People v. Boyer

Rivera., J.

(dissenting). The majority interprets our law to permit the government to rely on a sentence that is illegal under People v Sparber (10 NY3d 457 [2008]) for purposes of the sequentiality requirement in New York’s sentencing enhancement statutes. In doing so, the majority gives legal significance to an unlawful sentence where such sentence is obviated by a statutorily prescribed resentencing process. This is an untenable interpretation of the law. I dissent.

The majority reads Sparber and People v Lingle (16 NY3d 621 [2011]) as compelling its conclusion that “a resentencing to correct the flawed imposition of PRS does not vacate the original sentence and replace it with an entirely new sentence, but instead merely corrects a clerical error and leaves the original sentence, along with the date of that sentence, undisturbed” (majority op at 24). This conclusion is incorrect and unsupported by our precedent.

We have previously stated that a sentence with a “flawed imposition of PRS” is an illegal sentence (People v Brinson, 21 NY3d 490, 495-496 [2013]; Lingle, 16 NY3d at 630; People v Williams, 14 NY3d 198, 206, 217 [2010]; Sparber, 10 NY3d at 469-471). The proper cure for this defect is for a court to resentence the defendant and impose all the elements of the punishment mandated by law (Sparber, 10 NY3d at 469-470). As we stated in Sparber, “[t]he sole remedy for a procedural error [such as failing to pronounce a mandatory term of PRS] is to vacate the sentence and remit for a resentencing hearing” (id. at 471).

*28Two statutory procedures provide for resentencing to address these Sparber errors. Correction Law § 601-d provides a procedural vehicle for the Department of Corrections and Community Supervision to commence a resentencing hearing (see People v Velez, 19 NY3d 642, 645-646 [2012]; People v Acevedo, 17 NY3d 297, 303 [2011]; Williams, 14 NY3d at 207-208). Under Penal Law § 70.85, a court may resentence a defendant, with the People’s consent, to a determinate sentence without PRS, which “shall be deemed a lawful sentence” (Penal Law § 70.85). In either case, a court replaces an illegal sentence with a sentence that is in compliance with New York’s criminal laws. As we stated in People v Acevedo (17 NY3d 297, 303 [2011]), Sparber resentencing ensures “that a sentence in connection with which PRS is required will in fact legally impose that prescribed element of punishment” (id. [emphasis added]).

Rather than accept that we meant what we said when we concluded that failure to impose PRS results in an illegal sentence which is cured by vacating the sentence and resentencing the defendant, the majority concludes that the illegal sentence retains a certain validity and may be considered for sequentiality purposes under the sentencing enhancement statutes. This is so, according to the majority, because the underlying illegality is clerical in nature and can be cured in a non-plenary proceeding (majority op at 24). Whether we call it a “clerical error” or a “procedural error,” the failure to impose PRS rendered the original sentence illegal (see Williams, 14 NY3d at 217). There is no way around this conclusion, just as there is no way of avoiding that the method by which this error is cured cannot retroactively make an illegal sentence into a valid one.

Our decisions in Sparber and Lingle do not ignore the fundamental sentencing structure of our criminal law, which recognizes that there can be only one lawful sentence imposed for a conviction (United States v DiFrancesco, 449 US 117, 129 [1980]; People v Biggs, 1 NY3d 225, 228-229 [2003]). It follows that a court corrects an illegal sentence by vacating that sentence and imposing a new one, not superimposing a second, simultaneous sentence over the first.

The majority’s policy arguments in support of its decision are also unpersuasive. While the policy behind enhancing punishment for certain recidivist offenders is significant, the sentencing enhancement statutes can only apply to sentences that conform with the Penal Law, not to illegal sentences. The Penal *29Law does not impose piecemeal sentences, and no provision permits or otherwise acknowledges what the majority allows: an opportunity for the People to relate a lawful sentence back to an unlawful one for purposes of sequencing an enhanced sentence.

The majority states its preference for a bright-line rule, which will promote clarity and fairness, but there is no logical basis for finding that the majority’s rule is preferable, or any better at promoting a definite answer to the question posed by these appeals. The original unlawful sentence date and the resentencing date are equally easy to determine. A rule that recognizes that the lawful sentence is the one imposed in accordance with all of the statutory elements of the Penal Law, and that only a lawful sentence counts under the enhancement statutes, is just as clear, if not clearer, as one that draws the line at the date when the court imposed the unlawful sentence. Certainly, if we are to pronounce a rule, it should be grounded in a sentence intended to meet all the legal requirements, not one that is statutorily defective.

I would reverse the Appellate Division’s order in Boyer and affirm in Sanders.

Judges Graffeo, Read, Smith and Pigott concur with Judge Abdus-Salaam; Judge Rivera dissents and votes to reverse in an opinion in which Chief Judge Lippman concurs.

In People v Boyer: Order affirmed.

Judges Graffeo, Read, Smith and Pigott concur with Judge Abdus-Salaam; Judge Rivera dissents and votes to reverse in an opinion in which Chief Judge Lippman concurs.

In People v Sanders: Order reversed and case remitted to Supreme Court, New York County, for resentencing.