People v Lindsey

[*1] People v Lindsey 2009 NY Slip Op 50506(U) [22 Misc 3d 1138(A)] Decided on March 26, 2009 Sullivan County Ct LaBuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2009
Sullivan County Ct

The People of the State of New York

against

Theodore Lindsey, Defendant.



190-99



APPEARANCES:

The Law Office of John R. Kelly

901 Sheridan Ave.

Bronx, NY 10495

Attorney for Defendant

Sullivan County District Attorney

Sullivan County Courthouse

Monticello, NY 12701

By: Bonnie M. Mitzner, ADA, of counsel

Attorney for the People

Frank J. LaBuda, J.

The instant matter began by the defendant submitting a Pro Se CPL §440.20 motion seeking resentence as he was unaware that his sentence included a period of post release supervision (PRS).

District Attorney submitted Affirmation in Opposition.

Defendant thereafter submitted a Pro Se "rebuttal".

This Court scheduled a court appearance and, after assigning an attorney to the defendant, adjourned the matter for the defense attorney to supplement defendant's Pro Se 440.20, if he deemed it necessary.

Defendant's attorney submitted a supporting brief as a supplement to defendant's 440.20 motion.

The People submitted an affirmation in opposition to defendant's supplemental brief.

Defendant's attorney submits a reply to the People's affirmation in opposition to defendant's supplemental filing.

Defendant has submitted various Pro Se letters requesting that the be accepted as additional argument to support his 440.20 motion.

Pursuant to a negotiated plea bargain [FN1], defendant was convicted by plea to burglary in the first degree on March 1, 2000 in full satisfaction of Indictment 190-99 which charged him with burglary in the first degree, burglary in the second degree, two counts of criminal mischief in the fourth degree, aggravated harassment in the second degree, assault in the second degree, assault in the third degree and criminal possession of a weapon in the third degree, all stemming from two separate incidents. He was sentenced to a determinate term of imprisonment of five years as bargained for. Post release supervision was not mentioned at defendant's plea or his sentencing by either party.

Despite his waiver of appeal, defendant appealed to the Appellate Division, Third Department arguing, inter alia, that his guilty plea was motivated by duress. He did not argue the illegality of his sentence as he is doing herein.

Defendant's appeal was denied, People v Lindsey, 283 AD2d 782 (3rd Dept., 2001), and leave to appeal was denied, People v Lindsey, 96 AD2d 940 (2001).

Defendant's situation, in which the PRS was not stated at the original sentencing, is not a peculiar one in New York. In 1998, the Legislature enacted Penal Law § 70.45 requiring certain felony offenders to serve a mandatory term of PRS. Since the PRS was mandatory and automatically required by statute, a large number of courts made no mention of it when sentencing a second violent felony offender.

In April of 2008, the Court of Appeals opined that the Department of Corrections (DOCS) cannot administratively add the PRS term even if the defendant does not vacate the guilty plea. See, Matter of Garner v NYS Dep't of Corr. Services, 10 NY3d 385 (2008). That same day, the Court of Appeals also ruled that prisoners not given the PRS at time of the sentencing must be remitted back to the sentencing court for resentencing or such other proceedings as may be required. People v.Sperber, 10 NY3d 457 (2008). [*2]

Thus, the Court of Appeals in Garner and Sperber vacated all PRS which was administratively applied by the Department of Corrections.

In response to Garner, and Sperber,above, the New York State Legislature enacted Correction Law §601(d) to address the procedure to resentence any defendant who was not given the mandatory PRS at sentence.

Penal Law §70.85 specifically allows the People to either consent to waive the post release supervision portion of the defendant's resentence or request the court to resentence the defendant with post release supervision.

In the instant matter, the People first sought to have the defendant resentenced with the minimum mandatory post release supervision. When the defendant persisted in his opposition to the resentencing and sought to vacate his plea and proceed to trial [FN2] the People then moved this Court to deny the defendant's application to vacate his plea and proceed to trial and simply consented to waive the mandatory PRS. The defendant, however, consistently stated his desire to vacate his plea and return to the position he was in prior to his plea.

To this end, the defendant argues that People v. Catu, supra applies and he must be allowed to vacate his plea because it could not have been a knowing and intelligent waiver when he was never informed of the PRS. He, in essence, is arguing that his right to vacate his plea under Catu takes precedence over the statutory right of the People to waive the PRS.

The defendant is in error and his argument must fail.

The Court of Appeals has ruled that if a defendant was sentenced to PRS but had no knowledge of the PRS component at plea he can vacate his guilty plea. People v. Catu, 4 NY3d 242 (2005). Many courts refer to the above as a "Catu violation" but it is, in reality, simply the ground to vacate a plea because without being informed of PRS as part of his sentence the defendant's plea was not voluntary, knowing and intelligent.

However, the defendant's remedy to make that argument in order to vacate his plea must be done on direct appeal not by CPL §440.10 motion. See, i.e., People v Louree, 8 NY3d 541 (2008). [*3]This is so because whether the defendant was apprised of the PRS component of his sentence is a matter of record anda court must deny a motion to vacate judgment when: " The ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue;" CPL §440.10(2)(a). (emphasis added.) In the instant case the record is clear that the defendant was not apprised of PRS nor was he sentenced to it

The defendant misinterprets Catu as an automatic substitute to vacate his plea by CPL 440 motion or by collateral proceedings.

Catu only applies to defendants who were sentenced to PRS without PRS being part of his plea.

Catu does not apply to a defendant who was not sentenced to PRS after his non-PRS plea.

Since the Court of Appeals in Garner and Sperber vacated all sentences in which PRS was administratively applied by DOC the within defendant does not have PRS as part of his sentence unless this Court elects to resentence him to PRS.

Catu only applies after a court resentences a defendant to the mandatory PRS required under Penal Law §70.45 pursuant to the decisions in Garner and Sperber and the new legislation in Correction Law §601-d and Penal Law §70.85.

If a court chooses, sua sponte, not to resentence a defendant to post release supervision or the People waive PRS then the defendant has gotten the plea bargain he agreed to and Catu does not apply because he has not been penalized more than he agreed to and, thus, has not been prejudiced.

In the instant matter the People now waive the imposition of post release supervision.

This Court holds that the defendant shall be resentenced to his original sentence without post release supervision and that CPL 440 review is not applicable under these circumstances.

Based upon the above, it is

ORDERED, that defendant's CPL §440 motion to vacate his sentence is denied, and it is further

ORDERED, that the Sullivan County Court Clerk shall notice this matter for resentencing on April 3, 2009 [*4]

This shall constitute the Decision and Order of this Court.

DATED: March 26, 2009

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate Footnotes

Footnote 1: At the time of the defendant's plea and sentencing he was represented by the Sullivan County Legal Aid Bureau.

Footnote 2: The defendant Pro Se and with assigned counsel repeatedly advised this Court that he wanted to "go to trial on the entire Indictment.