| People v Burgos |
| 2015 NY Slip Op 05600 [129 AD3d 627] |
| June 30, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ruben Burgos, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Laura Boyd of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel),for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered January26, 2011, convicting defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the second degree and criminal possession of a weapon in thesecond degree, sentencing him to concurrent terms of three years and 3
At sentencing, defendant and the People executed, and the court so-ordered, astipulation wherein defendant agreed to forfeit, pursuant to CPL 220.50 (6), the sum of$34,505 seized at the time of his arrest on drug charges. The stipulation bore the criminalcaption "THE PEOPLE OF THE STATE OF NEW YORK v Ruben Burgos,Defendant." After the stipulation was executed, the court sentenced defendant to thepromised term of imprisonment. Defendant now appeals from the judgment of convictionseeking to vacate the forfeiture stipulation.
At the outset, we reject the People's contention, adopted by the dissent, that thisappeal is not properly before us because the forfeiture was not part of the judgment ofconviction. Pursuant to Penal Law § 60.30, a court has the authority toorder a forfeiture of property, and any order exercising that authority "may be included aspart of the judgment of conviction." In People v Detres-Perez (127 AD3d 535 [1st Dept 2015]),relying on Penal Law § 60.30, this Court recently found that a forfeitureagreement was part of the judgment of conviction and thus reviewable on the appealfrom the judgment. Likewise here, the court's so-ordering of the stipulation at the time ofsentencing rendered it part of the judgment of conviction and reviewable on this appealas of right (see CPL 450.10). Contrary to the dissent's position, we do notconclude that Penal Law § 60.30 authorizes the inclusion of forfeiture aspart of a defendant's sentence. Rather, that provision allows a court to orderforfeiture as a separate component of the judgment of conviction (see People v Carmichael, 123AD3d 1053, 1053 [2d Dept 2014] [although "not an authorized component of acriminal sentence[,]" "an order of forfeiture pursuant to a valid settlement of a civilforfeiture claim may be included as part of the judgment of conviction"]). The dissentfails to convincingly distinguish this Court's recent precedent in Detres-Perez andthe Second Department's decision in Carmichael. The cases relied upon by thedissent do not [*2]require us to hold that defendant'schallenge is not reviewable on this appeal. In People v Smith (15 NY3d 669 [2010]), the Court foundthat the registration requirements of New York City's Gun Offender Registration Act(GORA) were not part of the defendant's sentence or otherwise subsumed within thejudgment of conviction (id. at 673). In reaching that conclusion, the Courtreasoned that neither the Penal Law nor the Criminal Procedure Law authorizes asentencing court to impose GORA registration (id.). Here, in contrast, Penal Law§ 60.30 explicitly authorizes the inclusion of a forfeiture order as part of thejudgment of conviction. Nor does People v Abruzzese (30 AD3d 219 [1st Dept 2006], lvdenied 7 NY3d 784 [2006]) require a different result. Unlike Abruzzese,where the sentencing court did not order any forfeiture, the court here explicitlyso-ordered the forfeiture stipulation at the time the sentence was pronounced. Finally, theomission of the forfeiture order from the sentence and commitment sheet does not renderthe order unreviewable since a forfeiture, although not a component of a criminalsentence, can nevertheless be part of the judgment of conviction (see People vCarmichael, 123 AD3d at 1053; Penal Law § 60.30).
The appeal being properly before us, the judgment of conviction should be affirmed.At sentencing, defendant did not raise any of his current appellate challenges to thestipulation, seek to withdraw his plea, or otherwise express any unwillingness to proceedwith sentencing if forfeiture was a condition of the plea. Thus, defendant's claims areunpreserved (see People v Detres-Perez, 127 AD3d at 535), and we decline toreach them in the interest of justice.
As an alternative holding, we reject the claims on the merits. Defendant contends thatthe forfeiture stipulation is not enforceable because the procedures set forth in Penal Law§ 480.10 were not followed. The stipulation makes clear, however, that theforfeiture was governed by CPL 220.50, not Penal Law § 480.10 (see People v Rodriguez, 123AD3d 631 [1st Dept 2014]). Any failure to strictly adhere to the procedures set forthin CPL 220.20 would not be a basis for reversal here in light of defendant'sacknowledgment, in the stipulation, that he agreed to forfeit the money as a condition ofhis plea. Contrary to defendant's contention, there is no basis to conclude that the courtcoerced him to execute the stipulation, or that the stipulation was not otherwise enteredinto knowingly and voluntarily. Nor is there any showing that the court specificallyrequired defendant to execute the stipulation before sentencing. Concur—Acosta,J.P., Saxe and Richter, JJ.
DeGrasse, J., dissents in a memorandum as follows: On this appeal, defendant seeksto challenge his forfeiture of $34,505 pursuant to a written stipulation that he signed onthe date of his sentence. Defendant contends that the forfeiture was not carried out in themanner prescribed by Penal Law § 480.10. Accordingly, he argues that"[b]ecause the forfeiture mandate was not authorized as a matter of law, the judgmentshould be modified on the law by vacating the forfeiture of appellant's money." Thestipulation was so-ordered by the court and contains a recital that the money was subjectto forfeiture as "a condition of defendant's plea." Nonetheless, I dissent and woulddismiss this appeal because [*3]I disagree with themajority's premise that the forfeiture was part of the judgment of conviction.
"No appeal lies from a determination made in a criminal proceeding unlessspecifically provided for by statute" (People v Pagan, 19 NY3d 368, 370 [2012] [internalquotation marks and citation omitted]). As relevant here, CPL 450.10 authorizes adefendant to appeal only from a judgment rendered in a criminal case (see People v Smith, 15 NY3d669, 673 [2010]). "A judgment is comprised of a conviction and the sentenceimposed thereon and is completed by imposition and entry of the sentence" (id.[internal quotation marks and citation omitted]). For the reasons stated below, theforfeiture, which defendant asks us to vacate, was not part of his guilty plea or hissentence. Accordingly, it was not part of a judgment of conviction within thecontemplation of CPL 1.20 (15) and 450.10.
As demonstrated by the minutes, the forfeiture was not mentioned at all duringdefendant's January 11, 2011 plea colloquy. Therefore, it could not have been part of theplea. Nor was the forfeiture part of the January 26, 2011 sentence since it was notincluded as part of the court's pronouncement of sentence. CPL 380.20 and 380.40 (1)collectively require that courts pronounce sentence in every case where a conviction isentered (see People vSparber, 10 NY3d 457, 470 [2008]). This means that a forfeiture of propertywould have to be included as part of the sentence pronounced in order to be regarded assuch (cf. People v Guerrero,12 NY3d 45, 47 [2009] [finding that the mandatory surcharge and crime victimassistance fee need not be pronounced by judge at sentencing proceeding]). As shown bythe minutes, the only reference to the forfeiture on the sentencing day was thefollowing:
"[PROSECUTOR]: People rely on the promise. I believe forfeiture was part of theagreed upon sentence.
"[DEFENSE COUNSEL]: It was not.
"[THE COURT]: I don't recall.
"[DEFENSE COUNSEL]: Based on my memory and file that was neverdiscussed.
"[THE COURT]: What is the amount?
"[PROSECUTOR]: Thirty four thousand five hundred dollars.
"[THE COURT]: Pretty significant.
"[DEFENSE COUNSEL]: Can I have the forfeiture agreement?
"[PROSECUTOR]: Yes.
"[DEFENSE COUNSEL]: Judge, I am handing up the executed forfeitureagreement."
There was no other mention of the forfeiture during the sentencing. The foregoingcolloquy does not approach a pronouncement of the forfeiture as part of the sentence asrequired under CPL 380.20 and 380.40 (1). For this reason and because of its omissionfrom the plea colloquy, the forfeiture is not part of the judgment of conviction. Also, thefact that the stipulation apparently did not surface and was not executed until thesentencing date further refutes any argument that it was a condition of the plea.Moreover, the stipulation contains no reference to, let alone a recital that it was to bemade part of defendant's sentence. The majority posits that "the court's so-ordering of thestipulation at the time of sentencing rendered it part of the judgment of conviction."However, the majority stops short of attributing the forfeiture to either the plea or thesentence. By operation of CPL 1.20 (15) and 450.10, it must be part of one [*4]or both to be appealable as of right.
This case is controlled by People v Abruzzese (30 AD3d 219 [1st Dept 2006], lvdenied 7 NY3d 784 [2006]) in which we dismissed an appeal on the ground that theforfeiture in that case was not part of the judgment of conviction. To be specific, inAbruzzese, we dismissed a "[p]urported appeal from [a] forfeiture agreement. . . as taken from a nonappealable paper" (id. at 220). The sameunavailable relief is sought here inasmuch as defendant's opening brief calls for an order"vacating the forfeiture of money recovered from appellant." Significantly, the forfeiturerequirement does not appear on defendant's "Uniform Sentence and Commitment" form(commitment sheet). This omission confirms my belief that it is not part of the judgmentof conviction (see Smith, 15 NY3d at 674 [analogous omission from acommitment sheet confirmed the Court's conclusion that requirements of registration andnotice under New York City's Gun Offender Registration Act[FN*] were not part of a sentence]). Themajority cites People vCarmichael (123 AD3d 1053 [2d Dept 2014]), in which the court held that "anorder of forfeiture pursuant to a valid settlement of a civil forfeiture claim may beincluded as part of the judgment of conviction" (id. at 1053 [citation omitted]).The reference to Carmichael, however, merely begs the central question of how aforfeiture becomes part of a judgment. People v Detres-Perez (127 AD3d 535 [1st Dept 2015]) isdistinguishable insofar as we found in that case that the "forfeiture agreement was part ofthe judgment of conviction" (id. at 535). As stated above, the record heresupports no such finding. As the majority notes, Penal Law § 60.30authorizes the inclusion of a forfeiture or other civil penalty as part of a judgment ofconviction. The problem here is that no inclusion in a manner required by law has takenplace. I find it unnecessary to address defendant's remaining arguments in light of thefact that the appeal should have been dismissed in the first instance.
Footnote *:Administrative Code ofthe City of New York § 10-601 et seq.