People v. Sparber, 53.

Citation10 N.Y.3d 457,889 N.E.2d 459
Decision Date29 April 2008
Docket Number58.,56.,53.,54.,55.
PartiesThe PEOPLE of the State of New York, Respondent, v. Daniel SPARBER, Appellant. The People of the State of New York, Respondent, v. Robert Thomas, Appellant. The People of the State of New York, Respondent, v. John Lingle, Appellant. The People of the State of New York, Respondent, v. Manuel Rodriguez, Appellant. The People of the State of New York, Respondent, v. Anthony Ware, Appellant.
CourtNew York Court of Appeals
889 N.E.2d 459
10 N.Y.3d 457
The PEOPLE of the State of New York, Respondent,
v.
Daniel SPARBER, Appellant.
The People of the State of New York, Respondent,
v.
Robert Thomas, Appellant.
The People of the State of New York, Respondent,
v.
John Lingle, Appellant.
The People of the State of New York, Respondent,
v.
Manuel Rodriguez, Appellant.
The People of the State of New York, Respondent,
v.
Anthony Ware, Appellant.
53.
54.
55.
56.
58.
Court of Appeals of New York.
April 29, 2008.

[889 N.E.2d 460]

Center for Appellate Litigation, New York City (David J. Klem and Robert S. Dean of counsel), for appellant in the first above-entitled action.

Robert M. Morgenthau, District Attorney, New York City (David M. Cohn and Mark Dwyer of counsel), for respondent in the first above-entitled action.

Center for Appellate Litigation, New York City (Robert S. Dean of counsel), for appellant in the second above-entitled action.

Robert M. Morgenthau, District Attorney, New York City (Vincent Rivellese and Mark Dwyer of counsel), for respondent in the second above-entitled action.

Center for Appellate Litigation, New York City (Barbara Zolot and Robert S. Dean of counsel), for appellant in the third above-entitled action.

Robert M. Morgenthau, District Attorney, New York City (Vincent Rivellese and Mark Dwyer of counsel), for respondent in the third above-entitled action.

Center for Appellate Litigation, New York City (Claudia S. Trupp and Robert S. Dean of counsel), for appellant in the fourth above-entitled action.

Robert M. Morgenthau, District Attorney, New York City (Susan Axelrod and Mark Dwyer of counsel), for respondent in the fourth above-entitled action.

Appellate Advocates, New York City (William G. Kastin and Lynn W.L. Fahey of counsel), for appellant in the fifth above-entitled action.

Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove of counsel), for respondent in the fifth above-entitled action.

Kaye Scholer LLP, New York City (David Klingsberg and Max Schwartz of counsel), and Legal Aid Society, Criminal Practice Division (Steven Banks, Seymour James and Andrew Fine of counsel), for Legal Aid Society, amicus curiae in the five above-entitled actions.

[10 N.Y.3d 464]

OPINION OF THE COURT

CIPARICK, J.


In these five appeals, we are asked to consider whether defendants are entitled to be relieved of their statutory obligation

10 N.Y.3d 465

to serve a term of post-release supervision (PRS) because sentencing

889 N.E.2d 461

courts failed to pronounce their PRS terms in accordance with Criminal Procedure Law §§ 380.20 and 380.40. We conclude that the procedure through which PRS was imposed upon these defendants was flawed as it did not comply with the statutory mandate. To remedy this error, rather than striking PRS from the sentences as urged by defendants, these matters must be remitted to Supreme Court for resentencing and the proper judicial pronouncement of the relevant PRS terms.

I.

The present appeals are separated into two broad groups: (A) those where PRS sentences were imposed pursuant to plea bargains (defendants Sparber and Thomas) and (B) those where such sentences were imposed following jury trials (defendants Lingle, Rodriguez, and Ware). We begin with the plea cases.

A. The Plea Cases

(1) People v. Sparber

On January 17, 2002, defendant Sparber pleaded guilty to first degree assault in exchange for a negotiated prison term of 15 years. That same day, Supreme Court also adjudicated him a second violent felony offender, based upon a 1995 conviction for weapons possession. On April 11, defendant appeared for sentencing. As a consequence of his plea and status as a second violent felon, Penal Law §§ 70.00(6) and § 70.45(1) and (2) required defendant to serve a mandatory five-year PRS term. But at sentencing, Supreme Court did not mention the PRS term and instead pronounced a sentence of "a determinate term of ... 15 years." The part clerk's entries on a court worksheet, which the judge initialed, also failed to indicate any PRS sentence.1 The clerk-prepared commitment sheet—which reflects a defendant's commitment to the custody of the Department of Correctional Services (DOCS), the crime committed, Penal Law section violated and the sentence imposed—noted, however, in its "remarks" section, that defendant was required to serve a five-year PRS term.

10 N.Y.3d 466

On appeal, defendant Sparber argued that the PRS term should be stricken from his sentence and deemed a nullity because "it was not part of the sentence that the court pronounced orally, in his presence in open court" (34 A.D.3d 265, 265, 823 N.Y.S.2d 405 [1st Dept.2006]). Defendant's arguments were predicated upon CPL 440.40(1), which permits the People to move to correct an illegal sentence within one year of its imposition, and the United States Court of Appeals for the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir.2006), which held that DOCS's administrative addition of a PRS term not pronounced by Supreme Court violated federal "due process guarantees" (id. at 76 n. 1) and should therefore be excised from the petitioner's sentence on a motion for a writ of habeas corpus.2 Defendant

889 N.E.2d 462

acknowledged that, under our decisions in People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005) and its progeny, the failure to inform him of the PRS term would permit vacatur of his plea. But he expressly disavowed that remedy (see 34 A.D.3d at 265, 823 N.Y.S.2d 405).3

The Appellate Division rejected defendant's arguments and affirmed his conviction and sentence. It held that because the directive of Penal Law § 70.45(1) is mandatory, the oral sentence, which was silent as to PRS, carried with it a five-year PRS term by operation of law. Relying on the United States Supreme Court's decision in Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936), the Appellate Division also concluded that defendant's constitutional argument failed because the clerk's entry of the PRS term on the commitment sheet satisfied any due process requirement that a sentence be "entered upon the records of the court" (34 A.D.3d at 266, 823 N.Y.S.2d 405). In so holding, the court deemed the imposition of a mandatory PRS term a "ministerial function" (id.). A Judge of this Court granted leave to appeal and we now modify and remit to Supreme Court for a resentencing hearing at which the PRS term will be orally pronounced.

10 N.Y.3d 467

(2) People v. Thomas

In defendant Thomas's case, the sentencing court also failed to mention PRS when sentencing him as a second violent felon to an aggregate 15-year prison term for various felony counts related to his commission of attempted aggravated assault on a police officer and sex crimes involving a minor. As in Sparber, the commitment sheet noted a five-year PRS term. In addition, PRS was noted on the worksheet signed by the judge. Unlike Sparber, however, Thomas was aware that his conviction would carry a mandatory five-year PRS term. That is because Supreme Court informed him of that consequence during his plea allocution, stating that "the determinate sentence you have requires ... post-release supervision for five years." During this plea colloquy, defendant also waived his right to appeal his conviction. But that waiver expressly reserved his right to "challenge ... the legality of the sentence promised by the judge."

The Appellate Division affirmed the conviction and sentence (35 A.D.3d 192, 192-193, 826 N.Y.S.2d 36 [1st Dept.2006]). With respect to defendant's statutory and constitutional challenges to the imposition of PRS, the court rejected his arguments for the reasons stated in its earlier decision in People v. Sparber (id. at 193, 826 N.Y.S.2d 36, citing 34 A.D.3d 265, 823 N.Y.S.2d 405 [1st Dept.2006]). A Judge of this Court granted leave to appeal and we now modify and remit to Supreme Court for appropriate resentencing.

B. The Jury Trial Cases

(1) People v. Lingle

On April 21, 2004, a jury convicted defendant Lingle of second degree arson and first degree reckless endangerment. He was sentenced as a second felony offender to a 14-year determinate sentence on the arson count and a concurrent indeterminate

889 N.E.2d 463

sentence of 3½ to 7 years on the reckless endangerment count. In pronouncing these sentences, the court failed to mention a mandatory five-year PRS term. Instead, the PRS term was reflected in the court worksheet, which the judge signed. That term was also noted in the commitment sheet prepared by the court clerk and signed by the judge.

Defendant's appellate arguments seeking the elimination of the PRS term from his sentence were rejected for the same reasons stated in Sparber and Thomas— PRS was included in the pronounced sentence by operation of law and the notation of the PRS term on the worksheet and commitment sheet

10 N.Y.3d 468

comported with Hill's rule that "every portion of a sentence be `entered upon the records of the court'" (see 34 A.D.3d 287, 289, 825 N.Y.S.2d 12 [1st Dept.2006], quoting Hill, 298 U.S. at 464, 56 S.Ct. 760, and citing Earley, 451 F.3d at 75-76). A Judge of this Court granted leave to appeal and we now modify and remit to Supreme Court for appropriate resentencing.

(2) People v. Rodriguez

Following trial, defendant Rodriguez was convicted of first degree gang assault. At his September 19, 2002 sentencing, Supreme Court imposed the maximum term of 25 years. Because defendant was a first-time violent felony offender, the court was also required to impose a PRS term that, in its discretion, could range from 2½ to 5 years (see Penal Law § 70.45[2][f]), but failed to do so. Rather, the only indication in the court's records as to PRS appeared in the worksheet, which the judge initialed, and on the commitment sheet, which the part clerk prepared. Both reflect the imposition of the maximum, five-year, PRS term.

Defendant's conviction and sentence were...

To continue reading

Request your trial
218 cases
  • Hardy v. the City of N.Y., Civil Action No. CV-09-0166 (DGT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 12, 2010
    ...... See Earley v. Murray, 451 F.3d 71, 75-76 (2d Cir.2006); People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008); Garner v. N.Y. Dep't of Corr. Servs., 10 N.Y.3d 358, 362, 859 N.Y.S.2d 590, ......
  • Betances v. Fischer
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 21, 2019
    ......(Def. 56.1 ¶ 3.); see People v. Sparber , 10 N.Y.3d 457, 469-70, 859 N.Y.S.2d 582, 587, 889 N.E.2d 459 (2008) (finding that the administrative addition of PRS was not a valid ......
  • People v. Concepcion
    • United States
    • New York Court of Appeals
    • June 14, 2011
    ...since LaFontaine was decided, without citing LaFontaine once. (Until today, our only citation of LaFontaine was in People v. Sparber, 10 N.Y.3d 457, 472 n. 8, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008), where we distinguished it.) Thus in People v. Wheeler, 2 N.Y.3d 370, 779 N.Y.S.2d 164, 811 ......
  • Vincent v. Yelich, Docket Nos. 11–3893–pr, 11–3966–pr, 12–0439–pr.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 4, 2013
    ...... People v. Catu, 4 N.Y.3d 242, 244, 792 N.Y.S.2d 887, 888, 825 N.E.2d 1081 (2005) (“ Catu ”). The section of the Act at issue here provided in ... See People v. Thomas, 35 A.D.3d 192, 193–94, 826 N.Y.S.2d 36, 38 (1st Dep't 2006), aff'd after modification sub nom. People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008) (“ Sparber II ”); People v. Lingle, 34 A.D.3d 287, 289–90, 825 N.Y.S.2d 12, 14–15 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT