| People v Naughton |
| 2012 NY Slip Op 02118 [93 AD3d 809] |
| March 20, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v SeanNaughton, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), forrespondent.
Appeal by the defendant, as limited by his brief, from a sentence of the County Court,Suffolk County (Braslow, J.), imposed October 7, 2008, upon his conviction of attemptedburglary in the second degree (two counts), upon his plea of guilty.
Ordered that the sentence is affirmed.
In 2001 the defendant was convicted, upon his plea of guilty, of two counts of burglary in thesecond degree, and sentenced as a second felony offender to concurrent determinate terms ofimprisonment of five years on each count. The court failed, however, to impose the mandatoryperiod of postrelease supervision (hereinafter PRS). In 2008 the defendant was convicted of twocounts of attempted burglary in the second degree, upon his plea of guilty, and sentenced as asecond felony offender to concurrent determinate terms of imprisonment of six years and periodsof PRS of five years. In February 2009 the defendant was resentenced on the 2001 burglaryconviction. Pursuant to Penal Law § 70.85, on consent of the District Attorney, theoriginally imposed determinate sentences were re-imposed without any period of PRS. There isno indication in the record that the resentencing proceeding was conducted upon the initiative ofthe defendant, as opposed to that of the Department of Corrections and Community Supervision(hereinafter DOCCS), pursuant to Correction Law § 601-d.
The defendant now contends that his sentence, as a second felony offender, on the 2008attempted burglary conviction was illegal. He asserts that the 2001 burglary conviction, whichhad served as the predicate felony offense for his adjudication in 2008 as a second felonyoffender, no longer qualified as a predicate felony offense because the resentence on the 2001burglary conviction was imposed after imposition of the sentence on the 2008 attempted burglaryconviction. We disagree.
We decline to follow the decision of the Appellate Division, First Department, in People v Butler (88 AD3d 470,473 [2011]), in which that Court held that "where, in the normal course, the government seeksresentencing of a prior conviction and the sentence is vacated for failure to pronounce a term ofPRS the resentencing date should be considered in determining whether the prior convictionmeets the sequentiality requirement of the predicate felony offender statutes." The [*2]holding in Butler was based principally upon an opinionauthored by Chief Judge Lippman in People v Acevedo (17 NY3d 297 [2011]), in which he and twoother judges of the Court of Appeals concluded that, where a defendant moved for resentencingunder People v Sparber (10 NY3d457 [2008]) to correct an error—the omission of a period of PRS—which wasin his favor, the Court would not permit this "tactic" to change the status of the crime for whichhe was resentenced as a predicate felony offense for a later conviction. Contrary to the conclusionreached in Butler, Chief Judge Lippman's opinion in Acevedo did not "implicitlyreject[ ] the broader holding of [Judge Pigott's] concurring opinion, which would have found thatpredicate status cannot be affected by any PRS resentencing," whether it was initiated by thedefendant or the government (People v Butler, 88 AD3d at 473). Rather, Chief JudgeLippman's opinion merely declined to decide the issue of whether the date of a Sparberresentence brought about at the initiative of the DOCCS or the People is the operative sentencingdate for purposes of applying the predicate felony offender statutes (see People vAcevedo, 17 NY3d at 303). Moreover, since Chief Judge Lippman's opinion garnered threevotes, neither the reasoning stated therein, as opposed to the result reached, nor the reasoningstated in the opinion authored by Judge Pigott, which also garnered three votes, constitutesbinding precedent (see generally Monsanto Co. v Spray-Rite Service Corp., 465 US 752[1984]). Accordingly, the issue of whether the date of a Sparber resentencing initiated bythe DOCCS or the People is the operative sentencing date for applying the predicate felonyoffender statutes is a matter of first impression in this Court.
In People v Lingle (16 NY3d621, 634 [2011]), the Court of Appeals clarified that, although the Sparber decision,at one point, made reference to a vacatur of the original sentence, a resentencing proceedingconducted for the purpose of correcting a "Sparber error" is different from resentencingproceedings required to correct other errors. Indeed, after the decision in Sparber, theLegislature created a statute dedicated specifically to the correction of Sparber errors(see Correction Law § 601-d). The Court of Appeals observed that "aSparber error 'amounts only to a procedural error, akin to a misstatement or clericalerror, which the sentencing court [can] easily remedy' " (People v Lingle, 16 NY3d at634, quoting People v Sparber, 10 NY3d at 472 [emphasis added]). The LingleCourt thus concluded that, when conducting a Sparber resentencing, the resentencingcourt does not have discretion to revisit the propriety of a defendant's sentence as a whole(see People v Lingle, 16 NY3d at 635). Accordingly, a Sparber resentencingmerely corrects the "procedural error" committed with respect to the failure to pronounce PRS,and the incarceratory component of the defendant's sentence is not nullified by reason of such aresentencing. We are thus persuaded that the issue left open in Chief Judge Lippman's opinion inAcevedo should be resolved in accordance with the analysis set forth in Judge Pigott'sopinion in Acevedo (see Peoplev Boyer, 91 AD3d 1183, 1184-1185 [2012]). Consequently, we conclude that, in thespecial circumstance where a defendant is resentenced merely to correct a Sparber error,the operative sentencing date for the purposes of the predicate felony statutes remains the date ofthe original sentencing.
This holding is consistent with the purpose of the predicate felony offender statutes, which is"to deter recidivism by enhancing the punishments of those who, having been convicted offelonies, violate the norms of civil society and commit felonies again" (People v Walker,81 NY2d 661, 665 [1993]; see Penal Law §§ 70.02, 70.04). There is nodispute here that the defendant was convicted and sentenced, prior to his 2008 attempted burglaryconviction, on a felony offense, and his resentencing on that offense due to a Sparbererror did not call into question the propriety of the conviction or the incarceratory component ofhis sentence (cf. People v Bell, 73 NY2d 153, 165 [1989]). Therefore, viewing theoperative date for the determination of the defendant's predicate felon status as the originalsentence date furthers the purpose of the predicate felony offender statute.
Accordingly, we affirm the sentence imposed upon the defendant's conviction of two countsof attempted burglary in the second degree. Skelos, J.P., Balkin, Roman and Sgroi, JJ., concur.