| People v Smith |
| 2008 NY Slip Op 09104 [56 AD3d 695] |
| November 18, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v IvanSmith, Also Known as Frankie Goldsberry, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaumof counsel), for respondent.
Appeal by the defendant, as limited by his brief, from a sentence of the Supreme Court,Kings County (Collini, J.), imposed May 19, 2005, upon his conviction of criminal possession ofa controlled substance in the third degree, upon his plea of guilty, the sentence being anindeterminate term of imprisonment of 4½ to 9 years as a second felony offender.
Ordered that the sentence is reversed, on the law, the adjudication of the defendant as asecond felony offender is vacated, and the matter is remitted to Supreme Court, Kings County,for resentencing of the defendant in accordance herewith before a different Justice.
Following the defendant's plea of guilty to criminal possession of a controlled substance inthe third degree, the People served and filed a statement pursuant to CPL 400.21 alleging that thedefendant had been subjected to a predicate felony conviction in the United States District Courtfor the Eastern District of Pennsylvania. The defendant did not deny the conviction but claimedthat it had been unconstitutionally obtained because, when he pleaded guilty, he had been underthe influence of drugs and had said so to the federal judge in open court during the transcribedplea proceeding. The defendant stated that he requested a copy of the minutes of the proceedingto support his claim. The court adjourned the matter for eight days for a hearing.[*2]
On the adjourned date, the defendant reported that he hadnot yet received the minutes. The court, however, revealed that its chambers had contacted thedefendant's attorney in the prior federal case and had received a letter from that attorney statingthat, to the best of his recollection, the defendant had been incarcerated at the time of the federalplea of guilty and was not under the influence of any drugs or alcohol. Additionally, the courtdisclosed that its chambers had contacted the federal judge who had taken the defendant's plea.According to the court, the federal judge said that, to his recollection, when the defendantpleaded guilty, he had not been under the influence of alcohol, drugs, or anything else. The courtannounced that it found that "the Federal Court Judge was credible and the Federal Defender wascredible," but that the defendant was "incredible." Accordingly, based on what it termed"overwhelming evidence," the court rejected the defendant's claim, adjudicated him a secondfelony offender, and imposed sentence. On appeal, the defendant contends that he was notproperly adjudicated a second felony offender. We agree.
CPL 400.21 prescribes the procedure for determining whether a defendant is a second felonyoffender. Where a defendant controverts an allegation necessary to support a finding that he orshe has been subjected to a predicate felony conviction, the court must hold a hearing at whichthe People bear the burden of proving beyond a reasonable doubt "by evidence admissible underthe rules applicable to a trial of the issue of guilt" that the "defendant has been subjected to sucha predicate felony conviction" (CPL 400.21 [7] [a]). Because the statute provides that "[a]previous conviction . . . which was obtained in violation of the rights of thedefendant under the . . . constitution of the United States must not be counted indetermining whether the defendant has been subjected to . . . a predicate felonyconviction" (CPL 400.21 [7] [b]), a defendant may oppose a second felony offender adjudicationby asserting that the prior conviction was unconstitutionally obtained. Where such an assertion ismade, however, it is the defendant's burden to allege and prove the facts underlying the claimwith substantial evidence sufficient to overcome the presumptions of the validity and regularityof the prior conviction (see People v Harris, 61 NY2d 9, 15-16 [1983]; People vPierre, 45 AD3d 1056 [2007]).
Here, the defendant proposed to carry his burden by presenting the transcribed minutes of hisfederal plea proceeding which, he claimed, would show that his conviction had beenunconstitutionally obtained because his plea was accepted despite his on-the-record statementthat he was under the influence of drugs. The court did not reject his claim on the ground thatsuch a plea would nevertheless be constitutional or that the defendant had unreasonably delayedin producing the minutes. Instead, the court rejected the defendant's claim based on the reportedresults of its own investigation and the information privately provided to it by a federal judge anda defense attorney. This was improper. Moreover, in addition to the fact that the defendant hadno opportunity to confront the federal judge or his prior attorney, to the extent that theirstatements were considered by the court to prove the truth of the assertion that the defendant wasnot under the influence of drugs at the time of his federal plea, the statements were hearsay andnot, as required by the applicable statute, "evidence admissible under the rules applicable to atrial of the issue of guilt" (CPL 400.21 [7] [a]).
Accordingly, the sentence must be reversed and the matter remitted to the Supreme Court,Kings County, for a new predicate felony hearing and resentence before a different Justice.Fisher, J.P., Miller, Dillon and Eng, JJ., concur.