violation of the double jeopardy clause four period january twenty ninth two thousand and seventeen june of two thousand and ten and also is due process rights were violated for the same period now i'm going to talk a little bit about the statutory scheme new york state to court allows me because that has significance for this case and it has significance for the relevance of king versus cuomo to this case misstated new york new york always had a comprehensive statutory scheme we guarding sentencing and implementation of post release supervision to change that the law new york is always been that judges since people and that was codified in a criminal procedure law at three eighty twenty and that a defendant has to be present to be sentence was in effect before post release supervision was implemented in this particular case mr hassoun was sentenced he was already serving time on another charge stay and he was sentenced to three and a half years on a class d violen felony of assault and a second degree now the legislature has set out a comprehensive scheme despite what may have been argued before this court before but in state courts in new york and the criminal around the defendant in new york state court can we see is three years that that was the law that's always been the law which ruling of the district court are you now telling us is error  saying that the district court's ruling the ruling that the district court issued on judgment on the police and i believe it was in may of two  i don't have the exact date but it was on the judge's judgment on the pleadings and i give you the exact date when you know in a second when i can get to it but it's the definitive decision here no i don't mean the date of his ruling i mean what part of his decision making are you saying is error the district court decision yes that's the one on appeal the decision where the judge ruled that there no basis for violation of the double jeopardy clause our position is that tacit and correct stance is relating to qualified immunity this is yes this is related to your challenging the ruling that th were their side gets qualified immunity correct that they don't get qualified immunity for the double jeopardy talk law because that was sufficiently established yes sir and what established that the time that relevant to what was that the time there was that serious the second circuit cases that had been decided us versus so on it was the new york court of appeals that decided the double the double jeopardy point they did decide to double jointed and when did they decide it in relation to this claim they never just cited in relation to this claim it to case went to the court of appeals in two thousand and ten and that was from the state criminal court matter because a notice of president we ruled on the double jeopardy point you this court has ruled and three different cases and i sign of response and reply brief on page fifteen this court is not exactly on point with post re supervision but in the sentencing case and this is what we have here a sentencing case this court has hero that in effect every person is served this time you recently that's double jeopardy here now that doesn't address post release supervision no court had said that post release supervision and the context of supervision that there's been any violation of the double jeopardy clause in new york state court until two t release sentencing would count the same way as an actual incarceration sentence yes yes yes they were supposed to know that that that definitely and that's based on new york law even before any of these issues were litigated because the legislature pacifically see it when they passed the post really supervision statute that post really supervision is made a component of every sentence so when you're talking about pows from the supervision you're actually talking about a sentence ok so in this case what we have is a situation where second of branch in new york state can not ts time and there was a statutory mechanism in place to correct this legislature before even post release supervision was even passed they passed a statue six zero one was specifically said look corrections individuals if you have a problem and you think someone hasn't been since properly you contact the district attorney and we will produce that person in court and the county in question so that they could be researched this wasn't done in this this particular case  for those reasons your honor we believe that the sentence the judge's decision in this case should or ran from twenty nine february to seventeen june two thousand and ten regarding due process and double jeopardy and that the defendants are not entitled to immunity because there is clearly established long you got he gave you damages for for six mistaken i think you gave it to from the twenty nine february two thousand and eight and judge you are not one hundred percent positive the june third  it might be june third or all right but dick did but the critical issue on that is that his decision revolved around the fact that when judge yuval a re sentenced him after he served his time that that was a cut off point but he when the judge gave you the six months worth of money one hundred dollars for each month correct he started at june third oh eight correct is there right that sounds about right you're at a time when your client was already at that point under either a conditional release or the p r s right eretz or so how can he get money for the those three months when he's still thirty first but that's right so how can he get any money but why that time because he was actually on post from the supervision according to the statute from twenty nine january two thousand and eight as soon as he was released and the conditions of to release supervision do to a person beyond a conditional release post release supervision you can be required to appear to support it in a drug program was really supervision if there is a violation then you can be required to serve an additional sentence incarcerated that happened to this person this did not happen to this partner did anything happen to this person during the three months after june third or late that wouldn't have happened under conditional release what happened was he was being supervised under the specter of post release supervision he didn't have an incident but dick did you had two things that are totally different here implications of the two are different so while he's being he's supposed to be on call conditional release but he's actually on post really supervision and implications of those two are totally different how do you know he was on post release supervision and not conditional release or so into the statues seven forty five subsection five it for specifically spells out how post the legislature spelled out how really supervision is applied when it starts and when it's when it was you know it did i understand that but i don't think the legislation tells us what to do with the person who is conditionally released from prison you are placed on post release supervision and you conditional release is held in a bag ok when does it start after you finish your can post release and seventeen june two thousand and ten because he was actively on post really supervision in fact new york and the great state of new york you have to pay money to be supervised you have to pay money to be punished so he was pa december of zero eight so how could these people possibly be liable for damages beyond that point although you had to do was tell the state authorities to get him i was sentencing post release announcing which they did maybe they did it late but they they notify the authorities and the authorities re sense him so how can you get damages beyond the date of reasons well because you're on our position is they didn't have the authority to even bring him back for the sentencing date day held him in a process where they were regulating his life and bringing him back to court and affecting his liberty answers with regard to post release supervision maybe but once a quarter of new york re sentences him how are these people least the fenice liable for there after well because the sentence of the court was a nullity because the court last year is diction on a new york may be but you mean a two thousand and eight which is the start date the judge hellerstein impose through the december third percent saying i'll start with the period after that though post for sentencing this is the part of the district court's decision that was correct there can be no due process liability for this period to judge newman's question there was a state criminal court for sentencing order and the supervision was occurring by dint of that order there can't be any early separation of powers type injury  been expected to divine the answer before then i'd like to spend the bulk of my time however addressing the issues in our cross appeal and these are the due process issues judge hellerstein imposed damages starting for liability starting on june third two thousand and eight mr hassel didn't even ask for these this was something that judge hellerstein unilaterally did and until august thirty first two thousand and eight mr hausa was serving out his pronounce to terminate sentence the remainder of the determinant term is held in a bands so you agree with him he was on p r s from for the whole six months to the judge award he was but the important there are two important things to note he was conditionally released to post release supervision as the new york court of appeals has made clear in a couple of cases this period of conditional release the last seventh of an offenders and eligible offenders determinant term as part of the pronounce still serving out his three and a half year determinant term so no matter what the mode of supervision was docs had authority under the criminal court's pronouncement to supervise mr hassle for three years and to the extent that there's any ambiguity in the state of the law even today then the defendants would be entitled to fight immunity at least some reasonable officials out of what this court has noted are the wide range of reasonable officials who enforce the law in this country could have read early to mean that determinant term rather than those first three months should've been included in the damage calculation that's right absolutely either on the merits because mr house of a serving at least it hardly matters would you really fighting about as the attorney  others and we don't want this case and judge hellerstein opinion being used as a bellwether for the imposition of liability during the offender's determinant term which if not a reasonable reading of early would should be barred by early out right efforts of this these defendants was reasonable under the circumstances it is for the last period of damages that i'm going to talk about not for the conditional release period or the pre maximum expiration period up until august thirty first two eight that's that's liability there is taken care of by the judicial pronouncement of the three and a half year sentence of and for the period after on after december third two thousand and eight king against cuomo takes care of that now i'm talking about the post emmy award of damages from august thirty first august thirty first two thousand and twelve they were sentenced saying before you do that just very very briefly do you agree that  there was some harm to this individual during the first three month period because he was living under the specter of the possible violation no no i don't judge should take any conditions of conditional release and post release supervision are virtually if not actually indistinguishable contrary to what my adversary has said it's a seamless transition from the end of your conditional release period or the end of your pronounced a term that sentence if you get conditional release up through post really supervision mr castle hasn't challenge to the order of nominal damages we think it would be independently justified in this case judge hellerstein said that in is order regulating liability that if mr casaubon are sentenced a little bit earlier his life wouldn't have changed in the slightest it actually would have had he been or sentenced before his maximum expiration date he wouldn't have had the benefit of the later arising double jeopardy defense that ultimately led to excising about three fifths of that term vince and then again recently in baton sess for determining whether docs officials had complied with early it's almost a different sort of qualified immunity in a different sort of claim whether docs took reasonable effort reasonable efforts to implement early to rectify early statewide this court has never before addressed or even examined when those efforts in fact occurred it's held that those efforts were too late when they when they started this case squarely tees that up and our position here is twofold and we argue in the alternative one no offender released after release to can to post really supervision or to have his maximum expiration date arise after the passage of correction duty by the new york legislature should have any due process claim for two reasons one the statute itself was a superseding or obstructing cause that locked all state actors into very specific roles the court system docs defendants and prosecutors and at that point doc said already in this is the second reason already been undertaking reasonable efforts to have all offender statewide were sentenced after early so after that a  the outer limit of liability for any offender here whether nominal damages or not and many of the offenders in these cases have been arguing for more than nominal damages so this question is important to docs it should be at the sending of the one day notice for any particular offender as tons of us made clear and in fact this was a driver of it's holding efforts made or not made by other actors in the state system should be irrelevant for qualified immunity after doc sends that someone didn't notice because the defendants had asked for multiple adjournments doc should not be held responsible for any of that but at a bare minimum the defense here should be entitled to qualified immunity either at the earlier date as of the earlier date we've proposed june thirtieth or the later date here september fifteenth but on the six one day notice the overriding principle being that an official could have believed that prompt and reasonable compliance with section sixty one d also satisfied any due process concerns guarding king versus kwame i wanted to bring one attention one thing to the attention of the court from looking at the underlying briefs and what was argued they never even argued state law they based everything on federal law so no state law was even brought forward to the call court with regard to six zero one d six zero one a was in effect when mr house or originally got sentence and has always been the law our position is you can't ignore one statute and ignore statutory scheme and claim community and finally with regard to conditional release and truly supervision there is no difference between the two with conditional release you serve seven eighths of your sentence and then with that last one eighth you are released to effect two parole or conditional release if you have any type of violation your only your only you only exposure is to rest of your sentence which would be that one ace that's left with possibly supervision is different when you're released to post release supervision if you have a violation of your sentence then you're subject to the maximum amount of post from the supervision it you've been subject to so it's not going to be six to seven months it could be three years in a new in this case he was sentenced to five years post release supervision and a statute to three years thank you very much