People v Locenitt

[*1] People v Locenitt 2013 NY Slip Op 51158(U) Decided on June 25, 2013 Supreme Court, Kings County Del Giudice, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2013
Supreme Court, Kings County

People of the State of New York

against

Kiaza Locenitt, Defendant.



8956-2010



Charles J. Hynes

District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

by ADA Taryen O'Brien

Attorney for the defendant:

Herman Walz, Esq.

40 Exchange Place, Suite 2010

New York, New York 10005

Vincent M. Del Giudice, J.

On June 20, 2010, at approximately 11:00 p.m., the defendant and another person walked toward a group of individuals who were standing outside 529 East 22nd Street, in Brooklyn. At the same time, fifty-seven year old Maxine Murray, who had just left her apartment to take out the garbage, was outside 531 East 22nd Street, talking to one of her friends. After speaking briefly with some of the individuals outside 529, the defendant and his associate walked away, passing 531 East 22nd Street and Maxine Murray. For some reason, the defendant returned to the individuals standing in front of 529 East 22nd Street. Ms. Murray, who knew the defendant from the neighborhood, heard the defendant demand that his associate, and facilitator, and possible accomplice, give the defendant a gun the associate was holding. After expressing a few expletives about not caring what he was about to do, upon being given the weapon, the defendant fired a number of shots at the group standing in front of 529 East 22nd Street. Unfortunately for Maxine Murray, she was in the line of fire and was an innocent victim of the defendant's poor marksmanship. The defendant actions also resulted in Lucas Allen being shot in the leg.[FN1] [*2]

On February 11, 2013, the defendant was convicted, after a jury trial, of Criminal Possession of a Weapon in the Second Degree (PL 265.03 [3]), a class C violent felony offense. On February 28, 2013, defense counsel's motion to set aside the verdict was denied by this court (CPL 330.30). Prior to sentencing, a hearing was scheduled, pursuant to CPL 400.20, to determine whether the defendant should be sentenced as a persistent felony offender (PL 70.10 [1]). The matter was adjourned to allow the People sufficient time to gather the required evidence, records and documents necessary for the persistent felony offender hearing. Although incarcerated, the defendant failed to appear in court on May 23, 2013, May 28, 2013, and on June 10, 2013, claiming to the Department of Correction officials that he was too sick to appear. A sentencing hearing was eventually scheduled for June 25, 2013. Although the defendant was produced to the courthouse by the Department of Corrections, he refused to come to the courtroom, initially claiming he was awaiting the arrival of a medical doctor and later claiming he was having chest pains. The court conducted a Parker hearing (People v Parker, 57 NY2d 136 [1982]; see also Taylor v US, 414 US 17 [1973]; People v Scott, 104 AD2d 667 [2nd Dept 1984]) and concluded that the defendant was not sick but was malingering, in an attempt to avoid being sentenced.[FN2]

Any right the defendant may have to be present at his sentencing can be waived or forfeited, as a matter of public policy, when the evidence unambiguously indicates "a defiance of the process of law sufficient to effect a forfeiture" (People v Corley, 67 NY2d 105, 109 [1986]; People v Sanchez, 65 NY2d 436, 444 [1985]). "Just as a defendant forfeits any right to be present at sentencing by absconding during trial (see People v Sanchez, supra), so for the same policy reasons does a defendant lose that right by absconding to frustrate scheduled proceedings before the Trial Judge in connection with sentencing"(Corley, 67 NY2d at 109-110). Based on this defendant's history of uncooperative and inappropriate behavior, this court found that the defendant's current manipulative and willful conduct constituted a forfeiture of his right to be present at his sentencing hearing.

Penal Law 70.10 (1) defines Persistent Felony Offender as a person who stands convicted of a felony after having been previously convicted of two or more felonies. In order for a prior felony to qualify under this statute, the previous felony conviction must result in a sentence of imprisonment in excess of one year and the defendant is also required to have been sentenced for each felony conviction before he committed the acts which constitute the subsequent felony (PL 70.10 [1][b]). [*3]Pursuant to PL 70.10 (2), when the sentencing court has found, and is of the opinion, that a defendant is a persistent felony offender, and when the court further determines that the defendant's history and character indicate that incarceration and life-time supervision would best serve the public interest, the court may impose a sentence of imprisonment such as that authorized for a class A-1 felony.The steps required in order to make such a determination are set forth in CPL 400.20. The first step is for the court to determine whether the defendant is a persistent felony offender, as defined in PL 70.10 (1)(a). If so satisfied, the court must then determine whether the defendant's criminal history and character warrant a period of extended incarceration and lifetime supervision (CPL 400.20 [9]). Although the court is authorized to make such determinations without conducting an evidentiary hearing (CPL 400.20 [8]), this court ordered an evidentiary hearing to provide defendant, and his attorney, with an opportunity to controvert any of the factual allegations made by the People and to present mitigating evidence, if any, on his behalf (CPL 400.20 [9]).

The prosecutor filed an order with the clerk of the court, and served the order upon the defendant, specifying the date and location of the evidentiary hearing (CPL 400.20 [3]). The order also set forth the dates and jurisdictions of the defendant's previous felony convictions and contains a brief statement as to the factors in the defendant's background which the prosecutor believes are relevant to sentencing the defendant as a persistent felony offender (CPL 400.20 [3][a] and [b]).

At a persistent felony sentencing hearing, the People bear the burden of proof, beyond a reasonable doubt, based on non-hearsay evidence (CPL 400.20 [5]). Matters related solely to the defendant's history and character, and the nature and circumstances of his criminal conduct, however, may be established by any relevant evidence, regardless of admissibility under the exclusionary rules of evidence, and the standard of proof with respect to the admissibility of these matters is proof by a preponderance of the evidence (CPL 400.20 [5]).

At the time of sentencing, the defendant may controvert the constitutionality of a prior conviction (CPL 400.20[6]). Failure to controvert the constitutionality of a prior conviction constitutes a procedural bar to any subsequent attempt to challenge that particular conviction (CPL 400.20 [6]) With respect to the defendant's prior felony convictions, the official court record shows that on August 4, 2000, the defendant pled guilty to Criminal Sale of a Controlled Substance in the Third Degree (PL 220.39), a class B felony, and he was subsequently sentenced, on August 18, 2000, to an indeterminate term of one to three years imprisonment. On June 19, 2006, the defendant pled guilty to Criminal Possession of a Controlled Substance in the Fifth Degree (PL 220.06), a class D felony, and he was subsequently sentenced, on June 30, 2006, to determinate term of eighteen months imprisonment. On January 26, 2009, the defendant pled guilty, before this court, to Attempted Assault in the Second Degree (PL 110/120.05), a class E felony, and was subsequently sentenced, on February 17, 2009, to an indeterminate term of imprisonment with a minimum of eighteen months and a maximum of thirty-six months. [*4]As part of her moving papers, the prosecutor filed copies of the certificates of convictions for each of the three previous felony convictions, confirming that for each conviction the defendant was sentenced to a term of imprisonment in excess of one year (PL 70.10 [1][b][i])[FN3] and certified copy of the criminal history of the defendant.[FN4] The prosecutor also filed a certified letter from the Division of Parole documenting the periods of the defendant's incarceration during each of his three periods in state prison and noted that he was not pardoned for any of the previous convictions (PL 70.10 [1][b][ii] and [iii]).[FN5] The prosecutor also filed a certified fingerprint comparison from the New York State Criminal Justice Services, demonstrating that all three felony convictions belong to the defendant who was convicted before this court.[FN6] The prosecutor also included a color arrest photograph, from the New York City Police Department, for each of the defendant's prior felony convictions, visually confirming that the defendant before me is the same individual that was convicted in those previously documented felonies. In addition to the aforementioned felonies, the defendant has also been convicted of five misdemeanor offenses, has a lengthy prison disciplinary record and this court has held the defendant in summary Contempt of Court, pursuant to Judiciary Law 750, for contemptuous, insolent behavior committed in my presence. After the jury rendered its verdict, but prior to sentencing, on February 28, 2013, the defendant disputed that he was the person convicted and sentenced on August 18, 2000, for Criminal Sale of a Controlled Substance in the Third Degree. He did not, however, challenge his latest felony conviction, which resulted from a plea he had negotiated before me in January 2009. His failure to challenge the constitutionality of that January 2009 conviction constitutes a waiver of any subsequent allegation that the conviction was obtained in violation of his constitutional rights (CPL 400.20 [6]). After the defendant disputed the accuracy of the People's predicate felony statement, the court ordered the plea and sentencing minutes for the defendant's 2009 felony conviction, in which he pled guilty to Attempted Assault in the Second Degree. In exchange for his plea of guilty, the defendant was promised an indeterminate term of imprisonment of eighteen to thirty-six months in state prison. At that proceeding, the defendant admitted, under oath, to being involved in a shoot-out with one person that resulted in the shooting of a second individual. In addition to admitting his guilt, the defendant also admitted that he was the person convicted of a felony on August 4, 2000, and that such conviction was obtained in conformity with all of his constitutional rights. The Court: Do you admit, deny or controvert, that you were convicted in the Supreme Court of Kings County on August 18, 2000, under indictment 1764 of 2000, for Criminal Sale of a Controlled Substance in the Third Degree? The defendant: Yes. [*5]The Court: Do you also admit that you were also convicted on June 30, 2006, here in Kings County, under indictment number 617 of 2006, for the crime of Criminal Possession of a Controlled Substance in the Fifth Degree? Do you admit that, sir?The defendant: Yes.The Court: Do you have any constitutional objections to either conviction?The defendant: No. (Transcript of plea, January 26, 2009, at page 14).

During this 2009 plea, the defendant was adjudicated a second felony offender. Ironically, the defendant could have been sentenced as a persistent felony offender at that time and I warned him that if he was convicted of another felony he could be sentenced to an enhanced sentence which would include lifetime parole. The Court: You understand that you're pleading guilty to a felony? The defendant: Yes. The Court: Which means if you get convicted of another felony in the future you may be sentenced as a predicate felony offender, predicate violent felony offender, or a persistent felony offender, which means you'd be subjected to a higher sentence including [the] possibility of life. Do you understand? The defendant: Yes. The Court: You're going to be a three time loser after this case.You already got — this will be your second felony conviction. You understand? Next one out, you can get life. Do you understand what I'm telling you? The defendant: Yes. The Court: All right.Assistant District Attorney Kenneth Glasser: This is his third. The Court: What? ADA Glasser: This is his third felony conviction. The Court: This is his third felony conviction, right, but the district attorney advised me that they're not going to seek discretionary persistent felony status. (Transcript of plea, January 26, 2009, at pages 11-12).[FN7]

At the pre-sentencing hearing, the People called three witnesses: Assistant Deputy Warden Marvin Butler, Department of Corrections and Community Supervision Bureau Chief Nigel Joseph [*6]and NYPD Gang Intelligence Unit Captain Robert Ellis.

Mr. Butler reviewed the defendant's inmate records [FN8] and testified that the defendant has been found guilty of fifteen disciplinary infractions while incarcerated at Riker's Island and is currently housed in punitive segregation.

Mr. Joseph reviewed the defendant's certified parole records after his 2009 conviction before this court [FN9] and testified that the defendant violated the terms of his parole by being arrested on a domestic violence offense and by eventually absconded from parole supervision in May of 2010. The defendant's parole was revoked twice.

Mr. Ellis testified that the defendant is a known member of the notorious Crips gang and testified as to various Security Risk documents that are compiled on known and suspected gang members at the penal institution.[FN10]

The court conducted a jury trial for the defendant's latest act of violence. I have examined the pre-sentence report prepared by the Department of Probation, the moving papers submitted by the prosecutor and have heard from both counsel. The defendant is a headline waiting to happen. In each of his last two convictions before me, his conduct consisted of him firing a handgun at other individuals. The first time, he shot and injured an innocent party, while attempting to shoot, and perhaps kill, a third party. In the present matter, the defendant fired his weapon in the direction of one group of individuals, with no apparent concern for another group of individuals situated in the defendant's line of fire, resulting in an individual from each group being injured. As in the last conviction, the defendant was successful in causing further mayhem on our streets. He is a gunman without morals, unconcerned about the innocent lives around him. His only thought is to shoot and kill whomever he decides to at any particular moment. This is yet another act of senseless violence by this defendant which must be addressed by the law. Defendant's counsel was afforded the opportunity to present whatever mitigating evidence he could on his client's behalf. His argument, that the court should exercise its discretion and decline to sentence the defendant as a persistent felony offender is, not surprisingly, underwhelming. The defendant is a menace to society and should be incarcerated to prevent him from causing further bloodshed in the future. His attitude of disrespect and defiance during his numerous appearances before me led me to hold him in summary contempt of court. He is not to be allowed to continue his wanton acts of violence.

I find that the People have met their burden of proof, beyond a reasonable doubt, and I find [*7]that pursuant to PL 70.10 (1), this defendant is eligible to be sentenced as a persistent felony offender and may be subjected to an enhanced sentence, including lifetime parole.

After reviewing all the evidence submitted, I find that, based upon the defendant's history and character,[FN11] the public interest would be best served if the defendant was sentenced to an enhanced sentence that included lifetime supervision (PL 70.10 [2]).

Accordingly, I hearby adjudicate the defendant a persistent felony offender and sentence him to an indeterminate sentence with a minimum of twenty-five years and a maximum of life in prison. In addition, the defendant is ordered to pay a fine of five thousand dollars (see PL 80.00 [1][a]) and all mandatory surcharges and fees that are applicable are to be imposed (see Pl 60.35), and are to be collected from inmate funds.

This constitutes the decision, opinion and order of the court.

_________________________

Vincent M Del Giudice

Judge of the Court of Claims

Acting Supreme Court Justice

Dated: June 25, 2013

Brooklyn, New York Footnotes

Footnote 1:Mr. Allen did not cooperate with the authorities and no criminal charges regarding him were brought against the defendant.

Footnote 2:At the Parker hearing, Supreme Court Officer Shawn Hobson testified, and was cross-examined by defendant's attorney, about his conversation with the defendant in the holding pens, wherein the defendant initially stated he did not want to come to the courtroom and later stated he was expecting a visit from a medical doctor. Officer Hobson also testified that during his encounter with the defendant, he observed no visible signs of trauma, illness or distress. Corrections Captain Joseph Baiardi advised the court, by telephone, that the defendant first advised him that he was feeling ill. Later, the defendant indicated to Captain Baiardi that he was having chest pains and the Department of Corrections staff began to take steps to transport the defendant to a hospital. Prior to being transported to a medical facility, the defendant advised Captain Baiardi that he no longer had any chest pains, nor did he require any medical attention, but he refused to be brought to the courtroom voluntarily and demanded he be returned to Riker's Island.

Footnote 3:These records were introduced into evidence, without objection, as People's exhibits #6 and 7.

Footnote 4:These records were introduced into evidence, without objection, as People's exhibit #4.

Footnote 5:These records were introduced into evidence, without objection, as People's exhibit #5.

Footnote 6:These records were introduced into evidence, without objection, as People's exhibit #8.

Footnote 7:The defendant's February 28, 2013 statement before this court, claiming that his 2000 conviction was obtained in violation of his due process rights, is another example of his cavalier and manipulative conduct towards the court. The admission of the two prior convictions during his 2009 plea constitute a waiver of defendant's right to further challenge the constitutionality of those convictions at a subsequent sentencing (CPL 400.20 [6]).

Footnote 8: A copy of the defendant's inmate records was introduced into evidence, over the defense's objection, as People's exhibit #1. In addition, the People also introduced records of a pending indictment filed in Bronx County for criminal actions the defendant has allegedly committed while in Riker's Island during the pendency of this case.

Footnote 9:The defendant's parole records were introduced into evidence, without objection, as People's exhibit #2.

Footnote 10:The Security Risk documents were introduced into evidence, without objection, as People's exhibit #3.

Footnote 11: It is clear from his three prior sentences to state prison, and his repeated failure at parole supervision, that the defendant's likelihood for rehabilitation and productive reintegration into society is dismal. The sentence imposed in this case will not only be a specific deterrent to him but will also serve the purpose of general deterrence, and the imposed sentence of confinement will serve the interest of the public protection (see PL 1.05 [6]; People v Suitte, 90 AD2d 80 [2nd Dept 1982]).