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. REPLY 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) November 9, 2016 i TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................... ii ARGUMENT MR. ESTREMERA SHOULD BE RESENTENCED IN HIS PRESENCE (Replying to Respondent’s Brief at 4–14) ................... 1 CONCLUSION ........................................................................................... 8 ii TABLE OF AUTHORITIES CASES Garner v. N.Y. State Dep’t of Corr. Servs., 10 N.Y.3d 358 (2008) ... passim People ex rel. Joseph II. v. Supt. of Southport Corr. Facility, 15 N.Y.3d 126 (2010) .......................................................................... 4, 7 People v. Boyd, 12 N.Y.3d 390 (2009) ........................................................ 4 People v. Estremera, 134 A.D.3d 655 (1st Dep’t 2015) .............................. 3 People v. Green, 54 N.Y.2d 878 (1981) ....................................................... 2 People v. Johnson, 20 N.Y.3d 990 (2013) ............................................... 3–4 People v. LaFontaine, 92 N.Y.2d 470 (1998) .............................................. 3 People v. Lingle, 16 N.Y.3d 621 (2011) .................................................. 6–7 People v. McClain, 35 N.Y.2d 483 (1974) .................................................. 6 People v. Nicholson, 26 N.Y.3d 813 (2016) ................................................ 3 People v. Pignataro, 22 N.Y.3d 381 (2013) ................................................ 3 People v. Rossborough, 27 N.Y.3d 485 (2016) ........................................ 4, 7 People v. Smith, — N.E.3d —, 2016 N.Y. Slip Op. 07106 (2016) ..... 1, 4, 6 People v. Sparber, 10 N.Y.3d 457 (2008) ......................................... passim People v. Sturgis, 69 N.Y.2d 816 (1987) ..................................................... 5 People v. Thomas, 10 N.Y.3d 457 (2008) ................................................... 6 People v. Williams, 14 N.Y.3d 198 (2010) .................................................. 4 iii STATUTES N.Y. Crim. Proc. Law § 380.40 ............................................................... 2, 6 N.Y. Crim. Proc. Law § 380.50 ................................................................... 2 N.Y. Crim. Proc. Law § 470.05 ................................................................... 2 N.Y. Penal Law § 70.85 .................................................................... passim OTHER AUTHORITIES Governor’s Approval Mem., Bill Jacket, L. 2008, ch. 141 ......................... 4 1 ARGUMENT MR. ESTREMERA SHOULD BE RESENTENCED IN HIS PRESENCE (Replying to Respondent’s Brief at 4–14). Sentencing is about pronouncement. It is the final, “critical stage” of a prosecution, in which the defendant appears before the court and his sentence is formally imposed. People v. Sparber, 10 N.Y.3d 457, 470 (2008). The combined lesson of this Court’s decisions in Garner and Sparber is that only a judge can pronounce a defendant’s sentence, and the defendant must be present when the judge does so. Garner v. N.Y. State Dep’t of Corr. Servs., 10 N.Y.3d 358, 360 (2008); Sparber, 10 N.Y.3d at 469. “These commands are unyielding,” regardless of whether the sentencing judge has discretion, or the defendant has something to contribute. Sparber, 10 N.Y.3d at 469–71. Here, Roberto Estremera was resentenced in his absence to a term of 25 years in prison without post-release supervision (“PRS”), pursuant to N.Y. Penal Law § 70.85. Mr. Estremera’s right to presence was violated, and “the ‘sole remedy’ . . . ‘is to vacate the sentence and remit for a resentencing hearing[.]’” People v. Smith, — N.E.3d —, 2016 N.Y. Slip Op. 07106, *16 (2016) (quoting Sparber, 10 N.Y.3d at 471). 2 Respondent concedes that a defendant “clearly” has the right to be present at both sentencing and resentencing. Resp. Br. at 12–13 (citing N.Y. Crim. Proc. Law §§ 380.40(1), 380.50(1); People v. Green, 54 N.Y.2d 878 (1981)). Respondent now contends, however, that the re-imposition of Mr. Estremera’s sentence under Penal Law § 70.85 was not “actual[ly]” a resentencing, Resp. Br. at 12—a noticeable change from its position below. See, e.g., People’s Response to Defendant’s 440 Motion at A. 41 (“Section 70.85 of the Penal Law is simple and clear,” allowing courts to “resentence” defendants without PRS). Instead, Respondent now suggests that the re-imposition of Mr. Estremera’s sentence was a mere “administrative correction,” at which he had “no . . . right to be present,” and which, presumably, could have taken place off-the-record altogether. Resp. Br. at 12–14. Alternatively, Respondent argues that Mr. Estremera’s appeal is “moot and academic” because his resentencing did “‘not affect [his] substantial rights[.]’” Resp. Br. at 10–11 (quoting N.Y. Crim. Proc. Law § 470.05(1)). With respect to the first point, Respondent’s newfound reading of section 70.85 cannot form the basis of an affirmance here. It is true that the trial court claimed, erroneously, that it was not resentencing Mr. 3 Estremera, but rather “maintain[ing] the original sentence without any [PRS] under the authority of Section 70.85.” Resentencing Transcript at A. 58. Critically, however, the court never held that Mr. Estremera was not entitled to be present. In fact, the issue of whether Mr. Estremera ought to be in the courtroom, whether he was being resentenced or not, simply did not come up. This Court therefore cannot affirm on the basis that Mr. Estremera had “no . . . right to be present” when his sentence was re-imposed, Resp. Br. at 14, because that issue was “‘not ruled upon[] by the trial court[.]’” People v. Nicholson, 26 N.Y.3d 813, 825 (2016) (quoting People v. LaFontaine, 92 N.Y.2d 470, 474 (1998)).1 In any event, the trial court’s claim that it was not resentencing Mr. Estremera was simply incorrect. This Court has consistently recognized that 70.85 proceedings are resentencings. People v. Pignataro, 22 N.Y.3d 381, 383 (2013) (appeal from defendant’s “resentencing under section 70.85”); People v. Johnson, 20 N.Y.3d 990, 991 (2013) (prosecution was entitled to withdraw its “consent to a 1 The Appellate Division, for its part, did not decide whether the proceeding here was a resentencing, or whether Mr. Estremera had the right to be present. People v. Estremera, 134 A.D.3d 655, 655 (1st Dep’t 2015). Instead, the Appellate Division held that Mr. Estremera was not entitled to a remand, because he had not been “adversely affected by any alleged procedural defect[.]” Id. (citations omitted). 4 resentence without a period of [PRS]” under section 70.85); People v. Williams, 14 N.Y.3d 198, 208 (2010) (section 70.85 “allows a resentencing court to reimpose the originally pronounced determinate prison sentence . . . . ‘when the District Attorney consents to re- sentencing without a term of PRS’” (quoting Governor’s Approval Mem., at 2, Bill Jacket, L. 2008, ch. 141)); People v. Boyd, 12 N.Y.3d 390, 394 (2009) (same). Because the proceeding here was a resentencing, Mr. Estremera had the “fundamental right to be present[.]” People v. Rossborough, 27 N.Y.3d 485, 488–89 (2016).2 At bottom, Respondent’s argument here—that the re-imposition of Mr. Estremera’s prison sentence was just an “administrative correction” that did “not affect [his] substantial rights,” Resp. Br. at 10, 12 (citation and quotation marks omitted)—is nothing more than a throwback to the pre-Sparber days. For years following the legislative enactment of 2 Respondent suggests that the title of section 70.85, “Transitional exception to determinate sentencing laws,” indicates that the statute creates “an ‘exception’ to an otherwise necessary resentencing proceeding[.]” Resp. Br. at 12–13. But, of course, the “exception” created by section 70.85 is not an exception to the need for “pronouncement in the defendant’s presence,” Sparber, 10 N.Y.3d at 471, but rather “an exception to Penal Law § 70.45’s requirement that a PRS component be added to all determinate sentences[.]” Smith, 2016 N.Y. Slip Op. 07106, *13. Indeed, 70.85 is completely silent about the right to presence—a fact that, given the statute’s history as a “response to Garner and Sparber,” speaks volumes in itself. People ex rel. Joseph II. v. Supt. of Southport Corr. Facility, 15 N.Y.3d 126, 131 (2010). 5 PRS, lawyers and courts assumed that the imposition of mandatory PRS terms was a “ministerial function,” which could take place “by operation of law” without the need to be “orally pronounced.” Sparber, 10 N.Y.3d at 466; cf. Garner, 10 N.Y.3d at 360–61 (corrections officials “administratively add[ed]” PRS terms, on the theory that they were “only enforcing . . . a part of [the] sentence which was automatically included by statute” (citations and quotation marks omitted)). In Garner and Sparber, this Court rejected these practices in resounding terms. The Court held that such an “administrative[]” approach to sentencing “contravenes the CPL’s express mandate that sentencing is a judicial function,” Garner, 10 N.Y.3d at 362, and that a defendant’s “right to hear the court’s pronouncement . . . directly from the court” applies to all sentences: “determinate and indeterminate, mandatory and discretionary.” Sparber, 10 N.Y.3d at 470–71. Critically, any sentence imposed in violation of these requirements “‘must be vacated and the case remitted to the trial court for resentencing[.]’” Id. at 471 (quoting People v. Sturgis, 69 N.Y.2d 816, 818 (1987)). Here, Respondent’s argument that remitter is unnecessary because the trial court re-imposed “the sentence that . . . was promised,” 6 and Mr. Estremera “can contribute nothing to affect the result,” Resp. Br. at 11, 13, is simply a complaint against Sparber itself—since those are often the facts in Sparber resentencings. See, e.g., People v. Thomas, 10 N.Y.3d 457, 465–67 & n.3 (2008) (remitting for resentencing where defendant pleaded guilty “with full knowledge” of his “mandatory five- year PRS term”); People v. Lingle, 16 N.Y.3d 621, 632–33 (2011) (defendants’ Sparber resentencings “merely imposed statutorily- required sentences . . . . of which they were always cognizant”). The Sparber rule thus reflects the reality that the right to presence at sentencing is “a substantial right.” People v. McClain, 35 N.Y.2d 483, 491 (1974). Indeed, it is more than that. The requirement that “‘[t]he defendant must be personally present’” when the court imposes his sentence—in Mr. Estremera’s case, a term of 25 years in prison—affords a basic level of dignity not only to the defendant but to the proceedings themselves. Sparber, 10 N.Y.3d at 469 (emphasis added) (quoting N.Y. Crim. Proc. Law § 380.40(1)). Where that requirement has been disregarded, “the ‘sole remedy’ . . . ‘is to vacate the sentence and remit for a resentencing hearing[.]’” Smith, 2016 N.Y. Slip Op. 07106, *16 (quoting Sparber, 10 N.Y.3d at 471). 7 * * * This case does not warrant a change in the law. This Court’s decisions in Sparber and Garner, eight years ago, were nothing short of courageous: in light of the “monumental significance” of sentencing, and the “unmistakable” language of the controlling statutes, Sparber, 10 N.Y.3d at 469–70 (citations and quotation marks omitted), the Court opened the door to “thousands of Sparber resentencings[.]” Lingle, 16 N.Y.3d at 634. Today, such resentencings have undoubtedly slowed down. Indeed, the statute at issue here, “enacted in response to Garner and Sparber,” Joseph II., 15 N.Y.3d at 131, applies only to sentences imposed between 1998 and 2008. See N.Y. Penal Law § 70.85. The significance of sentencing and the need for clarity, however, remain undiminished, and any new exception to the Sparber rule would long outlive the narrow circumstances presented here. This Court should therefore reaffirm that a defendant’s right to presence at sentencing is “fundamental,” and remit this case for a resentencing at which Mr. Estremera’s right to presence will be observed. Rossborough, 27 N.Y.3d at 488–89. 8 CONCLUSION For all of the reasons stated above and in his opening brief, 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 November 9, 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)