People v Evans

[*1] People v Evans 2006 NY Slip Op 51907(U) [13 Misc 3d 1219(A)] Decided on August 22, 2006 Supreme Court, New York County Zweibel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 22, 2006
Supreme Court, New York County

The People of the State of New York

against

William Anthony Evans, Defendant.



2922-81

Ronald A. Zweibel, J.

Defendant was convicted, upon a plea of guilty, of Robbery in the First Degree (eight counts), Robbery in the Second Degree (four counts) and Criminal Possession of a Weapon in the Second Degree. On December 9, 1981, defendant was sentenced on this conviction, as a second felony offender, to concurrent terms of from six to 12 years' incarceration on all 13 counts in the indictment (Pecora, J.). On September 19, 1989, the Appellate Division, First Department, unanimously affirmed his conviction (see People v. Evans, 153 AD2d 1012 [1st Dept. 1989]). It appears that defendant did not seek leave to appeal to the Court of Appeals. Defendant alleges that he is incarcerated pursuant to this sentence due to intervening sentences and Penal Law § 70.25(a).[FN1]

On January 21, 2004, this Court denied an almost identical motion from defendant [*2]although he claims that it was based on a claim of breach of promise. Defendant is attempting to attack his conviction and sentence as well as this Court's decision in a habeas corpus proceeding in the United States District Court for the Southern District (see Evans v. Miller, 2005 WL 1389072 [S.D.NY 2005]).

In the instant motion, approximately 25 years after being sentenced upon his plea of guilty, defendant again moves, pursuant to CPL 440.20 (1), to set aside his sentence.[FN2] According to defendant, his sentence must be vacated, he must be re-sentenced and a proper Sentence and Commitment Order filed with the Court and the Department of Correctional Services because of an initial clerical error on the Sentence and Commitment Order filed with the Department of Corrections after sentencing. The People oppose the motion.

CPL 440.20 states, in pertinent part, that

1. At anytime after the entry of a judgment, the

court in which the judgment was entered may, upon

motion of defendant, set aside the sentence upon

the ground that it was unauthorized, illegally

imposed or otherwise invalid as a matter of law.

Because the Court finds that the sentence imposed was authorized, legally imposed and otherwise valid as a matter of law, the instant motion must again be denied.

Defendant's status as a predicate felon was litigated and his claims, denied on appeal. Defendant acknowledges that the clerical error, indicating that he was sentenced as a non-predicate felon, even though he was a predicate felon, was eventually corrected. Despite the fact that the clerical error was corrected in the paperwork filed with the Court, defendant still seeks to be re-sentenced to "conform to either the court's records or the prison records."

Because the mistake in the original Sentence and Commitment Order was corrected and an amended Sentence and Commitment properly reflecting the sentence defendant received was filed, defendant has no basis for CPL 440 relief. The problem with defendant's initial paperwork notwithstanding, the sentence imposed was an authorized legal sentence for the crimes of which defendant stood convicted.

As noted by the People, vacating defendant's sentence and re-sentencing defendant, albeit to the same sentence, would only produce the exact same paperwork that has already been supplemented in this case. The Court agrees with the People that it seems as if defendant is having a problem with the Department of Corrections or parole as to his status as a predicate felon and that the appropriate remedy would be to send the appropriate departments the already corrected paperwork from 1981 and 1982 to prove defendant's status as a predicate felon.

Accordingly, defendant's motion to set aside his sentence, be re-sentenced and supply the Department of Corrections with the appropriate paperwork is denied except to the extent that a copy of defendant's original and amended Sentence and Commitment Orders are to be [*3]forwarded to the Department of Corrections.

This constitutes the decision and order of this Court.

ENTER:

Ronald A. Zweibel, J.S.C.

Dated: August 22, 2006

Footnotes

Footnote 1:Defendant has not provided proof that he is being held pursuant to the instant sentence. He was released on parole in 1987 and again in 1989; however while on parole defendant committed several other crimes which led to additional convictions. These included a November 25, 1991 conviction in the United States District Court for the Eastern District of New York to a term of 40 months' imprisonment which was to run concurrently with defendant's existing New York sentence; a January 23, 1992 conviction in Supreme Court, Queens County, for robbery which was remanded for a re-trial; an April 1, 1997 conviction upon re-trial and a sentence of two terms of six to 12 years imprisonment to run concurrent with each other and any other sentence defendant was already serving and a June 1, 1992 Supreme Court, Nassau County conviction of three counts of robbery and one count of attempted robbery, for which defendant received a sentence of four concurrent prison terms of from 25 years to life. It seems likely to this Court that defendant is currently incarcerated pursuant to one of the later sentences rather than to the sentence imposed in this case but this Court cannot say for sure.

Footnote 2:Defendant claims that although he filed and served an earlier CPL 440.20 motion in 1991, the People did not serve an answer and no decision was rendered. The Court cannot find any such motion in the Court file or the Supreme Court Clerk records. The People also aver that there is no record of this motion in the People's files.