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Sentencing Court Can Correct Illegal Sentence If Within Initially-Stated Range

The Second Department explained that the trial court can properly resentence a defendant to correct an illegal sentence as long as the new sentence is within the initially-stated range.  Here, after sentencing defendant to an indeterminate term of imprisonment, the court realized it was required to sentence defendant to a determinate term and postrelease supervision:

Under the circumstances of this case, the County Court properly resentenced the defendant. A trial court has the inherent power to correct an illegal sentence, over a defendant’s objection, where the corrected sentence falls within the range initially stated by the court …. Here, after the County Court learned that the indeterminate sentence imposed on the defendant for the conviction of criminal sale of a firearm in the third degree was illegal, it exercised its inherent power to correct the sentence by imposing a determinate term of imprisonment of two years followed by two years of postrelease supervision. This sentence was within the range initially stated by the County Court … . People v Kaufman, 2013 NY slip Op 06020, 2nd Dept 9-25-13

 

Failure to Inform Defendant of the Specific Period of Postrelease Supervision Applicable to the Offense Defendant Pled To Required Vacation of Sentence

Over a dissent, the Second Department determined the failure to advise the defendant of the specific postrelease-supervision aspect of his sentence at the time of the entry of the plea pursuant to a plea agreement required that the sentence be vacated, even though defendant was informed his maximum sentencing exposure included a period of postrelease supervision:

…[A]fter informing the defendant that his maximum sentencing exposure included a period of postrelease supervision, the court extended a specific sentence offer, specifying the range of the terms of imprisonment involved …, and this offer omitted any reference to postrelease supervision. The court has a duty to ensure, at the time a plea of guilty is entered, that the defendant is aware of the terms of the plea …. The County Court’s failure to inform the defendant, at the time he entered his plea of guilty, that his sentence would, in fact, include a period of postrelease supervision, prevented his plea from being entered knowingly, voluntarily, and intelligently. People v Divalentino, 2013 NY Slip Op 06013, 9-25-13

 

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Disposition of Juvenile Delinquency Proceeding Reversed; Purpose Is Not to Punish

Over a dissent, the First Department reversed Family Court’s juvenile delinquency disposition which was based on the findings that, had the juvenile been an adult, he would have been guilty of two counts of sexual abuse 2nd and two counts of forcible touching 3rd.  The First Department eliminated the 12-month period of probation and granted an adjournment in contemplation of dismissal.  The juvenile was 13 years old at the time of the incident.  It was alleged the juvenile grabbed the 12-year-old complainant from behind by pulling on her backpack and, as she tried to get away, touched and squeezed her breasts and the right side of her buttocks.  He then tried to kiss her, ignored her when she said she needed to go to class, and demanded a hug in order to let her go.  The First Department noted that this was the juvenile’s first contact with the justice system, that he and his mother had been cooperative throughout, and that he was a good student (among other factors).  The court wrote:

…[T]the totality of appellant’s course of conduct, and his statements to the complaining witness, support the inference that he acted for the purpose of sexual gratification … . The court’s findings that appellant committed an act, that, if committed by an adult, would constitute a crime, was, therefore, based on legally sufficient evidence and not against the weight of the evidence … .

A juvenile delinquency adjudication, however, requires both a determination that the juvenile committed an act, that, if committed by an adult, would constitute a crime and a showing, by the preponderance of the evidence, that the juvenile needs supervision, treatment or confinement (Family Ct Act §§ 345.1, 350.3, 352.1). Although the seriousness of the juvenile’s acts is an extremely important factor in determining an appropriate disposition …, it is not the only factor. The disposition is not supposed to punish a child as an adult, but provide effective intervention to “positively impact the lives of troubled young people while protecting the public” .. .

While the trial court properly found that appellant committed a delinquent act, there was insufficient support for its decision that appellant needed supervision, treatment or confinement (Family Ct Act §§ 352.1, 350.3). In addition, 12 months probation was not the least restrictive available alternative that would have adequately served the needs of appellant and society (Family Ct Act § 352.2…). Matter of Narvanda S, 2013 NY Slip Op 05855, 1st Dept 9-17-13

 

Failure to Include Restitution in Plea Negotiations Precluded Imposing Restitution at Sentencing

The Second Department vacated defendant’s sentence because, although restitution was not part of the plea promise, restitution was imposed at sentencing:

At the sentencing proceeding, the defendant did not have a sufficient opportunity to object to the imposition of restitution. The court made a brief reference to “RJOs,” apparently referring to restitution judgment orders. After pronouncing the sentence, the court stated: “With respect to any and all surcharges, given the fact there’s significant restitution judgment order obligations here, I’m going to waive the surcharges.” Under these circumstances, the defendant’s contention will be addressed on the merits … .

Although a court is free to reserve the right to order restitution as part of a plea bargain, the plea minutes in this case do not indicate that the pleas of guilty were negotiated with terms that included restitution … . At sentencing, the defendant should have been “given an opportunity either to withdraw his plea[s] or to accept the enhanced sentence[s] that included both restitution and a prison sentence” …, or for the court to impose the sentences agreed upon at the plea proceedings. People v Pettress, 2013 NY Slip Op 05645, 2nd Dept 8-14-13

 

Sentence for Which Merit Time Allowance Is Not Available Did Not Preclude Application for Resentencing Under Drug Law Reform Act

The Third Department, over a dissent, declined to follow the 2nd Department in its application of CPL 440.46 (Drug Law Reform Act).   The defendant was eligible to apply for resentencing based upon his offense, but, under the sentence defendant was serving at the time of his application for resentencing, he was not entitled to a merit time allowance pursuant to the Correction Law.  The Third Department determined defendant was eligible to apply for resentencing:

Although defendant, having been sentenced pursuant to his drug offense convictions as a persistent felony offender, is serving a sentence that would preclude him from earning merit time pursuant to Correction Law § 803 (see Correction Law § 803 [1] [d] [ii]; Penal Law § 70.10 [2]), he was not convicted of an “offense for which a merit time allowance is not available” (CPL 440.46 [5] [a] [ii] [emphasis added]; see Penal Law §§ 10.00 [1]; 220.39).  This distinction is significant.  The Penal Law states:

“‘Offense’ means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same” (Penal Law § 10.00 [1]).

Defendant’s offense and his sentence are thus two separate components that we decline to conflate for purposes of depriving an otherwise eligible person of the benefits of the remedial legislation that we are tasked with interpreting here.  To the extent that the [2nd] Department held to the contrary in People v Gregory (80 AD3d 624 [2011], lv denied 17 NY3d 806 [2011]), we decline to follow that case.  Accordingly, we find that defendant is eligible to apply for resentencing pursuant to the Drug Law Reform Act of 2009, and County Court erred in denying defendant’s motion.  People v Coleman, 104851, 3rd Dept 8-1-13

 

Jail Time Does Not Count Toward Subsequent Offense Until Previous Sentence Expired

Defendant was released on parole for a 2001 conviction.  While on parole he committed an offense and was jailed.  The Fourth Department determined that the time defendant was in jail must first be credited to the 2001 conviction.  Only after the 2001 sentence was completely served could any jail time be credited to the subsequent (2009) conviction:

Here, “[a]ny jail time served prior to the maximum expiration date of the [2001] sentence was properly credited toward that sentence until it expired on its own terms on [July 4, 2009] … .  “Thus, the [2009] sentence was properly credited only with jail time served after the expiration of the [2001] sentence” ….  In other words, “petitioner is not entitled to jail time credit against the [2009] sentence for the jail time that was credited against the [2001] sentence”… .  Matter of Grahm v Walsh, 811, 4th Dept 7-19-13

 

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Valid Waiver of Appeal Did Not Encompass Challenge to Severity of Sentence in this Case

The Fourth Department noted that a valid waiver of the right to appeal does not encompass a challenge to the severity of the sentence when the defendant was not advised of the potential periods of incarceration or the potential maximum term of incarceration.  The court, however, concluded the sentence was not unduly harsh or severe. People v Virgil, 783, 4th Dept 7-5-13

 

Sentence Deemed Unduly Harsh and Severe

The Fourth Department reduced defendant’s sentence for criminal possession of stolen property in the third degree from 2 to 7 years to 7 months.  The People conceded the original sentence was unduly harsh and severe.  People v Raszl, 596, 4th Dept 7-5-13

 

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Evidence Needed to Corroborate Accomplice Testimony and Evidence Admissible at Restitution Hearing Explained

In affirming the conviction, the Fourth Department explained the criteria for corroboration of accomplice testimony, and the admissible evidence in a restitution hearing:

“New York’s accomplice corroboration protection requires only enough nonaccomplice evidence to assure that the accomplices have offered credible probative evidence that connects the accomplice evidence to the defendant”…. Even the most “[s]eemingly insignificant matters may harmonize with the accomplice’s narrative so as to provide the necessary corroboration” (id. [internal quotation marks omitted]).    Here, defendant’s accomplice testified that he assisted defendant in burglarizing the victim’s home and stealing the victim’s car, and that testimony was corroborated by the testimony of other witnesses that defendant was seen driving the victim’s stolen car the day after the burglary.* * *

The victim testified at the restitution hearing and provided a detailed breakdown of the value of the stolen items as well as documents establishing the cost of replacing the ignition and locks on her vehicle, which was returned to her. In addition, the amount of restitution owed to the victim’s insurance company, which was financially harmed by reimbursing the victim for a portion of the cost of changing the ignition and locks on her vehicle, was supported by the claim it submitted to the Genesee County Probation Department. It is immaterial that an employee of the insurance company did not testify at the restitution hearing because “[a]ny relevant evidence, not legally privileged, may be received [at a restitution hearing] regardless of its admissibility under the exclusionary rules of evidence” (CPL 400.30 [4] …). People v Wilson, 275, 4th Dept 7-5-13

 

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Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid

The Fourth Department determined the defendant’s waiver of appeal was invalid and County Court should have adjudicated the defendant a youthful offender (re: criminal possession of a weapon):

…[T]he waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice”… .

A defendant between the ages of 16 and 19 who, like defendant herein, “has been convicted of an armed felony offense . . . is an eligible youth if the court determines that . . . [there are] mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10 [3] [i]), and we conclude that such is the case here. The record reflects that defendant was the victim of a brutal attack by multiple perpetrators the day prior to the armed felony offense at issue herein. … Defendant told the police that he had fired a single shot into the porch of his attackers’ house “to send a message to them to stop messing with him as he was a serious threat if need be.” According to defendant, he knew that his attackers would not be home and, indeed, the record reflects that the residence was unoccupied at the time of the shooting.  People v Amir W, 759, 4th Dept 6-28-13

 

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