Opinion
June 9, 2001.
Alan Seidler, Nyack, for defendant.
Eliot Spitzer, Attorney General (Stacy Sabatinni of counsel), for New York State Department of Corrections.
Linda Lutz for New York City Department of Correction.
MEMORANDUM
This case presents the issue whether the New York State Department of Corrections may ignore an order of a Federal District Court Judge to run a federal sentence concurrently with a State sentence. The issue involves interpretations of a New York Statute, rules regarding comity, and the Supremacy provision and the Full Faith and Credit Clause of the Federal Constitution.
Background
On March 3, 1995, the defendant pleaded guilty to Criminal Possession of a Weapon in the Third Degree. As part of the plea bargain this court promised the defendant that it would sentence him to the minimum period of incarceration permitted by law for a second violent felon, i.e., a term of imprisonment having a minimum of 2½ years and a maximum of 5 years. Because of the impending Easter holiday and the defendant's desire to spend the time with his family, sentencing was scheduled for May 2, 1995. The defendant's bail was continued.
The charges arose out of a shooting which left the victim a paraplegic. The defendant has consistently refused to discuss the shooting.
On April 19, 1995, while awaiting sentencing, the defendant sold crack to a Federal confidential informant. He also agreed to make an additional sale of crack to the informant on May 1, 1995. On May 1, 1995, because the defendant's supplier could not supply the agreed upon drugs and the sale could not be immediately consummated, agents of the Federal Government arrested the defendant and charged him with Conspiracy to Possess with Intent to Distribute Cocaine Base.
On June 22, 1995, the Federal authorities produced the defendant in this court for sentencing. The court then sentenced the defendant as previously promised.
On May 31, 1996, United States District Court Judge Block accepted the defendant's guilty plea and sentenced the defendant to the custody of the Bureau of Prisons for 70 months to run concurrently with the State sentence, the minimum sentence under the federal guidelines given the defendant's category. The court stated that after completing his State incarceration, if it be less than 70 months, then he would be returned to the Federal government for completion of the balance of the jail portion of its sentence.
The defendant first served his federal sentence and was then returned to New York for service of the State sentence. The New York State Department of Corrections has refused to credit the defendant with any jail time served in a Federal facility.
As the United States Court of Appeals, Second Circuit, said, "the law governing prisoners subject to multiple sentences, particularly prisoners subject to multiple state and federal sentences, is hardly a model of clarity" (McCarthy v. Doe, 146 F.3d 118, 120 [2nd]).
Before considering the principles of comity and Federal Constitutional Law, the court should first look to New York State statutes so as to avoid, if possible, any constitutional problems (see, Beach v. Shanley, 62 N.Y.2d 241, 254 — courts should not decide constitutional questions, if the matter can be disposed of on a nonconstitutional basis).
Penal Law 70.25Penal Law 70.25 governs whenever multiple punishments are imposed. Subdivision 4 reads as follows:
When a person, who is subject to any undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction, is sentenced to an additional term or terms of imprisonment by a court of this state, the sentence or sentences imposed by the court of this state, subject to the provisions of subdivisions one, two and three of this section, shall run either concurrently or consecutively with respect to such undischarged term in such manner as the court directs at the time of sentence. If the court of this state does not specify the manner in which a sentence imposed by it is to run, the sentence or sentences shall run consecutively.
The last sentence of this subdivision states without qualification that where a court of this State is silent as to whether a sentence runs concurrently with a sentence from another jurisdiction, then the sentences are to run consecutively with the foreign sentence. However, this subdivision does not apply to this case. Reading the entire section as a whole unit, it is clear that the last sentence only applies when at the time of New York's sentencing there is an "undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction" (see, McCarthy v. Doe, supra, 146 F.3d, at 121-122).
At common law, it was presumed that if a court imposing sentence failed to state whether a period of imprisonment was to run concurrently or consecutively with another sentence simultaneously or a previously imposed by another court in the same jurisdiction, then the terms of incarceration were deemed to run concurrently with each other (People ex rel Winelander v. Denno, 9 A.D.2d 898, 899). This rule did not apply to sentences of imprisonment imposed by courts of another jurisdiction (id.; People ex rel Kendall v. Follette, 47 A.D.2d 546, 548). Thus, where a court is silent and the applicable statutes are silent as to whether a sentence is concurrent or consecutive with a sentence imposed by a different sovereignty, then the law presumes that the sentences run consecutively to one another (id.; Thomas v. Whalen, 962 F.2d 358, n6 [4th]; Gomori v. Arnold, 533 F.2d 871, 875 [3rd]; State v. Petersen, 305 Minn. 478, 483-483; Grimes v. Greer, 223 Ga. 628; Santifer v. State, 1976 WL 360 [Ark]; Herman v. Brewer, 193 N.W.2d 540, 544 [Iowa]; People ex rel Hesley v. Ragen, 396 Ill. 554, 562-563; see also, 90 ALR 3d 408, Credit on State Sentence at § 4[b] — and cases cited at p. 424). This is consistent with New York's policy that "service in a Federal prison will not expiate an offense against the dignity of the State" (People v. Ingber, 248 N.Y. 302, 306).
Interpreting the statute as giving binding effect to a foreign jurisdiction's sentence would be inconsistent with New York's common law, and infringe on New York's sovereign right to implement its penal sanctions. Absent evidence that the legislature intended to abrogate the common law, this court declines to interpret the statute in derogation thereof.
The court finds that the New York State Corrections Department's determination that the sentences were to run consecutively with each other was rational in light of the common law presumption of consecutiveness of the sentences.
The court holds, in accordance with New York's common law, that where a New York State court is silent as to whether a sentence runs concurrently or consecutively with a foreign sentence, the sentence is presumed to run consecutively with such foreign sentence.
The court must now consider the issue of comity.
Comity
In Ponzi v. Fessenden ( 258 U.S. 254), the United States Supreme Court identified the issue as follows (at 259):
We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in common territory. It would be impossible for such courts to fulfill their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure.
The United States Supreme Court then set forth the following rule (at 260):
The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose.
Thus, the jurisdiction "which first takes the subject matter into its control . . . must be permitted to exhaust its remedy" (see also, United States v. Evans, 159 F.3d 908, 992 [4th]; State v. Yee, 55 Ohio App.3d 88, at 88 n2; People v. Nokes, 25 Cal.App.2d 259, 260).
The Federal Courts have interpreted this to mean that the jurisdiction which first arrests a defendant has "primary" jurisdiction (In Re Liberatore, 574 F.2d 78, 89 [2d]; Thomas v. Brewer, 923 F.2d 1361, 1365 [9th]; Zerbst v. McPike, 97 F.2d 253, 254 [5th]; Millard v. Roach, 631 A.2d 1217, 1222 [DC]; Shumate v. United States, 893 F. Supp. 137, 139; Buggs v. Crabtree, 32 F. Supp.2d 1215, 1219; United States v. Ayscure, 187 F. Supp. 946, 947).
In this case, regardless of whether the standard is measured according to the principle that the first sovereignty to obtain subject matter jurisdiction or the first to arrest the defendant is the "primary" jurisdiction, New York had "primary" jurisdiction. This gave New York the right to have custody of the defendant at anytime it desired, and to have the defendant serve his sentence to completion before any other jurisdiction took action.
For an interesting case where the different standards could lead to a different result, the readers attention is called to the case of Buggs v. Crabtree (supra, 32 F. Supp.2d 1215).
The fact that defendant was released on bail by New York neither alters the fact that New York continued to have subject matter or personal jurisdiction over the defendant nor does it alter the fact that New York arrested the defendant first. A person released on bail remains under the custody and jurisdiction of the authority which released him and is seized for trial (see, concurrence by Justice Ginsburg in Albright v. Oliver 510 U.S. 266, 277-279; see also, Hensley v. Municipal Court, 411 U.S. 345, 348-352 — a person released on bail is in "custody" for the purposes of habeas corpus).
As a policy matter, it is difficult to imagine why New York would lose or forfeit primary jurisdiction by releasing the defendant on bail. At the time the defendant was released on bail, there existed no Federal crime and no Federal jurisdiction over the person of the defendant. How then could New York have lost or forfeited primary jurisdiction to the Federal Government?
Further, punishing a State for complying with the Federal Constitution mandates would violate principles of fairness. The Federal Constitution prohibits a State from keeping a defendant in jail prior to conviction on excessive bail. When a State sets a bail that a defendant can afford to post, the State is complying with the Federal Constitution. How can this act become a forfeiture of the State's right to "primary" jurisdiction? In this case bail was set prior to any conviction and the court accorded the defendant his rights under the Federal Constitution. New York State should not be punished by the loss of its "primary" jurisdiction because it obeyed the law.
The court finds that New York was the primary jurisdiction in this matter (United States v. Croft, 450 F.2d 1094, 1098, see dissent, Harkins v. Lauf, supra, 532 S.W.2d, at 465). Indeed, United States District Court Judge Block recognized this fact when he sentenced the defendant to concurrent time of incarceration with New York's sentence (United States v. Croft, supra, 450 F.2d, at 1096, 1099; Millard v. Roach, supra, 631 A.2d, at 1223 [DC]).
Apparently, the New York State Department of Corrections and the New York City Department of Corrections read Roche v. Salzer ( 675 F.2d 507 [2nd]) as contrary to this holding. Throughout the Roche decision the court uses the word "yield" not lost, not forfeited and not ended. Yielding primary jurisdiction does not mean that had the primary jurisdiction asserted its rights that the secondary jurisdiction would not be mandated to return the defendant to the primary jurisdiction. It is interesting to note that in Zeldes, the case relied upon in Roche, theRoche court cited Zeldes as saying (510), "The court found that the federal government yielded primary jurisdiction because it had allowed petitioner to be imprisoned by New York authorities without challenging their jurisdiction." The clear implication is that had the Federal Government challenged the jurisdiction, it would have been successful. This implies the opposite of the position of the New York Departments of Corrections. This implies that while a primary jurisdiction yields its rights to immediate custody by releasing a person on bail, it can reobtain its rights if it challenges the non-primary sovereignty's jurisdiction.
Similarly, the use of the word "relinquish" in the dicta in footnote 2 of United States v. Smith ( 812 F. Supp. 368, 370 n2) does not mean lost, forfeited or ended. It means permitted the secondary jurisdiction to have temporary physical custody. However, as in Smith any time the primary jurisdiction wishes to assert its rights, the primary jurisdiction could have done so.
In Chambers v. Holland ( 675 F. Supp. 618, 622) the court cited Roche and Smith and said: "Primary jurisdiction remains vested in the state which first arrested the defendant until that jurisdiction relinquishes its priority by, e.g., bail release, dismissal of the state charges, parole release, or expiration of the sentence. United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980). See also: Roche v. Sizer, 675 F.2d 507, 510 (2d Cir. 1982) (holding that federal court relinquished jurisdiction by releasing prisoner on bail). Primary jurisdiction over a state prisoner ends and Federal custody over him commences only when the State authorities relinquish him on satisfaction or extinguishment of the state obligation. Smith, 812 F. Supp. at 370, citing Thomas v. Whalen, 962 F.2d 358, 361 n3 (4th Cir. 1992)." The court recognized that bail temporarily relinquishes primary jurisdiction, but primary jurisdiction only ends after satisfaction of the state obligation.
The position taken by both Departments of Corrections is supported byTaylor v. Reno ( 164 F.3d 440, 445 [9th]).
The fact that a State is a "primary"jurisdiction does not mean that it should not deliver custody of a defendant to another sovereignty where the defendant has another pending matter. The primary jurisdiction is generally encouraged to permit a non-primary or secondary jurisdiction custody ("relinquish" or "yield" possession — see footnote 3 of this decision) of a defendant for the purposes of trial or disposition of the criminal matter pending in such jurisdiction (Ponzi v. Fessenden,supra, 258 U.S. 254; People ex rel Rainone v. Murphy, 1 N.Y.2d 367, 371-372). When a "primary"jurisdiction gives up control of a defendant under these conditions, it does not lose its rights as the "primary" jurisdiction and may insist upon the return of the defendant at any time (id.; Zerbst v. McPike, 97 F.2d, supra, at 254).
In this case the New York State Department of Corrections correctly permitted the Federal Government to maintain custody and control over the defendant until the United States District Court sentenced the defendant. The defendant had no right to complain about this. A defendant who commits crimes in two different jurisdictions cannot complain about the order of trial or sentence (id.).
The issue now facing the court is whether under comity the New York State Department of Corrections should have held that the sentences run concurrently with each other and demanded the return of the defendant to New York.
Comity does not require a primary jurisdiction to honor the order of a non-primary or secondary sovereign to run the non-primary or secondary jurisdiction's sentence concurrently with that of the primary sovereign (Pinaud v. James, 851 F.2d 27, 30 [2d]; Thomas v. Whalen, 962 F.2d 358, 362 [4th]; Opela v. United States, 415 F.2d 231, 232 [5th]; United States v. Custrad, 2000 US App Lexis 22720 [6th]; Jake v. Herschberger, 173 F.3d 1059, 1065 [7th]; United States v. Smith, 972 F.2d 243, 244 [8th]; United States v. Clayton, 927 F.2d 491, 493 [9th]; Bloomgren v. Belaski, 948 F.2d 688, 690-691 [10th]; Finch v. Vaughan, 67 F.3d 909, 915 [11th]). The reason for this is explained in Jake v. Herschberger (173 F.3d, supra, at 1065 [7th]) as follows:
The first bedrock principle that we must recognize in this case is that where an individual has committed crimes against two sovereigns, the issue of who has jurisdiction over him is a matter of comity between the two sovereigns. Jeter v. Keohane, 739 F.2d 257, 258 (7th Cir. 1984) (citing Ponzi v. Fessenden, 258 U.S. 254, 262 (1922)). As to the federal government, the authority to exercise this comity rests with the Attorney General, and an individual may not complain about her decisions . . . A corollary to this principle is that a determination as to concurrence of sentence made by one sovereign does not bind the other. A prisoner may not, by agreeing with the state authorities to make his sentence concurrent with a federal sentence, "'compel the Federal Government to grant a concurrent sentence.'" Pinaud v. James, 851 F.2d 27, 30 (2d Cir. 1988) (quoting United States v. Sackinger, 704 F.2d 29, 32 (2d Cir. 1983)); see also, Del Guzzi v. United States, 980 F.2d 1269, 1270 (9th Cir. 1992) (state judge ordering sentence concurrent with federal sentence and recommending immediate transport to federal authorities has no power to compel federal government to grant concurrent sentence or credit time served in state prison). Indeed, under the prior statutory scheme, we interpreted the authority of the Attorney General to designate the place of confinement of federal prisoners to be broad enough that a federal court's determination as to concurrence of a federal sentence with a prior state sentence was not binding on the Attorney General; such a federal sentence was a recommendation to the Attorney General that need not be heeded. United States v. Aleman, 609 F.2d 298, 309 (7th Cir. 1979); Montos, 261 F.2d at 40 (Federal Court designation that sentence was to be concurrent with prior state sentence was "surplusage" and of no effect); see also, United States v. Myers, 451 F.2d 402, 403 (9th Cir. 1972). Obviously, then, Jake's first argument must fail. The state court's designation of his state sentence as concurrent with his prior federal sentence created no obligation on the Attorney General to provide him with credit for time served in the state prison.
Comity recognizes the independence of the Federal Government from the State Government and vice versa in sentencing a prisoner for crimes committed within the jurisdiction of each sovereign (United States v. Smith, 972 F.2d, supra, at 244 [8th]). As stated in the above quote from Jake "a determination as to concurrence of sentence made by one sovereign does not bind the other."
The New York State Department of Corrections did not violate comity by finding that New York's sentence run consecutively with the Federal sentence and acted properly in failing to demand that the Federal Government return the defendant to this State after sentencing. Had the Federal Government ceded custody of the defendant to New York and had New York accepted custody of the defendant, then New York's order that the sentences run consecutively with each would have been rendered void by the Federal Government's order.
Supremacy Clause
Article V1 of the United States Constitution, as is relevant reads as follows:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
The text of the Supremacy Clause enshrines as "the supreme Law of the Land" only those Federal Acts that accord with the constitutional design. (Alden v. Maine, 527 U.S. 706, 731, Printz v. United States, 521 U.S. 898, 924-925). Both the national government and the state governments are independent entities within the spheres of powers granted them by the United States Constitution (Alden v. Maine, supra, 527 US, at 714-715; Printz v. United States, supra, 521 US, at 920-921).
Under the Federal Constitution, it is the States which have primary authority to enact and enforce criminal law (United States v. Lopez, 514 U.S. 549, 561 n3, quoting Brecht v. Abrahamson, 507 U.S. 619, 635,quoting Engle v. Isaac, 456 U.S. 107, 128). Thus, notwithstanding that the Federal Government has prohibited a particular criminal activity, the States, as independent sovereignties, may prohibit the identical activity without violating the United States Constitution (see, United States v. Wheeler, 435 U.S. 313; Abbate v. United States, 359 U.S. 187; Bartkus v. Illinois, 359 U.S. 121; United States v. Lanza, 260 U.S. 377).
Because in the area of criminal law the States are primary and are independent from the national government, the Supremacy Clause does not require New York to comply with a Federal sentence directive that a State and Federal sentence run concurrently. As indicated above, in the section designated "comity," where two independent jurisdictions act under powers granted them by the United States Constitution, each jurisdiction is free to enforce its criminal laws without regard to another jurisdiction's order or decision. No jurisdiction is superior to the other. Indeed in criminal law, the States are "primary" to the federal government (United States v. Lopez, supra, 514 US, at 561 n3, quoting Brecht v. Abrahamson,supra, 507 US, at 635, quoting Engle v. Isaac, 456 U.S. 107, 128).
Full Faith and Credit
Article IV, Section 1, of the United States Constitution provides that
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
In Farmland Dairies v. Barber ( 65 N.Y.2d 51), the Court stated (56-57):
The courts have stated as a general proposition that criminal judgments are not entitled to full faith and credit because no State is bound to enforce the penal laws of another State or to punish a person for a wrong committed against it (see, Nelson v. George, 399 U.S. 224). The rationale for this exception to the constitutional requirement is that each sovereignty is free to determine what conduct shall be proscribed within its jurisdiction and the wrong committed by violating such proscription is local, not transitory. The penal laws within the exception are those which seek to redress wrongs done to the public generally (Huntington v. Attrill, 146 U.S. 657, 668). Thus, States have denied recognition to foreign judgments relied upon by one State to recover penalties assessed against a criminal defendant found within their boundaries (see, e.g., Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 290; but cf. Milwaukee County v. White Co., 296 U.S. 268 ).
For this reason a State need not give full faith and credit to another jurisdiction's directive that sentences run concurrently with each other (Chailfoux v. Commissioner of Corrections, 375 Mass. 424, 427-428;Breeden v. New Jersey Department of Corrections, supra, 132 NJ, at 464;see, Barker v. State, 62 Ohio St.2d 35, 38-40; Gillis v. State, 333 Md. 69, 76-78). Each sovereignty is free to enforce its criminal laws as it deems appropriate.
The full faith and credit clause of the United States Constitution was not violated in this case.
Equity
While a strict enforcement of law does not mandate that the court honor a Federal directive to run a sentence concurrently some courts have exercised their equity power to effect the result in particular case (Millard v. Roach, supra, 631 A.2d, at 1222 [DC]; United States v. Croft, supra, 450 F.2d 1094 [6th]; Smith v. Swope, 91 F.2d 260 [9th];Kiendra v. Hadden, 763 F.2d 69 [2d] cf; Causey v. Civiletti, 621 F.2d 691, 694-695 [5th]). Other courts have held, under similar circumstances as present in this case, that there exists no equity jurisdiction (Thomas v. Whalen, supra, 962 F.2d 358). Other courts have avoided the issue by stating that even if there were equity jurisdiction, the result would have been the same (Jake v. Herschberger, supra, 173 F.3d, at 1066-1067).
The New York City Department of Corrections argues that United States v. Croft, (supra, 450 F.2d 1094) and Del Guzzi v. United States ( 980 F.2d 1269) are irreconcilable. The court believes that Del Guzzi did not request equitable relief and therefore the opinion is strictly a law decision. What the Del Guzzi court would have done if requested to exercise its equity jurisdiction is unknown.
This court has strong reservations that it may exercise its equity powers in this CPLR Article 78 proceeding. However, even if the court could so exercise, the result would be unchanged. In considering the equities in this case the court considers the following:
1. The Federal District Court ordered that the sentences run concurrently with each other according to that court's statements at the time of sentencing.
2. The defendant did not cause the current predicament. It is unfortunately unknown why the defendant was never delivered to New York for commencement of his sentence.
3. The defendant has undergone rehabilitation while in Federal custody.
4. The defendant was released on bail and committed another crime as well as planning a second crime.
5. The defendant received the promised sentence despite of having been arrested for another crime while out on bail. Generally, this court will not fulfill a plea promise where a crime has been committed while a defendant remains free on bail prior to sentencing.
6. The defendant was a second violent felon at the time of sentence, and now has a third felony (albeit nonviolent) conviction.
Balancing the equities, the court would have ordered that the sentences run consecutively with each other.
The special proceeding under CPLR Article 78 is dismissed.
The court in its prior decision has denied the CPL 440.20 and 430.10 motions.
[Portions of opinion omitted for purposes of publication.]