Opinion
No. 12477/96.
2011-10-31
The PEOPLE of the State of New York, Plaintiff, v. Lynden LOBBAN, Defendant.
Lynden Lobban, Pro Se. Hon. Charles J. Hynes, District Attorney Kings County by Assistant District Attorney's Leonard Joblove, Jodi L. Mandel and Terry–Ann Corniffe.
Lynden Lobban, Pro Se. Hon. Charles J. Hynes, District Attorney Kings County by Assistant District Attorney's Leonard Joblove, Jodi L. Mandel and Terry–Ann Corniffe.
JOEL M. GOLDBERG, J.
The defendant's motion, dated July 22, 2011, pursuant to CPL 440.20, to set aside his concurrent sentences, imposed on December 11, 1997 following the defendant's conviction after a jury trial of Murder in the Second Degree (25 years to life) and Burglary in the First Degree (12 1/2 to 25 years) (Lipp, J. at trial and sentence), upon consideration of the People's affirmation in opposition, dated September 19, 2011, the defendant's reply, dated September 26, 2011, the People's letter in response, dated October 17, 2011, and the defendant's letter, dated October 22, 2011, is denied.
A detailed procedural history is set forth in both the defendant's motion and People's affirmation in opposition. Of relevance to the current motion, the Appellate Division found that the defendant's sentence was not excessive. People v. Lobban, 288 A.D.2d 399 (2nd Dept.2001).
Defendant's Claims
The defendant's July 22, 2011 motion contends that his sentence was illegally imposed and invalid as a matter of law in that he was denied due process when he was sentenced without a complete pre-sentence report. Defendant's September 26, 2011 reply raised two new claims: 1) that his attorney was ineffective for failing to advise him that he had a right to counsel during his Probation Department interview; and 2) that his attorney was ineffective for failing to move to re-open the pre-trial Wade hearing.
The Sentence Proceeding
The defendant was sentenced on December 11, 1997 by the Hon. Herbert J. Lipp, the Judge who also presided over the trial and who is now retired. (Numbers in parenthesis refer to the sentencing minutes). The defendant was represented by retained counsel, Barry Krinsky, Esq. At the outset of the sentencing proceedings, defense counsel was given an opportunity to make motions and made an oral motion to set aside the verdict in which he detailed for the Court the various reasons why he believed that the verdict should be set aside related to the identification of the main witness and the lack of credibility of the cooperating co-defendant (S. at 2–8). The Court denied the motion stating that there was a reasonable view of the evidence to justify the verdict and additionally stated that “if this were a non-jury verdict, the verdict would have been the same” (S. at 9).
The prosecutor then made an argument to the Court requesting what she apparently believed to be the maximum allowable sentence of 55 years to life (S. at 9–13). The prosecutor noted that “[not] only did the defendant violate a home, he murdered the person who had the audacity, who tried to protect his family's home from a violent criminal” (S. at 10).
Although noting that “this was the defendant's first conviction for a felony of such violence, the prosecutor reminded the court that the defendant was a criminal “fully familiar with the criminal justice system” (S. at 12). The prosecutor further stated, “[t]hat system has given the defendant the opportunity for self reform, yet he has continued to exhibit throughout his short life nothing but scorn for the law and contempt for the rights of others” (S. at 12).
Defense counsel began his statement by saying, “[i]n the first instance, the Probation Department report, I would submit to the Court is incomplete and the defendant should not be sentenced on this report because the report has nothing concerning the defendant's background whatsoever (S. at 13). Counsel said, “[i]t indicates the defendant refused to be interviewed” (S. at 13). “I have no such information” (S. at 13).
The Court responded, “[y]ou want to give me that information now” (S. at 13–14). Counsel replied, “[m]y understanding was the defendant told the Probation Department in light of the fact he was convicted at trial and the case would be appealed, he did not wish to discuss the facts of the case” (S. at 14). Counsel continued, “[h]e didn't have any problem discussing his own background with them” (S. at 14). The Court stated, “[w]hy don't you tell me now” (S. at 14). Counsel proceeded to tell the Court that the defendant was a young man who, while incarcerated, had gotten his GED and received a certificate of achievement for participating in a development group training program (S. at 14). Counsel then passed the certificates up for the Court to examine (S at 14–15). Counsel further told the Court that the defendant had “taken the initiative to do positive things in terms of his own development and rehabilitation” (S. at 15). Counsel then argued that “the defendant has maintained his innocence from the beginning and continued to maintain his innocence, therefore, on the question of whether or not the defendant is remorseful or not ... if the defendant is, in fact, innocent the issue of remorse is not relevant” (S. at 15). Counsel did, however, also state that “our hearts go out to the family members of the deceased ... [and] we, certainly offer to them whatever feelings can be given to them that can be of any solace or consolation to them in this hour of grief” (S. at 15). Counsel then asked the Court to consider the fact that the jury found the defendant not guilty of the intentional homicide (S. at 16). Counsel further stated that, “whoever that person was inside that apartment, and the defendant maintains it was not him, apparently a struggled (sic) occurred between the deceased and that person ... and that the gun went off one time during the course of that struggle or scuffle” (S. At 16–17). Counsel argued that this lack of an intentional act and the fact that the gun went off during the struggle were relevant factors for mitigation when the Court “had ample opportunity to impose a substantial sentence without imposing the maximum” (S. at 17). Counsel concluded by asking the Court to impose the minimum sentence under the law because of the defendant's age and the other factors counsel brought to the Court's attention (S. at 17–18).
The defendant then addressed the Court by saying he was “sorry to the family of Shehadeh that that incident happened to them” (S. at 18). Defendant then stated he did not do this crime and asked the Court for a new trial (S. at 18).
The Court began by stating that “[he] was present and heard all the testimony in this case” and “I clearly stated on the record that if this was a non-jury case ... the verdict would be the same” (S. at 18). The Court went on to say that “felony murder is just as serious as an intentional murder ... and the sentence should be exactly the same” (S. at 18–19). The Court said it “may take into consideration mitigating circumstances” but went on to repeat that intentional and felony murder are of the same degree, are just as serious, and the liability is still the same (S. At 19). The Court made no reference to the pre-sentence report or defendant's failure to speak to the Probation Department when it passed sentence (S.18–21). The Court went on to sentence the defendant to 25 years to life on the count of Murder in the Second Degree, concurrent with 12 1/2 to 25 years on the count of Burglary in the First Degree (S. at 20).
The Alleged Defects in the Pre–Sentence Report
The defendant contends that the Court erred after counsel made the Court aware that the pre-sentence report was incomplete, in that it did not contain any information whatsoever pertaining to the defendant's background. Furthermore, the Court's requesting that defense counsel tell the Court about the defendant's background did not satisfy the statutory requirement for investigation of the defendant's history.
Discussion
Pursuant to CPL 440.20, at any time after the entry of judgment, the court in which the entry of 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. The defendant's concurrent sentences of 25 years to life on the murder count and 12 1/2 to 25 years on the burglary count were not unauthorized, illegal, or invalid.
Pursuant to the Criminal Procedure Law (CPL 390.20[1] ), a court must, with limited exceptions not relevant here, order a pre-sentence investigation in any case where an individual is convicted of a felony. The report must relate the circumstances attending the commission of the offense, the particulars of the defendant's background—including but not limited to social history, economic status, and defendant's criminal record—and any other matter which the agency conducting the investigation deems relevant (CPL 390.30[1] ).
In this case the defendant alleges that his sentence was illegal and invalid as a matter of law, because the pre-sentence report was incomplete in that it did not contain a statement from him. Although the defendant claims that he would have spoken to the Probation Department about his history, he did in fact refuse to be interviewed about the facts of the case. “Since the pre-sentence report indicates that the defendant refused to be interviewed by the Probation Department, he cannot complain that the pre-sentence report is incomplete.” People v. Greene, 209 A.D.2d 541, 542 (2nd Dept.1994).
Prior to pronouncing sentence the Court must afford the prosecutor, defense counsel, and the defendant an opportunity to make a statement with regard to any matter relevant to the question of sentence (CPL 380.50[1] ). Additionally, either before or after receiving that statement, the Court may summarize the factors it considers relevant to the imposition of sentence and if so it must afford an opportunity to the defendant or his counsel to comment thereon (CPL 380.50[3] ). “These procedural safeguards ensure that the information on which the Court relies is accurate and that all involved have an opportunity to respond.” People v. Hanson, 99 N.Y.2d 339, 346 (2003).
Although the defendant claims the report was incomplete, he, nevertheless, both personally and through counsel, had an opportunity to make a statement and bring to the Court's attention all of the information and mitigating factors the defendant now claims to have been relevant to the Court's sentencing decision. People v. Walworth, 167 A.D.2d 622 (3rd Dept.1990). A defendant has no statutory right to have any particular information included in a pre-sentence report, and it is the opportunity provided at sentencing for a defendant and defense counsel to bring mitigating factors to the Court's attention that compensate for any such omission in the pre-sentence report. People v. Davila, 238 A.D.2d 625, 626 (3rd Dept.1997). The Court in sentencing the defendant made no reference to any of the subject areas of the pre-sentence report that the defendant now contends contained missing or inaccurate information, which is a strong indication that the Court did not consider these matters to be material in its sentencing decision. People v. Barnes, 60 AD3d 861, at 863–864 (2nd Dept.2009), citing United States v. Stein, 544 F.2d 96, 102 (2d Cir.1976); People v. Dimmick, 53 AD3d 1113 (4th Dept.2008).
It is not clear from the defendant's motion what personal information the defendant contends he wanted provided to the preparer of the pre-sentence report that defense counsel did not put on the record. In defendant's reply papers he states that he could have provided the Probation Department with “personal information regarding his tendency to loan his car to individuals he considered friends on a regular basis,” and other information, “which may have caused the pre-sentence report to raise questions about his culpability” (Defendant's Reply Aff. at 6). Nevertheless, because this information, assuming it all to be true, would not have affected the sentence, these questions are academic.
Despite its alleged short-comings as incomplete, the pre-sentence report does not invalidate the defendant's sentence, because the defendant has not demonstrated that the alleged missing or inaccurate information (even if one was to accept the defendant's assertion that the characterization by the probation officer that defendant “refused to be interviewed” was inaccurate) resulted in the defendant receiving a greater sentence. People v. Vaughn, 20 AD3d 940 (4th Dept.2005), rearg. denied21 AD3d 1442 (2005), lv denied5 NY3d 857 (2005).
The Court's remarks at sentencing in this case clearly established that it was imposing the sentence based on the facts of the case, which, as the Court stated numerous times, showed the Court found no mitigation in defendant's conviction being for felony murder as opposed to intentional murder (S. at 18–19). The Court also stated not once, but twice, that it not only agreed there was sufficient evidence to support the jury's verdict but that had the Court been sitting as the trier of fact it would have come to the same conclusion (S. at 9, 18). See People v. Karlas, 208 A.D.2d 767 (2nd Dept.1994) (defendant's challenge to inaccuracies and omissions not properly before Court where defendant did not seek an adjournment for the preparation of a new report and Court's remarks indicate it was not improperly influenced by any of the challenged statements in the pre-sentence report).
Finally, as the defendant had an opportunity to address the missing information, it does not appear that the defendant's sentence was based on “materially untrue” facts or misinformation. See People v. Hanson, 99 N.Y.2d 339 at 345;People v. Tumerman, 133 A.D.2d 714, 716 (2nd Dept.1987), lv denied,70 N.Y.2d 938 (1987), cert denied485 U.S. 969 (1988).
The Defendant's Reply Alleging Ineffective Assistance of Counsel
The defendant alleges for the first time in his September 21, 2011 reply that he received ineffective assistance of counsel: 1) at sentencing, because although counsel told the defendant not to discuss facts of the case with the probation department, he failed to advise the defendant that he had the constitutional right to have counsel present during the interview rendered the entire sentencing procedure invalid as a violation of due process; and 2) this coincided with counsel's pattern of ineffectiveness in failing to move to re-open the Wade hearing as well as counsel's abandonment of arguing the preclusion by the hearing court of allowing counsel to address a misidentification and failure to identify the defendant in a photo-array by the wife of the deceased. Furthermore, this ineffectiveness continued when defense counsel abandoned the option of requesting an adjournment and informing the Probation Department to have counsel present for the interview instead opting to accept the Court's offer for counsel to tell the Court about defendant's background.
The People's reply letter initially requests the Court to reject the new claims as improperly raised because “[a] party may not raise a claim for the first time in a reply affirmation” (People's reply letter at 1 quoting People v. Adams, 2011 N.Y. Slip Op. 50262 U, *42, 30 Misc.3d 1228A, * *42 [Sup.Ct. N.Y. Cty. Feb. 25, 2011] ).
Second, the People argue that the defendant's initial motion was a motion to set aside the sentence pursuant to CPL 440.20, whereas, the defendant's new claims have nothing to do with the legality of his sentence but, rather, pertain to a challenge to the judgment of conviction which would need to be raised in a CPL 440.10 motion.
Third, the People argue that the defendant's claims regarding counsel's presence at the pre-sentence interview is unsupported by any statutory right (People's reply letter at 2 citingCPL 390.30). Further, “[t]here is no constitutional mandate to permit assistance of counsel at the pre-sentence interview” (People's reply letter at 2 quoting People v. Bogart, 148 Misc.2d 327, 329–33 [Sup.Ct. Richmond Cty. Aug. 31 1990] ).
Additionally the People argue the defendant's claim that his attorney was ineffective for failing to move to reopen the Wade hearing based on certain trial testimony is procedurally barred. This claim is based upon facts appearing in the record that could have been raised on defendant's direct appeal but he unjustifiably failed to do so. SeeCPL 440.10(2)(c).
Although all of the People's procedural arguments provide a valid basis to deny defendant's motion, the Court will, nevertheless, also address the merits of the defendant's reply.
Before a finding can be made that an attorney's performance in representing a defendant at sentencing was so deficient as to warrant vacating the sentence, the defendant must establish that the attorney's deficient performance resulted in the defendant receiving a greater sentence than what otherwise would have been imposed. People v. Cruz, 74 AD3d 471 (1st Dept.2010) (failure of defense counsel to seek further leniency and submit a pre-sentence memorandum did not constitute ineffective assistance of counsel under state and federal standards where there was no reason to believe further information would have made a difference, citing at 472, People v. Benevento, 91 N.Y.2d 708, 713–714 [1998], and Strickland v. Washington, 466 U.S. 668 [1984] );People v. Molyneaux, 49 AD3d 1220 (4th Dept.2008) (defendant did not demonstrate that the sentencing court relied on improper statements in the pre-sentence report); People v. Maisonette, 234 A.D.2d 27 (1st Dept.1996) (no denial of meaningful representation at sentencing where there was no reasonable possibility that counsel could have obtained a more lenient sentence).
Defense counsel had made a lengthy argument regarding the proof at trial in an effort to have the Court set aside the defendant's sentence. This motion was denied immediately prior to the prosecutors's statement at sentencing. Defendant argues that he could have provided the Probation Department with “personal information regarding his tendency to loan his car to individuals he considered friends on a regular basis” and other information regarding his employment that “may have caused the pre-sentence report to raise questions about his culpability” (Defendant's reply at 6). Counsel however, was well aware when he began his statement that the Court was in complete agreement with the jury regarding the defendant's guilt. Based on the court's remarks at sentencing, it seems very clear that any purported missing information regarding the defendant's social history, his loaning his car to people or whether he worked, whether considered individually or collectively, would not have outweighed, in the mind of the sentencing court, the facts of the case, as reflected in the guilty verdict. See People v. Walsh, 119 A.D.2d 780 (2nd Dept.1986) (failure to submit character references or a pre-sentence memorandum does not, in itself, establish ineffective assistance of counsel).
Defense counsel, in making the motion to set aside the verdict, even though it stood virtually no chance of success given the applicable legal standards for such motions, perhaps sought to mitigate the sentence by convincing the court that it should have some “residual doubt” of the defendant's guilt and the possibility of an alternative perpetrator. Where there is some “residual doubt” of guilt, a sentencing authority may be reluctant to impose the maximum sentence. See Franklin v. Lynaugh, 487 U.S. 164, 172–175 (1988) (Federal Constitution does not require a jury in deciding whether to impose the death penalty to consider “residual doubt” of guilt as a mitigating factor); People v. Harris, 177 Misc.2d 165 at 170 (Sup Ct, Kings County 1998) (“Residual doubt is part of human nature.... While no court can expunge instinctive human behavior ... there is no constitutional basis for requiring it to allow defendant to re-litigate the finding of his guilt to establish residual doubt.”). In addition, although defense counsel presented the Court with information regarding the defendant's rehabilitative attempts while incarcerated, stressed the defendant's youth and continued proclamation of his innocence, the principal argument made by defense counsel at sentencing was that the jury had not found an intentional killing but, rather, found the death occurred when a single shot was fired during a struggle between the deceased and the shooter. It is clear from the Court's remarks at sentencing that it found nothing mitigating in the fact the defendant was convicted of felony murder and not intentional murder, just as it is equally clear that the Court had no residual doubt of the defendant's guilt.
The totality of defense counsel's performance at sentence provided “meaningful representation” and in the absence of any showing of actual prejudice to the defendant, defense counsel's purported failures do not warrant vacating the sentence.
Further, although not a substitute for the right to meaningful representation, the defendant had his own opportunity at sentencing to inform the court of any matters he deemed relevant. Instead, the defendant offered condolences to the family and then professed his complete innocence of these crimes and requested a new trial. People v. Singh, 16 AD3d 974, 977–978 (3rd Dept.2005), lv denied,5 NY3d 769 (2005) (defendant had an opportunity to advise the Court of any mitigating factors omitted from the pre-sentence report; defense counsel's failure to do so did not result in a deprivation of meaningful representation).
Accordingly, the defendant's motion is denied in all respects.
SO ORDERED