The People, Respondent,v.Anthony S. Pignataro, Appellant.

Brief

N.Y.November 12, 2013

COURT OF APPEALS STATE OF NEW YORK To Be Argued By: MICHAEL J. HILLERY Requested Time: 20 Minutes THE PEOPLE OF THE STATE OF NEW YORK, Respondent V ANTHONY PIGNATARO, Defendant -Appellant Indictment No. 99-1663-001 APL-2012-00312 BRIEF FOR RESPONDENT FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 Telephone: (716) 858-2424 Fax: (716) 858-7922 DONNA A. MILLING MICHAEL J. HILLERY Assistant District Attorneys of Counsel March 13, 2013 TABLE OF CONTENTS Page Table of Authorities i Question Presented 1 Preliminary Statement 2 Point. Penal Law § 70.85 is constitutional 4 Conclusion. The judgment of conviction should be affirmed in every respect 10 CASES TABLE OF AUTHORITIES PAGE People v Anthony Hill, 9 NY3d 189 (2007) People v Boyd, 12 NY3d 390 (2009) People v Bright 71, NY2d 376 (1988) People v Catu, 4 NY3d 242 (2005) People v Foley, 94 NY2d 668 (2000) People v Pignataro, 93 AD3d 1250 (4th Dept. 2012) STATUTES Correction Law § 601-d Penal Law § 110.00 Penal Law § 120.10(1) Penal Law § 70.45 (1) Penal Law § 70.85 OTHER AUTHORITIES Governor’s Approval Memorandum, 2008 McKinney’s Session Law of New York at 1653 4, 6, 7 4 4, 6 .2 .2 2 2 92, 4-6, 8, i COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent V ANTHONY PIGNATARO, Defendant -Appellant Indictment No. 99-1663-001 APL-2012-00312 BRIEF FOR RESPONDENT QUESTION PRESENTED Is Penal Law § 70.85 constitutional? -l - PRELIMINARY STATEMENT Defendant appeals to this Court from an order of the Appellate Division for the Fourth Department, entered March 16, 2012. The order affirmed the Erie County Supreme Court’s resentence of defendant, rendered May 4, 2010, under Penal Law § 70.85 (People v Pignataro, 93 AD3d 1250 [4th Dept. 2012]). A grand jury of Erie County indicted defendant on attempted murder in the second degree, assault in the first degree, and three counts of criminal possession of a controlled substance in the seventh degree. On November 3, 2000, defendant pleaded guilty to attempted assault in the first degree (Penal Law §5 110.00, 120.10[1]) and was sentenced on February 9, 2001 to fifteen years in prison. Defendant was not told when he pleaded guilty that a period of post-release supervision mandated by Penal Law § 70.45(1) would follow his release from prison. On May 4, 2010, on the People’s motion, defendant was resentenced under Penal Law § 70.85 and companion Correction Law § 60l-d. The court reimposed the sentence it had meted February 9, 2001. Defendant has not served, nor will he serve, any post-release supervision. -2 - On October 24, 2012, Judge Susan Phillips Read, of this Court, granted defendant leave to appeal. Defendant is represented on this appeal by Charles J. Greenberg, Esq. The People of the State of New York have been represented throughout the proceedings by the District Attorney of Erie County. -3 - POINT PENAL LAW § 70.85 IS CONSTITUTIONAL. Defendant argues that Penal Law § 70.85 is unconstitutional. Drawing from this Court’s holdings in People v Catu, 4 NY3d 242 (2005), People v Anthony Hill, 9 NY3d 189 (2007) and Judge Pigott’s dissent in People v Boyd, 12 NY3d 390 (2009) , he maintains that although the statute allows the People to direct that a defendant’s sentencing expectations be honored instead of adding otherwise mandatory post-release supervision to his sentence, it offers only a false solution, one which cannot save a constitutionally invalid plea. In other words, a court’s failure to inform a defendant of mandatory post-release supervision at the time of his plea is a due process violation incurable by all later events but vacatur of the plea. This, the People will essay to show, is not so. An essential preface to this argument lies in this Court’s decision in People v Foley, 94 NY2d 668 (2000), wherein the Court noted “that an enactment of the Legislature, a coequal branch of government, is presumed to be valid, and that one seeking to invalidate a statute bears the heavy burden of showing that it is unconstitutional” (Foley, 94 NY2d 668 at -4 - 677) . In light of this presumption of validity, and for the following reasons, defendant’s challenge to the resentencing statute lacks merit. Penal Law § 70.85 applies only to cases in which a determinate sentence was meted between September 1, 1998 and June 30, 2008. In his approval memorandum, Governor David Paterson noted that the statute was “meant to avoid the need for pleas to be vacated when the District Attorney consents to re sentencing without a term of [post-release supervision]” (Governor’s Approval Memorandum, 2008 McKinney’s Session Law of New York at 1653) . The public policy rationale for its enactment is obvious and compelling: to eliminate the prospect of plea withdrawals and the resulting need of new trials. Defendant contends that neither the governor’s language, nor the language of the statute itself, abolishes a defendant’s right to withdraw his plea, but merely allows the People to consent to the original sentence without post-release supervision; whether a plea may be saved is ultimately the defendant’s decision. This contention is self-defeating, as neither does the statute’s language refer at all to a defendant’s consent, but only that of the People to the originally imposed sentence. Further, were the statute to assume that a defendant could still choose to -5 - withdraw his plea in those circumstances, it would oppose its very rationale, if not be altogether pointless. Defendant construes Catu and its progeny as invalidating Penal Law § 70.85 as a corrective. In Catu, this Court held that the imposition of post-release supervision was mandatory and had an important effect on the defendant’s punishment (Catu, 4 NY3d 242 at 244) . The Court reasoned that because a defendant “must be aware of the post-release supervision component of [his] sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of post-release supervision requires reversal of the conviction” (Id. at 245) In Hill, this Court affirmed that a defendant must be told of the direct consequences of his plea, which include post-release supervision (Hill, 9 NY3d 189 at 191) Defendant’s whole argument for mandatory vacatur is based on this Court’s observation in Hill that “the constitutional defect lies in the plea itself and not in the resulting sentence,” and the corollary that fulfilling a defendant’s sentencing expectations is, in essence, too little too late; due process rights are irretrievably subverted in the plea (Id. at 191, 193) . This observation, although correct, -6 - naturally reflected the state of affairs regarding the imposition and enforcement of post-release supervision before legislative intervention in 2008. Before passage of the remedial legislation now in issue, there was no legal sentencing alternative for cases for which a term of post-release supervision applied; a defendant was bound, so long as his plea was enforced, to serve statutorily mandated post-release supervision even of which he was uninformed. This Court rightly saw that enforcing such a plea offended due process. Consistent with this view, this Court in Hill deemed inapposite the fact that the defendant was ultimately resentenced to a total period of incarceration (twelve and one- half years) and post-release supervision (two and one-half years) equal to his originally promised fifteen-year determinate sentence (Id. at 192); to require the defendant to serve any amount of post-release supervision when he was not told of it at the time of his plea, though sentencing expectations be honored, would conflict with the constitutional requirement that a plea be voluntary, knowing and intelligent. As the legislature had, as yet, authorized no other sentence for such a case, the only way to cure the due process violation was to return the defendant to his status before the constitutional infirmity occurred (Id. at 191) -7 - Enter Penal Law § 70.85. In it, the legislature has authorized a sentencing alternative once unavailable to defendants uninformed of, but bound to serve, periods of post- release supervision. The statute allows the People to consent to such a defendant’s original sentence, ensuring that he will not serve a day of post-release supervision. The statute legalizes an otherwise illegal sentence for a certain universe of cases. On this point, defendant’s whole argument rests on the strange implicit assumption that the mandatory post-release supervision statute is so intrinsically inviolable that the very lawmaking body that passed it cannot undo or modify it under any circumstances. Only this assumption can account for defendant’s view that eliminating untold post-release supervision cannot cure the due process violation. In fact, however, Penal Law § 70.85 does cure the due process violation because it excises the only constitutionally offensive part of his sentence, leaving him to face only that of which he was fully informed. Finally, although the statute does not require the People to consent to a defendant’s original sentence, this fact is unimportant to the question at hand; if the People were to insist on a defendant’s serving post-release supervision, then he could withdraw his plea. -8 - Defendant has not carried “the heavy burden of demonstrating that [Penal Law § 70.85] is unconstitutional” (People v Bright 71, NY2d 376, 382 [1988] ) . His plea and sentence should not be disturbed. -9 - CONCLUS ION THE JUDGMENT OF CONVICTION AFFIRMED IN EVERY RESPECT. SHOULD BE Respectfully submitted, MICHA L J.7}’RY Assistant District Attorn of Counsel March 13, 2013 FRANK A. SEDITA, III District Attorney Erie County Attorney for Respondent 25 Delaware Avenue Buffalo, New York 14202 - 10 -