People v Vaughan

[*1] People v Vaughan 2006 NY Slip Op 51311(U) [12 Misc 3d 1179(A)] Decided on May 16, 2006 Supreme Court, Queens County Kron, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 31, 2006; it will not be published in the printed Official Reports.

Decided on May 16, 2006
Supreme Court, Queens County

The People of the State of New York

against

Cordell Vaughan, Defendant.



01772-02

Barry Kron, J.

Upon the foregoing papers, defendant's motion to vacate his

previously imposed sentence and resentence him is granted in

accordance with the accompanying memorandum.

Defendant has moved, pro se, for an order pursuant to Criminal

the indeterminate sentence of ten years to life, as a persistent

violent felony offender, for a class E violent felony was illegal.

Defendant was indicted for Criminal Possession of a

Weapon in the Second Degree (PL §265.03), and three counts of

Criminal Possession of a Weapon in the Third Degree (PL §265.02-1;

PL §265.02-3; PL S265.02-4).

On May 20, 2003, defendant and the prosecution requested re-

inspection of the grand jury minutes and agreed to a dismissal of

the top count of the indictment, Criminal Possession of a Weapon in

the Second Degree. All parties acknowledged that this consent

reinspection was a legal fiction that would allow defendant to

plead guilty to the crime of Attempted Criminal Possession of a

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Weapon in the Third Degree with a sentence that all parties agreed

would serve the interests of justice. In exchange for his guilty

plea, the Court promised to sentence defendant to a term of ten

years to life.

Defendant indicated that he had adequate time to speak with

his attorney; that no one was forcing him to plead guilty; that he

understood the rights that he was waiving by his plea and that he

understood the conditions set forth by the Court. Defendant then

pled guilty to Attempted Criminal Possession of a Weapon in the

Third Degree (PL §110/265.02(4)), a class E violent felony.

Defendant was arraigned as a mandatory persistent violent

felony offender based upon a 1987 conviction for Attempted Robbery

in the Second Degree (PL 5110/160.10) and a 1990 conviction for

Criminal Possession of a Weapon in the Third Degree (PL

§265.02 (4) ) . Defendant admitted to the two prior convictions and

declined to raise any issue as to the constitutionality of the

convictions. The Court then adjudicated defendant a persistent

violent felony offender. [*2]

On June 18, 2003, defendant was sentenced, as promised,

to an indeterminate prison term of from ten years to life.

A motion to set aside a sentence pursuant to CPL 5440.20

is applicable only to a sentence which is "unauthorized, illegally

imposed, or otherwise invalid as a matter of law" (see, People v

Minaya, 54 NY2d 360, cert denied, 455 US 1024(1981)). Here,

defendant has moved to set aside only his sentence claiming that

the law mandates that his sentence for a class E violent felony

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must be four years to life.

Penal Law §70.08 governs the sentencing of a defendant

adjudicated a persistent violent felony offender. However, the

statute is silent as to the permissible minimum term for a class E

persistent violent felony offender. It has been established that,

under such circumstances, it is proper to impose, as the minimum

term of imprisonment, the permissible determinate sentence for

class E second violent felony offenders (People v. Tolbert, 93

NY2d 86(1999) ;People v. Williams, 288 AD2d 245(2d Dept. 2001);

PeoDle v. Bryant, 273 AD2d 320(2000)).The sentence of

imprisonment for a second violent felony offender who has been

convicted of a class E violent felony may not exceed a determinate

sentence of four years (PL §70.04(3) (d)).

It is well-settled that although CPL 430.10 prohibits a court

from altering a sentence once its term or period has commenced, a

court has the inherent power to correct its records in relation to

mistakes or errors which may be termed clerical, or in a situation

where the court merely misspoke. Similarly, a court has the

authority to vacate a final criminal judgment on the grounds of

fraud or misrepresentation (People v. Moauin, 77 NY2d [*3]

449,452 (1991)). The Court of Appeals has made clear, however, that

a court does not have inherent authority to vacate a plea after

imposition of sentence in order to remedy a substantive legal error

in the acceptance of the plea, after a defendant has begun serving

his sentence (People v. Mocruin, supra at 452; Matter of Kisloff v.

Covinqton, 73 NY2d 445(1989); Matter of Campbell v. Pesce, 60

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NY2d 165,167(1983)).

Notably, in Matter of Kisloff, supra, all parties were under

the erroneous impression that the crime the defendant pled guilty

to was a class E felony when, in fact, it was a class A

misdemeanor. The Court held that the defendant's request to be

resentenced for a class A misdemeanor had to be granted, despite

the unintended result of the People being deprived of the agreed

upon plea bargain.

In the instant matter, defendant is only seeking to be

resentenced, and does not request that his plea or conviction be

vacated. The record establishes that at the time of the plea and

sentence, all of the parties operated under the mistaken belief

that he could be sentenced to a term of ten years to life as a

persistent violent felony offender. This Court does not have the

authority to vacate the plea or conviction to remedy this

substantive error. Rather, this Court must resentence defendant to

a term of four years to life in accordance with the law.

Accordingly, defendant is resentenced to a term of

imprisonment of four years to life.

In light of defendant's new parole eligibility date, this

Court finds it necessary to address defendant's extensive criminal

record. As noted earlier, defendant had two prior violent felony

offense convictions prior to his plea in this matter. Additionally,

defendant's criminal history dates back to 1980 and includes eight

misdemeanor convictions, two 1984 felony convictions for attempted

criminal possession of a weapon in the third degree and attempted

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robbery in the second degree, respectively, and two violations of

probation.

Thus, while this Court must reduce the minimum term of

defendant's sentence to four years, it is also of the strong

opinion that based upon defendant's deplorable prior criminal

history and the circumstances surrounding the sentencing in this [*4]

case, including defendant's voluntary acceptance of a ten year

minimum sentence to avoid going to trial on a C violent felony

where conviction after trial would have required a minimum sentence

of sixteen years to life, the interests of justice require that he

serve a minimum of ten years prior to being released from

incarceration. This is of course ultimately in the discretion of

the Parole Board consistent with its responsibilities and the

technical eligibility now available because of the re-sentencing.

Based on the foregoing, the motion to set aside the sentence

is granted.

Order entered accordingly.

The Clerk of the Court is directed to forward a copy of this

decision and order to counsel for the defendant and the District

Attorney.

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