People v Pelsey

[*1] People v Pelsey 2009 NY Slip Op 51979(U) [25 Misc 3d 1205(A)] Decided on September 22, 2009 Supreme Court, Queens County Gavrin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2009
Supreme Court, Queens County

The People of the State of New York

against

Timothy Pelsey, Defendant.



91/2003



For The Defendant:

Lynn W. L. Fahey

Appellate Advocates

Joshua M. Levine, of counsel

For The People of the State of New York:

Hon. Richard A. Brown

District Attorney, Queens County

William H. Branigan, of counsel

Darrell L. Gavrin, J.

After a jury trial held before the Hon. Randall T. Eng (now an Associate Justice of the Appellate Division, Second Department), the defendant was found guilty of Manslaughter in the First Degree and Criminal Possession of a Weapon in the Second Degree. On November 10, 2005, that Court imposed concurrent determinate prison terms of twenty-three years for the manslaughter count and fifteen years for the weapon count. As of this date, the defendant remains incarcerated pursuant to that judgment of conviction.

In his direct appeal filed with the Appellate Division, Second Department on February 8, 2008, the defendant raised several issues; one of which was that the period of post-release supervision ("PRS") which had been added by the New York State Department of Correctional Services ("DOCS") during his period of incarceration should be excised, since it had not been pronounced by the Court (J. Eng) at sentencing. On May 9, 2008, the People submitted a supplemental letter to their brief filed in response to the defendant's appeal. Conceding that the imposition of a five year period of PRS by DOCS was improper by virtue of the ruling by the Court of Appeals in People v. Sparber (10 NY3d 457 2008 ), the People asked that the matter be remitted for resentencing so that the trial court could make the required pronouncement (Id. at 472; citing People v. Sturgis, 69 NY2d 816).

On March 31, 2009, the Appellate Division, Second Department issued a decision [*2](People v. Pelsey, 60 AD3d 1088) modifying the judgment to the extent of vacating so much of the sentence as imposed a DNA data bank fee and separately imposed a mandatory surcharge and crime victims' assistance fee in the total sum of $270 [FN1]. The case was remitted to the Supreme Court, Queens County, for resentencing on the matter of the imposition of the appropriate mandatory surcharge and crime victims' assistance fee.

With respect to the defendant's claim that the period of PRS added by DOCS should be excised, the Appellate Division held:

"Contrary to defendant's contention, this Court need not excise from his sentence the period of post-release supervision apparently added by the New York State Department of Correctional Services. Neither the sentencing minutes nor the order of commitment mentioned the imposition of any period of post-release supervision. Therefore, the sentence imposed by the court never included, and does not now include any period of post-release supervision" (Id. at 1089; See, People v. Sparber, supra; See, generally Matter of Garner v. New York State Department of Correctional Services, 10 NY3d 358, 362).

On July 21, 2009, the defendant's application for leave to appeal to the Court of Appeals was denied (Jones, J.) 12 NY3d 927.

By letter addressed to Justice Eng, dated May 7, 2009, DOCS advised that the defendant was a "designated person" within the meaning of Correction Law §601-d. Since the defendant was in the custody of DOCS under a determinate sentence imposed between September 1, 1998 and June 30, 2008 (the effective date of Section 601-d) and neither the commitment order nor the sentencing minutes indicated that a term of PRS was actually pronounced by Justice Eng at sentence, the defendant is, prime facie, an individual subject to resentencing by virtue of the mandatory language of Penal Law §70.45 which, in relevant part, states: "when a court imposes a determinate sentence it shall in each case state not only the term of imprisonment, but also an additional period of post-release supervision..."

On remand from the Appellate Division for resentencing, the defendant's case was placed on this Court's calendar due to the legal inability of Justice Eng to preside over the defendant's resentencing because of his status as an Associate Justice of the Appellate Division.

The defendant initially contends that because the decision of the Appellate Division remanding this case to the Supreme Court for resentencing was only with respect to the imposition of an appropriate mandatory surcharge and crime victims' assistance fee, that this Court cannot, at resentencing, impose a period of PRS.

The position espoused by the defendant is untenable as it fails to recognize the inherent power of the trial court to correct an illegal sentence (People v. Williams, 87 NY2d 1014, citing People v. Minaya, 54 NY2d 360, cert denied 455 US 1024). Here, the defendant's sentence was illegal because it failed to include, as a component thereof, a period of PRS as mandated by Penal Law §70.45. In People v. DelValle, 94 NY2d 870, the Court of Appeals held that the trial court [*3]had the inherent power to correct an illegal sentence, wherein the defendant had originally been sentenced, upon his plea of guilty, to two to four years in prison to run concurrently with an undischarged portion of an earlier sentence, and to subsequently impose a consecutive sentence required by Penal Law §70.29 (2-a) over the defendant's objection at resentencing.

Moreover, in Sparber, the Court of Appeals recognized that the sentencing courts did err by failing to pronounce a period of PRS, but held that "the error can be remedied by resentencing "(People v. Sparber, supra, 469). In unequivocal language the Court of Appeals stated: "Thus, the failure to pronounce the required sentence amounts only to a procedural error, akin to a misstatement or clerical error, which the sentence court could easily remedy (see, People v. DelValle, 94 NY2d 870, 871; People v. Wright, 56 NY2d 613, 614, People v. Minaya, 54 NY2d 360, 364-365). Finally, the New York State Legislature enacted Section 70.85 of the Penal Law and Section 601-d of the Corrections Law, which together provide a framework for correcting earlier mistakes at sentencing and which, as the People point out, reflect the Legislature's desire for the courts to exercise their inherent authority to review and correct sentencing errors.

The defendant next contends that because this matter was not calendared within twenty days after the receipt of the notice from DOCS and a written determination of the matter was not entered with forty days after receipt of the notice from DOCS, as prescribed by Correction Law §601-d (4)(a)(d), the failure to abide by the statutory time limit deprives this Court of jurisdiction under Correction Law §601-d to resentence the defendant.

The Court finds the defendant's contention to be without merit. Indeed, subdivision 8 of the very statute that the defendant relies upon states in unequivocal and precise verbiage:

"Nothing in this section still affect the power of any court to hear, consider and decide any petition, motion or proceeding pursuant to article four hundred forty of the criminal procedure law, article seventy or seventy-eight of the civil practice laws and rules, or any authorized proceeding" - emphasis supplied by Court - (Correction Law §601-d[8]).

Therefore, while the statute does, in fact, provide that in those instances where DOCS has notified the Court of a designated person and DOCS has not been informed that a court has made a determination within the time limits set forth in paragraph (d) of subdivision 4, that DOCS may then adjust its records to indicate that a court has not resentenced a defendant to PRS (see 601-d[6]), that provision does nothing to ameliorate the court's inherent power to resentence a defendant who had previously received an illegal sentence.

The defendant further argues that were this Court to impose a period of PRS at the time of resentencing it would violate his Due Process and Double Jeopardy protections. More particularly, the defendant avers that he has already served a substantial portion of his prison term and that he has an expectation of finality in the sentence that the Court actually imposed, which included no PRS component. He maintains that the Double Jeopardy clause generally prohibits a court from enhancing a defendant's sentence after he has developed a legitimate expectation of finality in the original sentence, citing United States v. DiFrancesco, 449 U.S. 117 (1980).

The defendant's reliance upon DiFrancesco is misplaced. In People v. Hernandez, 59 AD3d 180, (1st Dept. 2009) the Appellate Division considered this issue and, relying upon DiFrancesco, held that the defendant "had no legitimate expectation of finality with respect to a [*4]determinate seven-year sentence with no attending PRS component" (see United States v. DiFrancesco, supra at 138-139; United States v. Rosario, 386 F3d 166, 171; United States v. Lundien, 769 F2d 981, cert denied 474 U.S. 1064). So too, in People v. Hernandez, 59 AD3d 180, lv granted, 12 NY3d 817 and People v. Williams, 59 AD3d 172, lv granted, 12 NY3d 823, the First Department has repeatedly rejected similar Double Jeopardy attacks upon a court's ability to correct a defective sentence based upon the failure to pronounce PRS at sentencing.

An analogous situation was presented in People v. Somerville, 33 AD3d 733, where the Appellate Division, Second Department held that "where a defendant is convicted upon a jury verdict, as opposed to a plea of guilty, and therefore does not receive any indication or assurance of what the sentence will be, the defendant has no legitimate expectation in the finality of the original sentence for Double Jeopardy purposes should it later turn out to be illegal (People v. Somerville, supra, at 734; citing People v. Todd, 183 AD2d 861; cf People v. Campanella, 297 AD2d 642, People v. Keenan, 297 AD2d 646; People v. Hoppie, 220 AD2d 528).

Here, having received an illegal sentence, the defendant had no legitimate expectation of finality in the original sentence for Double Jeopardy purposes.

Finally, the Court will not entertain the defendant's suggestion that should the Court decide to impose the mandatory PRS then it should, in the alternate, reduce the term of the heretofore imposed prison sentence. As provided by CPL §430.10: "Except as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the period of the sentence has commenced" (see People v. Yannicelli, 40 NY2d 598, 602; People v. Carpenter, 19 AD3d 730, lv to appeal denied 5 NY3d 804)

The defendant has failed to allege that the sentence imposed herein was not in accordance with law or that some other statute specifically authorizes a reduction in sentence.

Accordingly, the Court holds that when the defendant is resentenced for the proper imposition of a mandatory surcharge and crime victims' assistance fee, as directed by the Appellate Division, Second Department, he will further be resentenced by this Court to a five-year period of mandatory post-release supervision, which will be noted on the defendant's amended commitment order. The defendant's prison sentence will remain undisturbed.

The Clerk of the Court is directed to forward copies of this Memorandum Decision and Order to the attorney for the defendant and to the District Attorney.

The foregoing constitutes the Decision and Order of this Court.

DARRELL L. GAVRIN, J.S.C. Footnotes

Footnote 1:At the time the criminal acts underlying the conviction were committed, the Penal Law required a mandatory surcharge and crime victims' assistance fee in the total sum of $210. Furthermore, the crimes were committed before the effective date of the legislation providing for the imposition of a DNA data bank fee.