People v Rogers
Annotate this CaseDecided on October 28, 2008
Supreme Court, Kings County
The People of the State of New York
against
Anthony Rogers, Defendant.
4608/99
For the Defendant:
Steven Banks, Esq.
THE LEGAL AID SOCIETY OF NEW YORK
By: Elon Harpaz, Esq. of Counsel
For the People:
Hon. Charles J. Hynes, District Attorney of Kings County
by: Assistant District Attorney Jodi Mandel, Esq.
Joel M. Goldberg, J.
This matter is before the Court for a resentencing hearing pursuant to a
notification from the New York State Department of Corrections (DOCS) as required by
Correction Law 601-d.
By a motion dated October 2, 2008 the defendant moves for an order barring the addition of a period of post-release supervision (PRS) to his previously imposed sentence. The People oppose the defendant's motion in papers dated October 17, 2008. The defendant filed a reply, dated October 27, 2008.
The defendant was convicted after a jury trial of Robbery in the Second Degree, a violent felony offense (see PL 70.02), and Unlawful Imprisonment in the Second Degree arising out of his forcible theft of an automobile containing a passenger committed on June 4, 1999. The defendant was sentenced on March 22, 2000 as a second violent felony offender to a determinate prison term of 11 years on the robbery conviction and a concurrent prison term of one year on the unlawful imprisonment conviction. A separate term of PRS was not imposed, although, pursuant to PL 70.45 (2), a five-year period of PRS was required. (For violent felony offenses committed after September 1, 1998, Penal Law PL 70.45 [1] states, in pertinent part: "Each determinate sentence also [*2]includes, as a part thereof, an additional period of post-release supervision.")
Until the implementation of PRS was clarified by subsequent appellate decisions, many, if not most, sentencing courts assumed for several years that a separate pronouncement of a term of PRS was not required. PRS was a new concept intended to provide for a period of supervision after a violent felony offender was released from prison. PRS is similar to parole which also provides for a period of supervision after an offender's release from prison. However, a critical distinction is that the period of PRS is added to the maximum prison term imposed by the court, thus increasing the effective length of the sentence, while in contrast a released offender's time on parole is served after release from prison prior to the expiration of the maximum prison term imposed by the court. Therefore, parole time does not increase the length of the sentence. See People v. Catu, 4 NY3d 242, 245 (2005). (This distinction was not widely appreciated by court personnel, including judges. It was not for several years after the enactment of PL 70.45 that the official pre-printed OCA sentencing commitment orders were modified to include a specific space to note that PRS was an additional component of the sentence.)
Plea discussions often did not include mention of PRS, because the fact that PRS would be added to the maximum term imposed was generally overlooked as a component of the plea negotiations. This resulted in many defendants pleading guilty and being sentenced without knowing that PRS would be part of their sentences. It was not until 2005, many years after the September 1, 1998 effective date of PL 70.45 (1), that the Court of Appeals decided for the first time that a defendant who pleaded guilty without being informed of the mandatory applicability of PRS to the sentence would have a right to withdraw the guilty plea. People v. Catu, 4 NY3d at 245.
For those many defendants convicted of violent felony offenses but who were sentenced in the absence of a court-imposed term of PRS, DOCS would "administratively impose" a term of PRS to be effective upon the defendant's release from custody. See Earley v. Murray, 451 F3d 71, 72 (2nd Cir. 2006), reh denied, 462 F3d 147 (2006). Until this administrative practice by DOCS was found in Earley to violate the due process rights of a defendant to be present and hear the sentencing court "pronounce" the sentence, New York appellate courts had consistently held that PRS was automatically part of the sentence pursuant to PL 70.45 (1) and could be administratively effectuated by DOCS even in the absence of a judicial pronouncement of PRS. See People v. Thomas, 35 AD3d 192 (1st Dept. 2006), mod and remanded, 10 NY3d 457 (2008); Matter of Deal v. Goord, 8 AD3d 769 (3rd Dept. 2004), appeal dismissed, 3 NY3d 737 (2004), reconsideration denied, 4 NY3d 795 (2005); People v. Crump, 302 AD2d 901 (4th Dept. 2003); lv denied, 100 NY2d 537 (2003); People v. Bloom, 269 AD2d 838 (4th Dept. 2000), lv denied, 94 NY2d 945 (2000).
Until Earley, New York State appellate courts had approved the administrative imposition of PRS, and even the District Court in Earley (Korman, J.) had held that the administrative imposition of PRS by DOCS did not violate the defendant's due process [*3]rights. Earley,451 F3d at 73.
Although invalidating an administratively imposed term of PRS,the Second Circuit in Earley specifically noted that its ruling was not intended to prevent the sentencing court from subsequently modifying the defendant's sentence in the defendant's presence to include the mandatory PRS term. Earley, 451 F3d at 77.
Following the decision in Earley (which was "persuasive authority" but not binding on New York State courts), several trial level and appellate courts in New York followed the rationale of Earley and invalidated administratively imposed terms of PRS, but it was not until April 29, 2008 that the Court of Appeals in Matter of Garner v. New York State Department of Correctional Services, 10 NY3d 358 (2008), adopted the holding in Earley and held that PRS could not be administratively imposed in the absence of a specific pronouncement by the sentencing court. Like the decision in Earley, the Court in Garner, at 363 n 4, noted that its ruling was "without prejudice to any ability that the People or DOCS may have to seek the appropriate resentencing of a defendant in the proper forum."
Also on April 29, 2008, the Court of Appeals decided People v. Sparber, 10 NY3d 457 (2008), in which five separate defendants, two who had pleaded guilty and three who were convicted after trial, were found to have had PRS improperly added to their sentences, because PRS had not been specifically pronounced by the sentencing court. The Court held, "[t]o remedy this error, rather than striking PRS from the sentences as urged by the defendants, these matters must be remitted to Supreme Court for resentencing and the proper judicial pronouncement of the relevant PRS terms." Sparber, 10 NY3d at 465. The Court specifically noted that striking the PRS terms would leave the defendants with "a windfall that greatly exceeds any harm that they have purportedly suffered." Sparber, 10 NY3d at 469.
From the above cases, it is clear that a defendant who, due to judicial error, did not have PRS properly pronounced at the time of sentence could not legitimately expect to be exempt from having PRS imposed at a later sentencing proceeding (unless the defendant had pleaded guilty and had the option to withdraw the underlying guilty plea pursuant to Catu).
Following the decisions in Garner and Sparber, the Legislature enacted a series of statutes to allow for the orderly processing of the thousands of defendants sentenced between September 1, 1998 and July 1, 2008 who did not have PRS properly imposed. See Chapter 141 of the Laws of 2008, effective June 30, 2008. The defendant is now before the Court in accordance with this legislation.
The defendant contends that the Double Jeopardy Clause of the United States Constitution bars his resentencing, because he is due to be released from prison on November 1, 2008 after serving over nine years of his 11-year sentence and has developed a legitimate "expectation of finality" in the original sentence. United States v. DiFrancesco, 449 US 117, 139 (1980). The defendant further contends that the above-[*4]quoted language in Garner and Sparber that appeared to approve resentencing to add a term of PRS did not include cases such as this where a defendant has served most of his sentence and, thus, resentencing would be beyond "the outer limits" of a court's inherent power to correct an illegal sentence.
However, in this case the defendant, from the perspective of an objective legal observer, did not have a legitimate expectation that PRS would not be a part of his sentence based on the fact that PRS (1) was statutorily mandated, (2) had been administratively imposed by DOCS with the approval of New York appellate courts in other cases where the sentencing court had failed to do so, (3) when that administrative procedure was held to be improper in Earley and Garner, those decisions, as well as the decision in Sparber, noted that resentencing to include a term of PRS would not be improper, and (4) following the decisions in Garner and Sparber, legislation to accomplish these resentencings was promptly enacted.
Under the circumstances of this case, it is not appropriate to focus on what any particular defendant may have expected insofar as whether PRS was, or would later be, part of his sentence. To determine if this and the scores of other similarly situated defendants actually had "an expectation of finality" would be impossible and, even if possible, produce results in individual cases that would vary depending on chance events such as conversations that a particular defendant may have had or whether a particular defendant had spent time in a law library. Imposing an objective standard for what the law recognizes as a "reasonable expectation of privacy" in various situations is a traditional tool in Fourth Amendment litigation. See People v. Ortiz, 83 NY2d 840 (1994) (overnight guest in an apartment has no reasonable expectation of privacy and, therefore, cannot contest a police search of the apartment). In this case, given the changing status of administratively imposed PRS, a similar objective test is appropriate, and, under all the circumstances, a five-year term of PRS was at all times mandatory. Therefore, it would be unreasonable to assume it would not be imposed.
Even though PRS was not pronounced by the sentencing court at the time of the defendant's sentence, this "amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy." Sparber at 472 (citations omitted). Correcting this error does not amount to a violation of the Double Jeopardy Clause which, "does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." DiFrancesco at 137. This is particularly true where there was no legitimate expectation that PRS would not be included in the sentence, even if the defendant himself was not aware of that fact. See People v. Somerville, 33 AD3d 733, 734 (2nd Dept. 2006) (a defendant convicted after trial and who does not receive any assurances of what the sentence will be "has no legitimate expectation of finality of the original sentence for double jeopardy purposes should it later turn out to have been illegal").
The defendant also argues that the addition of PRS at this juncture would be so [*5]fundamentally unfair as to violate his constitutional right to due process of law, because "the power of a sentencing court to correct even a statutorily invalid sentence must be subject to some temporal limit." Breest v. Helgemoe, 579 F2d 95, 102 (1st Cir. 1978). In this case, which represents one of thousands where PRS was not imposed due to judicial oversight and a misunderstanding of how to effectuate a new statutory provision, and where the Legislature has made a special effort to facilitate resentencing defendants to appropriate terms of PRS in order to avoid giving them a "windfall" as noted in Sparber at 469, any unfairness that may be perceived in resentencing the defendant is outweighed by the adverse effect on public safety of not doing so when multiplied by the number of other similarly situated defendants.
Accordingly, the defendant's motion is denied.
SO ORDERED
JOEL M. GOLDBERG
JUDGE
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