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Sentencing a Defendant with a Prior Felony Conviction as a First-Time Felon Is Illegal

The Fourth Department determined that sentencing a defendant with a prior felony conviction as a first-time felon is illegal:

…[T]he proper sentencing procedures pursuant to CPL 400.21 were not followed and thus that the sentence may be illegal. County Court sentenced defendant as a first felony offender, but, ” [w]hen it became apparent at sentencing that defendant had a prior felony conviction, the People were required to file a second felony offender statement in accordance with CPL 400.21 and, if appropriate, the court was then required to sentence defendant as a second felony offender’ ” … . “[I]t is illegal to sentence a known predicate felon as a first offender” (id. [internal quotation marks omitted]) and, inasmuch as we cannot allow an illegal sentence to stand, we modify the judgment by vacating the sentence imposed and we remit the matter to County Court for the filing of a predicate felony offender statement and resentencing in accordance with the law … . People v johnson, 2015 NY Slip Op 00062, 4th Dept 1-2-15

 

Stop and Investigative Detention of Defendant Was Proper Under DeBour Analysis/Defendant’s Absence from Initial Sandoval Conference Cured by His Presence at a Subsequent Sandoval Hearing/Defendant’s Sentence Reduced Based In Part on a Much Lower Sentence Attached to a Plea Offer

The Fourth Department determined that the arresting officer had enough information about the defendant’s behavior to justify stopping the defendant after he left a store with a plastic garbage bag (which turned out to be full of shirts on hangers).  The court explained and applied the DeBour criteria for street stops and investigative detention.  The court further determined that defendant’s absence from a discussion in chambers of the prior crimes about which the defendant could be questioned if he testified (a Sandoval hearing) was not reversible error because the same discussion was later held on the record in defendant’s presence.  The Fourth Department reduced defendant’s sentence, who was found to be a persistent felony offender, from 20 to 15 years, noting that he was a non-violent serial shoplifter and he had been offered a plea deal with a sentence of two to four years.  With respect to the legality of stopping and detaining the defendant, the court wrote:

…[T]he deputy sheriff observed defendant carrying the bag while walking away from the scene of a recently reported larceny and in the direction of the suspected getaway vehicle. Although there were other people in the parking lot at the time, defendant was the only person walking toward that vehicle and the only person carrying a large garbage bag, which is unusual in that setting. Based on those observations, we conclude that the deputy sheriff had the requisite founded suspicion that criminal activity was afoot sufficient to justify the common-law right of inquiry … .

Moving to the next step of the DeBour analysis, we conclude that the deputy sheriff’s questions of defendant were reasonably related to the scope of the circumstances that justified the interference … . In response to the deputy sheriff’s first question, defendant offered the obviously false answer that there was nothing in the bag, which contained 61 shirts on hangers. That false answer, combined with the information already obtained by the deputy sheriff, gave rise to a reasonable suspicion that defendant had committed or was committing a crime … . It thus follows that the deputy sheriff acted lawfully in stopping and detaining defendant for investigative purposes. People v Ellison, 2015 NY Slip Op 00015, 4th Dept 1-2-15

 

Only the Board of Parole Has the Authority to Impose Conditions On Postrelease Supervision/Fine or Restitution Imposed Without Having Been Discussed at Sentencing Must Be Stricken—Case Remitted

The Third Department noted that County Court should not have imposed conditions upon defendant's postrelease supervision because only the Board of Parole has that power.  The Third Department also noted that County Court should not have imposed a fine or restitution which were not mentioned during the plea proceedings, but the order of protection, which was discussed, should stand:

because only the Board of Parole is authorized to impose the conditions of a term of postrelease supervision (…Penal Law § 70.45 [3]; Executive Law §§ 259-c [2]; 259-i [3], [4]), County Court erred to the extent that it imposed certain conditions of defendant's postrelease supervision at sentencing and the conditions should be stricken. Similarly, inasmuch as neither a fine nor restitution was mentioned at the plea proceedings, the matter must be remitted to allow County Court to either impose the sentence that was negotiated or to give defendant an opportunity to withdraw his plea before imposing the enhanced sentence … .

In contrast, while only an order of protection against the victim was discussed during the plea agreement, “[o]rders of protection are not punitive in nature and are not necessarily dependent on, or the result of, a plea agreement” … . Accordingly, County Court did not err when it imposed an order of protection in favor of the victim and her family at sentencing and, notwithstanding this Court's determination to remit this matter, the order of protection remains in place. People v Curry, 2014 NY Slip Op 09069, 3rd Dept 12-31-14

 

Civil Forfeiture Should Not Have Been Made Part of Defendant’s Sentence In the Absence of Defendant’s Voluntary Agreement

The Second Department noted that civil forfeiture should not have been imposed as part defendant's criminal sentence in the absence of defendant's voluntary agreement:

In appropriate circumstances, the voluntary settlement of a potential civil forfeiture action pursuant to CPLR article 13-A (see CPLR 1311) may be made a lawful condition of a negotiated plea (see CPL 220.50[6]), and an order of forfeiture pursuant to a valid settlement of a civil forfeiture claim may be included as part of the judgment of conviction (see Penal Law § 60.30). Civil forfeiture, however, is not an authorized component of a criminal sentence.

Here, the plea minutes do not reflect that the defendant voluntarily agreed to the civil forfeiture of his mobile telephone and $900 cash as a condition of the plea … . Then, when the defendant refused to sign the forfeiture documents at the time of sentencing, the County Court improperly imposed civil forfeiture as a portion of the criminal sentence. Accordingly, under the particular circumstances of this case, as the defendant correctly contends, the portion of the sentence which imposed the civil forfeiture of the defendant's mobile telephone and $900 cash must be vacated … . People v Carmichael, 2014 NY Slip Op 09012, 2nd Dept 12-24-14

 

CPL 330.30 Motions Based Upon Matters Outside the Record Properly Denied/Although Not the Case Here, Such Motions Might Be Deemed Premature CPL 440.10 Motions and, As Such, Considered by the Trial Court/Concurring/Dissenting Opinions Disagreed About Whether the Persistent Felony Offender Statute, Which Allows the Judge to Exercise Discretion in Applying the Statute, Violates Apprendi v New Jersey (Requiring Facts Upon Which an Enhanced Sentence May Be Based to Be Decided by the Jury Under a Beyond a Reasonable Doubt Standard)

The Court of Appeals, in a brief memorandum decision, determined that motions to set aside the verdict (Criminal Procedure Law [CPL] 330.30) made in two the cases before the court were properly denied because they raised issues which were outside the record. The court further determined that the persistent felony offender statute (PFO) at issue in one of the cases was properly applied. The court noted that, in some situations, 330.30 motions might be deemed (premature) motions to vacate the conviction (CPL 440.10) and considered by the trial court in that context, but no attempt to invoke CPL 440.10 was made here.  Concurring and dissenting opinions dealt with whether the persistent felony offender statute (PFO) violated Apprendi v New Jersey, 530 US 466 (2000), because factual findings supporting an enhanced sentence are made by the judge, not the jury, and whether the motion to set aside the verdict on the ground that the courtroom was closed to the public for part of the trial should have been considered as a (premature) CPL 440.10 motion to set aside the conviction. People v Giles, 2014 NY Slip Op 08871, CtApp 12-18-14

 

Attempted Murder and Attempted Robbery Convictions, Under the Facts, Required Concurrent, Not Consecutive, Sentences—Applicable Law Described in Some Depth

The Second Department determined defendant, who was convicted of attempted murder and attempted robbery, must be sentenced to concurrent, not consecutive, terms of imprisonment for those two offenses.  The defendant displayed a handgun and demanded money from the victim.  When the victim refused, the defendant struck and shot the victim:

Penal Law § 70.25(2) provides that concurrent sentences must 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.” “Thus, sentences of imprisonment 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” … . However, “trial courts retain consecutive sentence discretion when separate offenses are committed through separate acts, though they are part of a single transaction” … .

Here, consecutive sentences may not be imposed because the act which constituted the offense of attempted murder in the second degree was a material element of the offense of attempted robbery in the first degree. A person is guilty of attempted murder in the second degree when, with intent to commit murder, he or she engages in conduct which tends to cause the death of another person (see Penal Law §§ 110.00, 125.25[1]). A person is guilty of attempted robbery in the first degree, under the Penal Law section charged here, when he or she attempts to forcibly steal property and is armed with a deadly weapon (see Penal Law § 160.15[2]). A person forcibly steals when he or she, in the course of committing a larceny, uses or threatens the immediate use of physical force to prevent or overcome resistance to the taking of the property or to compel the owner to deliver the property (see Penal Law § 160.00[1], [2]). Here, the actus reus of the attempted murder charge was the firing of three shots at Moore, and the actus reus of the attempted robbery charge was the use or threatened use of physical force to attempt to steal property while armed with a deadly weapon. The act which constitutes attempted murder in the second degree is subsumed within the element of using force. Thus, the act constituting attempted murder in the second degree can be a material element of attempted robbery in the first degree … .

In addition, the People have failed to establish that the acts constituting the attempted robbery in the first degree were separate and distinct from the acts constituting the attempted murder in the second degree … . Here, consecutive sentences could not be imposed because it is impossible to determine whether the firing of three gun shots at Moore, which formed the basis of the verdict of guilt on the attempted murder charge, was also the use of force which formed the basis of the jury’s verdict of guilt on the attempted robbery charge … . Therefore, the People have failed to establish that the acts constituting attempted robbery in the first degree were separate and distinct from those constituting attempted murder in the second degree. People v Grant, 2014 NY Slip Op 08859, 2nd Dept 12-17-14

 

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Because the Presence of THC Can Be Detected Long After Marijuana Use, the People Were Not Able to Prove Defendant Used Marijuana During a One-Week Furlough

The Third Department determined that the People did not prove by a preponderance of the evidence that the defendant used marijuana when he was on furlough, thereby justifying an enhanced sentence.  THC can be detected long after marijuana-use.  The proof therefore did not establish the defendant used it during a one-week furlough:

…[W]e find merit in defendant’s argument, preserved by objection at sentencing …, that the People failed to establish at the enhancement hearing that he violated a condition of his furlough, as the proof did not demonstrate when he used marihuana, i.e., that it occurred during, rather than prior to, his furlough. When the court granted defendant a one-week furlough, it warned him that it would enhance his prison sentence to 4½ years if he were “charged with any criminal conduct” or “arrested for any reason” and that, “[w]hile you are out, if you engage in the use of any illegal drugs or alcohol and I find out about it” (emphasis added), the enhanced sentence would be imposed. At the hearing, while the investigator testified that defendant’s test was positive for THC, he was not able to estimate the date when defendant used marihuana, and conceded that it could have been months earlier; he also recounted that defendant stated, after being told of the positive test result, that “he had been smoking in the jail prior to his furlough” (emphasis added). Moreover, the reference guide for the test, which was admitted into evidence at the hearing, indicates that “[m]any factors influence the length of time required for drugs to be metabolized and excreted in the urine” and that the “general time” established for cannabinoids with “chronic use” is “less than 30 days typical.”… Defendant admitted to previously being a daily, heavy user of marihuana, and testified that he did not use marihuana during his furlough.

Given the foregoing, we find that the People did not prove by a preponderance of the evidence … and the court did not have a “legitimate basis” for concluding — that defendant used marihuana during his furlough… . People v Criscitello, 2014 NY Slip OP 08678, 3rd Dept 12-11-14

 

Defendant’s Inability to Articulate a Reason for the Withdrawal of His Plea Was a Proper Basis for Refusal of His Request for An Adjournment of Sentencing to Consider Withdrawal of the Plea

The Court of Appeals, over a dissent, determined defendant’s request for an adjournment of sentencing to consider whether he should withdraw his plea was properly denied (despite the absence of prejudice to the People) because defendant was unable to articulate a reason for withdrawing the plea:

Whether to grant an adjournment is within Supreme Court’s discretion … . Based upon the colloquy at sentencing, defendant had more than a fair amount of time to speak with counsel regarding his interest in withdrawing his plea. Although defendant was out of custody for two months, having been released on his own recognizance following his plea allocution, the record reflects that he only contacted defense counsel the day before sentencing in order to discuss his plea concerns. Despite defense counsel’s inability to meet with defendant that day, defense counsel stated during sentencing that she had spoken with defendant that morning. People v Spears, 2014 NY Slip Op 08221, CtApp 11-25-14

 

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Petition by the District Attorney Against the Sentencing Judge Seeking Vacation of the Sentence Imposed, Because the District Attorney Did Not Agree to It, Dismissed—Granting the Petition Would Direct the Judge to Violate Criminal Procedure law 220.10(4) and Would Violate the Defendant’s Protection Against Double Jeopardy

The Fourth Department dismissed a petition brought against a judge by a district attorney seeking the vacation of a plea on the ground that the district attorney did not agree to it.  The district attorney argued he had agreed to a six-year sentence, not the five-year sentence imposed by the judge:

The extraordinary remedy of mandamus ” is never granted for the purpose of compelling the performance of an unlawful act’ ” …, and the Court of Appeals has repeatedly held that, after the entry of judgment and the commencement of sentence, courts have no statutory or inherent authority to vacate, over a defendant’s objection, a plea taken in contravention of CPL 220.10 or related statutory provisions … . Indeed, absent extrinsic fraud, “[i]n no instance ha[s the Court of Appeals] recognized a court’s inherent [or statutory] power to vacate a plea and sentence over defendant’s objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment” … . Thus, mandamus does not lie here because we cannot compel respondent to exceed his statutory and inherent authority by directing him to vacate a plea taken in violation of CPL 220.10 (4) (a) after the commencement of sentence.

Furthermore, “restor[ing] the matter to its pre-plea status,” as petitioner seeks, would violate defendant’s constitutional protections against double jeopardy … . Contrary to petitioner’s contention, CPL 40.30 (3) “does not aid the analysis of the double jeopardy issue” … . The Court of Appeals has held that a plea taken without the People’s consent is not a nullity for purposes of that provision … .

Apart from the legal infirmities of petitioner’s position, we further conclude that the record does not factually support that position. Specifically, the record belies petitioner’s contention that his consent to defendant’s plea was conditioned on the imposition of a determinate, six-year term of imprisonment. Matter of Budelmann v Leone, 2014 NY Slip Op 07797, 4th Dept 11-14-14

 

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Guilty Plea Based on a Sentence Promise that Neither the Court Nor the Parties Realized Was Illegal Requires Vacation of the Conviction in the Absence of Preservation—Notwithstanding the Fact the Sentence Was Ultimately Rendered Legal by an Enhancement Imposed Because the Defendant Violated the Terms of His Release Pending Sentencing

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissent, determined that a guilty plea cannot stand where neither the court nor the parties was aware that the agreed upon sentence was illegal, even though the sentence was rendered “legal” by an enhancement.  The sentence promise was three years, but, given the defendant’s prior record, the minimum sentence he could legally receive was six years. Because the defendant was found to have violated the terms of his release pending sentencing, he was ultimately sentenced to six years as an enhanced sentence. The court summarized the facts and its ruling as follows:

The principal question presented here is whether a judgment of conviction, entered upon a guilty plea to a particular crime, may stand when the record discloses that neither the court nor the parties realized that the agreed upon sentence, to be imposed if defendant complied with the conditions of the plea, was illegal. Although defendant violated the conditions of his plea, and the enhanced sentence was legal, defendant is entitled to a plea vacatur for two fundamental reasons. First, defendant’s constitutional claim that his plea violated due process because it was induced by an illegal promise need not be preserved. Second, to accept a guilty plea induced by an illegal promise affects the fairness, integrity and public reputation of judicial proceedings as the defendant could not have had a full understanding of what the plea connotes and its consequences … or “exercised a voluntary and intelligent choice among the alternative courses of action open to the defendant” … . People v Williams, 2014 NY Slip Op 07458, 1st Dept 10-30-14

 

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