The People, Respondent,v.Marche Johnson, Appellant.BriefN.Y.Jan 3, 2013JON E. BUDELMANN DISTRICT ATTORNEY OFFICE OF THE DISTRICT ATTORNEY CAYUGA COUNTY 95 GENESEE STREET, FIRST FLOOR AUBURN, NEW YORK 13021 (315) 253-1391 • FAX (315) 253-1521 E-MAIL: firstname.lastname@example.org August 23, 2012 CHRISTOPHER T. VALDINA CHIEF ASSISTANT DIANE M. ADSIT HEATHER M. DE STEFANO BRIAN N. BAUERSFElD ROMOLa CANZANO CHRISTOPHER W. SCHLECHT ASSISTANT DISTRICT ATTORNEYS Andrew W. Klein, Esq. Chief Clerk of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 RE: People v. Marche JOhnson Dear Mr. Klein: Please accept this letter as the Respondent People's letter submission pursuant to Rule 500.11 (d). For the reasons set forth below, the People respectfully ask the Court to dismiss the Defendant's appeal, or in the alternative, affirm the Appellate Division order. The Defendant's Appeal Should be Dismissed The People ask the Court to dismiss the Defendant's appeal because this Court lacks jurisdiction to review his unpreserved claim. Here, the Defendant relies on an argument that he never raised before County Court. Therefore, he failed to preserve this claim and no question of law is presented to this Court for review. See People v. Luperon, 85 N.Y.2d 71, 77 (1995) ("Whether or not defendant's argument has merit, it was not raised in the trial court and therefore cannot be considered here."); accord, People v. Osuna, 65 N. Y.2d 822, 824 (1985) ("Defendant objected only to the narrative form of this witness's testimony, which was not sufficient to preserve a contention that the substance of a portion of the testimony was improper."); see also, People v. Gray. 86 N.Y.2d 10, 19 (1995); People v. Nuccie, 57 N.Y.2d 818, 819 (1982). Here, the Defendant adopts the rationale of the dissenting Appellate Division Justice and argues that the People entered into a binding stipulation at the February 15, 2011 appearance. However, the Defendant never raised this specific argument before County Court. At one point, defense counsel did refer to an "agreement" between the parties. As detailed below, the People do not concede that there ever was such an "agreement." Defense counsel's reference to an WE Do NOT ACCEPT SERVICE By FACSIMilE People's Rule 500.11 Letter People v. Marche Johnson August 23, 2012 Page 2 "agreement," in any event, was insufficient to alert County Court to the Defendant's present argument that the People entered into a binding stipulation. It is true that a stipulation is defined as an "agreement" between the parties. See CPLR § 2104. However, although all stipulations are agreements, not all agreements are stipulations. For example, the standard plea agreement-that a defendant may plead guilty to a lesser charge and/or plead guilty in exchange for an agreed-upon sentence-would not constitute a stipulation. A stipulation functions as a contract between the parties. See Nishman v. DeMarco, 76 A.D.2d 360,366 (2d Dept. 1980), appeal dismissed, 53 N.Y.2d 642 (1981). Plea agreements, on the other hand, are not governed by contract law principles. See People v. McConnell, 49 N.Y.2d 340,349 (1980), citing People v. Selikoff, 35 N.Y.2d 227 (1974). At no point in the record did the Defendant or his counsel actually use the term "stipulation," or otherwise specifically indicate that the People were bound by a stipulation. The Defendant thereby deprived the People of the opportunity to respond to this specific claim. The Defendant likewise deprived County Court of the opportunity to rule specifically as to whether or not the parties had entered into a binding stipulation at the February 15, 2011 appearance. The Defendant thereby failed to preserve a question of law that this Court has jurisdiction to review. See Luperon, 85 N.Y.2d at 78 (Rules of preservation "require, at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error."). Wherefore, the People respectfully ask the Court to dismiss the Defendant's appeal. There Was Never a Binding Agreement Despite the Assistant DA's references to a "deal," there was no agreement between the Court, the People, and the Defendant. The ADA initially agreed to consent to resentencing without the required term of post-release supervision (PRS). See PL § 70.85. However, the Defendant spumed this proffer and successfully sought an adjournment. Contrary to the Defendant's contentions, he did not have the "right" to an adjournment. "The decision whether to grant an adjournment is ordinarily committed to the sound discretion of the trial court." People v. Spears, 64 N.Y.2d 698, 699 (1984). Here, at the point when the Defendant requested the adjournment, the court had already completed the resentencing proceeding. The Defendant did not raise any concerns that would have mandated further adjournment for him to retain new counsel. See People v. Sides, 75 N.Y.2d 822, 824 (1990). Therefore, the Defendant was not "punished" for exercising his "rights." Rather, by requesting a gratuitous adjournment, he assumed the risk that the People would discover the fact that he had in fact been advised of the mandatory PRS term before he pled guilty. If one views the facts pursuant to contract law, there was an offer without acceptance, and thus no binding contract. Cf. Nishman, 76 A.D.2d at 366 ("A stipulation is a contract between parties, and as such is governed by general principles for its interpretation and effect."). If one applies plea-bargaining principles, it is evident that the Defendant never detrimentally People's Rule 500.11 Letter People v. Marche Johnson August 23,2012 Page 3 relied on the ADA's pronouncement that the People would agree to resentencing without PRS. Cf. Selikoff, 35 N.Y.2d at 240. The dissenting Justice cited a case wherein the People offered a defendant's statement to police at trial after previously agreeing not to do so. See People v. Swanston, 277 A.D.2d 600, 602 (3d Dept. 2000), appeal denied, 96 N.Y.2d 739 (2001). In that situation, unlike the present case, the defendant would have detrimentally relied on the People's representation to the extent of building his trial strategy around the People not offering the statement. On the other hand, had the People abided by the stipulation, they would have received the benefit of avoiding a potential reversible suppression error. Similarly, in the case cited in the Defendant's letter, both sides would have benefited.from the People's stipulation that they would not use certain evidence; the People would have avoided the time and expense of a suppression hearing, and the defendant would have been assured that this inculpatory evidence would not be presented. See People v. White, 73 N.Y.2d 468, 476 (1989). Here, despite the ADA's mistake of fact, there would have been benefits to the People as well as to the Defendant had the Defendant had gone along with the resentencing without PRS. The Defendant would have received a more lenient sentence than he was entitled to. Since the court would not in fact have been required to permit the Defendant to withdraw his guilty plea, the apparent primary benefit to the People (avoidance of a possible trial) would have been merely illusory. However, the People and the rest of the justice system still would have been afforded the secondary benefits accruing from the avoidance of additional court appearances in the matter. In other words, the purpose of a stipulation-"avoiding delay, trouble, and expense"-would have been accomplished. See White, 73 N.Y.2d at 476. Instead, this Defendant's rejection of the People's offer to consent to resentencing without PRS occasioned exactly that-time, trouble, and expense. Two additional appearances were necessitated. DOCCS had to transport the Defendant to Auburn two more times. The Assigned Counsel Program was billed for two more appearances. The DA's Office had to devote attorney time to researching the case and covering the two additional appearances. In short, the Defendant believes he is entitled to the "quid" without the "pro quo." There was no agreement, no meeting of the minds, no offer answered by an acceptance, and consequently no stipulation that the People were bound by. For those reasons, the People were within their rights to ask the court to resentence the Defendant to the mandatory PRS term. There is No Legal Remedy Available to the Defendant Since the Defendant was convicted of a violent felony, the PRS term was required by law. See Former PL § 70.45. Its omission was only authorized upon the People's consent pursuant to PL § 70.85. The People did not so consent in this case. The question thus turns to: What is the Defendant's remedy? This Court could not direct re-imposition of the original sentence without PRS, because that sentence would be illegal absent the People's consent. See generally, People v. Sparber, 10 N.Y.3d 457, 469 (2008). And this Court could not direct the People's consent, because such remedy would constitute specific performance, which is not available here. Specific performance is not available because there was no agreement (offer plus acceptance), nor was there any detrimental reliance by the Defendant on the People's initial offer People's Rule 500.11 Letter People v. Marche Johnson August 23, 2012 Page 4 to consent to resentencing without PRS. Cf. People v. McConnell, 49 N.Y.2d 340, 348 (1980) (holding that "essential fairness" requires specific performance of a plea agreement where the defendant relied on it to his or her detriment). "The remedy of specific performance in the context of plea agreements applies where a defendant has been placed in a no-return position in reliance on the plea agreement, such that specific performance is warranted as a matter of essential fairness." People v. Smith, 93 A.D.3d 1239 (4th Dept. 2012) (internal citations, ellipses, and quotation marks omitted). There is no showing whatsoever that this Defendant detrimentally relied on the ADA's statement that the People were willing to consent to the no- PRS outcome. Therefore, even assuming there was an agreement, the Defendant is not entitled to specific performance of it. County Conrt's Decision to Permit the Defendant to Proceed Pro Se was Harmless Error The Defendant asked to proceed pro se at the March 22, 20 II appearance. The court did not decide the request at that proceeding. At the next appearance on April 12, 2011, the court remarked that the Defendant was "appearing as his own attorney." However, counsel, who was still present at this proceeding, did all the talking. The attorney made all the arguments he could on Defendant's behalf. He argued that the court should abide by the "agreement" allegedly made at the earlier appearance and not impose PRS. He also argued for a reduction in the Defendant's determinate sentence, a remedy that County Court lacked authority to grant. See People v. Lingle, 16 N.Y.3d 621, 635 (2011). As noted above, the court also lacked authority to delete the mandatory PRS term absent the People's consent. The court was not required to permit the Defendant to withdraw his guilty plea, because he had in fact been advised of the PRS term before he pled guilty. Cf. People v. Catu, 4 N.YJd 242, 245 (2005). This Court has held that permitting a defendant to proceed pro se without the requisite "searching inquiry" may constitute harmless error. People v. Wardlaw, 6 N.YJd 556, 560 (2006). In Wardlaw, the court's error in permitting the defendant to proceed pro se at a Huntley hearing was harmless because even if counsel had secured suppression of the defendant's statements, he still would have been convicted in light of the overwhelming evidence of his guilt. Id. at 561. Likewise, in this case, the court's decision to permit the Defendant to proceed pro se did not affect the outcome. The Defendant never actualized his self-representation, his attorney was present and made every available argument, and the only legally authorized outcome was for the court to impose the omitted PRS term. In fact, the Defendant's most detrimental action-asking for an adjournment instead of consenting to being resentenced without the PRS-eame before his request to proceed pro se. A represented defendant speaking on his own behalf is not tantamount to pro se representation. See People v. Finger, 304 A.D.2d 431 (1st Dept. 2003) ('The court was not required to conduct a 'searching inquiry' since defendant did not proceed pro se, but merely participated in the defense of his case by cross-examining, or conducting a portion of the cross-examination of, a few of the prosecution witnesses."). People's Rule 500.11 Letter People v. Marche Johnson August 23, 2012 Page 5 Ultimately, vacating the Defendant's resentencing on this basis would constitute a squandering of time and resources. Upon remand, the exact same thing would happen all over again-defense counsel would make the same arguments, the People would respond the same way and again oppose resentencing without PRS, and the court would resentence the Defendant to a term including the PRS. There would be additional costs to the system with no benefit whatsoever to the Defendant. Conclusion The Defendant's failure to specifically argue that the People had entered into a stipulation renders that claim unpreserved and beyond this Court's review power. In any event, there was not binding stipulation in this case. A stipulation is an agreement. This Defendant did not accept the People's offer to consent to resentencing without PRS. Rather, he successfully sought an adjournment, necessitating the consumption of additional time and resources by the criminal justice system. Moreover, there is no showing that the Defendant detrimentally relied on the ADA's statement that the People would agree to resentencing without PRS. For these reasons, the ADA's statement, which was based on a mistake of fact, did not bind the People to this position after the Defendant rejected the offer. The Defendant's evanescent self-representation did not affect the proceeding's outcome, and thus, County Court's error in permitting the Defendant to proceed pro se was harmless. Wherefore, the People respectfully ask the Court to dismiss the Defendant's appeal, or in the alternative, affirm the order of the Appellate Division. Very truly yours, JON E. BUDE District Atto f Cayuga County stopher T. Valdina ief Assistant District Attorney cc: Adam H. Van Buskirk, Esq.