Opinion
Indictment No. 88/1983
06-16-2014
THE PEOPLE OF THE STATE OF NEW YORK, v. DENNIS GREEN, Defendant.
DECISION AND ORDER
Defendant moves, pro se, to set aside his sentence pursuant to CPL 440.20. Defendant claims that he was improperly adjudicated a persistent violent felony offender, and that his consecutive and concurrent sentences were improper.
The court has reviewed defendant's motion, the People's response and the exhibits annexed, the court files for Indictment No. 88/1983 including selected minutes of the proceedings in that case, and the decisions issued by various courts on defendant's numerous post-judgment motions.
In March 1984, following a jury trial under Indictment No. 88/1983, defendant was found guilty of Murder in the Second Degree, Attempted Murder in the Second Degree, Assault in the First Degree, and Criminal Possession of a Weapon in the Second Degree. On April 24, 1984, defendant was adjudicated a persistent violent felony offender. Sentence was imposed on April 24, 1984. The sentence imposed aggregates to forty years to life.
Defendant contends that he was improperly sentenced under Indictment No. 88/1983 as a persistent violent felony offender because he did not have the requisite two or more violent felony convictions pursuant to Penal Law § 70.08 (1)(a). Defendant claims his two prior felony convictions were erroneously identified as violent felony offences at the time of sentencing in this case because Penal Law §70.04 (1)(b)(i), which provides for the enhancement of sentences based on prior violent felony convictions, was not in effect when he committed the prior felonies in 1970 and 1978. Defendant also contends that his sentences are improper because the attempted murder and assault charges run consecutively to the weapon possession charge. Finally, defendant contends that his counsel provided ineffective assistance for not raising these issues at the time of sentencing.
The persistent violent felony adjudication under Indictment No. 88/1983 was based on the following prior convictions:
1. A conviction under Indictment No. 5937/1970 of Assault in the Second Degree, a class D violent felony, see Penal Law §120.05, and
2. A conviction under Indictment No. 1398/1978, of Robbery in the Second Degree, a class C violent felony, see Penal Law §160.10.
As noted, defendant argues that the convictions under Indictments No. 5937/1970 and 1398/1978 could not be used to adjudicate him a persistent violent felony offender under Indictment No. 88/1983 because:
1. the crimes of which he was convicted under Indictments No. 5937/1970 and 1398/1978 were not then violent felonies; and
2. the Legislature did not explicitly allow retroactive application of violent felony offense provisions to crimes committed from 1967 to September 1978, see Penal Law §70.04 (1)(b)(i).
Defendant is mistaken. In People v. Morse, 62 N.Y.2d 205, 217 (1984), the Court of Appeals held it is irrelevant that "the predicate crime [is] not designated a 'violent felony offense' when committed... so long as the elements of the crime when committed were the same as those of an offense now defined as a violent felony offense by subdivision 1 of section 70.02 of the Penal Law." See also People v. Balfour, 95 A.D.2d 812, 812 (2d Dep't 1983). Regardless of whether an offense was committed before or after 1978, a felony that falls under Penal Law §70.02 at the time of the defendant's latest crime can serve as a predicate violent felony for sentencing purposes. People v. Correa, 103 A.D.2d 753, 753 (2d Dep't 1984). Enhancement is a punishment on the new crime, not the old, so retroactive application of Penal Law §70.02 is not improper.
Defendant incorrectly relies on People v. Modica, 64 N.Y.2d 828, 829 (1985), to assert that the classification of a conviction as violent can be rejected if it was not designated as such at the time of commission of the earlier crimes. In Modica, the prior conviction was not designated as violent until 24 days after the offense for which defendant was receiving an enhanced term. Id. When a defendant stands convicted of prior offenses designated as violent felony offenses under Penal Law §70.02 at the time of the current offense, he can be properly sentenced as a persistent violent felony offender. People v. Wolmart, 140 A.D.2d 733, 733 (2d Dep't 1988). Defendant also relies on People v. Crawford, 94 A.D.2d 950, 951 (4th Dep't 1983), for support of his claim that predicate violent felony convictions must be considered "violent felony offenses" at the time of their respective judgments. Defendant is mistaken in his reliance. Crawford was implicitly overruled by Morse's determination that a "violent" classification is determined at the time of the current offense.
Defendant is also mistaken about the classifications of the two earlier crimes at the time Indictment 88/1983 was committed. At the time of the current offense, Assault in the Second Degree was a class D violent felony and Robbery in the Second Degree was a class C violent felony, made so by the Legislature in September, 1978. Crawford, 94 A.D.2d at 950 (Assault in the Second Degree designated a Class D violent felony in 1978); People v. Barbour, 111 Misc. 2d 266, 266 (N.Y. Sup. Ct. 1981) (Robbery in the Second Degree designated a class C violent felony in 1978); Penal Law §§ 120.05; 160.10; 70.02 (1)(b), (c). Therefore, at the time of the instant offense, both predicate felonies of Assault in the Second Degree and Robbery in the Second Degree were defined as violent felonies. See Penal Law §70.02(1)(b), (c). Although the law did not designate the crimes as violent when they were committed in the 1970s, the offenses were considered violent at the time defendant committed the current offenses. Therefore, the court was correct in considering defendant as a persistent violent felony offender.
Defendant's claim can also be rejected, in the alternative, because it was not raised at sentencing. As noted, defendant contends that he received ineffective assistance of counsel when counsel did not object to the defendant's categorization as a persistent violent felony offender, thereby waiving his right to challenge the prior conviction's classifications. Defendant is correct that a non-challenge to classification in the predicate or persistent felony statement can be deemed ineffective (see People v. Smith, 73 N.Y.2d 961 (1989); People v. Kelly, 65 A.D.3d 886, 887 (1st Dep't 2009)), but of course counsel is not required make a motion or argument that is meritless, and the inaction in this case cannot be the basis for an ineffectiveness of counsel claim. See People v. Caban, 5 N.Y.3d 143, 152 (2005); People v. Stultz, 2 N.Y.3d 277, 287 (2004); People v. McDonald, 82 A.D.3d 1125, 1126 (2d Dep't 2011); People v. Hamm, 57 A.D.3d 919, 920 (2d Dep't 2008). Defendant's prior convictions would have been found to be violent regardless of a challenge, and therefore any action on the part of counsel would not have been fruitful.
Defendant's additional claim that his sentences are improper due to the attempted murder and the assault charges running consecutively to the weapon possession charge is a misunderstanding and is not founded in fact. During sentencing, that court stated the sentences were to be as follows: "Murder 2 is 25 years to life...Criminal Possession of a Weapon in the Second Degree, 10 to life...to run concurrent with each other" and "Attempted Murder is 15 to life and Assault in the First Degree is 10 to life...to run concurrent with each other and consecutive to the others." See People's Exhibit 2, Page 9, Lines 13-25 (emphasis added). In addition, the Sentencing & Order of Commitment, in remarks, states that the counts of Murder in the Second Degree and Weapons Possession were "to run concurrent" and that the count for Attempted Murder was "to run consecutive to Ct. 1 [Murder 2]." These documents show that the sentences are not as the defendant states, but rather properly assigned with the attempted murder charge following the murder charge consecutively. The charges containing lower minimum sentences run concurrently within the larger sentences so that defendant's sentence is not in violation of Penal Law §70.30 (1)(a).
Defendant's motion is denied.
This constitutes the decision and order of the court.
Defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal the denial of defendant's CPL 440.20 motion. This application must be made within 30 days of service of this Decision and Order. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted (22 NYCRR 671.5).
ENTER:
/s/_________
MARK DWYER
J.S.C.
Dated: June 16, 2014