Opinion
2260-1995.
March 29, 2011.
Robert T. Johnson, Bronx County District Attorney, by Thomas R. Villecco, Esq., Assistant District Attorney, for the People.
Thomas Riley, Pro Se, Marcy Correctional Facility, Marcy, New York, for Defendant.
Pursuant to CPL § 440.20, pro se Defendant Thomas Riley, an inmate at Marcy Correctional Facility in Oneida County, moves to set aside the "persistent violent felony offender" adjudication and sentence imposed upon him for his 1997 conviction for manslaughter in the first degree. Defendant bases his claim upon grounds that he was improperly sentenced as a persistent violent felony offender to a prison term of eleven years to life because of misinformation concerning prior convictions used to enhance his persistent violent felon status. In the alternative, Defendant asks the Court for a hearing to determine whether the sentence should be vacated.
To the extent that previous orders in this case referred to any other crime for which Defendant plead guilty in 1997, those decisions and orders are amended to reflect that Mr. Riley plead guilty to manslaughter in the first degree.
Background
As relevant here, Defendant plead guilty to four felony indictments beginning in 1979.
First, on June 12, 1979, Defendant pled guilty in New York County Supreme Court (Lang, J.) to Indictment No. 2744-1978 for Attempted Criminal Possession of a Weapon in the Third degree (Penal Law 11/265.02). He was sentenced to an indeterminate sentence of one and one half years to three years imprisonment.
Second, on June 21, 1979, Defendant also pled guilty in Bronx County Supreme Court (Levy, J.) to Indictment No. 2458-1978 for Attempted Criminal Possession of a Weapon in the Third degree (Penal Law 110/265.02). He was sentenced, as a predicate felony offender, to an indeterminate term of one and one half years to three years imprisonment to run concurrently with his June 12, 1979 New York County judgment.
Third, on March 22, 1988, Defendant pled guilty in New York County Supreme Court (Berkman, J.) to Indictment No. 1789-1984 for two counts of Attempted Robbery in the Second Degree (Penal Law 110/160.10). He was sentenced, as a second felony offender, to two concurrent indeterminate terms of imprisonment of from two and a half years to five years imprisonment.
Finally, on March 7, 1997, Defendant pled guilty in Bronx County Supreme Court (Davidowitz, J.) to Indictment No. 2260-1995 for Manslaughter in the First Degree (Penal Law 125.20). He was sentenced, as a persistent violent felony offender based upon his 1979 and 1988 New York County convictions, to an indeterminate term of eleven years to life imprisonment.
Conviction Affirmed
The First Department unanimously affirmed Defendant's 1997 conviction, which he attempts to place in issue here, finding that Mr. Riley was properly convicted and sentenced as a persistent violent felony offender (see, People v. Riley, 264 AD2d 689 [1st Dept. 1999]). The Appellate Division found nothing in the plea allocution required the Court to conduct a sua sponte inquiry into any exculpatory statements that Defendant made at sentencing. Likewise, review of the remaining appellate contentions, including review in the interest of justice, was foreclosed by Mr. Riley's valid waiver of his appeal rights.
Defendant's Position
In the instant application, Defendant presents a list of claimed errors that caused the Court under this indictment to erroneously label him a persistent violent felony offender. These errors include:
(1) the prosecutor's failure to file the required predicate felony statements for either or both the 1979 or 1988 New York County convictions;
(2) Defendant's plea to a weapon charge in 1979 was illegal because of the People's failure to indict;
(3) lack of opportunity to challenge legality of his 1988 conviction, and
(4) ineffective assistance of trial counsel.
Defendant maintains that had his counsel properly investigated his criminal record, the prosecutor's failure to file the required documents in the earlier cases would have been discovered.
In light of these irregularities, Defendant says, his sentence must be modified. Allegedly, the Court herein used materially false assumptions and other misinformation to determine his sentencing status (see generally, People v. Outley, 80 NY2d 702). Defendant maintains he met his burden of proving that the Court used inaccurate information during sentencing (see generally, People v. Barnes , 60 AD3d 861 [2nd Dept. 2009]). Further, Defendant says, he did not voluntarily waive his right to challenge the constitutionality of his convictions as predicate felons.
Additionally, Defendant says he was unaware in 1988 when agreeing to plead guilty to Indictment No. 1789-1984 for Robbery in the Second Degree, that he had a right to challenge his predicate felony status. Had Defendant known, he would have objected.
Finally, concerning the 1979 guilty plea to Attempted Criminal Possession of a Weapon in satisfaction of Indictment No. 2458-1978, Defendant claims his plea is illegal because he was not indicted for a weapon offense. Additionally, Defendant maintains he objected to one of the felony convictions at the 1997 sentencing and says his counsel mislead him that his objections were being resolved (Exhibit 9). Therefore, he had no reason to confront those charges at the time of sentencing (Exhibit 1).
In summary, Defendant says his sentence must be set aside because he was denied due process when sentenced as a persistent violent felony offender based upon his constitutional objections to his prior convictions (see generally, People v. Naranjo, 89 NY2d 1047). Likewise, a significant factor in denial of his due process rights was ineffective assistance of his trial counsel. Likewise, he should not have been treated as a prior felony offender based upon § 2(b) of Ch. 481, Laws of 1978.
Prosecutor's Position
In opposition, the prosecutor rejects Defendant's motion as meritless in all respects because Defendant properly received persistent violent felony offender treatment under CPL § 70.08. Beside the fact that the First Department affirmed Mr. Riley's conviction and sentence status, this Court lacks jurisdiction to review claims concerning legality of Defendant's 1979 guilty plea to Attempted Criminal Possession of a Weapon in the Third Degree because the purported error arises in a case in another county. This includes the claim that the District Attorney failed to file predicate felony statements in the 1979 and 1988 cases in New York County (see, CPL § 440.10) (see generally, People v. Mitchell , 15 NY3d 93 ). Regardless, no error exists in the guilty plea because an indictment encompasses all lesser included offenses, particularly where an "attempt to commit" that offense is involved (see, CPL § 1.20(37) and CPL § 220.20).
Penal Law § 70.08(1)(a) defines "persistent violent felony offender," in relevant part, as a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02. . . .after having previously been subjected to two or more predicate violent felony convictions as defined in paragraph (b) of subdivision one of section 70.04 of this article.
Additionally, the District Attorney disputes Defendant's version of the facts in this case. In contrast to Defendant's claims that the prosecutor failed to file an appropriate statement concerning prior convictions, the sentencing minutes show the Part Clerk reading the Prosecutor's persistent violent felony offender statement to Defendant. The Part Clerk asked Defendant whether he contested the District Attorney's statement (see, Exhibit 2, pp. 1 — 4) and Defendant affirmatively declined to challenge (Exhibit 2, pp. 3 and 4).
Turning to whether trial counsel was incompetent because of reliance upon the prosecutor's representations that required predicate felony statements were filed, the prosecutor dismisses Defendant's claim. To the contrary, Defendant was actively engaged with his counsel during sentencing (Exhibits 1, 2, 3, and 9). Defendant was fully aware of his counsel's and the prosecutor's representations (see generally, People v. Ford, 86 NY2d 397). Further, the issue can only be properly raised by a CPL § 440.10 motion to vacate judgment and not in this proceeding. In fact, the issue was discussed by the First Department when the 1997 conviction was affirmed in People v. Riley, supra.; the Appellate Division found Mr. Riley was properly convicted and sentenced as a persistent violent felony offender. The appeals court found nothing in Defendant's plea allocution to cast doubt upon his guilt and no obligation existed to conduct any inquiry into allegedly exculpatory statements made at sentencing.
Reply
In response, Defendant vigorously reemphasises that the District Attorney failed his burden to prove the persistent violent felon classification. Further, according to Defendant, this Court has subject matter jurisdiction because Defendant was convicted in 1979 in both Bronx County and New York County (Exhibit 1, pp. 2 and 3; Exhibit 2), thereby enabling it to review all errors. Additionally, he claims, there is no evidence that Defendant was not falsely adjudicated a persistent violent felony offender, including no evidence that the District Attorney filed the required persistent violent felon statements during prior sentencing. Finally, he rearticulates the argument that he was illegally convicted of a weapon violation when he plead guilty to his 1979 conviction because he was never indicted under a weapon statute.
The sentencing minutes for Index No. 2458-78 indicates that the District Attorney filed a predicate felony statement at sentencing. The filing was amended to read New York County Supreme Court with Defendant's consent (Exhibit 3, pp. 2 and 3). Defendant waived his right to contest the use of the conviction in subsequent prosecutions (Exhibit 3, p. 4). Defendant was unable to locate the sentencing minutes for Index No. 2744-1978 (guilty plea to attempted criminal possession of a weapon in 3rd degree (Exhibits 4 and 5).
Stated another way, the prosecutor presented no evidence that Defendant was not falsely adjudicated as a persistent violent felon offender and was not wrongly sentenced, because the conviction for criminal possession of a weapon, rendered in Bronx County Supreme Court in 1979, was invalid and, thus, cannot serve as a basis for finding Defendant subject to classification as a persistent violent felony offender.
Legal Discussion
A motion to set aside a sentence pursuant to CPL § 440.20 applies to a sentence which is unauthorized, illegally imposed, or otherwise invalid as a matter of law (see generally, People v. Minaya, 54 NY2d 360, cert. denied, 455 US 1024[1982]). Defendant's sentence is none of these.
CPL § 400.16 provides the procedure for determining whether a defendant is a persistent violent felony offender. CPL § 400.15 provides that where a finding is made that a defendant is a second violent felony offender, such finding will be binding upon that defendant in any future proceeding in which the issue may arise. Here, at the time of his plea and sentence, Defendant was properly adjudicated a persistent violent felony offender based upon his prior convictions.
The Court concludes that Defendant was properly sentenced as a mandatory persistent violent felony offender. Specifically, he gained that status based upon his 1979 and 1988 convictions in New York County in Indictment No. 2744-1978 and Indictment No. 1789-1984 (Exhibit 2, p. 4). More importantly, before final sentencing, Defendant's counsel advised the Court, following conferring with Defendant, that Mr. Riley was not contesting persistent violent felon status in this case (Exhibit 9, p. 13). The mandatory persistent violent felony offender statement, in fact, was filed on March 7, 1997 (Exhibit 1) and Defendant waived any right to controvert any allegations in the prosecutor's statement at that time (Exhibit 1) (see generally, People v. Alston , 1 AD3d 627 [3rd Dept. 2003]); People v. Seifert, 209 AD2d 555 [2nd Dept. 1994]). Thus, Defendant's challenge to the determination that he was a mandatory persistent violent felony offender is foreclosed (see generally, People v. Moore , 48 AD3d 222 [1st Dept. 2008]). Accordingly, Defendant fails to establish a basis for his sentence to be set aside.
A second reason the Court will not disturb Defendant's classification is that the Appellate Division already reviewed the issue of classification as has the federal district court (see, Riley v. Goord, 2003 US Dist. Lexis 22644 [SD NY 2003]). Finally, the Court agrees with the prosecutor's position that this Court lacks the ability to review trial courts in New York County in this case (see generally, People v. Mitchell , 15 NY3d 93 ). The Court where the judgement was entered has jurisdiction to vacate or set aside the sentence upon the ground that it was unauthorized, illegally imposed, or otherwise invalid as a matter of law (see generally, CPLR §§ 440.10(1) and 440.20(1). Under these circumstances, the New York County matters are unreviewable in this Court.
Ineffective Assistance of Counsel
The Court next turns to Defendant's claim that his persistent violent felony classification be set aside upon grounds that Mr. Riley received ineffective assistance from his trial counsel. Defendant says his attorney negligently accepted the prosecutor's version of Defendant's prior criminal convictions without further investigation. Consequently, had counsel properly investigated, Defendant maintains he would not have been labeled a persistent violent felon.
The Court rejects Movant's ineffective assistance argument. As previously discussed, the sentencing transcript shows (1) Defendant involved with his attorney during reading of the District Attorney's felony statement, and (2) Defendant's knowing waiver of his right to challenge the prosecutor's statement. Based upon these facts and the fact that insufficient evidence exists supporting any claim of ineffective assistance, this branch of Defendant's motion is denied. To the contrary, the evidence presented shows Defendant received meaningful representation at all stages of his case.
Even if the Court deemed this branch of Defendant's relief to be a motion to vacate the judgment of conviction pursuant to CPL § 440.10 based upon ineffective assistance of counsel, the motion would be denied because Defendant's claim that his attorney was ineffective is unsupported by anything other than his bald assertion.
Hearing
With respect to the alternative branch of Defendant's motion, seeking a hearing to determine whether he was improperly adjudicated a persistent violent felony offender, Defendant's relief is denied. On this record, the Court finds that Defendant sets forth no grounds upon which to set aside his persistent violent felony offender classification. Accordingly, Defendant's motion is in its entirety denied.
In deciding the instant motion, the Court read Defendant's Notice of Motion and Affidavit in Support of CPL § 440.20 Motion to Set Aside Sentence and For Permission to Proceed as a Poor Person with Exhibits; Affirmation in Opposition of Thomas R. Villecco, Esq., with exhibits; and Defendant's Reply.
The foregoing constitutes the Decision and Order of the Court.
The Court disposed of the branch of Defendant's motion requesting leave to proceed as a poor person in a separate Decision and Order previously issued.