The People, Respondent,v.Marche Johnson, Appellant.BriefN.Y.January 3, 2013~!E!~@jf~~ C@fo 3100 State Route 90 Aurora, New York 13026 Phone (315) 563-5019 Fax (315) 563-5020 ___ Y(l_~~'!~'E~~?_~@iI'!I_(l!Lc..?lrI:_.._ Via First Class Mail August 9, 2012 Stuart M. Cohen Clerk of the Court New York Court of Appeals 20 Eagle Street Albany, NY 12207 Re: Appellant's Submission Under Rule 500.11 People v. Marche Johnson Cayuga County Indictment No. 2005-027A Appellate Division, 4th Department Number KA 11-00858 Dear Mr. Cohen, Please find enclosed an original and two copies of arguments in letter form with respect to the above matter. Also enclosed are three copies of the Appellate Division Briefs filed by all parties, three copies of the Appendix, disks containing the required PDF's, and a certificate of service. Thank you, and please contact me at once ifI may be of assistance to the Court in any further respect. Thank you. R:S~~ Adam H. Van Buskirk Ene. Cc: District Attorney Marche Johnson, DIN 05-B-3282 ~!5i!~ @{'~J:, C(lo/. 3100 State Route 90 Aurora, New York 13026 Phone (315) 563-5019 Fax (315) 563-5020 _~a.'!l!,!s~ir~~~fgJl{rrz,ail·Eom .. Via First Class Mail August 9, 2012 Stuart M. Cohen Clerk of the Court New York Court ofAppeals 20 Eagle Street Albany, NY 12207 Re: Appellant's Comments and Arguments Under Rule 500.11 People v. Marche Johnson Cayuga County Indictment No. 2005-027A Appellate Division, 4th Department Number KA 11-00858 Dear Mr. Cohen, Please accept this letter as the Appellant's Comments and Arguments in the above matter, pursuant to Rule 500.1 1. Due to the fact that the Court will be considering the arguments found in the lower court briefmg, the Appellant will respectfully refer the Court to the Appellant's Brief and Reply Brief, rather than attempting to re-cap the entire argument in this short letter. Without waving any of the issues previously raised, the Appellant would like to specifically comment on the following issues: 1. The People Stipulated to the Re-Sentencing Without Post-Release Supervision As the Court will note, the Fourth Department Decision contains a dissent. This dissent states that the re-sentencing must be reversed, since People expressly stipulated to a re-sentencing without post-release supervision. The details of this unambiguous stipulation may be found at page 2 of the February 15,2011 minutes of the Cayuga County Court, and are further explained in the Facts section of Appellant's Fourth Department Brief, at page 7. This "deal" or stipulation was set forth very clearly on the record. The Court stated "Basically you are telling me for, you are asking me to re- sentence Mr. Johnson to a ten-year determinate imprisonment withoutpost-release supervision?" The Assistant District Attorney replied, "That is correct, Judge. It is my understanding that was the deal." See Minutes of February 15, 2011, page 2. However, the Cayuga County District Attorney when on to openly repudiate this express stipulation, making statements that were factually incorrect. Mr. Budelmann stated: "According to myfile, nothing tookplace on February 15th except adjournments. People don't consent to imposition ofno post-release supervision." See Minutes of March 22,2011, page 6; Appellant's Brief, page 9. When the Court mentioned that it recalled certain discussions with the Assistant District Attorney, Mr. Budelmann was totally dismissive ofany commitments made by this authorized representative of the People: "1 understand. But regardless ofwhat was said by the ADA at the time, nothing was done. People do not consent to defendant being re-sentenced withoutpost-release supervision which is required under the law." See Minutes of March 22, 2011, page 8; Appellant's Brief, page 9. It is well established that the Court ofAppeals will enforce stipulations made on the record by the People. See People v. White, 73 NY 2d 468, 476 (1989). The Courts have enforced a wide range of stipulations, such as agreements not to use a statement, agreements to administer a polygraph, and agreements not to mention a juvenile record. See People v. Davis, 94 A.D.2d 610 (1st Dep't 1983); People v. Rhem, 52 Misc. 2d 853 (Sup. 1966); People v. Clergeot, 20 Misc. 3d 87 (App. Term 2008). The stipulation in our particular case falls clearly into the defInition accepted by People v. White: "[a]n agreement, admission, or concession made in ajudicialproceeding by the parties thereto or their attorneys, in respect ofsome matter incident to the proceeding, for the purpose, ordinarily, ofavoiding delay, trouble and expense//1 Id. at 476. Accordingly, the Appellate Division dissent is correct, and allowing the People to freely discard express and unambiguous sentence commitments and stipulations is destructive to the process ofjustice, and represents an abuse against the defendant. 2. The Error Regarding the Waiver of the Right to Counsel Was Not Harmless The Appellate Division majority found that the Trial Court failed to conduct the required "searching inquiry" before allowing the Defendant to proceed pro se, citing to .People v. Smith, 92 NY2d 516,520 (1998) The majority found this to be harmless error, in that the Defendant was not entitled to a result different than that obtained. However, the defendant was in fact harmed, since counsel could have forcefully advanced arguments similar to those expressed in the dissenting opinion, and now expressed upon Appeal. Counsel could have sought to enforce the stipulation by formal motion, and could very well have succeeded in obtaining the original sentence commitment. As explained in the Reply Brief, it is perfectly legal to re-sentence the Defendant to a term without post-release supervision, with the consent of the People. This consent was given on the record, so Defendant was in fact entitled to be re- sentenced according to the agreement. ~ . Van Buskirk NEW YORK STATE COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK Respondent, v. MARCHE JOHNSON Defendant-Appellant. AFFIRMATION OF SERVICE Cayuga County Indictment No. 2005-027A Appellate Division, Fourth Department No. KA 11-00858 STATE OF NEW YORK) COUNTY OF CAYUGA) VILLAGE OF AURORA) SS: Adam H. VanBuskirk, being dilly sworn affinns under the penalty ofpeJjury that, he is not a party to this action, is an attorney licensed to practice law in the State ofNew York is over 18 years of age, and has a business address of 3100 State Route 90, Aurora, NY 13026. That on the 9th day ofAugust, 2012, your deponent served the within Comments and Arguments on the Cayuga County District Attorney by depositing a true copy thereof enclosed in a post-paid wrapper in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to the following person and the last known address set forth after the name: Cayuga County District Attorney Attn: ChiefADA Christopher Valdina 95 Genesee Street, 1st Floor Auburn, NY 13021 Dated: August 9, 2012