Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

The People &C v. Jessie Velez

June 28, 2012

THE PEOPLE &C., APPELLANT,
v.
JESSIE VELEZ, RESPONDENT. THE PEOPLE &C., RESPONDENT,
v.
VINCENT RODRIGUEZ, APPELLANT.



The opinion of the court was delivered by: Smith, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Correction Law § 601-d provides a procedure for resentencing defendants in cases where the original sentence illegally omitted a term of post-release supervision (PRS). In these two cases, defendants claim that their resentencings under the statute were untimely, and therefore invalid. Both defendants rely on the failure of the courts that resentenced them to meet a deadline contained in the statute; defendant Jessie Velez also complains that his resentencing took place after his original sentence had expired, and thus violated constitutional prohibitions on double jeopardy.

We hold that the failure to meet the statutory deadline does not impair the validity of the resentencings in these cases. We agree with Velez, however, that his resentencing was barred by double jeopardy under our decision in People v Williams (14 NY3d 198 [2010]).

I

Both defendants were convicted of violent felonies --Velez of burglary and defendant Vincent Rodriguez of assault. Both received determinate sentences of imprisonment (see Penal Law § 70.02 [2] [a]). Their sentences were required by law to include a period of PRS (Penal Law §§ 70.00 [6], 70.45 [1]), but in each case the court failed to impose a PRS term. We held in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358, 360 [2008]) that the Department of Correctional Services (now the Department of Corrections and Community Supervision)(DOCS) cannot remedy such an error by administrative action: "only a judge may impose a PRS sentence." We said in Garner that our holding was "without prejudice to any ability that either the People or DOCS may have to seek the appropriate resentencing" (id. at 363 n 4).

The Legislature responded to Garner by enacting Correction Law § 601-d. That statute provides for a procedure to be initiated by DOCS where a person in DOCS's custody, or under its supervision, was given a determinate sentence which was required by law to include PRS, but where DOCS's records do not show that a PRS term was actually imposed. In such a case, DOCS must "make notification of that fact to the court that sentenced such person, and to the inmate or releasee" (Correction Law § 601-d [2]). The court, when it receives the notification, "shall promptly seek to obtain sentencing minutes, plea minutes and any other records and shall . . . conduct any reconstruction proceedings that may be necessary" (Correction Law § 601-d [4] [b]). The statute contains a series of deadlines, all running from the date the court receives DOCS's notification: Within 10 days, the court is required to appoint counsel for the defendant and to calendar a court appearance (Correction Law § 601-d [4] [a]); within 20 days, an initial court appearance must occur (id.); within 30 days, the court "shall commence a proceeding to consider resentence" (Correction Law § 601-d [4] [c]); and within 40 days after receiving the notification, the court "shall . . . issue and enter a written determination and order" (Correction Law § 601-d [4] [d]).

In both of these cases, DOCS sent notices to the sentencing courts and to defendants pursuant to section 601-d.

In both cases, the resentencings were delayed.

The notice in Velez was sent on October 14, 2008. At that time, though Velez had been conditionally released, after serving more than 7 years of his 9-year prison sentence, the full term of the sentence had not expired. An initial court appearance (at which Velez's presence was excused) took place on November 17, 2008. The court and counsel tried to obtain minutes of the original sentencing, but that proved difficult; after several adjournments, the court finally received a copy of the minutes, which it supplied to counsel on April 8, 2009. By then, not only had the statutory 40-day deadline passed, but the maximum term of Velez's prison sentence had expired, on March 3, 2009. Velez was resentenced on June 18, 2009.

In Rodriguez, DOCS sent its notice on April 23, 2010. For reasons not clear from the record, Rodriguez was not resentenced until June 18, 2010, concededly beyond the statutory 40-day limit. Rodriguez, unlike Velez, was still serving his original sentence at the time of his resentencing.

The Appellate Division reversed in Velez and vacated Velez's resentence on double jeopardy grounds. The court relied on People v Williams and said that "the controlling date for double jeopardy purposes under Williams is the date of release from prison, not the expiration date of the sentence" (People v Velez, 79 AD3d 542 [1st Dept 2010]). The Appellate Division affirmed in Rodriguez, concluding that the resentencing "was neither barred by double jeopardy nor otherwise unlawful" (People v Rodriguez, 88 AD3d 557 [1st Dept 2011]). Judges of this Court granted leave to appeal to the People in Velez (17 NY3d 802 [2011]) and to Rodriguez (18 NY3d 886 [2012]), and we now affirm the Appellate Division order in each case.

II

We conclude that the violations of the 40-day deadline in these cases do not invalidate the resentencings.

The statute does not say that no person may be resentenced if the 40-day deadline (or any of the others listed in subdivision 4 of the statute) is not met. The only language that describes the consequences of missing a deadline is in subdivision 6, which says that if DOCS is not notified that the court has made a timely determination, DOCS "may notify the court that it has not received a determination and, in any event, shall adjust its records with respect to post-release supervision noting that the court has not, in accordance with subdivision four of this section, imposed a sentence of post-release supervision" (Correction Law ยง ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.