| People v Barnes |
| 2009 NY Slip Op 01991 [60 AD3d 861] |
| March 17, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joshua Barnes, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant, by permission, as limited by his brief, from so much of an order ofthe Supreme Court, Kings County (Collini, J.), dated September 5, 2006, as, upon reargument,adhered to its prior determination in an order dated August 7, 2006, denying, without a hearing,his motion pursuant to CPL 440.20 to set aside a sentence imposed by the same court (Beldock,J.) on April 6, 1992, upon his conviction of murder in the second degree, upon a jury verdict.
Ordered that the order dated September 5, 2006 is reversed insofar as appealed from, on thelaw, upon reargument, the order dated August 7, 2006 is vacated, the motion pursuant to CPL440.20 to set aside the sentence is granted, the sentence is vacated, and the matter is remitted tothe Supreme Court, Kings County, for resentencing in accordance herewith.
In October 1989, after a jury trial, the defendant was found guilty of murder in the seconddegree, in connection with the fatal shooting of a man in the apartment building where thedefendant and his family resided. The trial court granted the defendant's motion for a trial orderof dismissal and set aside the verdict, concluding that it was not supported by legally sufficientevidence. The People appealed. During the pendency of the People's appeal, the defendant wasconvicted in a Pennsylvania court of delivery of a controlled substance and was sentenced onthat conviction to a term of incarceration in Pennsylvania. He was paroled in November 1991and one month later, this Court reversed the order granting the [*2]defendant's motion for a trial order of dismissal, reinstated theverdict, and remitted the matter for sentencing (see People v Barnes, 178 AD2d 482[1991]).
According to the presentence report, the defendant had no felony convictions prior to theshooting incident. At sentencing, the court noted that, according to its recollection, the shootingwas drug-related, and observed that, "subsequent to the time he left here," the defendant hadbeen convicted of delivery of a controlled substance in Pennsylvania. The court went on to statethat: "also, of course, obviously he was convicted of [sic] a drug case, sale of drugs priorto this incident where he lived where he had children and married the mother. I believe hisfamily lived in the house in question as did his wife's family." The court then sentenced thedefendant to an indeterminate term of imprisonment of 20 years to life, which was midwaybetween the minimum authorized sentence of 15 years to life and the maximum authorizedsentence of 25 years to life (see Penal Law § 70.00 [2] [a]; [3] [a] [i]).
On the defendant's direct appeal to this Court, he argued, inter alia, that the sentence wasexcessive since there was no credible evidence that the shooting was drug-related. This Courtaffirmed the judgment of conviction (see People v Barnes, 200 AD2d 751 [1994]).
In May 2006 the defendant moved to set aside his sentence pursuant to CPL 440.20 on theground that the sentencing court had based its determination, in part, upon its mistaken beliefthat the defendant had been convicted of a prior drug felony in addition to the Pennsylvaniaoffense. The Supreme Court denied the motion, concluding that the defendant's claim wasprocedurally barred under CPL 440.20 (2) because this Court had previously determined thesame issue on his direct appeal from the judgment of conviction. The court further concludedthat, in any event, the claim was without merit. The court granted the defendant's subsequentmotion for leave to reargue his motion to set aside the sentence, but adhered to its originaldetermination.
As the People correctly concede, the defendant is not procedurally barred from raising hispresent claim, since the issue presented in the instant matter is distinct from the issue raised bythe defendant on his appeal from the judgment of conviction.
To comply with due process, a sentencing court "must assure itself that the information uponwhich it bases the sentence is reliable and accurate" (People v Outley, 80 NY2d 702, 712[1993]; see People v Naranjo, 89 NY2d 1047 [1997]). Here, after mentioning thedefendant's Pennsylvania drug delivery conviction and noting that it occurred "subsequent to thetime he left here," the sentencing court stated that the defendant was "also" convicted of sellingdrugs "prior to this incident," in a place where he and his family, as well as his wife's family,resided. The record establishes that the only place that satisfies this description is the apartmentbuilding in Brooklyn where the shooting occurred. Thus, it appears that the court was referringto a drug sale conviction that was separate from the Pennsylvania conviction and took place priorto the shooting incident. There was no such conviction.
To establish a due process violation in this case, the defendant need not demonstrate that thecourt enhanced his sentence based solely on the purported prior drug sale conviction. Rather, it issufficient that the court took that nonexistent conviction into account in making its determination(see United States v McDavid, 41 F3d 841, 844 [1994]; King v Hoke, 825 F2d720, 724 [1987]; United States v Malcolm, 432 F2d 809, 816 [1970]). The Peoplecontend that the sentencing court was not "motivated" by the nonexistent prior [*3]conviction in imposing sentence. We disagree (see Townsend vBurke, 334 US 736, 740 [1948] ["(w)e are not at liberty to assume that items given suchemphasis by the sentencing court, did not influence the sentence which the prisoner is nowserving"]; United States v Stein, 544 F2d 96, 102 [1976] ["the fact that the trial judgeexpressly referred to these matters upon imposition of sentence indicates that she probablyconsidered them to be material; otherwise there would not have been any point in her mentioningthem"]).
Since the factors relied upon by the sentencing court included " 'materially untrue'assumptions or 'misinformation' " (People v Naranjo, 89 NY2d at 1049, quotingTownsend v Burke, 334 US at 741), the sentence was illegally imposed. Accordingly,upon reargument, the Supreme Court should have granted the defendant's motion to set aside thesentence. Upon remittal, the Supreme Court must resentence the defendant, taking intoconsideration only the actual judgments of conviction that were rendered against the defendantprior to his initial sentencing in this matter. Prudenti, P.J., Ritter, Santucci and Covello, JJ.,concur.