Opinion
93-1635.
Decided March 31, 2011.
Hon. Janet DiFiore, District Attorney, Westchester County, White Plains, New York, Attn: John C. Carmody, Esq.
Assistant District Attorney, Office of Stephen J. Pittari, Esq., White Plains, New York, Attn: David B. Weisfuse, Esq.
On October 27, 1995, the defendant was convicted in this Court (West, J.) upon his plea of guilty of criminal possession of a controlled substance in the fourth degree, a class C felony. At the time of defendant's plea, the Court promised him a sentence of no more than 8 years to life and that the sentence would run concurrently with any federal sentence that he might be under (Defendant's Exhibit A, pp. 2-3). In the course of defendant's plea allocution, the People indicated to him that, as a result of his plea, he was "going to be sentenced as a persistent and that would be — the maximum [he] could get would be life." ( Id., p. 15). As part of his plea, defendant admitted two prior felony convictions for which he received a state prison sentence; namely, a conviction for burglary in the third degree and a conviction for criminal possession of a loaded firearm ( Id., p. 16). At the time of defendant's plea, two separate dates were given for these prior convictions, however, as now conceded by the People, defendant's convictions for these crimes occurred on the same day — April 25, 1990 (Carmody Affirmation, p. 3, n. 2). As part of his plea, defendant waived his rights and indicated that he understood that by waiving his rights he was in the same situation as if he had a hearing and had been adjudicated a persistent felony offender (Defendant's Exhibit A, p. 17).
On the same date, defendant also pleaded guilty to the crime of attempted escape in the first degree under indictment number 94-950 and was promised a sentence of 1 ½ to 3 years consecutive to his promised sentence under the instant indictment. That conviction is not at issue herein.
On August 17, 1995, defendant pleaded guilty to a five count federal bank robbery indictment and on September 21, 1995 was sentenced to 151 months incarceration to be followed by a five year term of supervised release (U.S. v. McLean, 94 CR 00433 (S.D.NY) (Patterson, J.).
On November 28, 1995, defendant appeared before this Court (West, J.) for sentence. In connection with defendant's sentence, the People filed a document which was entitled "Persistent Violent Predicate Felony Conviction Statement" and which listed the defendant's prior convictions which he admitted at the time of his plea. The document filed by the People listed "April 25, 1990" as the date of both of defendant's prior felony convictions. The defendant admitted both felony convictions. The People, represented by a different assistant at sentence than at defendant's plea, requested that defendant be sentenced as a "persistent violent, as that statement indicates." (Defendant's Exhibit D, pp. 3-4). After a conversation with defendant regarding minutes he was seeking, the Court stated, "As to this matter, the Court has adjudged the defendant with respect to Indictment No. 1635 of 93 as a persistent felony offender." ( Id., p. 6). The Court went on to state, "Weighing all of the factors in this case, and having read the pre-sentence report with respect to Indictment No. 1653 of 93, it is the sentence of this court that the defendant be confined in state prison for a period of not less than eight years, nor more than actually his natural life. This sentence is to run concurrent with the federal sentence he was just recently sentenced to." ( Id., pp. 6-7). In response to a query from the court clerk, the Court stated "Yes, I indicated I adjudged the defendant to be a persistent violent." ( Id., p. 8). The minutes of defendant's sentencing proceeding then indicate that defendant exited the courtroom, whereupon an off-the-record discussion occurred between the Court and both counsel, after which the People stated, "After reviewing, the top says, persistent violent. Under 1635 of 93 we are all in agreement conviction, criminal conviction in the fourth degree, proper sentence would be persistent felon, not violent," to which the Court replied "Yes, I will strike violent. Persistent predicate felon, and I am striking violent and putting my initials on that." ( Id). As a result of this exchange, the word "violent" was crossed out on the predicate felony conviction statement filed by the People (Defendant's Exhibit C).
The defendant did not appeal his conviction. On June 28, 1998, this Court (West, J.) denied defendant's first CPL § 440.20 motion which was brought by his federal counsel. This motion requested that the Court vacate defendant's sentence so that he could be transferred to federal custody, and then be re-sentenced to the same sentence in state court, in order to effectuate the intent of both the state and federal judges that defendant's instant conviction run concurrently with his federal sentence and because it was the belief of defendant's counsel and the federal judge that he would receive better medical and programming services in a federal prison. The motion was denied on the ground that, as defendant did not allege that his sentence was "unauthorized, illegally imposed or otherwise invalid" the Court lacked authority under the statute to grant the relief requested. (People's Exhibit 6). Seven years later, defendant moved pro se to again set aside his sentence, on the grounds that he did not commit the predicate felonies, that his allocation rights were violated, that the conviction was invalid because it did not specify the amount of drugs possessed by defendant and because it was contrary to the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). He further alleged ineffective assistance of counsel because he was on medication at sentencing and it was allegedly the first time his attorney spoke with him about the charges. In opposing defendant's motion, the People alleged that the transcript of defendant's sentence was unavailable, as the court reporter who transcribed it had retired to North Carolina and allegedly had no access to a typewriter (Defendant's Exhibit H, p. 9, n. 5). By Decision and Order dated August 10, 2005, this Court (Alessandro, J.) denied defendant's motion. Defendant's application for leave to appeal that decision to the Appellate Division was denied on January 30, 2006. Prior to filing the instant CPL § 440.20 motion, defendant's counsel was able to obtain the sentencing minutes from the Department of Correctional Services and provided a copy of them to the People.
Defendant brings this current CPL § 440.20 motion to set aside his sentence on several grounds. He argues that the sentence imposed upon him, eight years to life, is not an authorized sentence for criminal possession of a controlled substance in the fourth degree, a class C felony offense. He argues that the persistent felony offender statement was jurisdictionally defective, as it listed two convictions which occurred on the same date. He argues that the procedures set forth at CPL § 440.20 relating to persistent felony offender adjudications were not followed in that there were no allegations regarding his history and character. Lastly, defendant argues that, as he had left the courtroom at the time that the issue regarding the persistent violent felony offender language was discussed and the Court made clear that he was adjudicated a persistent felony offender (as opposed to a persistent violent), the persistent felony offender adjudication was improperly imposed in his absence and without notice in violation of CPL §§ 380.40, 440.20(3), (4), (7) and (9) as well as violated his due process rights under the federal and state constitutions.
The People oppose the motion and argue that it should be summarily denied. As an initial matter, they argue that defendant's motion is procedurally barred pursuant to CPL § 440.30(1), since defendant was in a position to raise this issue on his prior motions, but did not. While the People concede that 8 to life was not an authorized sentence for defendant's C Felony conviction as a persistent felony offender, they point out that the authorized sentence range was a minimum of 15 to life with a maximum of 25 to life. The People submit that at the time of defendant's plea and sentence, all parties including defendant, were under the mistaken impression that the sentence was valid. They point out that the mistake was "extremely beneficial" for defendant, as he received a much lesser sentence than that to which he was subject. They argue that the defendant and his state and federal attorneys were willing to go along with this sentence so long as it was beneficial to him and that as defendant waited 15 years to move on these grounds, his motion should be denied. The People further argue that the interests of justice do not require that defendant's motion be granted because defendant received the full benefit of his plea and in fact received a more favorable sentence than authorized. They submit that given the timing of the instant motion, defendant is engaging in "legal gamesmanship" and is seeking to successfully challenge, at resentence, the constitutionality of New York's persistent felony offender statute and thus escape a life sentence.
Defendant has apparently concluded his federal sentence and has been denied parole four times on the instant conviction (Carmody Affirmation, pp. 9-10).
Substantively, the People note that "where, as here, a plea bargain includes a sentence which is illegal because the minimum period is less than that required by law, the proper remedy is to vacate the sentence and afford the defendant, having been denied the benefit of the bargain, the opportunity to withdraw the plea'" (People's Memorandum of Law, pp. 17-18, citing People v. Martin, 278 AD2d 743, 744 (3d Dept. 2000)). They acknowledge, in a footnote, that the predicate felony statement filed in this case was defective in that it listed two prior convictions which occurred on the same day ( Id., p. 18, n. 11). They argue that since defendant herein has not moved to withdraw his plea, nor explicitly alleges that his plea was involuntary, should defendant's sentence be vacated, he should be produced for arraignment upon a proper predicate felony statement and the matter set down for a hearing. After a hearing, the People submit that "upon proper adjudication" defendant should be resentenced as a persistent felony offender to 15-25 years to life. Lastly, the People note that in the event defendant seeks to withdraw his plea, the case should be restored to pre-plea status, in which case defendant's "remedies" are to either negotiate a new plea or go to trial. As to defendant's claim regarding the sentencing proceeding occurring in his absence, the People submit that the Court initially adjudicated the defendant a persistent felony offender while he was present in the courtroom. The People's opposition papers do not address defendant's claim regarding the failure of the sentencing proceedings to comply with CPL § 440.20 in that there were no allegations regarding defendant's history and character so as to justify the imposition of a persistent felony offender adjudication.
In reply, defendant argues that CPL § 440.30(1) does not serve as a procedural bar to this motion and notes that, as to the People's references to defendant's waiting 15 years to bring this motion, CPL § 440.20 contains no time limit. He also notes that the People erroneously represented to the Court on his prior pro se motion that the sentencing minutes had not been transcribed, when they had been transcribed and were in the possession of the Department of Correctional Services, and that these minutes could have resulted in a different outcome on that motion. Defendant further notes that to the extent that the People accuse him of deliberately delaying this motion, the People were also in a position to address what he submits are readily apparent problems with the sentence during any of the prior proceedings and failed to do so.
Substantively, the defendant argues that the Court should not hold a hearing as suggested by the People for the purpose of ultimately resentencing the defendant to a greater term of imprisonment. Defendant concedes that at any resentencing, he would argue that the New York persistent felony offender statute is unconstitutional. He notes that under current New York law, a persistent felony offender conviction is not available for his crime of criminal possession of a controlled substance in the fourth degree. He submits that Apprendi v. New Jersey, supra, would bar the Court from considering the date of defendant's crime at any resentence, as the date of the crime is not an element of criminal possession of a controlled substance in the fourth degree that has to be submitted to a jury and proved beyond a reasonable doubt. He also argues that pursuant to the amelioration doctrine, upon any resentence, defendant should not be sentenced as a persistent felony offender, but rather should be sentenced pursuant to the state of the law as it exists today. Defendant further notes that he has the right to withdraw his plea, should the Court seek to impose a greater sentence than promised at his plea.
Subsequent to the parties submissions in this case, the Second Circuit Court of Appeals, in an en banc rehearing, upheld the constitutionality of New York's persistent felony offender statute (P. L. § 70.10) in Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010)). On March 22, 2011, the United States Supreme Court denied the petition for a writ of certiorari ( Portalatin v. Graham, ___ U.S. ___; 2011 WL 196837 (2011)).
As an initial matter, it is noted that CPL § 440.30(1) does not pose a procedural bar to this motion. The statute provides, in relevant part, that, "[u]pon the motion, a defendant who is in a position adequately to raise more than one ground should raise every such ground upon which he intends to challenge the judgment or sentence." (CPL § 440.30(1) (emphasis added)). Thus, the use of the word "should" in lieu of "must" indicates that the language in the statute itself was not intended to be an absolute bar to successive motions akin to that set forth in CPL § 440.10(2) ("The court must deny a motion to vacate a judgment when . . .") ( see also People v. Frazier, 2010 WL 2150606 (Sup. Ct. Kings Co. 2010)). The issues raised in this motion were not addressed in any of defendant's prior motions. Moreover, the People concede that an illegal sentence was in fact imposed and that the persistent felony offender statement filed was defective. Under the circumstances of this case, this Court declines to interpret CPL § 440.30(1) as barring this motion.
Addressing the substance of defendant's motion, it is clear that there are several problems with defendant's sentence which require, at a minimum, that it be set aside and that he be re-sentenced. As conceded by the People, eight years to life was an unauthorized sentence for defendant's conviction for criminal possession of a controlled substance in the fourth degree. As is further conceded by them, the persistent felony offender statement was defective in that it improperly listed two crimes which occurred upon the same date. Moreover, while the People argue that the sentence was properly pronounced in the defendant's presence, at sentence, the Court stated on the record first that defendant was a persistent felony offender (Defendant's Exhibit D, p. 6), then later, in a response to a question from the court clerk, indicated that defendant was adjudicated a persistent violent felony offender ( Id., p. 8). The People had also requested that defendant be adjudicated a "persistent violent" ( Id., p. 3-4). The minutes show that defendant left the courtroom when the Court and the People clarified that he was sentenced as a persistent felony offender as opposed to a persistent violent ( Id., p. 8). Accordingly, resentencing is required on this ground as well as the record is unclear as to whether defendant was aware that he was adjudicated as a persistent felony offender as opposed to a persistent violent ( see People v. Hemphill, 129 AD2d 460, 461 (1st Dept. 1987), lv. denied, 70 NY2d 648 (1987)); it also required so that defendant's sentence can be pronounced in his presence ( People v. Sparber , 10 NY3d 457 , 464 (2008); CPL § 380.40(1)). Lastly, it is noted that C.P.L. § 400.20, which provides the procedures applicable to persistent felony offender adjudications, sets forth a two prong analysis which requires a sentencing court to first find that defendant has been convicted of two qualifying felony offenses and next to determine whether "the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extensive incarceration and lifetime supervision of the defendant are warranted to best serve the public interest"; before imposing sentence, a court must set forth on the record its reasons for finding the second element present ( see People v. Brown, 268 AD2d 593 (2d Dept. 2000), lv. denied, 94 NY2d 945 (2000); CPL § 70.10(2)). Here, in regard to the defendant's history and character, the Court only noted that it weighed all of the factors in the case, and read the pre-sentence report (Defendant's Exhibit D, pp. 6-7). Such conclusory statements are insufficient to fulfill the statutory mandate ( People v. Bazemore , 52 AD3d 727 , 728 (2d Dept. 2008), lv. denied, 11 NY3d 830 (2008); People v. Murdaugh , 38 AD3d 918 , 920 (2d Dept. 2007), lv. denied, 9 NY3d 848 (2007); People v. Brown, supra). Accordingly, defendant's sentence must be set aside on this basis as well ( People v. Bazemore, supra; People v. Murdaugh, supra; People v. Brown, supra).
Upon resentence, it is clear that the Court could not impose the sentence sought by the People, as that sentence is greater than that promised to the defendant as part of his plea proceeding. Defendant submits that, pursuant to the amelioration doctrine, he should be resentenced pursuant to the provisions of the 2009 Drug Law Reform Act ("DLRA"). "Under the amelioration doctrine, a statutory amendment reducing the punishment for a particular crime is generally to be applied to all cases decided after the effective date of the enactment — even though the underlying act may have been committed before that date — except when the legislature, in enacting the amendment, has expressed a contrary intent" ( People v. Utsey , 7 NY3d 398 , 402 (2006)). Under the current law, a persistent felony offender sentence is no longer an option for defendant's crime of criminal possession of a controlled substance in the fourth degree — a class C felony offense (P.L. § 70.10(2)). Moreover, the Legislature, in enacting in the 2009 DLRA, made P.L. § 70.70 applicable to those awaiting sentence for a controlled substance conviction as a multiple felony offender (P.L. § 60.04(5)). Unlike the prior versions of the DLRA, for which the Legislature mostly foreclosed retroactive effect of their provisions ( see People v. Utsey, supra), in enacting the 2009 DLRA, the Legislature provided that the amendments made to § 60.04(5), relating to authorized dispositions for controlled substance and marihuana felony offenses for multiple felony offenders were to be applicable to "offenses committed before such date provided that sentence upon conviction for such offense has not been imposed on or before such date" (L. 2009, Ch. 56, Pt. AAA, § 33(f); § 17). Therefore, a vacatur of defendant's previously imposed sentence of 8 to life as a persistent felony offender has the legal effect of rendering the sentence null and void ( People v. Acevedo , 75 AD3d 255 , 258 (1st Dept. 2010)). Thus, upon such vacatur, P.L. § 60.04(5) is applicable to his resentence, as while his crime may have been committed prior to the enactment of that statute, a properly imposed sentence has not yet been imposed. Under the 2009 DLRA, the sentence applicable to a second felony drug offender convicted of a class C controlled substance offense is a determinate sentence of imprisonment with a minimum of one and one half years and a maximum of eight years, plus a period of post release supervision, the minimum period of which is one and one half years, with a maximum of three years (P.L. § 70.70 (3)(b)(ii); § 70.45 (2)(d)); the applicable sentence for a second felony drug offender previously convicted of a violent felony is in a determinate sentence of imprisonment with a minimum of three and one half years and a maximum of nine years, plus a period of post release supervision, the minimum period of which is one and one half years, with a maximum of three years (P.L. § 70.70 (4)(b)(ii); § 70.45 (2)(d)).
While the People set forth defendant's criminal history in a summary fashion in their opposition papers (Carmody Affirmation, p. 3, n. 3), it is unclear whether, upon resentence, defendant would be a second felony drug offender or a second felony drug offender previously convicted of a violent felony.
Accordingly, defendant's motion to set aside his sentence pursuant to CPL § 440.20 is hereby granted. Pursuant to the provisions of CPL § 440.21, the People are directed to file a statement setting forth the date and place of defendant's predicate felony convictions and whether and predicate felony conviction(s) were for a violent felony, as well as setting forth any period(s) of incarceration sought to be used for tolling the ten year limitations period set forth at P.L. § 70.06(1)(b)(v); the People are directed to file the statement and serve same upon the defendant no later than April 8, 2011. The parties are further order to appear for a hearing in this matter on April 12, 2011 at 9:30 am in Courtroom 203 of the Westchester County Courthouse.
This Decision constitutes the Order of the Court.