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The Court also rejected the claim of double jeopardy


This is an appeal by defendant from a resentence of the District Court of Suffolk County, First District imposed on 17 June 2009 upon his admission to a violation of probation.

After being convicted of driving while intoxicated (Vehicle and Traffic Law § 1192[3]), defendant was sentenced on 4 May 2006 to three years of probation. The condition provided in the probation was for a term of 60 days in jail, and a fine. He served the imprisonment term and was thereafter released. On 2 June 2009, he admitted to a violation of probation. During the course of the admission proceeding, the District Court promised the defendant that he would sentence him to an additional 60 days incarceration in addition to the first 60 days he already served because of drunk driving, and terminate him from probation. On 8 June 2009, the sentencing date, the District Court imposed on him the sentence as what promised on June 2. The criminal defense counsel asked the court for the possibility of the Stop DWI facility to which the court issued a commitment sheet dated 8 June 2009 that stated “count 1, 60 days in SCJ in Stop DWI”. On that day, the defendant was first taken to the Suffolk County Jail and then released. He was released because the jail personnel understood his sentence to be simply 60 days, as opposed to an additional 60 days, and credited him with the time applicable to his original 60-day jail term.

After learning of the defendant’s release, the District Court first held an informal hearing with defense counsel and the prosecutor on 11 June 2009, and then held a formal resentencing proceeding in the presence of the defendant on 17 June 2009. It resentenced defendant to “120 days in jail which is an additional 60 days to the 60 days sentence that he already served”. The court imposed the resentence over a protest by the defendant that the resentencing violated CPL 430.10, and over the People’s agreement that the resentencing was improper. The court issued a new commitment sheet dated 17 June 2009 that stated “count 1. 120 days in SCJ with credit for time served”.

Defendant now argued that the resentencing violated (1) CPL 430.10, (2) the prohibition against double jeopardy, and (3) the requirements of due process. And the People agreed that the resentencing was both statutorily and constitutionally infirm.

(1) The Court rejected the statutory claim, which is preserved. Criminal Procedure Law section 430.10 (sentence of imprisonment not to be changed after commencement) provides: “Except as otherwise specifically authorized by law, when a court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced.”

Despite the restriction imposed by CPL 430.10, courts retain the inherent power to correct their records. Where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record of the case to the truth” In this case, the District Court’s intent was to impose a sentence of an additional 60 days for the violation of probation which was apparent from the face of the records of the violation of probation proceeding and the original sentencing for the violation of probation. Thus, the resentencing for the violation of probation was permissible.

(2) The Court also rejected the claim of double jeopardy, which does not require preservation. The prohibition against double jeopardy does not create a blanket rule that a court may never correct an error by increasing a defendant’s sentence. As held in US v. DiFrancesco (1980) “a sentence does not have the qualities of constitutional finality that attend an acquittal”. Nevertheless, as the Court of Appeals noted in subsequent Williams case citing DiFrancesco, the prohibition against double jeopardy does not mean that a defendant’s sentence may not be increased “once the criminal defendant has a legitimate expectation in the finality of the sentence”. At issue in Williams and its companion cases was whether the terms of post-release supervision (PRS) could be added to the sentences of defendants who had illegally received determinate sentences lacking the PRS component. Applying the legitimate-expectation-of-finality rule, the Criminal Court held that PRS terms could not be added to the defendants’ sentences “after the defendants had satisfied the original judgments of the respective sentencing courts and been released from incarceration at the termination of their sentences of imprisonment”, and after the People’s time to appeal from the illegal sentences had expired.

In this case, although the defendant, like the Williams defendants, was not resentenced until after he had been released, there are significant differences between these two cases that, the Court saw a compelling different result in the instant case: (a) in each of the Williams cases, the defendant had “completed his original sentence of imprisonment” in accordance with the only reasonable interpretation of the sentencing court’s actual sentence pronouncement: the sentencing court had pronounced only a sentence of incarceration and had not pronounced a term of PRS. In this case, by contrast, the defendant could not reasonably have understood the court’s sentencing pronouncement to have meant that the court was sentencing him to no additional time; (b) after having duly served the pronounced sentences as reasonably understood by the defendants in Williams they acquired a legitimate expectation of finality.

The same cannot be said of defendant in the instant case; (c) the court’s conclusion was reinforced by the following observation of the Court of Appeals in Williams: “This analysis has no application to a person who, for example, is erroneously released early by DOCS (Department of Correctional Services)”. Although defendant in the instant case was perhaps, strictly speaking, not released because of a mistake on the part of jail personnel, his release stemmed from a communication gap between the District Court and jail personnel; and finally (4) the expiration of the People’s time to appeal from an illegal sentence does not, without more, afford a defendant a legitimate expectation of finality. Analogously, in this case, the inability of the People to challenge the violation of probation sentence as construed by the jail personnel did not, standing alone, afford defendant a legitimate expectation of finality.

(3) The due process claim as the Court determined was not preserved, and declined to discuss in the interest of justice. The Court maintained that if they were we to touch it, they would similarly find that the resentencing in this case did not violate the requirements of due process. It is only in the extreme case can a court properly say that the later upward revision of a sentence, made to correct an earlier mistake, is so unfair that it must be deemed inconsistent with fundamental notions of fairness embodied in the Due Process Clause. In reaching its conclusion, the Court took into consideration the facts, among others, that defendant undoubtedly knew when he was released, that a mistake had been made and that the District Court acted promptly to rectify the misunderstanding.

Finally, the Court noted that defendant was entitled to credit for the time he was at liberty between his release and resentencing. Accordingly, the resentence on the violation of probation was affirmed.

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