The People, Respondent,v.Sergio Rodriguez, Appellant.BriefN.Y.March 23, 2015To be argued by SUSAN H. SALOMON (20 Minutes) APL-2014-00087 Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - SERGIO RODRIGUEZ, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10005 Phone: (212) 577-2523, Ext. 518 Fax: (212) 577-2535 ssalomon@cfal.org SUSAN H. SALOMON Of Counsel October 8, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 POINT I C.P.L. § 430.10 BARRED THE RESENTENCING COURT FROM CHANGING FROM CONCURRENT TO CONSECUTIVE, THUS TO APPELLANT’S DETRIMENT, TWO OF HIS THEN-EXTANT AND LAWFUL SENTENCES, WHICH HE HAD BEGUN TO SERVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 POINT II THE COURT UNLAWFULLY IMPOSED CONSECUTIVE SENTENCES.. . . . . . . . . . . . . . . . . . . . . . . . 6 POINT III THE COURT’S REMARKS DEMEANING APPELLANT’S UNCONTESTED REHABILITATIVE ACHIEVEMENTS INFECTED THE RESENTENCING PROCEEDING AND APPELLANT’S 40-YEAR AGGREGATE SENTENCE WITH CONSTITUTIONAL ERROR, PRESERVED FOR THIS COURT’S REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 i TABLE OF AUTHORITIES State Cases People v. Adkinson, 88 N.Y.2d 561 (1996)............................................... 2, 3 People v. Frazier, 16 N.Y.3d 36 (2010). ........................................................ 7 People v. Gray, 86 N.Y.2d 10 (1995)........................................................... 13 People v. Grey, 2011 WL 3235987 (Sup. Ct., Kings Co. 2011). ................ 10 People v. Laureano, 87 N.Y.2d 640 (1996). .................................................. 8 People v. McKnight, 16 N.Y.3d 43 (2010). ............................................. 9, 10 People v. Muhammad, 17 N.Y.3d 532 (2011). ............................................ 10 People v. Ramirez, 89 N.Y.2d 444 (1996). ................................................ 6, 7 People v. Richardson, 100 N.Y.2d 847 (2003). ......................................... 2, 3 People v. Rodriguez, 18 N.Y.3d 667 (2012).............................................. 2, 3 People v. Rubero, 294 A.D.2d 310 (1 Dept. 2002). ................................... 10st People v. Tanner, 30 N.Y.2d 102 (1972). .................................................... 10 People v. Wright, 19 N.Y.3d 359 (2012). ...................................................... 6 State Statutes C.P.L. § 430.10. .................................................................................. 1, 2, 3, 4 C.P.L. § 440.20. .......................................................................................... 4, 5 C.P.L. § 470.20(3) & (4). ............................................................................... 2 General Construction Law § 35. .................................................................... 4 Penal Law § 160.15(1), (2) and (4). ................................................ 7, 8, 9, 11 ii COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : SERGIO RODRIGUEZ, : Defendant-Appellant. : ---------------------------------------------------------------------x PRELIMINARY STATEMENT Appellant submits this brief in reply to respondent’s [hereinafter RB], received by appellant on October 1, 2014. More particularly, appellant replies to respondent’s arguments that the court’s resentencing did not violate C.P.L. § 430.10 (Point I); that the court lawfully imposed consecutive sentences for the two crimes at issue (Point II); and that appellant did not preserve his complaints about the court’s resentencing remarks, which, in any event, were wholly appropriate (Point III). As discussed below, respondent’s arguments lack merit. 1 REPLY ARGUMENT POINT I C.P.L. § 430.10 BARRED THE RESENTENCING COURT FROM CHANGING FROM CONCURRENT TO CONSECUTIVE, THUS TO APPELLANT’S DETRIMENT, TWO OF HIS THEN-EXTANT AND LAWFUL SENTENCES, WHICH HE HAD BEGUN TO SERVE. Appellant acknowledges that, on his prior appeal, this Court ruled that C.P.L. § 430.10 does not preclude the Appellate Division from remitting a case to the trial court for resentencing on all counts in the event that “sentence on fewer than all of the counts was flawed.” People v. Rodriguez, 18 N.Y.3d 667, 671 (2012). The Appellate Division’s statutory remand-authority in C.P.L. § 470.20(3) & (4), the Court found, authorizes such remittal. See id. Appellant maintains, however, that the Court did not decide whether § 430.10 permits a trial court, on such a remand, to change a defendant’s extant and lawful sentences from concurrent to consecutive. The current appeal presents that open question — which appellant would answer “no.” Respondent’s counter-arguments do not survive scrutiny. First, respondent’s discussion of People v. Richardson, 100 N.Y.2d 847 (2003), and People v. Adkinson, 88 N.Y.2d 561 (1996) — cases finding that the trial courts violated § 430.10 — reinforces appellant’s contention 2 that the Court did not decide the lawful scope of the trial court’s remand- authority on his prior appeal. Noting the Court’s failure to mention Richardson or Adkinson in its decision on appellant’s prior appeal, respondent explains that they had no application because, in each case, “the trial court changed the defendant’s sentence on its own initiative, rather than at the direction of an appellate court.” RB at 18 n.5. Next, respondent declares that, in all events, though § 430.10, in relevant part, bars changing “a sentence of imprisonment [where] such sentence is in accordance with law,” the statute does not bar a trial court from changing “any portions of [an] aggregate sentence that do not themselves contain a legal defect.” RB at 18 n.5. In fact, respondent says, the Court already decided as much on appellant’s prior appeal. Id. Taking the second claim first, the Court did not decide this issue, deeming it “premature . . . to take a position on whether the trial court may sentence defendant other than to make all sentences run concurrently.” Rodriguez, 18 N.Y.3d at 670. Respondent’s argument on the merits also fails. According to respondent, a trial court may treat multiple, discrete, sentences as one “global” sentence, such that a defect in any one sentence infects all of it — 3 thereby allowing the court to change any of the sentences without running afoul of § 430.10. According to respondent, General Construction Law § 35 — “Words in the singular number include the plural, and in the plural number include the singular” — authorizes this result. See RB at 18 n.5. But respondent does not explain how converting “a sentence” into “sentences” in § 430.10 aids its cause. Such a construction would not authorize changing those sentences that are lawful. It also does not answer the question, “what is a sentence under New York law.” Appellant has answered it: As he has set out in his opening brief [AB], this State has made crystal clear, by statute and caselaw, that trial courts must impose discrete sentences for each count of conviction. That rule obtains — in myriad applications — regardless of how a trial court may view individual sentences. See AB at 32-33. Last, respondent deems without merit appellant’s due-process and equal-protection arguments flowing from his observation that “‘defendants who have achieved sentencing relief in the trial courts, by way of C.P.L. § 440.20 motions, possess protection from C.P.L. § 430.10 violations.’” RB at 19 n.6 (quoting AB at 25-26). But respondent acknowledges that appellant has identified “different corrective powers to different reviewing 4 courts in different procedural contexts.” RB at 19 n.6. And respondent offers no reason — much less a rational one — for the difference. All respondent musters is the contention that this Court should remove the protection for defendants who employ § 440.20 — a contention premised on its flawed “global sentence” argument. See RB at 19 n.6 5 POINT II THE COURT UNLAWFULLY IMPOSED CONSECUTIVE SENTENCES. Consecutive sentences for first-degree robbery under P.L. § 160.15(4) (displays an apparent firearm) and first-degree assault, P.L. § 120.10(1), were barred in this case — as was any consecutive sentencing, for that matter — for two principal reasons: because, under P.L. § 70.25(2), all the crimes involved a “single act” — effecting a single-victim aggravated robbery, of which the assault-by-shooting was an integral part; and because the robbery and assault did not otherwise constitute separate, successive, acts. See People v. Wright, 19 N.Y.3d 359, 363-64 (2012) (observing that the defendant prevails “if “either prong [of § 70.25(2)] is present” and if the prosecution cannot show that the defendant committed “separate and distinct acts”) (internal quotation marks and citation omitted). Respondent’s contrary arguments fail. As appellant has argued, People v. Ramirez, 89 N.Y.2d 444 (1996), dictates the “single act” finding in his case — based specifically on Ramirez’s discussion concerning the robbery of a security guard (Bailey) who the perpetrators “repeatedly shot in the back” during the crime: 6 Supreme Court properly determined that counts 2, 5 and 8 under Penal Law § 160.15(1), (2) and (4), respectively, relating to the forcible taking of [this complainant’s property] must run concurrently. Defendant was armed, displayed his weapon and caused the complainant’s injuries, all of which constitute a single act against [him]. Id. at 448, 454 n.6; see also People v. Frazier, 16 N.Y.3d 36, 41 (2010) (citing Ramirez and observing that, “when the actus reus is a single, inseparable act that violates more than one statute, single punishment must be imposed”) (internal quotation marks and citations omitted). As appellant argued, since here, as in Ramirez, the infliction of the complainant’s injuries contributed to the “single act” that comprised all the robbery charges, the assault and the attempted-murder convictions necessarily constituted part of that same “single act” and allowed sentences that ran only concurrently with each robbery charge. Respondent’s attempt to distinguish Ramirez and avoid its impact is in vain. Respondent acknowledges that the three robbery counts at issue in Ramirez — including the serious-physical-injury robbery-by-shooting, P.L. § 160.15(1) — constituted a single act. See RB at 29 n.9. But, in then purportedly differentiating appellant’s case, respondent conveniently omits appellant’s conviction for this same crime — i.e., the one that included his robbery-by-shooting and causing serious physical injury. Respondent also 7 does not acknowledge here — though acknowledges it elsewhere, see RB at 3, 24 — that Paige’s robbery was not completed until after the shooting, when co-defendant Perez then took his chain and cell phone. Instead, respondent simply declares that “[h]ere, defendant committed the robbery- by-display crime by displaying his gun and taking Paige’s property, acts that were separable from defendant’s act of shooting Paige.” RB at 29 n.9. Not only does respondent thus fail to distinguish Ramirez — because it cannot be distinguished — but respondent’s separate discussion of appellant’s § 160.15(1) conviction also avails it nothing. Respondent concedes that the court’s jury instructions required a finding that serious physical injury, caused by the shooting, was inflicted “in the course of the commission of the [robbery].” RB at 30. But, respondent claims, the absence of an instruction that the shooting was committed to advance the robbery allowed for consecutive punishment — as the shooting could have been found to have been unnecessary. See id. The lack of authority to support this claim does not surprise. In fact, nothing in the elements of any of the crimes charged or in the court’s instructions required a determination whether the shooting furthered the robbery. See People v. Laureano, 87 N.Y.2d 640, 643 (1996) (in 8 determining whether P.L. § 70.25(2) mandates concurrent sentences, “the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted”). For sentencing purposes, the shooting’s occurrence during the robbery, as a temporal matter, required punishment concurrent with the robbery. Cf. id. at 645 (rejecting the prosecution’s “separate and distinct” argument for first-degree robbery, per P.L. § 160.15(1), and manslaughter, where the defendant admitted committing the robbery and causing the victim serious physical injury, and the “only admitted act relevant to an injury was the act of cutting the victim’s throat”) (emphasis in original). This accords with P.L. § 70.25(2)’s focus on the actus reus of the crimes under consideration. See People v. McKnight, 16 N.Y.3d 43, 49 (2010) (test is “not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent”) (internal quotation marks and citations omitted). Respondent’s flawed argument rings particularly hollow because the People leveraged the shooting as integral to the robbery, in charging the first-degree robbery under P.L. § 160.15(1). 9 Last, though respondent wishes it otherwise, the shooting here did not qualify as a “successive separate act[]” under People v. Tanner, 30 N.Y.2d 102, 108 (1972). That the robbery was not completed until after the shooting forecloses such a finding. See id. at 105. So do Tanner’s progeny, exhaustively described in People v. Grey, 2011 WL 3235987, *4 (Sup. Ct., Kings Co. 2011). See, e.g., People v. Rubero, 294 A.D.2d 310, 311 (1st Dept. 2002) (where defendant shot the robbery victim after taking his chain, consecutive sentences for the robbery and shooting permitted). Nor may respondent find comfort in McKnight, 16 N.Y.3d 43. See RB at 27. The Court predicated its finding of separate and distinct acts there on the defendant’s having shot two victims, with separate bullets. See 16 N.Y.3d at 49. As for respondent’s repeated invoking of co-defendant Perez’s acquittals of assault and attempted murder, see RB at 20, 25, 30, respondent can point to no authority that helps its cause under P.L. § 70.25(2) — with good reason. Perhaps the jury found that Perez — whom it convicted of the three robbery counts — did not intend to kill the complainant or cause him serious injury; or it simply may have exercised its mercy function as to Perez. See People v. Muhammad, 17 N.Y.3d 532, 539 (2011). But the 10 jury’s action could not convert the actus reus of the injury-by-shooting of the complainant into a separate and distinct act. The robbery conviction under P.L. § 160.15(1) (causing serious physical injury) — of Perez and appellant — foreclosed that. 11 POINT III THE COURT’S REMARKS DEMEANING APPELLANT’S UNCONTESTED REHABILITATIVE ACHIEVEMENTS INFECTED THE RESENTENCING PROCEEDING AND APPELLANT’S 40-YEAR AGGREGATE SENTENCE WITH CONSTITUTIONAL ERROR, PRESERVED FOR THIS COURT’S REVIEW. Respondent would seek to insulate the court’s resentencing remarks from this Court’s review on grounds of preservation. As respondent sees it, one comment by counsel that preceded them — specifically, that she understood that the court intended to consider appellant’s positive record of rehabilitation — effectively endorsed what the court then said. See RB at 33-34, 37-38. Respondent’s effort fails. It fails on a reading of counsel’s full remarks, in context, which immediately preceded and followed the one that respondent invokes. Counsel’s preceding arguments summarized appellant’s “remarkable progress” and “tremendous change for the better in the past five years” (A 149-51). Her subsequent ones asserted, “for the purpose of preserving the record,” that “everything we have provided regarding his rehabilitation” warranted a sentence no greater than 25 years, and that anything more would constitute an abuse of the court’s discretion and violate appellant’s federal and state constitutional due-process rights to be sentenced based on 12 accurate information and freedom from cruel and unusual punishment (A 151). Overall, counsel argued that the law compelled the court to consider her client’s rehabilitation as a significantly positive factor. She did not remotely convey her understanding, much less agreement, that the court would or could consider appellant’s rehabilitation as calculating, insincere, or meaningless. The court could not reasonably have understood otherwise. See People v. Gray, 86 N.Y.2d 10, 20 (1995) (“The chief purpose of demanding notice through objection or motion in a trial court, or of any specific objection, is to bring the claim to the trial court’s attention.”). As to this issue, if no other, the Appellate Division — which “considered . . . each of defendant’s constitutional arguments” (A 4) — got it right. Respondent, in any case, deems the substance of the court’s remarks “quite sensibl[e].” RB at 38. Besides echoing the court’s view that appellant likely harbored insincere motives for his rehabilitative endeavors, respondent adds its own doubts that appellant could ever change for the better. After all, respondent observes, appellant committed the crime against Paige despite having earlier served a year in jail for an assault. 13 According to respondent, appellant’s “penchant for gratuitous violence has strengthened with time.” RB at 38-39. Respondent’s arguments demand rejection. At the resentening proceeding, the prosecution made no factual challenge to the myriad rehabilitation achievements that the defense presented. Nor can respondent point to any evidence to support its charge that appellant undertook his positive behavior in bad faith. And, in the face of appellant’s documented achievements, respondent points to nothing to substantiate its present-tense claim that appellant’s resort to violence continues unabated and has even grown. Respondent’s claims, like the court’s injudicious remarks, defy legitimate excuse. 14 CONCLUSION FOR THE REASONS STATED IN APPELLANT’S OPENING BRIEF AND THOSE HEREIN, THE RELIEF REQUESTED SHOULD BE GRANTED. Dated: New York, New York October 8, 2014 Respectfully submitted, Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28 Floorth New York, NY 10005 (212) 577-2523 By ____________________ Susan H. Salomon Of Counsel 15