People v Butler

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[*1] People v Butler 2009 NY Slip Op 51619(U) [24 Misc 3d 1225(A)] Decided on June 16, 2009 Supreme Court, New York County Pickholz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 16, 2009
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Denard Butler, Defendant.



5260/06



Appearances of Counsel

For Defendant

Darren Fields, Esq.

26 Court Street

Suite 1406

Brooklyn, NY 11242

For the People

Robert Morgenthau, District Attorney New York County

by Che' Arguello, Esq.

Ruth Pickholz, J.



The jury convicted the defendant of numerous violent felonies stemming from his participation in a robbery. The People have filed a statement indicating that he was previously convicted of two other violent felony offenses, and seek to have him subjected to enhanced punishment as a persistent violent felony offender (Penal Law 70.08). The sentences that were imposed on defendant's two early violent felonies did not state that he would have to serve a term of post-release supervision. Defendant claims that lawful sentences were not imposed for either of his two prior felony convictions until after he committed his latest crime, and that they therefore cannot be used to enhance his punishment for his latest crime. I find that lawful sentences on both of the previous convictions were not imposed until after defendant committed his latest crime , but that he is precluded from contesting the use of the first of his felonies to enhance his punishment. I therefore conclude that he must be sentenced not as a persistent violent felony offender, but as a second violent felony offender (Penal Law 70.04).

The People have filed a statement pursuant to CPL 400.16 indicating that defendant was twice convicted in Kings County of criminal possession of a weapon in the third degree (Penal Law 265.02 [4]). He was convicted in 1999, by plea (indictment 5571/1999), and again , in 2001, after trial (indictment 5098/2000). The court sentenced him to a four- month jail term and five years probation in 1999 on the first conviction. [FN1] On April 17, 2001, he was sentenced as a second violent felony offender to a six- year determinate prison term on the second gun possession conviction. That same day the court also imposed a concurrent six-year term for defendant's violation of the terms of the probation imposed on his first conviction. Criminal possession of a weapon in the third degree is classified as a violent felony offense (Penal Law 70.02). As to each conviction, therefore, as the court imposed a determinate prison term, it was required to additionally impose a term of post-release supervision pursuant to Penal Law 70.45. Nevertheless, it did not do so in either case. [*2]

On October 2, 2006 defendant committed the robberies giving rise to the indictment which is before me, but the case did not go to trial until February, 2009. In the interim the New York State Division of Parole contacted the Kings County sentencing court indicating that defendant's commitment documents contained no reference to a term of post-release supervision (PRS), and that defendant was therefore a "designated person" pursuant to Correction Law 601 (d)(1). Although I do not have the minutes of a proceeding indicating that the defendant was returned to Kings County for resentencing pursuant to that provision, I presume that such was the case. [FN2] On September 11, 2008 the sentencing court issued a "post-release supervision re-sentencing order." The order states, in relevant part as follows:

The Court . . . [f]inds, there being no discussion or agreement concerning post-release supervision as part of the defendant's sentence reflected anywhere in the proceedings;

And in the interests of justice and equity, the Court respectfully declines to re-sentence the Defendant herein and holds that no period of post-release supervision constitutes part of defendant's sentence.

The People seek to have defendant sentenced as persistent violent felony offender on the case that is before me. The defendant opposes their application, arguing that the two violent felonies in his past, i.e., the 1999 and 2001 gun convictions, cannot serve as predicate violent felonies. He argues as follows: A person can only be adjudicated a persistent violent felony offender if he is found to have two or more prior violent felony convictions (CPL 70.08 [1][a]). Penal Law 70.04 (1)(b)(ii), which is incorporated by reference in the persistent violent felony offender statute, provides that, in order for a prior conviction to qualify as a predicate violent felony conviction, "sentence upon such prior conviction must have been imposed before commission of the present felony." Defendant argues that, although he was initially sentenced to determinate jail terms on these convictions on April 17, 2001, that date is irrelevant, as those sentences were vacated. He was not resentenced on the convictions until 2008, several years after he committed the robberies which are before me. As the resentence date post-dates the commission of his latest felony, he continues, the gun convictions cannot be used to enhance his punishment on the robbery case.

Where a court imposes an illegal sentence for a conviction and later vacates it, and then imposes one that is legal, the conviction cannot serve as a predicate felony to enhance the defendant's punishment for a crime committed prior to the date of resentence(see People v. Robles, 251 AD2d 20; People v. Boyer, 19 AD3d 804; People v. Bell, 73 NY2d 300). Moreover, [*3]the sequentiality provision contained in each of the repeat-offender statutes is construed strictly. "Multiple offender status is defined by the plain statutory language, which courts are not free to disregard" (People v. Wright, 270 AD2d 213 at 215).

There is no reason to apply a different rule where, as here, the defendant must be re-sentenced because the sentence he first received did not contain a term of post-release supervision as required by law. If the sentencing court is required by Penal Law 70.45 to impose a term of post-release supervision, but fails to do so in defendant's presence, the sentence that it imposes is unlawful (see People v. Sparber, 10 NY3d 457). In that event the remedy is to vacate the sentence and resentence the defendant (id.). If the original sentence is vacated and the new lawful term not imposed until after defendant's commission of a second crime, the first conviction may not be used to as a predicate felony to enhance defendant's punishment on the second crime (see People v. Young, 23 Misc 3d 335 ; People v. Caldwell Sup Ct NY County, 4/2/2009, Obus, J.) Not every court to have ruled on this issue has come to the same conclusion. The court in People v. Acevedo ( Sup Ct NY County, 2/26/2009, White, J.) held that such a conviction may be used to enhance defendant's sentence for a subsequent crime because the initial sentence imposed was not "substantively" illegal. The court reasoned that as Sparber refers to a sentence which lack a PRS component as "procedurally flawed" and "easily correctable" (People v. Sparber, 10 NY3d 457 at 465; 470; 472 at footnote 8), the underlying conviction may be used to enhance a sentence on a subsequent conviction no matter when resentencing takes place. I respectfully disagree. I do not find it determinative that the court in Sparber never directly characterizes the original sentence imposed in these instances as "illegal" or "unlawful." The First Department, has subsequently determined that such sentences are "unlawful," (see People v. Hogue,AD3d, 2009 WL 1182058 [1st Dept, 5/5/2009]; People v. Edwards,AD3d, 2009 WL 1287868 [1st Dept, 5/12/09]). Moreover, it is no more difficult to resentence a defendant upon whom a "substantively" illegal sentence was imposed than it is to resentence one whose sentence was merely "procedurally flawed." In either case the defendant must appear before the court, which must set aside the illegal sentence and impose a new one. Furthermore, as Sparber makes clear, the court rectifies the procedural error by vacating the original sentence and imposing one which is legal, or re-imposing the same sentence which is then deemed legal (CPL 70.85). In either event , as the original sentence is vacated and a another is imposed (or re-imposed), the sentencing sequence does not satisfy Penal Law 70.04 (1)(b)(ii).

The question remains whether the defendant was in fact "resentenced" on September 11, 2008. The People argue that he was not. They contend that the Kings County court merely construed its original sentence as having no PRS component, without actually resentencing him. Indeed, the court explicitly stated that it was declining to resentence him. As that is the case, they continue, he was sentenced on these cases in 2001, and the predicate felonies may be used to enhance his punishment here. The objection to this analysis is that, despite what the re-sentencing court may have intended, it in fact resentenced the defendant on September 11, 2008. The "sole remedy" in instances where the sentencing court fails to pronounce a term of post-release supervision as required by law "is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement" ( People v. [*4]Sparber, 10 NY3d 457 at 471) (emphasis added) . If, as was the case here, the court does not wish to add a term of post release supervision to the defendant's sentence, and the District Attorney agrees, it need not do so. But in that case the court must "reimpose the originally imposed determinate sentence of imprisonment without any term of post-release supervision, which then shall be deemed a lawful sentence" (Penal Law 70.85). There is no provision in the law which permits the sentencing court to avoid vacating the original sentence and to "hold" or declare that the original sentence contains no term of post-release supervision. Nevertheless, that does not mean that the court's actions had no effect or were illegal. If a court brings a designated defendant before it and pronounces sentence pursuant to Correction Law 601-d, it vacates the original sentence and resentences the defendant, no matter how it couches its actions. An attempt by the court to characterize its action as other than a resentencing (e.g., as a "clarification of sentence") "is of no legal consequence" (see People v. Edwards, ___ AD3d ___, 2009 WL 1287868 [1st Dept, 5/12/09]). The Kings County Court, despite its characterization of its action, thus effectively resentenced defendant.

There is yet another consideration in this case. A defendant who, without good cause, fails to raise a constitutional challenge to a prior conviction when he has the opportunity to do, waives any future argument that the conviction may not be used to enhance his conviction (CPL 400.15[7][b], 400.16 [1]; see People v. Crawford, 204 AD2d 203; People v. Boutte 304 AD2d 307). Moreover, where a court makes a finding that a person is a second violent felony offender, "it shall be binding upon that defendant in any future proceeding in which the issue may arise" (CPL 400.15 [8]). These principles apply where the defendant has an opportunity to complain that the prior conviction lacked a mandated period of post-release supervision but does not do so (see People v. Odom,AD3d, 2009 WL 1515517 [1st Dept 2009]). The defendant in Odom pleaded guilty to a violent felony in 2000 but was not told that his sentence had to include a period of post-release supervision. He did not raise the issue on direct appeal. He was convicted of a second violent felony in 2006 and did not challenge the 2000 conviction at that time. The court consequently adjudicated him a second violent felony offender. He was convicted by plea of yet a third violent felony in 2007, at which time he attempted to argue that the 2000 conviction, lacking a PRS component, could not be used to enhance his punishment. The Appellate Division, affirming the trial court, held that defendant, having previously been adjudicated a second violent felony offender, was precluded from making such an argument.

CPL 400.15 (8) does not contain the "good cause" language contained in subdivision (7)(b). I conclude from the absence of such language in subdivision (8) that, although a defendant may argue that there was good cause for his previous failure to contest the use of a predicate felony on the ground that it was unconstitutionally obtained, he is strictly precluded from contesting the use of the predicate on any other ground. This conclusion is in accord with the court's statement in Odom that it was disinclined to retroactively apply the Catu rule (People v. Catu, 4 NY3d 242) to recidivist sentencing proceeding because to hold otherwise "would effectively eviscerate the binding effect of predicate violent felony proceedings on a defendant as mandated by CPL 400.15(8)"(Odom, 2009 WL 1515517 at 2). In the case before me defendant does not claim that his 1999 conviction was unconstitutionally obtained, but rather that it cannot [*5]be used to enhance his sentence because of the sequentiality rule set forth in Penal Law 70.04 (1)(b)(ii). It is therefore irrelevant that he may have had good cause for not raising the issue on April 17, 2001, when he was adjudicated a second violent felony offender.

Accordingly, defendant is precluded from claiming that his 1999 conviction cannot be used to enhance his sentence. As he has never previously had the opportunity to challenge the use of the 2000 conviction to enhance his sentence, he may do so now. In light of the fact that he was resentenced on the 2000 case in 2008, thereby violating the sequentiality rule as to that conviction, it may not be used to enhance his punishment on the case for which he is awaiting sentence. Defendant will therefore be sentenced as a second violent felony offender.

A.J.S.C.

Dated: June 16, 2009



Appearances of Counsel

For Defendant

Darren Fields, Esq.

26 Court Street

Suite 1406

Brooklyn, NY 11242

For the People

Robert Morgenthau, District Attorney New York County

by Che' Arguello, Esq. Footnotes

Footnote 1: The sentence that was imposed at that time appears to have been authorized pursuant to (Penal Law 70.02 [2][c]).

Footnote 2: The defendant argues that there is no evidence that the People consented to the sentence that was reimposed on September 11, 2008. For the purposes of this decision I assume that they indeed agreed to the sentence. If they did not, or if the was a failure to otherwise comply with the requirements CPL 70.85, then there would be additional grounds for denying the People's application .