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Re-sentence comes under scrutiny

In this Drug crime, defendant appeals from the denial of his CPL 440.20 motion to set aside the sentence imposed upon his adjudication as a second felony drug offender based on a 2001 conviction. Under Penal Law § 70.06(1)(b)(ii), it is the sentence date that determines whether a crime constitutes a predicate offense, not the date of conviction. Since defendant was resentenced for the 2001 crime after the instant offense was committed, the second felony adjudication and the sentence entered thereon must be vacated.

A New York Criminal Attorney said that in June 2001, defendant pleaded guilty to attempted robbery in the second degree in full satisfaction of the charges against him. He was adjudicated a second felony offender based on a 1993 Massachusetts conviction for distribution of a controlled substance, and later on, he received a determinate sentence of 4 years. However, at sentencing the court did not pronounce the mandatory term of post release supervision (PRS). Defendant did not appeal his conviction, nor did he argue that his sentence was illegal. Thereafter, the Department of Correctional Services (DOCS) imposed a five-year period of PRS.

In 2006, in the matter on appeal, defendant was convicted of criminal possession and criminal sale of a controlled substance in the third degree. On November 14 of that year he was adjudicated a second felony drug offender based on the 2001 attempted robbery conviction, which was a violent felony. He was sentenced to concurrent terms of six years, to be followed by three years’ PRS. On appeal, defendant did not contest his adjudication as a violent predicate felon, and this Court affirmed the conviction.

In 2008, defendant brought a motion for resentencing on the 2001 attempted robbery conviction, contending that the sentence imposed was illegal because the court had failed to pronounce the mandatory term of PRS. At a hearing, defendant related that the present drug crime was committed some six months after his release following completion of his four-year sentence on the 2001 crime. The court declared defendant delinquent and remanded him on the basis of the five-year period of PRS imposed by DOCS.

In response to the motion, the People consented to have defendant’s original sentence reimposed without PRS. The court then resentenced defendant to the originally imposed determinate term of four years without any term of PRS, stating that such sentence was nunc pro tunc to the original sentence date of July 2001.

On the motion at bar, defendant sought to be resentenced on the instant drug crime as a first felony offender, arguing that his 2001 armed robbery conviction no longer qualified as a predicate felony because the original sentence imposed was illegal, requiring that he be resentenced in 2008, after the present offense had been committed. The People opposed, noting that defendant had been resentenced nunc pro tunc pursuant to Penal Law § 70.85. Therefore, they contended, the 2001 conviction retained its original date and properly served as a predicate felony on the instant conviction.

The issue to be resolved in this case is whether the 2001 conviction retained its original date and properly served as a predicate felony on the instant conviction.

The Supreme Court agreed. Construing the defect as “an easily correctable procedural error,” as recognized by the Court of Appeals in, the court held that the imposition of the original four-year determinate sentence on July 19, 2001 had been lawful and proper. The court thus concluded that it remained a viable predicate for sentence enhancement in connection with the instant drug crime.

Where resentencing occurs after the present offense, we the Court have held that the prior crme does “not qualify as a predicate conviction for purposes of sentencing as a persistent violent felony offender,” since “multiple offender status is defined by the plain statutory language, which courts are not free to disregard”. Adjudication as a second felony drug offender requires a predicate conviction of a felony defined in Penal Law § 70.06, which “uses the imposition of sentence, not the date of conviction, as the criterion of predicate status” Under the statute, the predicate sentence “must have been imposed before commission of the present felony”.

The People contend that the failure to pronounce a period of PRS is not substantive but constitutes only a procedural error, citing. This view, adopted by Supreme Court, is inconsistent with the Court of Appeals’ holding that where a defendant’s right to hear sentence pronounced against him is violated, the only available remedy is to vacate the sentence and remand the matter for resentencing. Such an omission “has a ‘substantial’ effect on [a defendant] and ‘implicate[s] the public interest’ in ensuring the regularity of sentencing”. The People ignore these considerations, seeking to confine the effect of vacating the sentence imposed on the predicate robbery conviction to that part of the sentence dealing with PRS. They attempt to distinguish the vacating of a sentence under Penal Law § 70.85 from cases where the underlying judgment of conviction was reversed, or where the predicate sentence was found to be illegal, contending that pursuant to statute, “resentencing” here left defendant’s original conviction and prison sentence intact. These crimes can lead to sex crimes.

By definition, vacating a sentence has the legal effect of annulling it. Moreover, in arguing that there was no illegality in the “prison portion” of the sentence on defendant’s prior conviction, the People overlook the express language of the provision under which defendant was resentenced. Penal Law § 70.85 provides that where, as here, a case is before the court “for consideration of whether to resentence, the court may, notwithstanding any other provision of law but only on consent of the district attorney, re-impose the originally imposed determinate sentence of imprisonment without any term of post-release supervision, which then shall be deemed a lawful sentence.” If, as the People contend, the prison portion of the sentence remained valid, there would be no need for the Legislature to declare lawful the reimposition of the selfsame term of imprisonment.

The distinction the People overlook is that Penal Law § 70.85 obviates the need to vacate a defendant’s guilty plea, because it was “a statutory exception to the mandatory imposition of PRS, which was directly aimed at saving guilty pleas”. It does not obviate the need to vacate the original sentence and remit the matter for resentencing. Hence, the statute permits the court to “re-impose the originally imposed determinate sentence of imprisonment.” Nothing in the statute detracts from the force of the Court of Appeals’ pronouncement that the “sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement”

In supplemental submissions, the parties contest the effect of, which was decided after this appeal was heard. Williams holds that imposing a period of post release supervision after a defendant has served his or her term of imprisonment and after his or her direct appeal has been completed offends the constitutional protection against double jeopardy. The People contend that the resentencing proceedings are a nullity, arguing that the court lacked jurisdiction to resentence defendant in connection with the predicate attempted robbery conviction because the court’s power to resentence a defendant ends with his or her release from custody by DOCS. Defendant argues that no period of PRS was included in the sentence imposed upon resentencing; accordingly, due process considerations are not implicated.
Here, the modified sentence imposes no additional punishment on defendant. Therefore, it does not violate the due process rights. Rather, it is a valid sentence and determines the date of the offense for the purpose of second felony adjudication. Moreover, the People did not raise any objection at defendant’s resentencing but, to the contrary, gave their consent.
Although defendant’s 2001 attempted robbery conviction no longer qualifies as a predicate felony, the appropriate remedy is to remand for resentencing to afford the People the opportunity to establish whether his 1993 Massachusetts conviction still qualifies as a predicate felony when the time he has spent incarcerated is excluded from the 10–year limitation pursuant to Penal Law.

Accordingly, the order of Supreme Court, New York County, entered on or about February 26, 2009, which denied defendant’s motion, pursuant to CPL 440.20, to set aside his sentence on a judgment rendered November 14, 2006, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree and sentencing him, as a second felony drug offender previously convicted of a violent felony, to concurrent terms of 6 years, to be followed by a 3–year term of PRS, should be reversed, on the law, and the matter remanded for sentencing, including further proceedings with respect to defendant’s predicate felony status.

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