| People v Clark |
| 2009 NY Slip Op 02859 [61 AD3d 1179] |
| April 16, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David G.Clark, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Columbia County (Czajka, J.),rendered January 23, 2008, which resentenced defendant following his conviction upon his pleaof guilty of the crimes of criminal possession of a weapon in the second degree, criminalpossession of a weapon in the third degree, criminal possession of stolen property in the fourthdegree (two counts) and resisting arrest (two counts).
Defendant pleaded guilty to criminal possession of a weapon in the second and third degrees,criminal possession of stolen property in the fourth degree (two counts) and resisting arrest (twocounts). Pursuant to a plea bargain, the People and defendant agreed to jointly recommend anaggregate prison term of eight years, although County Court would not be bound by suchrecommendation. During the plea allocution, defendant stated that he pulled out a loaded firearmand pointed it in the air in a menacing fashion in an attempt to scare the pursuing officers. Atsentencing, defendant disputed a statement contained in the presentence investigation report tothe effect that he pointed the weapon at the officers while they were pursuing him, stating that heonly "raised the handgun in a manner to use [it] unlawfully against another." Despite defendant'schallenge to this factual statement in the presentence report, County Court relied upon it andsentenced defendant to an aggregate prison term of 12 years. Defendant appealed, and wevacated the sentence and remitted the matter for resentencing due to [*2]the fact that County Court grounded its sentence upon conduct bydefendant which remained in dispute (39 AD3d 1091, 1092 [2007]).
Upon remittal, County Court ordered a hearing for the purpose of resolving this factual issue.Thereat, the court received sworn testimony from two police officers who averred that defendanthad pointed a firearm in their direction as they pursued him. Defendant testified that he did notpoint the gun at the officers, but instead raised it in the air so as to menace and intimidate them.At the conclusion of the hearing, County Court found that defendant had in fact pointed his gunat the officers while attempting to flee. Stating that it was taking into account its findings fromthe hearing, along with other factors, the court resentenced defendant to an aggregate prison termof 12 years with five years of postrelease supervision. Defendant appeals.
Defendant asserts that County Court lacked the authority to hold a hearing on the factualissue in dispute. We disagree, and reject the contention that County Court was bound to the factsas articulated by defendant during the plea colloquy. A court may impose sentence "only aftercareful consideration of all facts available at the time of sentencing" (People vFarrar, 52 NY2d 302, 305 [1981] [emphasis added]). In order to enable the sentencing courtto perform its function, a presentence investigation report is mandated where an individual isconvicted of a felony (see CPL 390.20 [1]). Such report must be considered by the courtprior to making a sentence determination (see People v Selikoff, 35 NY2d 227, 238[1974]) and may include, among other things, information "with respect to the circumstancesattending the commission of the offense" (CPL 390.30 [1]). Thus, the statement in thepresentence report that "defendant pointed . . . the handgun at police officers thatwere attempting to take him into custody," which was not necessarily inconsistent withdefendant's statement during the plea allocution, was a factor that County Court could take intoaccount in sentencing defendant (see e.g. People v Selikoff, 35 NY2d at 235, 239).
However, since defendant disputed the accuracy of the officers' allegations both in thepresentence report and at the time of his initial sentencing, County Court could not simply relyupon the officers' account of the events without further inquiry. Due process requires that thesentencing court "assure itself that the information upon which it bases the sentence is reliableand accurate" (People v Outley, 80 NY2d 702, 712 [1993]; see People vNaranjo, 89 NY2d 1047, 1048 [1997]; People v McGirt, 198 AD2d 101, 103[1993]), and that defendant be afforded the opportunity to refute those facts upon which the courtmay base its decision (see People v Hansen, 99 NY2d 339, 345 [2003]; People vPerry, 36 NY2d 114, 119-120 [1975]). Thus, where, as here, an issue is raised concerningthe accuracy of the information that the court may rely upon in imposing sentence, the defendantmust be afforded an opportunity to refute any such information through a hearing pursuant toCPL 400.10 or some other fair procedure within the court's discretion (see People vOutley, 80 NY2d at 713; People v Perry, 36 NY2d at 119-120; People vBanks, 161 AD2d 957, 958 [1990]; see also Preiser, Practice Commentaries,McKinney's Cons Laws of NY, Book 11A, CPL 400.10 [2005 ed]).
Here, County Court acted within its discretion by conducting a hearing in order to resolve adisputed factual issue (see e.g. People v Outley, 80 NY2d at 714; People v Rollins, 50 AD3d 1535,1536 [2008], lv denied 10 NY3d 939 [2008]). Further, the procedure employed here fullycomported with due process. The hearing spanned over a number of days and the officersinvolved in the incident provided extensive, descriptive testimony as to the manner in whichdefendant displayed the firearm. Moreover, defendant fully participated at the hearing, providingsworn testimony on two different occasions. Additionally, defendant's requests for [*3]new counsel were granted during the proceedings and he waspermitted to reopen the hearing in order to introduce further evidence. Notably, he was offeredan opportunity to withdraw his plea both immediately before and during the course of thehearing.
Similarly unpersuasive is defendant's argument that the People's participation in the hearingamounted to a breach of its promise to recommend an eight-year prison sentence. While it is wellsettled that a promise made during a plea negotiation with respect to a sentencingrecommendation must be honored (see People v Tindle, 61 NY2d 752, 754 [1984];People v Hoeltzel, 290 AD2d 587, 588 [2002]), the People did not overtly urge asentence more excessive than the eight years it promised to recommend. Nor do we agree withdefendant's assertion that the People's participation in the court-ordered hearing constituted an"implicit conveyance of the People's position as to [a harsher] punishment" (People vTindle, 61 NY2d at 754; see People v Jasiewicz, 192 AD2d 999, 999-1000 [1993];People v Muller, 174 AD2d 838, 838-839 [1991]). County Court, not the People,determined that a hearing was necessary to resolve the disputed factual issue contained in thepresentence report and affirmatively directed the People to present witnesses at the hearing.Certainly, the People cannot be faulted for abiding by the court's instructions in this regard, andtheir participation in the hearing does not constitute an implicit breach of the terms of the pleaagreement.
We also reject defendant's assertion that the sentence imposed by County Court after remittalwas motivated by vindictiveness. Although a presumption of judicial vindictiveness ariseswhere, after a successful appeal, a defendant is given a greater sentence than that which wasimposed upon his or her initial conviction (see People v Young, 94 NY2d 171, 176[1999]; People v Hilliard, 49 AD3d910, 914 [2008], lv denied 10 NY3d 959 [2008]), no such presumption arises herebecause a greater sentence was not imposed upon resentencing. A finding of vindictiveness mayalso be warranted where an original sentence is based on a factor which is later removed, and thesentence imposed after a successful appeal is the same as the initial sentence (see People vGonzalez, 262 AD2d 37, 39 [1999]). Here, however, the allegation that defendant pointed agun at the pursuing officers, a factor taken into account by County Court in imposing its originalsentence, was confirmed after the hearing on the matter.
Finally, there is no merit to defendant's contention that the hearing subjected him to doublejeopardy and the record fails to support his claims of judicial bias and impropriety.
Cardona, P.J., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.