Brooklyn man released from prison after typo found in sentencing transcript

October 24, 2014 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle

Brooklyn D.A. Kenneth Thompson. Eagle Youtube screenshot

Share this:

A Brooklyn appellate court has ruled against prosecutors and released a man from prison in spite of a found error in the sentencing transcript citing double jeopardy as the ground for release.

Brooklyn prosecutors tried to rectify an error — years after the fact — that if corrected at the time of the mistake, may not have resulted in the release of Kevin Langston 10 years earlier than expected.

In 2003, Langston was convicted of assault and criminal possession of a weapon and, according to the sentencing transcript, was sentenced to five years on the weapons charge and 25 years for assault with the sentences run concurrently — or at the same time.

In 2010, Langston appealed his conviction in federal court and was granted release on the assault sentence but the weapons punishment was upheld. Given that Langston had completed his five-year prison term — with an additional two years — the federal court ordered his full release in satisfaction of his weapons sentence.

Brooklyn prosecutors stepped in and requested a hearing to settle the 2003 sentencing transcript. According to the prosecution, the number “1” was erroneously omitted; Langston’s prison term should have read “15 years” and not “5 years.” A lower court Brooklyn Supreme Court judge granted the prosecution’s request and ordered Langston back to jail to serve out the remainder of his 15-year prison sentence for the weapons charge.

While the courts do possess “the inherent power to correct their records,” the Appellate Division, Second Department, ruled that that power is limited the constitutional protection against double jeopardy.

The general understanding of double jeopardy is that an individual cannot be tried twice for the same crime in the same jurisdiction. The legal theory also applies to re-sentencing and punishment.

“The Double Jeopardy Clause prevents a sentence from being increased once a defendant has a legitimate expectation of finality of the sentence,” the appellate court noted in a per curiam — or signed — decision.

According to the four paneled judges, Langston was given a five-year sentence and expected certainty of that sentence. Even if the sentence was reduced, the certainty attached to a possibility of five years and not, barring any misconduct while in prison, an extension of longer time. Langston’s expectation of certainty is further proven by the fact that the transcript error remained unchanged for seven years, the court noted.

“For more than seven years after the sentence was imposed, the people represented to the defendant, and to state and federal courts, that the transcript accurately reflected a five-year sentence,” the court wrote.

The court reversed the lower judge’s order to remand Langston back to prison, holding that order was “improper” and that the “subsequent resentencing also violated the defendant’s rights under the Double Jeopardy Clause.

It is unclear how the Brooklyn D.A.’s Office will respond as the higher court made clear that double jeopardy prevents Langston’s resentencing.

“It is our position that this defendant benefited from a court reporter’s error,” said a spokesperson for D.A. Kenneth Thompson. The office has stated that it is weighing the option of appealing to the New York State Court of Appeals.

“It’s a very unusual situation,” said Langston’s attorney, Paul Skip Laisure of Appellate Advocates. “You can’t be tried twice for the same crime, and you can’t be sentenced twice for the same crime.”

Judges Reinaldo Rivera, Thomas Dickerson, Sheri Roman and Colleen Duff sat on the appellate panel.