People v Rahman

[*1] People v Rahman 2013 NY Slip Op 52195(U) Decided on December 19, 2013 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2013
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Rashid Rahman, Defendant.



1979-2010



For People of the State of New York:

Robert T. Johnson, Esq.

District Attorney, Bronx County:

By: Osman Abbasi, Esq.

Assistant District Attorney

For Defendant

John T. Yu, Esq.

PO Box 9241

Scarborough, New York 10510

Dominic R. Massaro, J.

Defendant moves pursuant to CPL §440.20 and §430.10 for modification of all aspects of his sentence when the court resentences him on the part of the sentence deemed illegal by the New York State Department of Corrections and Community Supervision (hereinafter "the Department"). The People oppose Defendant's motion maintaining that Defendant cannot be resentenced on the parts of the sentence that were lawfully imposed and for which his sentence already has commenced.

Background

On February 28, 2013, following a non-jury trial, Defendant was found guilty of one count of Burglary in the Second Degree (PL §140.25[2]), two counts of Attempted Assault in the First Degree (PL §110/120.10[1],[2]) and one count of Criminal Possession of a Weapon in the Second Degree (PL §265.03[1][b]). On March 21, 2013, the Court sentenced Defendant[FN1] to a determinate term of fifteen years of imprisonment plus five years post release supervision on the counts of Burglary in the Second Degree and Criminal Possession of a Weapon in the Second Degree and indeterminate terms of seven and one half to fifteen years imprisonment on both counts of Attempted Assault in the First Degree. All of the sentences were to run concurrent to [*2]each other and consecutive to Defendant's sentence on a Kings County case[FN2].

In a letter dated April 8, 2013, the Department, in reference to Defendant's indeterminate sentences for the two counts of Attempted Assault in the First Degree, informed the Court that, "[t]he commitment indicates the defendant [Rashid Rahman] was sentenced as a second felony offender to an indeterminate term of imprisonment pursuant to the above indictment. Inasmuch as the instant offense is a violent felony committed after October 1, 1995, Penal Law 70.06(6) requires Defendant to be sentenced to a determinate term of imprisonment."

On May 8, 2013, Defendant was produced from Sing Sing Correctional Facility. Defendant requested leave of the Court to file a motion requesting that the Court modify the entirety of his sentence, not just the sentences deemed illegal by the Department. On September 4, 2013, Defendant filed the instant motion and on October 21, 2013, the People responded.

Defendant's Position

Defendant maintains that when the Court resentences him on the attempted assault counts, the Court, in its discretion, may modifiy the entire sentence pursuant to CPL §440.20(3), "in the interest of justice and for good cause shown," not just that portion which was deemed unlawful. Defendant interprets the April 8, 2013 correspondence from the Department as meaning that because part of the sentence was illegal, Defendant's sentence had not yet commenced pursuant to CPL §430.10 which states that, "[e]xcept 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 term or period of the sentence has commenced." Acknowledging that pursuant to PL §70.30(1) the term of imprisonment commenced when Defendant was received by the institution under the jurisdiction of the Department, Defendant alternatively argues that even if his sentence had commenced, a court has the "inherent power" to correct its mistakes (see People v. Minaya, 54 NY2d 360, 364 [1981]).

Defendant's "good cause' argument in favor of downward modification of his entire sentence is that the sentence is excessive. Defendant notes that before trial, the People's offer was ten years concurrent with his Brooklyn conviction and that the Court made numerous attempts before trial to secure a sentence of less than ten years for the Defendant. After trial, Defendant's expectations were that the Court would sentence him in a range between seven and ten years on the four counts to run concurrently to each other and concurrently with the Kings County conviction, not consecutively. Defendant requests leniency due to his young age at the time of his first conviction, Murder in the Second Degree in 1989, a crime for which he still maintains his innocence. Defendant acknowledges guilt for his 1990 conviction, Robbery in the First Degree, but maintains his innocence regarding his 2012 conviction, Criminal Sale of a Controlled Substance. Defendant notes that he has taken positive steps towards leading a productive life. He has earned both an Associate's Degree in Paralegal Studies and a Bachelor's [*3]Degree in Human Psychology while incarcerated, and has been employed in construction when released.

People's Position

The People maintain that Defendant's motion must be denied because CPL §430.10 bars the court from resentencing Defendant on the portions of his sentence that were lawfully imposed and for which his sentence has already commenced. The People also maintains that there is no dispute that immediately after his sentence was imposed by the Court, Defendant was remanded into the custody of the Department where his term of imprisonment commenced (see Penal Law §70.30[1]).

The People acknowledge that despite the language of CPL §430.10, this does not abrogate the inherent power of a court to correct an error in the sentence (Minaya, supra at 364). The People maintain that in a case, like the one at bar, where the sentence contains both legal and illegal terms of imprisonment, an unambiguous rule has emerged. While a court may resentence a prisoner to correct illegalities in an imposed sentence, once that prisoner's sentence has commenced, the court may only resentence the prisoner on the unlawful counts of a conviction. A defect in a sentence on one count of a multicount conviction does not "infect all of the sentences" (see People v. Yannicelli, 40 NY2d 598, 602 [1976]). Defendant may be resentenced to remedy the illegality of sentences imposed on certain counts, "only those parts of the sentence that are invalid may be modified, and the valid parts of the sentence must be allowed to stand" (see People v. Carpenter, 19 AD3d 730, 731 [3d Dept 2005]).

Furthermore, the People argue that Defendant's reliance on the good cause provision of CPL §440.20[3]) is misplaced. The text of CPL §440.20(3) makes clear that a showing of "good cause" must be bootstrapped to an otherwise meritorious argument pursuant to CPL §440.20(1). Here, Defendant makes no legal argument or factual showing that the determinate terms of imprisonment imposed on him were "unauthorized, illegally imposed, or otherwise invalid."

Moreoever, the People argue against leniency in resentencing defendant on the two illegal sentences. The People refer to Defendant's serious and protracted criminal history, which includes his 1989 convictions of Murder in the Second Degree and Criminal Possession of a Weapon in the Third Degree for which he was sentenced to twenty-five years to life imprisonment. While out during the pendency of the 1989 case, Defendant committed an armed robbery in New York County. Defendant pled guilty to Robbery in the First and Second Degrees and in 1990 was sentenced to thirty-three months to 99 months imprisonment. Defendant was granted an early release to parole on January 11, 1996. Defendant violated the terms of his parole and on August 22, 1997 was sentenced to fifteen years to life imprisonment. In July 2007, Defendant was again granted early release to parole and a year and a half after early release committed the instant crimes. While this matter was pending in the Bronx Supreme Court, Defendant was rearrested for Criminal Sale of a Controlled Substance in the Third Degree in Kings County and after trial and conviction was sentenced to a determinate term of six years imprisonment plus three years post release supervision.

The People point out that in the case at bar, the first and fourth counts of Defendant's [*4]conviction, Burglary in the Second Degree and Criminal Possession of a Weapon in the Second Degree are class C felonies and the Court sentenced Defendant to fifteen years imprisonment plus five years post release supervision. Likewise, the second and third counts of Attempted Assault in the First Degree are C felonies and the People maintain that the Court should resentence Defendant to sentences that track the first and fourth counts. The People submit that when the Court resentences Defendant to correct the illegality on the second and third counts of the indictment, Defendant should receive the maximum sentence permitted under statute.

Legal Discussion

Pursuant to CPL §430.10, "[e]xcept 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 term or period of the sentence has commenced." The term of a sentence of imprisonment does not commence until a defendant is received in an institution under the jurisdiction of the Department (PL §70.30[1]). Here, based on the April 8, 2013 letter, Defendant's sentence had commenced.

However, courts retain "the inherent power to correct their records, where the correction relates to mistakes or errors which may be termed clerical in their nature, or where it is made in order to conform the record to the truth" (Minaya supra, at 364). Thus, a trial court may change a sentence after commencement of the term of imprisonment where an error in imposition of said sentence is clear from the court record. As relevant in the instant case, a sentence of imprisonment may also be changed or modified as a result of a CPL §440.20 motion which provides that "[a]t any time after the entry of a judgement the court in which the judgement was entered may upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law" (CPL §440.20[1]). CPL §440.20(3) permits a trial court in the "interest of justice" and "good cause" shown in the absence of an appellate determination to correct an illegal sentence without a lengthy and cumbersome appeal.

The Court of Appeals has held that once a sentence commences, a court's mistake in sentencing a defendant, unsupported by the record of the previous proceeding, is not a sufficient reason to change a sentence (see People v. Richardson, 100 NY2d 847, 850 [2003]). "Claims of harshness or excessiveness available on direct appeal cannot be raised by this [CPL §440.20] motion" (Preiser, Practice Commentary, McKinneys's Consolidated Laws of New York, Book 11A, CPL 440.20; see also People v. Cunningham, 305 AD2d 516 [2d Dept 2003]). If a defect in sentencing does not effect all of the sentences, there is no basis for resentencing on a valid count (Yannicelli, supra at 602 ; People v. Davis 12 AD3d 237 [1st Dept 2004]). However, "Yannicelli did not hold that section 430.10 would bar an appellate court from directing resentencing on all counts where the sentence on fewer than all of the counts was flawed" (People v. Rodriguez, 18 NY3d 667, 671 [2012]).

Here, there is no suggestions that, other than the two counts of Attempted Assault in the First Degree, the remainder of the sentence is not in accordance with law. Once that is rectified, there is no other defect to correct. Thus, the rest of the sentence may not be modified by this Court. [*5]

Accordingly, the motion is, in all respects, hereby denied.

This constitutes the decision and order of the Court.

December 19, 2013______________________________Dominic R. Massaro, JSC Footnotes

Footnote 1:Defendant was sentenced as a second violent felony offender based on a April 26, 1990 conviction of Robbery in the First Degree in New York County.

Footnote 2:On August 15, 2012, Defendant was sentenced in Kings County (indictment number 4811-2011) to a determinate term of six years imprisonment plus three years post release supervision upon conviction of Criminal Sale of a Controlled Substance (PL §220.39[1]).