Opinion
2978/2013
04-02-2015
The People of the State of New York v. Gregory Burgos, Defendant
"He explained that in his neighborhood guns were commonly sold and easily acquired, even by minors such as him." Pre-Sentence Memorandum prepared on behalf of Gregory Burgos by The Osborne Association, dated March 18, 2015.
The main issue is whether evidence of mitigation exists to find that defendant eligible to be adjudicated a youthful offender based on a conviction for an armed felony offense. The defendant stands convicted, via three guilty pleas, of one violent felony offense and two non-violent felony offenses. Each of the pleas have been entered to lesser charges as part of a plea agreement between the defendant and the People. Pursuant to that agreement, the People have recommended defendant receive three concurrent sentences, the maximum of which is two years in state prison, followed by three years post-release supervision. Although the defendant accepted the People's offers, pled guilty, and waived his right to appeal, there is a significant legal wrinkle. The defendant has not yet reached the age of 19. Therefore, based on his age, he is eligible to be adjudicated a youthful offender. However, his actual eligibility is strictly conditioned upon the Court finding the narrow mitigation long required under CPL § 720.10(3). The determinate sentence agreed acceptable is not legal for someone adjudicated a youthful offender.
The parties were advised at the time the plea that, based upon the ruling in People v. Rudolph, 21 NY3d 497 (2013), and many other cases since that decision, the determination about whether a defendant should be adjudicated a youthful offender is no longer one that can be made pursuant to a plea agreement between the parties. That determination can only be made by the Court, and only at the time of sentencing. In the First Department, this is true even when a defendant is not automatically eligible for a such a determination where the conviction to be replaced is for an armed felony offense. See e.g. People v. Boria, 124 AD3d 467 (1st Dept 2015); People v. Malcolm, 118 AD3d 987 (1st Dept 2014). This is different from the rule in the Third Department. Rudolph. People v. Woullard, 115 AD3d 1053 (3rd Dept), lv. to appeal denied, 23 NY3d 1026 (2014); See also People v. Frontuto, 114 AD2d 1271 (4th Dept 2014) ("[t]he remedial measures of People v. Rudolph . . . do not apply to the circumstances of this case" where defendant is convicted via guilty plea of criminal possession of a weapon in the second degree). This is a significant issue and should be settled by the Court of Appeals. Plea bargaining involving specific waivers of the right to be afforded youthful offender treatment, or to compel the Court to agree prior to sentencing to adjudicate a defendant a youthful offender, had been an integral part of the overall process of plea negotiation. Old habits apparently die hard. Both parties agreed to submit information, including the requisite mitigation information for an armed felony crime, at the time of sentencing, to aid the Court in placing its reasons "on the record" for its decision. People v.Evans, 2105 NY App. Div LEXIS 1801, March 4, 2015 (2nd Dept.).
First in this trio of felonies, under indictment 2978/2013, defendant is charged with Criminal Possession of a Weapon in the Second Degree, Penal Law § 265.03(2), an armed, violent felony offense. The Court has reviewed testimony before the grand jury, allegations in the felony complaint, statements in the pre-sentence investigation report submitted by the department of probation, and the written mitigation report submitted by defense counsel. On September 8, 2013, shortly before midnight, two police officers heard the sound of gunfire in the vicinity of a building located at 2463 Grand Avenue in Bronx County. Someone had been arrested in front of that same building one week earlier and charged with possession of a firearm, and there had been several recent shootings near that building. The officers entered the building and found defendant seated in a second floor stairwell. They observed a bulge in the area of his waistband. Before they could react, the defendant stood up, grabbed onto what appeared to be the handle of the firearm, and ran from the police. At some point during the chase, defendant entered an apartment on the second floor, pulled out a .357 caliber revolver, and placed it on a windowsill. The gun was loaded and operable; it also had one "spent" shell casing from a bullet that had been fired. He attempted to flee down the fire escape. Defendant was arrested after a struggle with the police.
Defendant explained to the Osbourne Association that he and his younger brother Jeffrey had been targeted on several occasions during 2011 and 2012 by gang members in the Bronx. Defendant was assaulted on one occasion in 2011, but the incident was not reported to the police. One week after the assault, defendant was sitting outside his apartment building when members of the same gang approached him and fired a gun at him. He ran into his building. "He stated that gun violence was common in his Kingsbridge neighborhood, but he had never been victimized by gun violence until that day . . . Now that he knew they possessed guns, he believed that he also needed a gun to protect himself, so [he] began to save his money in order to purchase one." During this period, defendant lived on Davidson Avenue and East 190th Street, a location only a few streets from 2463 Grand Avenue.
Sometime during the summer of 2011, Jeffrey was stabbed by members of the same gang, and reportedly underwent open heart surgery to repair the damage. Defendant's family moved to a different Bronx neighborhood, and into a private house on White Plains Road. This is about four miles from Davidson Avenue and East 190th Street. According to defendant, the gang members tracked down the family. Jeffery was once again the victim of a knife assault which resulted in his receiving 90 stitches. Defendant, believing he and his brother were in danger of being killed, used the money he saved to purchase the .357 revolver.
On November 19, 2013, about two months after his arrest for gun possession, defendant was again arrested. The resulting indictment, 3996/2013, charges defendant with burglary in the second degree, a violent felony offense. The burglary occurred in the very same building in which defendant possessed the firearm. In early November 2013, the superintendent of that building received complaints from tenants in this multi-story dwelling that noises were coming from inside Apartment 34. That apartment had been vacant for about two months. When the superintendent first entered that apartment, there was garbage strewn throughout the premises, and the window next to the fire escape had been broken. The superintendent changed all the locks, repaired the window, and placed a locked gate over the fire escape window. A few days later tenants once again complained about noise coming from the same apartment. At about 5:00 p.m. on November 19, 2013, the superintendent observed the defendant on the fire escape, entering apartment 34 through the window. The superintendent called the police, and, when they arrived, he unlocked the front door. Chairs had been set up in the apartment, and the defendant and another individual were inside and appeared to be sleeping. A window to the apartment was shattered and there was other damage to the premises. In his statement to the Osborne Association, defendant explained that he and a friend "were returning to his friend's grandmother's house after a late night party." The grandparents were asleep and did not open their door. The defendant did not specify where they lived. Defendant thereafter "decided to spend the night in a building [he] believed to be abandoned."
During December 2013, defendant was arrested and charged with marihuana possession. That case was adjourned in contemplation of dismissal. Defendant was arrested once again on January 29, 2014 and charged with assault in the second degree under Indictment 477/2014, his third violent felony arrest. On that date, at about 4:00 pm, defendant and three other young men were together on Grand Avenue and West Fordham Road. The defendant held "a large hooked knife with a blade in excess of four inches." He and the others had a verbal and physical altercation with two women. One woman, Vanessa Valentin, apparently in her late 20s, sought to shield another woman, Ginger Davila, who is Ms. Valentin's younger niece, from physical blows. As she did, the defendant struck Ms. Valentin in the head. His fist was closed but Ms. Valentin believed defendant had a sharp object concealed inside. The blow caused a deep laceration to her forehead, and she received six stitches to suture the wound. When the defendant was arrested, the hooked knife was recovered from the ground after the officer observed defendant drop it. During the plea allocution, the defendant stated he had a cell phone in his hand when he struck Ms. Valentin. The People agreed this admission was acceptable to them. Defendant explained to the Osbourne Association that Ms. Davila and Valentin were part of the "group of assailants" who previously attacked both him and his brother. Defendant's accomplices that day were never named or apprehended.
This is one block away from the building in which defendant had been arrested with the gun, and where he stands convicted of the burglary. It is also located in what is commonly called the Kingsbridge neighborhood of the Bronx.
Defendant faced significant sentencing consequences if he were not adjudicated a youthful offender. Given the fact that he was out on liberty after being charged with one violent felony offense when indicted for two new ones, such sentences could well have run consecutively if he were convicted of the top count of each indictment and sentenced as an adult. Penal Law § 70.25(2-b). In fact, when this Court first began presiding over these cases in November 2014, the People were recommending that defendant receive much longer, consecutive sentences. Originally, for indictment 2978/13, the People offered the defendant an opportunity to plead guilty to attempted criminal possession of a weapon in the second degree, with a recommendation that he be given a determinate sentence of three years, followed by three years post release supervision. For indictment 3996/13, they stated that they would accept a plea to attempted burglary in the second degree, a violent felony offense, with an indeterminate sentence of from one to three years. In order to make that sentence legal, they said they would recommend that defendant be adjudicated a youthful offender. Finally, for indictment 474/14, if defendant were to plead to assault in the second degree, they would recommend of a determinate term of three years, followed by three years post release supervision. Under the plea proposals, the People asked that the sentences run consecutive to each other.
A defendant who is adjudicated a youthful offender on two felonies may not receive consecutive sentences. See People v. Simmons, 188 AD2d 668, 669 (2nd Dept 1992).
At that time, defendant submitted an initial pre-pleading investigation report. However, it did not address whether any mitigating circumstances connected to the commission of the gun possession crime existed. It contained information about defendant's family life, medical, and mental health history, none of which can generally satisfy the strict mitigation requirement for armed violent felony offenses. See People v. Evans, 84 NY2d 336, 342-43 (1994); People v. Victor J., 283 AD2d 205, 206-208 (1st Dept 2001). Defense counsel asked the Court to find such mitigation and promise the defendant it would adjudicate him a youthful offender on all three cases. The Court did not do so.
Meanwhile, the People and defendant engaged in extensive plea negotiations. On the date the case was scheduled to be sent out to trial, the People advised the Court of the new, and dramatically different, plea and sentence offer: namely, that defendant plead guilty to attempted criminal possession of weapon in the second degree, now with a recommend sentence of two years in state prison, followed by three years post release supervision. This offer was contingent upon the Court's denying defendant a youthful offender adjudication. For the burglary case, the People now offered defendant a plea to attempted burglary in the third degree, with a recommended sentence of one to three years, and the condition that the Court adjudicate defendant a youthful offender. Finally, on the third indictment, the assault case, the People offered a plea to attempted assault in the second degree, with a indeterminate sentence of one to three years, and the condition that the defendant be adjudicated a youthful offender. And now, all sentences would be recommended to run concurrent with each other.
Since this would be a plea to a non-violent felony charge, the People were told they would have to provide the Court with some reason for it to dismiss the violent felony so the plea would be legal. See People v. Jumbe, 283 AD2d 521 (2nd Dept 2001).
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As noted, defendant's attorney submitted an additional pre-sentence memorandum, and this time addressed the mitigation requirement. The People stated their reasons for opposing a youthful offender adjudication for the armed felony conviction on the record. As far as mitigation is concerned, after careful consideration of everything before it, the Court finds that defendant is not eligible for a youthful offender adjudication based on his conviction for attempted criminal possession of a weapon in the third degree. There is no evidence that this defendant was "not the sole participant in the crime." CPL § 720.15(3)(ii). Thus, the Court must decide whether there are any "mitigating circumstances that bear directly upon the manner in which the crime was committed." CPL § 720.15(3)(I). The crime was committed when defendant possessed a loaded and operable firearm. The mitigation alleged is that defendant and his brother had, months earlier, been targeted by Bronx gang members who were themselves on one occasion armed with a gun, and he made the decision to buy his own gun and arm himself. While the Court is more than cognizant of the fact that, as defendant states, "gun violence" is common in the Kingsbridge section of the Bronx, and that guns are illegally bought and sold by minors on Bronx streets, such factors do not provide mitigation in light of New York State's gun possession laws.
If anything, there are aggravating factors connected with defendant's possession of this weapon. First, although defendant is not charged with any crime alleging he fired the gun that evening, the undisputed evidence that police officers heard the sound of gunfire coming from the area where defendant was apprehended minutes later, and that the gun contained five live rounds and one "spent" round, strongly suggests defendant fired the gun that night. Moreover, defendant did not surrender when the police approached him in the building; he reached for the gun and ran with it, initiating an encounter that might have resulted in harm to the police, or himself. In addition, he possessed the gun at 2:00 am in the very neighborhood from which his family moved because of gun violence. No explanation was provided for defendant's presence at that location at that hour with that dangerous, loaded firearm. Given all of this, nothing has been presented to the Court remotely suggesting the type of mitigation required by the Penal Law for the Court to find defendant "eligible" for a youthful offender adjudication for this armed felony. Cf. People v. Williams, 79 NY2d 281, 285 -86 (1992).
Even if there were mitigation, this Court also does not find defendant should be afforded a youthful offender adjudication in an exercise of its discretion. This is one of those "cases in which the interest of the community demand that youthful offender treatment be denied." Rudolph, 21 NY3d at 497. Not only is the crime itself a very serious one, People v. Almonte, 122 AD3d 870 (2nd Dept 2014), but the defendant's conduct and crimes committed after he was released on his own recognizance on this gun possession case do not demonstrate that there is "a real likelihood of [this defendant] turning [his] life around." Rudolph, 21 NY2d at 501.
The defendant broke into an apartment in the same building in which he was arrested for the gun charge. His explanation for having done so after a light night party is irreconcilable with his plea admission that he broke into the apartment during the afternoon. Thus, his true reason for being in the building remains unknown, and he has chosen not to provide a credible explanation. As far as his attack on two women weeks later, the People have not disputed defendant's claim that these victims were members of the same gang that had attacked him and his brother. That is somewhat irreconcilable with their statement that the actual target of the attack was Ms. Davila, and that the injured person, Ms. Valentin, was an unintended victim. That was the reason they gave the Court for their recommendation that defendant be adjudicated a youthful offender for this case. Nonetheless, defendant carried a hook-bladed knife with him that day, and attacked Ms. Valentin, causing a long, deep laceration on her forehead. As he committed this crime while at liberty after arrests for two other violent felonies, this time causing physical injury to a person, this Court finds defendant to be a particularly dangerous individual and one who the Court does not believe will likely become a productive, law abiding member of the community.
The Court has considered all aspects of defendant's background, and family situation. His father left him and his family and returned to the Dominican Republic under circumstances that are not explained by the Osbourne Association, and then was murdered while en route to Mexico when defendant was fourteen years old. Defendant's brother was nearly killed by gang violence, and defendant himself was assaulted when he was fourteen. Defendant has evidenced symptoms consistent with depression and anxiety, and has been under psychiatric care while incarcerated. This is a lot for anyone, but especially a lot for a teenager.
Yet, defendant's conduct in this armed felony case, as well as in the two others, appears to have been planned, premeditated, and done without any insight into the seriousness of his conduct. Defendant's family had long since moved to a different neighborhood prior to these arrests; in each of these cases, defendant returned to his former neighborhood to commit his crimes. On one occasion he was armed with a gun he admits purchasing; on another, he possessed a particularly dangerous knife. He carried both of these weapons miles from his home, and into the very neighborhood he claims to have feared. These actions are not consistent with an individual fleeing from violence; they are consistent with someone looking for a confrontation. Defendant's family blames "a lot of what he is going through to the community they lived in." Defendant's repeated crimes are not poor choices of a misguided teenager; they are the dangerous acts of an individual who was undeterred, even by a growing inventory of arrests and indictments. Accordingly, even if mitigation exists, this Court denies the defendant a youthful offender adjudication for the armed felony conviction in an exercise of its discretion..
The People also bargained with defendant with the understanding he would receive youthful offender adjudications for both the burglary and assault convictions. This Court, in accord with Rudolph, will also make that determination independent of any plea agreement. As far as the burglary, the People argue that a youthful offender adjudication is appropriate mainly because the apartment defendant broke into and vandalized was "unoccupied." That was also the basis for their request that this Court dismiss the dwelling-related burglary charge in the interest of justice. CPL §§ 210.40(1) and (3). Although this crime occurred in a residential apartment building whose residents repeatedly reported vandals using this vacant apartment, on balance, this Court will exercise its discretion and adjudicate the defendant a youthful offender for his conviction for attempted burglary in the third degree.
In terms of the assault, as noted, the People believe that since defendant intended to injure another teenager, and ended up assaulting her older aunt who was trying to shield a younger niece, he merits a youthful offender adjudication for this conviction as well. That is hardly a reason to find that the "interests of the community" will be served by a youthful offender adjudication for this crime. Rudolph, 21 NY3d at 501. And it presents quite a dilemma for this Court. Defendant bargained for this result — two "YO" adjudications, but not three. Since this is a plea agreement, the defendant is entitled to withdraw this plea if he were not to be afforded the youthful offender adjudication he bargained for in this serious assault case. Id. at 502. And then, all pleas would be vacated. On balance, and reluctantly, this Court in an exercise of its own discretion, adjudicates the defendant a youthful offender based on his conviction for attempted assault in the in second degree.
This constitutes the Decision and Order of the Court.Dated: April 2, 2015_______________________________
Hon. Ralph Fabrizio