People v Marshall

[*1] People v Marshall 2021 NY Slip Op 50389(U) Decided on January 5, 2021 County Court, Tompkins County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 5, 2021
County Court, Tompkins County

The People of the State of New York, Plaintiff,

against

James D. Marshall, Defendant.



2015-0146



Attorney Madeline Weiss, for Defendant James Marshall

Tompkins County Deputy District Attorney Andrew Bonavia
Scott A. Miller, J.

Defendant James Marshall was indicted based upon an altercation he had with another male at a mutual girlfriend's apartment in June of 2015, during which Defendant allegedly shot the victim in the leg with a loaded handgun. On December 11, 2015, at the conclusion of a jury trial, Defendant was convicted of Assault in the First Degree [PL §120.10(1); count one], Criminal Possession of a Weapon in the Second Degree [PL §265.03(1)(b); count two], Criminal Possession of a Weapon in the Second Degree [PL §265.03(3); count three], and Criminal Possession of a Weapon in the Third Degree [PL §265.02(1); count four]. On March 10, 2016, Defendant was sentenced as a predicate violent felony offender to 10 years determinate on count one, 13 years determinate on count two, 13 years determinate on count three, and two to four years indeterminate on count four, all sentences to run concurrently. Five years post-release supervision was imposed with all determinate sentences.[FN1]

Defendant perfected his direct appeal to the Third Department and on June 7, 2018, Defendant's conviction for Assault in the First Degree was reduced to Attempted Assault in the First Degree. People v Marshall, 162 AD3d 1110 (3rd Dept. 2018). The Third Department, in its remarkable 3-2 decision, concluded that although the victim was shot in the leg with a bullet, was in "miraculous pain," underwent two pin placement surgeries for a shattered tibia, and was in a cast for over a month, "the weight of the evidence d[id] not support a finding that the victim sustained a serious physical injury." Id., at 1113. Defendant's other issues on appeal were denied, and the convictions and sentences under counts two, three, and four remained undisturbed. Consequently, the Appellate Division remanded the matter for resentencing on the reduced charge under count one, Attempted Assault in the First Degree. On August 6, 2018, Defendant was resentenced to seven years determinate with five years of post-release supervision on the [*2]reduced count of Attempted Assault in the First Degree.

Defendant now moves pursuant to CPL §440.20(1) to set aside the criminal possession of a weapon sentences, "upon the ground that [the sentences were] unauthorized, illegally imposed or otherwise invalid as a matter of law." Defendant argues that the sentences imposed under counts two, three, and four were "influenced by facts or factors that are later revealed to be untrue *** render[ing] the entire sentencing procedure invalid as a violation of due process." King v. Hoke, 825 F.2d 720, 724 (2nd Cir. 1987), quoting U.S. v Malcolm, 432 F.2d 809, 816 (2nd Cir. 1970). U.S.C.A. Const. Amend. 14. Defendant argues that this original sentencing court considered the conviction for Assault in the First Degree as a factor when it imposed the longer 13-year determinate sentences under the counts of Criminal Possession of a Weapon in the Second Degree. In short, the Defendant argues that the sentencing court relied upon material misinformation, i.e., that the victim sustained a "serious physical injury," when imposing the 13-year sentences, and consequently Defendant's due process rights were violated, necessitating vacatur of all sentences which were influenced by the material error.

The People oppose, arguing that the Defendant failed to make this claim on direct appeal and furthermore that the Third Department upheld the convictions and sentences for the weapons counts. Furthermore, the People assert that this court's 13-year sentences on the counts of Criminal Possession of a Weapon in the Second Degree "had nothing to do with the victim's injuries and everything to do with Defendant's possession of the illegal firearm." People's aff. at 4. The People further assert that this court, when imposing the 13-year sentences, neither relied upon the serious physical injury element under count one, nor was influenced by it. Citing, People v. Andujar and People v Baez, the People argue that the sentences cannot be vacated because the Defendant failed to demonstrate that the sentencing court "relied" upon "materially untrue facts." Andujar, 290 AD2d 654, 657 (3rd Dept. 2002); Baez, 175 AD3d 982, 982 (4th Dept. 2019). The People note that at sentencing this court stated, "I frankly find counts two and three, Criminal Possession of a Weapon in the Second Degree, those counts, under the specific facts of this case, are the more serious offenses." T. at 26. The People assert that "the less serious offense, the assault conviction clearly did not influence this court's sentence on the weapons possession convictions." People's aff. at 11.

The People are incorrect. This trial court, at Defendant's original sentencing, when it referred to the "specific facts of this case," was influenced by the fact that Defendant had caused a "serious physical injury" to the victim. This court vividly recalls the analysis it undertook when determining the appropriate sentence for Defendant. This was no trivial sentence and this court wrestled with the just sentence under the specific facts of the case. This sentencing court, in fact, focused on count one, the Assault in the First Degree conviction. Count one was the focal point, or baseline, which this court utilized in order to determine the appropriate sentences under counts two and three (Criminal Possession of a Weapon in the Second Degree). The Assault in the First Degree conviction was not merely count one of the indictment, but said count and its encompassing "serious physical injury" element was the starting point from which all of this court's sentencing determinations flowed. Once this court imposed the 10-year sentence under count one, the court explained that it deemed counts two and three as "more serious" under the "specific facts" of this case. This sentencing court did in fact take into account and rely upon the fact that the victim had suffered a "serious physical injury" when deciding that the Defendant should receive an additional three years, or a sentence of 13 years, under both counts two and three. Although this trial judge agrees with the reasoning of the two dissenting justices in [*3]Defendant's appeal, this court is still bound by the majority's decision. As a matter of law, the victim did not suffer a "serious physical injury," and consequently when this court sentenced Defendant to 13 years under counts two and three, it did so in part based upon and influenced by material misinformation. The erroneous as a matter of law "serious physical injury" element was inextricably intertwined with the sentences this court imposed under the weapons possession counts. It would violate this court's oath and judicial conscience to assert otherwise. The victim's "serious physical injury" was a material and false fact which this court took into account when enhancing Defendant's sentences under counts two and three with 13-year sentences.

It is true that a motion to vacate may be denied where it is based on facts which "could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review * * * [but] the defendant unjustifiably failed to adduce such matter prior to sentence" CPL §440.10(3)(a). However, and contrary to the People's argument, Defendant could not have raised this issue on direct appeal, and his only avenue is through the procedural mechanism of the CPL Article 440 motion, the purpose of which is to inform a trial court of "facts not reflected in the record and unknown at the time of the judgment." People v. La Mountain, 288 AD2d 503, 540 (3rd Dept. 2001). At the original sentencing in March of 2016, Defendant simply could not have requested that this court disregard the fact that the victim had suffered a "serious physical injury." The Third Department reduced the Assault in the First Degree conviction to Attempted Assault in the First Degree based upon a finding that the "weight of the evidence d[id] not support a finding that the victim sustained a serious physical injury." Marshall, supra., at 1113. Defendant could not have raised this issue prior to sentencing because trial judges have no power to set aside a conviction based upon the "weight of the evidence," as that jurisdiction is reserved solely for the Appellate Division. People v. Carter, 63 NY2d 530, 536 (1984).

In order to establish a due process sentencing violation, it is sufficient for a defendant to show that the court "took [ ] into account [material misinformation] in making its determination (see U.S. v McDavid, 41 F3d 841, 844 [1994]; King v Hoke, supra., at 724; U.S. v Malcolm, supra., at 816)." People v. Barnes, 60 AD3d 861, 863—64 (2nd Dept. 2009) (defendant entitled to resentencing where sentencing court had referred to a nonexistent prior drug conviction). In People v. Samuels, 80 AD3d 1077 (3rd Dept. 2011), the Appellate Division held that the defendant was entitled to resentencing because the county court had overstated the severity of the defendant's prison disciplinary record. The Third Department explained that "material false assumptions as to any facts relevant to sentencing . . . renders the entire sentencing procedure invalid as a violation of due process." Id., 80 AD3d 1077, 1078 (3rd Dept. 2011), quoting, U. S. v Malcolm, supra., at 816. Here, at the time of the original sentencing, when sentencing the Defendant under counts two and three to 13 years determinate, this trial court was in fact influenced by the material misinformation that the victim had sustained a "serious physical injury." The Defendant need not demonstrate that his original sentence was probably influenced by incorrect information. It is sufficient, as the Defendant has demonstrated here, that the sentencing court merely took into account, relied upon, considered, or was influenced by the false information. In order to comply with due process, a sentencing court "must assure itself that the information upon which it bases the sentence is reliable and accurate." People v. Outley, 80 NY2d 702, 712 (1993). Here, this court was in fact "influenced by a fact[ ]" that has been "revealed to be untrue *** render[ing] the entire sentencing procedure invalid as a violation of due process." King v. Hoke, supra., at 724, quoting U.S. v Malcolm, 432 F.2d 809, 816 (2nd Cir. [*4]1970). Defendant has established that his due process rights under both the United States and New York constitutions were violated at sentencing. U.S.C.A. Const. Amend. 14. NY State Const., Art.1, §6. Defendant's motion pursuant to CPL § 440.20 to vacate the sentences under counts two, three and four [FN2] is GRANTED. It is hereby,

ORDERED, pursuant to CPL § 440.20, Defendant's sentence under count two, Criminal Possession of a Weapon in the Second Degree [PL §265.03(1)(b)] is hereby VACATED; and it is further,

ORDERED, pursuant to CPL § 440.20, Defendant's sentence under count three, Criminal Possession of a Weapon in the Second Degree [PL §265.03(3)] is hereby VACATED; and it is further,

ORDERED, pursuant to CPL § 440.20, Defendant's sentence under count four, Criminal Possession of a Weapon in the Third Degree [PL §265.02(1)] is hereby VACATED; and it is further,

ORDERED, the Tompkins County Probation Department shall prepare an updated pre-sentence investigation which shall include reference to any programming Defendant has engaged in while in the Department of Corrections custody as well as any disciplinary record; and it is further,

ORDERED, resentencing on counts two, three and four shall occur after receipt of the updated pre-sentence investigation.

The seven-year determinate sentence under count one, Attempted Assault in the First Degree, remains undisturbed and consequently Defendant is NOT required to be transported to Tompkins County until the date of resentencing.[FN3]

This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.

Dated: January 5, 2021

Ithaca, NY

s/____________________________________

Hon Scott A. Miller Tompkins County Court Footnotes

Footnote 1:Defendant's county court jury trial, sentencing, re-sentencing and CPL Article 440 motions have all been before this same county court judge.

Footnote 2:Defendant originally received a sentence of two to four years indeterminate under count four, Criminal Possession of a Weapon in the Third Degree, and although such sentence is less than the seven years imposed on Defendant's reduced Attempted Assault in the First Degree conviction at resentencing in August 2018, the court must also vacate this sentence since the now erroneous "serious physical injury" factor was also taken into account on count four as well.

Footnote 3:On April 13, 2021 Defendant was resentenced to nine years determinate with five-years post-release supervision under count two, nine years determinate with five-years post-release supervision under count three, and two to four years indeterminate under count four.