| People v Heisler |
| 2017 NY Slip Op 04220 [150 AD3d 612] |
| May 30, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Richard Heisler, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Robert M. Stolz, J.), renderedJuly 24, 2015, resentencing defendant, as a second violent felony offender, to an aggregate termof 22 years, and bringing up for review an order (same date, court and Justice), which granted thePeople's CPL 440.40 motion to set aside a resentence of the same court and Justice, renderedFebruary 6, 2015, as amended March 2, 2015, resentencing defendant, as a first felony offender,to an aggregate term of 22 years upon a judgment of the same court (Rena K. Uviller, J.),rendered November 10, 2011, convicting defendant, upon his plea of guilty, of kidnapping in thesecond degree and criminal sexual act in the first degree, and sentencing him, as a persistentviolent felony offender, to concurrent terms of 22 years to life, unanimously affirmed. Appealsfrom the original judgment of conviction and the intervening judgments of resentenceunanimously dismissed as academic.
The court correctly resentenced defendant as a second violent felony offender. The court'searlier determination, in vacating defendant's persistent violent felony offender adjudication, thatdefendant should be sentenced as a first felony offender (nonpredicate) had no collateral estoppeleffect on the People's valid CPL 440.40 challenge to the legality of the nonpredicate sentence.We also find that defendant did not meet his burden of establishing that his predicate violentfelony conviction was unconstitutionally obtained.
In 2011, defendant was sentenced as a persistent violent felony offender, based on a 1990New Jersey conviction and a 1993 Rockland County conviction. Each of the predicateconvictions arose from defendant approaching a teenage boy, falsely identifying himself as apolice officer and thereafter committing a sexual assault upon the boy. The Rockland Countyconviction arose from two separate incidents with different victims committed within severalweeks.
In 2013, defendant moved pursuant to CPL 440.20 to set aside his sentence as a persistentfelony offender, claiming, among other things, that his 1990 New Jersey conviction should nothave been used as a predicate violent felony because the New Jersey crimes were not theequivalents of any violent felonies in New York, a claim that is undisputedly correct. In thecourse of the litigation over defendant's motion, defendant also challenged the use of his 1993Rockland County conviction as a predicate violent felony on the ground that it had been obtainedin violation of his constitutional rights to effective assistance of counsel and due process, in thathis plea was allegedly the product of misinformation about his status and concomitant sentencingexposure. In their response, the People suggested that, as a way of disposing of the case withoutfurther litigation, the court simply forgo the predicate felony adjudication and sentence defendantas a nonpredicate to concurrent terms of 25 years on each count.
In February 2015, the court granted defendant's motion, noting that the parties and the [*2]court had determined that defendant was "not a mandatorypersistent violent felon." In place of the original sentence of 22 years to life, the courtresentenced defendant as a nonpredicate to an aggregate term of 22 years, with postreleasesupervision. However, in March 2015, the Department of Corrections and CommunitySupervision notified the court and the parties that defendant was legally required to be sentencedas a second violent felony offender. That agency also advised the court that if defendant was notsentenced as a second violent felon, the time he served on the prior sentence would be creditedagainst his present sentence. Upon the People's timely CPL 440.40 motion to vacate thenonpredicate resentence as illegal, the court resentenced defendant as a second violent felonyoffender based on the Rockland County conviction.
Where a defendant is in fact a predicate offender, sentencing the defendant as a nonpredicateresults in an illegal sentence. The provisions of CPL 400.15, governing second violent felonyoffender adjudications, are mandatory, and neither the People nor a court may ignore or waive adefendant's predicate status (see People v Scarbrough, 66 NY2d 673 [1985], revg ondissenting mem of Boomer, J., 105 AD2d 1107, 1107-1109 [4th Dept 1984]; People v Alcequier, 43 AD3d 699[1st Dept 2007], lv denied 11 NY3d 921 [2009]). The claim that defendant describes as acollateral estoppel argument is without merit. The defective resentencing of defendant as anonpredicate had no collateral estoppel effect with regard to the People's timely CPL 440.40motion, which was a permissible alternative to an appeal. "When the People seek to challenge asentence as illegal, they may appeal . . . , or, within one year of thejudgment, they may make a motion to set aside the sentence" (People v Medina, 35 AD3d 163, 164 [1st Dept 2006], lv denied8 NY3d 925 [2007] [emphasis added]). The very purpose of a (defendant's) CPL 440.20motion or a (People's) 440.40 motion is to correct a substantively illegal sentence without thenecessity of an appeal; obviously, the court deciding such a motion is not bound by a sentencingcourt's express or implied finding that the challenged sentence was legal.
Turning to the merits of defendant's second felony offender adjudication, we conclude thatdefendant did not meet his burden (seePeople v Smith, 28 NY3d 191, 202 [2016]) of establishing that his 1993 RocklandCounty guilty plea was obtained in violation of his federal constitutional rights to due processand effective assistance of counsel. The record establishes that his plea was made knowingly,intelligently and voluntarily, regardless of any misinformation about his sentencing exposure(see People v Garcia, 92 NY2d 869, 870 [1998]). Defendant has not established even areasonable possibility that he would have rejected the Rockland plea offer and gone to trial hadhe known he was really a nonpredicate, and thus eligible, under the law at the time, for sentenceswhere the minimum would be a third, rather than half of the maximum (see Hill vLockhart, 474 US 52, 59 [1985]). Given the heinousness of defendant's Rockland crimes (aswell as that of the prior New Jersey crimes, even if they were not technically New York felonies)and the strength of the evidence against him in the Rockland case, defendant was highly likely tobe convicted at trial and face lengthy, consecutive sentences, whether or not he was a predicateoffender. Defendant had little reason to hope for leniency or early parole. We also find that thecourt properly exercised its discretion in determining the People's motion without holding ahearing on defendant's claim of unconstitutionality (see People v Samandarov, 13 NY3d 433, 439-440 [2009];People v Satterfield, 66 NY2d 796, 799-800 [1985]).
We find it unnecessary to reach any other issues, including whether the constitutionality[*3]of the Rockland conviction is properly before us in thepresent procedural posture, and whether the court's alternative ground for resentencing defendantwas valid. Concur—Acosta, P.J., Friedman, Andrias, Webber and Gesmer, JJ.