Opinion
0003062/2006.
December 21, 2007.
DECISION AND ORDER
Defendant moves pro se pursuant to CPL 440.20 to set aside his sentence on the grounds that his sentence is unduly harsh and excessive, that the search of his vehicle was illegal, that the charge of criminal possession of a weapon in the third degree was fatally defective in that there was no evidence that Defendant intended to use the weapon unlawfully and that his counsel was ineffective for failing to object or raise these issues at the time of the plea.
FACTS
Defendant was indicted for Criminal Possession of a Weapon in the Third Degree, Criminal Possession of a Weapon in the Fourth Degree and Unlawful Possession of Marijuana. The following evidence was adduced before the Grand Jury. On April 13, 2006 at approximately 11:30 p.m., Police officers Steven Maddrey and Vaughan Ettienne observed Defendant seated in the driver's seat of a 1997 Ford Taurus, CT plate number 895SYS, double-parked with the engine running, at the intersection of 55th Street and Church Avenue. His girlfriend Rachel Gray was seated in the passenger seat. Officer Maddrey ran the plate number and learned that the plate was registered to a 1999 Chevrolet Beretta under the name of Oliveira Susie. Officer Maddrey thereupon approached the vehicle to conduct a traffic stop. Upon Officer Maddrey's request for the license and registration, Defendant responded that he did not have a driver's license nor did he have the registration for the vehicle. Officer Ettienne was on the passenger side of the vehicle, and upon shining his flashlight into the car, observed the back of a silver .380 semi-automatic gun between the front driver and passenger seats. The gun was recovered and Defendant was placed under arrest. Officer Maddrey recovered a ziplock bag of marijuana from Defendant's person.
Defendant was arraigned on the indictment on July 12, 2006. On September 7, 2006, Defendant pled guilty to Count 1 of the Indictment, Criminal Possession of a Weapon in the Third Degree. In return for his plea, after counsel submitted a Pre-Pleading Memorandum for the Court's consideration of a sentence below the statutory minimum of a determinate two-year period of incarceration (P.L. §§ 60.01 [a], 70.02 [3] [c]), the Court found mitigation (P.L. §§ 70.02 [c], [4] [b]) and permitted Defendant to enter the Fortune Society program. Upon successful completion of the Fortune Society program, Defendant would be sentenced to a period of intensive supervision probation. The case was scheduled for an update from the Fortune Society on November 3, 2006. In a letter dated November 1, 2006, the Fortune Society informed the Court that Defendant had not returned to the program since September 13, 2006. Defendant did not appear in court on November 3, and a bench warrant was ordered. Defendant was returned on the warrant on February 7, 2007. On February 9, the Fortune Society reported to the Court that Defendant had never appeared. Defense counsel requested that the Pre-Pleading Memorandum stand as the pre-sentence report. On March 2, 2007, Defendant retained new counsel and the case was adjourned to April 13, 2007, for sentence. Counsel was given an opportunity to provide written submissions to the Court. No submissions were received. On April 13, 2007, Defendant was sentenced to six years incarceration with three years post-release supervision.
CONCLUSIONS OF LAW
Defendant's claim that his sentence is excessive and should be reduced is denied as it is not a recognizable ground for relief under C.P.L. § 440.20. That statute authorizes post- conviction motions to set aside a sentence where the sentence was unauthorized, illegally imposed, or otherwise invalid as a matter of law and does not encompass excessive sentence claims, which must be raised on direct appeal. See People v. Cunningham, 305 AD2d 516 (2nd Dep't, 2003);People v. Boyce, 12 AD3d 728 (3rd Dep't, 2004), lv. denied, 4 NY3d 741 (2004).
With respect to Defendant's claims that the search of his vehicle was illegal and that the charge of criminal possession of a weapon in the third degree was fatally defective for lack of evidence of intent to use the weapon unlawfully, Defendant, by pleading guilty, gave up the right to contest the legality of police action in recovering the evidence, and the right to raise any defense to the charges. In any event, Defendant is mistaken in his argument that intent to possess the weapon unlawfully is an element of Criminal Possession of a Weapon in the Third Degree. Intent is not an element of third degree possession; the offense is complete upon possession of a weapon outside the home or place of business. Defendant's contention that his counsel was ineffective for failing to raise these issues is therefore without basis.
As to Defendant's contention that the Court erred in imposing a jail sentence, defendant violated the plea agreement by failing to report at all to the Fortune Society, and then failing to appear in court on the date set for the Fortune Society progress report. Defendant was told at the time of the plea that the promised sentence of intensive supervision probation was conditioned upon successful completion of the Fortune Society program, and that if he failed to comply with the conditions he would be facing a sentence of incarceration of seven years in prison. Defendant does not dispute that he never reported to the Fortune Society, in violation of the plea agreement. See People v. Valencia, 3 NY3d 714 (2004).
Conditions imposed as part of a plea arrangement are valid if the parties agree to them and they do not violate any statute or contravene public policy. People v. Avery, 85 NY2d 503 (1995). Conditional sentence promises have consistently been upheld even where long-term monitoring of the defendant's activities was required. See People v. Outley,
80 NY2d 702, 713 (1993); People v. Ellis, 162 AD2d 701 (2nd Dep't, 1990). Defendant knowingly and voluntarily accepted the terms of the plea bargain and was fully advised that he faced seven years incarceration if he violated any of the terms of his plea. It is the holding of this Court that, under the circumstances of this case, Defendant's enhanced sentence was neither harsh nor excessive. People v. Suitte, 90 AD2d 80 (2nd Dep't, 1982).
Accordingly, Defendant's motion to set aside his sentence is denied in all respects.
This constitutes the decision and order of the Court.