author: Pigott, J. Jones, J.

text:
    [949 NE2d 484, 925 NYS2d 393]
    The People of the State of New York, Respondent, v Ernest Brannon, Appellant. The People of the State of New York, Respondent, v Jose Fernandez, Appellant.
    Argued March 23, 2011;
    decided May 5, 2011

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Karen M. Kalikow and Steven Banks of counsel), for appellant in the first above-entitled action.
    The police lacked reasonable suspicion to stop and frisk appellant and probable cause to search his pocket where the officer merely observed the hinge and then observed and felt the outline of a closed pocketknife in appellant’s pocket. (People v Dodt, 61 NY2d 408; People v Berrios, 28 NY2d 361; Terry v Ohio, 392 US 1; People v De Bour, 40 NY2d 210; People v Hollman, 79 NY2d 181; People v Howard, 50 NY2d 583; Florida v Bostick, 501 US 429; California v Hodari D., 499 US 621; United States v Simmons, 560 F3d 98; People v Cantor, 36 NY2d 106.)

      Cyrus R. Vance, Jr., District Attorney, New York City (David P. Stromes and Caitlin J. Halligan of counsel), for respondent in the first above-entitled action.
    Defendant’s claim is unreviewable, and in any event, the recovery of defendant’s gravity knife was lawful. (People v Ramirez-Portoreal, 88 NY2d 99; People v Chipp, 75 NY2d 327; People v Bora, 83 NY2d 531; People v Chestnut, 51 NY2d 14; People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594; People v Francois, 14 NY3d 732; People v Greenidge, 91 NY2d 967; People v McIntosh, 96 NY2d 521; Pennsylvania v Mimms, 434 US 106.)

      Center for Appellate Litigation, New York City (Barbara Zolot and Robert S. Dean of counsel), for appellant in the second above-entitled action.
    I. The police officer’s observations of the head of a knife protruding from a clip attached to appellant’s pants pocket fell below the minimum standard necessary to establish reasonable suspicion that appellant possessed an illegal gravity knife because these observations were equally consistent with the knife being legal to possess; nor, even if the officer reasonably suspected the commission of a crime, was the officer justified in immediately seizing the knife, as he lacked probable cause for the search he conducted or reason to believe that appellant posed a danger to his safety. (People v De Bour, 40 NY2d 210; Sibron v New York, 392 US 40; People v Cantor, 36 NY2d 106; People v Martinez, 80 NY2d 444; People v Carrasquillo, 54 NY2d 248; People v Mendez, 68 AD3d 662; People v Dreyden, 15 NY3d 100; United States v Irizarry, 509 F Supp 2d 198; People v Best, 57 AD3d 279; People v Sosa, 20 Misc 3d 1140[A], 2008 NY Slip Op 51805[U].) II. Penal Law § 265.01 (1) is unconstitutionally vague both on its face and as applied to appellant because it fails to give a citizen adequate notice of the nature of the proscribed conduct and permits arbitrary and discriminatory enforcement. (People v Shack, 86 NY2d 529; United States v Irizarry, 509 F Supp 2d 198; People v Stuart, 100 NY2d 412; People v Bright, 71 NY2d 376; Kolender v Lawson, 461 US 352; Grayned v City of Rockford, 408 US 104; People v Nelson, 69 NY2d 302; United States v Harriss, 347 US 612; Smith v Goguen, 415 US 566; People v Grogan, 260 NY 138.)

      Cyrus R. Vance, Jr., District Attorney, New York City (David P. Stromes and Caitlin J. Halligan of counsel), for respondent in the second above-entitled action.
    I. Defendant’s claim is unreviewable, and in any event, the recovery of defendant’s gravity knife was lawful. (People v Bora, 83 NY2d 531; People v Chestnut, 51 NY2d 14; People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594; People v Francois, 14 NY3d 732; People v McIntosh, 96 NY2d 521; People v Greenidge, 91 NY2d 967; People v Campbell, 87 NY2d 855; People v Bianchi, 85 NY2d 1022; People v De Bour, 40 NY2d 210.) II. Penal Law § 265.01 (1), which criminalizes the possession of a gravity knife, is fully constitutional. (United States v Irizarry, 509 F Supp 2d 198; People v Foley, 94 NY2d 668; People v Shack, 86 NY2d 529; People v Bright, 71 NY2d 376; United States v Batchelder, 442 US 114; Lanzetta v New Jersey, 306 US 451; United States v Harriss, 347 US 612; People v Munoz, 9 NY2d 51; United States v Mazurie, 419 US 544; People v Stuart, 100 NY2d 412.)
   OPINION OF THE COURT

Pigott, J.

In these appeals, we are asked to decide the level of knowledge a police officer must possess before, consistent with the principles articulated in People v De Bour (40 NY2d 210 [1976]), he or she has reasonable suspicion to believe an individual possesses a gravity knife, as opposed to other similar knives such as a pocketknife, and therefore is authorized to conduct a stop and frisk. The Penal Law identifies gravity knives as per se weapons and criminalizes the mere possession of one (see Penal Law § 265.01 [1]). We hold that the detaining officer must have reason to believe that the object observed is indeed a gravity knife, based on his or her experience and training and/or observable, identifiable characteristics of the knife. An individual may not be detained merely because he or she is seen in possession of an object that appears to be a similar, but legal object, such as a pocketknife.

People v Ernest Brannon

On September 8, 2006, defendant was walking with a friend along West 122nd Street in Manhattan at approximately 6:00 p.m. Officer Kevin Blake and another officer, both in plain clothes, were on the same side of the street and dealing with children who were trying to manipulate the lock on a school yard gate. Blake testified that he observed the men and, in particular, noticed that defendant’s behavior became “somewhat suspicious,” evincing a desire to avoid walking near the officers. As defendant passed, Blake observed the hinged top of a knife in defendant’s back pocket. He asked the men to stop twice before defendant complied. When defendant approached Blake, he saw the outline of a knife through the material of defendant’s pocket. Upon questioning, defendant admitted that he had a knife in his pocket. Blake then frisked defendant and recovered the knife. Blake testified that upon inspection, he found that it was a gravity knife and arrested defendant.

Before trial, defendant moved to suppress the knife and a statement he made to the officer at the time of his arrest. At the suppression hearing, Blake testified that he had been an officer for 4½ years and had made approximately 10 arrests of his own for possession of a gravity knife and participated in two dozen other arrests for the same crime. He had observed in defendant’s pocket what he believed to be a knife. On further questioning, he described it as a “typical pocket knife.”

Supreme Court denied the motion to suppress, finding that, under the circumstances, the stop and search was proper. Defendant pleaded guilty and then appealed his conviction, arguing that the gravity knife and his statement should have been suppressed as the fruits of an illegal search and seizure. The Appellate Division affirmed, holding that “[t]he combination of defendant’s suspiciously evasive conduct, the officer’s observation that defendant was carrying what was at the least a large and possibly dangerous knife, and defendant’s acknowledgment, in response to a proper common-law inquiry, that he had a knife, permitted the officer to conduct a self-protective frisk” (60 AD3d 498, 499 [1st Dept 2009]).

People v Jose Fernandez

On February 24, 2007, while walking on Ludlow Street in Manhattan at approximately 12:30 a.m., defendant was stopped by Officer Daniel Hoffman, who observed defendant walking on the sidewalk with a knife clipped to his front right pants pocket, the top or “head” of the knife protruding in plain view. Before any questioning, Hoffman approached defendant, retrieved the knife from defendant’s front pocket and asked defendant if he had any other weapons. Defendant stated that he had another knife in his left jacket pocket. When questioned why he was carrying the knife, defendant answered it was for his protection. After retrieving both knives, Hoffman opened them, confirming they were gravity knives.

Defendant was charged with two counts of criminal possession of a weapon in the third degree. He thereafter moved to suppress the two knives recovered from him and statements he made to the police officer.

A suppression hearing was held at which Hoffman testified that he had been a police officer for four years and had made approximately 300 arrests involving gravity knives. In his career, he had examined around 200 gravity knives and described the difference between a gravity knife and other types of knives. He explained that gravity knives are often carried in such a way as to make them readily accessible. Hoffman testified that when he first saw the knife he believed it was a gravity knife because, based on his experience, this type of knife was typically carried with a clip on the outside of the pocket, and with the “head” of the knife “usually sticking up outside of the pocket.”

Supreme Court denied the motion to suppress, finding that the officer had probable cause to recover the knife that he observed clipped to defendant’s pocket. The court noted that the officer had concluded that the weapon was a gravity knife based on his experience, coupled with his observation of the clip and the “head” of the knife in plain view. The court also found that the officer lawfully reached into defendant’s pocket to recover the second knife, once defendant stated that he had a second knife in his jacket pocket. The Appellate Division affirmed (60 AD3d 549 [1st Dept 2009]).

A Judge of this Court granted both defendants leave to appeal (15 NY3d 747 [2010], 15 NY3d 749 [2010]). We now reverse in Brannon and affirm in Fernandez.

Reasonable Suspicion Standard

These cases are governed by our holding in People v De Bour (40 NY2d 210 [1976]), requiring that before a police officer may stop and frisk a person in a public place, he must have “reasonable suspicion” that such person is committing, has committed or is about to commit a crime (id. at 223). We have defined reasonable suspicion as “the quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand” (People v Cantor, 36 NY2d 106, 112-113 [1975]). It may not rest on equivocal or “innocuous behavior” that is susceptible of an innocent as well as a culpable interpretation (People v Carrasquillo, 54 NY2d 248, 252 [1981]). A stop based on reasonable suspicion will be upheld so long as the intruding officer can point to “specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion” (Cantor, 36 NY2d at 113).

Here, in each appeal, we are dealing with a statute that criminalizes the mere possession, and not use, of a gravity knife. At the same time, the possession of many similar objects, including other knives, is not illegal. Defendants argue that the police officers in each case did not have reasonable suspicion to believe that the defendant was carrying a gravity knife. Typically, one cannot tell if a knife is a gravity knife until the knife is opened. Reasonable suspicion, however, does not require absolute certainty that the knife the individual is carrying is a gravity knife. Rather, the issue is whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.

In Brannon, although Blake testified that he was able to see a hinged top of a closed knife and observed the outline of a pocketknife in defendant’s pocket, he was unable to testify that he suspected or believed it to be a gravity knife. To the contrary, he testified that it looked like a pocketknife. The officer’s testimony therefore does not, as a matter of law, support the conclusion that he had a reasonable suspicion that the knife in defendant’s pocket was unlawful.

On the other hand, in Fernandez, there is record support for the Appellate Division’s conclusion that reasonable suspicion existed. The officer’s attention was drawn to defendant, who was only 10 to 15 feet away, because the officer saw, in plain view, the “head” of a knife that was sticking out of and clipped to defendant’s pants pocket. He testified, based on his experience that gravity knives are commonly carried in a person’s pocket, attached with a clip, with the “head” protruding.

We have reviewed defendants’ remaining contentions and find them without merit.

Accordingly, in People v Brannon, the order of the Appellate Division should be reversed, defendant’s motion to suppress granted and the indictment dismissed. In People v Fernandez, the order of the Appellate Division should be affirmed.

Jones, J.

(concurring in People v Brannon and dissenting in People v Fernandez). Because a gravity knife can be indistinguishable from a lawful knife in appearance, and its illegality can only be ascertained by its operation, I would hold that a stop and frisk based on the mere observance of a portion of a knife and the experience of the arresting police officer is not supported by sufficient reasonable suspicion. Therefore, I concur with the majority’s result in People v Brannon, but respectfully dissent in People v Fernandez, for the reasons below.

Penal Law § 265.00 (5) defines a gravity knife as: “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.”

By its very definition, a gravity knife cannot be identified until it is operated because there is no inherently distinguishing mark or physical trait that would allow for the plain identification of a gravity knife. The only manner in which the possession of a gravity knife can be confirmed is when the knife is activated through “the force of gravity” or “centrifugal force.” Therefore, until a gravity knife is operated, it can be easily mistaken for a pocketknife or folding knife (neither of which is unlawful to carry).

In Brannon, on September 8, 2006, while dispersing some young children from a school yard, Officer Blake testified that his suspicions were alerted when defendant “furtively mov[ed]” towards the curb to cross the street, an action he interpreted as an attempt to avoid the police (even though defendant never crossed the street). When he further observed defendant, the officer stated that he noticed a “[h]alf to a quarter of an inch” of “the back portion of the knife where the joint is. Where the blade extends from the handle,” and concluded that defendant was carrying a “typical pocket knife.” Based on these observations, Officer Blake forcibly stopped defendant when, without inquiry, he ordered him to place his hands against a fence. The pocketknife was tested and found to be a gravity knife.

In the accompanying case of Fernandez, while on patrol in a police vehicle on February 24, 2007, at 12:26 a.m., from 10 to 15 feet away, Officer Hoffman observed defendant with a knife clipped in his front right pants pocket. Specifically, Officer Hoffman testified that he had seen “the clip, observed the top head of the knife and shiny metal,” leading him to believe that defendant was carrying a gravity knife. The weapon was confirmed to be a gravity knife when the officer recovered it and “flick[ed] the knife open.”

The majority distinguishes these two cases on the fact that the officer in Brannon testified that he observed a pocketknife while the officer in Fernandez testified to a belief that he had seen a gravity knife, and had training and experience based on 600 to 700 arrests, with approximately half of those arrests involving gravity knives. However, this minimal distinction is of no moment where both stops were premised on insufficient reasonable suspicion due to the lack of inherent criminality in the mere physical appearance of a gravity knife.

In People v De Bour (40 NY2d 210 [1976]), we outlined various levels of police interaction with the public and the accompanying standards required to justify such intrusion. To perform a lawful, level-three stop and frisk, a police officer must have “a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor” (id. at 223). While I acknowledge that reasonable suspicion does not require absolute certainty of a crime, it is equally true that “innocuous behavior” or conduct capable of innocent interpretation cannot serve as a basis for reasonable suspicion (see id. at 216). Thus, since a gravity knife can bear an unremarkable superficial similarity to other lawful knives and its illegality cannot be confirmed until its operation, the mere possession of a gravity knife is conduct susceptible to innocent interpretation.

The absence of an identifying physical trait makes it equally likely that an individual possesses a lawful knife as he or she may possess an unlawful one, and there is nothing within the respective records of these cases to indicate that the physical characteristics the officers observed were unique to, and shared by, gravity knives. That the officers viewed a clip, a metal portion, and a handle joint of a knife protruding from defendants’ pockets is not so uncommon and innately criminal as to differentiate it from the lawful possession of a knife in one’s own pants pocket. In fact, in Fernandez, the only testimony demonstrating any distinction between an illegal gravity knife and a lawful one is the difference in operation: “[A] [fjolding knife does not lock in place, a gravity knife does.” The reasonable inference to be drawn from this testimony is that the criminality of a gravity knife can only be verified upon inspection. And without a more specific basis, the observations here, based solely on police training and experience, border on “hunches” which can never constitute reasonable suspicion (Terry v Ohio, 392 US 1, 22 [1968]).

Additionally, a forcible stop is only justified so long as there are “specific and articulable facts winch, alone with any logical deductions, reasonably prompted th[e] intrusion” (People v Cantor, 36 NY2d 106, 113 [1975]). In these cases, there were no specific facts supporting the beliefs that defendants were carrying gravity knives, and justifying the forcible stops. In Brannon, the officer simply had no basis to conclude that defendant was carrying a gravity knife. The allegedly “furtive” movement of defendant and the mere observation of a knife believed to be a “typical pocket knife” did not supply the reasonable suspicion needed to justify the forcible stop (see People v Mendez, 68 AD3d 662, 662-663 [1st Dept 2009]). Similarly, in Fernandez, the officer’s testimony was conclusory as there were no specific facts to support his belief that defendant possessed a gravity knife. The mere fact that a knife may have a clip or has a metal portion cannot be considered an identifying trait of gravity knives. Rather, too much credence is given to the training and experience of the officer without evidence of specific, articulable facts indicating the presence of a gravity knife. Quite simply, the only observation the officer was justified in making was that defendant was carrying a knife; there was no other indication of criminality. Without further evidence that the knife in question possessed intrinsic characteristics that would signal its illegality as a gravity knife, there was no basis to escalate the observation to a forcible stop of defendant.

The likely result of the majority’s holding is that it will establish a catechism for the admission of gravity knife evidence, permitting the admission of evidence with a minimal basis for reasonable suspicion—the conclusory observations of a police officer. The finding of reasonable suspicion based solely on testimony regarding the training and experience of the officer and the belief that a gravity knife was present is highlighted in recent cases. In Mendez, the Appellate Division held that evidence should be suppressed because the officer’s testimony indicated a belief that the defendant was carrying a “folding knife” (68 AD3d at 662-663), whereas in People v Neal (79 AD3d 523 [1st Dept 2010]) and People v Herrera (76 AD3d 891 [1st Dept 2010]), the court concluded there was reasonable suspicion because training and experience led the respective officers to believe it was “more likely than not it was a gravity knife” (Neal, 79 AD3d at 523).

The weight given to an officer’s training and experience is evident here, in Brannon and Fernandez, as both officers similarly observed minute, innocuous portions of a knife, but concluded differently on the criminal nature of the weapons. In my view, had the officer in Brannon merely testified that he believed a gravity knife, and not a pocketknife, was present, then the outcome in that case would have been different. Instead of requiring the police and the People to articulate a specific factual basis for reasonable suspicion justifying these stops, in these types of cases, prosecutors will now be encouraged to present police officers who can describe their training and experience with gravity knives, and testify that a gravity knife, and not a “typical pocket knife,” was observed. Given the highly intrusive nature of these stops, the acceptance of these conclusory statements at Mapp/Dunaway hearings as a minimal basis for the admission of evidence poses a significant danger (People v Howard, 147 AD2d 177, 181-182 [1st Dept 1989] [court held that conclusory statements by officers at hearings were “rote recital(s) of the words deemed necessary to retroactively validate a patently improper search”]).

Chief Judge Lippman and Judges Ciparick, Grapfeo, Read and Smith concur with Judge Pigott; Judge Jones concurs in result in a separate opinion.

In People v Brannon: Order reversed, etc.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Smith concur with Judge Pigott; Judge Jones dissents in a separate opinion.

In People v Fernandez: Order affirmed.

       A gravity knife is defined as a knife with a blade that (1) “is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force” and that (2) “when released, is locked in place by means of a button, spring, lever or other device” (Penal Law § 265.00 [5]; see People v Dreyden, 15 NY3d 100, 104 [2010]).


source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [949 NE2d 491, 925 NYS2d 400]
    The People of the State of New York, Respondent, v Roy Martin, Also Known as Reality Martin, Appellant.
    Argued March 24, 2011;
    decided May 10, 2011

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Katherine A. Levine and Lynn W.L. Fahey of counsel), for appellant.
    I. The trial court denied appellant his Sixth Amendment right to a public trial when it ejected appellant’s father, the sole spectator, from the courtroom during jury selection. (People v Hinton, 31 NY2d 71; People v Clemons, 78 NY2d 48; People v Jelke, 308 NY 56; People v Nazario, 4 NY3d 70; People v Jones, 47 NY2d 409; Waller v Georgia, 467 US 39; People v Jones, 96 NY2d 213; People v Martinez, 82 NY2d 436; People v Kin Kan, 78 NY2d 54; People v Ramos, 90 NY2d 490.) II. Appellant was improperly sentenced as a second felony offender because the period during which he was incarcerated before sentencing on his prior conviction should not have been used to toll the 10-year limitation period of Penal Law § 70.06. (People v McEachern, 275 AD2d 330; People v Holman, 53 AD3d 775; Matter of Yolanda D., 88 NY2d 790; Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105; People v Santi, 3 NY3d 234; People v Dozier, 78 NY2d 242; Matter of Caraballo v Community School Bd. Dist. 3, 49 NY2d 488; People v Faust, 235 AD2d 430; People v Tatta, 196 AD2d 328.)

      Charles J. Hynes, District Attorney, Brooklyn (Sholom J. Twersky, Leonard Joblove and Victor Barall of counsel), for respondent.
    I. Defendant failed to preserve his specific claims on appeal regarding the alleged abridgement of his right to a public trial. Moreover, defendant’s public trial claim should be rejected because defendant failed to create an adequate record for appellate review. Finally, the trial court’s temporary exclusion of defendant’s father from a limited portion of the voir dire was of a de minimis nature, and thus does not warrant reversal of defendant’s conviction. (Waller v Georgia, 467 US 39; People v Tevaha, 84 NY2d 879; People v Martinez, 82 NY2d 436; People v Cameron, 254 AD2d 367; People v Suarez, 245 AD2d 320; People v Richards, 235 AD2d 557; People v Pollock, 50 NY2d 547; People v Armond, 251 AD2d 80; People v Latta, 222 AD2d 303; People v Stovens, 237 AD2d 154.) II. Defendant was properly adjudicated a second felony offender. (People v Cagle, 7 NY3d 647; People v Tatta, 196 AD2d 328; People v Dozier, 78 NY2d 242; People v Orr, 57 AD2d 578; People v McEachern, 275 AD2d 330; People v Holman, 53 AD3d 775; People v Cortez, 231 AD2d 450; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; People v Tychanski, 78 NY2d 909; People v Kisina, 14 NY3d 153.)
   OPINION OF THE COURT

Ciparick, J.

The issue presented for our determination is whether defendant’s right to a public trial was violated when the trial judge sua sponte closed the courtroom, specifically ejecting defendant’s father during voir dire without considering any alternative accommodations. We hold that such an action violated defendant’s right to a public trial and warrants reversal.

Defendant was arrested on November 19, 2006. He was subsequently charged with criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]), two counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), criminal possession of marijuana in the fifth degree (Penal Law § 221.10) and two counts of unlawful possession of marijuana (Penal Law § 221.05).

On March 4, 2008, after a Sandoval hearing and just prior to the commencement of voir dire, the court engaged in the following colloquy:

“the court: ... I turn to the defendant’s father. Would you please rise for a moment. State your name.
“mr martin sr.: Roy Martin senior.
“the court: Sir, we’re going to be bringing in a panel of jurors in just a few minutes and we will need every seat in the courtroom. Do you understand that?
“mr martin sr.: Yes, your honor.
“the court: I don’t want you physically near any of these people. Consequently, I am going to ask you to step out and go to the far end of the hallway. I want no form of communication between you and any of these jurors. No verbal communication. I want no non-verbal communication. Do you understand?
“After that we will excuse a number of jurors as we proceed. Consequently, there will be room in the courtroom. The Sergeant will ask one of his officers to tell you when there is room here for you to step in. Do you understand that?
“mr martin sr.: Yes, Your honor.
“the court: Sergeant, I want nobody sitting in the row in front of him or in the same row. Do you understand that?
“mr kliman [defendant’s counsel]: For the record, I object.
“the court: Sir, when you step out I want you to have no form of communication with these people.
“mr kliman: I object to my client’s father not being allowed to observe every aspect of the trial. This is a public trial. He has a right to have his father’s support and to be in the audience for every aspect. . . .
“the court: The Court sees no reason to change its rule. The Court is obligated to observe the integrity of the proceeding and that minor action is acceptable to do this.”

The record does not reflect that the court considered alternatives to closure, such as reserving a row of seating for the public or allowing defendant’s father to be present elsewhere in the courtroom until a seat became available. During the morning of voir dire, which lasted approximately 2½ hours, 10 jurors were excused. At no time was defendant’s father informed he was free to reenter the courtroom. After a lunch break, the court reconvened and defendant’s attorney notified the court that defendant’s father had not been let in during the morning and had left the building after the court broke for lunch. The trial court informed defendant’s attorney that “[w]hen there is room in the courtroom he will be allowed in and we are close approaching that . . . point in time.” Voir dire continued that afternoon and concluded at the end of the following day. Defendant’s father attended the trial proceedings and defendant was convicted of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). The Appellate Division affirmed (71 AD3d 917 [2010]). A Judge of this Court granted leave to appeal (15 NY3d 753 [2010]) and we now reverse.

“In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial” (US Const 6th, 14th Amends; see also Civil Rights Law § 12; Judiciary Law § 4). This right “has long been regarded as a fundamental privilege of the defendant in a criminal prosecution” (People v Jelke, 308 NY 56, 61 [1954]) and extends to the voir dire portion of a trial (see Presley v Georgia, 558 US —, —, 130 S Ct 721, 723-724 [2010]). While trial courts have discretion to close the courtroom to the public, that discretion must be exercised only “ ‘ “when unusual circumstances necessitate it” ’ ” (People v Jones, 96 NY2d 213, 216 [2001], quoting People v Hinton, 31 NY2d 71, 76 [1972]). A party “seeking to close [a] hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and . . . must make findings adequate to support the closure” (Waller v Georgia, 467 US 39, 48 [1984]).

In closing the courtroom, the court indicated two possible reasons for the closure: first, that every seat would be occupied by potential jurors and, second, a concern that defendant’s father might influence them. Although these were relevant considerations, neither of these concerns, without more, rises to the level of “an overriding interest that is likely to be prejudiced.”

Absent a specific threat that a spectator may influence a prospective juror, it is improper to close the courtroom for that reason.

“The generic risk of jurors overhearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent whenever members of the public are present during the selection of jurors. If broad concerns of this sort were sufficient to override a defendant’s constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course” (Presley, 558 US at —, 130 S Ct at 725).

It is the court’s duty to make a finding on the record that threats of “improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire” (558 US at —, 130 S Ct at 725). The court here made no such finding.

Neither does the need for judicial efficiency and the conservation of judicial resources trump this constitutional right. While the trial court does have an inherent power, at its discretion, to “monitor admittance to the courtroom, as the circumstances require, in order to prevent overcrowding [or] to accommodate limited seating capacity,” such power does not extend to excluding specific members of the public from the courtroom (People v Colon, 71 NY2d 410, 416 [1988]).

“Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials” (Presley, 558 US at —, 130 S Ct at 725). Like the court in Presley, the court in this instance did not consider any alternatives to closing the courtroom in order to prevent overcrowding or potential jury contamination. There is nothing in the record that shows that the court could not have accommodated defendant’s father. As noted in Presley, “some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members” (558 US at —, 130 S Ct at 725). The court is required to consider alternatives even if neither party suggests any (558 US at —, 130 S Ct at 724). Consequently, pursuant to Presley, the trial court’s failure to consider any alternate accommodations violated defendant’s right to an open trial, regardless of the reasons for closure. “[E]ven assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure. It did not, and that is all this Court needs to decide” (558 US at —, 130 S Ct at 725).

A violation of the right to an open trial is not subject to harmless error analysis and “a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee” (People v Jones, 47 NY2d 409, 417 [1979]). However, the People have proffered the argument that the closing of the courtroom in this instance was so inconsequential that it is trivial, citing Gibbons v Savage (555 F3d 112 [2d Cir 2009]) and People v Peterson (81 NY2d 824 [1993]).

While the facts in Gibbons, which predates Presley, are remarkably similar to the instant case, the Second Circuit found that “nothing of significance happened” while petitioner’s mother was kept out of the courtroom (Gibbons v Savage, 555 F3d at 121). Here, there was extensive questioning of prospective jurors in open court about such matters as their familiarity with the neighborhood of the crime and their experiences with police officers. The ability of the public to observe questioning of this sort is important, both so that the judge, the lawyers and the prospective jurors will be conscious that they are observed, and so that the public can evaluate the fairness of the jury selection process. “The process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system” (Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501, 505 [1984]).

Finally, the People’s reliance on People v Peterson (supra) is misplaced. Peterson stands for the proposition that a “brief and inadvertent continuation of a proper courtroom closing, which was not noticed by any of the participants, did not violate defendant’s right to a public trial” (81 NY2d at 825). However, it further held that “[a] denial of the public trial right requires an affirmative act by the trial court excluding persons from the courtroom, which in effect explicitly overcomes the presumption of openness” (id.). That is precisely what occurred in this case.

Therefore, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Lippman and Judges Gbaffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.


author: Chief Judge Lippman. Smith, J. (dissenting).

text:
    [949 NE2d 949, 926 NYS2d 1]
    In the Matter of Dylan C., a Person Alleged to be a Juvenile Delinquent, Respondent. Presentment Agency, Appellant.
    Argued January 17, 2011;
    decided April 5, 2011

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Deborah A. Brenner and Kristin M. Helmers of counsel), for appellant.
    Because a nonsecure detention facility for juvenile delinquents is a “detention facility,” the petition sufficiently alleged acts constituting escape in the second degree. (People v Ortega, 69 NY2d 763; Reddington v Staten Is. Univ. Hosp., 11 NY3d 80; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; People v Walker, 81 NY2d 661; Samiento v World Yacht Inc., 10 NY3d 70; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; People v Finnegan, 85 NY2d 53, 516 US 919; People v Zimmerman, 9 NY3d 421; Matter of Yong-Myun Rho v Ambach, 74 NY2d 318; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471.)

      Legal Aid Society, New York City (Marcia Egger, Steven A. Banks, Tamara A. Steckler and Lori Masco of counsel), for respondent.
    A “nonsecure detention facility,” which under the Family Court Act and the Executive Law is defined as a setting devoid of restrictive construction, hardware, and procedures that provides temporary care and maintenance of juveniles awaiting Family Court Act article 3 and article 7 proceedings, is outside the category of a “detention facility” as defined in section 205.00 (1) of the Penal Law. (People v Ortega, 69 NY2d 763; Matter of Jahron S., 79 NY2d 632; Matter of Benjamin L., 92 NY2d 660; People v Nancy C., 188 Misc 2d 383; Matter of Ellery C, 32 NY2d 588; Shimamoto v S&F Warehouses, 99 NY2d 165; Matter of Seaman, 78 NY2d 451; Anglin v Anglin, 80 NY2d 553; Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791; Alifieris v American Airlines, 63 NY2d 370.)
   OPINION OF THE COURT

Chief Judge Lippman.

Respondent Dylan C. ran out the door of the nonsecure juvenile detention facility to which he had been remanded pending his adjudication upon a juvenile delinquency petition. For absconding, he was charged in a second juvenile delinquency petition with the commission of acts which, if performed by an adult, would constitute the crime of escape in the second degree (Penal Law § 205.10 [1]), a class E felony. Family Court granted respondent’s motion to dismiss the petition alleging escape upon the ground that elopement from a nonsecure facility did not fall within the proscription of the felony escape statute relied upon by the presentment agency (20 Misc 3d 942 [Fam Ct, Kings County 2008]). The Appellate Division in a thorough and thoughtful opinion affirmed, essentially upon the same ground (69 AD3d 127 [2d Dept 2009]), and we, having agreed to review the Appellate Division’s decision and order (14 NY3d 710 [2010]), now, also affirm.

The felony escape statute setting forth the offense presently alleged against respondent, Penal Law § 205.10 (1), provides in relevant part that “[a] person is guilty of escape in the second degree when: 1. [h]e escapes from a detention facility.” “Detention [f]acility” is, in turn, pertinently defined in Penal Law § 205.00 (1) as “any place used for the confinement, pursuant to an order of a court, of a person (a) charged with or convicted of an offense, or (b) charged with being or adjudicated a youthful offender, person in need of supervision or juvenile delinquent.”

It is clear from the just quoted language that respondent escaped from a “detention facility” within the literal description of Penal Law § 205.00 (1) (a) and (b), and, if that language were to be considered in isolation, it would dictate the conclusion that the conduct of which respondent is accused is proscribed by Penal Law § 205.10 (1). However, article 3 of the Family Court Act, the body of law specifically governing the disposition and treatment of juveniles, such as respondent, detained while awaiting adjudication of delinquency charges (see Family Ct Act § 301.1), does not equate detention with confinement, as does the Penal Law, but rather defines it for purposes of the article more broadly as “the temporary care and maintenance of children away from their own homes” (Family Ct Act § 301.2 [3]). And, in that connection, article 3 has, since the enactment of the above-quoted Penal Law provisions, introduced a distinction, not articulated in the Penal Law, between secure detention facilities, i.e., “facilities] characterized by physically restrictive] construction, hardware and procedures” (Family Ct Act § 301.2 [4]), and nonsecure detention facilities, i.e., “facilities] characterized by the absence of physically restrictive] construction, hardware and procedures” (Family Ct Act § 301.2 [5]). The distinction is, we believe, crucial in judging the reach of the subject second-degree escape statute, not simply because it is no small measure anomalous to speak of “escaping” from a facility “characterized by the absence of physically restrictive] construction, hardware and procedures,” but because we have specifically held in People v Ortega (69 NY2d 763 [1987]) that “a nonsecure facility does not constitute a detention facility within the meaning of Penal Law § 205.00 (1),” and, accordingly that one may not commit the crime of escape in the second degree by leaving such a facility without permission (id. at 764).

There is, of course, a tension between the literal significance of the relevant Penal Law provisions and Ortega’s carve-out for nonsecure facilities. Ortega involved an alleged escape from a nonsecure psychiatric hospital, and its carve-out was explained as warranted by the very different objectives of secure and non-secure psychiatric commitment. Secure commitment, we recognized, had as a principal objective the protection of the public, a purpose obviously frustrated by escape and vindicated by subjecting an escapee to serious criminal sanction. The dominant purposes of nonsecure commitment, therapy and rehabilitation (69 NY2d at 764-765), however, would not have been similarly advanced, and could in fact have been significantly impaired, if on every occasion that a psychiatric patient wandered off the grounds of the nonsecure facility to which he or she had been committed, there arose the possibility of a felony prosecution. The question now posed is whether there is some sensible, statutorily relevant distinction to be made between a nonsecure psychiatric facility and a nonsecure juvenile detention facility.

Inasmuch as both are designed to detain but not imprison, and to rehabilitate rather than punish, and neither has as a principal end the protection of the public—that objective being present in both cases but necessarily subordinate to the creation of a salutary therapeutic milieu for troubled but presumably not particularly dangerous persons (see Sebastian v State of New York, 93 NY2d 790, 795 [1999])—it is difficult to discern for present purposes any cogent distinction between the two types of facilities. It would moreover be entirely incongruous to treat an adult acquitted of rape upon a plea of insanity with impunity for his escape from a nonsecure psychiatric facility, as we did in Ortega, but to deem a child awaiting adjudication upon a juvenile delinquency petition answerable to a felony grade charge for taking his leave of the nonsecure detention facility to which he had been remanded, through its evidently unlocked door. Having with good reason and humane purpose read the second-degree escape statute as we did some 24 years ago, it would not be prudent now to apply the statute in the evidently disparate manner proposed by petitioner.

Although petitioner protests that there will be untoward consequences if second-degree escape is not made available as a charge whenever a juvenile detained pending adjudication of juvenile delinquency charges leaves a nonsecure detention facility without permission, there appears little reason to suppose that that is so. It may well be desirable that some significant consequence attach to a child’s noncompliance with the conditions upon which a nonsecure remand is made, but the filing of a new petition alleging felony escape is demonstrably inessential to that purpose. In the event of noncompliance, a child may without the need of a new juvenile delinquency petition, but in accordance with a provision in the order detaining him or her, be directly transferred to a secure facility, as indeed respondent was.

Accordingly, the order of the Appellate Division should be affirmed.

Smith, J. (dissenting).

On the face of the applicable statutes, the result the majority reaches seems impossible. The question is whether “non-secure detention facilities” (so named by statute, Executive Law §§ 503, 504) are detention facilities—a question that answers itself. The obvious conclusion is reinforced by the statutory definition of “detention facility”: “any place used for the confinement, pursuant to an order of a court, of a person . . . charged with being . . . a . . . juvenile delinquent” (Penal Law § 205.00 [1] [b]). Dylan C. was charged with being a juvenile delinquent and remanded by order of the Family Court to the Catholic Guardian Non-Secure Detention Center. Any argument that the facility was not used for his “confinement” must deal with the awkward fact that, when Dylan walked out the door, a facility employee chased him and brought him back. Indeed, the relevant statutes fit the facts here so well that the majority, to avoid calling Dylan’s act an “escape”—the act with which he is charged—uses instead the word “elopement” (majority op at 616), which usually refers to a more romantic event.

Acknowledging that the “literal” words of the statute do not support its holding (majority op at 616), the majority finds justification for disregarding those words in People v Ortega (69 NY2d 763, 764 [1987]), which does indeed say: “a nonsecure facility does not constitute a detention facility.” Ortega dealt with a psychiatric facility, not one for the detention of juvenile offenders. The words “non-secure detention facility” do not appear in Ortega. It is not apparent that we were aware, when we wrote our memorandum decision in Ortega—devoting only two sentences to the question of what “detention facility” means—that such a thing as a “non-secure detention facility” existed.

The majority makes a reasonable argument that a mentally ill adult, like the Ortega defendant, who flees from confinement is probably not less dangerous than a fleeing juvenile offender like Dylan. I would not, however, extend the Ortega decision to the limits of its logic. I would confine Ortega to its facts, and apply to this case the statutes as they are written.

Judges Ciparick, Graffeo and Jones concur with Chief Judge Lippman; Judge Smith dissents and votes to reverse in a separate opinion in which Judges Read and Pigott concur.

Order affirmed, without costs.

      . While the dissent finds the use of this term amusing in this decidedly nonromantic context, it is a term more widely used and specifically with reference to the act of leaving a facility without permission (see e.g. 10 NYCRR 405.8 [b] [5]; 405.22).

      . Contrary to the dissent, we were necessarily aware at the time Ortega was decided that Bronx Psychiatric Center, the facility from which Ortega absconded, was, while nonsecure in contrast to Mid-Hudson Psychiatric Center (the secure psychiatric facility at which Ortega had initially been hospitalized following his insanity acquittal), nonetheless a facility at which involuntarily committed individuals, among them Ortega, were detained. We expressly noted that, notwithstanding Ortega’s transfer to the nonsecure facility, he remained in the custody of the Commissioner of Mental Health (69 NY2d at 764-765).

      . The door, we note, cannot be supposed to have been left unlocked by accident, since, as the Department of Juvenile Justice explains on its Web site, “[w]hile locks on the doors and other hardware distinguish Secure Detention, [nonsecure detention (NSD)] is characterized by the absence of such restrictions. Residents are staff-supervised and may leave the NSD group homes to attend community programs if escorted by staff” (http://www.nyc.gov/html/djj/ html/faq.html [accessed Mar. 18, 2011]; see also Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 301.2, at 371-372 [“(t)he essential distinction (between secure and nonsecure facilities for juveniles) is that a non-secure facility is ‘open’ or not locked. In a sense, the term is an oxymoronic phrase; the usual non-secure setting, a community group home or open campus-like structure, would not be deemed to be ‘detention’ by most lay persons”]).


author: Read, J. Ciparick, J.

text:
    [949 NE2d 952, 926 NYS2d 4]
    The People of the State of New York, Respondent, v John Lingle, Appellant. The People of the State of New York, Respondent, v John Parisi, Appellant. The People of the State of New York, Respondent, v Dominique Murrell, Appellant. The People of the State of New York, Respondent, v John Prendergast, Appellant. The People of the State of New York, Respondent, v Manuel Rodriguez, Appellant. The People of the State of New York, Respondent, v Darryl Sharlow, Appellant.
    Argued March 21, 2011;
    decided April 28, 2011

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Jonathan M. Kirshbaum and Robert S. Dean of counsel), for appellant in the first above-entitled action.
    I. State and federal double jeopardy barred the resentencing court from imposing postrelease supervision on appellant, who had already served more than five years of his sentence at the time of resentencing. (North Carolina v Pearce, 395 US 711; United States v DiFrancesco, 449 US 117; United States v Fogel, 829 F2d 77; People v

      Williams, 14 NY3d 198; Stewart v Scully, 925 F2d 58; Breest v Helgemoe, 579 F2d 95; Bozza v United States, 330 US 160; Williams v Travis, 143 F3d 98; People v Williams, 87 NY2d 1014; People v Momplaisir, 2 AD3d 320.) II. A court conducting a postrelease supervision resentencing has the authority to exercise its own independent discretion to reconsider the term of imprisonment of the original determinate sentence upon imposing postrelease supervision. (People v Catu, 4 NY3d 242; People v Sparber, 10 NY3d 457; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v Perry, 36 NY2d 114; People v Sturgis, 69 NY2d 816; People v Stroman, 36 NY2d 939; People v Kuey, 83 NY2d 278; Matter of Murray v Goord, 1 NY3d 29; People v Martinez, 136 AD2d 745; People v Desulma, 26 AD3d 443.) III. The Appellate Division had the power to reduce the sentence in the interest of justice because this was an appeal of a sentence as of right under CPL 450.10 (2) and 450.30 (1) and (3). (People v Delgado, 80 NY2d 780; People v Rivera, 5 NY3d 61; People v Pollenz, 67 NY2d 264; People v Sparber, 10 NY3d 457; People v Rodriguez, 73 AD3d 541, 15 NY3d 855; People v Lopez, 6 NY3d 248.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Vincent Rivellese and Patrick J. Hynes of counsel), for respondent in the first above-entitled action.
    The trial judge’s correct imposition of the legal sentence he always intended to impose should be affirmed. (Earley v Murray, 451 F3d 71; People v Sparber, 10 NY3d 457; People v Hernandez, 59 AD3d 180; People v Williams, 14 NY3d 198; Bozza v United States, 330 US 160; United States v DiFrancesco, 449 US 117; United States v Rosario, 386 F3d 166; United States v Fogel, 829 F2d 77; People v Minaya, 54 NY2d 360; Strickland v Washington, 466 US 668.)

      Legal Aid Society of Suffolk County, Inc., Appeals Bureau, Riverhead (Kirk R. Brandt, Robert C. Mitchell, Robert L. Cicale and Alfred J. Cicale of counsel), for appellant in the second above-entitled action.
    In view of the fact that a period of 74 months and 20 days had elapsed from the time the original sentence was imposed on defendant, and cognizant of a time delay of such magnitude in addressing a corrective sentence, the resentencing court lacked both jurisdiction and authority over defendant and, as such, the imposition of the mandatory five-year period of postrelease supervision on the determinate sentences previously decreed violated fundamental fairness and due process and constituted an illegal sentence. (People v Williams, 14 NY3d 198; Hawkins v Freeman, 195 F3d 732; DeWitt

      v Ventetoulo, 6 F3d 32, 511 US 1032; Breest v Helgemoe, 579 F2d 95, 439 US 933; United States v Lundien, 769 F2d 981, 474 US 1064; United States v Cook, 890 F2d 672.)

      Thomas J. Spota, District Attorney, Riverhead (Michael J. Brennan of counsel), for respondent in the second above-entitled action.
    The County Court’s resentencing of appellant to post-release supervision did not violate fundamental fairness or due process and was, thus, a legal sentence. (People v Williams, 14 NY3d 198; United States v Rourke, 984 F2d 1063; United States v Warner, 690 F2d 545; United States v Silvers, 90 F3d 95; United States v Daddino, 5 F3d 262; United States v Arrellano-Rios, 799 F2d 520; DeWitt v Ventetoulo, 6 F3d 32; United States v Lundien, 769 F2d 981; Breest v Helgemoe, 579 F2d 95; United States v Cook, 890 F2d 672.)

      Office of the Appellate Defender, New York City (Joseph M. Nursey and Richard M. Greenberg of counsel), for appellant in the third above-entitled action.
    Dominique Murrell was improperly resentenced to add a term of postrelease supervision, after he had served more than eight years of his sentence and was within two months of release, in violation of the prohibition against double jeopardy and his right to due process of law. (People v Williams, 14 NY3d 198; Benton v Maryland, 395 US 784; People v Vasquez, 89 NY2d 521; United States v DiFrancesco, 449 US 117; Stewart v Scully, 925 F2d 58; People v Campanella, 297 AD2d 642; People v Trimm, 252 AD2d 673; People v Gilchrist, 231 AD2d 424; People v Hoppie, 220 AD2d 528; People v White, 292 AD2d 158.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Timothy C. Stone and Vincent Rivellese of counsel), for respondent in the third above-entitled action.
    The lower court properly resentenced defendant. (People v Sparber, 10 NY3d 457; People v Williams, 14 NY3d 198; People v Simms, 77 AD3d 562; People v Parisi, 72 AD3d 989; People v Becker, 72 AD3d 1290; People v Bing, 76 NY2d 331; People v Taylor, 9 NY3d 129; Stewart v Scully, 925 F2d 58; People v Konstantinides, 14 NY3d 1; United States v Lundien, 769 F2d 981.)

      Appellate Advocates, New York City (Warren S. Landau and Lynn W.L. Fahey of counsel), for appellant in the fourth above-entitled action.
    I. The court violated double jeopardy and denied appellant due process when, more than five years after his original sentencing, it added a five-year term of postrelease supervision to his sentence. (United States v DiFrancesco, 449 US 117;
      People v Williams, 14 NY3d 198; United States v Lundien, 769 F2d 981, 474 US 1064; People v Sparber, 10 NY3d 457; People v Wright, 56 NY2d 613; Ex parte Lange, 18 Wall [85 US 163]; North Carolina v Pearce, 395 US 711; People v Biggs, 1 NY3d 225; Stewart v Scully, 925 F2d 58; United States v Fogel, 829 F2d 77.) II. The resentencing court erroneously failed to recognize its authority and obligation to revisit the term of imprisonment of the original sentence and consider the appropriateness of appellant’s sentence as a whole. (People v Sparber, 10 NY3d 457; United States v Rourke, 984 F2d 1063; People v Catu, 4 NY3d 242; People v Kuey, 83 NY2d 278; People v Martinez, 136 AD2d 745; People v Desulma, 26 AD3d 443; People v Bibbs, 17 AD3d 170; People v Wiggins, 17 AD3d 196; People v Lucks, 91 AD2d 896; People v Green, 54 NY2d 878.)

      Richard A. Brown, District Attorney, Kew Gardens (Anastasia Spanakos and John M. Castellano of counsel), for respondent in the fourth above-entitled action.
    I. Defendant’s resentencing to correct his illegal sentence did not violate double jeopardy or due process. (People v Williams, 14 NY3d 198; People v Sparber, 10 NY3d 457; United States v Rourke, 984 F2d 1063; United States v Silvers, 90 F3d 95; People v Johnson, 79 AD3d 1072; People v Velez, 79 AD3d 542; People v Ragbirsingh, 78 AD3d 738; People v Young, 78 AD3d 744; People v Simms, 77 AD3d 562; People v Murrell, 73 AD3d 598, 15 NY3d 854.) II. The record does not support defendant’s claim that the resentencing court believed it had no authority to reconsider the incarceratory part of his sentence, and the ambiguity in the record on this point precludes review here. At any rate, the resentencing court in fact had no such authority, and thus defendant’s claim is meritless. (People v Sparber, 10 NY3d 457; People v Yannicelli, 40 NY2d 598; People v Damiano, 87 NY2d 477; People v Kinchen, 60 NY2d 772; People v Phelps, 74 NY2d 919; People v McLean, 15 NY3d 117; United States v Pridgeon, 153 US 48; Stewart v Scully, 925 F2d 58; Adams v United States, 375 F2d 635; People v Richardson, 100 NY2d 847.)

      Center for Appellate Litigation, New York City (Claudia S. Trupp and Robert S. Dean of counsel), for appellant in the fifth above-entitled action.
    I. The Appellate Division has greater authority than the trial courts to review sentences and properly exercised its interest of justice review power to reduce Mr. Rodriguez’s sentence in his appeal as of right under CPL 450.10 (2) and 450.30 (1) and (3). (People v Delgado, 80 NY2d 780; People v Thompson, 60 NY2d 513; People v Rivera, 5 NY3d 61;
      Judson v Central Vt. R.R. Co., 158 NY 597; People v Rosenthal, 305 AD2d 327; People v Suitte, 90 AD2d 80; People v Pollenz, 67 NY2d 264; People v Williams, 6 NY2d 193; People v Evans, 94 NY2d 499.) II. A judge conducting a postrelease supervision (PRS) resentencing has the authority to exercise his independent discretion in determining an appropriate sentence and is not limited to merely pronouncing a term of PRS without considering the propriety of the entire sentence, including the prison term. (People v Sparber, 10 NY3d 457; People v Catu, 4 NY3d 242; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v DeValle, 94 NY2d 870; People v Wright, 56 NY2d 613; People v Minaya, 54 NY2d 360; People v Sturgis, 69 NY2d 816; People v Stroman, 36 NY2d 939; People v Richardson, 100 NY2d 847; People v Samms, 95 NY2d 52.) III. State and federal double jeopardy and due process principles barred the resentencing court from imposing post-release supervision on Mr. Rodriguez, who had already served more than six years of his sentence at the time of resentencing. (North Carolina v Pearce, 395 US 711; United States v DiFrancesco, 449 US 117; United States v Fogel, 829 F2d 77; People v Williams, 14 NY3d 198; Stewart v Scully, 925 F2d 58; Breest v Helgemoe, 579 F2d 95; Bozza v United States, 330 US 160; Williams v Travis, 143 F3d 98; People v Williams, 87 NY2d 1014; People v Momplaisir, 2 AD3d 320.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Richard Nahas and Patrick J. Hynes of counsel), for respondent in the fifth above-entitled action.
    Where a resentencing court convened for pronouncement of a defendant’s postrelease supervision term is not authorized to modify defendant’s prison term, the Appellate Division has no power to modify the prison term on appeal from the resentencing. (People v Sparber, 10 NY3d 457; People v DeValle, 94 NY2d 870; People v Wright, 56 NY2d 613; People v Minaya, 54 NY2d 360, 455 US 1024; People v Acevedo, 14 NY3d 828; People v Kuey, 83 NY2d 278; People v Yannicelli, 40 NY2d 598; People v Harrington, 21 NY2d 61; People v Carpenter, 19 AD3d 730, 5 NY3d 804; People v LaSalle, 95 NY2d 827.)

      Charles J. Hynes, District Attorney, Brooklyn (Solomon Neubort of counsel), for appellant in the sixth above-entitled action.
    The resentencing of defendant for the purpose of adding a mandatory period of postrelease supervision was authorized, because the resentencing occurred before the maximum expiration date of the original sentence. (People v Williams, 14 NY3d 198; People ex rel. Johnson v Warden, Rikers Is. Correctional Facility, 4 Misc 3d 535, 16 AD3d 183; Matter of Deal v Goord, 8 AD3d 769; People v Melio, 304 AD2d 247; People v Crump, 302 AD2d 901; People v Sparber, 10 NY3d 457; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; United States v DiFrancesco, 449 US 117; United States v Halper, 490 US 435; Bozza v United States, 330 US 160.)

      Legal Aid Society, Criminal Appeals Bureau, New York City (Steven J. Miraglia of counsel), for respondent in the sixth above-entitled action.
    This Court should reject the People’s interpretation of People v Williams (14 NY3d 198 [2010]) because it is contrary to everything that opinion stands for. Instead, this Court should, pursuant to Williams, vacate the order resentencing appellant to include a period of postrelease supervision.
   OPINION OF THE COURT

Read, J.

In People v Sparber (10 NY3d 457 [2008]), we held that defendants subject to postrelease supervision (PRS) have a statutory right under CPL 380.20 and 380.40 for a judge to pronounce the PRS sentence in their presence in open court, and that the remedy when a judge neglects to do this is resentencing to correct the error. Although the facts in these six cases vary, they share two essential features: the judges who sentenced defendants did not pronounce PRS (i.e., they committed a Sparber error), and defendants were resentenced to PRS before completion of their originally-imposed sentences of imprisonment. Specifically, defendants John Lingle, John Parisi, Dominique Murrell, John Prendergast and Manuel Rodriguez were still incarcerated when resentenced; defendant Darryl Shadow was conditionally released from prison after having served six sevenths of his originally-imposed sentence.

Defendants Lingle, Parisi, Murrell, Prendergast, Rodriguez and Shadow seek upon resentencing to be relieved of their statutory obligation to serve PRS on grounds of double jeopardy and/or due process. Alternatively, defendants Lingle, Prendergast and Rodriguez maintain that resentencing courts have discretion to reconsider the propriety of their sentences as a whole (i.e., both the incarceratory and the PRS components). Defendants Lingle and Rodriguez contend, in addition, that the Appellate Division possesses plenary power to modify their sentences after resentencing in the interest of justice. We reject all these arguments, and thus affirm in Lingle, Parisi, Murrell, Prendergast and Rodriguez, and reverse in People v Sharlow.

Double Jeopardy

Defendants contend that because they served “significant” or “substantial” portions of their originally-imposed sentences before resentencing, they acquired a legitimate expectation of finality, and, as a result, their cases are not comparable to those where the Double Jeopardy Clause did not bar a greater sentence (see e.g. Bozza v United States, 330 US 160 [1947] [defendant resentenced five hours after original sentence imposed]; Williams v Travis, 143 F3d 98 [2d Cir 1998] [one week]; People v Williams, 87 NY2d 1014 [1996] [one week]). In order to avoid a double jeopardy violation, they continue, resentencing courts may only impose PRS by reducing the incarceratory portion of their sentences such that the incarceratory and PRS components of the resentences, when added together, do not exceed the length of their originally-imposed sentences of imprisonment.

Our decision in People v Williams (14 NY3d 198 [2010], cert denied 562 US —, 131 S Ct 125 [2010]) defeats defendants’ double jeopardy argument. We pointed out in Williams that defendants are “presumed to be aware that a determinate prison sentence without a term of PRS is illegal” and subject to correction, and therefore “cannot claim a legitimate expectation that the originally-imposed, improper sentence is final for all purposes” (id. at 217). Nonetheless, “there must be a temporal limitation on a court’s ability to resentence a defendant . . . since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts” (id.). Citing federal precedent that we found to be persuasive, we held in Williams that an expectation of finality arises for purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts any appeal taken (id. [“(T)here 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)”]; see also id. at 227 [Pigott, J, dissenting] [characterizing majority’s “holding” as requiring two conditions for a legitimate expectation of finality to “attach”: “the completion of the initial sentence and the completion of the direct appeal or time to appeal” (internal quotation marks omitted)]). The defendants in Williams and the cases decided along with it had all completed their sentences (including any discharge on conditional release) before being resentenced. By contrast, the six defendants in these cases had not yet completed their originally-imposed sentences of imprisonment when they were resentenced to add PRS.

To counter Williams, defendants highlight the Second Circuit’s decision in Stewart v Scully (925 F2d 58 [2d Cir 1991]). Focusing on the “substantial portion” of the originally-imposed indeterminate sentence already served, the court in Stewart decided that the petitioner possessed a “legitimate expectation in the finality of his sentence, thus violating the protection against multiple punishments guaranteed by the double jeopardy clause” (id. at 58). But Stewart pleaded guilty in exchange for a maximum sentencing exposure of 20 years. Upon subsequently learning that the minimum sentence had to be one third (as opposed to one half) the maximum, the sentencing court increased Stewart’s maximum sentence to 24 years. By contrast, these defendants were not caught unaware when a sentencing agreement was changed: defendants Lingle, Parisi, Murrell, Prendergast and Rodriguez were sentenced after trials; defendant Sharlow was sentenced, “as promised, to seven years” (dissenting op at 636 [emphasis added]).

Importantly, defendants’ suggested rule—that resentencing to PRS should be precluded when a “significant” or “substantial” portion of the originally-imposed sentence of imprisonment has been served—supplies no meaningful standard by which to measure a reasonable expectation of finality. Given the thousands of resentencings—past and future—brought about by Sparber errors, our rule in Williams, by contrast, promotes clarity, certainty and fairness.

Finally, defendants offer no principled basis for us to go beyond our recent decision in Williams and interpret the State Constitution’s Double Jeopardy Clause more broadly than its federal counterpart, particularly in light of our other recent decision in Matter of Suarez v Byrne (10 NY3d 523, 534 [2008]). True, the Legislature has enacted certain statutes affording broader double jeopardy protection than the Federal Constitution requires, but these laws have nothing to do with sentencing. Indeed, after we handed down Sparber the Legislature promptly adopted legislation to allow resentencing as many defendants as possible to sentences that include PRS (see L 2008, ch 141).

Due Process

Defendants also argue that substantive due process bars their resentencing to PRS. To support a due process claim, they rely principally on the decisions of the First and Fourth Circuits in Breest v Helgemoe (579 F2d 95 [1st Cir 1978]), United States v Lundien (769 F2d 981 [4th Cir 1985]) and DeWitt v Ventetoulo (6 F3d 32 [1st Cir 1993]). These decisions generally apply a multi-factor test to determine when a defendant’s expectation that his sentence will remain unchanged has “crystallized” such that resentencing would offend substantive due process (see Lundien, 769 F2d at 987). But subsequent decisions by the very same courts have largely abandoned the multi-factor test in favor of a “shocks the conscience” standard (see Gonzalez-Fuentes v Molina, 607 F3d 864, 882 [1st Cir 2010] [applying the “shocks the conscience” standard to evaluate substantive due process claims]; Espinoza v Sabol, 558 F3d 83, 87 [1st Cir 2009] [describing DeWitt as an “extreme case,” as the DeWitt court itself acknowledged (see 6 F3d at 36 [characterizing case as “the very rare exception to the general rule that courts can, after sentence, revise sentences upward to correct errors”])]; Hawkins v Freeman, 195 F3d 732, 749 [4th Cir 1999] [holding that Lundien’s pronouncements on due process were merely dicta and that the court had failed to engage in the “rigorous historical inquiry” mandated in Washington v Glucksberg (521 US 702, 720-721 [1997])]).

The proper substantive due process analysis thus requires a determination, first, as to whether the right at issue is so deeply rooted in this Nation’s history and traditions as to be considered fundamental, and, if so, whether the government’s action is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience” (Gonzalez-Fuentes, 607 F3d at 880 [citation omitted]). Negligence alone is insufficient to “shock the conscience,” and in successful due process challenges, there is generally an extreme lack of proportionality inspired by malice or sadism rather than carelessness or excess of zeal (id. at 881).

Even assuming a defendant possesses a fundamental right not to have an illegal sentence revised upward to correct an error, these defendants cannot establish that the government’s conduct shocks the conscience. The resentencings merely imposed statutorily-required sentences. The State was not acting out of malice or sadism, but out of a desire to see that legislatively determined mandatory sentences were actually served. And the State’s action was not subjectively or standardlessly directed at particular individuals; rather, it was aimed at an entire category of defendants whose sentences were improperly pronounced. In sum, judged by the “shock the conscience” standard, defendants cannot make out a substantive due process violation.

While defendants fare marginally better under the DeWitt standard, they still fall short. DeWitt calls for a court to consider multiple factors, including the length of time between the mistake and its attempted correction and whether the defendant contributed to the mistake; the reasonableness of the defendant’s intervening expectations; the prejudice resulting from the change; and the government’s diligence in seeking the change (6 F3d at 35).

In some of these cases, the lapse of time between the Sparber error and its correction at resentencing was several years; in no case did defendants contribute to the mistake. Still, defendants could not have developed a reasonable expectation in a prison sentence without PRS. PRS is statutorily mandated, and defendants are charged with knowledge of the law. They were represented by presumably competent counsel who should have informed them of their exposure to PRS. The Department of Correctional Services informs defendants of the PRS component of their sentences upon their entry into the correctional system (see e.g. Correction Law § 803 [6]). Significantly, defendants do not protest that they were actually unaware that PRS would be a component of their sentences.

In short, there is every reason to believe that defendants did, in fact, know that they were subject to PRS long before efforts to resentence them were undertaken. Because defendants are merely being required to serve a part of their sentences of which they were always cognizant, any prejudice resulting from resentencing is de minimis. Moreover, the government has acted diligently to correct Sparber errors. Finally, defendants suggest no reason for us to interpret substantive due process more broadly in these circumstances as a matter of state constitutional law.

Whether a Resentencing Court May Reconsider a Defendant’s Sentence at a Resentencing to Correct a Sparber Error

Defendants read Sparber to direct or empower judges to revisit the propriety of a defendant’s sentence as a whole—both the incarceratory and PRS components—when resentencing to correct a Sparber error. While there is, at least arguably, isolated language in Sparber which lends itself to this interpretation (principally, our single use of the word “vacate” in the body of the opinion), this is clearly not what we meant. If it had, in fact, been what we intended, we surely would have expressed an unambiguous holding to this effect rather than risk creating a situation where thousands of Sparber resentencings might have to be repeated.

We start with the proposition that a Sparber error “amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court [can] easily remedy” (Sparber, 10 NY3d at 472 [emphasis added]). In support of this statement, we cited People v DeValle (94 NY2d 870 [2000]), People v Wright (56 NY2d 613, 614 [1982]) and People v Minaya (54 NY2d 360 [1981]). We did not suggest in these cases that the sentencing judge was supposed to do anything at resentencing other than correct the discrete error prompting the resentencing in the first place (see also People v Yannicelli, 40 NY2d 598, 602 [1976] [it was error for the trial court to revisit the defendant’s entire sentence when a procedural mistake in imposing a fine was the sole defect in the original sentencing and thus “the only reason why resentencing was ordered”]; People v Harrington, 21 NY2d 61 [1967] [although the order, in form, was vacated by reason of a ministerial error, the reason for the remand was merely to correct this mistake and therefore the net sentence should not have been changed]).

In Sparber, the defendants urged us to fix the pronouncement mistake, the only harm they alleged, by striking PRS from their sentences. We rejected this proposed remedy, deciding instead to remit their cases to Supreme Court “for resentencing and the proper judicial pronouncement of the relevant PRS terms” (10 NY3d at 465 [emphasis added]). Accordingly, we declared that “[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement” (id. at 471 [emphasis added]). In the decretal paragraph itself, we directed that “the order of the Appellate Division should be modified by remitting to Supreme Court for a resentencing hearing that will include the proper pronouncement of the relevant PRS term (id. at 473 [emphasis added]).

By contrast, we have explained the required corrective action in far more general language when remitting for a resentencing requiring the exercise of discretion. For example, in People v Yancy (86 NY2d 239, 247 [1995]) the sentencing court mistakenly believed that the defendant was a predicate felon. Accordingly, in the decretal paragraph we modified the Appellate Division’s order by “vacating defendant’s sentence, and . . . remitting the case] to Supreme Court, New York County, for resentencing.” (Id.) Because the sentencing court in Yancy considered inappropriate factors in fashioning the sentence, resentencing logically entailed general, plenary proceedings. But in Sparber, the sentencing court merely failed to articulate properly the altogether appropriate sentence that it intended to impose. As a result, resentencing is limited to remedying this specific procedural error—i.e., to “mak[ing] the required pronouncement” (10 NY3d at 471). Put another way, resentencing to set right the flawed imposition of PRS at the original sentencing is not a plenary proceeding.

Whether the Appellate Division May Reduce a Defendant’s Sentence on Appeal from a Resentencing to Correct a Sparber

Error

Because a trial court lacks discretion to reconsider the incarceratory component of a defendant’s sentence at a resentencing to correct a Sparber error, the Appellate Division may not reduce the prison sentence on appeal in the interest of justice. The defendant’s right to appeal is limited to the correction of errors or the abuse of discretion at the resentencing proceeding (see CPL 470.15 [1]; 470.20). Since the resentencing court is not authorized to lower the prison sentence at a Sparber resentencing, appellate courts are likewise unauthorized to do this—i.e., the resentencing court’s failure to consider a lesser sentence was not an “error or defect” subject to reversal or modification (CPL 470.20).

Accordingly, the order of the Appellate Division should be affirmed in each case addressed in this opinion except People v Sharlow, where the Appellate Division’s order should be reversed and the resentence imposed by Supreme Court reinstated.

Ciparick, J.

(dissenting in People v Sharlow and People v Rodriguez). I join the majority opinion in only four of these cases, dissenting in People v Sharlow and People v Rodriguez.

People v Sharlow

On October 31, 2000, Sharlow pleaded guilty to one count of burglary in the second degree (Penal Law § 140.25 [1]) and one count of petit larceny (Penal Law § 155.25). Sharlow entered this guilty plea with the understanding that, if he successfully completed a drug treatment program in the ensuing 18 to 24 months, the burglary charge against him would be dismissed and that Supreme Court would sentence him to a conditional discharge on the petit larceny count. Supreme Court advised Sharlow, however, that if he failed to complete the drug treatment program or was rearrested during this period, the court would impose a seven-year determinate term of imprisonment. Supreme Court made no mention of the mandatory five-year term of postrelease supervision (PRS).

Sharlow did not complete the drug treatment program. Consequently, on November 1, 2002, Supreme Court sentenced defendant, as promised, to seven years. The court did not impose PRS at sentencing.

On May 14, 2008, after Sharlow became eligible for release from prison having served six sevenths of his term of imprisonment, the Department of Correctional Services (DOCS) conditionally released him pursuant to Correction Law § 803 (1). At that time, Sharlow began to serve a purported term of PRS that had been administratively imposed unlawfully by DOCS while he was in custody. Unfortunately, Sharlow violated the terms of his release and was reincarcerated on July 11, 2008. On July 31, 2008, DOCS notified Supreme Court that Sharlow was a “designated person,” meaning that the original sentencing court had not properly imposed PRS (see Correction Law § 601-d [1]). As a result, Sharlow was brought back to court on September 17, 2008. Over Sharlow’s objection, Supreme Court resentenced him by adding five years PRS to the original term of imprisonment. Sharlow appealed.

Citing our holding in People v Williams (14 NY3d 198 [2010]), the Appellate Division reversed and vacated the term of PRS. The court concluded that Sharlow’s “release from prison erected a bar under the Double Jeopardy Clause of the United States Constitution ... to the addition thereafter of a period of PRS” (People v Sharlow, 75 AD3d 568, 569 [2d Dept 2010]). A Judge of this Court granted the People leave to appeal (15 NY3d 924 [2010]). The majority now reverses the order of the Appellate Division and I respectfully dissent.

In Williams, we recognized that despite a court’s “inherent authority to correct illegal sentences . . . , there must be a temporal limitation on a court’s ability to resentence a defendant” (14 NY3d at 217). Thus, we held “that the Double Jeopardy Clause prohibits a court from resentencing [a] defendant to the mandatory term of PRS after [a] defendant has served the determinate term of imprisonment and has been released from confinement by DOCS” (id.). This is so because “once a defendant [has been] released from custody and returns to the community after serving the period of incarceration that was ordered by the sentencing court. . . there is a legitimate expectation that the sentence, although illegal under the Penal Law, is final” (id. at 219 [emphasis added]). In adopting this rule, we cited federal authority standing for the proposition that “the resentencing of a defendant who has been released from confinement would be unconstitutional” (id. at 216, citing DeWitt v Ventetoulo, 6 F3d 32, 35-36 [1st Cir 1993], cert denied 511 US 1032 [1994]; United States v Lundien, 769 F2d 981, 986-987 [4th Cir 1985], cert denied 474 US 1064 [1986]; Breest v Helgemoe, 579 F2d 95, 101 [1st Cir 1978], cert denied 439 US 933 [1978]).

Here, Sharlow’s release from confinement clearly bars resentencing under our holding in Williams. Sharlow duly served the period of incarceration ordered by the sentencing court (cf. Williams, 14 NY3d at 218 n 3 [“(t)his analysis has no application to a person who, for example, is erroneously released early by DOCS”]). Moreover, once DOCS calculated Sharlow’s precise release date by operation of statute (see Correction Law § 803 [1] [a], [c]), he was discharged and returned to the community (see id.). These factors, as discussed in Williams, entitle Sharlow to a “legitimate expectation” that he will no longer be subject to additional punishment, thereby making his sentence final for all purposes.

Nonetheless, the majority construes our holding in Williams differently and now finds “that an expectation of finality arises for purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence” (majority op at 630). Thus, under the majority’s rationale, Sharlow’s release from custody into the community is of no moment because Sharlow was still subject to DOCS supervision for the remaining one seventh of his prison term. In my view, this goes beyond what we held in Williams. Indeed, we did not create a rule that, upon a defendant’s proper release from custody into the community, as here, a legitimate expectation of finality would not arise until such defendant was no longer subject to DOCS supervision. In fact, we never considered the maximum expiration date of a sentence in Williams, but rather focused our entire discussion on an inmate’s release from confinement. Notably, we observed that “[s]ome [federal] courts have held that a reasonable expectation of finality arises upon completion of the imposed sentence, resulting in the attachment of jeopardy precluding resentencing” (14 NY3d at 216 [citations omitted]). Ultimately, however, we rejected this reasoning in favor of a rule, adopted by other federal courts, that double jeopardy bars resentencing once a defendant has been duly released from custody (see id. at 217).

Furthermore, other departments of the Appellate Division, in applying Williams, have also held that the conditional release of a defendant from prison bars the imposition of PRS on double jeopardy grounds (see e.g. People v Velez, 79 AD3d 542, 542 [1st Dept 2010] [“When a person serving a determinate sentence is conditionally released, the determinate sentence is still in effect, but the person has clearly been released from imprisonment within the meaning of Williams”]; People v Peterkin, 71 AD3d 1402, 1402 [4th Dept 2010] [although defendant returned to DOCS custody for violating the terms of his release, “County Court erred in resentencing him to a period of (PRS) after he had been conditionally released from the previously imposed determinate sentence of incarceration”]).

The Appellate Division in this case properly applied our holding in Williams and held that, following Sharlow’s conditional release from custody into the community double jeopardy barred the imposition of PRS at a resentencing proceeding. That this resentencing occurred before the maximum expiration date of the original sentence does not change the proper understanding and application of Williams by the Appellate Division here, which drew the double jeopardy line at Sharlow’s release from custody. Accordingly, I would vote to affirm.

People v Rodriguez

On June 17, 2002, a jury convicted Rodriguez of gang assault in the first degree (Penal Law § 120.07). Supreme Court sentenced Rodriguez to a determinate prison term of 25 years. Although the court sheet initialed by the trial judge and the commitment sheet prepared by the court clerk indicated a five-year period of PRS, Supreme Court made no mention of PRS during the sentencing proceeding.

Rodriguez pursued his direct appeal. The Appellate Division affirmed the judgment of his conviction and sentence (People v Rodriguez, 33 AD3d 543 [1st Dept 2006]). On appeal to this Court, Rodriguez argued that the PRS component to his case was unlawful because Supreme Court failed to pronounce it orally at sentencing. A Judge of this Court granted Rodriguez leave to appeal (9 NY3d 881 [2007]). We consolidated his case with People v Sparber (10 NY3d 457 [2008]) wherein we agreed with Rodriguez that his PRS had been unlawfully imposed and remitted his case to Supreme Court for resentencing.

Upon remittal to Supreme Court, Rodriguez requested a reduction of his 25-year prison term. Supreme Court denied the request and resentenced defendant to the originally imposed 25 years followed by three years PRS. Initially, on May 18, 2010, the Appellate Division modified the judgment of resentence, as a matter of discretion in the interest of justice, by reducing the sentence to a term of 20 years, and, as so modified, affirmed (see People v Rodriguez, 73 AD3d 541, 541 [1st Dept 2010]). The court concluded that a Sparber resentencing was not a plenary proceeding that “presented] the sentencing court with an occasion to revisit the original prison sentence” (id.). Nonetheless, finding the prison term to be excessive, the court exercised its interest of justice discretion to modify the sentence as noted (see id. at 542).

The People moved for reargument at the Appellate Division. While that application remained pending, a Judge of this Court granted both Rodriguez and the People leave to appeal (15 NY3d 855 [2010]). Subsequently, on March 3, 2011, the Appellate Division granted the People’s reargument motion and recalled its May 18, 2010 decision. (People v Rodriguez, 82 AD3d 418 [1st Dept 2011].) Although the court adhered to its prior conclusion that a Sparber resentencing is not a plenary proceeding that gives “occasion to revisit the original prison sentence” (id. at 418), the court now held that it was “without authority” to reduce Rodriguez’s term of imprisonment “as a matter of discretion in the interest of justice” (id. at 419). In light of the Appellate Division’s holding, the People’s appeal to this Court became moot. However, a Judge of this Court once again granted Rodriguez leave to appeal (16 NY3d 836 [2011]). The majority now affirms the order of the Appellate Division and I respectfully dissent.

I disagree with the majority’s conclusion that, pursuant to our holding in Sparber, a resentencing court is not empowered to revisit the incarceratory component of a defendant’s sentence (see majority op at 634-635). In Sparber, we found that the lower courts “intended to impose a sentence . . . that consisted of a determinate sentence and a period of PRS” (10 NY3d at 472). Absent any evidence to the contrary, we held the error in failing to pronounce PRS in those cases was “a procedural error, akin to a misstatement or clerical error” (id.). However, in concluding that vacatur of a defendant’s sentence was the appropriate remedy in these cases, we never sought to limit the trial court’s inherent power to revisit the incarceratory period of a sentence, if warranted. The majority’s assertion that a holding which allows a resentencing court to reconsider the incarceratory component of a defendant’s sentence would “Great [e] a situation where thousands of Sparber resentencings might have to be repeated” (majority op at 634) is purely speculative and assumes that resentencing courts, following our decision in Sparber, did not believe they had such authority in the first instance.

I also disagree with the majority’s conclusion that the Appellate Division is without authority to modify a defendant’s resentence upon appeal to that court (see majority op at 635). It is axiomatic that “[a]n appeal to an intermediate appellate court may be taken as of right by [a] defendant from” a judgment of sentencing (CPL 450.10 [2]). “An appeal from a sentence . . . means an appeal from either the sentence originally imposed or from a resentence following an order vacating the original sentence” (CPL 450.30 [3] [emphasis added]). The appeal from a sentence “may be based upon the ground that such sentence either was (a) invalid as a matter of law, or (b) harsh or excessive” (CPL 450.30 [1]).

Here, Rodriguez does not assert that the sentence imposed by Supreme Court at the resentencing proceeding was invalid as a matter of law. Rather, he maintains that the Appellate Division may consider whether the sentence imposed by the lower court at resentencing was unduly “harsh or excessive” in its interest of justice discretion. I agree.

Indeed, CPL 470.15 (3) (c) specifically permits the Appellate Division to modify a sentence “[a]s a matter of discretion in the interest of justice.” Moreover, CPL 470.15 (6) (b) defines “[t]he kinds of . . . modification[s] deemed to be made as a matter of discretion in the interest of justice” to include a modification of “a sentence [that], though legal, was unduly harsh or severe.” Thus, contrary to the conclusion drawn by the majority, the Appellate Division’s authority to modify a judgment of resentence is not limited to a resentencing where it has been established that an “error or defect” has occurred (see People v Delgado, 80 NY2d 780, 783 [1992] [even though a sentence may be lawful, “(a)n intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe”]).

The majority decision here has the effect of stripping the Appellate Division of the broad discretionary authority it enjoys to reduce a sentence in the interest of justice upon an appeal from a resentencing to that court as a matter of right. Thus, I would reverse the order of the Appellate Division and remit the case to that court for the exercise of its interest of justice discretion.

Accordingly, I would affirm the order of the Appellate Division in People v Sharlow and reverse in People v Rodriguez.

Chief Judge Lippman and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

In People v Lingle, People v Parisi, People v Murrell, People v Prendergast: Order affirmed.

Judges Graffeo, Smith and Pigott concur with Judge Read; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Lippman and Judge Jones concur.

In People v Rodriguez: Order affirmed.

Judges Graffeo, Smith and Pigott concur with Judge Read; Judge Ciparick dissents and votes to affirm in another opinion in which Chief Judge Lippman and Judge Jones concur.

In People v Sharlow: Order reversed, etc.

      . The dissent opines that once Sharlow was conditionally released, he was “entitle[d] ... to a ‘legitimate expectation’ that ... his sentence [was] final for all purposes” (dissenting op at 637). But someone released conditionally knows, almost by definition, that he has not yet paid his full debt to society, whereas someone whose sentence has expired can legitimately think of his punishment as in the past.

      . The dissenting Judges are hard-pressed to explain why they would reverse in Rodriguez, but not in Lingle. Both Rodriguez and Lingle contend that the Appellate Division has the power to reduce their sentences in the interest of justice, and the dissenting Judges agree. Similarly, both Lingle and Prendergast take the position, also espoused by Rodriguez and endorsed by the dissenting Judges, that resentencing courts are authorized to reconsider the incarceratory portion of a defendant’s sentence at a Sparber resentencing.

      . In that regard, we observed that a defendant is also free to make a motion pursuant to CPL 440.20 at any time alleging that the original sentencing court failed to consider PRS when determining the appropriate term of imprisonment (see Sparber, 10 NY3d at 471 n 6).

      . The majority opines that my position in Rodriguez is inconsistent with my decision to affirm in Lingle and Prendergast (see majority op at 635-636 n 2). I disagree. In Lingle, the Appellate Division considered whether Lingle’s request for a reduction in the incarceratory portion of his sentence should be granted “as a matter of discretion in the interest of justice” but found such request to be “without merit” (People v Lingle, 66 AD3d 582, 583 [1st Dept 2009]). By contrast, the Appellate Division in Rodriguez held that it had no interest of justice discretion to modify a sentence imposed in a Sparber resentencing.
      Moreover, unlike Rodriguez, Lingle and Prendergast do not stand for the proposition that a resentencing court is precluded from revisiting the incarceratory component of a defendant’s prison sentence.