People v Alston

[*1] People v Alston 2015 NY Slip Op 51736(U) Decided on December 1, 2015 Supreme Court, New York County Dwyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2015
Supreme Court, New York County

The People of the State of New York

against

Ricky Alston, DEFENDANT.



2975/2014



For the Defendant:

Robert E. Levy, Esq.

Suite 1516

299 Broadway

New York, NY 10007

For the People:

Brandon Phillips, Esq.

NY County District Attorney's Office

1 Hogan Place

New York, NY 10013
Mark Dwyer, J.

Defendant Ricky Alston moves pursuant to CPL Section 330.30 for an order setting aside his conviction for Criminal Possession of a Weapon in the Third Degree

(NY Penal Law Section 265.02 [1]). The Court will deny that motion.

A

Defendant stands convicted after trial of Criminal Possession of a Weapon in the Third Degree. On September 8, 2015, the Court sentenced defendant to a prison term of from two to four years, the minimum term possible for a defendant who, like this defendant, is a predicate felon. Notably, defendant's current crime was a felony only because defendant had been convicted of a crime in the past. See NY Penal Law Section 265.02 (1). Otherwise, defendant would have been guilty of a misdemeanor. See NY Penal Law Section 265.01 (1).

When a defendant is indicted for such a crime—commonly known as a "bump-up" felony—the indictment does not mention the prior conviction. Instead, a special information is attached to the indictment specifying the particulars of the prior conviction. If the defendant goes to trial, he has two choices concerning the information. He can concede his conviction out of the presence of the jury, in which case the jury never learns of it. Or he can contest the prior conviction, in which case the prosecutor must prove to the jury beyond a reasonable doubt that the particulars of the information are true. See CPL Section 200.60 (2). In this Court's experience, most defendants readily concede the prior conviction.

As to the "concession" of the prior conviction, the relevant CPL provision reads as follows:

If the defendant admits the previous conviction, that element of the offense charged in the indictment is deemed established, no evidence in support thereof may be adduced by the people, and the court must submit the case to the jury without reference thereto and as if the fact of such previous conviction were not an element of the offense. The court may not submit to the jury any lesser included offense which is distinguished from the offense charged solely by the fact that a previous conviction is not an element thereof. CPL 200.60 (3) (a).

B

Before sentencing in this case, defendant claimed that he had never provided a concession that he had been convicted in the prior case; the allegations in the information, he asserts, therefore had to be proved at trial but were not. (It is true, as defendant notes, that those allegations were not proved to the jury.) In the alternative, defendant claimed that his concession was premature under the statute, in that it occurred before trial formally began, i.e. before jury selection commenced. See CPL Section 1.20 (11). Finally, defendant claimed that if a timely allocution did precede his concession, it was inadequate to comply with the CPL. See CPL Section 200.60 (3).

The CPL provides:

After commencement of the trial and before the close of the people's case, the court, in the absence of the jury, must arraign the defendant upon such special information, and must advise him that he may admit the previous conviction alleged, deny it or remain mute. CPL Section 200.60 (3).

The transcript of the pre-trial proceedings was not available before sentencing. The Court therefore told defendant that it would treat his oral application as a CPL Section 330.30 motion, [*2]ordered the minutes, and continued with sentencing.These minutes are in relevant part now available. They show the following colloquy on August 5, 2015, the day before jury selection commenced:

THE COURT: Let me ask about the bump-up. Will the defendant be conceding that he was convicted of whatever the bump-up charge was or will that have to be proved to the jury by the People?

THE DEFENDANT: Excuse me, I understand that. And this is an issue with me. Because to my understanding this isn't supposed to happen until after trial is started, where I answer this.

THE COURT: Well, there is no particular reason why I have to know now. If you want to wait until jury selection?

THE DEFENDANT: Am I correct, if I am wrong, please.

THE COURT: There is no rule about the timing of it, but you're right, you could, for example, right now say that you're not conceding it. That would put the People on notice that they have to prove it. I wouldn't let them mention it during voir dire, just in

case you change your mind. But by the time the jury is selected, of course, and by the time we are doing opening statements, the People would have to know.

THE DEFENDANT: That's exactly?

THE COURT: And which of these is the bump-up charge?

MR. LEVY: The bump-up charge that was pleaded in the indictment, your Honor, is the most recent New York conviction which is the 2011 Auto Stripping in the Third Degree and Petit Larceny. (Minutes of August 5, 2015).[FN1]

At that point the Court turned to Sandoval issues, and nothing significant was added on the bump-up issue.

On the next day, August 6, 2015, after a jury panel had been sent for, this colloquy took place:

THE COURT: We will talk about it some more. But it seems to me, if the jurors are here, we should get started with the jurors. That just leaves Mr. Alston with the question of whether or not you are going to contest the prior conviction.

MR. LEVY: Judge, apparently I will not.

THE COURT: Okay. And may I ask for you to state that for the record, Mr. Alston, will you be conceding the prior conviction so the jury [w]on't have to hear about it.

THE DEFENDANT: At this time I will be conceding the prior conviction.

THE COURT: Then the jury won't hear about it in voir dire. Are we ready for

the jurors?

As best the Court can now tell from memory, there were no further references to any bump-up issue until defendant raised his current questions after trial. (Minutes of August 6, 2015).

C

The Court believes, as it informed defendant before sentence, that his complaints are properly treated as a CPL Section 330.30 motion. Defendant's issues are fully defined and resolved by what happened on the record before sentence. People v. Carter, 63 NY2d 530, 536 (1984). But under Section 330.30 this Court has the authority to review issues that arose before sentencing only if they are issues of law, issues preserved for review by timely objection or by their "fundamental" nature. See People v. Patterson, 39 NY2d 288, 294-96 (1976).

In this case, just before sentencing, defendant for the first time raised a complaint that he never conceded his prior conviction and that the prosecutor had then failed to prove it at trial, rendering legally insufficient the proof of the felony charge. But that post-trial objection came too late to create an issue of law. Defendant should have made this allegation at trial, as it concerns the legal sufficiency of the People's case. See People v. Hawkins, 11 NY3d 484, 491-92 (2008).

In any event, the basic issue is readily resolved on the merits against defendant. On August 6, 2015, after defense counsel stated that defendant was conceding the prior conviction, the Court responded:

May I ask you to state that for the record, Mr. Alston, will you be

conceding the prior conviction so the jury [w]on't have to hear about it.

THE DEFENDANT: At this time I will be conceding the prior

conviction.

THE COURT: Then the jury won't hear about it in voir dire.

Are we ready for the jurors? (Minutes of August 6, 2015).

There thus is no doubt that defendant conceded his conviction.

The remaining questions are whether the concession was timely, and whether it was made after an adequate colloquy. The Court finds that the first of these arguments also is unpreserved for review as a question of law. As to timing, defendant suggested that any concession should be made after jury selection began. He was told he could wait to offer a concession until openings were to begin. But on the next morning he chose to put his concession on the record in a colloquy joined by defense counsel; neither man protested that jury selection had not begun, though it was obvious that defendant could have waited if he cared to. Further, the Court notes that the concession was made as the last item of business before the jurors entered the courtroom for jury selection. Defendant is entitled to no relief.

As to the content of the colloquy between defendant and the Court, again no question of law was preserved by objection. Neither defendant nor counsel ever suggested that more discussion was required to ensure defendant's understanding. That failure to object was critical, for the Court could readily have expanded the discussion as desired. Finally, the Court has no doubt, and finds, that with or without further discussion, this defendant was fully aware of what he was doing and chose to go forward with his concession. That is extremely obvious from defendant's consultations with veteran counsel, the demands defendant made, that which he did say, and even by his apparent reliance on statements the Court had made that he might reverse his decision if he later changed his mind.

***

Defendant's motion is denied. Of course his arguments can be presented again

should he appeal the judgment.

E N T E R: (JUDGE SIGNED)

_______________________MARK DWYER

Justice of the Supreme Court

Dated: December 1, 2015 Footnotes

Footnote 1:The Court now has only a truncated portion of the minutes of August 5 and August 6, 2015, the portions at which the bump-up was discussed. The final page numbers of the relevant passages are therefore not yet available.