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Resentencing Defendant to Original Sentence (Imposing No Post Release Supervision) Did Not Require Defendant’s Presence

The Fourth Department, over a dissent, determined defendant was properly sentenced even though he was not present at the resentencing.  The original sentence did not include a period of post release supervision [PRS].  The resentence also did not impose PRS.  Therefore, there was no error which adversely affected the defendant:

Defendant … contends that the court erred in conducting the resentence in his absence and without assigning counsel (see Correction Law § 601-d [4] [a]; CPL 380.40 [1]…). That contention is not properly before us because we may only “consider and determine any question of law or issue of fact involving error or defect . . . which may have adversely affected the appellant” (CPL 470.15 [1]). Here, the only issue presented at resentencing was whether the court would impose a period of PRS, and the District Attorney had already informed the court and defendant in writing that the People would consent to the reimposition of the original sentence, i.e., without a period of PRS. Inasmuch as the court reimposed that original sentence, “defendant was not adversely affected by any error, because the result, i.e., freedom from having to serve a term of PRS [with respect to this count of the indictment], was in his favor” … . People v Mills, 2014 NY Slip Op 03388, 4th Dept 5-9-14

 

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Division of Parole’s Mistake Which Resulted in the Incarceration of the Claimant Was Privileged—Claimant’s Action for False Imprisonment Properly Dismissed

The Third Department, in a full-fledged opinion by Justice Peters, determined a mistake made by the Division of Parole, which resulted in claimant’s prosecution and imprisonment for a violation of parole at a time when his parole had been terminated, was privileged.  Therefore, the claimant’s action for false imprisonment was properly dismissed:

To establish a claim of false imprisonment, claimant must demonstrate, among other things, that the confinement was not privileged … . “To that end, it is settled that ‘[a]n otherwise unlawful detention is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction or parole authorities'” … . Here, there is no dispute that claimant’s confinement was pursuant to parole violation warrants that were valid on their face. Yet, according to claimant, because his sentence should have terminated by law on March 10, 2005, the Division acted without jurisdiction when it commenced the April 2005 parole revocation proceeding, revoked his parole and thereafter subjected him to various periods of incarceration.

“‘There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter. The former is privileged, the latter is not'” … .

While the [Division of Parole’s] ….interpretation of Executive Law former § 259-j (3-a) may well have been mistaken, any such “error in judgment neither negates nor defeats defendant’s claim of privilege” … . The statute vested the Division with the authority to grant a termination of sentence under certain described circumstances, and interpreting the provisions that implement such power is a legitimate part of the Division’s function .. . The Division made a reasoned judgment …[which] was neither inconsistent with nor contrary to extant judicial authority … . Thus, at most, the Division “acted in excess of its jurisdiction, not in the complete absence [thereof], and its conduct therefore was privileged”… . Marsh v State of New York, 2014 NY Slip Op 03320, 3rd Dept 5-8-14

 

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Incorrect Information About Sentencing Provided to the Defendant by the Court and Counsel Warranted Vacating the Plea In the Absence of Preservation

The Fourth Department concluded that wrong information provided to the defendant about sentencing required vacation of the plea, in the absence of preservation by a motion to withdraw the plea.  The defendant was wrongly told by the court and counsel that his sentences on the instant offense and an unrelated offense would necessarily run consecutively. Because there was no way to expect defendant to know the information was incorrect, the error need not be preserved by a motion to withdraw the plea.  Because the plea was based upon complete confusion by all concerned, the plea was vacated:

We agree with defendant, however, that his plea should be vacated on the ground that it was not voluntarily, knowingly or intelligently entered based on the mistaken understanding of the legally required sentence shared by County Court and counsel. Although defendant failed to preserve his contention for our review …, we conclude that the narrow exception to the preservation requirement applies … . Here, it is clear from the face of the record that the prosecutor incorrectly stated that the sentence on the instant conviction must run consecutively to the sentence imposed on an unrelated conviction, when in fact that was not the case because the instant offense occurred prior to the unrelated conviction (see generally Penal Law § 70.25). It is equally clear that this error was not corrected by defense counsel or the trial court. Thus, preservation was not required “[i]nasmuch as defendant—due to the inaccurate advice of his counsel and the trial court—did not know during the plea . . . proceedings” that consecutive sentences were not required by law … . ” [D]efendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge’ ” … . Even assuming, arguendo, that the narrow exception to the preservation requirement is inapplicable, we would nevertheless exercise our power to address defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

On the merits, we conclude that defendant’s plea should be vacated because “[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea,” based on the prosecutor’s erroneous statement that [*2]consecutive sentences were required and the failure of the court or defense counsel to correct that error. We “cannot countenance a conviction that seems to be based on complete confusion by all concerned” … . People v Brooks, 2015 NY Slip Op 03969, 4th Dept 5-8-15

 

Assault and Robbery Committed by Separate Acts Involving the Same Victim–Consecutive Sentences Justified

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined defendant was properly sentenced consecutively for robbery and assault.  The defendant first demanded that the victim turn over a necklace the victim was wearing. As the victim was complying, the defendant shot the victim. The court determined the two crimes were committed by separate acts, thereby justifying consecutive sentences. The dissent dealt with a different issue: i.e., whether CPL 430.10 prohibited Supreme Court from “reconfiguring” defendant's sentence after the case was remitted to it by the Appellate Division. After the Appellate Division determined two of the original sentences should have been imposed concurrently, the original 40-year sentence was reduced to 25. On remand, the sentencing court “reconfigured” the sentences to bring them up again to 40 years. CPL 430.10 prohibits the sentencing court from “modifying” a sentence after it has begun to be served. The “reconfigured” 40-year sentence was affirmed here by the Court of Appeals.  With respect to the consecutive sentences, the court explained:

Penal Law § 70.25 (2) mandates that concurrent sentences be imposed for “two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” We have held that, “[t]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue” to discern whether the actus reus elements overlap … . Even where the crimes have an actus reus element in common, “the People may yet establish the legality of consecutive sentencing by showing that the 'acts or omissions' committed by defendant were separate and distinct acts” … . Conversely, where “the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” … . The People bear the burden of establishing the legality of consecutive sentencing by “identifying the facts which support their view” that the crimes were committed by separate acts … .

Even if, as defendant contends, the statutory elements of his robbery and assault convictions overlap, the People have demonstrated in this case that the assault count and the robbery count at issue were committed by separate and distinct acts. People v Rodriguez, 2015 NY Slip Op 03877, CtApp 5-7-15

 

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Preservation by Objection Not Required When Defendant First Learns of Post-Release Supervision Moments Before Sentencing

In a full-fledged opinion by Justice Egan, the Third Department vacated defendant's plea to a probation violation because no mention of a period of post-release supervision was made until moments before sentencing.  The court determined there was no need to preserve the error by objection because the defendant had so little time between notification of the post-release supervision and sentencing:

…[W]hether preservation is necessary hinges upon whether the defendant “had ample opportunity to object after the initial [reference to postrelease supervision] was made and before sentence was formally imposed” … . Thus, where “the court first mention[s] postrelease supervision only moments before imposing the sentence,” thereby depriving the defendant of a meaningful opportunity to weigh his or her options at that stage of the proceeding, preservation is not required … .

Although we are mindful that the matter before us concerns a plea of guilty to a violation of probation — as opposed to a plea of guilty to a crime — the analysis employed by the Court of Appeals …is equally applicable here. As noted previously, County Court made no mention of postrelease supervision during the course of defendant's plea colloquy …, nor does the record indicate that defendant otherwise was made aware — prior to entering her plea to the probation violation — that postrelease supervision would be a component of her sentence … . Rather, the need to impose a period of postrelease supervision was first raised at sentencing — quite literally moments before defendant's sentence actually was imposed … . Under these circumstances, preservation was not required, and County Court's failure to apprise defendant that postrelease supervision would be a component of her sentence mandates reversal. People v Bolivar, 2014 NY Slip Op 02980, 3rd Dept 5-1-14

 

Attempted Criminal Possession of a Weapon Third Degree Is Not a Violent Felony When It is the Top Count of an Indictment—It is a Violent Felony Only If It Is a “Lesser Included” Offense

The Second Department determined defendant was improperly sentenced as a second violent felony offender.  Attempted criminal possession of a weapon in the third degree is not a violent felony when it is the top count in an indictment (as it was in this case).  It is only considered a violent felony when it is a “lesser included” offense:

In People v Dickerson (85 NY2d 870, 871-872), the Court of Appeals determined that a plea of guilty to attempted criminal possession of a weapon in the third degree, when charged in “the top count” of a superior court information, did not constitute a violent felony pursuant to Penal Law § 70.02(1)(d). Under Penal Law § 70.02(1)(d), the crime of attempted criminal possession of a weapon in the third degree constitutes a class E violent felony offense only when the defendant is convicted of such charge as “a lesser included offense . . . as defined in section 220.20 of the criminal procedure law.” CPL 220.20(1) defines a “lesser included offense” as one where the defendant pleads “to an offense of lesser grade than one charged in a count of an indictment.” “Thus, according to the plain statutory language, a class E violent felony offense is reserved for accuseds who plead guilty to attempted criminal possession of a weapon in the third degree as a lesser included offense under an indictment charging a greater offense” (People v Dickerson, 85 NY2d at 872). Here, in 2005, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the third degree as the sole count of a superior court information. Therefore, the defendant’s conviction of that crime, upon his plea of guilty, did not constitute a violent felony pursuant to Penal Law § 70.02 (1)(d) … . People v Millazzo, 2015 NY Slip Op 03569, 2nd Dept 4-29-15

 

Defendant Who Objected to the Amount of Restitution at Sentencing Was Entitled to a Hearing Even Though the Restitution-Amount Was (Apparently) Specified in the Plea Agreement

The Second Department determined defendant, who objected at sentencing to the amount of restitution, was entitled to a hearing, even though the specific restitution-amount was (apparently) made part of the plea agreement.  The restitution was related to the “buy money” used by the police in a related drug deal.  The court explained the relevant law:

Under Penal Law § 60.27(9), a defendant may be ordered to pay restitution for funds used by law enforcement in the purchase of drugs, if certain prerequisites are met. Before a defendant may be directed to pay restitution, a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the proper amount; or (2) the defendant requests a hearing (see Penal Law § 60.27[2]…). This procedure must be followed even if the plea agreement contains a provision for a specific amount of restitution … . People v Morrishill, 2015 NY Slip Op 03187, 2nd Dept 4-15-15

 

Conviction Based Upon a Plea Allocution In Which Defendant Was Not Informed of the Period of Post-Release Supervision Can Not Be Used as a Predicate Violent Felony for Purposes of Sentencing as a Persistent Violent Felony Offender

The Third Department determined a conviction based upon a plea allocution in which defendant was not informed of the period of post-release supervision (PRS) could not serve as a predicate felony for sentencing as persistent violent felony offender:

Defendant challenges the use of his 1999 conviction as a predicate violent felony, asserting that at the time of his plea to that charge he was not informed that the resulting sentence would include a mandatory period of postrelease supervision (hereinafter PRS). “Notwithstanding his failure to appeal from the [1999] conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained” … . It is well established that a court must advise a defendant of the direct consequences of a plea prior to sentencing, specifically including the existence and duration of any PRS requirement … .

Here, the transcript of defendant’s 1999 plea allocution reveals that he was not advised that his plea would result in a mandatory period of PRS. Rather, defendant was first informed about the PRS through the court’s pronouncement of his sentence. Defendant made comments expressing his surprise as to the PRS immediately thereafter, but he was not afforded an opportunity to withdraw his plea, either during his original sentencing or when he was later resentenced to adjust the duration of the PRS to conform with the requirements of Penal Law § 70.45. Given the apparent infirmities in defendant’s 1999 plea allocution, we find that County Court erred in accepting the resulting conviction as a predicate violent felony for the purpose of sentencing defendant as a persistent violent felony offender … . People v Brewington, 2015 NY Slip Op 02805, 3rd Dept 4-2-15

 

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Conditions of Probation Which Allowed Release of Defendant’s Pre-Sentence Investigation Report Illegal

The Third Department, in a full-fledged opinion by Justice Devine, determined two provisions of defendant’s sentence to probation which purported to allow release of defendant’s Pre-Sentence Investigation report (PSI) were illegal and must be vacated.  The court noted that the illegality of a sentence which is apparent from the record survives a waiver of appeal and the absence of an objection:

CPL 390.50 (1) provides that a PSI “is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court” (emphasis added). The court that is referenced in CPL 390.50 (1) is the sentencing court … . While the People argue that the challenged conditions constitute specific authorization of disclosure by the sentencing court, condition 17, on its face, is a blanket delegation to the Probation Department to authorize disclosure of the PSI to treatment providers if the department deems the request appropriate. In our view, such a general authorization of disclosure by the Probation Department is contrary to both the statutory mandate of specific authorization and this Court’s direction that only the sentencing court can grant that authorization.

Moreover, the requirement in condition 32 that defendant consent to disclosure of the PSI is similarly contrary to law. Under CPL 390.50, criminal defendants themselves are not entitled to their PSI in collateral proceedings, absent statutory authority, except under limited conditions, i.e., upon a proper factual showing of need … . Even when a defendant has demonstrated a need for disclosure, he or she is never “automatically entitled to an unredacted copy of [the PSI]” … . Rather, in light of the requirement of specific authorization and given the sentencing court’s discretion to except portions of a PSI from disclosure, the court must make a determination whether redaction is appropriate … . That is, under the statute, a defendant cannot demand or “consent” to release of the entire, unredacted PSI — only the sentencing court can permit the release of the PSI after the party requesting it has shown that the information cannot be obtained in any other way, and only after the court has considered whether redaction is necessary. People v Fishel, 2015 NY Slip Op 02808, 3rd Dept 4-2-15

 

Sentencing Court Must Place on the Record Its Reasons for Denying Youthful Offender Status

The Second Department noted that the sentencing court must always place on the record its reasons for denying youthful offender status to an eligible youth:

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 failed to adequately place on the record its reasons for denying the defendant youthful offender status. 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 Stevens, 2015 NY Slip Op 02794, 2nd Dept 4-1-15

 

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