Opinion
19970061
Decided on May 12, 2005.
Michael C. Green, Monroe County District Attorney, Patrick H. Fierro, A.D.A., Rochester, New York, for the People.
Kevin J. Johnson, Pro Se, Auburn Correctional Facility, Auburn, New York, for the Defendant.
This is a decision on defendant's motions pursuant to CPL 440.10 and 440.20, which seeks (1) an order vacating the judgment of conviction and (2) an order setting aside the sentence. Defendant's asserted grounds for the requested relief are that the indictment was defective, defendant was erroneously sentenced as a persistent felony offender and in violation of Apprendi v. New Jersey ( 530 US 466) and defendant was denied effective assistance of counsel. The People oppose defendant's motion and contend that it is subject to summary denial.
Defendant was arrested for assault in the first degree and later indicted for attempted murder in the second degree and two counts of assault in the first degree. Following a jury trial, defendant was convicted of attempted murder in the second degree and one count of assault in the first degree, arising out of an incident in which defendant stabbed his wife. Defendant was sentenced as a persistent felony offender to an indeterminate term of imprisonment of 20 years to life. The judgment was modified on appeal by vacating the sentence for the trial court's failure to set forth on the record the reasons why it found that "the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to serve the public interest" ( People v. Johnson, 275 AD2d 949, 951). Thereafter, the Court of Appeals denied leave to appeal ( People v. Johnson, 95 NY2d 965). Further, the Fourth Department denied a writ of error coram nobis ( People v. Johnson, 303 AD2d 1059, lv denied 100 NY2d 562). Upon appeal from remittal of his re-sentencing, the Fourth Department rejected defendant's claim that the trial court failed to abide by the terms of the remittal ( People v. Johnson, 5 AD3d 1050, rearg denied 9 AD3d 920) and further leave was denied ( People v. Johnson, 3 NY3d 642).
DISCUSSION
After review of all papers submitted, including defendant's motion and supplemental motion, the exhibits submitted by defendant in support of the requested relief, and the People's answering affirmation, and after due consideration of the arguments raised by the parties and the relevant law, the Court determines that defendant's motions are determinable without a hearing ( see, CPL 440.30; People v. Satterfield, 66 NY2d 796, 799; People v. Maddox, 256 AD2d 1068, lv denied 93 NY2d 875).
I.CPL 440.10 Motion to Vacate Conviction
CPL 440.30 (4) (a) provides that the court may deny a CPL 440.10 motion without conducting a hearing if (a) "[t]he moving papers do not allege any ground constituting legal basis for the motion."
Contrary to defendant's contention, the People are not required to instruct the Grand Jury on the mitigating defense of intoxication ( see, People v. Harris, 98 NY2d 452, 474-475; People v. Johnson, 277 AD2d 702, lv denied 96 NY2d 831). The People "need not instruct the Grand Jury as to every conceivable defense suggested by the evidence, but ordinarily need instruct only as to those 'complete' defenses which the evidence will support" ( People v. Lancaster, 69 NY2d 20, 26, cert denied 480 US 922; see, People v. Valles, 62 NY2d 36, 39). "[A] prosecutor is under no obligation to present mitigating defenses to the Grand Jury" ( see, People v. Lancaster, supra, at 30).
Defendant contends that had intoxication been presented to the Grand Jury his case could have been transferred to Family Court. "However, an attempted murder is not included within the meaning of 'assault' so as to give the Family Court jurisdiction" ( People v. Coady, 79 Misc 2d 929, 930; see, Family Ct Act § 812). As such, Family Court lacked jurisdiction to hear the case against defendant. Thus, defendant's claim lacks merit.
Defendant's claim of ineffective assistance of counsel is a claim that could have been raised on direct appeal ( see, CPL 440.10 [c]).
Consequently, defendant's motions to vacate his conviction must be denied ( see, CPL 440.30 [a], 440.10 [2] [c]).
II.CPL 440.20 Motion to Set Aside Sentence
Defendant moves pursuant to CPL 440.20 (1) to set aside his sentence of 20 years to life. He also claims a violation of Apprendi v. New Jersey, supra. CPL 440.20 (1) provides:
"At any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law."
Defendant contends that he was illegally sentenced as a persistent felony offender.
Defendant asserts that his 1979 conviction could not be used as a prior conviction to support the special information in 1987 charging him with assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the third degree (Penal Law § 265.02). In 1979, defendant claims that he was convicted of attempted robbery in the second degree and was sentenced to one year in the Monroe County Jail. Penal Law § 265.02 (1) does not impose a time limit or a sentencing limit on the prior conviction. The statute requires that the defendant have a prior conviction for any other crime ( see, People v. Cornish, 104 Misc 2d 72 ["any crime" in CPL 265.02 [1] means any crime no matter where, when or how committed, and needs no judicial interpretation]). As such, defendant's claim that the 1987 special information and/or indictment is defective for inclusion of the 1979 conviction lacks merit.
Additionally, defendant claims that his prior convictions were defective because he was not given notice that the crimes charged were violent offenses, as an element of the offenses. There is no requirement that an indictment contain notice that the offense charged is a violent offense. Moreover, the indictment's reference to a specific penal law section "operates without more to constitute allegations of all the elements of the crime" ( People v. D'Angelo, 98 NY2d 733, 735, People v. Marshall, 299 AD2d 809, 810; see, People v. Ray, 71 NY2d 849, 850). Here, the indictments reference violations of specific penal law sections and the indictments are not defective. Accordingly, defendant's claim lacks merit.
Regarding defendant's claim pursuant to Apprendi v. New Jersey, 530 US 466, this Court remains bound by People v. Rosen, 96 NY2d 329, cert denied 534 US 899, which found that the procedures in Penal Law § 70.10 are constitutional, notwithstanding Apprendi. Additionally, a thorough reading of Apprendi makes it clear that prior convictions can be considered at sentencing without regard to the jury having considered them ( see, Apprendi, supra at 490). The Fourth Department recently reaffirmed in People v. Nelson, 16 AD3d 1172, that Rosen is controlling. Contrary to defendant's contention, Blakely v. Washington, ___ US ___, 124 SCt 2531, reh denied ___ US ___, 125 SCt 21 does not render invalid the analysis of the Court of Appeals in Rosen ( see, People v. Wright, 16 AD3d 1173; People v. Nelson, supra).
As such, defendant's motions to set aside his sentence must be denied.
For the reasons set forth above, the motions for an order vacating the judgment of conviction and for an order setting aside the sentence are hereby denied.
Accordingly, it is hereby
ORDERED that defendant's motions to vacate the judgment of conviction are denied in their entirety, and it is further
ORDERED that defendant's motions to set aside his sentence are denied in their entirety.
The above constitutes the Decision and Order of this Court.