Opinion
05-29-2024
The PEOPLE, etc., respondent, v. Wilhelms DESDUNES, appellant.
Patricia Pazner, New York, NY (Sam Feldman of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Darci Wen Siegel on the brief), for respondent.
Patricia Pazner, New York, NY (Sam Feldman of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Darci Wen Siegel on the brief), for respondent.
HECTOR D. LASALLE, P.J., LINDA CHRISTOPHER, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donald Leo, J.), rendered January 3, 2023, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence. By decision and order on motion dated March 3, 2023, as amended by decision and order on motion dated March 8, 2023, and extended by decision and order on motion dated August 25, 2023, this Court, inter alia, granted the defendant’s motion to stay execution of the judgment pending the hearing and determination of the appeal.
ORDERED that the judgment is reversed, on the law, the defendant’s conviction of criminal possession of a firearm and the sentence imposed thereon are vacated, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
On July 13, 2022, the defendant appeared before the Supreme Court and pleaded guilty to criminal possession of a firearm (Penal Law § 265.01–b) and criminal possession of a weapon in the fourth degree (id. § 265.01[1]) as part of a negotiated disposition. It was agreed that if the defendant successfully completed one year of interim probation and complied with certain conditions during that time, including a no-arrest condition, the criminal possession of a firearm charge would be dismissed and he would be sentenced to a conditional discharge on the conviction of criminal possession of a weapon in the fourth degree. However, if the defendant failed to satisfy the conditions, he would be sentenced to a one-year term of imprisonment on the conviction of criminal possession of a firearm.
It is undisputed that during the term of the defendant’s interim probation, he was arrested three times. The proceedings with regard to those arrests were dismissed on speedy trial grounds and the records sealed. However, after an Outley hearing (People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356), the Supreme Court determined that there was "a legitimate basis for [the defendant’s] arrest" and that the defendant failed to comply with the terms of his interim probation. Based upon that determination, the court sentenced the defendant to a one-year term of imprisonment on the conviction of criminal possession of a firearm. The defendant appeals.
[1, 2] A sentencing court has a duty to "assure itself that the information upon which it bases the sentence is reliable and accurate" (id. at 712, 594 N.Y.S.2d 683, 610 N.E.2d 356). CPL 160.50(1) provides that where a criminal action is terminated in favor of the accused, "the record of such action or proceeding shall be sealed." Under such circumstances, "the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he [or she] occupied before the arrest and prosecution" (id. § 160.60). Accordingly, "a sealed record is simply not available for consideration at sentencing" (People v. Anonymous, 34 N.Y.3d 631, 642, 123 N.Y.S.3d 41, 145 N.E.3d 924).
[3] The proceedings resulting from the defendant’s postplea arrests were dismissed on speedy trial grounds, which were terminations in his favor (see CPL 160.50[3][b]), and the records of those pro ceedings were sealed pursuant to CPL 160.50(1). Thus, the "arrest[s] and prosecution[s][are] deemed a nullity" (id. § 160.60), and the sealed records were "not available for consideration at sentencing" (People v. Anonymous, 34 N.Y.3d at 642, 123 N.Y.S.3d 41, 145 N.E.3d 924). As the People correctly concede, the Supreme Court erroneously relied on the sealed records from the defendant’s postplea arrests to determine that he had violated the terms of his interim probation and to sentence the defendant to a one-year term of imprisonment on the conviction of criminal possession of a firearm (see id.; see also Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196, 205, 800 N.Y.S.2d 363, 833 N.E.2d 698). Therefore, since there was no basis to find that the defendant had violated the terms of his interim probation, the criminal possession of a firearm charge should have been dismissed, and the court should have sentenced the defendant to a conditional discharge on the conviction of criminal possession of a weapon in the fourth degree.
Accordingly, we vacate the defendant’s conviction of criminal possession of a firearm and the sentence imposed thereon, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
In light of our determination, we need not reach the defendant’s remaining contentions.
LASALLE, P.J., CHRISTOPHER, FORD and LOVE, JJ., concur.