The People, Respondent,v.Anthony S. Pignataro, Appellant.BriefN.Y.November 12, 2013Oral Argument Requested Time required: Twenty Minutes To be argued by: Charles J. Greenberg, Esq. State of New York- Court of Appeals The People of the State of New York Plaintiff-Respondent v. Anthony Pignataro Defendant-Appellant Docket Numbers Indictment Number- 99-1663-001 Appellate Docket Number - KA 11-02114 Brief for the Defendant-Appellant To: Andrew Klein, Esq. Charles J. Greenberg, Esq. Attorney for Defendant-Appellant 3 840 East Robinson Road - #318 Amherst, New York 14228-2001 (716) 695-9596 Clerk of the Court - Court of Appeals 20 Eagle Street Albany, New York To: Frank A. Sedita III, Esq. District Attorney of Erie County Donna A. Milling, Esq. Assistant District Attorney of Erie County Attorney for the Plaintiff-Respondent 25 Delaware Avenue Buffalo, New York 14202 (716) 858-2424 Table of Contents Table of Citations .............. ................ ......... ........ ........ ............................ ................ ... 1 Statement of Questions Involved ................................................................ .............. 2 Statement of Facts .............. ............ .... ................ ........... ... ...... ...... .................. ...... ..... 3 Argument ......... .................. ......... ......... ....... ........... ... .. .. ....... .......... .......... ... ............... 9 Point One ............. Section 70.85 of the Penal Law is unconstitutional because it denied the Defendant-Appellant of his right to withdraw his plea when produced for re-sentencing thereby violating his due process and equal protection rights under the Fourteenth Amendment to the United States Constitution and Article 1, Section 6 of the New York State Constitution .... ........... ..... ............................. ... 9 Conclusion .... ... ...... ... ... .......... .......... ... ...... ...... ....... ... ......... ................ ......... .. .. ........ 15 Table of Citations Case Law Anthony Pignataro v. Thomas Poole, 381 Fed. Appx. 46 at 50. (C.A.2d, NY, 2010) ............................................................................................................... 6 People v. Barak Cornell, 16 N.Y.3d 801 (2011) .......................................... 13 People v. Paul Boyd, 12 N.Y.3d 390 (2009) ............................................. 6, 10 People v. Anthony Hill, 9 N.Y.3d 189 (2007) ............................................... 10 People v Cornell Louree, 8 N.Y.3d 541 (2007) ............................................ 12 People v. Tammi VanDeusen, 7 N.Y.3d 744 (2006) ..................................... 12 People v. Randolfo Catu, 4 N.Y.3d 242 (2005) ............................................ 10 People v Armet Coles, 62 N.Y.2d 908 (1984) ............................................... 11 People v. Barry Verhow, 83 A.D.3d 1528 (4th Dep't., 2011) ........................ 13 Peoplev. Gabriel Williams, 82A.D.3d 1576 (4thDep't., 2011), leave denied, 17 N.Y.3d 810 (2011) ................................................................................... 14 1 Statement of Question Involved 1. Is Section 70.85 of the Penal Law unconstitutional because it denied the Defendant-Appellant of his right to withdraw his plea when produced for re- sentencing, thereby violating his due process and equal protection rights under the Fourteenth Amendment to the United States Constitution and Article 1, Section 6 of the New York State Constitution? The Supreme Court of the State of New York for Erie County did not directly address this question, notwithstanding that counsel for the Defendant-Appellant raised it during the re-sentencing hearing. The Supreme Court implicitly rejected the argument by denying the Defendant-Appellant's motion to withdraw the plea. The Appellate Division - Fourth Department did not address the question when affirming the re-sentence. The Court of Appeals has jurisdiction over this question because both the Defendant-Appellant and his counsel raised this issue when arguing against the re-sentencing before the Supreme Court. In particular, see pages A-21, A-22, A-26 and A-28 of the Appendix. The Supreme Court did not issue an order, instead ruling against the motion from the bench. Appendix at A-30. The Appellate Division issued a final order. Appendix at A-3. 2 Statement of Facts Posture Appellant Anthony Pignataro appeals to the Court of Appeals from an order entered in the Appellate Division - Fourth Department on March 16, 2012, affirming a re-sentence of the Supreme Court of New York for Erie County entered on May 4, 2010. The re-sentence was pursuant to Section 70.85 of the Penal Law. Appendix at A-3. The Defendant is presently serving his sentence. The Original Conviction and Sentence The Grand Jury of Erie County, under indictment 99-1663-001, charged Mr. Pignataro with one count of Attempted Murder in the Second Degree and Assault in the First Degree and three counts of Criminal Possession of a Controlled Substance in the Seventh Degree. Appendix at A-ll -A-12. On November 3, 2000, Mr. Pignataro entered a guilty plea in satisfaction of the indictment. Joel Daniels, Esq. represented him at that time. Appendix at A-44. During the plea colloquy, the Supreme Court for Erie County (Rossetti, J.) advised him that, as a second felony offender, it could sentence him to a determinate term of incarceration from five to fifteen years. Appendix at A-54. The Court did not make a sentencing commitment. Appendix at A-54 -A-55. Mr. Pignataro then pled guilty to one count of Attempted Assault in the First Degree. Appendix at A- 56 - A-57, A-60. The Court did not advise Mr. Pignataro of its obligation to 3 impose post-release supervision. On February 9, 2001, the Supreme Court convicted Mr. Pignataro of one count of Attempted Assault in the First Degree and imposed a sentence of fifteen years determinate incarceration without imposing post-release supervision. The Court sentenced him as a second felony offender and made the time consecutive to a previously imposed term. Appendix at A-10, A-94. First Motion to Vacate the Conviction On February 21, 2003, Mr. Pignataro moved to vacate the judgment, pursuant to Section 440.10 of the Criminal Procedure Law. Appendix at A-98- A- 99. He argued that the plea was constitutionally defective because it was involuntary, unknowing and unintelligent as a matter of law. Specifically, the Court failed to advise him that he was liable to serve a period of post-release supervision on his release from prison. Appendix at A -101. Should Mr. Pignataro violate the terms of his post-release supervision, he could return to prison and thus serve a period of incarceration beyond the time to which Court advised him during the plea colloquy. Appendix at A -108. The People opposed vacating the conviction. Appendix at 123 - 127. The Supreme Court (Rossetti, J.) denied the motion on April 16, 2003. Appendix at A -12 8 - A -131. Current Motion to Vacate the Conviction On March 28, 2012, at the initial re-sentencing proceeding pursuant to 4 Section 70.85 of the Penal Law, which the District Attorney of Erie County initiated, Mr. Pignataro moved to vacate his conviction. Appendix at A-32. He argued that his plea was unconstitutional, relying on Judge Eugene Pigott's dissent in People v. Paul Boyd, 12 N.Y.3d 390 (2009). Appendix at A-33, A-37. He also asked that the Court adjourn the re-sentencing pending the outcome of his federal habeas corpus petition. Appendix at A-36. Further, he argued that Section 70.85 does not preclude the Defendant from withdrawing the plea. Appendix at A-38. The plea itself is unconstitutional. Appendix at A-40. Re-Sentence Proceeding On May 4, 2010, the Supreme Court (Michalski, J.) denied all motions and re-sentenced Mr. Pignataro. Appendix at A-13. Brian McNamara, Esq. and Michael Hillery, Esq. represented the People. Mr. McNamara noted that, while Mr. Pignataro had pled guilty to one count of Attempted Assault in the First Degree, a class-C violent felony, the Court never sentenced him to post-release supervision. The statute at that time required a period of five-year post-release supervision. Appendix at A -14. Pursuant to Section 70.85 , Mr. McNamara stated that the People would consent to re-sentencing Mr. Pignataro to the original sentence without the post- release supervision. Appendix at A -14. He requested that the Court re-sentence Mr. Pignataro accordingly. Appendix at A -14 - A -15. 5 Joel Daniels, Esq. and Anthony Lana, Esq. represented Mr. Pignataro. Mr. Daniels opposed the application for re-sentencing on constitutional grounds. Concurrently, Mr. Pignataro was challenging the voluntariness of the plea and the constitutionality of Section 70.85 in federal court. Appendix at A-15. While the district court denied his habeas corpus petition, the Second Circuit granted permission for him to appeal. Appendix at A -15 - A -16. 1 Because the Second Circuit appeal was pending, the People were premature in its application for are- sentencing. Mr. Daniels asked the Supreme Court to do one of two things: vacate the plea or withhold judgment until the Second Circuit has rendered its decision. Appendix at A -16. Mr. Daniels then discussed at length why the Court should vacate the plea. At that time that Mr. Pignataro entered the plea, the Court (Rossetti, J.) did not inform him that post-release supervision would be mandatory. The Court then sentenced without such a term. Appendix at A-17. The sentence was a determinate term of incarceration of fifteen years. Appendix at A -17 - A -18. Because of this failure, Mr. Pignataro's plea was not made knowingly, intelligently, or voluntarily. Appendix at A-18. Section 70.85 thus raises 1Forty-five days after Supreme Court re-sentenced Mr. Pignataro to his original sentence without post-release supervision, the Second Circuit affirmed the denial of Mr. Pignataro's federal petition for a Writ of Habeas Corpus, citing, inter alia, the re-sentencing. Anthony Pignataro v. Thomas Poole , 381 Fed. Appx. 46 at 50. (C.A.2d, NY, 2010). 6 constitutional issues by allowing the Court to deem an unconstitutional plea to be valid. Appendix at A-20. Mr. Daniels relied on Judge Pigott's dissent in Boyd. The Legislature cannot declare that an invalid plea is valid simply to avoid a backlog of cases. Appendix at A-21- A-22. Mr. Hillery, in response, argued that Section 70.85 is presumptively constitutional. Further, he acknowledged that, unless the Court informs the Defendant of post-release supervision, it cannot legally impose that aspect of the sentence. Appendix at A-25. The only thing that the People were seeking was for the Court to sentence Mr. Pignataro to his original sentence without the post- release supervision. Appendix at A-25 - A-26. Mr. Hillery averred that the Supreme Court should defer the constitutional issue to the Court of Appeals. Appendix at A-26. Mr. Daniels rebutted by stating that it is irrelevant that the Defendant may have received the full benefit of the original plea because the plea itself is unconstitutional. Appendix at A-26. Mr. Pignataro stated that it was not the Legislature's intent, when enacting Section 70.85, to prohibit Defendants from withdrawing their pleas. Appendix at A-28. The Court re-sentenced Mr. Pignataro to a determinate term of fifteen years incarceration, consecutive to a term imposed under Indictment 1980-97. The Court did not impose a term of post-release supervision. Appendix at A-30. 7 Practice Before the Appellate Division Mr. Pignataro filed a Notice of Appeal relative to the re-sentencing on May 7, 2010 and served it on the District Attorney. Appendix at A -7 - A -8. He perfected the appeal prose. Mr. Hillery filed a brief on the People's behalf. The Appellate Division appointed Charles J. Greenberg, Esq. to argue the appeal and to prepare an application to the Court of Appeals in the event that it affirmed the re-sentencing. The Parties argued the case on March 1, 2012. Order of the Appellate Division On March 16, 2012, the Appellate Division entered an order unanimously affirming the re-sentence. Appendix at A-3. Practice Before the Court of Appeals Mr. Greenberg applied to the Court of Appeals for permission to appeal to that Court. On October 24, 2012, the Court of Appeals (Phillips-Read, J.) granted permission to appeal to that Court. Appendix at A-2. On January 8, 2013, the Court of Appeals formally appointed Mr. Greenberg to represent Mr. Pignataro, and granted poor-person relief. The Erie County District Attorney has represented the People during all stages of this matter. The parties settled the Appendix for the Court of Appeals on January 2, 2013. Appendix at A-134. 8 Point One Section 70.85 of the Penal Law is unconstitutional because it denied the Defendant-Appellant of his right to withdraw his plea when produced for re- sentencing thereby violating his due process and equal protection rights under the Fourteenth Amendment to the United States Constitution and Article 1, Section 6 of the New York State Constitution. The essential fact in this case, that the Supreme Court failed to advise Mr. Pignataro of his obligation to serve a period of post-release supervision on the completion of his determinate term, is not in dispute. The issue before the Court of Appeals is whether Section 70.85 of the Penal Law, which allowed the Supreme Court to re-sentence Mr. Pignataro to his original sentence without post-release supervision, and which denied him the right to withdraw the original plea, is constitutional, either on its face or as applied to Mr. Pignataro. We respectfully submit that Section 70.85 of the Penal Law violates the due process and equal protection clauses of both the Fourteenth Amendment of the United States Constitution and Article 1, Section 6 of the New York State Constitution because it allows the Court to retroactively enter a conviction that was obtained in a manner contrary to the Defendant's due process and equal protection rights. As Judge Pigott noted in his dissent in Boyd, Section 70.85 "permits the District Attorney to consent to a re-sentence to a term without any post-release 9 supervision in situations where the defendant has moved to vacate his plea on the ground that it was obtained in violation of his constitutional rights under Catu. Although the amendment provides a defendant with an opportunity to seek a new, more favorable sentence, when a constitutional error under Catu is involved, there must be a new plea." People v. Paul Boyd, 12 N.Y.3d 390 at 398 (2009). In People v. Randolfo Catu, 4 N.Y.3d 242 (2005), the Court of Appeals explicitly stated, "Because a defendant pleading guilty to a determinate sentence must be aware of the post-release supervision component of that 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." ld., at 245. Further, it is not the Defendant's sentencing expectations that the Supreme Court violated by failing to advise him of his obligation to serve a term of post- release supervision, but his due process rights. People v. Anthony Hill, 9 N.Y.3d 189 at 193 (2007). Thus, the Supreme Court must give the Defendant the opportunity to withdraw his plea, as Judge Pigott noted in his dissent in Boyd. Boyd, at 398. He firmly stated that "Neither the Court nor the Legislature can require a Defendant to accept a plea that was unconstitutionally obtained." ld. In Hill, the Supreme Court failed to advise the Defendant of his obligation to serve a period of post-release supervision when he pled guilty to Rape in the 10 First Degree. His original sentence was a determine term of incarceration of fifteen years. To remedy the Catu error, the Supreme Court vacated the original sentence and re-sentenced the Defendant to twelve and a half years determinate incarceration and two and a half years of post-relea'se supervision. Hill, at 192. The Court of Appeals rejected this remedy, and vacated the conviction, stating, "at the time of his plea, defendant was not informed that a period of post- release supervision would follow his term of incarceration. Thus, defendant did not possess the requisite information knowingly to waive his rights and must be permitted to withdraw his plea. That the trial court ultimately re-sentenced defendant to a total period of incarceration ... plus post-release supervision ... equal to his originally promised sentence of incarceration does not change this conclusion." !d. Again, because the "constitutional defect lies in the plea itself and not in the resulting sentence, vacatur of the plea is remedy for a Catu error since it returns a defendant to his or her status before the constitutional infirmity occurred." !d., at 191. Harmless Error Analysis Does Not Apply The People may argue that error was harmless, in that the Supreme Court re- sentenced Mr. Pignataro to his original sentence. In response, we note that the Court of Appeals has held that the "harmless error doctrine is inapposite when analyzing remedies for Catu errors." !d., at 192, citing People v Armet Coles, 62 11 N.Y.2d 908 (1984). In Coles, the Court of Appeals observed that "harmless error rules were designed to review trial verdicts and are difficult to apply to guilty pleas." !d. Thus, by vacating the conviction in Hill, the Court of Appeals explicitly rejected applying the harmless error doctrine for that case's Catu error. Similarly, the Court of Appeals, in People v Cornell Louree, 8 N.Y.3d 541 at 545 (2007), held it "irrelevant that the prison sentence added to post-release supervision is within the range of prison time promised at the allocution." Further, the Defendant does not have to show that he would have declined to plead guilty had he been aware of the requirement of post-release supervision. !d. Further, the Court of Appeals did not apply the harmless error doctrine in People v. Tammi Van Deusen, 7 N.Y.3d 744 (2006), where the Defendant therein received a total sentence, including the post-release supervision component, less than for what she originally bargained. Notwithstanding this favorable treatment, the Court of Appeals vacated the conviction, holding that the plea was not knowing, intelligent or voluntary simply because the Chenango County Court failed to advise her of the mandatory post-release supervision. Supreme Court was Obligated to Allow Withdrawal of the Plea As Mr. Pignataro and his attorneys noted in the argument before the Supreme Court, Section 70.85 allows the Court and the Prosecutor to bypass the Defendant's due process and equal protection rights and impose a constitutionally 12 impermissible plea on the Defendant. Indeed, the literal language of Section 70.85 does not require that the Defendant consent to the re-sentencing, thereby suggesting that the District Attorney has a veto on whether the Defendant may withdraw his plea. 2 The Fourth Department appears to have suggested that the Supreme Court, in cases where Section 70.85 applies, must first allow the District Attorney to consent to the re-sentencing without post-release supervision. Only if the District Attorney does not consent to a re-sentencing without post-release supervision would the Defendant be allowed to withdraw his plea. People v. Barry Verhow, 83 A.D.3d 1528 (4th Dep't., 2011). If that is the Fourth Department's interpretation of Section 70.85, we respectfully ask that the Court of Appeals reject it. The literal language of Section 70.85 does not preclude or prohibit the Defendant from withdrawing his plea. Further, as the Court of Appeals observed shortly before the Fourth Department determined Verhow, "A trial court has the constitutional duty to advise a defendant 2 Governor David Paterson noted in his Memorandum in Support of the Bill that a Defendant who pleads guilty without having been informed that the sentence may include post-release supervision may later seek to vacate the plea. Section 70.85 would avoid the need to vacate the plea should the District Attorney consent to the re-sentencing. Governor's Approval Memorandum, 2008 McKinney's Session Law ofNew York at 1653, emphasis added. Again, we must emphasize that this language does not "prohibit, "preclude" or even "prevent" the Defendant from withdrawing his plea. Similar conditional language ("should") is also used in the Senate 's Introducer Memorandum, 2008 McKinney' s Session Law ofNew York at 1820. 13 of the direct consequences of a guilty plea, including any period of post-release supervision . . . that will be imposed as part of the sentence. . . . Due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. ... [T]he failure of a court to advise of post-release supervision requires reversal of the conviction." ... Further, where a trial judge does not fulfill the obligation to advise a defendant of post-release supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a post-allocution motion. . . . " People v. Barak Cornell, 16 N.Y.3d 801 (2011), internal citations omitted. Emphasis added. Thus, the Supreme Court erred in not allowing Mr. Pignataro to withdraw his plea. Further, in the instant appeal, the Fourth Department relied on its decision in People v. Gabriel Williams, 82 A.D.3d 1576 (4th Dep't., 2011), leave denied, 17 N.Y.3d 810 (2011), to affirm the re-sentencing. That decision merely affirmed that the Supreme Court has the authority to re-sentence the Defendant to a term without post-release supervision, with the District Attorney's consent, pursuant to Section 70.85, and did not reach the constitutional issue. As such, we are not disputing that Section 70.85 grants the Supreme Court this authority, as our argument is that such a grant violates the Defendant's due process and equal 14 protection rights. Conclusion The Court of Appeals is compelled to vacate the Supreme Court's Decision and Order of May 4, 2010 because section 70.85 of the Penal Law is unconstitutional, both on its face and as applied to Mr. Pignataro. As the Dissent noted in Boyd, neither the Legislature nor the Courts may compel a Defendant to accept a plea that was unconstitutionally obtained. Contrary to what the People may argue, the issue goes to the integrity of the plea itself, and not whether Mr. Pignataro received the benefit of negotiated plea. Section 70.85 forces him to retroactively accept an unconstitutional plea. Thus, the Court of Appeals should vacate the Order of May 4, 2010 and remand the matter for a new hearing, wherein the Defendant- Appellant should be afforded an opportunity to vacate his plea should he choose to do so. WHEREFORE WE PRAY that the Court of Appeals 1. Vacate the Order of May 4, 2010 and remand the matter to the Supreme Court for Erie County for further proceedings. 15 2. Grant additional relief as the Court deems necessary. Dated: January 29, 2013 Buffalo, New York 16 Respectfully Submitted Charles J. Greenberg'f Esq. Attorney for the Appellant 3 840 East Robinson Road - #318 Amherst, New York 14228-2001 (716) 695-9596 ChuckLaw7 6@buffalo.com