Opinion
No. 2971/1997.
2010-09-17
The PEOPLE of the State of New York, Plaintiff, v. Michael PACCIONE and Anthony Paccione, Defendants.
Christopher Blank, Esq., Kings County District Attorney, Brooklyn, for the people. Warren S. Landau, Esq., Appellate Advocates New York, for defendant, Anthony Paccione.
Christopher Blank, Esq., Kings County District Attorney, Brooklyn, for the people. Warren S. Landau, Esq., Appellate Advocates New York, for defendant, Anthony Paccione.
Ellen Dille, Esq., Criminal Appeals Bureau, Legal Aid Society, New York, for defendant, Michael Paccione.
MARK DWYER, J.
Defendants Michael and Anthony Paccione are before the court for re-sentencing after a remand from the Appellate Division, Second Department. In 2000 each defendant was sentenced in this case to an effective state prison term of 10 to 20 years, to be served consecutively to the federal sentence of seven and one-quarter years that each defendant already was serving. Defendants' primary contentions at this time are that they have a legitimate entitlement to lesser sentences as a result of pronouncements by this court in 2000 and 2005, and that this court cannot now re-sentence defendants to 10 to 20 year terms consecutive to their federal prison terms without violating the prohibitions against double jeopardy. The facts underlying the claim are somewhat complex, but the ultimate legal conclusions this court has drawn are simple. Defendants have no basis for complaint here, so long as their re-sentences do not exceed the original terms of 10 to 20 years, consecutive to the federal prison terms.
THE PRIOR PROCEEDINGS
The Federal and State Convictions
On December 16, 1996, defendants and a third man robbed a Costco facility on Third Avenue in Brooklyn. The “heist” could have been scripted in Hollywood. The three robbers gained entry to the building by posing as electricians. They displayed guns, tied up the employees, removed or disabled surveillance equipment, and stole over $165,000 from the vault. As the robbers made their escape, they threatened the employees with death if they reported the crime to the police.
Defendants were indicted on May 8, 1997, and released on bail. On or about March 3, 1998, defendants were charged in federal court with arson and related offenses for “torching” a warehouse on Long Island for insurance proceeds. They were remanded as of March 11, 1998, pending their federal trial. Defendants' state bail conditions were not affected, and thus they were in custody on the federal charges only. Defendants were convicted on the arson charges after a jury trial. On March 3, 1999, each defendant was sentenced to a prison term of seven and one-quarter years, and defendants were ordered to pay over $2,700,000 in restitution. See United States v. Paccione, 202 F.3d 622 (2nd Cir.2000).
In November 1999 defendants were transferred to the Brooklyn House of Detention to await trial for the Costco robbery. By now their state bail had been exonerated, and they were in custody as sentenced federal prisoners. Defendants were convicted on June 1, 2000, of Robbery in the First Degree and related charges. Defendants were sentenced on July 19, 2000, to 10 to 20 year prison terms on the robbery count, and to lesser concurrent terms on the remaining state counts. At sentencing the court expressly recited that “All sentences are to be served consecutively with defendant[s'] current federal sentence.” During the proceedings the Assistant District Attorney took pains to make clear that defendants had never been in custody on the state charges, but instead had been incarcerated to that point only on the federal arson case.
The sentence proceedings had been lengthy, but defendants were not done. Counsel for defendant Michael Paccione stated,
One further application, your Honor, that I neglected to make, and that is that these particular defendants have now been incarcerated since, I believe, 1997 in federal custody.
The correct date was March 11, 1998.
The defendants, you know, made a conscious effort to remain on bond in connection with this case. However, Judge, they were never returned to Brooklyn from federal custody ... and I couldn't make the application until the bodies were present last December.
I'd ask your Honor to give these defendants credit for the time they were in federal custody, nunc pro tunc, in connection with this case.
Counsel for Anthony Paccione joined the application. The court responded, “Now, I'm not sure how I'd have to make that happen.” Defendant Michael Paccione suggested, “Time served as of the date of federal custody.” The court answered, “That's fine.” The commitment orders contained no such entries, however. They specified simply that defendants' state prison terms were consecutive to their federal terms.
The Post–Conviction Proceedings
Defendants were returned to federal prison facilities to finish serving their federal sentences. In 2004 defendants were transferred to state prisons to begin serving terms of 10 to 20 years.
On April 20, 2005, an attorney representing both defendants sent a court clerk a letter seeking relief. Counsel suggested that the court issue a new commitment order to reflect that defendants were to receive credit “nunc pro tunc” for the time they had spent in custody after March 11, 1998. The People were not sent a copy of the letter.
On May 5, 2005, counsel appeared before the sentencing court. No one was present except for the defense attorney, the court, and the court clerk. In particular, defendants were not produced, and the People remained completely unaware of defendants' application. The entire record of the proceeding was quite brief:
THE CLERK: This is an add-on to the Part 18 calendar. Indictment 2971/1997, Michael and Anthony Paccione.
The defendants were serving a Federal term and also a State term that was running consecutively. So the State sentence is to run nunc pro tunc from 3–11–98 to the Federal case.
THE COURT: So ordered.
That same day a new commitment order was issued for each defendant. The new orders recited, as had the commitment orders in 2000, that the state and federal sentences were to run consecutively. However, they also contained the note “Amended to the extent that sentence originally imposed was to be non [sic] pro tunc to 3–11–98.”
Those orders apparently did not have the desired effect at the Department of Correctional Services. As evidence for that conclusion, new and entirely mysterious commitment orders were issued on July 15, 2005. In this instance, there was no correspondence from counsel, no court appearance, and once again no notice to the People. Indeed, it is unclear that there was even judicial involvement in the creation of the documents. These commitment orders purported to change defendants' sentences dramatically—they recited that the sentences were to run concurrently with defendants' federal sentences. The concluding remark on each document was that “D re-sentenced to the extent that original sentence is modified & new sentence to run concurrent to Federal case.” After receipt of the July 15, 2005, commitment orders, the Department of Correctional Services re-calculated defendants' possible release dates. Defendant Michael Paccione was paroled in December 2007, perhaps six years earlier than he could have been paroled were the state and federal sentences consecutive.
In the meantime the People had in August 2007 finally learned of the events of 2005, due to a request by defendant Michael Paccione for a pre-sentence report to submit with his parole application. As a result the case was calendared for February 4, 2008. On that date, the People asked the court to rescind the commitment orders of 2005 and re-state that defendants' state and federal sentences were to be served consecutively. The court granted that application:
If you look at page 47 of the sentencing minutes, you can see clearly what my thoughts were about the case. I think the last line that I said, which may be of interest to you [new defense counsel], is that I said:
However, each defendant's history persuades me that rehabilitation is unlikely and thus deterren[ce] from future criminal activity by these defendants is the primary goal of the sentence which I am imposing.
* * *
[Former defense counsel] requested that they be given time for the time that they were in federal custody, which was the same time that this case, the sentence case, was pending. And I said essentially:
That's fine. If they can.... That's all I meant. That's all I ever meant. With the changing of the papers, all I intended to do was effect what was possible. I never intended to give the two Paccione brothers concurrent time. Now I found out that it's a legal impossibility. So I had no intention of effectuating a legal impossibility. I wouldn't do that.
Moreover, I would never change a sentence ex parte. That would be completely out of order, and I wouldn't do that.
* * *
According to Penal Law Section 70.30, subdivision three, and Correction Law Section 600–a and People v. Johnson, 292 A.D.2d 803, Fourth Department 2002 ... suggests that the defendant cannot receive sentence [credit] for the period that they were in custody....
The court concluded,
... it was never my intention to change the original sentence. It was to effectuate what I said originally, which I assumed was legal. So, having said that, I am going to make sure that there is an amended sentence and commitment that reflects my original intention.
Present at this proceeding were counsel for the prosecution and for defendant Michael Paccione. Neither defendant was present, and defendant Anthony Paccione was not represented. That day a new commitment order was issued for each defendant. These orders stated that defendants' state sentences were consecutive to the federal sentences. The remarks indicated “amended to show consecutive to federal case, and to remove' nunc pro tunc.”
Based on the new commitment orders, the Department of Correctional Services again re-calculated defendants' possible release dates, and defendant Michael Paccione was reincarcerated. Defendants thereafter challenged the validity of the commitment orders of February 4, 2008. Those efforts culminated in a decision by the Appellate Division, Second Department, dated June 29, 2010, in an appeal brought by defendant Michael Paccione. People v. Paccione, 74 A.D.2d 1363 (2nd Dep't 2010). In a determination that would obviously apply as well to defendant Anthony Paccione, the Court concluded that defendant Michael Paccione has no substantive ground to complain of the sentence pronounced on February 4, 2008. He was not entitled to credit “nunc pro tunc” for time served in federal custody, and his re-sentence did not violate double jeopardy principles.
The Appellate Division did decide, however, that the 2008 proceeding was a re-sentencing, and that defendants had had a right to be present personally during that proceeding. The Court therefore remitted the case with instructions to re-sentence defendant Michael Paccione at a proceeding at which he has the opportunity to be present.
DISCUSSION
The parties have appeared before the court preparatory to the re-sentencing directed by the Appellate Division, and both defendants have filed letter-briefs with the court. Defendants assert that they are entitled to credit against their state sentences for the time they were in federal custody before being sentenced in state court in 2000. They also may mean to suggest that they are entitled to credit for the time they spent in federal custody after the date of their state sentencing, up until their delivery to state prison in 2004— i.e., that their sentences must now be concurrent. Defendants add their view that double jeopardy rules would prohibit re-sentences that do not provide credit for the time they spent in federal custody. This court rejects those positions.
A
In the first place, this court's mandate is narrow. In June the Appellate Division determined that defendants were not legally entitled to jail credit for the time they spent in federal prison and that defendants' double jeopardy claims were meritless. This court's task now is simply to impose sentence under the assumption that those determinations are correct, and to do so this time in defendants' presence.
It plainly is not for this court to reject the Appellate Division's legal conclusions. In any event, for the reasons that follow, this court believes that the Appellate Division was correct.
Defendants also suggest that the court should exercise its discretion to reduce their prison terms. That suggestion will be addressed not in this opinion, but at the sentencing proceeding that will follow.
B
As noted, defendants believe they are entitled to enforcement of the “time served” language uttered during the 2000 sentence proceedings and the “nunc pro tunc” statement in the commitment order signed on May 5, 2005. But while defendants believe that they should receive credit on their state sentences for time they spent in federal custody after March 11, 1998, they never quite make clear to what date they think that credit should run. Defendants may believe they should receive credit to the date of the state sentencing—July 19, 2000. If so, defendants would be claiming jail credit of about two years and four months. Alternatively, defendants may believe that they should receive credit to April, 2004, when their federal sentences expired and they were transferred to state prison. If so, defendants would be claiming credit for almost six years.
In fact, however, under state law defendants cannot legally receive any credit against their sentences for time they spent in federal custody, either before the date of their state sentence proceedings or after. Defendants were at liberty on bail in this case when they were incarcerated on the federal arson charges. Defendants thereafter were never in custody on any state charge, not only through the period of their federal sentencing but also until they were transferred to state prison in April, 2004. Even during the time when defendants were housed in a city jail before and during their state trial, the only basis for their custody was their federal conviction.
When defendants were sentenced in 2000 to prison terms consecutive to their 1999 federal prison terms, Penal Law Section 70 .30(2–a) applied:
Undischarged imprisonment in other jurisdiction. Where a person who is subject to an 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, to run ... consecutively to the said undischarged term, such additional term or terms shall commence when the prisoner is received in the appropriate institution as provided in subdivisions one and two of this section.
In turn, Penal Law Section 70.30(1), applicable when the state sentence is indeterminate, specifies that a prison term commences when the prisoner is delivered to a facility controlled by the state Department of Correctional Services. Accordingly, there is no doubt that defendants' state sentences commenced only in April, 2004, when they had finished serving their federal prison terms and were, for the first time, incarcerated in a state correctional facility.
The Legislature could have provided credit for time served before the commencement of the state prison terms—but did not. Before and since defendants' Costco robbery, Penal Law Section 70.30(3) has provided for credit for imprisonment prior to commencement of a sentence only where custody was “as a result of the charge which culminated in the sentence.” As noted, until the conclusion of defendants' federal sentences and their delivery in April, 2004, to the state Department of Correctional Services, they were never in custody as a result of the Costco robbery charges, the charges “which culminated in” the state sentences. Neither in 2000 nor in 2005 could the sentencing court provide defendants with credit for time served on their federal case: a court is not free to provide sentencing credits in contravention of the Legislature's mandate. See People v. Johnson, 292 A.D.2d 803 (4th Dep't 2002).
Notably too, defendants' request for such credit simply made no sense. Defendants received full credit against their federal sentences for the time they were in federal custody up through April, 2004—and that was all that could logically accrue to them. Defendants were, after all, sentenced in state court to consecutive time: their seven and one-quarter “federal” years were to be followed by from eight to ten “state” years, for a total sentence that would run from fifteen and one-quarter to twenty-five and one-quarter years. By receiving federal jail credit for the time spent in federal custody from March 11, 1998 to July, 2000, and indeed through April, 2004, defendants were receiving full credit against the joint federal-state sentence. To reduce the state portion of the sentence because of any time spent solely in federal custody would have been to give them double credit for that time, an entirely irrational result where consecutive sentences have been imposed.
In short, given the Legislature's specifications, any effort to give defendants jail credit for “time served” or “nunc pro tunc” was not legal. Where sentences are made to run consecutively, the sentencing court lacks that option. The oral “time served” statement by the sentencing court in 2000, and the “nunc pro tunc” provision in the commitment order of May, 2005, were therefore of no legal import. Understandably, those references were given no effect by the Department of Correctional Services. And in 2008 the sentencing court made very clear that it had intended jail credit to accrue to defendants only if that were legal, and recognized that such credit was not legal. Under New York law the courts are always free to correct illegal aspects of sentencing pronouncements. People v. Wright, 56 N.Y.2d 613 (1982); People v. Minaya, 54 N.Y.2d 360 (1981); People v. Prendergast, 71 A.D.2d 1055 (2nd Dep't), lv. to appeal granted, ––– NY3d –––– (August 26, 2010); People v. Somerville, 33 AD3d 733 (2nd Dep't 2006). There is therefore nothing illegal as a matter of state law in the court's clarification of its intent, and its refusal to state that credit was due defendants. The Department of Correctional Services will doubtless continue to calculate defendants' potential parole dates in accordance with the provisions of Penal Law Section 70.30(2–a) and (3), and will be correct to do so.
The May 5, 2005 proceedings culminating in the signing of the commitment order with “nunc pro tunc” language were flawed for procedural reasons as well. No notice was given of defendants' application for relief, the People were not present, and neither defendant was present. This court would conclude that the proceedings were a nullity and that the order could bind no one even if the order had made an arguably legal change in defendants' sentences.
A final observation should be made as to the mysterious commitment orders dated July 15, 2005. Those orders purported to change each defendant's state sentence by making it concurrent with his expired federal sentence. This court has no mandate to investigate, and no resources that would enable it to investigate, the genesis of those orders. It knows only what the parties and their evidence might show. Neither side, and in particular the defense, can offer any explanation for the orders of July 15, 2005. But it is plain that the People were not on notice, that no court appearance was held, and that no explanation or statement was made on the record. There is not even an indication that a judge knew of and approved of this “re-sentence.” This court concludes that the “stealth” proceedings of July 15, 2005, were entirely irregular and can have no legal effect whatsoever.
Defendants wisely do not now overtly claim that the orders of July 15, 2005, could actually change their sentences. The procedural irregularities in the proceedings alone dictate that position. In any event, the drastic modifications purportedly worked by these orders plainly violate the injunction of CPL Section 430.10 that, after a state sentence has commenced, that sentence may be changed only as authorized by law. No provision of New York law authorized a change in defendants' sentences more than a year after they commenced.
C
Defendants rely primarily not on New York law, but on double jeopardy principles. Defendants both claim that, based on the proceedings in 2000 and the commitment orders of May 5, 2005, they had a legitimate expectation that they would receive “nunc pro tunc” jail credit against their state sentences. Defendants would have it that, in February 2008, it was too late for the sentencing court to impose a “longer” re-sentence-one that did not include the “nunc pro tunc” language in its new commitment orders. Citing People v. Williams, 14 NY3d 198 (2010), defendant Michael Paccione goes a step further. He argues that his expectations were cemented in place when he was paroled for a short time in late 2007 and early 2008.
Defendants' analysis is faulty. As noted in Section B, any indication of a jail credit against defendants' state sentences for the time they spent in federal custody was not legal. Double jeopardy principles do not prevent a court from amending a sentence, even in a way that lengthens it, if that amendment corrects an illegal term of the sentence. Put another way, defendants have no legitimate expectation of finality in illegal sentences. See cases cited at p. 13, supra. Thus, even if one assumes that the sentencing court's “time served” and “nunc pro tunc” references to jail credit should be considered as actual portions of defendants' sentences, those impermissible references could be removed without offending constitutional principles.
Nor was there any material delay on the part of the People that might estop them from maintaining that defendants had no legitimate expectation of finality in “nunc pro tunc” jail credit. As the People had expected, the Department of Correctional Services correctly calculated defendants' potential release dates and disregarded their claims of jail credit. No action by the People was needed, and defendants were never misled as to when their sentences might end. That is obviously why defense counsel endeavored in 2005 to change the commitment orders, and eventually to eliminate the consecutive sentence provision: the Department of Correctional Services made clear that, given the consecutive nature of defendants' sentences, defendants could not receive jail credit for time served in federal custody.
The People did not protest the change to concurrent sentences in July, 2005, for the very simple reason that defendants' machinations that month were not accompanied by notice to the People. Defendants can hardly operate in secret, and then complain that the People did not speedily respond to their hidden actions. When defendant Michael Paccione's application for a presentence report finally alerted the People to what had gone wrong, they acted with reasonable dispatch in protesting to the Department of Correctional Services and then in placing the matter before the sentencing court in February 2008.
As noted, defendant Michael Paccione offers one argument that his brother cannot. Defendant Michael Paccione was paroled in late 2007 after the Department of Correctional Services, relying on the July 15, 2005, commitment order and its statement that the sentences were concurrent, recalculated his release date. Defendant asserts that recent cases have drawn a bright line, and that his sentence could not be increased once he was paroled. See People v. Williams, supra; see also People v. Grant, 75 AD3d 558 (2nd Dep't 2010).
Unfortunately for defendant, Williams does not apply here. After Williams it is clear that a court cannot correct a legal deficiency in a sentence once the defendant has in due course been released from custody. But even after Williams, an “accidental” release not related to an illegal sentencing term does not disenable the Department of Correctional Services from re-incarcerating a defendant, once the error has been discovered. See People v. Williams, 14 NY3d at 218 n. 3 (defendant was “erroneously released early by DOCS”); see also People v. Jason, 240 A.D.2d 760 (2nd Dep't 1997) (fraud and misrepresentation leads to release).
In this case, the illegal “time served” language used by the court in 2000, and the “nunc pro tunc” language in 2005, had nothing to do with the early parole of defendant Michael Paccione. The trial court always intended that defendants' sentences be consecutive to their federal sentences. The most the court might have thought to accord defendants was jail credit between March 11, 1998, and the state sentencing of July 19, 2000. But that two year and four months credit, if ever effected, would not have resulted in defendant Michael Paccione's parole release in 2007. Not only was the time too short, but the “nunc pro tunc” language in the commitment order of May 5, 2005, was correctly ignored by the Department of Correctional Services, which understood that this language was illegal. The sole cause of defendant's premature release was the July 15, 2005, commitment order, which purported to make the federal and state sentences concurrent. It was the “credit” of the full period of defendant's federal incarceration, almost six years, that resulted in his parole.
Defendant Michael Paccione cannot, and does not, rely on an argument that the July 15, 2005, order is valid or that it created an expectation of finality. As noted above, the “stealth” proceedings on or about July 15, 2005, lead this court to believe that their result is a nullity. Since this nullity is all that caused defendant's premature release on parole, this court considers that release to have been the equivalent of an accident, and that it could be corrected by reincarcerating defendant once the accident was discovered.
Simply put, it was not the “time served” or the “nunc pro tunc” language that led to defendant's release, but the “mistaken” statement in July 2005 that his sentences were concurrent. The sentencing court could correct that mistake in 2008, and reincarceration was the necessary result of it once again being clear that defendant's state sentence is consecutive to his federal sentence. That reincarceration, the result of the correction of an accident, violates no double jeopardy principle. The further elimination of the illegal “nunc pro tunc” language as defendant was being reincarcerated had no practical effect, and in any event was appropriate as well.
This constitutes the decision and order of the court.