Opinion
2014-05-9
The PEOPLE of the State of New York, Respondent, v. Richard F. MILLS, Defendant–Appellant.
Kathleen E. Casey, Barker, for Defendant–Appellant. Richard F. Mills, Defendant–Appellant Pro Se.
Kathleen E. Casey, Barker, for Defendant–Appellant. Richard F. Mills, Defendant–Appellant Pro Se.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Defendant was convicted upon a jury verdict of, inter alia, attempted murder in the first degree (Penal Law §§ 110.00, 125.27[1][a][i] ) and attempted assault in the first degree (§§ 110.00, 120.10). He appeals from a resentence with respect to the attempted assault conviction. During the resentencing proceeding, County Court, with the consent of the People ( see§ 70.85), imposed the same sentence that was originally imposed, i.e., without a period of postrelease supervision ( [PRS] seeCorrection Law § 601–d [4], [5] ).
Initially, we note that defendant raises contentions in his pro se supplemental brief related to the underlying conviction. “Where, as here, the resentence is conducted for the purpose of rectifying a Sparber error—that is, an error in failing to impose a required period of PRS ( see People v. Sparber, 10 N.Y.3d 457, 464–465, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] )—‘[t]he defendant's right to appeal is limited to the correction of errors or the abuse of discretion at the resentencing proceeding’ ” ( People v. Howard, 96 A.D.3d 1701, 1702, 946 N.Y.S.2d 823,lv. denied19 N.Y.3d 1103, 955 N.Y.S.2d 558, 979 N.E.2d 819, quoting People v. Lingle, 16 N.Y.3d 621, 635, 926 N.Y.S.2d 4, 949 N.E.2d 952;see People v. Campbell, 111 A.D.3d 1253, 1254, 974 N.Y.S.2d 205). Consequently, defendant's contentions in his pro se supplemental brief with respect to the original judgment of conviction are not properly before us ( see generally People v. Alvarado, 109 A.D.3d 1185, 1185, 971 N.Y.S.2d 634,lv. denied22 N.Y.3d 1086, 981 N.Y.S.2d 672, 4 N.E.3d 974;People v. Coble, 17 A.D.3d 1165, 1165, 794 N.Y.S.2d 549,lv. denied5 N.Y.3d 787, 801 N.Y.S.2d 807, 835 N.E.2d 667).
Defendant further contends that the court erred in conducting the resentence in his absence and without assigning counsel ( seeCorrection Law § 601–d [4][a]; CPL 380.40[1]; see also People v. Robinson, 111 A.D.3d 963, 963–964, 975 N.Y.S.2d 464). That contention is not properly before us because we may only “consider and determine any question of law or issue of fact involving error or defect ... which may have adversely affected the appellant” (CPL 470.15[1] ). Here, the only issue presented at resentencing was whether the court would impose a period of PRS, and the District Attorney had already informed the court and defendant in writing that the People would consent to the reimposition of the original sentence, i.e., without a period of PRS. Inasmuch as the court reimposed that original sentence, “defendant was not adversely affected by any error, because the result, i.e., freedom from having to serve a term of PRS [with respect to this count of the indictment], was in his favor” ( People v. Covington, 88 A.D.3d 486, 486, 930 N.Y.S.2d 190,lv. denied18 N.Y.3d 858, 938 N.Y.S.2d 865, 962 N.E.2d 290).
Finally, defendant's contention that Penal Law § 70.85 is an unconstitutional ex post facto law is not properly before us inasmuch as he failed to notify the Attorney General that he would be raising that contention ( see People v. Williams, 82 A.D.3d 1576, 1578, 919 N.Y.S.2d 608,lv. denied17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808;People v. Whitehead, 46 A.D.3d 715, 716, 848 N.Y.S.2d 657,lv. denied10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269;see generally Koziol v. Koziol, 60 A.D.3d 1433, 1434–1435, 878 N.Y.S.2d 524,appeal dismissed13 N.Y.3d 763, 886 N.Y.S.2d 864, 915 N.E.2d 1161). In any event, we note that defendant, in the context of a prior habeas corpus proceeding challenging his resentencing, previously raised his contention that the statute is unconstitutional, and we rejected it on the ground that it is without merit ( see People ex rel. Mills v. Lempke, 112 A.D.3d 1365, 1366, 978 N.Y.S.2d 511,lv. denied22 N.Y.3d 864, 2014 WL 1243518;see also People v. Pignataro, 22 N.Y.3d 381, 387, 980 N.Y.S.2d 899, 3 N.E.3d 1147,rearg. denied22 N.Y.3d 1135, 983 N.Y.S.2d 491, 6 N.E.3d 611;People v. Hibbert, 114 A.D.3d 1134, 1134, 979 N.Y.S.2d 884).
It is hereby ORDERED that the resentence so appealed from is affirmed. All concur except FAHEY, J., who dissents and votes to reverse in accordance with the following Memorandum:
I respectfully dissent and would remit the matter for a further resentencing of defendant. My analysis begins with CPL 380.40(1), which plainly provides that, “[i]n general ... [,] the defendant must be personally present at the time sentence is pronounced.” CPL 380.50(1), in turn, considers statements at the time of sentencing, and it provides, inter alia, these mandates: “At the time of pronouncing sentence, the court must accord the prosecutor an opportunity to make a statement with respect to any matter relevant to the question of sentence. The court must then accord counsel for the defendant an opportunity to speak on behalf of the defendant. The defendant also has the right to make a statement personally in his or her own behalf, and before pronouncing sentence the court must ask the defendant whether he or she wishes to make such a statement.”
Both CPL 380.40(1) and CPL 380.50(1) apply to resentences ( see People v. Green, 54 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415;People v. Aloi, 78 A.D.3d 1546, 1547, 910 N.Y.S.2d 796;People v. Dennis [Appeal No. 2], 6 A.D.3d 1211, 1212, 775 N.Y.S.2d 701. Moreover, the legislature built no exception for futility or arrogance—which is a fair characterization of defendant's behavior—into CPL 380.40 or CPL 380.50, and I do not believe that we should find one here. To the extent that the First Department overlooked those statutes in the Sparber case of People v. Covington, 88 A.D.3d 486, 486–487, 930 N.Y.S.2d 190,lv. denied18 N.Y.3d 858, 938 N.Y.S.2d 865, 962 N.E.2d 290;see People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459), I conclude that we should not rely on that precedent, but instead should honor and adhere to the sentencing procedures mandated by the legislature. There is no statutory basis for the exception proposed by the majority. The right to speak at one's resentencing should be deemed fundamental.