| People v Collado |
| 2010 NY Slip Op 04437 [73 AD3d 608] |
| May 25, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Dionis Collado, Appellant. |
—[*1]
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered March 11,2009, resentencing defendant, as a second violent felony offender, to an aggregate term of eightyears to be followed by five years' postrelease supervision (PRS) for his 2005 conviction on twocounts of robbery in the second degree, reversed, on the law, and the matter remanded forresentencing, including further proceedings with respect to defendant's predicate felony status.
In 2000, defendant pleaded guilty to attempted robbery in the second degree and wassentenced to a determinate term of two years, which did not include a period of PRS. After hisrelease, the Department of Correctional Services imposed a period of PRS, and defendant thencommitted the robberies of which he now stands convicted. Based on the 2000 robberyconviction, defendant was adjudicated a second violent felony offender, and in 2005 he wassentenced to the concurrent terms of eight years now under review. A five-year period of PRSwas noted on the commitment sheet but was not orally pronounced. After our affirmance in 2008(47 AD3d 547 [2008]), the Court of Appeals, citing People v Sparber (10 NY3d 457 [2008]), modified to the extent ofremitting to Supreme Court for resentencing (11 NY3d 888 [2008]). Thereafter, defendantmoved to set aside the sentence in the 2000 case (CPL 440.20). The sentencing court granted thatmotion and resentenced defendant "nunc pro tunc" for the purpose of correcting the Sparbererror, imposing the minimum period of PRS and holding that correcting the sentence did notpreclude use of the 2000 crime as a predicate felony in connection with sentencing in the instantcase. The court then went on to impose the resentence now under review for the 2005 conviction,"whether or not [defendant] is a second felony offender."
Where a defendant receives an enhanced sentence based upon a predicate felony offense andthe sentence imposed for the predicate offense is vacated due to the failure to pronounce a termof PRS, the resentencing date controls whether the earlier crime qualifies as a predicate offenseunder Penal Law § 70.06 (1) (b) (ii) (see People v Acevedo, — AD3d—, 2010 NY Slip Op 04464 [2010] [decided simultaneously herewith]). Where, as here,resentencing on an earlier crime occurs after the present offense was committed, the earlier crimedoes "not qualify as a predicate conviction for purposes of sentencing" in multiple offenderstatus (People v Wright, 270 AD2d 213, 215 [2000], lv denied 95 NY2d 859[2000]).[*2]
The People argue that under People v Williams (14 NY3d 198[2010]), the sentencing court lacked jurisdiction to resentence defendant on the 2000 casebecause the modified sentence included a period of PRS. They contend that the resentencingproceedings are thereby rendered a nullity and that the original sentence date controls forpurposes of the predicate status of the conviction.
Williams bars the imposition of a period of postrelease supervision after a defendanthas been released from incarceration and after his direct appeal has been completed. Because anupward modification of a defendant's sentence at this juncture violates the constitutionalprotection against double jeopardy, it constitutes a mode of proceedings error that does notrequire the defendant to preserve it for appellate review. The same reasoning does not extend tothe People, who are not within the ambit of the protection afforded by the Double JeopardyClause. Nor have the People identified any procedure entitling them to contest the resentencingcourt's jurisdiction at this late date. Notably, they did not object to resentencing on the predicateoffense, but actively sought the imposition of a period of PRS. Nor did they appeal fromresentencing in the instant matter. Since this Court's review is restricted to issues "which mayhave adversely affected the appellant" (CPL 470.15 [1]), we cannot consider the People'salternative argument in favor of affirmance (see People v Karp, 76 NY2d 1006 [1990]).Moreover, defendant does not object to the modified sentence. Therefore, the issue of thesentencing court's jurisdiction is not before us.
Upon remand, the People may seek to demonstrate that a different prior felony convictionconstitutes a predicate felony. Concur—Tom, J.P., Renwick, Freedman and RomÁn,JJ.
Nardelli, J., dissents in a memorandum as follows: I dissent for the reasons I stated in mydissent in People v Acevedo (— AD3d —, 2010 NY Slip Op 04464 [2010]),decided herewith.
On June 29, 2000, defendant was convicted, on his plea of guilty, of attempted robbery in thesecond degree, a violent class D felony (Penal Law § 70.02 [1] [c]). The court neglected toimpose postrelease supervision, which was mandated by Penal Law § 70.45 as then ineffect. He was resentenced on March 11, 2009, after he moved pursuant to CPL 440.20 forresentencing, as a result of the Court of Appeals' decision in People v Sparber (10 NY3d 457 [2008]). At the resentencing, thecourt imposed a term of 1½ years' postrelease supervision along with the original term oftwo years' imprisonment, all to run nunc pro tunc to the time of original sentencing. Effectively,as the court noted, the sentences were completed as soon as they were imposed. The convictionitself was never vacated.
Subsequent to June 29, 2000, but prior to March 11, 2009, defendant and three accomplicescommitted a gunpoint robbery. On September 6, 2005, after a jury trial, he was convicted ofrobbery in the first degree and two counts of robbery in the second degree, inter alia, andsentenced as a second violent felony offender.
In this appeal defendant challenges the finding of the court which sentenced him for therobbery that he was a second violent felon, because he was resentenced on the June 29, 2000conviction after committing the 2005 robbery. The trial court, correctly in my belief, declined toalter his status as a second violent felon.[*3]
A second violent felony offender is defined as a person"convicted of a violent felony offense as defined in subdivision one of section 70.02 after havingpreviously been subjected to a predicate violent felony conviction" (Penal Law § 70.04 [1][a]). There is no doubt that defendant's two convictions qualify to make him a second violentfelony offender, first of all, and that he has been a convicted violent felon since June 29, 2000.There is also no dispute that he was sentenced for the 2000 felony before the commission of thesecond felony, and that sentence was imposed not more than 10 years before the commission ofthe second felony. Therefore, defendant has met all the relevant criteria for being sentenced as asecond violent felony offender (see Penal Law § 70.04 [1] [b]).
As I observed in my dissent in Acevedo, the resentencing for the 2000 attemptedrobbery was merely a technicality, and, as is now evident by the decision in People v Williams (14 NY3d 198[2010]), also a nullity. It has no impact on defendant's status as a second violent felon, since hewas on full notice in 2005 of his status as a felon, and charged with the knowledge thatcommission of subsequent crimes would result in enhanced sentencing. He is not entitled to awindfall. The purpose of the predicate felony scheme, as well as the requirement for postreleasesupervision for certain convictions, is to impose greater sanctions on particularly dangerousfelons. Defendant is among those whom the statute targets. Abrogating defendant's violent felonstatus accomplishes nothing in support of these legislative initiatives, and, instead, will fosterpublic cynicism about loopholes and technicalities.
The conviction should be affirmed.