| People v Butler |
| 2011 NY Slip Op 07122 [88 AD3d 470] |
| October 11, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v DenardButler, Respondent. |
—[*1] Darren S. Fields, Brooklyn, for respondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered June 16, 2009,which to the extent appealed from, sentenced defendant as a second violent felony offender butnot as a persistent violent felony offender, unanimously affirmed.
The question before this Court is whether a defendant with two prior violent felonyconvictions, who was resentenced for those crimes at the behest of the New York State Divisionof Parole (DOP) under Penal Law § 70.45 and after the commission of the crime at issue,should have been adjudicated a persistent violent felony offender. We hold that he should nothave been.
In 2009, defendant, together with codefendants, was tried and convicted of a 2006 robbery ofseveral individuals at a hot dog stand. He was adjudicated a second violent felony offender andwas sentenced to a 12-year prison term. Before defendant's 2009 felony conviction, he was twiceconvicted of violent felonies in Kings County. In November 1999, after defendant pleaded guiltyto criminal possession of a weapon in the third degree (former Penal Law § 265.02 [4]), aclass D violent felony, the Kings County Supreme Court sentenced him to a four-month prisonterm to run concurrently with five years' probation. In March 2001, after defendant had beenreleased from prison but was still on probation, a Kings County jury convicted him of criminalpossession of a weapon in the third degree. In April 2001 the Kings County sentencing court(Michael J. Brennan, J.) adjudicated defendant a second violent felony offender and sentencedhim to both a determinate six-year prison term on the second weapon possession conviction, anda concurrent determinate six-year term for defendant's violation of the probation terms for the1999 conviction. The court, however, neglected to pronounce the mandatory term of postreleasesupervision (PRS) for the 2001 conviction as required under Penal Law § 70.45.
The People, relying on People vAcevedo (17 NY3d 297 [2011]), appeal the trial court's adjudication of defendant as asecond violent felony offender rather than as a persistent violent felony offender.
Defendant argues that he is not a predicate or persistent violent felon. In particular defendantcontends that the April 2001 sentence was a nullity because it did not include PRS, and that"[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for aresentencing hearing so that the trial judge can make the required pronouncement" (People [*2]v Sparber, 10 NY3d 457, 471 [2008]). He opines,consistent with the trial court's finding, that the September 2008 order declining to resentencehim constituted a "new sentence," and that the date of the order should be deemed the sentencingdate for determining his status as a predicate felon.
In August 2005, defendant was released from prison, and in October 2006 he committed andwas arrested for the robbery at issue on this appeal. In July 2008, while defendant was awaitingtrial on the within matter, the DOP notified the Kings County sentencing court that defendant'scommitment order for the 2001 conviction did not indicate that the court had imposed themandatory PRS term, and that his sentence should thus be reviewed pursuant to Correction Law§ 601-d.
In September 2008 the court issued a "[PRS] Sentencing Order," holding that "in the interestsof justice and equity," it declined to resentence defendant and that "no period of [PRS]constitutes part of [defendant's] sentence."[FN*]In March 2009 defendant was found guilty by a jury of the 2006 robbery. The People asked thecourt to adjudicate defendant a persistent violent felony offender, based on the 1999 and 2001Kings County convictions. Defendant opposed the application, arguing that he should besentenced as a first-time violent felony offender because the original sentences for the KingsCounty convictions were vacated as unlawful and he was resentenced on those convictions afterhe committed the 2006 robberies.
The trial court decided to sentence defendant as a second violent felony offender (Peoplev Butler, 24 Misc 3d 1225[A], 2009 NY Slip Op 51619[U], *5 [2009]). The court, relying onPeople v Sparber, held that an illegal sentence must be vacated and, that, once vacated,the conviction cannot be a predicate to enhance the defendant's sentence on a subsequentconviction, since it does not satisfy Penal Law § 70.04 (1) (b) (ii) (Butler, 2009 NYSlip Op 51619[U], *3). However, the trial court refused to consider defendant's first sentence ashaving been vacated because he failed to raise any challenge to his predicate status at the time ofhis second sentencing. The court deemed that challenge to have been waived pursuant to CPL400.15 (8) (2009 NY Slip Op 51619[U], *4-5, citing CPL 400.15 [7] [b]; 400.16 [1]).
A defendant may be adjudicated a persistent violent felony offender only if he has previouslybeen convicted of two or more predicate violent felonies (Penal Law § 70.08 [1] [a]). Thepersistent violent felony offender statute incorporates by reference a provision that the"[s]entence upon such prior conviction[s] must have been imposed before commission of thepresent felony" (Penal Law § 70.04 [1] [b] [ii]).
In People v Acevedo (17 NY3d297 [2011], supra), the Court of Appeals held that defendants could not avoidadjudication as predicate felons by seeking, after sentencing for the present conviction,resentencing of a prior conviction where the court failed to impose the required PRS. Both of thedefendants in Acevedo received sentences for their first violent felony convictions thatdid not include the required PRS, and sought to have those sentences vacated after they had beenconvicted and sentenced for subsequent crimes (17 NY3d at 299-302). The Court of Appealsrejected the defendants' argument that their prior convictions could not be considered indetermining predicate felon status, stating: "The decisive feature of these cases is, [*3]we believe, that the sentencing errors defendants sought to correctby resentencing were errors in their favor: PRS was illegally omitted from their originalsentences. The only practical benefit defendants could possibly gain from the resentencings wasto move their sentences to a later date, thus eliminating their prior crimes as predicates in theirlater cases. We would hold that this tactic was ineffective: in circumstances like these, theoriginal sentencing date should be the one to be considered for predicate felony purposes"(Acevedo, 17 NY3d at 302).
The Court of Appeals specifically narrowed its decision to instances in which the defendantrequested PRS resentencing as a tactical measure to avoid predicate status. The majority opinionin Acevedo implicitly rejected the broader holding of the concurring opinion, whichwould have found that predicate status cannot not be affected by any PRS resentencing.
In this case, defendant did nothing to alter his status; rather, it was the DOP that sought andobtained the resentencing in 2008, two years after the commission of the crime. Thus, the trialcourt properly adjudicated defendant a second violent felony offender, rather than a persistentviolent felony offender (2009 NY Slip Op 51619[U], *5). Indeed, we find that where, in thenormal course, the government seeks resentencing of a prior conviction and the sentence isvacated for failure to pronounce a term of PRS the resentencing date should be considered indetermining whether the prior conviction meets the sequentiality requirement of the predicatefelony offender statutes. While, in this case, the court in Kings County, with the People's consent,chose not to add a term of PRS, its declaration that it declined to resentence defendant does notmean that a new sentence was not imposed. Under Penal Law § 70.85, a court is requiredto impose a new sentence even if the District Attorney consents to reimposition without addingPRS.
Lastly, we find that the trial court properly adjudicated defendant a second violent felonyoffender, notwithstanding the implicit resentencing on his first felony conviction in 2008, sincethe second violent felony offender adjudication based on that conviction was binding pursuant toCPL 400.15 (8). Concur—Tom, J.P., Acosta, Renwick and Freedman, JJ. [Prior CaseHistory: 24 Misc 3d 1225(A), 2009 NY Slip Op 51619(U) (2009).]
Footnote *: Defendant thereafter submitted amemorandum of law arguing that the court was required to formally resentence him to hisoriginal prison term without PRS, but the court took no further action.