Opinion
4751/1982.
December 12, 2008.
DECISION AND ORDER
The defendant moves pro se, pursuant to CPL § 440.20, to set aside his sentence upon the ground that it was invalid as a matter of law.
In deciding this motion, the Court has considered the moving papers, the People's response papers, a copy of the sentencing minutes of March 1, 1994, a copy of the defendant's first CPL § 440.20 motion, the People's answer thereto, the first CPL § 440.20 decision dated October 7, 1994, and the court file.
Background
On February 1, 1994, the defendant was found guilty of Attempted Murder in the Second Degree, a class "B" violent felony, by a jury. The defendant challenged his prior convictions as predicates for enhanced sentencing.
On March 1, 1994, the defendant filed a motion attacking the prior convictions as a basis for a finding that he was a mandatory violent persistent felon. A hearing was held prior to his sentencing. In response to the defendant's motion, the People submitted two certificates of conviction. The first certificate of conviction established that, on September 28, 1989, the defendant had been convicted, under the alias, "Kerry Smith", of Attempted Burglary in the Second Degree, a class "D" violent felony, and had been sentenced to a jail term of one year. The second certificate of conviction established that on April 12, 1991, the defendant had been convicted of Attempted Criminal Possession of a Weapon in the Third Degree, a class "E" violent felony, and had been sentenced to one and one half (1 1/2) to three years imprisonment.
In 1991, after the defendant pleaded guilty to Attempted Criminal Possession of a Weapon in the Third Degree, he was arraigned as a predicate and admitted his previous felony conviction, i.e. the 1989 Attempted Burglary conviction. He was adjudicated a second violent felony offender.
At his sentencing in 1994 on the Attempted Murder conviction, the defendant argued that the plea allocution in the 1991 case was insufficient and that the 1989 conviction was "improper." The sentencing court rejected these arguments and adjudicated the defendant a persistent violent felony offender. Thereafter, the defendant was sentenced to twenty (20) years to life. He is presently incarcerated pursuant to this judgment.
The defendant filed an appeal of this judgment with the Appellate Division, Second Department. Before filing his appellate brief, the defendant moved, pro se, pursuant to CPL § 440.20, to set aside his sentence. The defendant argued that his "persistent felony offender" sentence was unauthorized and invalid in that the court had failed to conduct a hearing pursuant to CPL § 400.20 and that the court erred in considering the 1989 Attempted Burglary conviction in adjudicating him a "persistent felony offender" in that the sentence imposed on that conviction was not in excess of one year as required in CPL § 70.10(1)(b)(i). The defendant further argued that the plea allocution in the 1989 Attempted Burglary conviction was insufficient and that he received ineffective assistance of counsel at the sentencing proceeding.
In response, the People argued that PL § 70.10 was not applicable because the defendant was a persistent violent felony offender and had been correctly sentenced under the provisions of PL § 70.08.
On October 7, 1994, the sentencing court summarily denied the defendant's motion to set aside the sentence.
On March 14, 1995, the Appellate Division granted the defendant'spro se motion for leave to appeal the sentencing court's denial of his motion to set aside the sentence.
In the defendant's appellate brief, on the appeal of the denial of his CPL § 440.20 motion to set aside his sentence, the defendant argued that the sentencing court had improperly denied his motion as the prior plea allocutions were insufficient and that the court should have held a hearing on his claim that he had received ineffective assistance of counsel.
On October 30, 1995, the Appellate Division unanimously affirmed the defendant's judgment of conviction and the sentencing court's order denying the defendant's motion to set aside the sentence. People v. Murreld, 220 AD2d 780 (2d Dept. 1995). The Appellate Division held that "the defendant's failure to challenge the constitutionality of his 1989 violent felony conviction at the time of his 1991 arraignment as a second violent felony offender constituted a waiver of his right to challenge the 1989 conviction at this time." The Appellate Division further found that the defendant's remaining contentions were without merit.
On December 13, 1995, the Court of Appeals denied leave to appeal.People v. Murreld, 87 NY2d 905 (1995).
The defendant now again moves to set aside his sentence pursuant to CPL § 440.20. The defendant contends that the sentencing court had improperly adjudicated him a persistent violent felony offender in violation of PL §§ 70.04, 70.08 and 70.10.
The defendant specifically asserts that his sentence was invalid as a matter of law because the sentencing court had improperly relied on his 1989 Attempted Burglary conviction, for which he had received a jail sentence of only one year, to adjudicate him a persistent violent felony offender. He argues that PL § 70.04(1) (b) specifically requires that a sentence in excess of one year must have been imposed on the prior conviction to qualify that prior conviction as a predicate for finding him a persistent violent felony offender.
The defendant also generally contends that the sentencing court failed to satisfy the mandatory requirements of CPL § 400.20.
The People assert that the defendant's claims are procedurally barred because they were raised in his first CPL § 440.20 motion and had been denied on the merits. Moreover, the People assert that the defendant's claims are, in any event, meritless.
LAW
CPL § 440.20(1) permits a court on motion by the defendant to set aside a "sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law."
CPL § 440.20(3) provides that the court may deny a motion to set aside the sentence when "the ground or issue raised thereupon was previously determined on the merits upon a prior motion or proceeding in a court of this state . . . unless since the time of such determination there has been a retroactively effective change in the law controlling such issue. Despite such determination, however, the court in the interest of justice and for good cause shown, may in its discretion grant the motion if it is otherwise meritorious."
CPL § 440.30(4) (a) provides that the court may deny a motion to set aside a sentence without conducting a hearing if "[t]he moving papers do not allege any ground constituting legal basis for the motion."
The defendant's contention that his sentence was invalid as a matter of law because the sentencing court improperly relied on his 1989 Attempted Burglary conviction in violation of PL § 70.04(1) (b) is without merit.
Contrary to the People's contention, this argument was not resolved by the defendant's first CPL § 440.20 motion. In that motion, the defendant argued that the sentencing court could not use his 1989 Attempted Burglary conviction to enhance his sentence as a persistent felony offender because PL § 70.10 (1) (b) (i), a different statute, specifically required the imposition of a sentence in excess of one year. Thus, there is no procedural bar to this argument.
A persistent violent felony offender is "a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02 . . . after having been previously subjected to two or more predicate violent felony convictions as defined in paragraph (b) of subdivision one of section 70.04 of this article." PL § 70.08 (1) (a).
In determining whether a person has two or more predicate violent felony convictions, the court is directed to apply the criteria set forth in Penal Law § 70.04(1)(b). PL § 70.08(1)(b).
Penal Law 70.04 (1) (b) (i) provides that:
"[t]he conviction must have been in this state of a class A felony . . . or of a violent felony offense defined in subdivision one of section 70.02, . . . for which a sentence to a term of imprisonment in excess of one year was authorized and is authorized in this state irrespective of whether such sentence was imposed." [emphasis added].
Contrary to the defendant's contention, in determining whether a prior conviction constitutes a predicate violent felony conviction, PL § 70.04(1)(b)(i) does not require the imposition of a sentence in excess of one year. All this statute requires is that the prior conviction must have been for a violent felony offense as defined in PL § 70.02(1) for which a sentence of one year or more was authorized. The actual sentence imposed is immaterial.
In this case, the defendant had been convicted of Attempted Murder in the Second Degree, a class "B" violent felony, by a jury. In accordance with Penal Law §§ 70.04 and 70.08, the sentencing court properly found that the 1991 Attempted Criminal Possession of a Weapon in the Third Degree conviction, a class "E" violent felony, and the 1989 Attempted Burglary in the Second Degree conviction, a class "D" violent felony, were valid predicate violent felony convictions. Thus, the sentencing court properly adjudicated the defendant a persistent violent felony offender.
The defendant's argument that the sentence is invalid as a matter of law because the sentencing court failed to satisfy the mandatory requirements of CPL § 400.20 is procedurally barred (CPL § 440.20 [3]) and is without merit.
This issue was raised in his first CPL § 440.20 motion before the sentencing court. Although the sentencing court did not expressly reach this issue in its CPL § 440.20 decision, it did implicitly decide the issue. In their response papers to the first CPL § 440.20 motion, the People had correctly pointed out that PL § 70.10 was not applicable. The People had moved to have the defendant sentenced as a mandatory persistent violent felon and not as a discretionary persistent felony offender which would have triggered the requirements of PL § 70.10. Thus, the sentencing court, in deciding the first CPL § 440.20 motion, clearly rejected the defendant's assertion that CPL § 400.20, the procedural scheme for finding a defendant to be a discretionary persistent felony offender, was inapplicable.
Moreover, the defendant's contention is meritless as the sentencing court properly adjudicated the defendant a persistent violent felony offender after having conducted a hearing pursuant to CPL § 400.16, the procedural mechanism for determining whether a defendant is a mandatory violent persistent felon.
Finally, the defendant, in his reply papers, asserts new grounds for finding the sentence invalid as a matter of law. CPL § 440.20 does not afford a movant any right to submit a reply. People v. Calhoun, 2 Misc3d 1009(A) (County Ct., Oswego Co. 2003); People v. Alexander, 6 Misc3d 1026(A) (Sup.Ct., Bronx Co. 2005).
The defendant has not obtained the Court's permission to submit a reply. "Even where permitted, `the function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion.'" People v. Alexander, supra, quoting Dannasch v. Bifulco, 184 AD2d 415, 417 (1st Dept. 1992) . Thus, the Court will not address any new claims on this motion.
Based on the foregoing analysis, the defendant's motion to vacate the sentence is denied in that the sentence imposed was not unauthorized, illegally imposed or invalid as a matter of law.