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Constitutionality of Statute Allowing Defective Sentence to Be Remedied by a Sentence Without Post Release Supervision (CPL 70.85) Is an Open Issue Which Should Be Decided by the Sentencing Court in the First Instance/Crawford Motion Relieving Counsel of Perfecting an Appeal Because of the Absence of Non-Frivolous Issues Should Not Have Been Granted

The Court of Appeals determined the Appellate Division should not have granted counsel’s motion to withdraw from representing the defendant on appeal on the ground the appeal would be “wholly frivolous.”  There is an issue whether the statute which allows resentencing the defendant to a term of imprisonment without post release supervision after post release supervision had been (illegally) administratively imposed is constitutional:

Defendant timely appealed the resentence and was assigned counsel, who reviewed the file and informed defendant of our decision in People v Boyd (12 NY3d 390 [2009]), where this court upheld defendant Boyd's sentence under Penal Law § 70.85, but left open the constitutionality of that statute, stating that it should be decided by the sentencing court in the first instance.  Despite this open issue, counsel filed a motion pursuant to People v Crawford … arguing that there were no non-frivolous issues to be raised on defendant's behalf and asking to be relieved as counsel.  Defendant filed a pro se supplemental brief arguing that her sentence was illegal, and that she was denied effective assistance of counsel.  The Appellate Division granted counsel's motion and affirmed the resentence, without addressing defendant's pro se contentions (96 AD3d 1515 [2012]).  * * *

Defendant argues that her appeal was not wholly frivolous because she had two claims: (1) the claim that Penal Law § 70.85 is unconstitutional as applied to her case, and (2) that defendant was denied effective assistance of counsel at every level.  We agree with defendant that the Appellate Division erred in granting the Crawford motion.  Without expressing any opinion on the ultimate merits, at the time defendant's appellate counsel filed his Crawford motion, the claims to that court were not wholly frivolous and, therefore, the court should have denied appellate counsel's motion.  As a result, a reversal and remittal for a de novo appeal is warranted… . People v Beaty, 84, CtApp 1-16-14

 

Determination Whether Defendant Is a Youthful Offender Is Mandatory for Every Eligible Youth

Over a dissent, the Fourth Department determined the sentencing court did not make a finding whether the defendant was a youthful offender, as it was required to do.  The matter was sent back for the determination:

“Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant.  After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]).  The Court of Appeals has concluded that, by the use of the word “must,” the legislature has made “a policy choice that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain” … .  “[W]e cannot deem the court’s failure to rule on the . . . [issue] as a denial thereof” … .  We therefore hold the case, reserve decision, and remit the matter to County Court to make and state for the record “a determination of whether defendant is a youthful offender” … . People v Koons, 1077, 4th Dept 1-3-14

 

Restitution Hearing Required/Insufficient Proof to Substantiate the Amount/Conclusory Admission by Defendant Not Enough

The Third Department determined defendant was entitled to a restitution hearing, noting that the record did not include proof sufficient to substantiate the restitution amount.  The defendant’s stating a dollar amount, or a conclusory admission of the amount in a plea agreement, is not enough to meet the court’s and the People’s burden:

A restitution hearing “must be held where the record lacks sufficient evidence for a court to determine the amount of restitution ordered or the defendant requests such a hearing” … .  Although a defendant’s statement at the time of the plea or sentencing can constitute sufficient evidence, that statement must include a concession of facts concerning the amount of loss; a defendant merely stating a dollar amount or making a conclusory admission as part of a plea agreement will not satisfy the court’s obligation or the People’s burden … .  At sentencing here, defendant requested a hearing.  Additionally, despite defendant’s plea agreement, including a condition that he pay a specific amount of restitution, the record does not include sufficient proof to substantiate that amount.   Thus, we must remit for a restitution hearing… . People v Johnson, 104064, 3rd Dept 12-19-13

 

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Penal Law 70.85, Which Allows Resentencing without a Period of Post-Release Supervision to Remedy a Defective Sentence, Is Constitutional

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined Penal Law 70.85 is constitutional.  Section 70.85 allows the resentencing of a defendant who was not informed about post-release supervision to a sentence that does not include post-release supervision.  The statute was enacted to provide a remedy, other than vacation of the guilty plea, when a plea was entered in the absence of an explanation of the post-release supervision part of the sentence:

By now it is well established that the State Constitution requires a trial court to ensure that a defendant has a “full understanding of what the plea connotes and its consequences” … .  A guilty plea made without notification from the court about the direct consequence of a PRS term violates the Constitution because it could not have been “a voluntary and intelligent choice among the alternative courses of action”… . * * *

Mindful of the constitutional rights at issue…, we find that section 70.85 is a constitutionally permissible legislative remedy for the defectiveness of the plea.  Defendant’s plea was knowing and voluntary because the Legislature has changed the sentencing laws governing pleas vulnerable to …challenge.  Section 70.85 ensures that defendant, who is no longer subject to PRS, pleaded guilty with the requisite awareness of the direct consequences of his plea.  People v Pignataro, 213, CtApp 12-12-13

 

Resentencing to a Sentence Technically Different from the Sentence Agreed to in a Plea Bargain Okay—Resentence Comported With Defendant’s Reasonable Expectations

In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the defendant was properly resentenced even though the sentence imposed was technically different from the sentence agreed to in the plea bargain.  The defendant had agreed to a sentence of 25 years and five years for the two crimes, with the sentencing court retaining the option to sentence consecutively, which it did.  It turned out that the five-year sentence was illegal (it had to be a minimum of ten). The defendant was resentenced to the two crimes, but this time concurrently.  Effectively, therefore, the defendant’s original sentence was 30 years, but he was resentenced to 25:

“[A] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … .  “The choice rests in the discretion of the sentencing court” and “there is no indicated preference for one course over the other” … .

The sentencing court may have good reason to reject a defendant’s request to withdraw his plea.  Where, as here, years have gone by since the original plea, it may be difficult for the People to locate witnesses, obtain their renewed cooperation and proceed to trial on the “then stale indictment[]” … .  Under these circumstances, allowing a defendant to withdraw his plea would give him “more than he was entitled” to under the bargain he struck … .  Thus, the People “can hold a defendant to an agreed sentence rather than allow vacation of the plea when it would otherwise be prejudiced” … .

Moreover, specific performance of a plea bargain does not foreclose “technical divergence from the precise terms of the plea agreement” so long as the defendant’s reasonable expectations are met … .  * * *

Thus, if the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations.  Again, “the reasonable understanding and expectations of the parties, rather than technical distinctions in semantics, control the question of whether a particular sentence imposed violates a plea agreement”… .  People v Collier, 228, CtApp 12-12-13

 

 

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No Preservation Required to Review Validity of Guilty Plea and Immediate Sentencing In Absence of the Waiver of the Rights to a Jury Trial, to Confront Witnesses and to Avoid Self-Incrimination

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed two convictions because the defendant entered a guilty plea and was immediately sentenced without any discussion of the “Boykin” rights waived by the plea (trial by jury, confront accusers, avoid self-incrimination). The court determined that, under the facts, it was not possible or practical to preserve the error by motion:

…[I]n Lopez we carved out a narrow exception to the preservation requirement for the “rare case” in which “the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” (Lopez, 71 NY2d at 666).  We also recognized a limited exception in Louree, concluding that a defendant can raise a …claim on direct appeal because of “the actual or practical unavailability of either a motion to withdraw the plea” or a “motion to vacate the judgment of conviction” (Louree, 8 NY3d at 546; …).

Here, whether we characterize these cases as falling within the Lopez/Louree exception or treat defendant’s claims as implicating rights of a constitutional dimension directed to the heart of the proceedings — i.e., a mode of proceedings error for which preservation is not required — defendant’s Boykin claims are reviewable on direct appeal. People v Tyrell, 230, 231, CtApp 12-12-13

 

Presumption in Favor of Resentencing (re: the New Scheme for Drug Offenses) Not Rebutted—Supreme Court Should Not Have Denied Motion for Resentencing

The Second Department determined the factors relied upon by the resentencing court were not sufficient to overcome the presumption in favor of resentencing under Criminal Procedure Law 440.46:

The Supreme Court improvidently exercised its discretion in denying the defendant’s motion to be resentenced pursuant to CPL 440.46. Although resentencing is not mandatory, there is a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23; CPL 440.46[3]…). Under the circumstances of this case, the factors relied upon by the Supreme Court in denying the motion–the defendant’s criminal history, disciplinary infractions, and parole violations–are insufficient to overcome the statutory presumption. The defendant served more than 14 years in prison for a low-level drug crime committed when he was 19 years old. The defendant’s criminal history included only larcenous and low-level drug crimes, all committed before he was 20 years old. While the defendant violated his parole by failing to abide by certain parole rules, including, inter alia, by breaking curfew and by traveling to Georgia to be reunited with his family, he has never committed another crime or had a positive drug test. Under all of the circumstances presented here, “the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted”… . People v Simmons, 2013 NY Slip Op 08103, 2nd Dept 12-4-13

 

Defendant Should Have Been Advised of His Right to Be Heard in Resentencing Proceeding Pursuant to CPL 440.46

The Second Department determined the failure to inform defendant of his right to be heard in a resentencing proceeding pursuant to CPL 440.46 required a remittance:

The statutory procedures governing the determination of a motion for resentencing pursuant to CPL 440.46 provide, in pertinent part, that “[t]he court shall offer an opportunity for a hearing and bring the applicant before it” (L 2004, ch 738, § 23; see CPL 440.46[3]…). The defendant’s presence is not required for the court’s threshold determination of the purely legal issue of whether the defendant meets the statutory eligibility requirements for relief pursuant to CPL 440.46 …, but the defendant is entitled to appear before the court and to be given an opportunity to be heard with respect to the merits of the resentencing motion … .

Here, the defendant was not brought before the Supreme Court prior to the court’s determination that, although he met the statutory eligibility requirements, substantial justice dictated that his motion for resentencing should be denied. There is nothing in the record to indicate that the defendant was ever advised of his statutory right to be brought before the court, or that he knowingly, intentionally, and voluntarily chose to relinquish that right … .The Supreme Court therefore failed to comply with the statutory mandate… .  People v Duke, 2013 NY Slip Op 07983, 2nd Dept 11-27-13

 

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Count (on which Jury Could Not Reach a Verdict) Dismissed Before “Entry of Sentence” on the Remaining Count Can Be Reprosecuted after Appeal

The First Department determined the defendant could be retried on an attempted rape charge which was dismissed upon a motion by the prosecution after the jury was unable to reach a verdict on that count.  The defendant was convicted of the assault count.  The assault conviction was reversed on appeal and a new trial was ordered. The question before the court was whether, upon re-trial, the dismissed attempted rape count could be re-tried as well:

Upon remand, Supreme Court properly determined that the People were permitted to reprosecute the attempted rape charge, because that count of the indictment was deemed reinstated pursuant to CPL 470.55(1). Although the statute provides that a count is not deemed reinstated if it was dismissed on a “post-judgment order” (CPL 470.55[1][b]), the dismissal of the attempted rape charge occurred between the oral imposition of sentence and the entry of judgment … . There is nothing in the record to indicate that, before dismissing the count at issue, the court had done anything that could be construed as entry of a judgment. Since a judgment “is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence” (CPL 1.20 [15][emphasis added]), “post-judgment” can only mean after entry.

Double jeopardy concerns did not bar retrying defendant on the attempted rape count. The first jury never returned any verdict on that count. Furthermore, defendant had no legitimate expectation that the dismissal of that count was final and irrevocable As noted, the statute provides that a reversal granting a new trial would automatically reinstate any counts dismissed under the circumstances presented here. Moreover, the record establishes that when the People moved to dismiss, they were engaging in the common practice of dismissing a charge as sufficiently covered by a conviction on another charge, an exercise of prosecutorial discretion that was frustrated by the reversal of the conviction. Defendant had no legitimate expectation that in the event of a reversal he would receive the windfall of having the dismissed charge stay dismissed.  People v Thomas, 2013 NY Slip Op 07833, 1st Dept 11-26-13

 

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Resentencing to a Term of Imprisonment with a Maximum Greater than the Initial Sentence Violates Double Jeopardy Principles

The Third Department determined resentencing defendant to a term of imprisonment with a maximum greater than the initial sentence violated double jeopardy principles:

County Court violated double jeopardy principles when it imposed on defendant an aggregate sentence with a maximum of more than 10 years in prison.  “[T]he key to double jeopardy analysis of a sentence increase is whether the defendant had a legitimate expectation in the finality of his [or her] original sentence” … .  A court violates double jeopardy principles if it subjects a defendant to a greater maximum sentence upon resentencing after the original agreed-upon sentence has been determined to be illegal … .  At the time of resentencing, defendant had served two years of his 10-year prison sentence … .   As defendant had a reasonable expectation of finality in the maximum term of his prison sentence, namely that he would serve no more than 10 years in prison, imposing a maximum prison term greater than 10 years would run afoul of the double jeopardy clause … . Thus, we modify the resentence to an aggregate maximum of 10 years in prison.  People v DePerno, 105100, 3rd Dept 11-21-13

 

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