Opinion
2732-2002.
Decided June 13, 2011.
Robert T. Johnson, Bronx County District Attorney, by: Cynthia A. Carlson, Esq., Assistant District Attorney, for the People.
Lauren Springer, Esq., New York, New York, for Defendant.
On November 14, 2003, the Court rendered a judgment following a jury verdict that convicted Defendant Crispin Guity of (1) attempted murder in the second degree (Penal Law §§ 110 and 125.25[1]), (2) criminal possession of a weapon in the second degree (Penal Law § 265.03), and (3) assault in the second degree (Penal Law § 120.05). Because Defendant is a "second violent felony offender," the Court sentenced him to twelve years imprisonment upon the murder count, eight years for the weapons count, and six years for assault, each to be served concurrently. No period of post release supervision (hereinafter "PRS") was imposed at sentencing and no reference to PRS appears on Guity's sentence and commitment sheet.
In June 2008, the New York State legislature enacted Correction Law § 601-d which provides a mechanism for courts to consider resentencing defendants serving determinate sentences without court-ordered post-release supervision terms (see generally, King v. Cuomo, 2011 US Dist. Lexis 384 [SD NY 2011]). By letter dated February 9, 2011, the Department of Correctional Services notified the Court that its record showed that Guity is a "designated person" within the meaning of Correction Law § 601-d(1).
At a special proceeding, the Court (Koretz, J.) determined that no PRS was imposed at Defendant's original sentencing. Consequently, the District Attorney now requests re-sentencing. In response, Defendant moves to preclude resentencing, arguing instead that resentencing, imposing post release supervision, violates state and federal constitutional prohibitions against double jeopardy and violates due process because Guity has served the majority of his prison sentence. In the alternative, if post-release supervision is imposed, Defendant says his sentence must be adjusted downward so that his overall sentence does not exceed the original sentence.
The hearing was held on March 21, 2011pursuant to Correction Law § 601-d.
Defendant's Position
According to Defendant, there are a number of reasons for not imposing PRS. For one thing, Defendant argues that because a significantly reduced recidivism rate exists for mature convicts like Defendant, there is no deterrent effect in imposing PRS against him now. An older Guity has long passed the adolescent peak in criminality.
Likewise, because post release supervision was not originally imposed, Defendant reasonably expected that his sentence would not be increased after he served a majority of his sentence (see generally, People v. Catu , 4 NY3d 242 , 245). Further, it is fundamentally unfair to extend the sentence when the appeal period expired (see generally, Stewart v. Scully, 925 F2d 58 [2nd Cir. 1991]) and it is likewise a double jeopardy violation (see generally, People v. Williams , 14 NY3d 198 ).
The Court notes that in DeWitt v. Ventetoulo, 6 F3d 32 (1st Cir. 1993) the federal court found a due process violation where resentencing took place where defendant had already been released to parole supervision.
Prosecutor's Position
In response, the prosecutor says that the Court can properly resentence Guity now to a term of post release supervision based upon the Court of Appeals' direction in People v. Sparber, 10 NY3d 457 (2008). In that case, the District Attorney says, the Court found that a determinate sentence which does not include a PRS period would be an illegal sentence and the remedy for a trial court's failure to pronounce that part of the sentence is a resentencing proceeding (see, People v. Sparber, supra.). Likewise, the District Attorney says, the Court of Appeals in People v. Williams, supra., only concluded that double jeopardy principles prohibit addition of PRS to sentences where defendants were released after completing their imprisonment. Because Williams does not involve persons still serving prison portions of their sentence, the prosecutor says, it is clear that no constitutional impediment exists here to imposing post release supervision. This defendant has not been released from custody and the fact that he served a part of his sentence does not warrant a different result.
Reply
In reply, Defendant renews his argument that federal and state double jeopardy principles bar imposing post-release supervision now because he substantially served his prison sentence. Regarding due process, Defendant says the fact that the statute of limitations for appeal of the sentence expired bars PRS (see, CPLR Rule 2103[b]). Concerning the recent Court of Appeals' decision in People v. Lingle, 2011 NY Slip Op 3308 (Ct. of Appeals 2011), Defendant concedes that the Court of Appeals held that imposition of PRS under these circumstances does not violate federal double jeopardy or due process principles. Nevertheless, to preserve and exhaust Defendant's federal constitutional rights, Defendant continues to object to PRS imposition at this delayed date based upon federal double jeopardy and due process grounds.
But see, People v. Thomas , 68 AD3d 514 (1st Dept. 2009).
Legal Discussion
The Court agrees with the District Attorney that a resentencing proceeding at this time, imposing a post release supervision, is not barred by double jeopardy because Guity is still serving his prison term and, therefore, has no reasonable expectation of finality concerning his sentence (see, People v. Escalera , 77 AD3d 510 [1st Dept. 2010]; People v. Williams , 77 AD3d 426 [1st Dept. 2010]; People v. Syville, 76 AD3d 908 [1st Dept. 2010]; People v. Padilla , 76 AD3d 907 [1st Dept. 2010]).
This Court rejects Defendant's due process and statute of limitations arguments (see generally, People v. Escalera, supra.). Defendant's claims are similar to arguments that were rejected in Escalera or are otherwise without merit (see generally, People v. Lanier , 82 AD3d 556 [1st Dept. 2011]; People v. Thomas , 68 AD3d 514 [1st Dept. 2009]). Most importantly, in People v. Lingle, supra., the Court of Appeals held that resentencing a defendant to PRS before completing the originally imposed imprisonment sentence in order to remedy a sentencing judge's failure to pronounce the PRS in open court does not violate double jeopardy, even where defendant had served substantial portions of his originally imposed sentence before resentencing. Likewise, there is nothing in the record to support an assertion that the prosecutor's conduct in seeking to resentence Defendant shocks the conscience as required to establish a substantive due process violation ( id.). The Court's error here in failing to pronounce post release supervision sentence in open court amounts only to a procedural error which the sentencing court can easily remedy ( id.).
Based upon the foregoing, it is
The Court read the following papers in deciding this motion; (1) March 31, 2011 letter in Opposition to Resentence with exhibit; (2) Affirmation in Opposition to Motion to Preclude Resentence; (3) People's Memorandum of Law (4) April 7. 2011 letter in Opposition to Resentence with exhibits, and (5) June 7, 2011 letter from Laura Springer, Esq.
ORDERED that Defendant Crispin Guity's application, seeking to preclude resentencing adding post release supervision to his sentence, is DENIED.
The foregoing constitutes the Decision and Order of this Court.