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People v. Santos

Supreme Court, Bronx County, New York.
Dec 26, 2014
7 N.Y.S.3d 244 (N.Y. Sup. Ct. 2014)

Opinion

No. 7183–1998.

12-26-2014

The PEOPLE of the State of New York v. Javier SANTOS, Defendant.

Justin Braun, Assistant District Attorney Office of the Bronx District Attorney, Defendant, pro se.


Justin Braun, Assistant District Attorney Office of the Bronx District Attorney, Defendant, pro se.

Opinion

RICHARD L. PRICE, J.

By motion submitted September 8, 2014, defendant moved to set aside his sentence pursuant to Criminal Procedure Law § 440.20(1), asserting that it was illegally imposed or otherwise invalid as a matter of law. After review of the motion papers, papers on file with court, and prior court proceedings, defendant's motion is denied.

I. Background and Procedural History

On October 23, 1998, the defendant was charged by indictment with two counts of murder in the first degree (Penal Law §§ 125.27[1] and [2 ] ), two counts of murder in the second degree (Penal Law §§ 125.25[1] and [2 ] ), two counts of robbery in the second degree (Penal Law §§ 160.15[1] and [2 ] ), one count of criminal possession of a weapon in the first degree (Penal Law § 265.04[1] ), and one count of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ).

On December 13, 1999, judgment was entered against the defendant in Supreme Court, Bronx County (Barrett, J.), convicting him after a jury trial of manslaughter in the first degree (Penal Law § 125.20[1] ), and sentencing him to a determinate term of twenty-five years imprisonment. No period of post-release supervision (PRS) was imposed.

By letter dated December 27, 2011, the New York State Department of Corrections and Community Supervision notified Justice Barrett that the defendant was a designated person pursuant to Correction Law § 601–d (1), and requested that a 601–d (1) resentencing proceeding be conducted. A review of the December 13, 1999, sentencing minutes revealed that in fact no period of PRS had been imposed.

On January 13, 2012, this court assigned The Legal Aid Society to represent the defendant in all matters relating to the 601–d (1) proceeding.

On February 14, 2012, the People moved for resentencing under 601–d (1) to include a period of PRS. The motion was adjourned until February 27, 2012, for the purpose of affording The Legal Aid Society an opportunity to file its written opposition to the People's motion, which counsel did. On February 27, 2012, this court marked the motion submitted and adjourned it until March 19, 2012, for a 601–6(1) resentencing hearing.

On March 19, 2012, this court heard oral argument on the motion. Granting the People's application, this court resentenced the defendant to a determinate term of twenty-five years imprisonment, and a period of five years post-release supervision.

II. Discussion

Post–Release Supervision

In 1998, the New York State Legislature enacted the Sentencing Reform Act, more commonly referred to as “Jenna's Law” (L 1998, ch 1). Among the salient provisions of that legislation was the introduction of a determinate sentencing structure followed by a period of Post Release Supervision (PRS), thus effectively replacing a parole board's decision whether release from incarceration was appropriate. To the extent PRS required periodic monitoring of former inmates, and provided for the protection, general welfare and stability of communities to which they returned, it was essentially identical to parole. Indeed, PRS was implemented through the parole structure by parole officers who assisted with their community reintegration. Such assistance included attendance in residential treatment facilities and programs, obtaining housing, and procuring suitable employment (see Practice Commentary by William C. Donnino). Also similar to parole, PRS required compliance with conditions such as a curfew, restrictions on travel, and substance abuse testing and treatment (see People v. Catu, 4 NY3d 242, 245 [2005] ).

Fashioned after Jenna's Law, Penal Law § 70.45 declared that “[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision” (see former Penal Law 70.45, as added by L 1998, ch 1). Penal Law § 70.45 neglected, however, to instruct or indicate that the mandatory period of PRS be imposed, in the presence of the defendant at the time of sentencing. Though eventually amended to include such language, (Penal Law § 70.45, as added by L 1998, ch 1, as amended by L 2011, ch 62[b] § 127–j), the proverbial barn door had been wide open for years. As a result, many defendants did not have the statutorily mandated period of PRS pronounced at sentencing. Such defendants were consequently serving unlawfully imposed sentences.

This refers to the 1998 version of Penal Law § 70.45.

Penal Law § 70.45, as amended, reads “[w]hen 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 to this article” (Penal Law § 70 .45, as added by L 1998, ch 1, as amended by L 2011, ch 62[b] § 127–j).

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In an attempt to ameliorate this defect, the Department of Correction and Community Services (DOCCS) administratively added periods of PRS to inmates' sentence and commitment orders upon their release from custody without informing them or the sentencing court (see Matter of Garner v. New York State Dept. of Correctional Servs, 10 NY3d 358 [2008] ). Upon completing the determinate imprisonment portion of their sentence, a parolee was then compelled to sign a form indicating their awareness of the PRS period. In Garner, the Court of Appeals held that DOCCS exceeded their authority by administratively adding PRS to an offender's sentence and commitment form, stating that only the sentencing court may do so (Garner, 10 NY3d at 362 ). It was then that courts became sensitive to the necessity of imposing PRS by pronouncing the specific period of time at sentencing. But by then, unfortunately, tens of thousands of sentences had been adversely impacted (see Practice Commentary by Mark Bonacquist [2008] ).

To remedy this predicament, the Legislature, in 2011, enacted Correction Law § 601–d. 601–d was specifically aimed at defendants who received a determinate term of imprisonment upon a designated felony conviction but had no period of PRS indicated in the sentence commitment and order (Correction Law § 601–d [1 ] ). In such cases, the sentencing court would conduct a hearing to determine whether a period of PRS should have been included in the defendant's sentence (§ 601–d [4 ][a] ). If PRS was to have been imposed, the court would then review the sentencing minutes to see whether in fact it had been pronounced at sentencing, (§ 601–d [4 ][b] ). If it had, the sentence and commitment order would simply be amended to reflect that period of PRS (§ 601–d [3 ] ). If, however, PRS was not pronounced at sentencing, the court could examine the plea minutes to learn whether the defendant was on notice that the plea should have included a period of PRS. When neither the minutes (sentence or plea) nor the sentence and commitment order reflected the pronouncement of PRS, Correction Law § 601–d provided the court with authority to resentence the defendant with an appropriate term of PRS (§ 601–d [4 ][c] ).

Challenges to Post–Release Supervision

While Correction Law § 601–d authorized resentencing with a period of PRS, it was by no means a panacea. Where a defendant completed serving his sentence, the expectation of finality precluded resentencing. Perhaps more problematically, though, were the thousands of plea agreements conditioned upon a bargained arrangement that did not include a period of PRS. Here too, it was inconceivable that the court could simply add it.

1. Finality

The Court of Appeals observed that “an expectation of finality arises for purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts any appeal taken” (see People v. Lingle, 16 NY3d 621, 630 [2011] ; see also People v. Williams, 14 NY3d 198 [2010] ). Thus, where a defendant completed serving his determinate sentence, he is entitled to an assurance that he will not be subject to resentence merely because PRS was not imposed. Such a challenge, however, was limited to defendants who were no longer incarcerated. For those who had not yet been released, no such expectation existed; they could be resentenced with a period of PRS (Lingle, 16 NY3d at 631 ).

Knowing, Voluntary and Intelligent Plea

For the many defendants whose judgments of conviction were predicated upon a guilty plea pursuant to bargained arrangement, the issue was far more pervasive (see Practice Commentary by Mark Bonacquist [2008] ). Defendants who received determinate sentences as a result of a plea deal were suddenly informed that an additional period of PRS would be added to their sentence. If, however, it was neither negotiated nor agreed to as part of their plea deals, and they were not advised of it during the plea or sentencing, the problem was obvious: their pleas were not knowing, voluntary or intelligent because it deprived the defendant from incorporating it into the plea negotiations. Indeed, the Court of Appeals held that the failure to inform a defendant of the precise PRS component rendered his guilty plea unknowing and involuntary (see People v. Boyd, 12 NY3d 390 [2009] ; People v. Catu, 4 NY3d 242 [2005] ) because a defendant who is unaware that his guilty plea includes an additional period of PRS has not given a voluntary, knowing, and intelligent “choice among the alternative courses of action” (Catu, 4 NY3d at 245 ).

The reverberations of Catu's axiomatic decision drew an immediate legislative response. To prevent defendants, ostensibly en mass, from moving to set aside their now officially unlawful sentences, the Legislature enacted Penal Law § 70.85. Penal Law § 70.85 permits an otherwise unlawful sentence due to the absence of a period of PRS to remain intact as authorized. Of course, the District Attorney could certainly decide to return the defendant's plea, and either renegotiate it to include PRS or proceed with trial. But providing the District Attorney with that choice provided the flexibility so desperately needed to wade through the tens of thousands of plea bargains statewide. And, not surprisingly, no one viewed permitting a defendant to retain the sentence without PRS problematic, particularly since the defendant, too, had the opportunity to adequately chose between alternatives (Penal Law § 70 .85; see also, Supplementary Practice Commentary by William C. Donnino). It goes without saying that unlike a guilty plea, a judgment of conviction entered upon a conviction after trial presents no such quandary.

The point here is that regardless of the circumstances under which a determinate sentence did not include the requisite period of PRS, such a defendant was indeed considered a 601–d hearing candidate.

The Defendant

Defendant asserts that he was neither a 601–d candidate nor properly resentenced. Specifically, he claims that notwithstanding the trial court's inadvertent failure to pronounce a period of PRS, Correction Law § 601–d is inapplicable because his judgment of conviction was entered upon a conviction after trial rather than a guilty plea. He further insists that his resentencing on March 19, 2012, which included a five-year period of PRS, was improper because this court failed to “set forth its reasons” for the resentence, and failed to provide him with an updated “presentencing report or its equivalent.” These claims are entirely meritless.

Correction Law § 601–d

In 1999, defendant was sentenced to determinate term of twenty-five years imprisonment upon his conviction after a jury trial of manslaughter in the first degree (Barrett, J.). Commensurate with such sentence, an additional period of PRS was to be imposed (see Criminal Procedure Law §§ 70.00[6]; 70.45[2]; and Penal Law 125.20 ). The statutorily mandated period of PRS, however, was not reflected on his sentence and commitment order. As such, by definition, the defendant is a 601–d candidate.

On February 14, 2012, this court reviewed the sentencing minutes and discovered that in fact, PRS had not been imposed. A sentence that fails to include a mandatory component for a conviction punishable by a determinate prison term is indeed unlawful (People v. Williams, 14 NY3d 198, 212 [2010] ). Defendant's original sentence, then, was unlawful, and courts certainly have the “inherent authority to correct illegal sentences” (Williams, 14 NY3d at 212 ). Correction Law § 601–d (4)(c) was precisely the correct vehicle for this court to do so.

In accordance with Correction Law § 601–d, this court then adjourned the matter for both defense counsel and the People to submit written memoranda on the issue of whether the defendant should be resentenced with a period of PRS. Through counsel, defendant opposed the imposition of PRS, and moved to preclude resentencing contending it “would violate the prohibition against double jeopardy and the principles of due process” (see Defendant's Opposition to Resentencing, Memorandum of Law, p. 1). The People, conversely, argued against defendant's motion to preclude resentencing (see People's Opposition to Motion to Preclude). On March 19, 2012, this court heard oral argument, after which it rejected defendant's arguments and resentenced him to a determinate term of twenty-five years imprisonment followed by a period of five years PRS.

As for a basis to claim that such resentencing was improper, there simply is none. His expectation of finality was not violated since he had not yet completed serving the 25–year determinate sentence originally imposed. In fact, at the time defendant was in year 13, with 11 more to serve. Moreover, since the defendant did not enter into a plea agreement as part of a bargain for a lesser determinate sentence, no issue of whether his plea was knowing, voluntary and intelligent is raised.

Finally, defendant's claim that this court neglected to set forth its reasons for resentencing him is meritless. First, Correction Law § 601–d was strictly followed. Additionally, the defendant, through counsel, was clearly made aware that he was being resentenced because his original sentence was to have included a period of PRS as required by mandated by Penal Law § 70.45. Since neither his sentence and commitment order nor the sentencing minutes indicated that any such period had been imposed, a resentencing hearing was scheduled and held. After reviewing the parties' written submissions and taking oral argument, defendant's motion to preclude resentencing without a period of PRS was denied. Consequently, he was properly resentenced with an additional period of PRS as mandated by statute.

Pre–Sentencing Report

Defendant's final claim, that he was entitled to a new or updated pre-sentencing report or its equivalent, is also meritless. True, Criminal Procedure Law § 390.20(1) requires that pre-sentence reports should be furnished to defendants convicted of felonies. But that provision does not speak to resentencing proceedings (Criminal Procedure Law § 390.20[1] ; see also Correction Law § 601–d ). Rather, a “court must order a pre-sentence investigation of the defendant and it may not pronounce sentence until it has received a written report of such investigation” (Criminal Procedure Law § 390.20[1] ). Thus, while a pre-sentencing report must be obtained prior to an initial sentencing, the “decision whether to obtain an updated report at resentencing is a matter resting in the sound discretion of the sentencing judge” (see People v. Kuey, 83 N.Y.2d 278, 282 [1994] ).

Indeed, the rationale behind not ordering an updated pre-sentencing report before resentencing is to avoid “unnecessarily adding to the heavy burden on the investigative service” (Kuey, 83 N.Y.2d at 282 ). Furthermore, when resentencing is ordered because of a “technicality and the reviewing court expresses no disagreement with the sentencing court's evaluation of sentence criteria or the appropriateness of the term imposed”, there should be no need to request an additional presentencing report (Kuey at 282).

Here, having agreed with the sentencing court, this court resentenced the defendant to the same determinate twenty-five year term of imprisonment, and imposing the requisite period of PRS. Had it been necessary or useful to order a pre-sentencing report, a report limited to information existing prior to the crime's occurrence, it would have done so. But no such need existed.

III. Conclusion

A motion to set aside a sentence pursuant to 440.20 may only be granted “upon the ground that [the sentence] was unauthorized, illegally imposed or otherwise invalid as a matter of law” (Criminal Procedure Law § 440.20 ). Despite defendant's protestations otherwise, this court's resentencing was not only entirely proper, it was both necessary and authorized under Correction Law § 601–d. And, as a practical matter, defendant's claim that the resentencing was unlawful and requires vacatur would yield the untenable result of having no sentence imposed; the original sentence could not remain as it was in fact unauthorized. Such a result would, of course, be patently absurd.

For the reasons set forth above, defendant's motion to set aside the sentence pursuant to Criminal Procedure Law § 440.20[1], is summarily denied.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the petitioner at his place of incarceration.


Summaries of

People v. Santos

Supreme Court, Bronx County, New York.
Dec 26, 2014
7 N.Y.S.3d 244 (N.Y. Sup. Ct. 2014)
Case details for

People v. Santos

Case Details

Full title:The PEOPLE of the State of New York v. Javier SANTOS, Defendant.

Court:Supreme Court, Bronx County, New York.

Date published: Dec 26, 2014

Citations

7 N.Y.S.3d 244 (N.Y. Sup. Ct. 2014)