People v Singleton

[*1] People v Singleton 2005 NY Slip Op 51295(U) Decided on June 30, 2005 Supreme Court, New York County Stone, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2005
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

Michael Singleton, Defendant.



6631/89



For the People: Harvinder S. Anand

For the Defendant:Brian Stull, Esq.

Lewis Bart Stone, J.

Michael Singleton ("Singleton") was convicted after a jury trial on December 12, 1990, of the crimes of Criminal Possession of a Controlled Substance in the First Degree (a class A-I felony), Criminal Possession of a Controlled Substance in the Third Degree, (a class B felony), Criminal Possession of a Weapon in the Second Degree (a class C violent felony) and Criminal Possession of a Weapon in the Third Degree (a class D felony). He was sentenced as a second felony offender (PL§70.06(3)) on January 4, 1991, by the Hon. Frederic Berman to concurrent terms of 18 years to life on the class A-I felony, 5-10 years on the class B felony, 4-8 years on the class C felony, and 2 ½-5 years on the class D felony.

Singleton has applied pursuant to Laws 2004, Chapter 738, Section 23 ("Section 23") for re-sentencing on his conviction on the class A-I felony. As Judge Berman no longer sits as a Judge in the New York Courts, this matter was referred to this Court for determination.

Following the procedures established by Section 23, at Singleton's arraignment for re-sentencing, at which he was present, this Court reviewed written submissions and heard argument from the People and the Defense. The People sought to re-sentence Singleton as a second felony offender previously convicted of a prior violent felony (PL §70.71) to a determinate term of 18 years, with five years of post release supervision, based upon Singleton's institutional record, the facts of the instant crime, and what the People believed to be his criminal history of three felony convictions, one of which was a violent felony. Although Singleton was not adjudicated a violent predicate felon at the time of the 1991 sentence, the People [*2]sought to have him so adjudicated for this re-sentencing. At the arraignment before the re-sentencing as a violent predicate felon, Singleton raised a number of objections to such adjudication. The People and Singleton filed motions on this issue and an evidentiary hearing was held. Singleton urged this Court to re-sentence him as a non-violent predicate felon to the minimum determinate sentence allowed under Section 23, which is 12 years, with five years post release supervision, which would have allowed him to be released immediately. After the hearing, a briefing schedule was established. The People submitted papers which included a transcript of Singleton's January 1991 sentencing on the A-I felony conviction in which a New Jersey conviction was referenced by the People as well as an updated rap sheet and an official certificate from Essex County, New Jersey, which disclosed a May 18, 1981 conviction in New Jersey for Third Degree Unlawful Possession of a Weapon, which had not been shown on the rap sheet submitted at the arraignment. Based upon this New Jersey conviction, the People amended their recommendation they had made at Singleton's arraignment and recommended that he be re-sentenced as a violent predicate felony to a determinate term of 19 with 5 years post release supervision.

As Singleton had been convicted of an A-I drug felony, Section 23 qualifies him for consideration for re-sentencing. This Court must therefore, upon such application, consider re-sentencing him and if it does, make written findings of fact and give its reasons and conclusions.

As a condition to a re-sentence, a defendant shall be re-sentenced "unless substantial justice dictates that the application should be denied." Only if the Court so finds may a defendant be re-sentenced. L. 2004, Ch. 738, §23. Singleton urges and the People have agreed, that such condition has been met; this Court concurs. Accordingly, the Court has proceeded to re-sentence Singleton under Section 23.

Section 23 allows the Court to hold a factual hearing in order to make appropriate findings of fact. Here, the only "fact" in dispute was whether Singleton's Westchester conviction was a conviction for a violent felony.[FN1] At the hearing, the People presented the testimony of Dean Wood ("Wood"), a clerk of the Westchester County Court, and through him submitted the court file relating to Singleton's Westchester conviction. Both parties presented arguments and submitted written memoranda analyzing the evidence presented at such hearing and the legal implications of the facts. Singleton contends that he cannot now be adjudicated a violent predicate felon because 1) the People have failed to prove that his 1981 [*3]Westchester conviction was for a violent felony, and 2) even assuming the Court finds such conviction to be for a violent felony, since Singleton, when sentenced on the instant case in 1991, was not adjudicated to be a violent felon, the "law of the case" doctrine prohibits the Court from re-sentencing him as a violent predicate felon.

FINDINGS OF FACTS

In a buy and bust operation, an undercover police officer entered an apartment at 416 West 129th Street (the "Apartment") on November 19, 1986, where he met Singleton, his half brother and third individual. When the undercover requested three grams of cocaine, Singleton asked who sent him and the undercover gave a fictitious name. Singleton demanded that the undercover take him to such person. The undercover, complying with the demand, left the apartment with Singleton, pretending to look for the fictitious person. While they walked, Singleton displayed a loaded revolver, which the undercover and other members of the field team wrestled away from Singleton who fled. The field team immediately executed a search warrant at the Apartment and recovered 19 ounces of cocaine, one ounce of heroin, ammunition which fit the revolver, $13,000, drug paraphernalia and Singleton's personal papers. Singleton, who lived in the Apartment, had been released on parole from prison on a prior drug conviction only two weeks earlier.

Singleton remained at large for 2 ½ years. He was arrested on this case when he was discovered to be incarcerated at Riker's Island on a different charge.

Singleton was convicted after a jury trial and sentenced on January 4, 1991 as set forth above. Defendant appealed twice and the conviction was affirmed by the Appellate Division in 1993 and 2004. People v. Singleton, 195 AD2d 339 (1st Dept. 1993); lv to app. denied. 82 NY2d 903 (1993); People v. Singleton, 3 AD3d 408 (1st Dept. 2004); lv. to app. denied. 2 NY3d 746 (2004). In July 2002, Singleton moved to set aside the sentence as unconstitutionally cruel and unusual pursuant to CPL §440.20, which was denied by Justice John E.H. Stackhouse on August 28, 2002.

At the time of his sentencing, Singleton had been previously convicted of the felony of Third Degree Unlawful Possession of a Weapon in Essex County, New Jersey on September 30, 1981,[FN2] Criminal Possession of a Weapon in the Third [*4]Degree, a class D felony in Westchester County on October 21, 1981, Criminal Sale of a Controlled Substance in the Third and Fifth Degrees, class B and D felonies respectively, in New York County on June 14, 1984. Although the sentencing for the last two crimes was on the same date, such crimes were separate crimes, respectively committed on August 18, 1982 and March 1, 1984.

At his January 4, 1991 sentencing, Singleton was sentenced as a second felony offender based on a Predicate Felony Statement filed at sentencing, based on Singleton's June 14, 1984 conviction for Criminal Sale of a Controlled Substance in the Third Degree, a non-violent felony. At such sentencing, Singleton admitted the allegations in the Predicate Felony Statement and declined to challenge his June 14, 1984 conviction. He was adjudicated a predicate felon, and received the sentence described above.

The People have now submitted for this re-sentencing a new Predicate Felony Statement, based on Singleton's October 2, 1981 Westchester conviction, and have requested that this Court find Singleton a second felony offender with a prior violent felony offense pursuant to PL §70.71.

Under Section 23, the sentence range for re-sentencing for a non-violent predicate felon is a determinate sentence between 12 to 24 years and the sentencing range on re-sentencing for a second offender with a prior violent felony is a determinate sentence between 15 to 30 years. Accordingly, the difference between the two affects Singleton's sentence on both the low and high ends.

Singleton admitted all allegations of this new Predicate Felony Statement, except that he controverted the allegation that his conviction in Westchester was for a violent felony. He did not challenge the constitutionality of such conviction. As Singleton did not concede that his Westchester conviction was for a violent felony, the People, to prove such allegation, submitted evidence at a hearing before this Court on May 6, 2005. Such evidence consisted of records of the Westchester Court including the file relating to Singleton's indictment and conviction. These documents were introduced through Wood's testimony, who also testified as to the completeness of such file and to certain other records. This Court finds Wood credible. Singleton acknowledges that he was convicted in Westchester County under PL §265.02. However, the Certificate of Disposition does not recite under which subsection of PL [*5]§265.02 he was convicted. This is crucial as violations of subsections one through three of the statute constitutes non-violent felonies and violations of subsections four through eight constitute a violent felonies. The People introduced Singleton's Westchester County indictment in which the sole count charged him with Criminal Possession of a Weapon in the Third Degree under PL §265.02 (4), a violent felony. The evidence at the hearing showed that Court files contained no superior court information ("SCI"). The People argued that because there was an indictment and no SCI, the only felony to which Singleton could have been convicted under PL §265.02 was a violent felony. The People also introduced from the Westchester Court County file entitled "Request for Probation Investigation" which stated that Singleton was convicted "as charged, Criminal Possession of a Weapon in the Third Degree F/S", "F/S" meaning "in full satisfaction of the indictment." Singleton, in opposition, argued that the evidence was inconclusive, and that Wood was not employed at the time of Singleton's conviction and had not made the record entries. This Court rejects such contentions and finds that the People have established that Singleton's Westchester conviction was for violation of PL §265.02(4), and thus was for a violent felony. In meeting their burden to establish the fact of a predicate felony, the Court may rely on the regularity of official court documents submitted. The Court need not address what level of proof might be necessary to overcome this presumptive regularity as Singleton has submitted no evidence of irregularity. Baseless speculation is not evidence.

Singleton further asserts that under the "law of the case" doctrine, because of his previous adjudication as a predicate felon in 1991 (which was based on a convictions for an admittedly non-violent felony), this Court is now prohibited from finding him a violent predicate felon based on a different conviction, i.e., his Westchester violent felony conviction. The "law of the case" doctrine applies to create finality in a case so that, once determined by a court, an issue may not be reopened except by direct appeal. The "law of the case doctrine" contemplates that the parties had a full and fair opportunity to litigate the initial determination. People v. Bilsky, 95 NY2d 172, 175 (2000). Thus, an initial issue whether the Court in 1991 implicitly or explicitly determined the question, or even considered it. See Gilligan v. Reems, 255 AD2d 486, 487 (2d Dept. 1998). The record shows that the People alleged the non-violent drug felony conviction in the 1991 predicate felony statement for that Court to determine that Singleton was a predicate felon and that his Westchester conviction was not submitted to that sentencing Court at such time for such purpose.

To establish that a defendant is a predicate felon, the People need only submit [*6]a single qualifying felony in their Predicate Felony Statement. No rule of law requires them to submit any particular prior felony for such purpose when a defendant has more than one which would qualify.[FN3] Why the People elected to submit Singleton's 1984 New York County conviction rather than his 1981 Westchester conviction does not appear from the record. The Court may speculate [FN4] that as the submitted conviction was obtained by the New York County District Attorney, it was more convenient for that office, which prosecuted Singleton in this case, to document and use the drug conviction, because the practical outcome of Singleton's sentence would not be different. Another speculation is that because the 1984 conviction did not require the People to offer proof of tolling of the ten-year period by incarceration for its effectiveness, it was simpler to use the 1984 conviction. Further, at the time of Singleton's conviction there was no distinction in sentencing on an A-I felony between a prior violent or non-violent felony. Also, because the A-I sentence was so long it would have also been irrelevant whether the weapons charge on which Singleton was also sentenced based on a prior violent or non-violent felony. While if there was no A-I charge, it might have made a difference whether Singleton was or was not a violent predicate felon, the A-I charge was present. Thus, no "law of the case" theory binds this Court as to the status of the Westchester case - the sentencing Court in 1991 never addressed such conviction. This conclusion does not decide or address what the impact on this Court's re-sentence would have been had the sentencing Court in 1991 considered the Westchester decision and had either then determined that it was not for a violent felony or that the People had submitted such case in their Predicate Felony Statement and had not alleged that such conviction was for a violent felony.

Singleton also objects to his re-sentencing pursuant to PL §70.71 on the grounds that it would result in an "enhancement" of his sentence, citing Apprendi v. New Jersey, 530 US 466 (2000), and its progeny for the proposition that any fact which, if found, which would enhance a sentence requires a jury to find such fact. [*7]The Apprendi line of cases do not apply here for several reasons. First, Singleton does not face an "enhanced" sentence. Any sentence he may receive in this re-sentencing proceeding being at most, 25 years, is less than the original sentence he received in 1991 of 18 to life or even the original sentence he could have received of 25 to Life. Second, under Section 23, Singleton gets a "free look" at his re-sentence and if not satisfied, he can withdraw his application to be re-sentenced, insuring that he can do no worse than the initial sentence he received. Thus, whatever "enhanced" means, Singleton can make his own evaluation and avoid any enhancement by reason of re-sentencing under Section 23. This Court will not presume he will act irrationally.

Second, Aprendi itself and its progeny expressly exclude from those "facts" for which a jury finding is required, the fact of any prior conviction. Singleton's 1981 Westchester conviction and the facts of such conviction clearly fall into this category. Third, the applicability of such cases to New York sentencing procedures has recently been clarified. In New York, the Apprendi issue was of particular interest in connection with sentences for persistent felony offenders (see PL §70.10), where certain matters which may not have been found by the jury for conviction could be considered by the Court in determining a sentence. In People v. Cephas, 2003 WL 21783355 (NY Co. Sup. Ct. 2003) this Court agonized over this Apprendi issue in sentencing Cephas as a "discretionary" persistent felon in a way to pass muster had Apprendi and its progeny applied to such sentencing procedures.

This Court recognized that People v. Rosen, 96 NY2d 329 which had been decided by the Court of Appeals in 2001, had fully endorsed a Court utilizing facts relating to prior convictions in making its findings in a discretionary predicate sentencing proceeding. The Court also recognized that Apprendi and its progeny were subsequently decided by the United States Supreme Court, whose decisions also bind this Court. To reconcile the cases, the Court following Rosen, proceeded to sentence Cephas, but did so by limiting its consideration of facts to avoid any issue under Apprendi, considering only Cephas' prior convictions, the essential elements thereof, his judicial admissions (in his allocutions in prior convictions) and in his unambiguous admissions in his sentencing procedure.

Singleton, complimenting this Court for its astuteness in Cephas, urges it to follow that holding. Such hope is misplaced. As this Court noted in Cephas, it construed the New York sentencing procedures for a "discretionary" persistent felon so as to both avoid possible constitutional issues under the Apprendi line of cases and to carry out the intent of the Legislature and to follow decisions which bound the Court. As a result of two recent decisions, People v. Rivera, NY2d , WL [*8]1362184 (2005) by the New York Court of Appeals, and Brown v. Greiner, 409 F3d 523 (2d Cir. 2005) by the Federal Second Circuit,[FN5] the doubts expressed by this Court in Cephas would not again by expressed, and the Court would not have found the necessity to craft a restricted hearing to avoid the possible Federal constitutional issues suggested by Apprendi. Both the New York Court of Appeals and the Second Circuit have now held that in sentencing a discretionary persistent felon, the Court may consider any "facts" relating to prior crimes, effectively limiting Apprendi "facts" which must be found by a jury to facts relating to the instant crime for which the conviction was imposed where the enhancement of the sentence was to be based on such facts. The facts of a prior conviction and the exercise of the usual judicial discretion in fixing sentence within statutory parameters were held to be outside the scope of Apprendi. As the latest word on this question has been set forth by the Court of Appeals in Rivera, this Court being bound must follow such rule.[FN6] While Rivera

related to discretionary persistent felon determinations, its relevance here is clear. Not only is it clear, but its logic applies a fortiori here, where the question before the Court is the reduction of Singleton's sentence as distinct from its enhancement. Accordingly, all "facts" relating to prior crimes are fair game and are available for full consideration by this Court.

Accordingly, this Court may consider Singleton's entire criminal history under [*9]Section 23 to determine his new sentence, and has done so. As stated previously, Singleton's first felony conviction was on July 28, 1981 in Westchester County for the violent felony of Criminal Possession of Weapon in the Third Degree, for which he received a sentence of 60 days. Singleton's next conviction was in Essex County, New Jersey on September 30, 1981, for of Unlawful Possession of a Weapon for which he received a sentence of 120 days and 3 years probation.[FN7] On June 14, 1984, he plead guilty to two felonies committed on separate days, Criminal Sale of a Controlled Substance in the Fifth Degree, a D felony, and Criminal Sale a Controlled Substance in the Third Degree, a B felony, and received concurrent sentences of 2-4 years. On December 12, 1990, he was convicted of the instant case of an A-I felony, as well as of three other felony charges, which included the weapons charge, for which he was sentenced to concurrent time. Thus, Singleton, prior to the crimes for which this Court is re-sentencing him, has a total of four prior felony convictions, including two weapons charges, one in New York and one in New Jersey. This Court has found that the Westchester conviction was a violent felony conviction. Although this Court has not been asked to arraign or adjudicate the defendant to be a predicate felon based on his New Jersey conviction, the Court does note that such case was a weapons case involving an illegal firearm.

During his incarceration, Singleton had been found to have committed two Tier II and three Tier III offenses. His latest offense occurred in May of 2002 when he committed a Tier III offense. Two Tier III offenses were committed in March and October 2000. The other two Tier II offenses were committed in 1999 and 1991.

REASONS FOR RE-SENTENCING

Section 23 provisions for the reconsideration of earlier class A-I drug sentences became law in 2004. By reason of its purpose, it presents a new paradigm for sentencing, requiring the Court, inter alia, to consider the "institutional record of confinement" of the defendant. The Court is unaware of any other New York sentencing rule including such criterion. Further, by reason of the assignment of this matter to this Court, which did not preside over the trial, this Court cannot assess the flavor of the trial and must make its determination solely on the record on the submissions of the parties. [*10]

The Court can, however, take judicial notice of the long and public debate which led to the passage of Chapter 738 and Section 23. While one issue was an objection to the general severity of penalties for drug crimes which led to a general prospective reduction of sentence ranges (except where a defendant had prior convictions for certain violent crimes),[FN8] the legislation also addressed the publicly debated issue of the supposedly naif who was involved, but not too much, in a drug transaction involving a large amount of drugs, and who had been subjected to a long prison term by reason of acting in concert theories which penalized all participants in a criminal act with a high minimum sentence, regardless of the extent of their participation. As Section 23 expressly authorizes the re-sentencing court to order a shorter or longer fixed sentence on re-sentencing than the prior minimum of the indeterminate sentence, this indicates that the Legislature wished to distinguish between major players and bit players in a drug selling tragedy. At the time of his arrest on the A-I, Singleton had already been convicted of two separate drug sales and two weapons possession crimes. He possessed a gun and was convicted of such possession for the third time, committed at the time he committed of the A-I felony in question. He was the target of the investigation which operated out of his apartment. Nineteen ounces of cocaine, 1 ounce of heroin, ammunition and drug paraphernalia were recovered from the apartment. Proof at trial included that he lived in the Apartment, ran the operation, and even interrogated the undercover as to who had sent him. Singleton cannot argue that he was a minor participant or a naif. As a regular weapons violator, he was also within the class for whom the Legislature imposed longer rather than shorter sentences which were newly enacted for a non-violent or non-dangerous person.

In considering Singleton's "institutional" record of confinement, the Court notes that from 1991 to date, Singleton has not been a model prisoner, having committed a total of two Tier II and three Tier III infractions, some of which are [*11]recent. On the other hand, he has only averaged one infraction every two to three years.

In specifically requiring the Court to consider applicant's "institutional"record of confinement, the Legislature indicated the importance of such post-sentence behavior in making a re-sentence decision . By not mandating any specific method of analyzing such a record, however, the Legislature has left it to the discretion of the Court how to consider such record. While Singleton has had five infractions, the Court will not penalize him in light of the number of years he has been incarcerated. Nor will the Court grant him any reward for his institutional record.

Singleton has offered some evidence of rehabilitation while incarcerated and proposes to lead a productive law-abiding life when released. He cites his relationship with his daughter who visited him while he was in jail and who has academically succeeded despite his absence. He includes a DVD from a television interview with him and also attached exhibits which show accomplishments while in jail. The DVD, however, focuses primarily on the impact of Singleton's incarceration on Singleton's family, a fact of life for families of incarcerated felons, who are commonly collateral innocent victims of a felon's criminality.

Section 23 requires that upon an application such as Singleton's, the Court must propose a new sentence (and so inform the defendant) unless substantial justice dictates denial of such application. Based on the findings of facts, conclusions of law and reasons above set forth,[FN9] this Court does not find that substantial justice dictates denial of such application. Accordingly, the Court by this order, offers a re-sentence to Singleton.

Based on the foregoing, Singleton is re-sentenced to a determinate sentence of 18 years on his conviction for the crime of Criminal Possession of a Controlled Substance in the First Degree, followed by five years of post-release supervision, to be served, concurrently with the sentences heretofore imposed upon him upon his convictions of Criminal Possession of a Controlled Substance in the Third Degree, and Criminal Possession of a Weapon in the Second and Third Degrees. This sentence is subject to its acceptance by Singleton.

This sentence is deemed by the Court to be appropriate even if Singleton was [*12]to be re-sentenced at this time only as a predicate felony and not as a predicate violent felon. Eighteen years is well within the re-sentencing parameters under Section 23 for a predicate non-violent felon, and if the Court were bound by the law of the case rule, it would still consider the fact of Singleton's weapons convictions, one in New Jersey, one in Westchester and one in New York County (in this case) and Singleton's violent behavior in the instant crime as meriting such a sentence.

This constitutes the judgement and sentencing order of the Court.

DATED: JUNE 30, 2005

NEW YORK, NEW YORK

_________________________

Hon. Lewis Bart Stone

Justice of the Supreme Court

Footnotes

Footnote 1: While Singleton also disputed whether, under law, the People may now have him sentenced as a violent predicate felon, such issue is one of law for the Court.

Footnote 2: This crime in New Jersey was defined 1981 as knowing possession of an unlicensed machine gun, knowing possession of a handgun without a carry permit, knowing possession of a rifle or shotgun (other than certain antique guns) without having first obtained a firearms purchaser identification card, or a loaded rifle or shotgun (unless in the case of such loaded gun such possession is otherwise permitted by law). This crime, carrying a penalty of up to three years incarceration, was a felony in New Jersey. Because the People have not established that the elements necessary for the conviction of such crime is expressly congruent to the elements of analogous felonies in New York, the Court does not here decide whether Singleton's New Jersey conviction should be considered a prior felony or a prior violent for New York sentencing purposes.

Footnote 3: The Court notes that the failure of the People to submit the Westchester violent felony as a predicate felony in 1991, probably resulted in Singleton's sentence being an "illegal" sentence in that the People were required to submit the prior violent felony at such sentencing. The illegality would have permitted Singleton to have demanded his re-sentencing to a "legal" sentence, a right which for obvious reasons, he did not elect to pursue as it would only have risked his receiving a longer sentence.

Footnote 4: Speculation, obviously, cannot be the basis for any ruling of this Court, although it may put into context what may have happened in 1991.

Footnote 5: Brown involved an appeal of three federal decisions challenging, by Habeas Corpus, convictions in New York where the defendants had been sentenced as discretionary persistent felons. One case involved a petition by Harry Rosen, whose sentence was found appropriate in People v. Rosen, supra. In two of these cases, District Courts had granted petitions, asserting that the Apprendi line of case controlled. In the third case, the District Court denied the petition which had asserted the same grounds. The Second Circuit dismissed the granted petitions and upheld the dismissal. While not expressly ruling on the defendants' claims, the Court, ruling under the limitations of the Federal Antiterrorism and Effective Death Penalty Act of 1996 (P.L. No. 104-32-5104 110 Stat. 1214, 1219) found that New York's decision in upholding the discretionary predicate rules did not result "in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." Brown v. Greiner, supra, citing 28 U.S.C. §2254(d).

Footnote 6: This is also true with respect to Singleton's arguments which invite the Court to consider that Almendarez-Torres v. U.S., 523 US224 (1988) is "obsolete and might be revised by the United States Supreme Court." In Almendarez-Torres, the Supreme Court allowed the consideration of prior convictions as factors which resulted in the sentencing of the defendant for a conviction. As the Court of Appeals has stated in Rivera, Almendarez-Torres is still valid, and as the Supreme Court has not opined to the contrary, this Court, as a New York Court, may not consider Singleton's urging to ignore Almendarez-Torres in "anticipation of the Supreme Court overruling" such case.

Footnote 7: As noted above, this Court does not determine whether such crime would be considered a felony for the purposes of predicate felony or violent predicate felony status. However, the Court does consider such conviction for the purpose of assessing Singleton's prior behavior in connection with this re-sentencing.

Footnote 8: Although Laws of 2004, Chapter 738, which enacted Section 23 has been characterized as an amelioration of the State's "drug laws," such chapter does not universally reduce sentences for drug crimes, only most of them. Where violence is present, under certain circumstances, minimum sentences are increased over prior law. In their memorandum relating to the measure, the legislation's sponsor made it clear that such an increase was both warranted and intended. Because Singleton used a gun, his conviction on the B felony in 1991 could have subjected him to a longer sentence therefor, if he committed such crime now. Even on this re-sentence the fact of a prior violent felony conviction would permit the Court to impose a greater minimum term on re-sentence than under the prior existing law. The legislature's concern about violence is also covered by its change in predicate rules, providing for different treatment of violent and non-violent predicates for A-I drug felonies being re-sentenced under Section 23, a differentiation absent in prior law.

Footnote 9: Analogizing this procedure to the procedure under Penal Law §70.10 as discussed in Rivera, these findings are not "finding of fact" for the purpose of Apprendi consideration, but are explanations of the Court's reasoning for exercising its discretion within the statutory upper and lower limits for a sentence. Such requirement of explanation has been imposed to carry out the system of review of this re-sentence by the Appellate Division, whom, within its traditional powers to review sentences by the Supreme Court in the interests of justice, will be aided in such task by having the sentencing Court explain how it reached its conclusions.