The People, Respondent,v.Anthony S. Pignataro, Appellant.BriefN.Y.November 12, 2013To be argued by: JODI A. DANZIG 10 minutes requested Supreme Court, Erie County, Indictment No. 99-01663 APL-2012-00312 State of New York Court of Appeals PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY PIGNATARO, Defendant-Appellant, and ATTORNEY GENERAL OF THE STATE OF NEW YORK, Intervenor. BRIEF FOR INTERVENOR ATTORNEY GENERAL BARBARA D. UNDERWOOD Solicitor General ROSEANN B. MACKECHNIE Deputy Solicitor General for Criminal Matters JODI A. DANZIG Assistant Attorney General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Intervenor 120 Broadway, 12th floor New York, New York 10271 (212) 416-8820 (212) 416-8010 (facsimile) Jodi.Danzig@ag.ny.gov Dated: April 25, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES.......................................................................ii PRELIMINARY STATEMENT.................................................................. 1 STATEMENT OF THE CASE ................................................................... 4 A. The Origin and Purpose of Penal Law § 70.85 ....................... 4 B. Factual and Procedural History ............................................ 15 1. Defendant Pleads Guilty .............................................. 15 2. The Court Imposes Sentence........................................ 16 3. Defendant Moves to Vacate His Conviction ................ 17 4. The Court Resentences Defendant............................... 18 5. Defendant Seeks Federal Habeas Corpus Relief......... 20 6. The Appellate Division Affirms the Resentence.......... 21 ARGUMENT............................................................................................. 22 POINT I PENAL LAW § 70.85 PROTECTED DEFENDANT’S RIGHT TO DUE PROCESS BY AUTHORIZING THE TRIAL COURT TO RE-IMPOSE EXACTLY THE SENTENCE THAT IT PROMISED DEFENDANT WHEN HE PLED GUILTY ........................................................................................... 22 POINT II DEFENDANT’S FACIAL CHALLENGE AND EQUAL PROTECTION CLAIM ARE UNPRESERVED AND MERITLESS.................................................................................... 33 CONCLUSION ......................................................................................... 37 EXHIBIT ................................................................................................. end ii TABLE OF AUTHORITIES Cases Page County Court of Ulster County v. Allen, 442 U.S. 140 (1979) ......................................................................9-10 Earley v. Murray, 462 F.3d 147 (2d Cir. 2006)................................................7-8, 18, 24 Earley v. Murray, 451 F.3d 71 (2d Cir. 2006)........................................................7-8, 24 Flanagan v. Prudential-Bache Sec., Inc., 67 N.Y.2d 500 (1986) ......................................................................... 9 Garner v. New York State Dep’t of Correctional Servs., 10 N.Y.3d 358 (2008) ............................................................... passim People v. Baumann & Sons Buses, 6 N.Y.3d 404 (2006) ......................................................................... 34 People v. Boyd, 12 N.Y.3d 390 (2009) ............................................................13-14, 26 People v. Boyd, 51 A.D.3d 325 (1st Dep’t 2008) ....................................................... 13 People v. Catu, 4 N.Y.3d 242 (2005) ................................................................. passim People v. Chiacchiarini, 91 A.D.3d 1118 (3d Dep’t 2012) ................................................ 14, 26 People v. Davis, 13 N.Y.3d 17 (2009) ......................................................................... 35 iii People v. Esposito, 32 N.Y.2d 921 (1973) ....................................................................... 32 People v. Esposito, 40 A.D.2d 801 (1st Dep’t 1972) ....................................................... 32 People v. Ford, 86 N.Y.2d 397 (1995) ....................................................................... 23 People v. Hill, 9 N.Y.3d 189 (2007) ..........................................................8, 23, 29-31 People v. Louree, 8 N.Y.3d 541 (2007) ..................................................................... 8, 23 People v. Pignataro, 93 A.D.3d 1250 (4th Dep’t 2012)..................................................... 21 People v. Pignataro, 20 A.D.3d 892 (4th Dep’t 2005)....................................................... 17 People v. Robinson, 88 N.Y.2d 1001 (1996) ..................................................................... 33 People v. Selikoff, 35 N.Y.2d 227 (1974) ....................................................................... 32 People v. Sparber, 10 N.Y.3d 457 (2008) ............................................................... passim People v. Stuart, 100 N.Y.2d 412 (2003) ................................................................34-35 People v. Torres, 45 N.Y.2d 751 (1978) ..................................................................27-28 People v. Van Deusen, 7 N.Y.3d 744 (2006) ............................................................... 8, 23, 29 iv People v. Verhow, 83 A.D.3d 1528 (4th Dep’t 2011)..................................................... 14 People v. Williams, 82 A.D.3d 1576 (4th Dep’t 2011)..................................................... 14 Pignataro v. Poole, 381 Fed. Appx. 46 (2d Cir. 2010) .........................................20-21, 24 Santobello v. New York, 404 U.S. 257 (1971) ....................................................................26-27 Wilson v. McGinnis, 413 F.3d 196 (2d Cir. 2005)............................................................. 25 Statutes 28 U.S.C. § 2254...................................................................................20-21 Correction Law § 601-d .......................................................................10-11 Criminal Procedure Law § 440.10 .......................................................................................17-18 § 470.05 ............................................................................................ 33 Executive Law § 71..................................................................................... 1 L. 1998, ch. 1 ............................................................................................... 4 L. 2008, ch. 141......................................................................................... 10 Penal Law § 70.45 .......................................................................................... 4, 16 § 70.85 ...................................................................................... passim § 110.00 ............................................................................................ 15 § 120.10 ............................................................................................ 15 v Articles and Commentaries Mark Bonacquist, Practice Commentaries, Correction Law § 601-d (McKinney 2003 & Supp. 2009) .............. 11 Brian Fischer, Keynote Address at Fordham University School of Law’s “Conditions of Confinement” Colloquium, published in 36 Fordham Urb. L. J. 1 (2009)................................... 5 Barry Kamins, New Criminal Law and Procedure Legislation, 81 (Feb.) N.Y. St. B. J. 28 (2009) .................................................... 12 Legislative Materials Div. of the Budget Bill Memorandum approving Senate Bill No. 8714 (June 27, 2008), in Bill Jacket to L. 2008, ch. 141 .................................................... 10 Governor’s June 30, 2008 memorandum approving L. 2008, ch. 141, in 2008 N.Y. Sess. Laws 1653-54 (McKinney) ................................. 4 New York State Senate’s memorandum in support of L. 2008, ch. 141, in 2008 N.Y. Sess. Laws 1818-20 (McKinney) ................................. 4 PRELIMINARY STATEMENT The Attorney General intervenes pursuant to Executive Law § 71 to defend the constitutionality of Penal Law § 70.85. This statute was enacted in 2008 to correct a problem that had arisen in the wake of this Court’s decisions in Garner v. New York State Dep’t of Correctional Servs., 10 N.Y.3d 358 (2008), and People v. Sparber, 10 N.Y.3d 457 (2008). In those cases, this Court held that, when a sentencing court does not expressly pronounce a term of postrelease supervision (“PRS”), then PRS is not part of the defendant’s sentence, even though the sentence might be illegal under state law without the term of PRS. Because many defendants had pled guilty without having been told by the plea or sentencing court that PRS was a mandatory component of their sentences, and because this Court had indicated that the sentencing flaw uncovered by Garner and Sparber could be cured by appropriate resentencing procedures, the Legislature promptly enacted Penal Law § 70.85. The statute provides that, under certain circumstances, upon consent of the district attorney, the court may re-impose the defendant’s original prison sentence without any term of PRS, and that such sentence shall be deemed lawful. 2 The defendant in this case, Anthony Pignataro, pled guilty in 2000 to attempted assault in the first degree and was sentenced to 15 years’ imprisonment. Under the Penal Law, a 5-year term of PRS was mandatory but, as in many other cases at that time, the court did not: (a) advise defendant of PRS in connection with his plea, or (b) pronounce a term of PRS at sentencing. In 2010, on consent of the Erie County District Attorney, defendant was resentenced pursuant to § 70.85 to 15 years’ imprisonment and no PRS — the exact sentence that the plea court had promised and that the sentencing court originally had pronounced. Defendant claims that resentencing him under § 70.85 violated his right to due process because the court should have vacated his plea instead, on the ground that he was unaware when he pled guilty that his sentence included PRS and, therefore, his plea was involuntary. We demonstrate below that resentencing defendant under Penal Law § 70.85 did not violate his right to due process. As the Second Circuit held in denying defendant’s petition for federal habeas corpus relief, the plea court’s failure to advise defendant about PRS did not 3 render the plea involuntary — and did not require vacatur — because PRS was not a direct consequence of defendant’s conviction. Even if the plea court’s failure to mention PRS rendered defendant’s plea involuntary ab initio, vacatur still is not required. The court’s failure to mention PRS amounted to a promise not to impose PRS. And, while defendant’s guilty plea would have been defective if the court had broken that promise, Penal Law § 70.85 gave the court the legal means to keep its promise — by permitting the court to re-impose defendant’s original 15-year prison sentence without PRS. Consequently, no constitutional violation occurred requiring vacatur of the plea. Finally, defendant claims that Penal Law § 70.85 is unconstitutional on its face, and that it violates his constitutional right to equal protection. Those claims are unpreserved for this Court’s review as well as meritless. 4 STATEMENT OF THE CASE1 A. The Origin and Purpose of Penal Law § 70.852 In 1998, the Legislature changed the sentencing scheme for persons convicted of violent felonies. L. 1998, ch. 1, § 15 (codified at Penal Law § 70.45). Under prior law, the sentence for a violent felony, as for most other crimes, consisted of a term of incarceration with a maximum expiration date and a parole eligibility date. Thus, the time actually served by the offender was determined in the highly discretionary parole process. Under the new law, known as “Jenna’s Law” for a young woman murdered by a man who had been released on parole after serving two-thirds of his sentence, the sentence for a violent felony includes a fixed (or “determinate”) prison term, followed by a specified period of PRS ranging from 1 to 5 years. 1 Numbers in parentheses preceded by “A.” refer to the page numbers in the Appendix. 2 The information in this section is taken primarily from the Governor’s June 30, 2008 memorandum approving L. 2008, ch. 141, in 2008 N.Y. Sess. Laws 1653-54 (McKinney), and the New York State Senate’s memorandum in support of L. 2008, ch. 141, in 2008 N.Y. Sess. Laws 1818-20 (McKinney). Where appropriate, additional references are cited in the text. 5 PRS served some of the same functions as parole, providing a transition from incarceration to unsupervised life in the community. But there were important differences. Parole was discretionary, was determined long after the sentencing date, and did not add any time to the previously-imposed term of imprisonment because it resulted from releasing the prisoner before the expiration of the term. By contrast, PRS was mandatory, was determined at the time of sentence, and constituted an additional period of time to follow the imposed term of imprisonment. The new law, however, did not expressly require the court to pronounce the PRS term at sentencing. And because many judges considered PRS to be an automatic feature of a determinate sentence, they often failed to pronounce it. Likewise, prosecutors, defense attorneys, and judges often failed to mention PRS during plea negotiations and at plea proceedings. See Brian Fischer, Keynote Address at Fordham University School of Law’s “Conditions of Confinement” Colloquium, published in 36 Fordham Urb. L. J. 1, 5 (2009). 6 Because Jenna’s Law required that a term of PRS accompany every determinate violent-felony sentence, the Department of Correctional Services (“DOCS”),3 the agency charged with computing the sentences of prison inmates, calculated the required term of PRS for each defendant sentenced under the law, and included that term in the sentence — whether or not the sentencing court explicitly had pronounced the PRS. This practice continued for several years. Ultimately, two different types of challenges were made to this practice. Some defendants sought to vacate their guilty pleas, arguing that PRS was a mandatory component of the sentence and, hence, the court’s failure to mention it at the plea proceeding rendered the guilty plea involuntary. Other defendants sought to retain their guilty pleas and, instead, remove the unpronounced term of PRS that DOCS had added administratively. According to those defendants, the court’s failure to pronounce PRS at sentencing meant that PRS was omitted from the sentence, notwithstanding the statutory mandate to include it. 3 The agency is now the Department of Corrections and Community Supervision (“DOCCS”). 7 The first case to reach this Court, People v. Catu, 4 N.Y.3d 242 (2005), involved a challenge to the voluntariness of a plea. In Catu, the Court held that mandatory PRS is a direct consequence of a criminal conviction and, therefore, a court’s failure to advise the defendant about PRS before accepting his guilty plea renders the plea involuntary and compels vacatur. Id. at 244-45. In Catu, neither the parties nor the Court raised the possibility that the sentencing court’s failure to pronounce PRS meant that Catu had not, in fact, been sentenced to PRS. However, the following year, the United States Court of Appeals for the Second Circuit reached that very conclusion in a federal habeas corpus case. In Earley v. Murray (“Earley I”), 451 F.3d 71, 75-76 (2d Cir. 2006), and Earley v. Murray (“Earley II”), 462 F.3d 147, 149-50 (2d Cir. 2006) (rehearing denied), the court held that a term of PRS cannot, consistent with the federal Constitution, be imposed on a defendant without being pronounced by a judge. The court ruled that, if Earley’s habeas petition was timely, the state had to release him from the unpronounced term of PRS and its consequences, Earley I, 451 F.3d 8 at 76-77, subject to the possibility of curing the defect at a resentencing proceeding. Earley II, 462 F.3d at 149. For several years, the state courts disagreed about the necessity of pronouncing PRS at sentencing, and a period of uncertainty ensued concerning the legal consequences of unpronounced PRS.4 In a pair of cases decided in April of 2008, this Court addressed the issue as a matter of state statutory law. In Garner v. New York State Dep’t of Correctional Servs., 10 N.Y.3d 358 (2008), the Court ruled that PRS “is not automatically included in the pronouncement of a determinate sentence” and “a defendant has a statutory right to have that punishment imposed by the sentencing judge.” Id. at 363. In People v. Sparber, 10 N.Y.3d 457 (2008), which involved defendants who 4 During that period, this Court applied Catu to vacate the guilty pleas of three defendants who were sentenced to PRS without having been advised at plea that PRS was a mandatory component of their sentences. In two of those cases, the Court held that the failure to mention PRS at the plea was not cured by sentencing (or resentencing) the defendant to a total period of imprisonment and PRS shorter than, or equal to, the period of imprisonment alone that originally was promised. See People v. Van Deusen, 7 N.Y.3d 744, 745-46 (2006); People v. Hill, 9 N.Y.3d 189, 192-93 (2007). In the third case, the Court held that the error was not cured by adding to the PRS a prison term that was within the originally promised range of prison time. See People v. Louree, 8 N.Y.3d 541, 543-56 (2007). 9 had been convicted after trial as well as defendants who had pled guilty, the Court ruled that only the sentencing court is authorized to impose a period of PRS, id. at 470, and that the “sole remedy” for a court’s failure to do so “is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement.” Id. at 471. In short, the case law holds that a judge must explicitly pronounce a term of PRS — at either the initial sentencing proceeding or a subsequent resentencing proceeding — for the PRS to be valid as a matter of state law, and perhaps also as a matter of federal constitutional law.5 5 This Court has never definitively ruled on whether a sentencing court’s failure to pronounce a term of PRS renders the term deficient as a matter of federal constitutional law. See Garner, 10 N.Y.3d at 363 (holding that “a defendant has a statutory right to have [PRS] imposed by the sentencing judge”); Sparber, 10 N.Y.3d at 471 n.5 (declining to reach the defendants’ federal constitutional claims). Although the Second Circuit grounded its Earley rulings in federal due process law, neither this Court nor the lower courts are bound by that ruling, and are entitled to reach their own conclusions about the meaning of the federal Constitution. See Flanagan v. Prudential-Bache Sec., Inc., 67 N.Y.2d 500, 506 (1986). To the extent that there is disagreement between the state and federal courts, only the Supreme Court would be able to resolve the conflict. See, e.g., County Court of Ulster County v. 10 Because the above decisions cast doubt on the validity of the sentences of thousands of the state’s most dangerous felons, DOCS, the Division of Parole, the district attorneys, the defense bar, and law enforcement groups, with the cooperation and assistance of the Office of Court Administration, moved quickly to propose legislation that would cure the plea and sentencing defects noted by this Court in Catu, Garner, and Sparber. The new statutory provisions, which took effect on June 30, 2008, included, inter alia, Penal Law § 70.85 and Correction Law § 601-d. L. 2008, ch. 141, §§ 2, 5. The purpose of the provisions was to provide “for a prompt, fair, and careful response to [Garner and Sparber] which ruled against longstanding practices for determining the supervision terms of violent felons,” Div. of the Budget Bill Memorandum approving Senate Bill No. 8714, at ¶ 1 (June 27, 2008), in Bill Jacket to L. 2008, ch. 141, and to avoid vacatur of guilty pleas under Catu. Correction Law § 601-d established a procedure for resentencing violent felony offenders who had received determinate prison sentences Allen, 442 U.S. 140, 145-47, 163-67 (1979) (agreeing with this Court’s ruling over the Second Circuit’s contrary decision). 11 under Jenna’s Law, but whose mandatory periods of PRS were not pronounced orally at sentencing or in writing on their commitment orders. See Mark Bonacquist, Practice Commentaries, Correction Law § 601-d (McKinney 2003 & Supp. 2009). The procedure could be applied to any defendant sentenced after trial. It also could be applied to a defendant sentenced on a plea, unless the defendant had not been advised of PRS in connection with his plea and wished to withdraw the plea. Penal Law § 70.85, the statute at issue in this appeal, was designed to work in tandem with Correction Law § 601-d. It authorized the resentencing court, under certain circumstances, to impose a determinate sentence without any period of PRS. Titled “Transitional exception to determinate sentencing laws,” § 70.85 provides: This section shall apply only to cases in which a determinate sentence was imposed between September first, nineteen hundred ninety-eight, and the effective date of this section [June 30, 2008], and was required by law to include a term of post-release supervision, but the court did not explicitly state such a term when pronouncing sentence. When such a case is again before the court pursuant to section six hundred one-d of the correction law or otherwise, for consideration of whether to resentence, the court may, notwithstanding any other provision of law but only on consent of the district attorney, re-impose the originally imposed determinate 12 sentence of imprisonment without any term of post- release supervision, which then shall be deemed a lawful sentence. Penal Law § 70.85 thus allows a court to forego sentencing a designated violent felon to what ordinarily would be a mandatory period of PRS, if the original sentencing court failed to pronounce PRS as part of the sentence, and if the prosecutor consents. In other words, the statute makes lawful the sentence imposed by a court that failed to pronounce PRS, provided that the prosecutor consents. The provision, although not limited to cases involving guilty pleas, see Barry Kamins, New Criminal Law and Procedure Legislation, 81 (Feb.) N.Y. St. B. J. 28, 29 (2009), primarily was intended to avoid vacating pleas deemed invalid after Catu.6 6 Richard de Simone, Associate Counsel in charge of the DOCCS Office of Sentencing Review, has informed us that, between the effective date of Penal Law § 70.85 and April 23, 2013, trial courts have issued approximately 3,775 orders resentencing defendants to terms of imprisonment without PRS under the statute. Although that figure includes cases involving jury verdicts as well as guilty pleas, a reasonable estimate is that roughly 3,600 of those orders were issued in cases involving guilty pleas, in light of DCJS data showing that, from 1998 to 2008, 96.3% of all felony convictions in New York State resulted from guilty pleas. See “New York State Felony Convictions — Guilty Pleas and Guilty Trial Verdicts 1998 to 2008” (prepared by DCJS for this brief, and appended as an exhibit). 13 In People v. Boyd, 12 N.Y.3d 390 (2009), this Court faced, but declined to consider, a challenge to the constitutionality of Penal Law § 70.85. The plea court in Boyd had advised the defendant that PRS was part of his sentence, but failed to specify the term. Citing Catu and its progeny, the Appellate Division vacated the plea. Boyd, 51 A.D.3d 325 (1st Dep’t 2008). On appeal to this Court, the People argued that, under newly-enacted § 70.85, the trial court was authorized to resentence the defendant to his original prison term without PRS. However, noting that the constitutionality of § 70.85 and its application to the case had “not been sufficiently developed” for review, the Court declined to decide whether the statute was constitutional and, instead, remitted the matter to the trial court “to give the People the opportunity to litigate their argument regarding the applicability of Penal Law § 70.85 and for defendant to assert any constitutional challenges to the operation of the statute.” 12 N.Y.3d at 394. Although Judge Pigott would have held that § 70.85 was unconstitutional as applied to Boyd and, as a result, the plea had to be vacated, id. at 396-99 (Pigott, J., dissenting), the majority concluded that the trial court, “in the first instance,” should determine “whether the deficiency 14 in the plea allocution [could] be rectified by granting defendant specific performance of the plea agreement — a determinate sentence without imposing a term of PRS.” Id. at 394.7 Following Boyd, the Third Department in People v. Chiacchiarini, 91 A.D.3d 1118 (3d Dep’t), lv. den., 19 N.Y.3d 863 (2012), under circumstances similar to those in defendant Pignataro’s case, determined that § 70.85 is constitutional: “[W]here defendant did not receive the period of postrelease supervision that should have been — but never was — imposed, we discern no constitutional infirmity and, hence, defendant [is] not entitled to vacatur of his plea.” Id. at 1119 (internal quotation marks and citations omitted). Other appellate courts have approved of § 70.85, without specifically addressing the statute’s constitutionality. See People v. Verhow, 83 A.D.3d 1528 (4th Dep’t 2011); People v. Williams, 82 A.D.3d 1576, 1577 (4th Dep’t), lv. den., 17 N.Y.3d 810 (2011). 7 The New York County District Attorney’s Office has informed us that Boyd ultimately accepted a sentence without PRS and did not press his constitutional challenge. 15 B. Factual and Procedural History 1. Defendant Pleads Guilty Defendant, a former medical doctor, tried to kill his wife by putting arsenic in her food. Defendant’s wife survived, but suffered serious physical injury as an immediate result, and lifelong disabilities. For that conduct, defendant was charged with attempted murder in the second degree and assault in the first degree, in addition to other crimes. (A. 11-12.) On November 3, 2000, defendant agreed to plead guilty to Attempted Assault in the First Degree (Penal Law §§ 110.00, 120.10(1)), a class C violent felony offense, in full satisfaction of the indicted charges. In exchange for his plea, defendant agreed to withdraw all pretrial motions, waive his right to appeal, and admit that he was a second-felony offender.8 (A. 48-49.) At the plea proceeding, the court informed defendant that the law mandated a determinate prison term of at least 5 and at most 15 years, and that the court would not make a sentencing commitment before defendant entered his plea. (A. 54-55.) 8 In 1998, defendant was convicted of one count of criminally negligent homicide, a class E felony, and sentenced to an indeterminate prison term of 11/3 to 4 years. (A. 66-68.) 16 In fact, the law also required the court to impose a 5-year period of PRS, see Penal Law § 70.45, but the court made no mention of PRS at the plea proceeding. The court conducted an extensive inquiry to establish that defendant understood the consequences of his guilty plea and that his decision to plead guilty was knowing, intelligent, and voluntary. (A. 50-61.) During the allocution, defendant admitted that he placed poison9 in his wife’s food with the intent to cause her serious physical injury. (A. 55-57.) 2. The Court Imposes Sentence On February 9, 2001, the court adjudicated defendant a second- felony offender, imposed a determinate prison term of 15 years, and ordered the sentence to run consecutively to the undischarged sentence for defendant’s prior conviction of criminally negligent homicide. (A. 66-69, 94-95.) At the sentencing proceeding, the court did not 9 Defendant stated that, at the time, he did not know that the substance he used was arsenic, but did know that it was harmful and could cause serious physical injury. (A. 56-57.) 17 pronounce a period of PRS or indicate that PRS would follow defendant’s prison term.10 3. Defendant Moves to Vacate His Conviction In February of 2003, defendant moved to vacate his judgment of conviction under Criminal Procedure Law (“C.P.L.”) § 440.10. He argued that his federal and state due process rights had been violated when the trial court accepted his guilty plea and waiver of his right to appeal without informing him that he faced a mandatory period of PRS that could have resulted in his serving additional prison time. (A. 98-122.) The court denied the motion as procedurally barred, ruling that defendant could have asserted his claim on direct appeal from his judgment of conviction. (A. 128-31) (citing C.P.L. § 440.10(2)(c).) The Fourth Department affirmed the order denying the motion. People v. Pignataro, 20 A.D.3d 892 (4th Dep’t 2005). 10 Defendant filed an untimely notice of appeal from his judgment of conviction, dated November 12, 2001. The People moved to dismiss the appeal, and defendant did not oppose the motion. The Fourth Department dismissed the appeal on September 16, 2002. Affidavit of ADA J. Michael Marion, sworn to on March 14, 2003, opposing defendant’s first § 440.10 motion, ¶¶ 7-9. (A. 124.) 18 4. The Court Resentences Defendant11 In the years that followed defendant’s sentencing, a series of judicial decisions made it appear that many defendants who were subject to mandatory PRS under Jenna’s Law had received defective sentences (because the court failed to pronounce a term of PRS at sentencing) or had entered involuntary guilty pleas (because the court failed to mention PRS at the plea). State and federal courts suggested that the first problem might be amenable to correction through a resentencing process. See, e.g., Earley v. Murray (“Earley II”), 462 F.3d 147, 149 (2d Cir. 2006); Garner v. New York State Dep’t of Correctional Servs., 10 N.Y.3d 358, 363 n.4 (2008). Indeed, in People v. Sparber, 10 N.Y.3d 457, 473 (2008), this Court ordered resentencing. To standardize the remedy, and to minimize the number of invalidated guilty pleas, the Legislature enacted Penal Law § 70.85, which 11 Shortly before resentencing, defendant pro se prepared a second motion to vacate his judgment of conviction pursuant to C.P.L. § 440.10, again arguing that the plea court’s failure to advise him about PRS rendered his guilty plea involuntary and, hence, required vacatur of the plea. (A. 32-43.) The record is unclear whether defendant ever filed that motion. The prosecutor did not submit an answer, and the court did not issue a written order denying the motion, although the court at resentencing denied an oral request by counsel to vacate defendant’s plea. (A. 18.) 19 authorizes a court to resentence a defendant to a term of imprisonment without PRS, if PRS was not pronounced at the original sentencing proceeding and certain other conditions were met. Defendant was eligible for resentencing under Penal Law § 70.85 because he was sentenced to a determinate term of imprisonment during the period covered by the statute, and the court failed to pronounce the mandatory period of PRS at sentencing. Defendant appeared for resentencing on May 4, 2010. The prosecutor consented to a resentence without PRS, so that defendant would have “the benefit of [his] initial bargain.” (A. 14.) Defendant asked the court either to vacate his plea on the ground that it was involuntary, or to adjourn the resentencing until the Second Circuit had decided his then-pending appeal from the order denying his federal habeas corpus petition. (A. 15-16.) Defendant challenged the constitutionality of Penal Law §70.85, arguing that, because the court had failed to inform him about PRS during the plea proceeding, his guilty plea was involuntary, § 70.85 was inadequate to cure the constitutional violation, and vacatur of the plea was the exclusive remedy. (A. 17-24.) 20 The court declined to vacate defendant’s plea or adjourn the proceeding. It resentenced defendant, under Penal Law § 70.85, to his originally promised 15-year determinate prison term without PRS. The sentence was to run consecutively to an earlier, unrelated and undischarged indeterminate prison sentence of 11/3 to 4 years. (A. 30.) 5. Defendant Seeks Federal Habeas Corpus Relief In a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, defendant again challenged the constitutionality of Penal Law § 70.85, and sought to withdraw his plea as involuntary because of the plea court’s failure to advise him about PRS. The district court dismissed the petition in an unpublished decision in March of 2009, before defendant was resentenced in state court. Following defendant’s resentencing, a unanimous panel of the Second Circuit affirmed the district court’s order of dismissal. Pignataro v. Poole, 381 Fed. Appx. 46 (2d Cir. 2010) (unpublished opinion). The panel concluded that the plea was not involuntary for failure to advise defendant about PRS, because PRS was not a direct consequence of defendant’s conviction. Moreover, notwithstanding the fact that PRS was mandated by statute, PRS was 21 not part of defendant’s sentence because it was not pronounced at sentencing. Id. at 49-50. The panel noted that this Court had not yet determined whether resentencing under Penal Law § 70.85 cures the failure to advise a defendant about PRS, id. at 49 n.1, but concluded that petitioner suffered no constitutional violation that warranted federal habeas relief. Id. at 50 (citing 28 U.S.C. § 2254(d)(1)). The panel further noted that “there is no Supreme Court holding that casts doubt on the constitutionality of applying § 70.85” to defendant. Id. at 49 n.1. 6. The Appellate Division Affirms the Resentence Defendant appealed from the state trial court’s denial of his motion to vacate his plea and its decision to resentence him pursuant to Penal Law § 70.85. (A. 7.) The Fourth Department unanimously affirmed the resentence, without discussing defendant’s constitutional challenge. People v. Pignataro, 93 A.D.3d 1250 (4th Dep’t 2012). This appeal followed. 22 ARGUMENT POINT I PENAL LAW § 70.85 PROTECTED DEFENDANT’S RIGHT TO DUE PROCESS BY AUTHORIZING THE TRIAL COURT TO RE-IMPOSE EXACTLY THE SENTENCE THAT IT PROMISED DEFENDANT WHEN HE PLED GUILTY Defendant claims that Penal Law § 70.85, as applied, violated his right to due process under the federal and state Constitutions because it foreclosed him from withdrawing an involuntary guilty plea. According to defendant, the plea was involuntary because he entered it without knowledge of one of its direct consequences, namely, the mandatory PRS component of his sentence. Defendant’s claim fails. Contrary to defendant’s argument, PRS was not a consequence of his guilty plea at all and, thus, could not be a “direct” consequence. The trial court failed to pronounce a period of PRS at defendant’s original sentencing proceeding, and subsequently resentenced defendant to his originally promised 15-year prison term without PRS. As a result, PRS was never part of defendant’s sentence, and the plea court’s failure to mention PRS did not render defendant’s plea involuntary. Alternatively, if defendant’s guilty plea is deemed involuntary ab initio because PRS was mandated by statute but not 23 mentioned at the plea proceeding, vacatur nonetheless is not required. As we demonstrate below, the remedy afforded defendant under Penal Law § 70.85 — specific performance of his plea agreement — fully protected defendant’s constitutional right to due process. In People v. Catu, 4 N.Y.3d 242 (2005), this Court held that a guilty plea is involuntary and must be vacated if the defendant enters it without knowledge that his sentence includes a period of PRS. That holding turned on the notion that PRS is a “direct consequence” of a criminal conviction. Id. at 244. A direct consequence, the Court explained, “‘is one which has a definite, immediate and largely automatic effect on [a] defendant’s punishment.’” Id. (quoting People v. Ford, 86 N.Y.2d 397, 403 (1995)). For Catu, PRS satisfied those criteria because it was a mandatory component of his sentence. Thus, as with all direct consequences, the court had a “constitutional duty” to make Catu aware of the PRS before accepting his guilty plea. Id. at 244-45; see also People v. Hill, 9 N.Y.3d 189 (2007) (guilty plea vacated where plea court failed to advise defendant about mandatory PRS); People v. Louree, 8 N.Y.3d 541 (2007) (same); People v. Van Deusen, 7 N.Y.3d 744 (2006) (same). 24 But, in Catu, this Court did not consider (and, indeed, was not asked to consider) the possibility that the plea court’s failure to advise Catu about PRS had no effect on his guilty plea because the court’s failure to pronounce PRS at sentencing meant that PRS was never part of Catu’s sentence. The United States Court of Appeals for the Second Circuit employed that reasoning in this case, in affirming the order dismissing defendant’s federal habeas corpus petition. In an unpublished opinion, Pignataro v. Poole, 381 Fed. Appx. 46 (2d Cir. 2010), a unanimous panel of the court determined that, as a matter of federal constitutional law, an unpronounced period of PRS could not be part of defendant’s sentence even though PRS was mandated by Jenna’s Law. Id. at 49 (citing Earley v. Murray (“Earley I”), 451 F.3d 71, 75-76 (2d Cir. 2006), and Earley v. Murray (“Earley II”), 462 F.3d 147, 149 (2d Cir. 2006)).12 12 Three years after Catu, this Court reached that same conclusion as a matter of state law. See Garner v. New York State Dep’t of Correctional Servs., 10 N.Y.3d 358, 363 (2008) (holding that PRS “is not automatically included in the pronouncement of a determinate sentence”); People v. Sparber, 10 N.Y.3d 457, 470-71 (2008) (holding that only the sentencing court is authorized to impose PRS, and that the “sole remedy” for a court’s failure to do so “is to vacate the sentence 25 For that reason — and, additionally, because newly-enacted Penal Law § 70.85 authorized the state court (with the prosecutor’s consent) to resentence defendant to his originally promised 15-year prison term without PRS — the panel concluded that, for defendant, PRS was neither “‘definite’” nor “‘largely automatic’” and, hence, “was not a direct consequence of [his] guilty plea.” Id. at 50 (quoting Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir. 2005)). Accordingly, the state court’s failure to advise defendant about PRS at his plea proceeding did not amount to constitutional error. Id. In any event, even if the plea court’s failure to mention PRS rendered defendant’s guilty plea involuntary at its inception, the court committed no constitutional error by resentencing defendant under Penal Law § 70.85 rather than permitting him to withdraw his plea. That is because vacatur of defendant’s guilty plea was not the only means of protecting his constitutional rights. As we demonstrate below, specific performance of the plea agreement — the remedy afforded and remit for a resentencing hearing so that the trial judge can make the required pronouncement”). 26 defendant under § 70.85 — also comports with constitutional due process principles.13 In Santobello v. New York, 404 U.S. 257 (1971), the United States Supreme Court held that specific performance of the plea bargain was a constitutionally permissible remedy for a guilty plea rendered involuntary by an unfulfilled promise. The defendant in that case pled guilty in reliance upon the prosecutor’s promise that the state would make no sentencing recommendation. However, another prosecutor, unaware of his colleague’s commitment, recommended that the court impose the maximum sentence. Id. at 258-59. 13 In People v. Boyd, 12 N.Y.3d 390, 394-95 (2009), this Court invited the People to make that very argument on remand (supra pp. 13-14). However, because Boyd ultimately accepted a sentence without PRS and did not press his constitutional challenge (supra note 7), the question will not be decided in that case. The Third Department has expressly rejected a constitutional challenge to § 70.85. In People v. Chiacchiarini, 91 A.D.3d 1118 (3d Dep’t), lv. den., 19 N.Y.3d 863 (2012), the court held that “where defendant did not receive the period of postrelease supervision that should have been — but never was — imposed, we discern no constitutional infirmity [in the application of § 70.85] and, hence, defendant [is] not entitled to vacatur of his plea.” Id. at 1119 (internal quotation marks and citations omitted). 27 The Supreme Court concluded that the broken promise rendered the guilty plea involuntary. Nonetheless, it rejected the defendant’s argument that due process required vacatur of the plea. The Court held that due process could be satisfied by either vacating the plea or ordering specific performance of the plea bargain, and remanded the case to the state court to exercise its discretion to choose the appropriate remedy. Id. at 261-63. This Court reached the same conclusion in People v. Torres, 45 N.Y.2d 751 (1978). The defendant in that case pled guilty in reliance on the prosecutor’s recommendation of youthful offender status and the trial court’s promise that he could withdraw his plea if the court decided not to adjudicate him a youthful offender. Id. at 752. Several weeks later, at the sentencing proceeding, the court denied the defendant youthful offender status and refused to allow him to withdraw his plea. Id. at 753. This Court found constitutional error: While the guilty plea of this 16-year-old defendant was originally voluntary, it was in a sense rendered involuntary ab initio by the subsequent failure of the court to fulfill the promise to allow him to withdraw that plea should the court refuse or fail to adjudicate him a youthful offender. 28 Id. at 754. The Court concluded that due process would be satisfied by either vacatur of the plea or specific performance of the sentencing promise, and remitted the matter to the trial court for a determination of the appropriate remedy. Id. Santobello and Torres — not Catu and its progeny — should govern this case. When a defendant pleads guilty in reliance on a description of his sentence that does not include PRS, he effectively has been promised that his sentence will not include PRS. Any defect in the plea arises from the state’s failure to keep that promise. Prior to the enactment of § 70.85, the state had no lawful means of keeping such a promise, because state law did not authorize a sentence without PRS for a defendant convicted of a violent felony. In Catu, the possibility of keeping the promise by removing PRS from the sentence was never raised by the parties or the Court — which was not surprising given that the Second Circuit and this Court had not yet decided Earley, Garner, or Sparber. Following Catu, this Court reviewed multiple cases in which sentencing courts had tried to fashion sentences that would include PRS as required by law, while preserving or reducing the total time promised to the defendant at the time of the 29 plea. Thus, in People v. Van Deusen, the defendant pled guilty in reliance on a promise of no more than 15 years’ imprisonment, and was given what the Appellate Division regarded as a more lenient sentence of 8 years’ imprisonment and 5 years of PRS. 7 N.Y.3d at 745. In People v. Hill, the defendant pled guilty in reliance on a promise of 15 years’ imprisonment, and was given a modified sentence of 12½ years’ imprisonment and 2½ years of PRS. 9 N.Y.3d at 192. This Court rejected each of those efforts to save the plea, noting in Hill that, because PRS is different from imprisonment (for example, because revocation of PRS can lead to extra prison time), no sentence that includes PRS can fulfill a promise to sentence without PRS. Id. at 192 n.2. The majority in Hill regarded the trial court’s 12½/2½ solution as an improper attempt “to undo the prejudice of defendant’s involuntary guilty plea.” Id. at 193 (criticizing the dissent for its approval of that solution). To be sure, the Court in Hill described Van Deusen as rejecting the rationale that due process is satisfied when the sentencing court gives the defendant the benefit of the plea bargain. Hill, 9 N.Y.3d at 192. But, in Hill and Van Deusen, the benefit that the defendant 30 received was different from the one that was promised; it was more favorable in some respects, but less favorable in others. Indeed, in each of those cases, the defendant might not have pled guilty if he or she had known what the actual sentence would be. That possibility does not exist here, inasmuch as defendant was given exactly the sentence that he was promised. In Hill, this Court did not confront a defendant who received specific performance of his plea agreement. Nor did the Court conclude that the remedy of specific performance was inadequate. In Hill, the defendant did not — and could not — receive specific performance of the trial court’s implicit promise to sentence him without PRS. Penal Law § 70.85 solves that problem, by making specific performance of that promise available to violent felony offenders like defendant. Thus, following the enactment of Penal Law § 70.85, a plea that is defective under Catu is no different from the defective pleas in Santobello and Torres. In all these cases, there is a “constitutional defect . . . in the plea itself,” Hill, 9 N.Y.3d at 191, resulting from a broken promise. But it is a defect that can be cured by the remedy of specific performance. That is because specific performance does not 31 simply “undo the prejudice” of an involuntary guilty plea, id. at 193; it undoes the error that made the plea involuntary. By resentencing defendant Pignataro to his originally promised 15-year prison term without PRS, the trial court, in effect, restored the voluntariness of the plea and thus protected defendant’s right to due process without having to take the extraordinary step of vacatur. Even if the error in Catu is not regarded as a broken promise but, rather, as an omission or failure to disclose, the error nonetheless can be remedied by specific performance of the plea agreement. In the Catu cases, as in Santobello and Torres, specific performance returns to the defendant the expectations that he had prior to entering his guilty plea and, in so doing, cures the error that made the plea involuntary. Due process does not require vacatur in any of these cases. Indeed, vacating the guilty plea in this case, where the staleness of the indictment might make it difficult for the prosecution to obtain a conviction after trial or even try the case at all, would give defendant 32 far more than due process requires.14 Such a windfall was precisely what this Court refused to permit in People v. Esposito, 32 N.Y.2d 921 (1973). The plea court in Esposito promised the defendant that, if it could not limit his sentence to a 4-year prison term, it would allow him to withdraw his plea. When the defendant appeared for sentencing, however, the court imposed a 7-year term and denied the defendant’s motion to withdraw the plea. Esposito, 40 A.D.2d 801, 801-02 (1st Dep’t 1972). This Court ruled that the sentencing court had an obligation to advise the defendant that the plea agreement could not be kept, and its failure to do so was “erroneous as a matter of law.” 32 N.Y.2d at 923. The Court ordered fulfillment of the 4-year sentencing commitment because vacatur of the plea could have resulted in dismissal of the stale indictment and, thus, “would have given to defendant more than he was entitled.” People v. Selikoff, 35 N.Y.2d 227, 239-40 (1974) (explaining the ruling in Esposito). Hence, as the Court’s own precedents show, specific performance of the plea bargain, where available, is a 14 The Erie County District Attorney’s Office has advised us that it would be very difficult to try this case inasmuch as a key witness, to whom defendant made certain admissions, is now deceased. 33 constitutionally sound alternative to vacatur and, especially in cases involving older accusatory instruments, is preferable to vacatur in terms of overall fairness. In sum, Penal Law § 70.85 is constitutional as applied to defendant because it has given defendant specific performance of his plea agreement. By authorizing the court to resentence defendant to exactly the sentence he was promised before entering his guilty plea, § 70.85 has undone any involuntariness caused by the court’s failure to mention PRS at the plea. In this way, § 70.85 has safeguarded defendant’s constitutional right to due process. POINT II DEFENDANT’S FACIAL CHALLENGE AND EQUAL PROTECTION CLAIM ARE UNPRESERVED AND MERITLESS Defendant’s claims that Penal Law § 70.85 is unconstitutional on its face and that it violates his right to equal protection are unpreserved for this Court’s review, as defendant failed to assert those claims when opposing the People’s motion for resentencing. (A. 13-31.) C.P.L. § 470.05(2); People v. Robinson, 88 N.Y.2d 1001, 1002 (1996) (“to frame 34 and preserve a question of law reviewable by this Court, an objection or exception must be made with sufficient specificity at the trial, when the nisi prius court has an opportunity to consider and deal with the asserted error”). The preservation requirement applies with added force in cases involving constitutional challenges. As the Court has explained: A challenge to the constitutionality of a statute must be preserved. This requirement is no mere formalism, but ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established beyond a reasonable doubt. People v. Baumann & Sons Buses, 6 N.Y.3d 404, 408 (2006) (internal citations omitted). Accordingly, defendant’s facial challenge and equal protection claim are not properly before this Court. In any event, defendant’s claim that Penal Law § 70.85 is unconstitutional on its face has no merit. In pursuing a facial challenge, a defendant carries the “heavy burden” of showing that the law is “invalid in toto — and therefore incapable of any valid application.” People v. Stuart, 100 N.Y.2d 412, 421 (2003) (internal quotation marks and citations omitted). To prevail, the defendant 35 “must demonstrate beyond a reasonable doubt that the statute suffers from wholesale constitutional impairment.” People v. Davis, 13 N.Y.3d 17, 23 (2009) (internal quotation marks and citations omitted). Defendant has failed to satisfy that heavy burden. To do so, he would need to show that Penal Law § 70.85 is unconstitutional as to every defendant who was sentenced to a determinate prison term between September 1, 1998 and June 30, 2008 by a court that failed to pronounce a period of PRS — including defendants whose convictions followed jury trials. Defendant does not even attempt to make that showing. Furthermore, defendant’s facial challenge fails because, as we demonstrated above, Penal Law § 70.85 is constitutional as applied to him. Therefore, it would be “impossible” for defendant to establish the statute’s unconstitutionality in all its applications. See Stuart, 100 N.Y.2d at 423. Because there exists at least one constitutional application of § 70.85, the statute it is not invalid on its face. See id. at 429. Defendant’s equal protection claim also fails. That is because defendant makes no argument that Penal Law § 70.85, on its face or as 36 applied to him, violates the Equal Protection Clause of either the federal or New York Constitution. He merely makes a few offhanded references to equal protection without ever developing an argument. (D. Br. 9, 12.) Accordingly, there is nothing for this Court to review. In sum, defendant’s claims that Penal Law § 70.85 is unconstitutional on its face and violates his right to equal protection are unpreserved and without merit. 37 CONCLUSION For the reasons stated above, this Court should find that Penal Law § 70.85 is constitutional as applied to defendant, and should affirm defendant’s resentence. Dated: April 25, 2013 New York, New York BARBARA D. UNDERWOOD Solicitor General ROSEANN B. MACKECHNIE Deputy Solicitor General for Criminal Matters JODI A. DANZIG Assistant Attorney General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Intervenor By: /s/ Jodi A. Danzig JODI A. DANZIG Assistant Attorney General 120 Broadway, 12th floor New York, New York 10271 (212) 416-8820 (212) 416-8010 (facsimile) Jodi.Danzig@ag.ny.gov Reproduced on Recycled Paper EXHIBIT