Opinion
July 16, 1991
Michael A. Drobenare for defendant.
Charles J. Hynes, District Attorney (Lindsay Brown and Jay Cohen of counsel), for plaintiff.
Defendant moves for an order setting aside his sentence upon the ground that it was "invalid as a matter of law" under People v Van Pelt ( 76 N.Y.2d 156; CPL 440.20).
Defendant was convicted after a jury trial of the crimes of murder in the second degree (two counts) and robbery in the first degree. On November 12, 1980 Justice John R. Starkey sentenced defendant to terms of imprisonment of from 20 years to life on the murder counts and 5 to 15 years on the robbery count. The sentences to run concurrently. The Appellate Division, Second Department, reversed defendant's judgment of conviction because of errors in the trial court's jury charge ( 96 A.D.2d 864).
Defendant was retried before this court without a jury and was convicted of the crimes of murder in the second degree (two counts) and robbery in the first degree. Defendant was sentenced by this court on November 15, 1984 to concurrent indeterminate terms of 12 1/2 to 25 years' imprisonment on the robbery count and 25 years to life imprisonment on the murder counts. The Appellate Division, Second Department, in November 1987, affirmed defendant's judgment of conviction ( 134 A.D.2d 599). One of the issues raised on defendant's appeal was whether it was improper for this court to impose a greater sentence after retrial. The appellate court wrote: "[a]lthough a presumption of vindictiveness may arise when a greater sentence is imposed following a retrial, where, as here, the sentences are imposed by different Judges, the presumption is inapplicable and the defendant has to prove actual vindictiveness (see, People v Best, 127 A.D.2d 671 [lv denied 70 N.Y.2d 642]; Texas v McCullough, 475 U.S. 134). The defendant failed to meet this burden in view of the court's statement that it was not aware of the prior sentence and was imposing its sentence based on the defendant's past criminal history and the nature of the instant offenses" (People v Alvarez, 134 A.D.2d 599, 600; emphasis added). Leave to the Court of Appeals was denied on March 24, 1988 ( 71 N.Y.2d 892).
On June 5, 1990 the Court of Appeals decided People v Van Pelt ( 76 N.Y.2d 156, supra). In that case the court held that the State's Due Process Clause makes no distinction between the imposition of a higher sentence after retrial by the same or a different sentencer. In either case the presumption of vindictiveness applies.
CPL 440.20 (2) states that: "2. [n]otwithstanding the provisions of subdivision one, the court must deny such a motion when the ground or issue raised thereupon was previously determined on the merits upon an appeal from the judgment or sentence unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue" (emphasis added).
Since this issue was determined on appeal, the court must decide whether People v Van Pelt ( 76 N.Y.2d 156, supra) announced a "retroactively effective change in the law" (CPL 440.20).
A case announces a "new rule" if the result reached was not "dictated" by precedent existing at the time defendant's judgment of conviction became final (Teague v Lane, 489 U.S. 288, 301; see also, Griffith v Kentucky, 479 U.S. 314, 321, n 6). In People v Pepper ( 53 N.Y.2d 213, 219) the court referred to new law as an "abrupt change * * * in decisional law".
In People v Pepper ( 53 N.Y.2d 213, 222, cert denied 454 U.S. 967) the court stated that the "normal appellate process" comes to an end upon the denial of a defendant's application for leave to appeal to the Court of Appeals. Defendant's judgment of conviction became "final" when the Court of Appeals denied him leave to appeal to that court ( 71 N.Y.2d 892).
The presumption of vindictiveness was formulated by the United States Supreme Court in North Carolina v Pearce ( 395 U.S. 711 [decided June 23, 1969]). It was based on the Federal Due Process Clause. The presumption was held to be rebuttable by showing that the higher sentence was based upon "events subsequent to the first trial" and not because the defendant was successful on appeal (395 US, supra, at 723).
In Michigan v Payne ( 412 U.S. 47), North Carolina v Pearce ( 395 U.S. 711) was held to be nonretroactive. The United States Supreme Court gave as its reasons the following grounds: 1. The purpose of the Pearce rule is to protect against the possibility that vindictiveness will invade the sentencing process. This purpose does not implicate the "`fair determination' of * * * guilt or innocence" ( 412 US, at 52; exclusions and emphasis in original text); 2. the right created in Pearce was not new, the right to be free from unfair sentencing predated Pearce ( 412 US, at 55). As these pre- Pearce cases existed there was less likelihood that nonretroactivity could result in the continued incarceration of those whose sentences rested on unconstitutional grounds ( 412 US, at 55); and 3. if Pearce were held to be retroactive its rules would apply to "innumerable cases in which no hint of vindictiveness appears" ( 412 US, at 55); and 4. the decision in Pearce was not foreshadowed by any decision in the Supreme Court ( 412 US, at 56-57).
Later cases held that the presumption of vindictiveness in North Carolina v Pearce ( 395 U.S. 711, supra) was inapplicable where there were two different sentencers (see, e.g., Colten v Kentucky, 407 U.S. 104; Chaffin v Stynchcombe, 412 U.S. 17; Texas v McCullough, 475 U.S. 134, supra).
In Texas v McCullough ( 475 U.S. 134, supra), decided February 26, 1986, the Supreme Court held that the presumption of vindictiveness did not apply when the original sentence and the higher sentence were imposed by two different sentencers. When there are two different sentencers, the court held, "a sentence `increase' cannot truly be said to have taken place" (475 US, supra, at 140) and actual vindictiveness must be proved. Thus, at the time the Appellate Division, Second Department, decided defendant's appeal (Nov. 1987) the law was that when two different Judges imposed the sentences, the presumption of vindictiveness was inapplicable and defendant had to prove that the higher sentence was imposed because of "actual vindictiveness" (People v Alvarez, 134 A.D.2d, supra, at 600). The Appellate Division held that defendant failed to meet this burden (People v Alvarez, supra, at 600).
Prior to People v Van Pelt ( 76 N.Y.2d 156, supra) the courts have never considered New York State's due process requirement on the issue of increased sentencing as being different from the Federal due process requirement as enunciated in North Carolina v Pearce ( 395 U.S. 711, supra) and its progeny (see, e.g., People v Miller, 65 N.Y.2d 502, cert denied 474 U.S. 951; People v Williams, 34 N.Y.2d 657; People v Alvarez, 134 A.D.2d 599, lv denied 71 N.Y.2d 892. supra; People v Best, 127 A.D.2d 671, lv denied 70 N.Y.2d 642; People v Best, 112 A.D.2d 942, lv denied 66 N.Y.2d 917; People v Simone, 78 A.D.2d 685; Matter of Avery v Rechter, 71 A.D.2d 500, 502-503; People v Yannicelli, 47 A.D.2d 911, mod 40 N.Y.2d 598).
In People v Van Pelt ( 76 N.Y.2d, at 162, supra) the court for the first time imposed a "more protective benefit" of our State due process than its Federal counterpart.
The court finds that Van Pelt (supra) announced a "new rule" (see, People v Pepper, 53 N.Y.2d, supra, at 219).
The court will now determine whether the "new rule" set forth in People v Van Pelt (supra) is to be given retroactive effect to cases which were already final on the date it was decided (People v Pepper, 53 N.Y.2d, at 220, supra).
Decided with People v Pepper (supra) was People v Torres ( 53 N.Y.2d 213). In Torres the issue was whether People v Samuels ( 49 N.Y.2d 218) was to be given retroactive application in a collateral attack on a conviction which was final. Sentence had been pronounced on Torres on March 3, 1976. His conviction was affirmed by the Appellate Division, Second Department, on June 26, 1978 ( 63 A.D.2d 1033). On August 15, 1978 leave to appeal to the Court of Appeals was denied ( 45 N.Y.2d 831 ). On January 15, 1980 the Court of Appeals decided People v Samuels ( 49 N.Y.2d 218, supra). Torres made an application for reconsideration as a result of the Samuels decision. The Court of Appeals held that absent "manifest injustice" Samuels was not retroactive to Torres' case which was already final when the change in law occurred.
In People v Samuels ( 49 N.Y.2d 218) the Court of Appeals held that once an accusatory instrument had been filed a defendant cannot waive his right to counsel except in the presence of counsel.
In the case before the court defendant is in effect asking for reconsideration of the Appellate Division, Second Department's decision ( 134 A.D.2d 599, 600), leave to the Court of Appeals having been denied ( 71 N.Y.2d 892). (See, People v Torres, 53 N.Y.2d 213, 222, n 2.)
In People v Laffman ( 161 A.D.2d 111), involving a collateral attack (CPL art 440), the court held that when a new rule of law has as its purpose "preserving the fact-finding process from unreliably obtained information bearing directly and substantially on a defendant's guilt or innocence" the new rule should be given retroactive effect, whether on direct review or in a collateral attack (161 A.D.2d, supra, at 112-113; emphasis added).
Defendant had a full hearing before the Appellate Division, Second Department, as to whether it was improper for this court to impose a greater sentence after retrial. The Appellate Division in November 1987, almost three years prior to the decision in People v Van Pelt ( 76 N.Y.2d 156, supra), decided the issue against defendant in accord with the law existing at that time (134 A.D.2d, supra, at 600).
Furthermore, the issue presented by People v Van Pelt (supra) does not involve guilt or innocence (People v Laffman, 161 A.D.2d 111, supra). It is merely a rule of fairness at a stage of the proceedings where guilt has already been determined either by a jury or by a court without a jury. Making People v Van Pelt (supra) retroactive to cases which are final "would mean that every defendant to whose case it was relevant, no matter how remote in time and merit, would become its beneficiary" (People v Torres, 53 N.Y.2d, supra, at 222; see also, Michigan v Payne, 412 U.S. 47, supra).
Defendant has failed to show, and the court does not find, that denying retroactive effect to People v Van Pelt ( 76 N.Y.2d 156, supra) to a case which was final when Van Pelt was decided would cause "manifest injustice" (People v Torres, 53 N.Y.2d, supra, at 222; People v Robles, 42 N.Y.2d 1051; People v Rivera, 16 N.Y.2d 879; see also, People v Muller, 11 N.Y.2d 154, cert denied 371 U.S. 850, reh denied 372 U.S. 961; People ex rel. Rodriguez v Harris, 84 A.D.2d 769, lv denied 55 N.Y.2d 605; cf., People v Wise, 82 A.D.2d 869; Michigan v Payne, 412 U.S. 47, supra).
There having been no retroactive change in the law, the court must deny the motion because the merits were considered by the Appellate Division, Second Department.
Defendant's motion is denied in its entirety.