People v Rodriguez

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[*1] People v Rodriguez 2007 NY Slip Op 52262(U) [17 Misc 3d 1135(A)] Decided on November 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2007
Supreme Court, Bronx County

People of the State of New York, Respondent,

against

Alberto Rodriguez, Defendant.



2179/94



APPEARANCES:

For the People of the State of New York

HONORABLE ROBERT T. JOHNSON

District Attorney, Bronx County

By: ANDREW HOLLAND, ESQ.

Assistant District Attorney

For Alberto Rodriguez

Pro Se

Dominic R. Massaro, J.

Factual Background

Alberto Rodriguez, the within Defendant, was on November 17, 1995, convicted in this Court by a jury of his peers of Murder in the Second Degree (Penal Law § 125.25[1]). Defendant was thereafter sentenced to an indeterminate prison term of from twenty-five years to life. He thereupon filed a timely appeal. Defendant is currently incarcerated pursuant to that judgment.

On October 27, 1998, the Appellate Division, First Department, affirmed Defendant's judgment of conviction (see People v. Rodriguez, 254 AD2d 211 [1st Dept. 1998]). On December 16, 1998, the Court of Appeals denied Defendant leave to appeal (Smith, J.) (see People v. Rodriguez, 92 NY2d 1037 [1998]).

Defendant, pro se, now moves this Court to set aside his sentence pursuant to CPL § 440.20. The motion is denied.

Discussion

Defendant claims that he received an enhanced sentence on his conviction due to predicate offenses, without the Court having first conducted a predicate offender hearing, as [*2]required by statute. Initially, his motion is procedurally barred. 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." Defendant claims that he was "illegal[ly] sentence[d] as a persistance [sic]." (See Defendant's Notice of Motion). Specifically, Defendant claims that has was entitled to a "persistance hearing [sic]" in order to be "given the opportunity to challenge" (see Defendant's Affidavit in Support, ¶ 5).[FN1] Defendant argues that the Court's failure to have conducted a predicate offender hearing is fatal.

Defendant has not provided any evidence to support this self-serving allegation. Pursuant to CPL § 440.30(4)(b) a court may deny a motion to set aside sentence where "the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts." Further, pursuant to CPL § 440.30(4)(d) a court may deny a motion if an essential allegation of fact "is made solely by the defendant and us unsupported by any other affidavit or evidence, and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true."

Defendant's motion is likewise denied as meritless. Pursuant to CPL § 440.30(4)(a), a court may deny a motion without hearing where "moving papers do not allege any ground constituting legal basis for the motion." Defendant was convicted of Murder in the Second Degree, Penal Law § 125.25 [1], which is a class A-I felony offense, for which the statutorily permissible range of indeterminate incarceration is from fifteen years to life, up to twenty-five years to life (see Penal Law §§ 70.00(2)(a) and (3)(a) and 125.25(1).

In the instant case, Defendant received a sentence of from twenty-five years to life. As a matter of statute, the sentencing range for an A-I felony cannot be enhanced. Indeed, enhanced sentencing is only contemplated for Class "E" through Class A-II felonies (see Penal Law § 70.04(3) [second violent felony offenders], § 70.06(3) [second felony offenders], §70.08(3) [persistent violent felony offenders] , and § 70.10(2) [persistent felony offenders]).

Accordingly, there is no possibility that Defendant was adjudicated a second violent felony offender, a second felony offender, a mandatory persistent violent felony offender, or a discretionary persistent felony offender with respect to his second-degree murder conviction. Defendant's argument is thus without merit inasmuch as a predicate offender hearing was not mandated herein. The Court's imposed sentence was entirely valid.

Defendant also argues that the "second violent felony offender" box was checked on his Sentence and Commitment Order. This does not warrant a different conclusion. In view of the statutory sentencing scheme set forth, and in the absence of any indication in the Court record that Defendant was sentenced as anything other than a first-time felon convicted of second degree murder, it appears that the checkmark on the sentence and the commitment order amounts [*3]to nothing more than a clerical error.[FN2] Notwithstanding, this clerical error has no effect on the imposed sentence , and, therefore, the claim must be rejected. It is "well settled that irregularities or defects in the proceedings for commitment pursuant to a judgment of conviction are not grounds for the discharge of a defendant from custody as long as there is valid judgment of conviction underlying the commitment." See People ex rel. Harrington v. McMann, 23 AD2d 940, 940 (3rd Dept. 1965) (quoting People ex rel. Harris v. Lindsay, 21 AD2d 102 [1st Dept. 1964]). The court in Harris further noted that an "error or mistake' [in the commitment proceedings] "will not invalidate the same unless the defendant is prejudiced in a substantial right." Harris, supra at 106. Furthermore, in People v. Capers, 177 AD2d 992 (4th Dept. 1991), where a defendant was deserving of adjudication as a second felony offender, but was erroneously adjudicated a second violent felony offender, the court refused to reverse the adjudication because defendant's sentence was nonetheless proper, given his actual status as a second felony offender).

Conclusion

Defendant's imposed sentence was appropriate. His motion fails to present a legally valid basis for any relief whatsoever. The indeterminate sentence of twenty-five years to life is not, therefore,"unauthorized, illegally imposed or otherwise invalid as a matter of law (see CPL § 440.20[1]).

ORDERED, that Defendant's motion to set aside his sentence is in its entirety denied.

This constitutes the opinion and decision of the Court.

Dated: Bronx, New York

November 9 , 2007

_______________________

Dominic R. Massaro

Justice of the Supreme Court Footnotes

Footnote 1:It appears from Defendant's motion, wherein he uses the term "persistence," that he is confused about his sentencing status, as discretionary persistent felony offenders receive sentences within the same statutory range as class "A-I" felony offenses.

Footnote 2:The People state that upon investigations they were unable to locate any documents reflecting that Defendant was adjudicated a second persistent felony offender, violent or non-violent.



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