and he was promised a net state prison term of 25 years. Although under the law at that time a term of PRS was required and deemed to be included in any such sentence, defendant was not told of the post-release supervision during the plea colloquy. On that basis he would have been entitled to vacate his plea pursuant to People v. Catu, 4 N.Y.3d 242 (2005). The People, however, were willing to dispense with the PRS in order to preserve defendant’s plea, pursuant to Penal Law Section 70.85, and that remedy was all that was required. The fact that defendant was not present for its formal implementation is insignificant, especially given that the only thing that could happen at the requested resentencing proceeding is that defendant would receive the sentence he is currently serving once again. The law is simple: if the sentencing court was required to state a PRS term but failed to do so, it “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 -4-