People v Embry

[*1] People v Embry 2009 NY Slip Op 50022(U) [22 Misc 3d 1105(A)] Decided on January 9, 2009 Sullivan County Ct LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 9, 2009
Sullivan County Ct

The People of the State of New York

against

Paul Embry, Defendant.



36-2001



APPEARANCES: Sullivan County Legal Aid Panel, Inc.

11 Bank Street

Monticello, NY 12701

By; Stephan Schick, Esq., of counsel

Attorney for Defendant

Hon. Stephen F. Lungen

Sullivan County District Attorney

Sullivan County Courthouse

Monticello, NY 12701

By: Bonnie M. Mitzner, ADA, of counsel

Attorney for the People

Frank J. LaBuda, J.

This matter comes before this Court pursuant to the People's motion that Paul Embry ("Defendant"), whose original prison sentence did not include a term of statutorily required post-release supervision ("PRS") be resentenced to a term that includes PRS.

The issues herein are whether (1) a court loses jurisdiction to resentence a defendant after the defendant has already served the court ordered term of incarceration; (2) whether Double Jeopardy does not allow a court to resentence a defendant after the defendant has already served the court ordered term of incarceration; (3) whether a defendant's due process rights do not allow a court to resentence a defendant after the defendant has already served the court ordered term of incarceration.

This Court finds that the Defendant is under its jurisdiction, a resentence does not violate the defendant's due process rights, a resentence does not violate the Double Jeopardy clause; thus, granting the People's motion to resentence the defendant. [*2]

Background

On June 28, 2001, Defendant pled guilty to Second Degree Burglary and was sentenced to a negotiated sentence of six years in state prison. After entering the prison system, the Department of Corrections ("DOCS") modified his sentence to include a five-year term of PRS.

On October 6, 2003, Defendant, pro se, filed with this Court a § 440.20 appeal claiming, among other claims, that the PRS added to his sentence was illegal because he did not know about the PRS when he plea-bargained and was not told of the PRS when he was sentenced. The People responded, and opposed on the grounds that the defendant should have brought this issue on direct appeal after he was sentenced, not through a § 440.20 motion more than two years later.By Decision and Order dated October 17, 2007 this Court denied Defendant's motion.

Prior to the resolution of the § 440.20 motion, on August 10, 2007, Defendant filed a CPLR § 78 Order to Show Cause in the Supreme Court of Albany County on the same grounds as the § 440.20 motion. On April 2, 2008, the Albany Supreme Court granted the Defendants § 78 motion and issued a Writ prohibiting DOCS from imposing any PRS. Subsequently, on June 20, 2008, the District Attorney of Sullivan County filed a motion with this Court requesting that this Court resentence the defendant to the additional statutorily required term of PRS.

Defendant's situation, in which the PRS was not added at the original sentencing, is not a peculiar one in New York. In 1998, the Legislature enacted Penal Law § 70.45(1) requiring second violent felony offenders to serve a mandatory term of five-year PRS. Because the PRS was mandatory, a large number of courts made no mention of it when sentencing a second violent felony offender.

In subsequent litigation, the Court of Appeals ruled that if a defendant had no knowledge of the PRS he can vacate his guilty plea. People v. Cantu, 4 NY3d 242 (2005). Most defendants in this situation, instead of vacating their guilty plea, simply tried to have their PRS term removed from their sentence.

In April of 2008, the Court of Appeals ruled that DOCS cannot add the PRS term even if the defendant does not vacate the guilty plea. See, Matter of Garner v NYS Dep't of Corr. Services, 10 NY3d 385 (2008). That same day, the Court of Appeals also ruled that prisoners not given the PRS at time of the sentencing must be remitted back to the sentencing court for resentencing. People v. Sperber, 10 NY3d 457 (2008).

The People maintain that Sperber speaks directly to the issue at hand, and requires this Court to resentence the defendant with the additional term of PRS. Defendant objects, maintaining that Sperber does not speak to his situation because he is already out of prison. Defendant asserts that once he finished his originally imposed term of incarceration this Court has lost jurisdiction over his body because resentencing violates the Double Jeopardy clause and his Due Process rights. [*3]

JURISDICTION

As a threshold issue, this Court must determine whether it has jurisdiction over the defendant. The Defendant argues that for two reasons this Court lacks jurisdiction. Firstly, Defendant asserts that since the defendant has completed this Court's original sentence this court loses jurisdiction over his person. Secondly, Defendant maintains that an unreasonable time lapse between a conviction and sentence causes a court to lose jurisdiction, and in this case, seven years have elapsed since the Defendant's conviction without the Defendant given his correct sentence.

Defendant's first basis for loss of jurisdiction is that since the Court's original sentence has expired the court has lost jurisdiction over the defendant. However, this Court's original sentence as illegally lenient; thus, not only did the first sentence not cause this Court to lose jurisdiction, this should be required to resentence the Defendant. In support of its claims, the Defendant cites to People v. Quinones, 272 AD2d 228, which holds that a trial judge had no jurisdiction to revoke a probation sentence after the probationary period has expired. However, Quinones is irrelevant because it concerns a resentence after the expiration on an original valid sentence, thus distinguished this instant case where the original sentence was invalid.

Defendant second basis for this Court's loss of jurisdiction is that an unreasonable delay between the conviction and sentencing causes a trial court to lose jurisdiction. Defendant argues that this Court loses jurisdiction if they do not give him his "real" sentence within seven years of his conviction. In support of its claims, Defendant cites to People v. Drake, 61 NY2d 359 (1984), which holds that a court loses jurisdiction after a 39 month delay and ex rel Harty v. Fay, 10 NY2d 374 (1961), which holds that a court loses jurisdiction after six year delay. Defendant asserts that the People could have requested resentencing when the Defendant filed his 440 motion in 2003. Thus, if the People chose not to, they cannot request that this Court give the defendant the "real" sentence seven years after the guilty-plea.

However, recent guidance from the Court of Appeals points to the contrary. In People v. Sperber, supra, which involved incarcerated prisoners appealing their post-sentence PRS imposition, the Court of Appeals opined that the cases should be remitted back to the sentencing court for resentencing in compliance with the statutorily required term of PRS. In Sperber, some of the defendants were - similarly situated - six years after their trial. Thus, the more contemporary rationale does not see a court lose its jurisdiction over a defendant after a sentencing delay.

DUE PROCESS

Defendant asserts that resentencing him to an additional term of PRS is "fundamentally unfair" and violates his Fourteenth Amendment Due Process rights. Defendant cites to a First Circuit case, DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir. 1993), in which a defendant with a life sentence was granted parole a few years too early with no evidence that he knew he went for parole too early and then settled into his new life. In that case, the Court of Appeals held that it would violate his Due Process rights to resentence the defendant to life in prison. However, this Court is not persuaded by the 1st Circuit.

As the Ventetoulo court itself noted, precepts in due process rights "are very general, and everything depends on the circumstances." Id. at XX. The circumstances in this case pale in comparison to Ventetoulo.

In the case at hand, DOCS immediately added the required PRS when the defendant entered the prison system. Defendant admits that he know about the PRS shortly after he was incarcerated. Moreover, any resentence in this case does not involve life in prison, nor does it involve any incarceration. Thus, this Court finds it "fundamentally fair" to add a term of PRS to a criminal defendant when the defendant was originally required to get a term of PRS and knew soon after his incarceration period that the People planned to add a term of PRS to his sentence.

DOUBLE JEOPARDY

Defendant asserts that the Double Jeopardy clause of the Sixth Amendment does not allow for his resentencing. Defendant cites to United States v. Difrancesco, 449 U.S. 117 (1980), the United States Supreme Court which promulgated an "expectation of finality" standard for all resentencing-Double Jeopardy claims. Defendant maintains that he had an "expectation of finality" when he was sentenced to a term without PRS. However, Defendant's reliance on Difrancesco leads to his argument's undoing.

Difrancesco came about from a racketeering conviction sentence that the United States Attorney felt was too lenient. After their appeal for a resentence was dismissed on Double Jeopardy grounds by the Court of Appeals, the U.S. Supreme Court accepted certiorari. The Supreme Court in its analysis promulgated a Double Jeopardy multiple punishments standard in which the issue to look at is whether the criminal defendant had an "expectation of finality". Applying their standard to the facts before them, the Court reversed the Court of Appeals, holding that since the racketeering statute that he was convicted under specifically provided for prosecutorial appeal of a too-lenient sentence the defendant cannot claim that he had an "expectation of finality". If, as Difrancesco held, the possibility of prosecutorial appeal precludes an "expectation of finality", a fortiori, in this case, where the original sentence was invalid, the defendant cannot claim an "expectation of finality".

Another case Defendant marshals for support is United States v. Rico, 902 F.2d 1065 (2d Cir. 1990). In Rico, a defendant facing drug charges, agreed to a three-year prison sentence. [*4]However, at the sentencing hearing, the government was represented by another Assistant Attorney who was unfamiliar with the plea agreement and erroneously stated that the agreement was for time served; the defendant was then released. Three days later, the government notified the court about the mistake, and the court commended a hearing in which it resentenced the defendant to the correct three-year sentence. The Court of Appeals upheld the resentence in the face of a Double Jeopardy challenge, reasoning that any "expectation of finality" was unreasonable considering the defendant knew there was a mistake.

Notwithstanding its result, Defendant relies on Rico, supra. Defendant points to where the Rico Court mentioned that the mistaken sentence included PRS, so the defendant was still serving the first sentence at the time of the resentence. Defendant extrapolates from this that in the 2nd Circuit resentencing will violate the Double Jeopardy clause if the defendant is no longer serving the resentencing court's original sentence. Thus, Defendant argues that having finished serving this Court's original sentence any resentence runs head-on into Double Jeopardy.

However, this Court does not share the opinion taken by the defendant. From the general context of the decision, it is clear that the Rico court did not intend to make Double Jeopardy dependant on whether the defendant was still serving the original sentence. Rico was following Difrancesco's lead and making an "expectation of finality" analysis. The Rico Court brought up the fact that the defendant was still under the original sentence to point out that technically the whole Double Jeopardy issue does not apply to that defendant. Double Jeopardy only applies when there is a resentence after the original term has expired.

In addition, "[T]he expectation of finality comes from the prospect of release as defendant nears the end of his or her prison term. See, Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.), cert. denied, 439 U.S. 933 (1978). In this case, Defendant knew about the additional PRS at the beginning of his sentence.

Based upon the above, it is

ORDERED, that the motion by the People to resentence Paul Embry is granted, and it is further

ORDERED, that the Sullivan County Court Clerk shall schedule this matter for resentencing, with proper notice to all parties, forthwith.

This shall constitute the Decision and Order of this Court.

DATED: January 9, 2009

Monticello, NY

________________________________

Hon. Frank J. LaBuda

Sullivan County court Judge

and Surrogate