People v Zahiruddin

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People v Zahiruddin 2012 NY Slip Op 33673(U) March 28, 2012 Supreme Court, Bronx County Docket Number: 2438/06 Judge: James M. Kindler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK BRONX CQUNTY CRIMINAL DIVISION: PART T~21 . ~PBOPLEOFT'.HESTATEOFNEWYORK ·····against· Indictment No. '2438/06 HAFIZ ZAHIRUDDIN, Defendant: · Sames M. Kindler, J. .. DECISIOr! AN» ORPEB. ·Defet,ldant !!=loves pursuant to CPL§ 440,29 for an Order setting a$ide the sentence imposed . .under the; instant in~otment. which was based on his adjudication as asecond violent felony offender, and resentenclng him as a first' violent felony offender" On Oecem~r 8, 2000. under Indictment Numbe~ 48/00, d~fendant pled guilty in Supreme . ' Cc)urt, Bronx'County, to Robbery in the Fi.rst Degree (Penal Law§ }60.10(1 ]), and$ on January 26, . . 2001, was sentenced to a detcnninale four year ~erm of imprisonment (Moore, J.). Defendant was not advised t&.at he would be subject tci post-release ~upervision C'PRS") at the plea proeeedi{l.g and ' ' < , , :' ¢ .~ , no'PRS was imposed at the sentence. On April 26, 2006. under the instant indictment. defendant pled guilty in Supteme Coun, Bronx County. to Attempted Criminal Possessi6h of a Weapon in the Third Degree (Penal Law§ . . ll0/255.02[4]), and, on September 11, 2006. w~ ~~ntenced, as a second vfolent felony offender, to ,·"l ' a~deiermiJ'late four year tenn of imprisorunent and five years PRS. By letter dated November 20, 2009, the Department of Corre~tional Se~ices ·aierted. the [* 2] Court of defendant 1s status as a 0 designated person," pursuant to Correcticin Law§ 601 -d(1), since . . defendant· received a determinate sentence under :1ndictment .. Number 48/00 without an accompany~g period of PRS. to ·0n February 8, 2010, at a proceeding held pursuant Corr~Ciion Law§ 601-d(l) before JHO Eilee~ Koretz, the Court determined that defendant had not been advised of PRS· and that no PRS had been imposed. In accordance With § 601Md(1 ), the People ~tated that if they did not notify the · . . . Co\ll!t ''within the time schedule set by the Court,', that they ~ere not·"seeking resentencing or further . ¢ ' ¢ < adjournment," "(tJhe·Court may presumenthanbePeople were "consenting to a sente~ce that [did] not.include a ·t~rm of fPRS]." . . On March 15, 2010, the People informed the Court.that they had no further submissions and . c -, ¢ ' ,THO f(oretz referrea the matter to Judge Moore and issued a ~ecommendation for J?etermination and Order, which noted that. the People. consented to a sentenc~ that did not include PRS and recommerided tlult the originatly imposed sentence remain Unaltered . In, a Determination .an4·0rder, . . ~ Judge Moore or~d that the original sentence imposed; shall be u.naltered and sh~l remain the sen~ of the Court. > I Now~ in motion papers d.ated, November 28, 2011, defendant~ through cqunsel, moves for an Order etting asi.de th~ sentence pursuant to CPL § 440:20 and resentencing him as a first vf~lent .' felony offender, argUing that, pursuant to f.¢Qpk y. Acevdeo, 17 N. Y.3d 297 (2011) and Peopl~ Yi Butlet ~8 A.D.3d 470 (1st Dept. ~011), the dat~ of resentencipg in 2010 controls for purposes of detennining uefendant' s predicate felony s.tatus and that because defendant was resentenced subsequent to his September 2006 sentence, the sentence imposed for the 2000 co~viction cannot constitute a predicate felony. Thus, he contends, he must be resentenced under ~e instant indictmen.t -2- [* 3] as a first v.folent felony offender. . . In response, the People ask f:bis· Court to hold defendant's motion in. abeyance pending " ' - ' dhection from the appellate courts in order to avoid future liti~ation .should ~be reversed. The People bflSe their .request on the rej,resentation ·of a New York 'County Assistant District Attorney that the Peeple's applicatio~ for leave to appe~ the~ decision is pending ·before the Hon~rabl~ . Th~dorc T. Jones and alw because.they have filed an ~ppe°llanfs brief in the case Qf Pemile v. · Eguan Sag&le.rs, in· the First Department, in which they contend that~ .was incorrectly dedded . . Defendant submitted. a Reply ~d. on March 2, 2012, a lett~r alerting this .Cqurt tq the recent '~" ¢ " ¢ ¢ ¢ ' - < decision in ~j~ v. Frank Ruiz, a case with a similar procedural history, in which Supreme Court, ~ronx County (Mogt.lescu, 1., Feb. 23, 2012) granted the defendant'~ motion, based on~. ln a letter dated March 8, 2012, the.People infdrmed the Court that they had filed a notice of . ' ·appeal in·~ noted that a court of concurrent jurisdiction is n~t binding on this Court, and reasserted their position that d~fendant 1 s motion should be held in abeyance to avoid ongoing litigation ~ this case. 1n·&:;~ndg, the Court of Appeals determined thatthe defei;dants, who had received enhanced· sentences baseq on prior convictions, were not entitled to have their enhanced set1tenccs set ~i.de where they moved for resentencing on their predicate crimes to 9orrect the original sentences, which ! , " ¢ '" were errotieously missi:ng statutorily mandated periods of PRS~ and were .re~entenced to fix. the omission e>f PRS after the convictions in question. The Court concluded that "[t]he decisive feature of these cases [was] LI that the sentencing errors [the] defendants sought to correct by resentencing were errors in their fav9r: PRS was illegally omitted from their original sentences. The only practical .3. ¢ [* 4] ... . benefit defendants could possibly gain from the resentencings was to mpve their sentences to a later .date, thus·eliminating their prior crimes as predicates in their later cases." Acevedo, 17 N.Y.3d at 302. In rejecting tha~ tactic, the yPurt found that, under those circumstances, "the original sentencing date should be the one to be considered for predicate felony' purposes!' ld. In~ the First Department concluded that the Court in Acevedg '~specifically narrowed it$ decision to instances in which the defendant requested PRS resentencing as a tactical measure to ' . avoi'\tpredicate status" and Himplicitly rejected the broader holding of the concurring opinion, which ' . . . . '·" < < y;ould have found that predicate status cannot be affected by any PRS resentenciq." ~. 8'8 . . . A.D.3d at 473. Thus, the. court· held that, "where, in the normal course, the government seeks < ¢ resenten<;;ing ofa prior conviction and the sentence is vacated for failure to pronounce a term of PRS the Nsentencing ~te should be considered in determining w~ether the prl~r cor~viction meets tl1e s.equentWlty requirement of the predicate felony offender statutes." MI. at 473. The court went on to . ?-Otethat, under Penal taw § 79.85, a court must impose a new s~ntence even if the District Attorney . .consent$ to the· reimposition of the origin~ sentence without the addition ofPRS. This Cou~ declines the People ~s request to hold defendant's motio~ in abeyance pending a potential future reversal of .aww:. As defendant. argues, the facts of the 'instant case are indfati1:lguishable (rom the facts 9f Butler. In both cases, a government agency sought resentencing from the e:rroneous origmal sentences, and the court, with the Disti:ict Attorneys ¢ consent. declined ¢ < to resentence the defendants. The People have not offered any compelling reason to warrant this Court's holding defendant's motion in abeyance. There is no indication at this time whether'leave to appeal will be granted, let alone that Ii~ will be reversed. Nor is it clear that. if~ is reversed.. double jeopardy would prevent defendant from.being treated as a _second felony offender. -4- [* 5] · :t ··.·!fl.~~' tt1e.Court of Appeals expli,citly ·left open the question of the effect of a resent~cing, .· ~difthe efrPumStances here presented, on adefendant's predicate felony status ¢. ·~ Aceved2.J 7 · N.YJqat:~03(opinionofLipprrumt1.);sm2fe2piQv.J:iiughton12012WL9337lJ,;40I2 ¢N,Y. , t c ,·· ¢ , ¢ $lip Op.oi1 t8(2d Dep~. March 20, 2012); Peo.Qfo v. Boyer, 91A.D.3d1183 (3d Dept. 2012) .. . Aceotdingly; the Court will promptly decide the 'motion based on the First Department's . ¢a p~d~nt. · ¢ ¢ <) ·' , " .. ' .Defenwmt~s motion for an Order setting aside the sentence pursuant to CPL_§ 440.20 is · ¢:i·'aRA.NTE'I>. · Def~daot is to be ~es~nienced as a first violent felo~y offender, at~ date to' be ·~'ltt,~ r.M. Kindlett J.S~C... . . . JAMES M. Kl#DlER, J.S.C · -5·

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