People v. Matias

Full title: THE PEOPLE OF THE STATE OF NEW YORK v. JOSE MATIAS, DEFENDANT

Court: Supreme Court, Bronx County

Date published: Apr 23, 2020

68 Misc. 3d 352 (N.Y. Sup. Ct. 2020)

123 N.Y.S.3d 792

2020 N.Y. Slip Op. 20098

Opinion

Ind. No. 1832/92

04-23-2020

The PEOPLE of the State of New York v. Jose MATIAS, Defendant

Attorney for the prosecution: ADA Joshua Weiss, Bronx County District Attorney's Office, 718-838-6229 Attorney for defendant: Natalie Rae, Legal Aid Criminal Appeals, 212-577-3403

Steven L. Barrett, J.

Attorney for the prosecution: ADA Joshua Weiss, Bronx County District Attorney's Office, 718-838-6229

Attorney for defendant: Natalie Rae, Legal Aid Criminal Appeals, 212-577-3403

Steven L. Barrett, J. On May 9, 1994, following a jury trial, defendant was found guilty of two counts of murder in the second degree and criminal possession of a weapon in the second degree for having fatally shot 17-year-old Osvaldo Lucero and Osvaldo's 21-year-old brother Jacinto Lucero at a sixteenth birthday party for Osvaldo's girlfriend, Melissa DelMoral.¹ On June 2, 1994, defendant was sentenced by this Court to consecutive indeterminate terms of imprisonment of from 25 years to life for the two murder convictions and a concurrent term of from five to fifteen years for the weapons conviction.

1 Just weeks before this party, DelMoral and Osvaldo Lucero had briefly broken off their relationship. Defendant had attempted to date DelMoral during this time, but DelMoral had rebuffed his advances. By the time of the party, DelMoral had resumed her relationship with Osvaldo.

Defendant appealed his conviction arguing that the Court erred because it declined defendant's request to deliver a justification charge and an intoxication charge, and because his 50 years to life sentence was unduly harsh and excessive due to his age (16-years-old) at the time of his commission of the crime and his lack of criminal history. On January 21, 1997, the Appellate Division, First Department affirmed the judgment of conviction and, in so doing, found that defendant was not entitled to either charge and that there was no abuse of sentencing discretion and therefore no basis to reduce defendant's sentence. See People v. Matias , 235 A.D.2d 298, 653 N.Y.S.2d 308 (1st Dept. 1997), lv. denied, 89 N.Y.2d 1038, 659 N.Y.S.2d 869, 681 N.E.2d 1316 (1997). On March 8, 2000, the Hon. John Martin dismissed defendant's writ of habeas corpus, and, on March 27, 2001, the United States Court of Appeals, Second Circuit, declined to issue a certificate authorizing an appeal. On October 6, 2006, defendant filed a motion to vacate his conviction pursuant to CPL 440.10 based upon claims of newly discovered evidence and ineffective assistance of counsel.² On June 26, 2007, this Court denied defendant's motion. In rejecting defendant's newly discovered evidence claim, the Court found that the proffered evidence wasn't newly discovered or exculpatory. Moreover, the Court found that the trial evidence overwhelmingly demonstrated that defendant was guilty of the crimes for which he was convicted. The Court noted that: 1) at least three credible witnesses testified to seeing defendant fire the fatal shots; 2) defendant confessed to the shooting both orally and in writing; and 3) the gun defendant admitted firing (and which others at the party where the murders took place had seen him possess) was consistent with the type of weapon the ballistics expert had identified as being the one used to facilitate the double murder. In addition, the Court rejected defendant's claim of deficient representation due to counsel's failure to press a claim that the evidence at trial was insufficient to support a conviction for intentional homicide. In reaching this conclusion, the Court found that the evidence adduced from the People's witnesses at trial as to defendant's actions both before the shooting (cleaning and reloading his .25 caliber weapon) and during the shooting itself (repeatedly firing his gun at close range, even after Jacinto Lucero was shot in the chest and was futilely attempting to crawl to safety in the confines of a small kitchen) manifested defendant's clear intent to kill.

2 Although neither party in their motion papers included defendant's 2006 CPL 440.10 motion and failed to attach the Court's decision with respect to this motion, because it is part of the record of the case, the Court now includes it as part of the record with respect to this motion.

Now, almost twenty-five years after his conviction, defendant has filed a motion pursuant to CPL 440.20, this time to vacate his sentence, claiming that: 1) based upon fairly recent decisions of the United States Supreme Court interpreting the Eighth Amendment as applied to juvenile offenders,³ the imposed sentence violates that Amendment's prohibition on cruel and unusual punishments due to the fact that defendant was 16-years-old at the time he shot and killed the Lucero brothers and that prior to imposing sentence the Court did not properly consider defendant's youth; and 2) his trial counsel, Peter Gersten, Esq. failed to provide meaningful representation at defendant's sentencing as he failed to provide the Court with mitigating evidence relating to defendant's youth and difficult childhood. For the reasons stated below, defendant's motion is summarily denied.

3 Throughout this decision the term juvenile offender is used to denote an individual under the age of eighteen when he or she committed a crime.

A brief recitation of what transpired at defendant's sentencing will place the issues now raised by defendant in context.

Sentencing Proceedings

As required by statute, prior to sentencing the Court ordered a pre-sentence report to be prepared by the Probation Department. See CPL 390.20. That report, dated June 1, 1994, first noted defendant's pedigree information, including his date of birth, and indicated that defendant had no juvenile or adult criminal record and that there were no charges pending against defendant. The report then gave a brief description of the facts of the shooting and noted that defendant declined to be interviewed by the Probation Department. The report further indicated that due to defendant's refusal to be interviewed by the probation officer who prepared the report, and because no other source was available to be interviewed, the probation officer was unable to provide the court with information regarding defendant's family and social circumstances. The probation officer was able to interview the mother and sister of the deceased victims, each of whom informed the officer that the loss of their two loved ones had traumatized their family to such an extent that they had continued to attend weekly therapy and grief counseling sessions two years after the murders. The mother and sister both reported how much their sons and brothers were missed not only by themselves, but also by their relatives and friends due to "their kind hearts and productiveness." They further reported that Jacinto had dreamed of going to college and Osvaldo had enlisted in the Marines where he had planned to serve his country after he had graduated from high school. The mother and sister both requested that the maximum sentence be imposed. In concluding the report, the probation officer characterized defendant's actions as "an extreme deliberate and callous episode of violence," which " reveals [defendant's] capacity to pose a threat to society," and warrants "a pessimistic outlook for a future conforming [to] community adjustment."⁴ (See Defendant's motion to vacate, Exhibit I.) Defendant was sentenced on June 2, 1994. Prior to imposing sentence, each counsel and defendant were given an opportunity to make a statement. See CPL 380.50. First, the trial prosecutor, ADA Daniel McCarthy, made a short, impassioned plea for the maximum sentence for each murder and for the sentences to be imposed consecutively. He noted that the victims' family were "kind, caring and wonderful, hard-working people." He noted that the victims were leading full, productive lives, and that at the time they were gunned down, Osvaldo was seventeen, a senior in high school who was awaiting entry into the Marines and that Jacinto was twenty-two, attending college part-time and working full-time in the garment industry. ADA McCarthy also noted that defendant's acts were acts of casual and extreme violence and that defendant had never expressed remorse for his actions. ADA McCarthy asked for a sentence that would exact "some measure of retribution" and "protect the rest of us from Jose Matias," and noted in a final rhetorical flourish, (which appears to be somewhat prescient given the issue now raised by defendant) "there will come a time based on Jose Matias' age, when he will have the opportunity to walk out the doors a free man and when that time comes, Jay and Osvaldo will be but fading memories to the people who loved and cared for them." (See Defendant's motion to vacate, Exhibit J at pp. 4-6.)

4 It does not appear from the record that prior to sentencing either party filed a sentencing memorandum.

Mr. Gersten next spoke briefly on behalf of defendant. Gersten highlighted defendant's age, his lack of criminal history, and the impulsive and aberrational nature of defendant's actions.⁵ Gersten concluded by asking for leniency, emphasizing that the shooting is not only a tragedy for the victim's family, but also is a tragedy for defendant's family, and suggested that no purpose would be served by destroying defendant's life by sentencing him to the maximum as requested by the prosecutor. (See Defendant's motion to vacate, Exhibit J at pp. 6-7.)

5 Gersten mistakenly stated that defendant was seventeen at the time when the murders took place.

The Court then asked defendant if he wished to say anything to the Court prior to being sentenced. Defendant declined to make a statement.

The Court then spoke before imposing sentence.⁶ The Court first noted that notwithstanding the enormous number of homicides in Bronx County at that time, it still couldn't help but be deeply affected by the tragedy presented by the facts of this case. The Court then gave a fuller explanation of the reasons for the sentence it was about to impose in which it emphasized the uniqueness of the crime of murder and the severity of the loss to the family of the two victims:

6 The criminal procedure law authorizes the Court to summarize the factors it considered relevant for the purpose of sentence, but does not require the Court to do so. See CPL 380.50 ; cf. CPL 400.20 (prior to determining whether defendant should be sentenced as a persistent felony offender, Court must make a finding that the history and character of defendant and the nature and circumstances of his criminal conduct warrant such a sentence.)

"Murder, of course, is a special kind of crime. Even though it fits in the same book as all the other crimes that we try in this Court, there is an obvious permanence to the consequences and enormous enhancement of the loss that occurs when somebody is murdered. And those are the kind of considerations that force a Court not to give as much consideration as it would otherwise give to the fact that an individual who has been convicted of such a crime has not previously been convicted of another crime. The effect on the victims and the family in this case is particularly poignant because of the characteristics of the two individuals who were murdered. This is a community where many poor people reside and where people of Hispanic origin have an enormous struggle to enter mainstream society. And here we had two young men, seventeen and twenty-one, as I recall, who were truly the hope of their generation — one who was about to enter the Marine Corps, the other one who was planning to go to college. Two young men with no prior criminal involvement, clean-cut, honorable men. The last words of one of them as he was being shot [were], "We come in peace." The measure of this case to some extent has to take into account the terrible tragedy of losing these two men and the measure of appropriate punishment also has to take into account the information that we have concerning the individual who is held responsible for that killing, Jose Matias. The actions in this case ... were striking in not only their violence, but also the casualness by which that violence was perpetrated. These young men were shot for no reason... The individual who was shot was with his girlfriend, and the defendant, apparently for reasons of envy or dissatisfaction with the choice freely made by

two other human beings, decided to destroy one of those individuals and then just for good measure, [to] destroy his brother. I can't be fully moved by the fact that the defendant has not come before me with a long criminal record because I am unable to ignore the consequences of this act, the enormous loss that we have all suffered by losing these two young men. The family has suffered of course even more. And predominantly because I have yet to see anything by reason of the [defendant's] actions ... following the murders — the callousness, the lack of contrition — to recommend that the defendant be regarded as somebody who can rejoin society or has any true hope for returning to us as a contributing member. The prognosis is so awful that given all the circumstances of this case, I think that there is really no choice for the Court."

The Court then imposed sentences of 25 years to life for each count of murder in the second degree. The Court imposed those sentences to run consecutively in order to reflect the Court's view that "there were two horrendous crimes committed." (See Defendant's motion to vacate, Exhibit J at pp. 7-10.)

In the instant motion, defendant contends that Gersten "did nothing" at sentencing. (See Defendant's memorandum of law at p. 11.). In support of this claim, defendant alleges counsel failed to visit defendant during the course of the two and one-half years while he was detained at Rikers Island prior to trial and counsel failed to communicate with defendant during trial. (See Affirmation of Natalie Rea at ¶12, Affidavit of defendant at ¶7.) In addition, defendant alleges that prior to sentencing, counsel conducted no investigation of defendant's background and failed to obtain defendant's school, health, and other institutional records, or to prepare and submit to the Court a sentencing memorandum.⁷ (See Defendant's memorandum of law at p. 11.) Defendant now claims that had counsel conducted a proper investigation, he would have discovered that defendant had a difficult childhood, which included growing up poor and having a father that physically abused both him and his mother. In addition, counsel would have discovered and apprised the Court that defendant had difficulties in school, had been placed in Special Education classes, and had dropped out of school in sixth grade. Moreover, counsel would have emphasized defendant's youth to the Court and would have established that defendant as a teenager had smoked marijuana, used mescaline, drank alcohol, and that his older brothers were gang members who had been arrested and convicted of violent crimes. (See Affidavit of Natalie Rea at ¶¶3-10, Affidavit of Defendant at ¶¶3-6.)

7 In the instant motion, defendant includes an email, dated December 19, 2018, from Mr. Gersten to Ms. Rea and an affidavit from Mr. Gersten dated August 29, 2019, indicating that after the instant trial in 1994, Gersten had retired from the practice of law, had moved from New York City, had no present recollection of the case or of defendant, and had not retained any files relating to the case. (See Defendant's motion to vacate, Exhibit H, Defendant's reply, Exhibit A.)

In response, in their Affirmation in Opposition, the People have attached defendant's disciplinary record while incarcerated. Those records demonstrate that between August of 1994 and May of 2019, defendant committed and was sanctioned for approximately forty Tier 2 and 3 prison infractions, including infractions for fighting with corrections officers and fellow inmates, possessing weapons, possessing gang-related materials, using, possessing and smuggling drugs, and insubordination. (Affirmation of ADA Joshua Weiss at ¶17; People's supplemental submission filed October 24, 2019, Exhibits 1-9.) In addition, on January 17 1997, defendant was convicted of Promoting Prison Contraband in the first degree and sentenced to an indeterminate term of imprisonment of two and one half to five years, which was imposed to run consecutively to the 50 years to life sentence on the instant case. Due to his aggregate sentence of fifty-two and one half years to life, defendant will first become eligible for parole on August 25, 2044, when he will be 69-years-old. (See Affirmation of ADA Joshua Weiss at ¶¶11, 15.) Had he not been convicted of Promoting Prison Contraband, and had he only been incarcerated for the murders of the Lucero brothers, he would have been first eligible for parole in 2042, when he will be 66-years-old.⁸ (See Defendant's Memorandum of Law at p. 9.)

8 Defendant was born on June 6, 1975 and has been in custody on the instant murder charges since his arrest on February 26, 1992. On February 26, 2042, when defendant would have been first eligible for parole had he not been convicted and received a consecutive sentence for promoting prison contraband, defendant will be 66-years-old.

Conclusions of Law

To prevail on a motion to vacate a sentence, a defendant must establish that his sentence was unauthorized, illegally imposed, or otherwise invalid as a matter of law. See CPL 440.20(1). Here, it is beyond cavil that the imposed sentence was authorized by law. Notwithstanding the fact that defendant was sixteen when he committed the two murders, his sentence undisputedly fell within the authorized statutory range for a felony offender convicted of a Class A felony. See P.L. 70.00(2)(a), 70.00(3)(a)(I).⁹ Moreover, it is equally uncontested that because defendant committed two separate and distinct acts in shooting and killing each Lucero brother, it was within the Court's discretion to sentence defendant to consecutive sentences. See P.L. 70.25.

9 Based upon his age at the time of the incident, defendant was ineligible for treatment as a juvenile offender, and based upon the level of the offense, defendant was ineligible for youthful offender treatment. See CPL 1.20(42) ; 720.10(2)(a)(I).

With respect to defendant's claim under the Eighth Amendment to the Federal Constitution,¹⁰ the analysis begins with the series of decisions rendered during the past fifteen years by the United States Supreme Court in which the Court has held that the Eighth Amendment places limits on the sentencing of juvenile offenders that do not apply to the sentencing of adult offenders. See Roper v. Simmons , 543 U. S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (Eighth Amendment prohibits the imposition of the death penalty on a juvenile offender who has committed homicide); Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eighth Amendment categorically bans the imposition of a life without parole (lwop) sentence on a juvenile offender convicted of non-homicide offenses); Miller v. Alabama , 567 U.S. 460, 483, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (extended Graham and ruled Eighth Amendment prohibits the imposition of a lwop sentence on a juvenile offender convicted of homicide without consideration by the sentencing court of an offender's youth and the characteristics and circumstances attendant to it).

10 In the heading to his argument, defendant cites to the analogous state constitutional provision, Art I, § 5; however, he makes no argument and cites no case interpreting this clause. The entire thrust of his argument is made pursuant to precedents interpreting the Eighth Amendment. Thus, the Court is only addressing defendant's claim under the Federal Constitution. If the Court were to address defendant's claim under the State Constitution, the same reasoning would apply. See People v. Broadie , 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 (1975) (Court uses same analysis under Federal and State Constitutions to find that the sentencing provisions of the Rockefeller drug laws do not violate either Constitutions's prohibition on cruel and unusual punishments).

In Miller , the Court held that State sentencing laws that mandate lwop for juvenile homicide offenders run afoul of the Court's precedents ( Roper and Graham ) that had interpreted the Eighth Amendment's prohibition on cruel and unusual punishments to require a sentencing authority to at least have the opportunity to consider mitigating circumstances before it imposes the harshest possible penalties on juvenile offenders. 567 U.S. at 489, 132 S.Ct. 2455. In reaching that conclusion, the Court emphasized both the distinctive attributes of youth as well as the mandatory nature of the Alabama sentencing law at issue, which precluded the sentencing court from taking into account such mitigating factors as: 1) an offender's age and its hallmark features such as immaturity, impetuousity, recklessness; 2) an offender's family and home environment; and 3) the circumstances of the homicide and the offender's relative culpability. Id. at 477, 132 S.Ct. 2455.

However, unlike in Graham , where the Court categorically barred the imposition of a lwop sentence on a juvenile offender convicted of a non-homicide offense, in Miller , the Court did not eliminate the power of a State to impose lwop for juvenile homicide offenders. 567 U.S. at 483, 489, 132 S.Ct. 2455. Rather, it required a sentencing court to follow a certain process before imposing lwop, one in which the sentencing court must consider an offender's youth and its attendant characteristics prior to sentencing a juvenile homicide offender.¹¹

11 The Court, however, did opine that lwop sentences should be "uncommon" and would be appropriate for "the rare juvenile offender" whose crime reflects "irreparable corruption" as opposed to "transient immaturity." Id. at 479, 132 S.Ct. 2455. See also Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016).

Next, in Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 (2016) the Court held that Miller announced a new substantive rule of constitutional law and was therefore retroactive and applicable to collateral motions such as the one sub judice. In giving Miller retroactive effect, the Court explicitly held that it was not requiring States to relitigate sentences in every case a juvenile homicide offender received mandatory lwop. The Court stated that a State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. Id. Allowing those offenders to be considered for parole "ensures that juveniles whose crimes reflected only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment." Id. Thus, the Court found that a 17-year-old convicted of homicide and sentenced to mandatory lwop and who had already served 52 years of his sentence was entitled to a parole hearing where he would be given the opportunity to show that his crime reflected transient immaturity and did not reflect irreparable corruption. The Court directed the parole authority to consider the defendant's youth at the time of the homicide, his maturity and whether he had been rehabilitated, including any evidence that indicated defendant had transformed from a troubled, misguided youth into a model member of the prison community. Id. at 736.

The most recent word from the High Court came in Virginia v. LeBlanc , ––– U.S. ––––, 137 S.Ct. 1726, 198 L.Ed.2d 186 (2017), a per curiam decision in which the Court granted certiorari and reversed the judgment of the federal district court that had granted a writ of habeas corpus. The federal district court had found that a Virginia trial court's sentence of a juvenile offender (age 16) to mandatory life in prison for a rape and kidnapping conviction was a violation of Graham's prohibition of such a sentence. The Virginia sentencing court had ruled that the imposed sentence did not violate Graham 's prohibition of lwop for juvenile offenders convicted of nonhomicide offenses because Virginia's geriatric release program afforded defendant with the meaningful opportunity to obtain release if he or she demonstrated maturity and rehabilitation.¹² Because the case arose in "the narrow context" of habeas review, the High Court did not rule on the merits of whether Virginia's geriatric release program satisfied the Eighth Amendment; however, the Court did find that the Virginia court's application of Graham to the facts presented was not unreasonable.¹³

12 Virginia's geriatric release program provides that "any person serving a sentence imposed upon a conviction for a felony offense ... (I) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release. Id. at 1728 ; Va. Code Ann. § 53.1-40.01.

13 With respect to the Eighth Amendment claim, the LeBlanc Court offered: "perhaps the logical next step from Graham would be to hold that a geriatric release program does not satisfy the Eighth Amendment, but perhaps not." Id. at 1728. This Court notes that since Virginia v. LeBlanc was decided in 2017, Justice Kennedy has been replaced by Justice Kavanaugh. Though it's always difficult to predict how a Justice will vote, perhaps the "perhaps not" camp will prevail and the High Court will conclude that such a geriatric release program satisfies the Eighth Amendment. This Court had hoped that the issue of the extent of Miller 's reach, or, more specifically, whether the Miller rule applied beyond situations in which a juvenile homicide offender received a mandatory lwop sentence, would be settled by the Supreme Court in the D.C. sniper case, Mathena v. Malvo, Dkt. No. 18-217, which was argued before the High Court on October 16, 2019. Indeed, the instant motion was held in abeyance for five months awaiting the Supreme Court's decision. However, because Virginia very recently enacted new legislation making juvenile offenders sentenced to lwop eligible for parole after serving twenty years of their sentence, the parties in Malvo stipulated to dismissal of the case, and, on February 24, 2020, the Supreme Court dismissed the appeal. Just as the ink was drying on the final draft of our decision, this Court learned that the U.S. Supreme Court had granted certiorari in the case of Jones v. Mississippi , No. 18-1259, where the Court will address whether Miller and Montgomery require a Court to find that a juvenile homicide offender is permanently incorrigible before sentencing him or her to lwop. Because this Court finds, based upon the evidence presented in the instant motion, that defendant is permanently incorrigible, see infra , pp. –––– – ––––, this Court need not further await the High Court's decision in Jones .

Defendant, relying on a number of decisions of Sister States that have interpreted Miller broadly,¹⁴ now seeks to extend the reach of Miller to the discretionary 50 years to life sentence imposed on defendant for a crime committed when he was 16-years-old and for which he would have been eligible for parole when he is 66-years-old, but for his subsequent conviction and consecutive sentence for promoting prison contraband. For the following reasons, this Court declines to read Miller so expansively and finds that defendant's sentence falls outside the ambit of Miller .

14 See e.g. People v. Contreras , 4 Cal.5th 349, 229 Cal.Rptr.3d 249, 411 P.3d 445 (2018) ; Carter v. State , 461 Md. 295, 192 A.3d 695 (2018) ; Carr v. Wallace , 527 S.W.3d 55 (Mo. 2017) ; Casiano v. Comm'r of Correction , 317 Conn. 52, 115 A.3d 1031 (2015) ; State v. Null , 836 N.W.2d 41 (Iowa 2013). However, the Court notes that although no appellate court in New York State has ruled on the applicability of Miller , two trial courts have declined to interpret Miller broadly and have declined to apply it to discretionary sentences. See People v. Sanchez , 63 Misc. 3d 938, 98 N.Y.S.3d 719 (N.Y. Co. Sup. Ct. 2019) (Konviser, J.)(Court denied motion to vacate sentence filed by 18-year-old convicted of murder in the first degree and sentenced to lwop and found Miller inapplicable because New York sentencing statute discretionary and defendant over 18-years-old); People v. Aponte , 42 Misc. 3d 868, 981 N.Y.S.2d 902 (Sup. Ct. Bx. Co. 2013) (Court denied motion to vacate sentence filed by 17-year-old convicted of murder in the second degree and two armed robberies and sentenced to 40 years to life and found Miller inapplicable because New York sentencing law discretionary and defendant eligible for parole)(Price, J.). Moreover, numerous Federal Courts have also interpreted Miller narrowly. See e.g., United States v. Jefferson , 816 F.3d 1016 (8th Cir. 2016) ; Davis v. McCollum , 798 F.3d 1317 (10th Cir. 2015) ; Croft v. Williams , 773 F.3d 170 (7th Cir. 2014) ; Bell v. Uribe , 748 F.3d 857 (9th Cir. 2014) ; Evans-Garcia v. United States , 744 F.3d 235 (1st Cir. 2014) ; but see Malvo v. Mathena , 893 F.3d 265 (4th Cir. 2018).

When sentencing juvenile homicide offenders, Miller prohibits the imposition of a lwop sentence where such sentence is mandated by the governing sentencing statute and the sentencing authority therefore has no discretion to take into account the offender's age or any other mitigating circumstances.¹⁵ However, defendant's reliance on Miller is misplaced as the sentencing statute governing this case and the imposed sentence are readily distinguishable from the statute and sentence found objectionable in Miller . Initially, defendant was sentenced pursuant to a statute that gave the Court discretion to sentence defendant to a minimum term of imprisonment of between 15 and 25 years, and also gave the Court discretion to sentence defendant to concurrent or consecutive terms. And, in exercising its discretion and sentencing defendant to the maximum term permissible, the record reflects that after reviewing the pre-sentence report and hearing from counsel, the Court was made aware of, and properly considered: 1) all mitigating factors — including defendant's age and lack of criminal history; 2) all aggravating factors — including, the gravity of the crimes, the severity of the loss, the manner in which the crimes were committed, and defendant's lack of remorse; and 3) the penological purposes that would be served by imposing the maximum sentence.¹⁶ Thus, the record reflects that the Court imposed the type of individualized sentence required by Miller and the Eighth Amendment.

15 It should be noted that the Court in Miller used some version of the word mandatory forty-eight times. See Petitioner's Brief, Mathena v. Malvo , Dkt. No. 18-217 at p. 11.

16 The mere fact that the Court in its statement at sentencing did not explicitly identify defendant's age as a mitigating factor is of no moment and does not mean the Court failed to consider it. Certainly, prior to imposing sentence, the Court was made aware of defendant's age in the pre-sentence report and by counsel, and, of course, by the fact that the Court presided over the jury trial in which evidence was presented and defendant was convicted. As stated earlier, the Court was not statutorily required to give any explanation of what factors it considered. The fact that the Court made such a statement and omitted any mention of defendant's age at the time of the murders suggests not that the Court failed to consider defendant's age, but that it was not such a compelling consideration as to outweigh the aggravating factors the Court explicitly set forth in its statement.

A second salient point of distinction between the circumstances here and the circumstances in Miller is that defendant was not sentenced to a lwop sentence. Rather, defendant was sentenced to 50 years to life and (had he not been subsequently convicted and sentenced consecutively for promoting prison contraband) he would be eligible for his initial parole hearing at the age of 66, which is an age within his expected natural lifetime.¹⁷ See United States v. Mathurin , 868 F.3d 921, 934-35 (11th Cir. 2017) (Court using life expectancy tables from the Center for Disease Control concludes that sentence of 57 years for 17-year-old convicted of multiple armed robberies and carjackings complied with Graham because defendant could be released, after good-time credit is applied to his sentence, when he is 67-years-old, which is 5 years less than the life expectancy of black males and ten years less than the projected life span for all males his age, and thus he was provided with a realistic opportunity to obtain release before the end of his life). And indeed, at his initial parole hearing, defendant will be afforded an opportunity to present evidence and have the Parole Board consider his youth and its attendant characteristics at the time he committed the murders, and any other evidence he adduces that demonstrates his maturity and rehabilitation. See Matter of Rivera v. Stanford , 172 A.D.3d 872, 875, 100 N.Y.S.3d 72 (2d Dept. 2019) (Parole Board erred by failing to consider defendant's youth (16) and its attendant characteristics when he committed murder); Matter of Hawkins v. N.Y.S. Dept. of Corrections , 140 A.D.3d 34, 39, 30 N.Y.S.3d 397 (3d Dept. 2016) (Parole Board erred by failing to consider fact that defendant was 16-years-old at time of murder). Thus, even if the initial sentencing proceeding that took place in 1992 did not pass constitutional muster, the fact that defendant will be afforded a parole hearing during his expected lifetime would certainly do so. See Virginia v. LeBlanc , supra , 137 S.Ct. 1726 ; Graham v. Florida , supra , 560 U.S. 48, 130 S.Ct. 2011.

17 Although neither party presented life expectancy data, the Court takes judicial notice of such data provided by the Center for Disease Control. According to the Center for Disease Control, in 1992 (the year defendant was first incarcerated with respect to the instant murder charges), a male born in 1975 (the year of defendant's birth) would have been expected to live an additional 57.2 years. (See Vital Statistics of the United States, 1992 Life Tables.) Thus, at the time he was first incarcerated in 1992, defendant would have been expected to live until he is 74-years-old. In addition, the pre-sentence report indicates defendant is Hispanic. Although in 1992 the CDC did not break out life expectancy data for Hispanic males, in the most recent report put out by the CDC, such data is now available and indicates that Hispanic males have a higher life expectancy than white or black males.
Specifically, in 2017, when defendant was 42-years-old, a white male would have been expected to live an additional 34.3 years, a black male an additional 31.3 years, while a Hispanic male would have been expected to live an additional 36.6 years. (See National Vital Statistics Report dated June 24, 2019.) Moreover, at least one court has held that when considering the constitutionality of a sentence the individual sentences must be considered when determining if a juvenile received a de facto lwop sentence. See Commonwealth v. Foust , 180 A.3d 416 (Pa. 2018) (Court found that a 17-year-old sentenced to consecutive 30 years to life terms for two murders did not receive a de facto lwop sentence and neither 30 year to life sentence individually entitled him to the protections of Miller ).

Moreover, even if the Court were to accept defendant's argument that his sentence is the functional equivalent of a lwop sentence and that the instant sentence fell within the purview of Miller , vacatur of defendant's sentence and a new sentencing hearing still is not required. This is so because even if the Court were to credit all the evidence defendant puts forth in the instant motion with respect to his youth and childhood, it would not result in the Court altering defendant's sentence. The fact that defendant grew up poor, had an abusive father, had dropped out of school in the 6th grade, had used drugs and drank alcohol as a teenager, and had older siblings who were poor role models, while unfortunate, is not the type of mitigation that the Court finds compelling when compared to the two murders that occurred here.

What the Court finds more consequential than the mitigation evidence proffered by defendant are the omissions from the affidavits submitted in support of the instant motion by both defendant and his counsel. (See Defendant's motion to vacate, Exhibit A and Affirmation of Natalie Rea in support of defendant's motion to vacate.) Significantly, in his affidavit, defendant fails to show that he has gained insight into the loss and pain caused by his actions as he fails to acknowledge responsibility for the murders, and fails to express any remorse and to apologize to the victim's family and community. Moreover, defendant provides no evidence whatsoever that establishes that he has transformed while in prison by having a positive disciplinary record or having engaged in and completed any rehabilitation programs.¹⁸ Indeed, quite to the contrary, defendant's conduct in prison, his conviction for promoting prison contraband while incarcerated, and his failure to adduce evidence that he has completed any programs, leads to the opposite conclusion — that defendant has not matured and has not been rehabilitated. Cf. People v. Alvarez , 33 N.Y.3d 286, 313-14, 101 N.Y.S.3d 702, 125 N.E.3d 117 (2019) (Wilson, J., dissenting)(dissenting judge suggests that 66 2/3 to life sentence is unduly harsh for a 19-year-old convicted of murder and other violent crimes because defendant has shown transformation while incarcerated by having completed many different rehabilitation and training programs, by having a positive disciplinary record, and by getting married and becoming a loving father and stepfather, and also due to serious health issues requiring full-time care); see also Montgomery v. Louisiana , supra , 136 S.Ct. at 736.

18 In his motion and in his reply, defendant fails to submit any evidence demonstrating his transformation while incarcerated. During the five month period that this motion was held in abeyance pending a decision by the United States Supreme Court in Mathena v. Malvo , the Court explicitly invited defendant to submit any such evidence. (See email dated October 4, 2019 from Mitchell Krapes, Esq. to Natalie Rea, Esq. and ADA Joshua Weiss.) Inasmuch as defendant has again failed to adduce any such evidence, the Court presumes that no such evidence exists.

Thus, if the Court were to take a second look at defendant's sentence, it would, as in the thousands of sentences it has imposed, consider all of the information presented by both parties and would take judicial notice of the recent developments in psychology and neuroscience with respect to adolescent brain development and behavior that indicate that the regions of the adolescent brain associated with impulse control, regulation of emotions, risk assessment, and moral reasoning do not reach a fully mature state until after the age of 18.¹⁹ It would then give due consideration to: 1) the gravity of the offense, including the sui generis nature of the crime of murder and the permanence of the loss to the family of the victims, 2) the particular circumstances of defendant, including his age, background, and any other mitigation evidence defendant presents; and 3) the purposes of a penal sanction, including societal protection, rehabilitation and deterrence. See People v. Farrar , 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864 (1981). After doing so, notwithstanding defendant's age when he fatally shot the two victims, the Court would again impose consecutive maximum sentences due to the severity of defendant's crimes, the magnitude of the loss suffered by the Lucero family who lost two sons and brothers, and the fact that defendant still has not accepted responsibility for his actions and has not adduced a scintilla of evidence that establishes that he has become a model prisoner and that his crimes were the product of "the transient immaturity of youth." Rather, the totality of the record as it now exists demonstrates that defendant is one of those rare juvenile offenders, whose crimes reflect "irreparable corruption," and who tragically can be characterized as "permanently incorrigible." See Miller v. Alabama , supra, 567 U.S. at 479, 132 S.Ct. 2455 ; Montgomery v. Louisiana , supra , 136 S.Ct. at 734.

19 It is noteworthy that defendant does not include any such studies in his motion, and, although he requests a Miller hearing, nowhere does he state what evidence he would proffer at such a hearing, including whether he would call any expert witnesses in adolescent psychology and neuroscience. In any event, for purposes of this motion, the Court takes judicial notice of such evidence including all of the evidence described in People v. H.M. , 63 Misc. 3d 1213(A), 2019 WL 1526963 (Sup. Ct. Bx. Co. 2019) (16-year-old convicted of manslaughter for the stabbing of homeless person adjudicated a youthful offender and sentenced to an indeterminate term of 1 1/3 to 4 years where the only mitigation appeared to be defendant's youth at the time of the stabbing and that defendant was born to a crack-addicted mother) and People v. Sanchez , supra , 63 Misc 3d at 944-945, 98 N.Y.S.3d 719 ).

Defendant's claim of ineffective assistance of counsel at sentencing is equally unavailing. To prevail on such a claim under the Sixth Amendment of the Federal Constitution, defendant must establish that counsel's representation fell below an objective standard of reasonableness and that he was prejudiced by such deficient performance. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the New York Constitution to prevail on an ineffective assistance claim, defendant must demonstrate that counsel failed to provide meaningful representation. See People v. Alvarez , supra , 33 N.Y.3d 286, 101 N.Y.S.3d 702, 125 N.E.3d 117 (2019). This standard will have been satisfied "so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation reveal that the attorney provided meaningful representation." People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981) (emphasis added). Moreover, our state standard considers prejudice to be a significant, but not indispensable, element in assessing meaningful representation. See People v. Alvarez , supra, 33 N.Y.3d at 289-290, 293, 101 N.Y.S.3d 702, 125 N.E.3d 117. Here, for both procedural and substantive reasons, defendant's claim fails under both the Federal and New York standards for assessing attorney ineffectiveness.

Initially, defendant's claim fails because, apart from his own unsupported allegations, he provides no corroborative proof that counsel failed to visit and communicate with him during the course of his pretrial incarceration and during the trial itself, and that counsel failed to conduct any investigation with respect to his childhood and background prior to sentencing. See People v. Alvarez , supra , 33 N.Y.3d at 291, 101 N.Y.S.3d 702, 125 N.E.3d 117 (defendant failed to satisfy burden of establishing ineffective assistance of appellate counsel where defendant failed to provide corroborative evidence establishing that his appellate counsel failed to communicate with him).²⁰ Moreover, not only is defendant's claim that Gersten failed to communicate with him and his family and failed to conduct any investigation prior to sentencing unsupported, it is also implausible. A review of the entire record, including pretrial motions and hearings, the trial itself, and sentencing, makes clear that trial counsel provided exemplary representation. Prior to trial, Mr. Gersten filed motions and obtained a pre-trial hearing, during which counsel vigorously opposed the admission of statement and identification evidence. Once trial began, Gersten ably cross-examined the People's witnesses and made numerous objections on defendant's behalf, many of which were sustained. Further, Gersten skillfully elicited testimony from the People's witnesses in attempting to build the foundation for justification and intoxication defenses without having defendant testify and exposing him to cross examination. Gersten attempted to secure jury instructions with respect to those defenses and then delivered a cogent summation in which he outlined what he perceived to be the prosecution's weaknesses. Finally, after defendant was convicted, at sentencing, albeit brief, Gersten argued for a lesser sentence and cited as a basis for leniency the most significant mitigating factors available — defendant's youth and his lack of criminal history.²¹ Thus, when viewed in totality, and as of the time of the representation, the record fails to establish that defendant was deprived of effective assistance of counsel at sentencing. See People v. Rodriguez , 98 A.D.3d 693, 950 N.Y.S.2d 279 (2d Dept. 2012) (no ineffective assistance of counsel where defendant's contention that at sentencing his attorney failed to argue for a lesser sentence than that imposed was belied by the record); cf. People v. Stella , 188 A.D.2d 318, 590 N.Y.S.2d 478 (1st Dept. 1992) (ineffective assistance of counsel at sentencing where new counsel appointed at sentencing who had no knowledge of case or of defendant's background and had no opportunity to review the pre-sentence report); People v. Gonzalez , 43 A.D.2d 914, 352 N.Y.S.2d 7 (1st Dept. 1974) (ineffective assistance of counsel at sentencing where different lawyer represented defendant at sentencing who knew nothing about the case or even what crime defendant had pled guilty to); People v. Edmond , 84 A.D.2d 938, 447 N.Y.S.2d 60 (4th Dept. 1981) (ineffective assistance at sentencing where different attorney at sentencing who had not read pre-sentence report and did not make a statement on behalf of defendant).

20 Although defendant attempted to procure such corroboration by requesting and receiving an affidavit from counsel Gersten, it is unsurprising some twenty-five years after the instant trial and after Gersten's retirement from the practice of law, that Gersten has no recollection of the case.

21 Indeed, the fact that at sentencing Gersten failed to apprise the Court of defendant's difficult childhood is in part attributable to defendant's refusal to be interviewed by the probation officer who prepared the pre-sentence report. Also, it goes without saying that Gersten should not be faulted for failing to make the Court aware of any studies with respect to adolescent brain development and behavior when in 1992 these studies did not yet exist.

In any event, for the reasons stated above (see p. –––– – ––––, supra ), even if Gersten could be faulted for not doing a more comprehensive investigation and making a more detailed presentation to the Court at sentencing, the quality of information that he conceivably could have obtained and disclosed to the Court would not have caused the Court to alter its view of the propriety of a maximum sentence. Thus, not only was defendant afforded meaningful representation at sentencing, he was also not prejudiced by any purported deficiencies in counsel's performance at sentencing.

Conclusion

In the final analysis, defendant was sentenced under discretionary sentencing statutes, the Court previously had accounted for the evidence of mitigation provided by defendant including his age and lack of criminal history, defendant would have been eligible for a parole hearing at age 66, and defendant has adduced no evidence in his instant motion to warrant a reduction in his sentence other than his age at the time of the murders. To find under all these circumstances that the imposed sentence violates the Eighth Amendment due to defendant's age when he murdered the Lucero brothers, would usurp the Legislature's role to prescribe punishments and make policy choices with respect to affording favored treatment to youths at sentencing, and would ignore the Appellate Division's decision not to exercise its interests of justice jurisdiction to ensure sentences are not unduly harsh.²² See People v. Thompson , 83 N.Y.2d 477, 488, 611 N.Y.S.2d 470, 633 N.E.2d 1074 (1994) (15 to life sentence for a 17-year-old convicted of A-I sale of narcotics did not violate constitutional prohibition against cruel and unusual punishments as Legislature was not irrational in its view of the gravity of the offense, the danger posed by the offenders and the penological purposes to be served); People v. Broadie , 37 N.Y.2d 100, 117, 371 N.Y.S.2d 471, 332 N.E.2d 338 (1975) ("the Legislature has latitude in determining which ills of society require criminal punishments, and in imposing punishments, even mandatory ones, appropriate to each [of those ills]."); see also People v. Scott , 172 A.D.3d 543, 544, 100 N.Y.S.3d 260 (1st Dept. 2019) (First Department finds no basis for reducing aggregate 50 years to life sentence of 22-year-old convicted of two murders and sentenced to two consecutive 25 years to life terms and where defendant argued at sentencing and in his brief on appeal that the sentence was excessive due to his status as a first time felony offender, his age, and background); People v. Matias , 235 A.D.2d 298, 653 N.Y.S.2d 308 (1st Dept. 1997) (First Department finds this Court did not abuse its discretion in sentencing this 16-year-old defendant convicted of two murders to 50 years to life).

22 Certainly, as one distinguished jurist has suggested, the Legislature can consider amending the Executive Law to allow juvenile homicide offenders such as defendant who are serving lengthy sentences to be eligible for parole at an earlier age. See People v. Sanchez , supra , 63 Misc. 3d at 946, 98 N.Y.S.3d 719 (Konviser, J.); see e.g. , Va. Code Ann. 53.1-165.1(B) (permits juvenile offenders sentenced to life without parole who have served twenty years of their sentence to be eligible for parole); D.C. Code § 24-403.03 (upon a re-sentencing motion demonstrating defendant's maturity, rehabilitation, and fitness to reenter society, the court may reduce a defendant's sentence for an offense committed before defendant's eighteenth birthday if defendant has served at least twenty years in prison).

Based on the foregoing, defendant has failed to establish that the sentence here was unauthorized, illegally imposed, or otherwise invalid as a matter of law. See CPL 440.20(1). Accordingly, defendant's motion to vacate his sentence is denied without a hearing.

This is the decision, opinion, and order of the Court.