The People of
the State of New York
against
Javier Santos, Defendant.
|
7183-1998
Defendant, pro se
Justin Braun
Assistant District AttorneyOffice of the Bronx District Attorney
718-838-7111
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-[*2]release supervision" (see former Penal Law 70.45, as added
by L 1998, ch 1).[FN1]
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),[FN2]
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.
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 [*3]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 [*4]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 [*5]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 [*6]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 NY2d 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 NY2d 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.
Dated: December 26, 2014
__________________________________
Richard Lee Price, J.S.C.
Footnotes
Footnote 1:This refers to the 1998
version of Penal Law § 70.45.
Footnote 2: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).