Tuesday, February 23, 2010

What Will Be Done Regarding The Many People Illegally Resentenced To Post-Release Supervision?

In April, 2008 the Court of Appeals in People v Sparber (10 NY3d 457 [2008]), held that only a judge, and not prison or court clerks can impose Post Release Supervision [PRS], even when sentencing courts failed to pronounce PRS as required by law. New York reacted to this this holding by enacting Correction Law 601-d which purports to empower courts to re-sentence person to PRS, even after they have already served their complete sentence. The authority of courts to resentence under this statue was challenged on both statutory and constitutional grounds.

This issue was resolved in People v Williams (__NY3d__, 2010 NY Slip Op 01527 [2/23/10]), in which the Court of Appeals, in a decision considering five such challenges, held that
after release from prison, a legitimate expectation in the finality of a sentence arises and the Double Jeopardy Clause prevents reformation to attach a PRS component to the original completed sentence.... So long as an illegal sentence is subject to correction, a defendant cannot claim a legitimate expectation that the originally-imposed, improper sentence is final for all purposes (see United States v Fogel, 829 F2d 77, 87 [DC Cir 1987])...Yet, there must be a temporal limitation on a court's ability to resentence a defendant (see generally DeWitt v Ventetoulo, 6 F3d at 34-35) since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts. Even where a defendant's sentence is illegal, there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired). In these situations, the sentences are beyond the court's authority and an additional term of PRS may not be imposed. With the caveats we have identified, in a case where PRS was not formally pronounced by the sentencing court pursuant to CPL 380.20, we hold that the Double Jeopardy Clause prohibits a court from resentencing the defendant to the mandatory term of PRS after the defendant has served the determinate term of imprisonment and has been released from confinement by DOCS.

Obviously great news for those who challenged their resentence and those who had been facing resentencing. But what about the many people (perhaps thousands) who have already been resentenced and are now either serving or are in custody in violation of unconstitutionally imposed PRS? Are the Department of Corrections and Division of Parole going to identify who these people are and inform them that they were apparently resentenced illegally and, as appropriate, entitled to stop serving PRS or to release from prison? If that is asking too much, will the Department of Corrections and Division of Parole at least notify judges who apparently illegally resentenced people that they may wish to notify those affected. Don't forget after Sparber was issued, judges were notified by these Departments that they should resentence those who had not been sentenced to PRS, even when, as we now know, those resentences were unconstitutional? So having help create this problem, one would hope these Departments will take steps mitigate the harm. Isn't it wrong, absent any lawful sentence or authority, for New York to continue to keep these people either locked up reporting to PRS when the State knows those sentenced were unconstitutional. Don't we have a budget crisis?

If a sense of fairness and right doesn't motivate New York, how about money? Can we afford to incarcerate or supervise people with no lawful sentences? Can we afford the lawsuits that ultimately will be brought by those illegally kept in custody by a state which does not notify them of the Williams decision?

Saturday, February 20, 2010

King Solomon and Guilty Pleas

Mr. Brown (_ NY3d __, 2010 NY Slip Op 01376 [2/18/10]) was in jail while awaiting prosecution on a robbery charge. From the moment of arrest he consistently proclaimed his innocence. Then the defendant's son was in the hospital and in a coma as a result of multiple gunshot wounds. Jail officials deny the man’s request for permission to go hospital to see his child. At the next court appearance, the court informed of the terms of the proposed plea bargain. The court then states

your attorney told me [that] you were interested in taking the plea if I were to give you a furlough for three weeks to allow you to see your sick child," who was still in the hospital. Defendant responded in the affirmative, and the court agreed to the furlough, warning defendant that if he did not appear on the scheduled date, he would receive an increased sentence.

After surrendering himself on the scheduled date, and prior to the imposition of sentence, defendant moved to withdraw his plea on the ground that it had not been entered into voluntarily
Defendant contends that he

entered the guilty plea "under conditions of duress" and "as a result of emotional and mental distress caused by his fear of his son's death." He further claimed that he "never would have entered into a guilty plea if his son had not been shot and lapsed into a coma." The court denied the motion without a hearing, stating, "I made it clear to [defendant] when he plead[ed] guilty that he wasn't going to withdraw his plea.

Is a guilty plea motivated by a parent's love for his child voluntary, even if the colloquy is truthful?

The Court of Appeals reversed this conviction, holding that since the record raises a legitimate question as to the voluntariness of the plea, an evidentiary hearing is required. The Court distinguished People v Fiumefreddo (82 NY2d 536 [1993]) because, unlike Fiumefreddo, here the specific terms of this plea were not subject to extended discussion nor did defendant have sufficient time to consider the alternatives to taking it. Further, the court never inquired about the impact the promised furlough had on defendant's decision to plead guilty or indeed whether defendant was pleading guilty voluntarily.

Apparently New York expects its judges to recall the judgment of King Solomon (1 Kings 3:16-28) in determining the voluntariness of a plea.

Excellent work by Mr. Brown’s counsel, Janet Somes.

Friday, February 5, 2010

Another Wrongful Conviction Exoneration After a False Confession

On Thursday, February 5, 2010, Freddie Peacock became the 250th person exonerated by DNA evidence after conviction, when his 1976 rape conviction was vacated in Monroe County. The court vacated Mr. Peacock's conviction pursuant to a motion filed jointly by the Innocence Project, ETKS partner Donald M. Thompson, and Kelly Wolford, chief of appeals for the Monroe County District Attorney's Office.

As detailed here Mr. Peacock, fought longer for his exoneration after his release from prison - 28 years - than any other DNA exoneree. Mr. Peacock was 38 years old when he was released from prison following a six-year sentence; today he is 60.

A large part of the story is Mr. Peacock''s ceaseless determination to clear him name. But that doesn't explain how an innocent man was convicted. In an addition to the complainant's identification testimony the there was testimony that Mr. Peacock orally confessed. This alleged oral confession contained no details. Since it was not recorded, neither court nor the jury had any basis for determining whether it was true or false. On appeal the Appellate Division agreed with Mr. Peacock's contention that the trial court erroneously permitted two witnesses to bolster the identification testimony of the complainant (People v Peacock,70 AD2d 781 [4th Dept 1979]), but held that "in light of the strong evidence of guilt, including defendant's confession, we find the error to be harmless."

Thus, reliance on an unrecorded false confession led to the affirmance of a wrongful conviction. This is not only time that the Fourth Department has affirmed the conviction of a man later proven to be innocent, on the strength of a false, unrecorded "confession" (See, e.g., People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633) (see). One wonders when courts will acknowledge the obvious and develop a reluctance to credit unrecorded confessions, present in about a quarter of the wrongful convictions exonerated by DNA evidence (see).