Opinion
4302.
Decided April 23, 2009.
Julie A. Garcia, Esq., Essex County District Attorney, (Brian W. Felton, Esq., of counsel), Elizabethtown, New York.
Dominick J. Viscardi, Esq., Ticonderoga, New York, for the defendant.
Motion by the defendant to reargue and renew his prior motion to dismiss this resentencing proceeding under Correction Law § 601-d.
The defendant was convicted upon guilty plea in this court on July 17, 2001 of the crimes of attempted sodomy in the first degree (Penal Law § 110.00 and § 130.50), a class C violent felony, sexual abuse in the first degree (Penal Law § 130.65), a class D violent felony, and three class A misdemeanors consisting of two counts of endangering the welfare of a child (Penal Law § 260.10) and one count of sexual abuse in the second degree (Penal Law § 130.06[2]). He was sentenced on October 9, 2001 to a seven year determinate sentence of imprisonment on each felony conviction with the sentences to run concurrently. However, the sentencing court did not impose any period of postrelease supervision ( Penal Law § 70.45) as part of the sentence for either felony conviction.
By decision and order dated December 2, 2008 ( People v. Peer , 22 Misc 3d 620 , 875 NYS2d 822 [Table], 2008 WL 5069810), this Court denied the defendant's motion to dismiss, finding that § 601-d was enacted to allow for the resentencing of a defendant upon whom had been imposed a determinate sentence of imprisonment without an accompanying period of postrelease supervision and who has been subjected to such a period by the Department of Correctional Services (DOCS).
In identifying the possible avenues by which the failure to impose a period of Postrelease supervision at the time of sentencing could be corrected, this Court failed to take into account the holding in People v. Louree , 8 NY3d 541 , 838 NYS2d 18, 869 NE2d 18, that the failure of trial court to mention postrelease supervision at the time of a defendant's allocution is "not properly raised in a CPL article 440 motion" because "the omission at issue is clear from the face of the record" ( id. at 546, 838 NYS2d at 21-22, 869 NE2d at 21-22).
The defendant now moves for reargument claiming, inter alia, that this Court's prior decision and order was "based upon an inaccurate understanding . . . of the operation of Correction Law § 601-d and the defendant is not a designated person' within the meaning of that statute". He also seeks renewal, asserting that the imposition of a period of Postrelease supervision violates the defendant's constitutional rights against double jeopardy (US Constitution, Amendment V; New York Constitution, Article 1, Section 6), and to due process as the determination that the defendant is a "designated person" under the statute was not supported by clear and convincing evidence. Initially, the prosecution failed to timely oppose the motion, but with the consent of defendant's counsel the Court accepted the People's late filing. Because constitutional issues were raised challenging the validity of § 601-d in its application to persons such as the defendant who had served their determinate sentences and been released on Postrelease supervision by DOCS, notice was furnished to the Attorney General pursuant to Executive Law § 71(1) and CPLR 1012(b)(1). By letter dated February 3, 2009, the Attorney General declined to appear, but reserved the right to appear in any appeal from the decision rendered herein.
The defendant's notice of motion set a return date of December 29, 2008 at 9:30 a.m. and contained a demand that answering papers be served at least seven days prior thereto. The People waited until 3:00 p.m. on December 29, 2008 to serve answering papers. Upon the return date of the motion, the Court granted permission to the defendant to reargue and renew and reserved decision on the substantive claims contained in the motion papers. Thereafter, the defendant agreed to accept late service of the People's answering papers on the condition that his counsel would be allowed to file a response. Those papers have been filed and considered by the Court.
I.
The defendant's motion to reargue is centered around his claim that he is not a "designated person" under § 601-d because he served the determinate sentence and was released under postrelease supervision for a period administratively, and illegally, imposed by DOCS, relying primarily upon State v. Randy M. , 57 AD3d 1157 , 870 NYS2d 490, leave denied 11 NY3d 921, 874 NYS2d 3, 902 NE2d 438; People ex rel. Joseph II. v. Superintendent of Southport Correctional Facility , 59 AD3d 921 , 874 NYS2d 602; People ex rel. David NN. v. Hogan, 53 AD3d 841, 862 NYS2d 150, leave denied 11 NY3d 708, 868 NYS2d 600, 897 NE2d 1084). The defendant asserts, by way of analogy, that just as DOCS did not have jurisdiction to issue notices under Mental Hygiene Law article 10 ( see MHL § 10.05[b]) that the defendants in Randy M. and Joseph II. may be detained sex offenders nearing their respective release dates because both defendants were "improperly and unlawfully in the custody of DOCS due to violating terms of a period of postrelease supervision that was not properly imposed" ( State v. Randy M., supra at 1159, 870 NYS2d at 492) and thus "did not fall within the definition of a detained sex offender'( see Mental Hygiene Law § 10.03[g] [1])" ( id.), so too the defendant here cannot be deemed a "designated person" under Correction Law § 601-d because his period of Postrelease supervision administratively imposed by DOCS was improper and unlawful.
In David NN., the defendant's writ of habeas corpus was dismissed without a hearing where he was found to have qualified "as a detained sex offender' under more than one definition of that term, based upon his supervision by parole and his confinement under Correction Law § 402 ( see Mental Hygiene Law § 10.03[a])" ( 53 AD3d at 843, 862 NYS2d at 1520.
The defendant's argument here fails due to the particular definitions exclusive to Mental Hygiene Law article 10 proceedings, and the definition of a "designated person" applicable only to a re-sentencing proceeding under Correction Law § 601-d. As to the Mental Hygiene Law, an "agency with jurisdiction" to issue a notice is defined to include "that agency, which during the period in question, would be the agency responsible for supervising or releasing such person" ( MHL § 10.03[a]), and a "detained sex offender" is someone who "is in the care, custody, control or supervision of an agency with jurisdiction" ( MHL § 10.03[g][1] ). The defendants in Randy M. and Joseph II. were determined not to be detained sex offenders because neither defendant was lawfully in the custody of DOCS since the underlying parole release conditions which they were found to have violated were imposed by DOCS and not a court, and were thus illegal ab initio.
A "designated person" under Correction Law § 601-d is defined to include "inmates in the custody of the commissioner, and releasees under the supervision of the division of parole, upon whom a determinate sentence was imposed between" September 1, 1998 and June 30, 2008 and "the commitment order that accompanied such person does not indicate imposition of any term of post-release supervision . . . [and] the sentencing minutes . . . [do not] show that a term of post-release supervision was actually pronounced at sentence" ( Correction Law § 601-d [1]). There are only two situations in which a defendant who has completed his determinate sentence is released subject to a period of Postrelease supervision, namely, where the sentencing court properly imposed a period of Postrelease supervision at the time of sentencing and where a period of Postrelease supervision has been imposed (albeit illegally) by DOCS because the court failed to do so. Certainly, there would be no need to resentence a defendant under § 601-d if a period of Postrelease supervision had been imposed at the time of sentencing by the sentencing court. Thus, the only situation to which § 601-d is addressed is where the sentencing court failed to impose Postrelease supervision and DOCS did so administratively. Otherwise, the language of § 601-d regarding "releasees under the supervision of the division of parole" would be superfluous and without meaning as all persons released by DOCS under administratively imposed periods of Postrelease supervision would be excluded from its reach. Clearly, the legislative history and intent of the statute, which this Court addressed in its December 2, 2008 decision and order denying the defendant's prior motion to dismiss, indicates that persons who served their determinate sentence and were serving an illegal period of Postrelease supervision imposed by DOCS were subject to the resentencing proceedings established thereby. Thus, the defendant is a "designated person" within the ambit of Correction Law § 601-d.
The defendant's challenge to the determination by the Division of Parole DOCS that the defendant was a "designated person" under § 601-d, and his assertion that this Court "made no further inquiry as to whether or not the court has jurisdiction of the defendant pursuant to that representation", are both without merit. The Division of Parole is required to make such a determination: "Whenever it shall appear . . . to the satisfaction of the division of parole that a releasee under its supervision, is a designated person, such agency shall make notification of that fact to the court that sentenced such person and to the . . . releasee" ( Correction Law § 601-d [2]). Moreover, this Court's own independent review of both the commitment and the sentencing minutes revealed that no period of Postrelease supervision was imposed upon the defendant at the time the determinate sentence was announced, and it is undisputed that after serving the term of the determinate sentence the defendant was released on Postrelease supervision by DOCS.
The defendant's motion to reargue having been granted, upon such reargument the motion is denied.
II.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution "prohibits both multiple prosecutions for the same offense (following either conviction or acquittal) and multiple punishments for the same offense ( United States v. Halper, supra, 490 US, 440, 109 SCt, 1897; Helvering v. Mitchell, 303 US 391, 399, 58 SCt 630, 633, 82 LEd 917)" ( People v. Vasquez, 89 NY2d 521, 527, 655 NYS2d 870, 873, 678 NE2d 482, 485, cert. denied by Cordero v. Lalor, 522 US 846, 118 SCt 131, 139 LEd2d 80; see also People v. Biggs , 1 NY3d 225 , 229, 771 NYS2d 49, 51, 803 NE2d 370, 372). A court has the inherent power to correct an illegal sentence even when doing so will result in a more severe sentence ( see People v. DeValle, 94 NY2d 870, 704 NYS2d 924, 726 NE2d 476). Thus, a sentence may be increased without implicating the Double Jeopardy Clause "when the original sentence did not conform to a statutory requirement" ( U.S. v. Rosario, 386 F3d 166, 171, citing Bozza v. United States, 330 US 160, 166-167, 67 SCt 645, 91 LEd 818). As the Supreme Court stated in Bozza ( 330 US at 167, 67 SCt at 649, 91 LEd 818),
"This Court has rejected the doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence.' In re Bonner, supra, 151 US page 260, 14 SCt page 327, 38 LEd 149. The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. See King v. United States, 69 AppDC 10, 98 F2d 291, 296."
In the context of a sentencing court's failure to pronounce a period of Postrelease supervision, "the failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court could easily remedy [citations omitted]" ( People v. Sparber , 10 NY3d 457 , 472, 889 NE2d 459, 467, 859 NYS2d 582, 589).
With regard to constitutional due process, the "established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition,' [citation omitted], and implicit in the concept of ordered liberty,' such that neither liberty nor justice would exist if they were sacrificed,' [citation omitted]. Second, we have required in substantive-due-process cases a careful description' of the asserted fundamental liberty interest" ( Washington v. Glucksberg, 521 US 702, 721, 117 SCt 2258, 2268, 138 LEd2d 772). "[T]o determine whether due process requirements apply in the first place, we must look not to the weight' but to the nature of the interest at stake.' Board of Regents v. Roth, 408 US 564, 570-571, 92 SCt 2701, 2705-2706, 33 LEd2d 548 (1972). This has meant that to obtain a protectible right a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.' Id., at 577, 92 SCt at 2709" ( Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 US 1, 7, 99 SCt 2100, 2103-2104, 60 LEd2d 668). The defendant has failed to specify the fundamental right or liberty interest violated by the resentencing proceeding undertaken here. To the extent that the defendant relies upon an "asserted liberty interest [consisting of] the right to resist reincarceration and to protect settled expectations of freedom' [such interest] is not one protected by the Constitution when the defendant has been convicted, had that conviction affirmed, and the court seeks to impose a lawful sentence" ( U.S. v. Sanders, 452 F3d 572, 577 n. 4, citing Hawkins v. Freeman, 195 F.3d 749, 750).
Having granted the defendant's motion to renew his motion to dismiss the resentencing proceeding for violations of the Double Jeopardy Clause and his substantive due process rights, upon renewal of such motion the same is in all respects denied ( see People v. Hernandez , 59 AD3d 180 , 872 NYS2d 455; People v. Lewis, 60 AD3d 425, 873 NYS2d 489; People v. Rodriguez, 60 AD3d 452, 874 NYS2d 117). IT IS SO ORDERED.