People v Moss
Annotate this CaseDecided on November 30, 2012
Supreme Court, Bronx County
The People of the State of New York, Plaintiff,
against
Clarence Moss, Defendant.
0462-2002
Appearances of Counsel:
Defendant, Pro Se
Justin Braun
Assistant District Attorney
Bronx County District Attorney
Richard Lee Price, J.
By motion initially submitted June 25, 2012, resubmitted on August 31, 2012, and further resubmitted on November 5, 2012, defendant moves for an order pursuant to CPL § 440.20 vacating and setting aside his sentence imposed on May 4, 2003. Upon considering the arguments set forth in the parties' respective papers, the applicable law, prior court proceedings, and documents on file with the court, defendant's motion is summarily denied as entirely baseless.
Background and Procedural History
On March 4, 2003, a judgment of conviction was entered against the defendant in Supreme Court, Bronx County (Bamberger, J), convicting him after a jury trial of murder in the first degree (PL § 125.27 [1]), a class A violent felony, and two counts of sexual abuse in the first degree (PL § 130.65 [1]), class D violent felonies. Defendant was sentenced to a term of life imprisonment without the possibility of parole for the murder conviction, and determinate terms of seven years imprisonment for each of the sexual abuse convictions, with all sentences to be served concurrently. No term of post-release supervision (PRS) was imposed.
Defendant appealed the judgment to the Appellate Division, First Department. On October 13, 2005, the Appellate Division affirmed defendant's conviction (see People v Moss, 22 AD3d 329 [1st Dept 2005]). The Court of Appeals denied defendant's petition for leave to appeal (6 NY3d 836 [2006], lv denied upon reconsideration 7 NY3d 759 [2006]).
On June 28, 2011, the defendant filed a pro se motion pursuant to CPL § 440.20 to set [*2]aside his sentence, asserting that the two determinate sentences were unauthorized and illegally imposed because the court did not pronounce a statutory period of PRS.
On February 28, 2012, the New York State Department of Corrections and Community Supervision (DOCCS) identified the defendant as a "designated person" pursuant to Correction Law § 601-d, noting that while the defendant received a determinate sentence no period of PRS was imposed. By letter dated April 12, 2012, this court assigned The Legal Aid Society to represent the defendant in any 601-d proceedings.
On May 7, 2012, in accordance with Correction Law § 601-d, this court held a proceeding during which the District Attorney made a conditional statement advising this court that unless otherwise notified, they would not challenge the lawfulness of defendant's determinate sentences. On May 29, 2012, this court, without any opposition from the District Attorney issued a Determination and Order authorizing that the original sentence imposed, without PRS, be unaltered and properly remain the sentence of the court. As a consequence of that Determination and Order, defendant's pro se motion to vacate his sentence was rendered moot as it was retroactively deemed authorized and entirely lawful. Recognizing as much, defense counsel declined to adopt it.
Nevertheless, unconvinced and undeterred, defendant supplemented his motion by letter dated June 4, 2012, reiterating his insistence that he was not governed by 601-d and demanding that his motion be granted.
On June 25, 2012, the District Attorney responded to defendant's motion notwithstanding counsel's refusal to adopt it. Obviously, they opposed it. The motion was marked submitted. Since then, however, the defendant relentlessly bombarded this court with repetitively indignant demands that 601-d is inapplicable. By letters dated August 31, 2012, and November 5, 2012, he persistently maintains that 601-d does not govern the unlawfulness of his originally imposed sentence. So much so, he threatens that in the event this court "refuse[s] to correct the illegal and unauthorized sentences the defendant Clarence Moss will move pursuant to CPL 380.30 to have the entire indictment dismissed." Such is folly.
Discussion
Criminal Procedure Law § 440.20 provides that "[a]t any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law" (CPL 440.20).
In 1998, the Legislature enacted Penal Law § 70.45 directing courts to impose a mandatory period of PRS on terms of determinate imprisonment. Subsequently, the Court of Appeals ruled that where the sentencing court failed to do so, the sentence is unauthorized and illegal because "only the sentencing judge is authorized to pronounce the PRS component of a defendant's sentence" (Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 362 [2008]).
In response, the Legislature enacted Correction Law § 601-d, which authorized DOCCS to notify the sentencing courts of defendants they identified as "designated persons" who did not have a period of PRS imposed (CL § 601-d [4] [a]-[d]). Here, DOCCS did exactly that. The legislation required this court to appoint counsel for the defendant, calendar the matter, and "commence a proceeding to consider resentence" (CL § 601-d [4] [a], [c]). It further instructed [*3]this court to "issue and enter a written determination and order" re-imposing the original determinate sentence without a period of PRS absent opposition by the District Attorney (CL § 601-d [4][d]; see generally PL § 70.85). That is precisely what occurred. This court did so.
It is patently obvious, then, that where a period of PRS was not imposed, as was the case here, the Legislature enacted a clear remedy: issue a determination and order authorizing the originally imposed sentence without PRS to stand. It is, as they say, plain and simple except perhaps to the defendant. He is, understandably, unhappy about serving a lifetime in prison without ever attaining parole. Correction Law § 601-d, however, was intended to address a limited procedural problem, not double as a "get out of jail free card." Defendant's pontificating protestations to the contrary, and threats of additional baseless and frivolous motions aside, this court properly corrected his unauthorized and illegally imposed original sentence.
Defendant's motion to set aside his sentence pursuant to CPL 440.20 is therefore summarily denied.
This constitutes the decision and order of the court.
The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.
Dated: November 30, 2012
E N T E R
________________________________
Richard Lee Price, J.S.C.
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