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SENTENCING COURT’S FAILURE TO CONSIDER YOUTHFUL OFFENDER STATUS REQUIRED VACATION OF SENTENCE.

The Second Department determined Supreme Court’s failure to consider whether defendant should be adjudicated a youthful offender required vacation of the sentence, despite the fact defendant did not request youthful offender status:

In People v Rudolph (21 NY3d 497, 499), the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request.” Compliance with CPL 720.20(1) requires the sentencing court to actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment … . Here, the Supreme Court did not place on the record any reason for not adjudicating the defendant a youthful offender on his conviction of attempted robbery in the second degree under Indictment No. 9960/10, and there is nothing in the record to indicate that it considered and made an actual determination as to whether the defendant should be granted youthful offender treatment for his conviction under that indictment … . Under these circumstances, we vacate the defendant’s sentence and remit the matter to the Supreme Court, Kings County, for a determination of whether the defendant should be afforded youthful offender treatment. People v Worrell, 2015 NY Slip Op 09706, 2nd Dept 12-30-15

CRIMINAL LAW (FAILURE TO CONSIDER YOUTHFUL OFFENDER STATUS REQUIRED VACATION OF SENTENCE)/YOUTHFUL OFFENDER (FAILURE TO CONSIDER YOUTHFUL OFFENDER ADJUDICATION REQUIRED VACATION OF SENTENCE)/SENTENCING (FAILURE TO CONSIDER YOUTHFUL OFFENDER ADJUDICATION REQUIRED VACATION OF SENTENCE)

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THE COURT OF APPEALS CAN HEAR THE APPEAL OF AN UNPRESERVED SENTENCING ISSUE RAISED FOR THE FIRST TIME IN A MOTION TO VACATE THE SENTENCE; A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT SERVE AS A PREDICATE FELONY, IRRESPECTIVE OF THE ACTUAL FACTS UNDERLYING THE FOREIGN CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a full-fledged dissenting opinion by Judge Pigott, determined the Court of Appeals could hear the appeal of an unpreserved sentencing issue first raised in a motion to vacate the sentence (Criminal Procedure Law 440.20) and further determined that a Washington DC robbery conviction should not have been deemed a predicate felony. Because the DC statute could be violated by “snatching” property from someone, an act which would not be felony robbery in New York, the Court of Appeals held it could not be the basis for defendant’s conviction as a second felony offender, irrespective of whether the actual facts underlying the DC conviction would constitute a felony in New York:

A CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as “unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20 [1]), and a determination of second felony offender status is an aspect of the sentence (see CPL 70.06 [included in CPL article 70, addressing sentences of imprisonment]). One of the legal defects that can be challenged in a CPL 440.20 motion is an alleged error in sentencing a defendant as a second or third felony offender, including the decision to consider certain prior convictions as predicates. Raising the predicate felony sentencing issue in a CPL 440.20 motion serves the goals and purposes of the preservation rule by permitting the parties to present their arguments on the issue in the trial court, creating a record for appellate review, and allowing the trial court the first opportunity to correct any error [FN3]. Thus, we may address defendant’s current challenge — that the sentence was illegal because the D.C. conviction did not render him a second felony offender — on the appeal of the denial of his CPL 440.20 motion to set aside the sentence. * * *

… [U]nder the D.C. statute the taking can occur (1) by force or violence, or (2) by putting in fear. The force or violence element can be accomplished (1) against resistance, or (2) by sudden or stealthy seizure, or (3) by snatching … . Stated another way, “the statute must be interpreted to include ‘stealthy seizure’ as a form of ‘force or violence'” … . The statutory language means that the crime can be committed in different ways, and the phrase “sudden or stealthy seizure or snatching” does not describe separate criminal acts required by the statute in addition to the use of “force or violence” … . Consequently, we do not look at the underlying accusatory instrument to determine if the crime is equivalent to a New York felony … . Because the statute, itself, indicates that a person can be convicted of the D.C. crime without committing an act that would qualify as a felony in New York (i.e., by pickpocketing), defendant’s D.C. conviction for attempt to commit robbery was not a proper basis for a predicate felony offender adjudication … . People v Jurgins, 2015 NY Slip Op 09311, CtApp 12-17-15

CRIMINAL LAW (APPEAL OF UNPRESERVED SENTENCING ISSUE LIES FROM DENIAL OF A MOTION TO VACATE THE SENTENCE)/CRIMINAL LAW (FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS OF A PREDICATE FELONY)/APPEALS (CRIMINAL LAW, APPEAL OF UNPRESERVED SENTENCING ISSUE LIES FROM DENIAL OF A MOTION TO VACATE THE SENTENCE)/PREDICATE FELONY (A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS FOR A PREDICATE FELONY)/FOREIGN FELONY (A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS FOR A PREDICATE FELONY)

FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION AT THE TIME OF THE PLEA RENDERED THE PLEA INVALID.

he Third Department reversed defendant’s conviction by guilty plea because the defendant was not informed of the period of postrelease supervision at the time of the plea. Defendant was told by the sentencing judge (at the time of the plea) if he violated interim probation (which was to lead to a felony probation) he would be sentenced to four years in prison. No mention was made of postrelease supervision. Defendant violated the terms of the interim probation and was sentenced to four years incarceration plus two years of postrelease supervision:

… [I]t is well settled that, for a defendant’s plea to be knowingly, voluntarily and intelligently entered into, a court must advise him or her of the direct consequences of a plea prior to sentencing, including the existence and duration of any postrelease supervision requirement … . Here, as the People concede, at the time of his plea, defendant was not properly made aware of the postrelease supervision component of his sentence. Accordingly, defendant’s decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the judgment of conviction must be reversed … . People v Binion, 2015 NY Slip Op 09142, 3rd Dept 12-10-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

CRIMINAL LAW (POSTRELEASE SUPERVISION, FAILURE TO INFORM DEFENDANT OF)/SENTENCING (POSTRELEASE SUPERVISION, FAILURE TO INFORM DEFENDANT OF)/POSTRELEASE SUPERVISION (FAILURE TO INFORM DEFENDANT OF)/PLEA (GUILTY PLEA INVOLUNTARY IF DEFENDANT NOT INFORMED OF POSTRELEASE SUPERVISION)

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WAIVER OF APPEAL INVALID; DESCRIPTION OF THE EXTENT OF THE WAIVER WAS ERRONEOUS; NO ASSURANCE DEFENDANT WAS AWARE OF THE DIFFERENCE BETWEEN RIGHTS WAIVED BY GUILTY PLEA AND APPELLATE RIGHTS.

The First Department sent the matter back for resentencing because the record suggested the sentencing judge erroneously thought he did not have the power to impose a reduced sentence. The First Department determined the defendant’s waiver of appeal was invalid because the sentencing judge erroneously stated the relevant law and did not make sure the defendant understood the difference between the rights waived by entering a guilty plea and his appellate rights:

Defendant’s waiver of his right to appeal was invalid, where the court failed to adequately ensure defendant’s understanding that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty … . The court’s statement that defendant was “waiving [his] right to appeal any legal issues connected with the case, including the sentence” (emphasis added) was incorrect, insofar as a defendant cannot waive certain rights, such as the right to challenge the legality of a sentence or raise a speedy trial claim … . The court’s further statement that the “right of appeal is waived by [defendant], the rights I just mentioned are automatically waived by a plea” was insufficient to explain that the right to appeal is not included with those automatically waived by a guilty plea, since the court had “just mentioned” that right. Moreover, defendant’s execution of a written waiver “does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal” … . People v Flores, 2015 NY Slip Op 08905, 1st  Dept 12-3-15

CRIMINAL LAW (WAIVER OF APPEAL INVALID)/APPEALS (CRIMINAL LAW, WAIVER INVALID)/WAIVER OF APPEAL INVALID

CONVICTION IN VIOLATION OF CATU CAN NOT BE USED AS PREDICATE FOR SENTENCING

The First Department determined the failure to mention the imposition of a period of postrelease supervision (PRS) in connection with a 2000 conviction precluded using that conviction as a predicate felony for sentencing purposes. The court noted that the 2005 Catu decision, which held defendants must be informed of PRS, applied retroactively:

CPL 400.15(7)(b) provides: “A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate violent felony conviction.” The People’s argument that a Catu error does not violate the United States Constitution is improperly raised for the first time in their reply brief, and is without merit in any event.

“[A] conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution” … . Furthermore, although the Catu error in this case occurred in 2000, prior to the 2005 Catu decision, Catu applies retroactively … . People v Fagan, 2015 NY Slip Op 08782, 1st Dept 12-1-15

CRIMINAL LAW (SENTENCING, CATU ERROR PRECLUDES USE OF CONVICTION AS PREDICATE)/SENTENCING (CATU ERROR PRECLUDES USE OF CONVICTION AS PREDICATE)

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Enhanced Sentencing for Second Child Sexual Assault Felony Offenders Is Required by Penal Law 70.07; Language in Criminal Procedure Law 400.19 Can Not Be Interpreted to Mean the People Can Decide Not to Seek the Enhanced Sentence

The Court of Appeals, in a full-fledged opinion by Judge Rivera, in affirming defendant’s conviction and sentencing, discussed ineffective assistance, prosecutorial misconduct, and statutory interpretation issues. The ineffective assistance and prosecutorial misconduct discussions are fact-specific and not summarized here. With respect to the statutory interpretation issue, the defendant argued he should not have been sentenced as a second child sexual assault felony offender because the People were required to file a predicate statement (notifying him an enhanced sentence would be sought) prior to trial and did not do so. The court determined the statutory language indicating the predicate statement “may” be filed any time before trial (in Criminal Procedure Law [CPL] 400.19) did not preclude the People from filing the statement after trial started, and did not indicate the People had the discretion not to seek an enhanced sentence:

The explicit language in section one [of Penal Law 70.07] states that a person convicted of a felony offense for sexual assault against a child, who has a predicate felony conviction for child sexual assault, “must be sentenced” in accordance with Penal Law § 70.07 sentencing provisions. The applicable time for invoking the procedures contained in CPL 400.19 does not change the import of the mandatory language in Penal Law § 70.07, which subjects this category of offenders to legislatively promulgated enhanced sentences. Furthermore, the specific language in CPL 400.19 (2) upon which defendant relies merely permits filing of the statement before commencement of a trial. It does not prohibit filing afterwards, and before sentencing. As courts have concluded, “may” does not mean “must” … . Notwithstanding defendant’s requests that we read the statute otherwise, this Court is without authority to read mandatory language into a statute where it is otherwise absent … . People v Wragg, 2015 NY Slip Op 08453, CtApp 11-19-15

 

Where Defendant Was Released on a Writ of Habeas Corpus, the Relevant Period of Incarceration Can Not Be Excluded from the Ten-Year Second Violent Felony Offender Calculation; Without That Exclusion, Defendant Could Not Be Sentenced as a Second Felon

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined (1) Criminal Procedure Law (CPL) 120.90, requiring a quick arraignment after arrest, only applies where the defendant is arrested by police officers (here corrections officers told defendant of his arrest); (2) CPL 190.50, requiring notice of a grand jury presentation, does not apply where defendant has not been arraigned in a local court; and (3) the 442 days defendant was incarcerated for a parole violation could not be excluded from the ten-year “second violent felony offender” calculation because he was released from that incarceration on a writ of habeas corpus. Without that 442-day exclusion, defendant’s prior conviction was older than ten years and he could not be sentenced as a second felon:

A defendant who stands convicted of a violent felony may be adjudicated a second violent felony offender if he was previously convicted of a violent felony within ten years of the current offense (see Penal Law § 70.04[1][b][iv]). “[A]ny period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony” is excluded from the ten-year calculation (Penal Law § 70.04[1][b][v]). * * *

Although the habeas court did not vacate defendant’s conviction for a parole violation, it did grant his immediate release from confinement after determining that “the evidence did not support” defendant’s incarceration. A person “illegally imprisoned or otherwise restrained in his liberty . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance” (CPLR 7002[a]). If a judge considering the habeas petition determines that a person has been unlawfully detained, he “shall . . . issue a writ of habeas corpus for the relief of that person” (id.). That the habeas court in this case granted defendant’s immediate release based on a lack of evidence indicates that defendant was “imprisoned without reason” from 1992-1993. People v Small, 2015 NY Slip Op 08457, CtApp 11-19-15

 

Presumption of Vindictive Sentencing Did Not Apply Here Where Defendant Rejected a Plea Offer with a Sentence of Ten Years Probation and, After Trial, Was Sentenced to 10 to 20 Years in Prison

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined defendant was not entitled to the presumption of vindictive sentencing. Defendant, in this rape case, was offered a plea to a D felony and 10 years probation. The defendant went to trial and was sentenced to 10 to 20 years in prison. The court explained that the presumption of vindictive sentencing, which has been applied to sentencing upon retrial after a successful appeal, did not apply in this case:

“[C]riminal defendants should not be penalized for exercising their right to appeal” … . After a new trial, the sentencing court must give affirmative reasons “concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” to justify a higher sentence … . * * *

By contrast, the same policy concerns are not implicated when a defendant rejects a plea offer, proceeds to trial for the first time, and is given a harsher sentence than the plea offer.

“Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea” (People v Pena , 50 NY2d 400, 412 … ). In Pena , this Court concluded that the defendant was not punished by the imposition of the lawful, but greater, sentence received after rejecting a lenient plea offer and proceeding to trial.

Here, after hearing the court’s warning that he would not receive such leniency should he be found guilty, defendant rejected the plea offer and proceeded to trial. Supreme Court imposed a lawful sentence, based upon defendant’s remorseless statement at the sentencing hearing, the heinous nature of the crimes, and the victim’s sentencing statement. Furthermore, the plea offer would have required defendant to plead guilty to a class D felony, whereas defendant was convicted after trial of a class B violent felony offense for which the court could not have legally imposed the probationary sentence offered with respect to the plea. Defendant’s rejection of the plea offer also required the victim to testify about the sexual abuse at trial, a factor this Court has recognized as a legitimate basis for the imposition of a more severe sentence after trial than that which the defendant would have received upon a plea of guilty … . Had the presumption of vindictiveness applied to this case, these would constitute legitimate and reasoned bases for the more severe sentence imposed … . People v Martinez, 2015 NY Slip Op 08456, CtApp 11-19-15

 

Conviction Based Upon Plea Where Defendant Was Not Advised of the Period of Postrelease Supervision Is Unconstitutional for Predicate Felony Purposes—Catu Applied Retroactively

The First Department determined a 2002 conviction based upon a (pre-Catu) plea during which defendant was not advised of the period of postrelease supervision is unconstitutional for predicate felony purposes:

CPL 400.15(7)(b) provides: “A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction” … . Because a conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution (see Catu, 4 NY3d at 245 …), the court properly granted defendant’s CPL 440.20 motion and vacated his sentence as a second violent felony offender on the ground that his 2002 conviction could not be counted as a predicate felony under CPL 400.15(7)(b).

The underlying conviction preceded the Catu decision. However, contrary to the People’s contention, we find that the rule of law announced in Catu applies retroactively to pre-Catu convictions … . People v Smith, 2015 NY Slip Op 07565, 1st Dept 10-15-15

 

Failure to Warn Defendant that Failure to Appear Would Result in a Harsher Sentence Required Vacation of the Harsher Sentence

The Fourth Department vacated defendant’s enhanced sentence because defendant was not warned that his failure to appear at sentencing would result in a harsher sentence. The matter was remitted for imposition of the bargained-for sentence or the opportunity to withdraw the plea:

“Although defendant failed to preserve his contention for our review by objecting to the enhanced sentence or by moving to withdraw his plea or to vacate the judgment of conviction …, we nevertheless exercise our power to review defendant’s contention as a matter of discretion in the interest of justice” … . We agree with defendant that the court erred in imposing an enhanced sentence inasmuch as it did not advise defendant at the time of his plea that “a harsher sentence than he bargained for could be imposed if [he] failed to appear at sentencing” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea … . People v Donald, 2015 NY Slip Op 07399, 4th Dept 10-9-15

 

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