| People v Smart |
| 2012 NY Slip Op 07782 [100 AD3d 1473] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Floyd L.Smart, Appellant. |
—[*1] Floyd L. Smart, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (William F. Kocher, A.J.), renderedMay 13, 2009. The judgment convicted defendant, upon a jury verdict, of burglary in the seconddegree.
It is hereby ordered that the judgment so appealed from is modified as a matter of discretionin the interest of justice by reducing the sentence imposed to an indeterminate term ofincarceration of 15 years to life and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofburglary in the second degree (Penal Law § 140.25 [2]). He was sentenced as a persistentfelony offender to an indeterminate term of incarceration of 20 years to life. On appeal, defendantcontends that the court reporter's readback of certain testimony in response to a jury note violatedthe procedures set forth in CPL 310.30 and constituted an improper delegation of judicialauthority (see generally People v O'Rama, 78 NY2d 270, 276-277 [1991]; People vAhmed, 66 NY2d 307, 310 [1985], rearg denied 67 NY2d 647 [1986]). Defendantfurther contends that, by sending a note to the jury during deliberations, County Court violateddefendant's fundamental right to be present at a material stage of trial (see generally People vMehmedi, 69 NY2d 759, 760 [1987], rearg denied 69 NY2d 985 [1987]). We note atthe outset that, contrary to defendant's contention, the court did not thereby commit mode ofproceedings errors such that preservation is not required. In responding to the jury note anddirecting the readback of testimony with respect to the note, the record establishes that the courtfulfilled its "core responsibilities under CPL 310.30" (People v Tabb, 13 NY3d 852, 853 [2009]; see People v Geroyianis, 96 AD3d1641, 1643 [2012], lv denied 19 NY3d 996 [2012]; People v Bonner, 79 AD3d 1790,1790-1791 [2010], lv denied 17 NY3d 792 [2011]). Prior to responding to the jury note,the court read it into the record, solicited input from defense counsel, and described its proposedresponse. Then, when the jury clarified its request in the note, the court reporter read the relevantportion of the testimony into the record, under the supervision of the court and in the presence ofdefendant and the prosecutor. Defendant registered no objections. We thus conclude thatdefendant was required to preserve his contentions for our review, but he failed to do so (see People v Ramirez, 15 NY3d824, 825-826 [2010]; People v Starling, 85 NY2d 509, 516 [1995]; [*2]Peoplev Rivera, 83 AD3d 1370, 1370-1371 [2011], lv denied 17 NY3d 904 [2011]; cf. People v Kisoon, 8 NY3d 129,134-135 [2007]). In any event, defendant's contentions are without merit (see People vHernandez, 94 NY2d 552, 555-556 [2000]; People v Harris, 76 NY2d 810, 812[1990]; People v Gabot, 176 AD2d 894, 894-895 [1991], lv denied 79 NY2d 947[1992]).
We reject defendant's further contention that the court erred in admitting the grand jurytestimony of a witness after conducting a Sirois hearing (see Matter of Holtzman vHellenbrand, 92 AD2d 405, 407-408 [1983]). The People presented clear and convincingevidence establishing that misconduct by defendant and his mother, who acted at defendant'sbehest, caused the witness to be unavailable to testify at trial (see People v Geraci, 85NY2d 359, 370-371 [1995]; People vDickerson, 55 AD3d 1276, 1277 [2008], lv denied 11 NY3d 924 [2009];People v Major, 251 AD2d 999, 999-1000 [1998], lv denied 92 NY2d 927[1998]).
Defendant's challenge in his pro se supplemental brief to the constitutionality of New York'sdiscretionary persistent felony offender sentencing statute is unpreserved for our review (seePeople v Rosen, 96 NY2d 329, 333-335 [2001]), and in any event is without merit (see People v Quinones, 12 NY3d116, 122-131 [2009], cert denied 558 US —, 130 S Ct 104 [2009]; People v Bastian, 83 AD3d 1468,1470 [2011], lv denied 17 NY3d 813 [2011]).
We conclude, however, that, while the court did not abuse its discretion in sentencingdefendant as a persistent felony offender, the sentence nevertheless is unduly harsh and severe.This Court "has broad, plenary power to modify a sentence that is unduly harsh or severe underthe circumstances, even though the sentence may be within the permissible statutory range"(People v Delgado, 80 NY2d 780, 783 [1992]; see CPL 470.15 [6] [b]). That"sentence-review power may be exercised, if the interest of justice warrants, without deference tothe sentencing court" (Delgado, 80 NY2d at 783). As a result, we may " 'substitute ourown discretion for that of a trial court which has not abused its discretion in the imposition of asentence' " (People v Patel, 64AD3d 1246, 1247 [2009]). We conclude that a reduction in sentence is appropriate under thecircumstances presented here. Although burglary in the second degree is classified as a violentfelony offense (Penal Law §§ 70.02 [1] [b]; 140.25 [2]), defendant did not employactual violence in the instant offense despite being confronted by the woman whose residence heunlawfully entered. With the possible exception of two misdemeanor convictions of resistingarrest and criminal possession of a weapon dating to the 1980s, and a 2001 felony conviction ofburglary in the second degree, the circumstances of which are unknown, it does not appear thatdefendant, despite a lengthy criminal record, has ever used or threatened violence in thecommission of a crime. Therefore, as a matter of discretion in the interest of justice, we modifythe judgment by reducing the sentence imposed to an indeterminate term of incarceration of 15years to life (see CPL 470.20 [6]; People v Daggett, 88 AD3d 1296, 1298 [2011], lv denied18 NY3d 956 [2012]; People vCurrier, 83 AD3d 1421, 1423 [2011], amended on rearg 85 AD3d 1657 [2011]).We note, in response to the dissent, that we are only modifying the minimum term of defendant'ssentence. Because we are not vacating the court's discretionary sentencing of defendant as apersistent felony offender, the maximum term must remain unchanged. Given the lack ofviolence in defendant's criminal history, we conclude that 15 years is sufficient both as aminimum period of incarceration and for defendant to establish whether he has earned the rightto parole.
We have reviewed defendant's remaining contentions in his pro se supplemental brief andconclude that none warrants reversal or further modification of the judgment.
All concur except Scudder, P.J., and Martoche, J., who dissent in part and vote to affirm inthe following memorandum.
Scudder, P.J., and Martoche, J. (dissenting in part). We respectfully dissent in part and wouldaffirm the judgment of conviction without reducing defendant's sentence. In our view, thesentence is not unduly harsh or severe and thus, under the circumstances of this case, we see noreason to reduce [*3]the sentence as a matter of discretion in theinterest of justice.
Defendant was charged with burglary in the second degree (Penal Law § 140.25 [2])and, following a jury trial, was convicted of that charge. The conviction arose out of an incidentin which defendant, with two others, entered a home and stole several items of property.Defendant was identified by the resident as one of the people she saw running from her homewhen she returned there.
Prior to trial, a Sirois hearing was held in connection with the People's request topresent at trial the grand jury testimony of a witness who allegedly was unavailable as a result ofdefendant's actions and threats (see Matter of Holtzman v Hellenbrand, 92 AD2d 405,410 [1983]). The People alleged that defendant made telephone calls to his mother from theMonroe County Jail, in which he encouraged his mother to keep the witness from testifying. ThePeople further alleged that, during those conversations, defendant's mother had described herefforts at keeping the witness "high" to prevent her from coming to court. Defendant allegedlytold his mother, "that is not enough," and he further told her that she needed to get the witness"out of town." The People alleged that they were unable to locate the witness and requested ahearing to determine her unavailability as a result of defendant's actions. In fact, at theSirois hearing, an investigator with the Monroe County Sheriff's Office testified that helistened to telephone calls between defendant and his mother and that during one of the telephonecalls defendant told his mother that if the witness "walks into the courtroom [he would] get 15 tolife. If she doesn't [he would] probably get a misdemeanor or go scott free." County Courtconcluded that the People proved by clear and convincing evidence that the witness'sunavailability was the result of defendant's actions to keep the witness from testifying andgranted the People's request to present that witness's grand jury testimony at trial.
Also prior to trial, defendant was offered a plea bargain pursuant to which he would besentenced as a violent felony offender to a seven-year determinate term of imprisonment withfive years of postrelease supervision. Defendant was advised that if he declined the offer andchose to go to trial, he was facing persistent felony offender (PFO) status if convicted with asentence range of a minimum of 15 years to life and a maximum of 25 years to life.
After defendant was convicted he moved to set aside the verdict and, after hearing argument,the court denied the motion. The court then proceeded to the sentence phase. Defense counselraised a question regarding the presentence report (PSI) and whether it had been updated sincedefendant's prior felony conviction in 2001. The court indicated that it did not see a need to"order anything further on the PSI" because, from the time of the prior PSI, defendant had beenincarcerated except for a very brief period until he committed the instant offense. The court thenreviewed defendant's prior criminal record and defense counsel advised the court that there wasan offer, to "obviate the need" for a PFO hearing, that defendant would be incarcerated to "astraight 15 years['] determinate to a burglary two with five years['] post release supervision."Defense counsel added that he believed that the sentence would be illegal because it would"exceed the maximum on the C felony," i.e., if defendant were to violate the five years'postrelease supervision aspect of the offer, "he would be in jeopardy of another five years, whichwould make it beyond the maximum." Defense counsel added that, in any event, defendantwould not accept the offer because it was contingent on defendant waiving his right to appeal,which was something defendant was not "prepared to do."
The People established at the PFO hearing that defendant was convicted of criminalpossession of stolen property in the third and fourth degrees in 1994 (and was sentenced to termsof incarceration of 3½ to 7 years and 2 to 4 years, respectively), and that he was convictedof burglary in the second degree in 2001 (and was sentenced to a term of incarceration of sixyears [*4]followed by five years' postrelease supervision). A 1989conviction of burglary in the second degree was reversed (People v Smart, 171 AD2d1072 [1991]). It was revealed that defendant was out of jail on the 2001 burglary conviction forless than four months before committing the instant offense. Defendant did not testify at thehearing.
The court, citing defendant's 25-year criminal history and 15 prior convictions, three ofwhich were felonies (although one was reversed), and his "numerous" violations of probation andparole, found that PFO sentencing was warranted in this case and sentenced defendant to anindeterminate term of incarceration of 20 years to life.
"The power of the Appellate Division to reduce a sentence, which it finds unduly harsh orsevere, in the interest of justice and impose a lesser one has long been recognized in this State"(People v Thompson, 60 NY2d 513, 520 [1983]). The power originally was exercised asan inherent power (see People v Miles, 173 App Div 179, 183-184 [1916]) and was latercodified in section 543 of the Code of Criminal Procedure (see Thompson, 60 NY2d at520). Upon adoption of the Criminal Procedure Law in 1971, the Legislature expresslyauthorized the practice without substantive change (see CPL 470.15 [6] [b]; 470.20 [6]).Notably, the Court of Appeals is without similar authority (see People v Quinones, 12 NY3d 116, 130 n 6 [2009], certdenied 558 US —, 130 S Ct 104 [2009]). Thus, any reduction of a sentence by theAppellate Division is not subject to further review.
We recognize that the Appellate Division has discretion in determining whether a sentence isunduly harsh or severe. We further recognize that we should exercise that discretion in "uniqueand narrow circumstances" (People vKhuong Dinh Pham, 31 AD3d 962, 967 [2006]). For example, in Khuong DinhPham, the defendant had lived a crime-free, respectable life since the crime was committedand had no prior criminal record. Additionally, the defendant played a minor role in the crime ofwhich he was convicted. Similarly, in People v Wilt (18 AD3d 971, 973 [2005], lv denied 5NY3d 771 [2005]), the factors weighing in favor of a sentence reduction were the defendant'syouth, his lack of a criminal record, and his impaired emotional and mental health.
By contrast, here the People noted at sentencing that defendant's criminal record "consistedof approximately 11 misdemeanor convictions, five felony convictions, one of which is a violentfelony offense for burglary in the second degree," and that defendant's "history and characterdemonstrate that society would best be served if he was sentenced to an extended period ofincarceration and lifetime supervision" (see Penal Law § 70.10 [2]). The Peopleasked that defendant be sentenced to the maximum term of 25 years to life as a persistent felonyoffender. Defense counsel's response to the People's request for the imposition of the maximumterm of incarceration was to "continue to assert" defendant's innocence. Defendant was given anopportunity to speak and told the court that his "conviction is wrong." Defendant further told thecourt that he "never intended for [the witness] to not come to trial. In fact, I begged her to cometo trial and tell the truth over and over and over, amongst other things, but she wouldn't do it."Notably, the uncontradicted testimony of several police officers at the Sirois hearingestablished the existence of numerous telephone calls involving defendant that concerned thevictim, and established that defendant did not want the witness to testify at trial and took steps toensure that she not do so. Ultimately, when the court sentenced defendant, it stated that, "if you'renot a persistent felony offender, I don't know who is." The court further stated, while addressingdefendant, that "when you do get out, I have this fear and concern that you're just going tocontinue this type of conduct . . . [A]pparently everything you have done since youwere back in your teens has been criminal in nature." The PSI report confirms the court'sassessment of defendant. Defendant was born on September 9, 1965, and had a juvenile criminalhistory. His first arrest as an adult occurred on December 16, 1982 and the PSI lists 24 arrestsapart from the arrest in this case. Many of those arrests were for burglary, grand larceny andcriminal [*5]possession of stolen property.
The majority, while recognizing that defendant was convicted of a violent felony offense,nevertheless concludes that, because no actual violence was employed during the commission ofthe offense, defendant's sentence should be reduced to the statutory minimum. In our view, thatposition not only usurps the discretion of the trial court in imposing a sentence, but it also usurpsthe authority of the Legislature in categorizing offenses. Penal Law § 140.25 contains twosubdivisions, with the common element that a person knowingly enter or remain unlawfully in abuilding with intent to commit a crime therein. The first subdivision requires the additionalelement of the person or another participant in the crime: being armed with explosives or adeadly weapon; causing physical injury to any person not a participant in the crime; using orthreatening the immediate use of a dangerous instrument; or displaying what appears to be apistol, revolver, rifle, shotgun, machine gun or other firearm (§ 140.25 [1] [a]-[d]). In thealternative, a person is also guilty of burglary in the second degree when he or she knowinglyenters or remains unlawfully in a building with intent to commit a crime therein and that buildingis a dwelling (§ 140.25 [2]), the crime of which defendant here was convicted. Bothcategories of the crime of burglary in the second degree have been deemed violent felonies by theLegislature (see § 70.02 [1] [b]).
In People v Johnson (38 AD3d1057, 1059 [2007]), the defendant challenged the trial court's imposition of a sentence forburglary in the second degree as a violent felony offense on the ground that the legislativeclassification of burglary in the second degree as a violent felony where no violence was used orproven was unconstitutional or illegal. The defendant argued "that he was denied due processbecause he was not allowed to contest this classification" (id.). The Third Departmentconcluded that it was "the Legislature's function to classify crimes and to 'distinguish among theills of society which require a criminal sanction, and prescribe, as it reasonably views them,punishments appropriate to each' " (id., quoting People v Broadie, 37 NY2d 100,110 [1975]). The Third Department further noted that, "[s]ince the 1981 amendments to PenalLaw § 140.25 (2) (L 1981, ch 361), the Legislature determined 'to classify all burglaries ofdwellings as class C or higher violent felonies . . . apparently based upon itsassessment that the potential for violence was the same irrespective of the time of theircommission,' abrogating the distinction between those committed at night and those committedduring the day" (id.). In our view, the fact that defendant did not employ actual violencein committing the instant offense should not inure to his benefit; the Legislature hasunequivocally indicated its intent that the crime committed by defendant be considered a violentfelony offense, regardless of whether actual violence was employed.
In our view, reducing defendant's sentence improperly interferes with the broad province ofthe trial court, which not only considered defendant's extraordinarily lengthy criminal history, hislack of remorse and his denial of his involvement in the crime, but also considered defendant'ssignificant attempts to prevent a witness from testifying and the impact of the crime on thevictim.
For all of the above-stated reasons, we cannot agree with the majority that the sentenceimposed, which fell at the mid-point between the range of minimum and maximum sentencing,was unduly harsh or severe. Present—Scudder, P.J., Fahey, Lindley, Sconiers andMartoche, JJ.