Opinion
7313/2001.
December 9, 2008.
DECISION AND ORDER
Defendant moves, pro se, for an order vacating his sentence pursuant to CPL § 440.20 on the grounds that his adjudication as a persistent felony offender is invalid. The motion is denied both procedurally and on the merits.
On September 7, 2001, defendant entered a McDonald's restaurant in Brooklyn and pointed a bag containing a bottle at Maritza Dreckett, who was working behind the counter, and ordered her to hand over the money in her cash registered. Defendant threatened to shoot her if she refused. Defendant then took the money and fled but was apprehended shortly thereafter by police.
For this act, defendant was charged by Kings County Indictment No. 7313/2001 with robbery in the first, second and third degrees (PL §§ 160.15, 160.10, 160.05), criminal possession of stolen property in the fifth degree (PL § 165.40), and criminal possession of a weapon in the fourth degree (PL § 265.01). On June 27, 2002, defendant pleaded guilty to attempted robbery in the second degree, in full satisfaction of the indictment, in exchange for a promised sentence of twelve years to life in prison. He was adjudicated a persistent violent felony offender (PL § 70.08) based upon his prior convictions for attempted robbery in the first degree (Kings County Indictment No. 10111/1987) and attempted robbery in the second degree (Kings County Superior Court Information No. 6906/1990). On July 9, 2002, defendant was sentenced by this court to the promised term of imprisonment of twelve years to life.
The Appellate Division subsequently affirmed defendant's judgment of conviction and application for leave to appeal to the Court of Appeals was denied ( People v Burgess, 221 AD3d 904 [2d Dept. 2005]; People v Burgess, 5 NY3d 851). Defendant's motion for a writ of error coram nobis on the ground of ineffective assistance of counsel was also denied ( People v Burgess, 44 AD3d 869 [2d Dept. 2007]).
At issue here is defendant's sentence under Information No. 6906/1990. In that case, defendant had a prior violent felony conviction and again pleaded guilty to a second violent felony, but he was mistakenly labeled a second felony offender rather than a second violent felony offender. Nevertheless, the three-to-six-year sentence imposed comported with the plea agreement and was statutorily authorized for both predicate and predicate violent felons convicted of a class D violent felony. Defendant did not challenge the court's adjudication at sentencing or at any time until after his 2002 conviction.
On December 13, 2005, defendant moved this court to vacate his judgment of conviction and to set aside his sentence under Indictment No. 7313/2001, claiming that his sentence in the 1990 case was illegally lenient and that, consequently, his persistent violent felony offender adjudication in the instant case was illegal. In an opinion dated July 12, 2006, this court denied defendant's motion in its entirety. The court held that even if defendant had been illegally sentenced in the 1990 case, the adjudication error had no effect on the validity of his persistent violent felony adjudication because such a determination is based on the defendant's prior violent felony convictions, and not the sentences imposed thereon. Accordingly, because defendant had two prior violent felony convictions, he was properly adjudicated a persistent violent felony offender. Leave to appeal from the denial of this motion was denied.
On May 23, 2006, defendant moved to vacate his judgment of conviction and/or set aside his sentence under Superior Court Information No. 6906/1990. Defendant claimed, as he did in the prior motion, that his sentence was illegally low. The court denied the motion in its entirety in a decision and order dated January 5, 2007 (Guzman, J.). Although the court found that defendant had been erroneously adjudicated a second felony offender and that he should have been adjudicated a second violent felony offender, Justice Guzman declined to resentence defendant because this court had essentially corrected that error by adjudicating defendant a persistent violent felony offender under Indictment No. 7313/01. Furthermore, defendant's sentence of three-to-six years' imprisonment was statutorily authorized for either a predicate or predicate violent felony offender. Justice Guzman concluded that setting aside defendant's sentence would not affect his sentence as a persistent violent felony offender under Indictment No. 7313/2001 and was unwarranted.
Now defendant again moves to set aside his sentence under Indictment No. 7313/2001. His argument rests on Justice Guzman's statement that this court corrected his predicate status on his 1990 conviction and that, as a result, he no longer qualifies as a mandatory persistent violent felony offender. Defendant claims that his initial adjudication as a second felony offender was incorrect and that he should not have been "re-adjudicated" a persistent violent felony offender in 2002 on the basis of his prior offender status. In his reply affidavit, moreover, defendant alleges that Justice Guzman's 2007 decision brought the court's "correction" to light and thus constitutes new information that was unavailable to him in making his two prior motions to vacate his sentence.
As defendant has raised the very same objections to his predicate status in two prior CPL § 440.20 motions, the instant motion is procedurally barred. CPL § 440.20(3) provides that a court may deny a motion to set aside a sentence without addressing the merits of the motion "when the ground or issue raised thereupon was previously determined on the merits upon a prior motion or proceeding in a court of this state . . . unless since the time of such determination there has been a retroactively effective change in the law controlling such issue." In this instance, this court addressed defendant's claim regarding his adjudication as a persistent violent felony offender and rejected it on the merits. In its decision, dated July 12, 2006, the court noted that even if the sentence in the 1990 case were considered illegal, defendant's underlying violent felony conviction would remain unaffected. For that reason, defendant was not entitled to resentencing in the 1990 case. Justice Guzman likewise determined that setting aside defendant's 1990 sentence would have no effect on his adjudication as a persistent violent felony offender under the 2001 case. Given the two prior determinations and the lack of any retroactive change in the law, this court now summarily denies defendant's claim.
Defendant's argument is also without merit. Pursuant to PL § 70.08(1)(a), "a persistent violent felony offender is a person who stands convicted of a violent felony offense . . . after having previously been subjected to two or more predicate violent felony convictions" ( see also PL § 70.02, § 70.04[l][b]). A prior conviction constitutes a "predicate violent felony conviction" if it was for a violent felony offense as defined in PL § 70.02(1), if the sentence on the prior conviction was imposed prior to the commission of the present felony of which the defendant stands convicted, and if the sentence on the prior conviction was imposed not more than ten years before the commission of the present felony, excluding the time during which the defendant was incarcerated (PL § 70.04[b]). A "'conviction' "means the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more count of such instrument" (CPL § 1.20).
The instant claim appears to be based upon defendant's misinterpretation of Justice Guzman's statement that the 2002 sentencing court "corrected" defendant's previous predicate status adjudication. Defendant seems to believe that he was not sentenced as a second violent felony offender until after the commission of the 2001 crime, in violation of CPL § 70.04(1)(b), but defendant was never actually resentenced. Rather, sentence was imposed in 1990 and the initial adjudication error was simply remedied when defendant was subsequently adjudicated a persistent violent felony offender in 2002 based on his past violent felony convictions.
Defendant's adjudication as a persistent violent felony offender was proper and it is irrelevant that he was mistakenly labeled a second felony offender in the 1990 case. Persistent violent felony offender status is based upon prior violent felony convictions, and not upon prior adjudications (PL § 70.08[a]). Defendant in fact pleaded guilty to a violent felony offense, was convicted of two previous violent felony offenses, was sentenced on those two previous crimes before commission of the present offense, and, excluding jail time, the two previous sentences were imposed within ten years before the commission of the present offense. That defendant was erroneously labeled a second felony offender rather than a second violent felony offender does nothing to change the fact that he was convicted of two prior violent felonies that form the basis of his current sentence as a persistent violent felony offender. Defendant's 2002 sentence was therefore proper.
Moreover, defendant suffered no prejudice as a result of the court's clerical error in the 1990 case. He was the beneficiary of the error adjudicating him a second felony offender, a lower-level status than a second violent felony offender. No prejudice ensued in the sentences he received in that case and in 1992, and vacatur of the 2002 sentence is thus unwarranted ( see People v Flores, 167 AD2d 160 [1 Dept 1990] [vacatur not warranted where defendant was the beneficiary of an error and no prejudice ensued to him]; People v Coffey, 124 AD2d 814 [2 Dept 1986] [although defendant was mistakenly adjudicated a second felony offender rather than a second violent felony offender, defendant was not prejudiced and the error did not require vacatur of the sentence]). In defendant's case, the statutory sentence for attempted robbery in the second degree was the same regardless of defendant's status as a second felony offender or a second violent felony offender. Resentencing defendant to retroactively reflect the accurate predicate status would serve no purpose ( see People v Capers, 177 AD2d 992 [4 Dept 1991] [vacating sentence for manslaughter on ground that defendant was improperly sentenced as second violent felony offender rather than second felony offender was not warranted where it was apparent that any sentence imposed on remand would be the same as initially imposed]; cf People v Howard, 1 AD3d 1015, 1016 [4 Dept 2003] [where the court misspoke by calling defendant a persistent felony offender rather than a persistent violent felony offender, motion to vacate sentence was properly granted because the actual length of the sentence was affected]).
Accordingly, the motion is denied both procedurally and on the merits.
This decision constitutes the order of the court.
The defendant is hereby advised pursuant to 22 NYCRR § 671.5 of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal from this determination. This application must be made within 30 days of service of this decision. Upon proof of his financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certification granting leave to appeal is granted.