The People, Respondent,v.Terrance Monk, Appellant.BriefN.Y.March 21, 2013To be argued by SCOTT B.TULMAN, ESQ. (Counsel requests 15 minutes) COURT OF ApPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TERRANCE MONK, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT SCOTT B. TULMAN, ESQ. SUSAN G. PAPANO, ESQ. ON THE BRIEF SCOTT B. TULMAN, ESQ. Attorney for Defendant-Appellant Scott B. Tulman & Associates, PLLC 369 Lexington Avenue, 15th Floor New York, New York 10017 Tel.: (212) 661-3080 Fax: (212) 867-1914 May 21,2012 TABLE OF CONTENTS TABLE OF AUTHORTIES ................................................................................................. .i-ii A SIGNFICANT OMITTED FACT ..................................................................................... 1 POINT 1 THE MANDATORY "FURTHER PERIOD OF IMPRISONMENT" IMPOSED BY THE COURT PURSUANT TO THE POST-RELEASE SUPERVISION STATUTE IS PART OF THE DETERMINATE SENTENCE AND IS NOT MERELY A COLLATERAL CONSEQUENCE OF THE CONVICTION ................................................. 2 CONCLUSION .. , ................................................................................................................... 10 TABLE OF AUTHORITIES Cases People v. Boyd, 12 N.Y.3d 390 (2009) ...................................................................................................... 6 People v. Catu, N.Y.3d 242 (2005) ................................................................................................... 1, 6, 8 People v. Cornell, 16 N.Y.3d 801 (2011) ...................................................................................................... 8 People v. Ellsworth, 14 N.Y.3d 546 (2010) ...................................................................................................... 5 People v. Ford, 86 N.Y.2d 397 (1995) ...................................................................................................... 4 People v. Gravino, 14 N.Y.3d 546 (2010) .......................... : ........................................................................... 3 People v. Hill, 9 N.y'3d 189 (2007),85 N.Y.2d 256 (1995) .............................................................. 6, 7 People v. Jean-Baptiste, 11 N.Y.3d 539 (2008) ...................................................................................................... 7 People v. Murray, 15 N.Y.3d 725 (2010) ...................................................................................................... 1 People v. Rucker, 67 A.D.3d 1126 (3d Dept. 2009) ....................................................................................... 6 People v. Singh, 90 A.D.3d 1079 (2d Dept. 2011), 18 N.y'3d 962 (2012) ................................................ 6 People v. Williams, 2012 WL 1429335 (April 26, 2012) ................................................................................ 4 Padilla v. Kentucky, 130 S.Ct 1473(2010) ........................................................................................................ 7 1 Statutes Correction Law § 2 [6] ...................................................................................................... 11 Criminal Procedure Law § 220.60(3) .................................................................................. 9 Penal Law § 70.45 [1]) ................................................................................................ 3, 4,5 Penal Law § 70.45 [3]) .................................................................................................... 3, 5 Penal Law § 70.45 [4]) ........................................................................................................ 3 11 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TERRANCE MONK, Defendant -Appellant. ---------------------------------------------------------------)( REPL Y BRIEF FOR DEFENDANT -APPELLANT A SIGNIFICANT OMITTED FACT Respondent's Brief omits from its factual statement that Appellant's trial counsel filed a Reply Affirmation in further support of Appellant's original motion to withdraw his guilty plea specifically alleging the Catu violation at issue on appeal in this case. (A-49-50). See, People v. Catu, 4 N.Y.3d 242 (2005). The Trial Court elected to address the Catu issue holding that "this Court was not required to advise Defendant of the effects of a violation of his post release supervision." (A 19). The Second Department, in affirming the Trial Court's determination, correctly held that "(h)ere for the first time on appeal in this State, the issue is preserved for appellate review" (A. 7). Thus, the issues presented on appeal unquestionably are preserved for review. Compare, People v. Murray, 15 N.Y.3d 725 (2010)(Defendant failed to preserve issue concerning post-release supervision because he could have, but did not, seek relief after learning of the post-release supervision component of his sentence). POINT I THE MANDATORY "FURTHER PERIOD OF IMPRISONMENT" IMPOSED BY THE COURT PURSUANT TO THE POST- RELEASE SUPERVISION STATUTE IS PART OF THE DETERMINATE SENTENCE AND IS NOT MERELY A COLLATERAL CONSEQUENCE OF THE CONVICTION Respondent argues that the Appellate Division Second Department correctly determined that the period of potential additional imprisonment imposed by the Court as part of the post-release supervision component of a determinate sentence is merely a collateral consequence and need not be addressed during the plea allocution because, as Respondent repeatedly emphasizes, re-incarceration for violations of post-release supervision are only possible and might not occur. (See Respondent's Point Heading and pp. 22, 33 and 37 of the Brie!).l 1 Courts routinely and wisely seek to advise defendants during guilty pleas on significant consequences that might never occur but which are significant considerations that should be understood by the accused before making a knowing and intelligent decision whether to plead guilty. For example, during Appellant's plea allocution, the Trial Court informed Appellant that that if he was again convicted of a felony he could be subject to a greater sentence as a result of his conviction, that if he was arrested for committing a new crime pending sentencing, he could receive an enhanced sentence, and that if he was not a citizen of the United States, the guilty plea could result in his deportation and exclusion from the United States. (A-I06, 107, 109). Indeed, this Court has expressly suggested that certain consequences such as SOMT A should be addressed, even though the Court 2 Specifically, Respondent argues first that since the Board of Parole imposes the conditions of post-release supervision pursuant to Penal Law Section 70.45(3) and can revoke it pursuant to Penal Law Section 70.45(4), the Court has no constitutional duty to inform an accused of the additional sentencing exposure created by post-release supervision during the plea allocution, even though this additional period of potential re-incarceration is clearly known and imposed by the Court at the time of sentence. (See Respondent's Brief, pp. 28-31)2. Respondent is wrong because it relies upon the wrong subdivision of the statute at issue. 3 The specific subdivision of Penal Law Section 70.45 at issue in this case is Penal Law §70.45 (1) which reads, in pertinent part, as follows: 1. In general. When a court imposes a determinate sentence it shall in each case state not only the term of imprisonment, but also an additional period of post-release supervision as determined pursuant may not be constitutionally required to do so. See, e.g. People v. Gravino, 14 N.Y.3d 546 (2010). 2 Indeed, the Court in this case informed Appellant at the time of sentencing, but not at the time of the guilty plea, that "a violation of post-release supervision may result in re-incarceration for a fixed term of at least six months and up to the unserved balance of the post-release supervision term not to exceed five years." (A-160). 3 Respondent also devotes four pages of their argument discussing the operation of the Executive Law. (Respondent's Brief, pp. 28-31). The Executive Law, however, is irrelevant in this case. The subject matter of this appeal is Penal Law Section 70.45 and the constitutional duties imposed on the trial court before accepting a guilty plea to a violent felony offense as a result of this statute. 3 to this article. Such period shall commence as provided in subdivision five of this section and a violation of any condition of supervision occurring at any time during such period of post-release supervision shall subject the defendant to a further period of imprisonment up to the balance of the remaining period of post-release supervision, not to exceed five years. . . (emphasis added).4 Contrary to Respondent's argument, when a Trial Court determines that a particular period of post-release supervision will be imposed, there is a "definite, immediate and largely automatic effect" that this period of post-release supervision has "on [a] defendant's punishment" [People v. Ford, 86 N.Y.2d 397 (1995)] because it "subject[s] the defendant to a further period of imprisonment up to the balance of the remaining period of post-release supervision, not to exceed five years." PL §70.45(1). This additional period of potential incarceration is part of the determinate sentence of imprisonment and determines the "maximum expiration date" of the determinate sentence, as this Court recently held in People v. Williams, _ N.Y.3d _ (2012),2012 WL 1429335 (April 26, 2012). Since it increases the permissible range of punitive imprisonment, and unquestionably is a part of the determinate sentence imposed by the Court, it is a direct consequence of the guilty plea. Respondent next argues that the mere possibility of incarceration beyond the original determinate term as a result of post-release supervision is akin to the 4 The use of the words "shall" in the statute leaves no doubt that the possibility of incarceration for a term of years beyond the determinate sentence is a mandated automatic and direct consequence of the guilty plea. 4 possible "terms and conditions" of probation which this Court found to be collateral in People v. Ellsworth, 14 N.Y.3d 546 (2010). (See Respondent's Brief p.32). This argument is specious because the Court's decision in People v. Ellsworth is clearly distinguishable, as made clear in Ellsworth itself. Appellant does not allege here that the Court was required to address the potential terms and conditions of post-release supervision that might be imposed by the Board of Parole pursuant to Penal Law §70.45(3) following his release from prison. Appellant acknowledges that these terms and conditions, like the terms and conditions of probation, are "peculiar to the individual's personal circumstances and not within control of the court system." See, Ford, supra at 403. The "further period of imprisonment" for violations of post-release supervision, however, is determined and imposed by the Court, not the Board of Parole, pursuant to Penal Law §§ 70.45(1)(2), and definitively, automatically and immediately has an effect on the maximum expiration date of Appellant's sentence of imprisonment. Thus, unlike the specific terms and conditions of post-release supervision to be imposed by the Board of Parole which are not be known by the Court, the potential punishment of re-incarceration for violating these terms and conditions was known by the Court and could have been made known to Appellant at the time of his guilty plea. Indeed, the Court did just this, but at the time of sentence. 5 Respondent also argues that vacatur of Appellant's guilty plea is not required because Respondent failed to establish prejudice in his moving papers in that he failed to assert that he would have not pled guilty had he understood the post-release supervision component of his sentence. This argument flies in the face of this Court's well settled holding that the harmless error standard is ill suited for deficient plea allocutions and is particularly inapposite when analyzing remedies for Catu errors. See, People v. Hill, 9 N.Y.3d 189 (2007). Appellant's guilty plea must be vacated and the matter remitted for repleading because Appellant's plea was unconstitutionally obtained and timely objected to, regardless of prejudice. 5 Finally, contrary to Respondent's specious and hysterical claim, Appellant does not ask this Court "to render infirm practically every guilty plea involving a violent felony offense since PRS was established in 1996." (Respondent's Brief at pp. 23,44). The law is well settled that where, as here, a new rule of constitutional criminal procedure implicates the fundamental fairness and accuracy 5 Respondent does not request and the Court should not remit this matter as it did in People v. Boyd, 12 N.Y.3d 390 (2009) to permit Respondent to seek to have Appellant resentenced pursuant to Penal Law §70.85, subject to Appellant's right to challenge the constitutionality of this statute as applied to him. The plain language of Penal Law §70.85 demonstrates that it is not applicable in this case because the sentencing court explicitly imposed a period of post-release supervision at sentencing. See, e.g. People v. Singh, 90 A.D.3d 1079 (2d Dept. 2011), leave denied, 18 N.Y.3d 962 (2012); People v. Rucker, 67 A.D.3d 1126 (3d Dept. 2009) 6 of a judicial proceeding, it should be applied retroactively to cases on direct appeal, but not to cases in which the normal appellate process has come to an end. Compare, People v. Jean-Baptiste, 11 N.Y.3d 539 (2008), People v. Hill, 85 N.Y.2d 256 (1995). Thus, the Court need not be concerned that the lower courts will be congested with a multitude of motions seeking the vacatur of otherwise valid guilty pleas. To the contrary the application of this new rule will promote justice and finality by ensuring that a record is made that those pleading guilty to a violent felony understand the maximum expiration date of their terms of imprisonment as a result of post-release supervision. Indeed, as a matter of sound prosecutorial policy, Respondent ought to support the implementation of the new constitutionally mandated rule we ask that the Court pronounce in this case. A District Attorney's Office has an institutional interest in the finality of criminal cases disposed of by guilty plea, as does the Court, and should be encouraging rules that require Trial Courts to protect the record against later challenges based on the fundamental fairness of the guilty plea allocution. See, e.g., Opinion 10-196 of the Advisory Committee on Judicial Ethics (March, 2011), www.nycourts.gov/ipliudicialethics/opinions/l0-196.htm (Improper for a Court to comply with a prosecutorial request to distribute certain notices in light of Padilla v. Kentucky, 130 S.Ct. 1473 (2010), to "assist (the 7 District Attorney) in the preservation of criminal convictions against subsequent litigation. ") The deficiency in the Court's plea allocution is apparent from the record of the plea proceeding because there is no indication in the record that the court, defense counselor the prosecutor ever explained to Appellant the effect of post- release supervision on the maximum expiration date of his sentence. As in People v. Cornell, 16 N.Y.3d 801 (2011), the record does not make clear, as required by Catu, that at the time Appellant took his plea, he was aware that the post-release supervision component of his sentence could result in a period of incarceration beyond the length of the court's promised term of incarceration. Thus, at a minimum, reversal and remitter is required so that a proper record can be made as to whether Appellant, in fact, understood the post-release supervision component of his sentence. The holding we urge here is straightforward and logically follows from Catu and its progeny: Due Process of Law in our State requires that an accused pleading guilty to an offense carrying a determinate term be informed by the trial court of the fact, duration and impact of post-release supervision on the maximum permissible range of imprisonment. Due Process of Law requires that the trial court ensure that the record establish that the defendant was aware, before pleading 8 guilty, that in addition to a promised determinate sentence of "X" years, the defendant would also be subject to "Y" years of post-release supervision following his or her release from prison, and that violation of post-release supervision could lead to the defendant being returned to prison for up to "Y" years in addition to the "X" years promised at the time of the guilty plea. Merely advising that a defendant will be subject to Y years of post-release supervision does not ensure that the defendant understands that he faces an increased term of years beyond the ini tial determinate term imposed. Imposing a duty on the trial judge to advise a defendant pleading guilty to a violent felony offense of the fact, duration and effect of post-release supervision oil the potential maximum permissible range of sentence promotes public confidence in the integrity of the guilty plea process, and furthers the constitutional mandate of ensuring that when a defendant pleads guilty to a crime that could result in future re-incarceration he does so knowingly, voluntarily and intelligently by choosing among alternative courses of action. 9 CONCLUSION Appellant's conviction should be reversed, the guilty plea vacated, and the case remitted for further proceedings. Dated: New York, New York May 21,2012 SCOTT B. TULMAN SUSAN G. PAPANO, ON THE BRIEF Respectfully submitted, ~~-- 10 Attorney for Defendant-Appellant Terrance Monk 369 Lexington Avenue 15th Floor New York, New York 10017 (212) 867-3600 COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------J( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, AFFIDAVIT OF SERVICE -against- TERRANCE MONK, Defendant-Appellant. ----------------------------------------------------------------J( STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK ) DAVID F. KNAPP, being duly sworn deposes and says that deponent is a disinterested party, is over 18 years of age, and resides in New York, New York. On May 21,2012, deponent served the following documents in the following manner: 1. Three copies of Appellant's Reply Brief; and, 2. Appellant's Reply Brief in companion digital format as required by section 500. 14(g) ofthe Court's rules; and, by mailing the aforementioned documents and disk in a sealed envelope with postage prepaid thereon in a post office or official depository of the United States Postal Service within the State of New York on the Hon. Janet DiFiore, Westchester County District Attorney, Richard J. Daronco Courthouse, 111 Dr. Martin Luther King, Jr. Boulevard, White Plains, New York 10601-2507; Sworn to before me this 21stda~_ofMay,~ U 2Z d_~/ Notary PU61lc ROBERT A. FREILlCr-f Notary Public of New Yorl( NO.02FR6128961 Qualified in New York CountY CommiSSion Expires 06i20/201~ AJ-i F. \~ DAVID F. KNAPP COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------J( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TERRANCE MONK, Defendant-Appellant. ----------------------------------------------------------------J( CERTIFICATION SCOTT B. TULMAN, an attorney duly admitted to practice law in the Courts of the State of New York certifies pursuant to CPLR § 2105 that he has compared Appellant's Reply PDF Brief with Appellant's original Reply Brief and found them to be true and accurate copies. Dated: New York, New York May 21,2012 ~-M-A-N~--