People v Corley

[*1] People v Corley 2007 NY Slip Op 51294(U) [16 Misc 3d 1105(A)] Decided on May 31, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 31, 2007
Supreme Court, Bronx County

People of the State of New York, Respondent,

against

Marvin Corley, Defendant.



4269/95



APPEARANCES:

For the People of the State of New York

HONORABLE ROBERT T. JOHNSON

District Attorney, Bronx County

By: JENNIFER MARINACCIO, ESQ.

Assistant District Attorney

For Marvin Corley

Pro Se

Dominic R. Massaro, J.

Factual Background

Marvin Corley, the within Defendant, stands convicted by a jury of his peers of the crime of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03), a Class A misdemeanor. He was thereafter sentenced to a determinate prison term of one year (Covington, J.). No appeal has been taken from the July 8, 1997, verdict. Defendant, pro se, now moves pursuant to Criminal Procedure Law §§ 440.10 and 440.20 to set aside his sentence and vacate his judgment of conviction.[FN1] The motion is denied.According to moving papers dated July 14, 2006, Defendant was arrested on May 29, 1995. Because said arrest violated the terms and conditions of Defendant's then ongoing parole, he was incarcerated. After a period of five months and nineteen days in jail, Defendant posted bail and was released. On February 19, 1996, Defendant was again arrested for the same type drug related charges; bail was set and he was [*2]incarcerated once more. On March 11, 1996, the court consolidated the two cases (Covington, J.), leading to Defendant's conviction and incarceration.[FN2] According to Defendant's calculation, at the time of sentence he had spent a total of twenty-two months incarcerated (Defendant's Motion ¶5).

In his motion appears, Defendant moves the court to vacate the judgment of conviction and to set aside his sentence, claiming that: (1) his sentence was invalid under the law; (2) the conviction was obtained in violation of his constitutional rights guaranteed by the Equal Protection and Due Process clauses (see, United States Constitution, Amendment XIV, Section 1), specifically, that the maximum sentence for a Class A misdemeanor is one year, but his period of incarceration during the pendency of the case exceeded that time; and (3) there was no probable cause for his arrest. In the alternative, Defendant requests a hearing to determine whether his sentence should be set aside.

The People's Affirmation in Opposition dated January 2, 2007, avers that Defendant's motion should be denied in that the Court's sentence was authorized under the law. Although Defendant was incarcerated during the pendency of the case, the People argue that this pre-trial detention does not render the Court's otherwise valid sentence unconstitutional. The People argue that, if, indeed Defendant's period of incarceration exceeded one year, then the execution of sentence may be invalid; however, the imposition of one year incarceration for a Class A misdemeanor is, nonetheless, entirely correct.

Concomitantly, the People argue that based on the evidence adduced at a pre-trial Mapp hearing (see Mapp v. New York, 69 AD2d 911[3rd Dept. 1979]), wherein it was testified that Defendant was observed exchanging small objects for United States currency with several different people, sufficient probable cause was found extant to authorize his arrest. (Covington, J.).

Defendant's motion is in its entirety denied.

Discussion

CPL §440.10(1)(h) provides that a judgment may be vacated upon the ground that the "judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." CPL §440.20 provides that a sentence may be set aside if it was, inter alia, unauthorized, illegally imposed, or otherwise invalid as a matter of law."

Motion to Set Aside Sentence

Defendant claims that he was incarcerated for a total of twenty-two months, thereby rendering the Court's sentence of one-year imprisonment unconstitutional, as the maximum term of imprisonment for a Class A misdemeanor is one year. This branch of Defendant's motion is denied without hearing. Defendant's assertion that the Court improperly imposed a determinate sentence of one year even though he may have been incarcerated during the pendency of the case, (whereby, if Defendant's claim is to be credited, he served a total of twenty-two months in jail), does not render the Court's imposed sentence unconstitutional.A Class A misdemeanor carries a maximum penalty of one year incarceration (see PL § 70.15[1]). Defendant was convicted by a jury of Criminal Possession of Controlled Substance in the Seventh Degree, which is a Class A misdemeanor (see PL §220.03). The Court imposed a [*3]determinate sentence of one year; therefore, the sentence was not "unauthorized, illegally imposed or otherwise invalid as a matter of law (see CPL § 440.20[1]).

Defendant claims he served a total of twenty-two months in jail in relation to this criminal matter, including his pre-trial detention. However, in arguing that the Court's sentence was invalid, Defendant apparently adds the pre-trial detention time to his Court imposed sentence of one year incarceration, suggesting that the Court either imposed or is responsible for a twenty-two-month long sentence at the conclusion of trial. This argument has no merit.

While awaiting trial, Defendant was incarcerated pursuant to a violation of a parole warrant and was unable to post bail. CPL § 510.10 authorizes a court to set bail pending a criminal action. Its purpose is not punitive in nature, instead, it is to ensure a defendant's appearance before the court (see CPL §§ 510.10 and 510.30[2]). The purpose of setting bail is to ensure a defendant's attendance at trial. See People v. Warden, 135 AD2d 421 (1st Dept. 1987). Bail is generally set to impose a financial incentive to insure that a defendant will return to the court is he or she merits the bail condition. (See e.g. People v. Saulnier, 129 Misc 2d 151 (Supreme Ct. NY 1985), citing Sardino v. State Comm. On Judicial Conduct, 58 NY2d 286 [1983]).

In People v. Bostic, 10 Misc 3d 775, 779 (NY Dist. Court Suffolk County, 2005) the Court stated that:

"...assuming probable cause to arrest exists, detention of a defendant subsequent arrest is governed by the multiple factors enumerated in CPL 510.30. The weight of the evidence against the defendant in the pending criminal action and any other factor indicating probability or improbability of conviction is but one factor indicating probability or improbability of conviction is but one factor in considering whether or not to set bail (CPL § 510.30[2][a][vii]). As long as there is probable cause to arrest, the fact that a defendant may be held in custody after an analysis of CPL § 510.30 simply does not impinge on defendant's due process rights."

Therefore, the fact that the Defendant was incarcerated for his inability to make bail while awaiting trial is not related to the legality of his sentence. The Court imposed a valid one-year jail term upon the jury finding Defendant guilty of a Class A misdemeanor. The execution of sentence is not within the province of the Court, but, rather, the correctional authorities.[FN3] In Bottom v. Goord, 96 NY2d 870, 872 (Ct. App. 2001), lv. denied 96 NY2d 927, the Court of Appeals stated that "[the] New York City Department of Correction...ha[s] continuing, non-discretionary, ministerial obligation to calculate petitioner's jail time credit under CLS Corrections § 600-a and PL § 710.30[3]). See also People v. Vivenzio, 103 App. Div. 2d 1044, 1045 (4th Dept. 1984) (Defendant's contention on his appeal from his...conviction that he was entitled to jail time credit would be rejected as not properly reviewable on an appeal from a judgment of conviction, since defendant did not raise any issue with respect to the propriety of the sentence itself, but rather sought a reduction of his sentence based upon a credit of jail time pursuant to Penal Law 70.30(3); defendant's proper remedy would be by way of an Article 78 [*4]proceeding to review the prison authorities' calculation of his jail time credit). See also People v. Krauss, 120 App. Div. 2d 687 (2nd Dept. 1986). (Claim of improper credit for time served should be pursued in Article 78 proceeding and not in direct appeal from judgment of conviction.) The Court in People v. Leonard, 133 App.Div.2d 938 (3rd Dept. 1987), held that a challenge to prison authorities' calculation of prison sentence imposed on a defendant's guilty plea to probation violation was not directly appealable to the Appellate Division and would be properly raised by way if an Article 78 proceeding.

To the extent that Defendant is claiming that his sentence was improperly imposed, the motion is denied. Defendant has not alleged "any ground constituting a legal basis for the motion. (see CPL § 440.30(4)[a]).

Motion to Vacate Judgment of Conviction

Criminal Procedure Law § 440.10(2)(b) provides, in pertinent part, that "...the court must deny a motion to vacate judgment when: the judgment is at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal ..." Criminal Procedure Law §440.10(2)(c) provides, in pertinent part, that "...the court must deny a motion to vacate judgment when: although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him..." Criminal Procedure Law § 440.30(4)(d) specifically provides that "Upon considering the merits of the motion, the court may deny it without conducting a hearing if: an allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant and us unsupported by any other affidavit or evidence and (ii) under these and all the other circumstances attending the case there is no reasonable possibility that such allegation is true." Furthermore, it should be noted that "[a] motion to vacate a judgment of conviction pursuant to CPL 440.10(1)(h) cannot be made as a substitute for a direct appeal from the judgment when the defendant could have raised his claims on appeal, but failed to do so." (See People v. Williams, 5 AD3d 407 (2nd Dept. 2004).

Defendant's claim that police lacked probable cause to arrest him must be denied because sufficient facts were adduced on the record to have provided, upon appeal, adequate review of this claim; Defendant failed to appeal the Court's decision during the prescribed period (see CPL § 440.10(2)[c]). Probable cause and related issues were adequately addressed during a pre-trial hearing (Covington, J.). Accordingly, this Court must deny

Defendant's claim because he could have appealed the February 5, 1997 hearing decision on direct appeal, but failed to do so and offers no excuse for his failure.

Given the fact that there was a record to review on appeal that directly dealt with the claims Defendant currently raises, and given that the pre-trial hearing minutes would have presumably been provided to the appellate court as well, and given that Defendant failed to perfect his appeal, this motion is denied. CPL§ 440.10(2)(c); see People v. Cooks, 67 NY2d 100 (1986); People v. O'Hanlon, 13 AD3d 718 (3rd Dept. 2004); People v. Pham, 287 AD2d 789 (3rd Dept. 2001). Therefore, Defendant's motion is denied as procedurally barred. Even though [*5]Defendant's claims are procedurally barred, this Court notwithstanding also denies Defendant relief on the merits.

Based on the record, it is apparent that the police did in fact have probable cause to arrest Defendant. The People called one witness: Police Officer Joseph Farrell. Defendant called no witnesses and presented no evidence. Officer Farrell testified that on May 29, 1995, he was the observing officer of a Street Narcotics Enforcement Unit at the corner of Watson Avenue and Manor Avenue in Bronx County. Officer Farrell observed numerous individuals approach Defendant and hand him United States currency, and, in exchange, Defendant handed said individuals small objects removed from a paper bag which was by the base of a car. Officer Farrell then radioed the description of these individuals to his field team, who thereupon apprehended the individuals other than the Defendant, and recovered red-topped vials containing crack. He further testified that he observed another individual approach Defendant, hand him money, and in exchange, Defendant gave the individual a a small object with a red top. Officer Farrell recovered a vial wit a red top containing alleged crack from the Defendant.

Probable cause exists when "information which would lead a reasonable person who possessed the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed." People v. McCray, 51 NY2d 594, 602 (Ct. App. 1980). Therefore, based on the evidence adduced at the pre-trial hearing, there was sufficient probable cause to warrant Defendant's arrest.

ORDERED, that Defendant's motion to set aside his sentence and vacate his judgment of conviction is denied.

This constitutes the opinion and decision of the Court.

Dated: Bronx, New York

May 31, 2007

________________________

Dominic R. Massaro

Justice of the Supreme Court

Footnotes

Footnote 1:Defendant is moving for relief citing CPL §440.20 to set aside his sentence, but, in actuality, he is seeking relief under (a) CPL §440.10(1)(h) as well, which applies to judgments obtained in violation of a defendant's constitutional rights.

Footnote 2:Indictment Nos. 4269/1995 and 1336/96 were consolidated under Indictment Number 4269/95.

Footnote 3:Assuming Defendant's computation of time served is correct, and his time served exceeded the maximum sentence imposed upon him, he may well enjoy remedy and relief beyond the jurisdiction of the Court.