People v. Silva Santos
Issue: Whether requiring a waiver of future participation in DOCCS’ shock program as part of a plea bargain rendered the sentence illegal.
Factual Background:
The shock program is a DOCCS-administered drug and alcohol rehabilitation program. After completing the program, individuals receive a sentence reduction. The program aims to reduce recidivism while saving taxpayer dollars by releasing early those who have been “rehabilitated” by the program. The law makes clear that there are two ways individuals can enter the program: (1) courts can order shock at sentencing, Penal Law 60.04 or (2) individuals, who did not receive court-ordered shock, can still apply while incarcerated for DOCCS’ own determination on their placement into the program. Corr. Law 865, 867(2).
Mr. Silva entered a plea bargain that required a waiver that he would not apply for DOCCS’ shock program placement. At sentencing, he asked the judge to enroll him in a shock program, but had acknowledged that he had turned that down.
Arguments on Appeal:
Mr. Silva argued that the shock waiver was illegal and thereby rendered the sentence illegal. The waiver was a statutorily unauthorized condition of the sentence. See People v. Letterlough, 86 N.Y.2d 259 (1995). While courts could order shock at sentencing—as part of the Drug Law Reform Act to increase program participation—no statute permitted plea bargains to limit what individuals or DOCCS does down the road. This would be a slippery slope—what else about an individual’s experience incarcerated can be waived or mandated by already-coercive plea bargain?
The District Attorney asserted that the shock waiver was not a part of the sentence, but just a condition of a plea bargain like an appeal waiver. Accordingly, the sentence was not illegal.
Mr. Silva replied that a shock waiver is undoubtedly a part of the sentence because it pertains to how a sentence is served. It is not a waiver of other future litigation, like an appeal waiver.
Decision:
The majority concluded that the shock program waiver was not a part of the sentence. Therefore, the sentence was not illegal. The inclusion of the waiver on the sentence and commitment order did not make it a part of the sentence.
Dissent (J. Wilson, with J. Rivera concurring):
Judge Wilson disagreed. But the question of whether the waiver was a part of the sentence was “irrelevant.” Instead, the waiver violated public policy. Mr. Silva Santos’ comments at sentencing about desiring for placement in the program “preserved” the public policy issue. CAL Observes:
The question of whether shock program waivers are proper lives to see another day! Judge Wilson indicatively wants us to continue litigating this issue. He explicitly stated in his dissent that this issue “remains open for challenge by a different procedural vehicle—for example, by a declaratory judgment action, by an injunction action compelling DOCCS to disregard plea-induced waivers of Shock, or by a challenge brought by an incarcerated person who applied and was rejected by DOCCS based on the plea waiver.” Accordingly, we should pay attention if we—or other trial providers—have clients with shock program waivers (and the client wants to do the shock program).
Additionally, if something is not a part of the sentence, can it really be enforced by DOCCS?