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Matter Remitted; County Court Did Not Follow Procedure Mandated by Drug Law Reform Act

In remitting the matter, the Third Department explained County Court failed to follow the procedure mandated by the Drug Law Reform Act:

The record contains no written order denying defendant’s application for resentencing and setting forth County  Court’s “findings of fact and the reasons for such order” as is required under the Drug Law Reform Act (L 2004, ch 738, § 23). Absent the necessary written order, we are without jurisdiction to consider defendant’s appeal … .  People v Allen, 104967, 3rd Dept, 5-23-13​

 

Transfer to Another County for Probation Did Not Divest Sentencing Court of Jurisdiction Over Defendant’s Violation of His Intermittent Sentence​

In this case Columbia County Court sentenced defendant to intermittent imprisonment in the Columbia County jail and five years probation in Greene County where defendant resided.  After defendant failed to report to Columbia County Jail, County Court revoked the intermittent sentence and sentenced defendant to four months. Defendant contended Columbia County Court had relinquished jurisdiction by transferring the probation term to Greene County.  The Third Department disagreed:

Defendant’s reliance on CPL 410.80 – which provides for transfer of probation supervision by the sentencing court to the Probation Department in the jurisdiction (county) where  the defendant  resides at sentencing –  is misplaced … . Defendant was not charged  with violating probation but, rather, was  alleged to have violated his intermittent sentence of imprisonment.  The transfer in CPL  410.80 (2) of “all powers  and  duties” of the sentencing court over supervision of probationers to the receiving court does not, as defendant argues, divest the sentencing court of its express jurisdiction to modify  or revoke a sentence of intermittent imprisonment pursuant to Penal Law § 85.05 (1) (b) … . People v Dick, 104424, 3rd Dept, 5-23-13

 

Sentence for Possession of Marijuana Deemed Unduly Harsh

The Fourth Department determined the sentence of a determinate term of incarceration for 2 ½ years for criminal possession of marijuana in the second degree was unduly harsh and severe.  The sentence was reduced to 1 ½ years.  People v Hirsh, KA 12-00043, 4th Dept, 5-17-13

 

Proper Procedure for Resentencing Under Drug Law Reform Act Explained

The Third Department explained the proper procedure for resentencing under the Drug Law Reform Act as follows:

The Drug Law Reform Act establishes a specific procedural course that was not followed here. Upon  finding a  defendant eligible for resentencing, the court must  issue a  written interlocutory order informing the defendant of the term of imprisonment  it intends to impose, setting forth findings of fact and the reasons underlying the proposed resentence, and advising the defendant  that, unless he or she withdraws  the application or appeals from the interlocutory order, the court will vacate the original sentence and impose the proposed resentence (see L 2004, ch 738, § 23).County  Court’s failure to proceed  in this manner deprived defendant of the opportunity to carefully consider his options, including the taking of an  appeal  from  the interlocutory order.  People v Minor, 104880, 3rd Dept, 5-16-13

 

 

Procedure for Resentencing Under Drug Law Reform Act Not Followed

County Court failed to comply with the statutory procedure for resentencing pursuant to the Drug Law Reform Act of 2004 (Criminal Procedure Law 440.46).  County Court did not issue a written order re: the new sentence, did not issue written findings of fact and reasons for the sentence, and did not inform the defendant of his right to appeal the resentence or his right to withdraw his motion for resentencing.  The Third Department wrote:

Resentencing under CPL 440.46 incorporates the detailed procedures of the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23…). Those procedures require, as relevant here, that an order issued by  the court informing a defendant of the sentence it will impose in the event of resentencing “must include written findings of fact and reasons for such order” (L 2004, ch 738, § 23 …). Defendant must also be notified that he  or she has a right to appeal that written order of proposed resentencing as well as a right – which can be exercised after the appeal and upon remand – to be  given an  opportunity to withdraw  the application for resentencing before any resentence is imposed…. People v Delayo, 104402, 3rd Dept, 3-2-13

 

Procedure for Sentencing a Second Felony Offender Not Followed

The Second Department sent the matter back for resentencing because of the sentencing court’s failure to follow the statutory procedure for adjudicating defendant a second felony offender:

As the People correctly concede, the sentencing court adjudicated the defendant a second felony offender (see Penal Law § 70.06) absent any indication of compliance with the procedural requirements of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard …. Accordingly, we remit the matter to the County Court, Suffolk County, for resentencing in accordance with the mandates of CPL 400.21 ….  People v Puca, 2013 NY Slip Op 03114, 2nd Dept, 5-1-13

 

Failure to Cooperate with Probation Department Is Valid Reason for Enhanced Sentence

The Second Department determined defendant’s failure to cooperate with the probation department in violation of his plea agreement was a valid ground for an enhanced sentence:

The condition of the defendant’s plea that he cooperate with the probation department was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of the plea agreement …. The defendant’s violation of that condition, by refusing to be interviewed by the probation officer, allowed the Supreme Court to impose the enhanced sentence.  People v Patterson, 2013 NY Slip Op 03113, 5-1-18

 

Procedure for Sentencing as Persistent Felony Offender Not Followed

In sending the matter back for resentencing, the Second Department noted that the statutory procedure for sentencing as a persistent felony offender had not been followed:

The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20(1)-(4), and to set forth specific reasons supporting its determination to sentence the defendant as a persistent felony offender (see Penal Law § 70.10[2]…). People v Brown, 2013 NY Slip Op 03111, 2nd Dept, 3-1-13

 

Sentencing Court Need Not Inform Defendant of Possible Consequences of Violating Postrelease Supervision

In finding that a defendant need not be informed at sentencing of the consequences of violating postrelease supervision, the Court of Appeals, in a full-fledged opinion by Judge Read, explained:

We have repeatedly held that a trial court “must advise a defendant of the direct consequences of [a] plea,” but “has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions” * * *. By contrast, collateral consequences are “peculiar to the individual and generally result from the actions 104 taken by agencies the court does not control”* * *. … [T]he consequences of violating postrelease supervision are uncertain at the time of the plea, depending, as they do, upon how a defendant acts in relation to a condition tailored to his circumstances and imposed in the future. Thus, such consequences are properly described as “peculiar” to the individual. Second, the New York State Board of Parole — not the courts — is responsible for establishing the conditions of a defendant’s postrelease supervision * * *. In sum, the ramifications of a defendant’s violation of the conditions of postrelease supervision are classic collateral consequences of a criminal conviction – – i.e., they are “peculiar to the individual” and the product of “actions taken by agencies the court does not control”… . People v Monk, No 77, CtApp, 4-30-13

 

Sentence for Offenses Rising from Same Incident Must Be Concurrent

In determining the sentencing court had erroneously imposed consecutive sentences for offenses arising out of the same incident, the Fourth Department wrote:

“[S]entences imposed for two or more offenses may not run consecutively:(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (… Penal Law § 70.25 [2]). “The defendant benefits if either prong is present, and the prosecution’s burden is to countermand both prongs”…

Here, “the acts which constituted the crime of endangering the welfare of a child were not separate and distinct from the acts which constituted the crimes of” robbery and criminal mischief ….  As a result, the sentences imposed on the robbery and criminal mischief counts must run concurrently with the sentences imposed on the endangering the welfare of a child counts. Furthermore, the evidence establishes that, during his flight from the department store, defendant “floored” his vehicle in reverse with his driver’s side door open, striking the security guard as well as the vehicle parked beside his vehicle.  Those acts served as the basis for the criminal mischief count and for the “use of physical force” element of the robbery count (Penal Law § 160.00; see § 160.05), and thus the sentences imposed on the robbery and the criminal mischief counts must also run concurrently ….  People v Dekenipp, KA 11-00855, 204, 4th Dept, 4-26-13

 

 

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