Opinion
7519/1998.
October 28, 2008.
DECISION AND ORDER
By Notice of Motion, dated August 22, 2007, the defendant, Carl Vasquez, requests an order setting aside his sentence of twelve years to life imprisonment on the grounds that his sentence was "unauthorized, illegally imposed or otherwise invalid as a matter of law" pursuant to C.P.L. § 440.20(1).
Background
Pursuant to a plea agreement entered into on May 19, 1999, the defendant was convicted of Attempted Burglary in the Second Degree (P.L. § 140.25), a class D felony. On the same day, defendant was served by the District Attorney with a statement pursuant to C.P.L. § 400.16, which listed three prior violent felony convictions and one prior non-violent felony conviction: two prior convictions for burglary in the second degree, a conviction for attempted burglary in the second degree and a conviction for burglary in the third degree. Defendant admitted to the prior violent felony convictions and admitted that he was afforded his constitutional rights at those judicial proceedings. He was thereupon adjudicated a mandatory persistent violent felony offender by this court pursuant to Penal Law § 70.08. On June 23, 1999, defendant was sentenced to the promised term of twelve years to life imprisonment. Defendant is presently incarcerated.
In pro se motion papers dated August 22, 2007, defendant now seeks to have this court set aside his sentence pursuant to Criminal Procedure Law § 440.20 on the grounds that: (1) the court failed to follow the proper procedures required under C.P.L. § 400.16 in adjudicating him a persistent violent felony offender and (2) that defendant's enhanced sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and in violation of defendant's Sixth Amendment rights. Specifically, the defendant alleged that his sentence was enhanced based on facts not found by a jury or included in his indictment.
In their "Affirmation in Opposition to Motion to Set Aside Sentence" dated December 14, 2004, the People argue that the rule of Appendi does not apply to the case at bar. Most notably, the People point out that Mr. Vasquez was given an enhanced sentenced based on his adjudication as a mandatory persistent violent felony offender under C.P.L. § 400.16. The People argue that Apprendi, and the rules established by it's progeny; Ring v. Arizona, 536 U.S. 584 (2002) (determination of presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty solely by judge, rather than jury, violates Sixth Amendment), Blakely v. Washington, 542 U.S. 296 (2004) (upward departure from sentencing guidelines by judge based solely on judge's finding of deliberate cruelty and not based on facts either admitted by defendant nor found by a jury violate defendant's Sixth Amendment rights) and Cunningham v. California, 549 U.S. 296 (2007) (California's determinate sentencing law, which authorized judge, not jury, to find facts exposing defendant to elevated upper term sentence violated defendant's Sixth Amendment rights), clearly stand for and further bolster the proposition first espoused in Almendarez-Torres v. United States, 523 U.S. 224 (1998), as further ratified by Apprendi, that "[e]xcept for a prior conviction, any fact that increases the penalty of a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 489 (emphasis added); see also Almendarez-Torres, 523 U.S. 224 (1998) (judge may constitutionally consider the fact of a prior conviction in enhancing a sentence beyond the statutory maximum without violating a defendant's Sixth Amendment rights).
For the reasons set forth below, defendant's motion is denied.
Discussion
Turning to defendant's first argument, defendant asserts that the court failed to follow the statutory procedures required in adjudicating the defendant to be a discretionary persistent felony offender. Defendant correctly states that under C.P.L.§ 400.20 there is a two-pronged process which the court must perform before adjudicating a defendant a discretionary persistent felony offender: First, the court must determine if the defendant can be classified as a persistent felony offender under the Penal Law, and second, the court must determine on the record if "it is of the opinion that the history and character of the petitioner are such that extended incarceration and lifetime supervision of the petition are warranted to best serve the public." C.P.L. § 400.20. However, this statutory procedure is inapplicable to defendant's case.
Defendant was not sentenced as a discretionary persistent felony offender under C.P.L. § 400.20, under which such a procedural scheme would be applicable, but rather as a mandatory persistent violent felony offender under C.P.L. § 400.16. Under Section 400.16, upon an uncontroverted finding that the defendant "has previously been subject to two or more predicate violent felony convictions", this court was required to find Mr. Vasquez a persistent violent felony offender and was therefore also required to sentence the defendant to an "indeterminate sentence of imprisonment, the maximum term of which shall be life imprisonment." P.L. § 70.08.
This court finds no evidence that the court did not follow the procedures set out in the law exactly as required for this defendant. According to the plea minutes and a copy of the statement of prior criminal history produced by the District Attorney, defendant had three prior predicate violent felony convictions. The People followed the statutory filing and service procedures of C.P.L. §§ 400.15 and 400.16; defendant, advised by counsel, admitted he was the person who had been convicted of the prior violent felony offenses mentioned in the statement and that the convictions were constitutionally obtained; and this court, having uncontroverted evidence before it that defendant had three times previously been convicted of predicate violent felony offenses, followed the dictate of the statute and determined that defendant was subject to sentencing as a mandatory persistent violent felony offender. (Plea Mins. Tr. 17-19, lines 20-10, May 19, 1999). Based on those facts, this court finds there was no procedural defect in Mr. Vasquez's adjudication as a mandatory persistent violent felony offender.
Turning to the defendant's second argument, defendant asserts that the enhancement of his sentence was illegal under Apprendi and in violation of defendant's Sixth Amendment rights. In that case, the Supreme Court held that the Sixth Amendment and due process requires that a factual determination authorizing an increase in the maximum prison sentence must be made by the jury, not the sentencing court. Apprendi, 530 U.S. at 482-485, 492-497. However, the Court in Apprendi also clearly noted that a jury did not have to be involved if the sentence were increased solely as a result of prior convictions, a legal principle first established by the Court in Almendarez-Torres. Apprendi, 530 U.S. at 489. Since that time the Court has never overturned, and has repeatedly reaffirmed Apprendi's recidivism exception. See Cunningham v. California, 549 U.S. 270 (2007); Blakely v. Washington, 542 U.S. 296 (2004); Ring v. Arizona, 536 U.S. 584 (2002).
Moreover, the New York Court of Appeals has consistently recognized the continued vitality of the Almendarez-Torres principle as reaffirmed by Apprendi and its progeny. In People v Rivera, 5 N.Y.3d 61 (2005), the Court of Appeals stated "the
Supreme Court has held that a judge (as opposed to a jury) may find the fact of a defendant's prior conviction without violating the Sixth Amendment. Id. at 67 (citing Almendarez-Torres); see also People v. Rosen, 96 N.Y.2d 329 (2001) (Sixth Amendment affords no constitutional right to a jury trial to establish fact of a prior conviction in challenges to persistent felony offender laws). Lastly, New York's appellate courts have specifically upheld the constitutionality of New York's mandatory persistent violent felony offender sentencing scheme of P.L. § 70.08 against Sixth Amendment challenges under Apprendi. See People v. Boyer, 6 N.Y.3d 427 (2006) (rejecting appellant's contention that persistent violent felony offender statute is unconstitutional under Apprendi principles); People v. Leon, 10 N.Y.3d 122 (2008) (the finding that the defendant was convicted of prior violent felonies and therefore subject to sentencing as persistent violent felony offender not impermissible finding of fact under Apprendi); People v. Licea, 44 A.D.3d 690 (2d Dept. 2007)("Defendant's contention that his resentencing as a PVFO violated his constitutional rights pursuant to Apprendi is without merit"). Because defendant's enhanced sentence was solely the result of the defendant being adjudicated a mandatory persistent violent felony offender, the enhanced sentence in no way violates defendant's Sixth Amendment rights and comports with the holding of Apprendi and its progeny.
Conclusion
For all of the foregoing reasons, defendant's motion to set aside his sentences is denied pursuant to C.P.L. § 440.30(4)(a).
This constitutes the decision and order of this court.
The defendant is hereby advised of his right to appeal to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York, 11201.