Opinion
9482-94
01-22-2021
The PEOPLE of the State of New York, Plaintiff, v. Jose LORA, Defendant.
Gary Galperin, Esq., Assistant District Attorney, District Attorney, New York County, One Hogan Place, New York, New York 10013 Eugene Nathanson, Esq., Attorney for Defendant, 80 Broad Street, Floor 5, New York, New York 10004
Gary Galperin, Esq., Assistant District Attorney, District Attorney, New York County, One Hogan Place, New York, New York 10013
Eugene Nathanson, Esq., Attorney for Defendant, 80 Broad Street, Floor 5, New York, New York 10004
Juan M. Merchan, J. On December 10, 2018, Defendant, Jose Lora, filed a motion pursuant to Criminal Procedure Law (hereinafter "C.P.L.") § 440.20 to set aside the sentences in this matter on the grounds that they are invalid as a matter of law . Defendant argues that his sentences violate the United States Constitution's Eighth Amendment prohibition against cruel and unusual punishment as set forth in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (hereinafter " Miller ") and Montgomery v. Louisiana, ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (hereinafter " Montgomery "). A hearing pursuant to C.P.L. § 440.30 (5) was ordered by this Court to determine whether Defendant, who was seventeen years of age at the time he committed three homicides and other related crimes, had been sentenced with deliberate reference to his youth and its attendant circumstances as required by Miller / Montgomery (discussed further below). See People v. Lora , 70 Misc.3d 181, 133 N.Y.S.3d 412, 2020 N.Y. Slip Op. 20248 (Sup. Ct. N.Y. Co., 2020) for full background, procedural history, and decision granting the hearing.
Before filing the instant motion, Defendant's appeal of the judgment was denied as were several habeas writs filed in federal court on other grounds. See People v. Lora , 298 A.D.2d 149, 748 N.Y.S.2d 8 (1st Dept. 2002), lv. denied , 99 N.Y.2d 560, 754 N.Y.S.2d 213, 784 N.E.2d 86 (2002) ; Lora v. West , 2005 WL 372295 (U.S.D.C. Southern Dist. N.Y. 2005) ; Lora v. West , 2010 WL 3632506 (U.S.D.C. Southern Dist. N.Y. 2010). He also moved in 2011 for an order to vacate his convictions. The motion was denied by a Judge of this Court.
Background, Procedural History and Arguments
In brief, the convictions stem from allegations that in 1994, Defendant fatally shot several rivals of an alleged drug-trafficking gang, as well as an individual alleged to have been responsible for the death of his girlfriend's brother. Defendant and several other co-defendants were indicted for the murders and were also charged in a separate indictment with multiple drug and weapons offenses. The three indictments were consolidated for trial. The co-defendants pled guilty and testified against Defendant, who stood trial alone and was convicted by a jury on December 12, 1996, of two counts of Murder in the Second Degree [ Penal Law (hereinafter "P.L.") § 125.25(1) ] and one count of Conspiracy in the Second Degree [P.L. § 105.15]. The jury failed to reach a verdict on a third count of murder. Defendant was sentenced on January 17, 1997 to three consecutive terms of imprisonment: two terms of twenty-five ("25") years to life on the murder convictions, and one term of eight and one-third ("8 1/3") to twenty-five years on the conspiracy conviction (for an aggregate sentence of fifty-eight and one-third years to life imprisonment ("58 1/3"). Defendant was re-tried on the third murder count and convicted on March 6, 1998. He was sentenced on April 6, 1998 to a term of twenty-five years to life imprisonment, to be served consecutively to the previously imposed sentences.
The Eighth Amendment to the United States Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Constitution, Amendment VIII. In Miller , the United States Supreme Court (hereinafter "U.S. Supreme Court") held that the Eighth Amendment's prohibition on cruel and unusual punishment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders, because "children are constitutionally different from adults for purposes of sentencing." Miller, at 471, 132 S.Ct. 2455. In Montgomery , the Court held that Miller's prohibition on mandatory life without parole for juvenile offenders announced a new substantive rule that, under the United States Constitution, extends the protections of Miller to cases on state collateral review. Under Miller / Montgomery , life in prison is not foreclosed in homicide cases, however a sentencing judge is required to consider a juvenile offender's "diminished culpability and heightened capacity for change," before imposing a sentence of mandatory life imprisonment without the possibility of parole. Miller, at 479, 132 S.Ct. 2455 ; Montgomery, at 726, 136 S.Ct. 718. (Emphasis added).
Defendant specifically argues that his first sentence in which he must serve a minimum of 58 1/3 years of incarceration, standing alone, amounts to a de facto sentence of life imprisonment, and that under Miller / Montgomery , sentences of life without parole are prohibited for certain offenders who were under the age of eighteen at the time they committed their crimes. He argues that the constitutional scruple against sentencing a youth to life imprisonment without the possibility of parole applies to discretionary sentences which are longer than a defendant could possibly live.
In their written response to the motion, the People argue that Defendant's sentences are not prohibited under Miller / Montgomery because Defendant has not been, nor was he required to be, sentenced to mandatory life without parole. They maintain that the aggregate term of eighty-three and one-third years of imprisonment (83 1/3") is a discretionary sentence that Defendant must serve before he is eligible for parole. The People further argue that there are no federal or state cases holding that such discretionary sentences, when imposed on a juvenile, violate the Constitutions of the United States or New York.
The aggregate sentence is comprised of four consecutive terms of imprisonment: two terms of 25 years to life, one term of 8 1/3 to 25 years (for an aggregate sentence of 58 1/3) and an additional 25 years to life on the second conviction.
On September 30th, 2020, this Court granted Defendant's motion to the extent that a hearing was ordered, pursuant to C.P.L § 440.30 (5), to determine whether Defendant was sentenced in accordance with Miller / Montgomery . In ordering the hearing, this Court held that under the unique facts and circumstances of this case, the combined sentences of 83 1/3 years to life imprisonment amount to a de facto life sentence. See People v. Lora, supra at 193, 133 N.Y.S.3d 412. This Court treated the sentences in the aggregate for purposes of its initial analysis because that is how the matter was argued by both sides and because "they are consecutive sentences which are each a product of charges contained in a single indictment which was consolidated for trial with an indictment for drug and weapons charges." Lora, id at footnote 7.
The motion's protracted procedural history included a lengthy delay as this Court awaited a decision from the U.S. Supreme Court in Mathena v. Malvo (cert. granted , ––– U.S. ––––, 139 S.Ct. 1317, 203 L.Ed.2d 563 (2019) on whether the Miller / Montgomery rule applies only to juvenile defendants who received mandatory sentences of life without parole, or to all (mandatory and discretionary) juvenile defendants who receive sentences of life without parole. In February 2020, petitioner Malvo withdrew his petition for resentencing after a change in Virginia's sentencing statutes. On July 9, 2020, the U.S. Supreme Court announced that the matter had been dismissed.
In order to apply Miller / Montgomery's constitutional safeguard, a sentencing court must consider a juvenile offender's youth and its attendant characteristics at the time of the commission of the crimes before a sentence to mandatory life without parole may be imposed. Miller, at 734, 132 S.Ct. 2455. Here, after reviewing the motion papers, relevant case law, the official court file and available transcripts of previous proceedings, this Court was unable to determine whether the two trial courts had in fact considered the Miller factors before imposing sentence. Thus, a hearing was granted in People v. Lora, supra .
The hearing was conducted on November 13th, 2020. Neither side presented witnesses (thus this Court makes no findings of fact based on sworn testimony), but both sides offered arguments and responses to this Court's inquiries. The defense submitted additional case law on November 16th, 2020, followed by written argument from the People on November 23rd, 2020.
At the hearing and in the written arguments which followed, the People offered the argument for the first time, that this Court should analyze the two sentences separately to determine whether the first sentence of 58 1/3 years to life imprisonment and the second consecutive sentence of 25 years to life, each standing alone, constitute de facto life sentences . The People further argue that it is up to state legislatures to set parole eligibility time frames for juveniles sentenced to lengthy prison sentences, and that there is no New York statute, nor is there any binding precedent which addresses precisely when a sentence is deemed de facto life imprisonment in this state. They contend that Defendant's sentence at his first trial, when viewed as a distinct sentence, does not constitute life without parole, because he is eligible for parole within his lifetime.
While this argument was not included in the People's initial response papers, this Court has agreed to consider the argument in the interests of justice.
Conclusions of Law
The Miller Court did not decide whether its sentencing requirements extend to both mandatory and discretionary sentences of life without parole and without the guidance of a decision in Mathena v. Malvo, supra , the question remains unsettled . State and federal courts across the country, are split regarding the question of whether Miller is limited only to sentences of mandatory life without parole. See for example, People v. Gutierrez , 58 Cal.4th 1354, 171 Cal.Rptr.3d 421, 324 P.3d 245 (Sup. Ct. CA. 2014) ("Under Miller, a state may authorize its courts to impose life without parole on a juvenile homicide offender when the penalty is discretionary and when the sentencing court's discretion is properly exercised in accordance with Miller. ); Aiken v. Byars , 410 S.C 534, 765 S.E.2d 572 (Sup. Ct. So. Ca. 2014) ("We recognize that in holding the Eighth Amendment proscribes a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders, the Court did not expressly extend its ruling to states such as South Carolina whose sentencing scheme permits a life without parole sentence to be imposed on a juvenile offender but does not mandate it we profoundly disagree with the position that the import of the Miller decision has no application in South Carolina.). In New York, courts have not treated Miller as extending to discretionary sentences of life without parole. See People v. Matias , 68 Misc.3d 352, 123 N.Y.S.3d 792 (Sup. Ct. Bx Co. 2020) ("[D]efendant's reliance on Miller is misplaced as the sentencing statute governing this case and the imposed sentence are readily distinguishable from the [mandatory] statute and sentence found objectionable in Miller "); People v. Sanchez , 63 Misc.3d 938, 98 N.Y.S.3d 719 (Sup. Co, N.Y. Co. 2019) ("The second problem for the defendant is what the Supreme Court held with respect to LWOP and minors under the age of 18 in Miller . There, the Court held in a five justice majority decision that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments’ Mr. Sanchez received a discretionary LWOP term." [citations and quotations omitted]); People v. Aponte , 42 Misc.3d 868, 981 N.Y.S.2d 902 (Sup. Ct. Bronx Co. 2013) ("Although both Miller and Graham held it was unconstitutional to impose life without parole on a person under the age of 18, the defendant received no such sentence. In fact, he is parole eligible. No doubt he is unhappy over the prospect that the aggregate mandatory minimum periods of imprisonment may preclude him from ever being paroled, he nevertheless remains eligible for it.").
In Jones v. Mississippi , ––– U.S. ––––, 140 S.Ct. 1293, 206 L.Ed.2d 374 (2020), the U.S. Supreme Court granted certiorari on the question of whether Miller extends to non-mandatory sentences of life imprisonment without parole for juvenile homicide offenders. Oral arguments were heard on November 3, 2020 and a decision is pending.
As the law presently stands, Miller could be interpreted as not contemplating a statute such as New York's discretionary sentencing scheme. Such an interpretation would render the Miller factors inapplicable to Defendant's aggregate sentence. Notwithstanding, this Court's holding that the aggregate sentence of 83 1/3 years to life imprisonment is a de facto life sentence puts this matter squarely within the purview of Miller . The question of whether Defendant's first sentence of 58 1/3 to life imprisonment should be considered a de facto life sentence on its own, however, remains. There is no "bright line" rule for what constitutes a de facto life sentence in federal or state law. As briefly set forth in this Court's decision ordering the hearing, New York courts, federal courts, and courts across the United States have made individual rulings on the issue. See United States v. McCoy , 692 Fed.Appx. 17, 22 (2nd Cir. N.Y. 2017), cert. denied ––– U.S. ––––, 138 S.Ct. 278, 199 L.Ed.2d 179 (2017) (80 years is "effectively a life sentence."); People v. Buffer , 434 Ill.Dec. 691, 137 N.E.3d 763 (Sup. Ct. of Illinois 2019) (40 years is a de facto life sentence); United States v. Grant, 887 F.3d 131 (U.S.C.A. 3rd Cir. 2018) (65 years of imprisonment without parole for a juvenile offender whose life expectancy is 72 years of age is a de facto life sentence).
Defendant is now approximately forty years of age and has thus far served approximately twenty-three years of his sentence. According to the Center for Disease Control, a forty-year old Hispanic male is expected to live to the age of eighty-one years and two months of age. Should a Hispanic male live to the age of seventy-five, the same government report indicates that he is expected to live to eighty-two years and six months.
See Unites States Department of Health and Human Services, Center for Disease Control, National Vital Statistics Reports, United States Life Tables, 2018.
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This Court acknowledges both the seriousness of the crimes for which Defendant was convicted, as well as the lengthiness of the sentences imposed, and regrets that it must analyze this weighty issue within the framework of statistical studies related to life expectancy. Such methods tend to dehumanize the issue at hand. This Court recognizes that this motion was brought by a real human being for whom time is precious. Nonetheless, a sentence of 58 1/3 years of imprisonment, is appropriate for the crimes herein and is not tantamount to a life sentence under the unique facts and circumstances of this case. With approximately thirty-five years remaining on the minimum end of his first sentence, Defendant could be paroled at seventy-five years of age, or earlier with the benefit of "good time." Thus, this Court holds that Defendant's first sentence, standing on its own, does not amount to a sentence of life imprisonment for which the sentencing considerations in Miller are presently applicable. The motion to set aside, as it pertains to the first sentence, is denied.
Defendant's second sentence, however, was ordered to run consecutively to his first sentence. As set forth above and in this Courts previous decision, with the addition of a term of twenty-five years of imprisonment, at a minimum (again, less time credited for good behavior), Defendant's aggregate sentence is held to be a de facto life sentence without the possibility of parole.
This Court is in no better position now, after presiding over the hearing on November 16th, 2020, than it was before, to determine whether the second sentencing court did in fact consider the Miller factors.
A defendant who moves to set aside a sentence must prove that the sentence is unauthorized, illegally imposed or otherwise invalid, by a preponderance of the evidence. C.P.L. § 440.20(1). Here, Defendant has met his burden as it pertains to the second sentence. This Court cannot conclude that the second sentencing court engaged in the proper analysis. Therefore, this Court must hold a resentencing hearing with respect to Defendant's second sentence of 25 years to life imprisonment to consider whether Defendant's "diminished culpability" and "heightened capacity for change" merit a different sentence.
This opinion constitutes the Decision and Order of the Court.