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Petitioner Requests a Recalculation of his Sentence


In 1996, after a jury trial, petitioner was convicted of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree. He was sentenced to concurrent indeterminate terms of 7½ to 15 years on each charge. In 1997, petitioner was convicted of manslaughter in the first degree under. Thus, at the time of sentencing on the manslaughter conviction, petitioner was “subject to an undischarged term of imprisonment imposed at a previous time by a court of this state”. A New York Criminal Lawyer said pursuant to the terms of a negotiated plea agreement, petitioner pleaded guilty to the manslaughter charge. Consistent with the discretion afforded by statute to impose either a concurrent or consecutive period of incarceration, the court sentenced petitioner to a term of 7½ to 15 years, to be served consecutively with the sentence imposed following his conviction on the unrelated controlled substance charges.

A Bronx Criminal Lawyer said that, the two cases against petitioner were consolidated for appeal. This Court affirmed the manslaughter conviction and reversed the earlier drug conviction. Rather than seek retrial, the People accepted petitioner’s plea of guilty to criminal sale of a controlled substance in the third degree in exchange for a sentence of 7½ to 15 years, to be served concurrently with the sentence imposed on the manslaughter conviction. Supreme Court sentenced petitioner in accordance with the plea agreement in October 2000 and issued a commitment order.

A New York Criminal Lawyer said that, in response to his inquiry regarding eligibility for parole, the Department of Correctional Services informed petitioner that his aggregated sentence was 12 to 24 years based on two terms of imprisonment that are to be served consecutively. In a letter to counsel, the Department took the position that pursuant to the decision of the Appellate Division, Fourth Department, in Matter of Muntaqim v Herbert, the “relationship between such sentences had to remain consecutive. Thus, the Court that resentenced Mr. Murray on indictment #5174/94 could not change it from consecutive to concurrent.”

The petitioner commenced this CPLR article 78 proceeding seeking an order in the nature of mandamus to direct respondents Commissioner and Deputy Commissioner and Counsel of the New York State Department of Correctional Services to recalculate his sentence in accordance with the later judgment imposing concurrent terms of imprisonment. A New York Drug Possession Lawyer Supreme Court granted the petition and directed respondents to recalculate petitioner’s sentence for manslaughter to run concurrently with the sentence imposed upon the subsequent drug conviction.

Supreme Court’s disposition rests on the presumptive validity of the judgment entered by Justice Davidowitz and the sentence imposed there under. As the court stated, the “Department of Correctional Services is not statutorily authorized to unilaterally set aside a determination of a Justice of the Supreme Court.” In directing respondents to calculate eligibility for parole on sentences to be served concurrently, the court emphasized that they are vested with no discretion to vary the terms of an order of commitment. The court therefore declined to entertain respondents’ contrary arguments, noting that whether a sentence is to run concurrently or consecutively is a matter within “the exclusive province of the Courts, subject to enabling legislation”.

The issue in this case is whether petitioner is entitled to the recalculation of his sentence.

The Court in deciding the case said that, as a general matter, it is well settled that unless there is an infirmity of jurisdiction of the subject matter so as to render it void, an order or judgment of a court is binding on all persons subject to its mandate until vacated or set aside on appeal. Irrespective of any opinion respondents might entertain towards the order of commitment issued by Justice Davidowitz, they are not vested with the discretion to ignore its terms. As the last order of commitment received from Supreme Court, the order issued by Justice Davidowitz supersedes any prior order of commitment. Furthermore, by presuming to determine the court’s authority to issue the order, respondents have intruded upon the prerogative of this Court to decide the delicate question of whether, by departing from the terms of the previous order of commitment, Justice Davidowitz may have transgressed the proscription against overruling a court of coordinate.

With respect to a judgment imposing sentence in particular, respondents are without a statutory basis upon which to contest the terms of incarceration. Apart from the defendant, the right to appeal the propriety of a sentence is conferred exclusively upon the prosecutor. If the terms of a plea agreement negotiated between the People and the defendant are acceptable to a sentencing court, there is no statutory authority permitting a third party to contest the validity of the sentence imposed, as to either length or simultaneity. Respondents, on behalf of a prisoner, are limited to informing the District Attorney of the county in which sentence was imposed that it appears to be erroneous. Consistent with the Criminal Procedure Law, Correction Law § 601 (a) vests the right to assess the propriety of the sentence in the District Attorney.

Thus, this Court finds no error in Supreme Court’s refusal to apply the reasoning of Matter of Muntaqim v Herbert to the facts of this case. A New York Sex Crimes Lawyer said that while Muntaqim likewise involves a vacated judgment of conviction, the circumstances are not analogous. The sentence in dispute in Muntaqim appears to have been imposed for a crime (homicide) that was committed while the petitioner was released from prison and awaiting retrial for a previous homicide. Irrespective of the reversal of the conviction and associated sentence, it remains that the subject offense was committed while the petitioner was released but awaiting trial and that a “sentence of imprisonment was imposed in each case”. Therefore, upon conviction following retrial, the court was obliged to impose a consecutive sentence, absent a finding of mitigating circumstances.

Respondents concede that this matter is governed by Penal Law § 70.25 (1), which affords the court the discretion to impose sentence either consecutively or concurrently. The only issue is whether the exercise of that discretion by the original sentencing court, imposing consecutive sentences, is law of the case so as to deprive the subsequent sentencing court of the discretion to provide for concurrent sentences.

The law of the case doctrine is inapplicable. It is axiomatic that any reference to an “undischarged term of imprisonment” in the Criminal Procedure Law denotes a lawful sentence imposed upon a valid judgment of conviction. As a matter of statute, when judgment is reversed (CPL 470.10 [1]), the sentence imposed is vacated along with the judgment. Thus, when petitioner’s conviction for criminal possession and sale was vacated, the predicate judgment of conviction and the associated sentence for manslaughter were no longer viable. The question of successive or simultaneous prison terms was thereby rendered academic; upon reversal of the drug conviction, there ceased to be any undischarged term of imprisonment to which the manslaughter sentence could be consecutive or concurrent.

CPL 430.10, also invoked by respondents, is similarly unavailing. Its proscription against change, suspension or interruption of a sentence expressly exempts modification “specifically authorized by law.” The vacating of a judgment of conviction on appeal, to which the subject sentence is to run consecutively, is certainly authorized by law. Thus, as previously noted, vacating the judgment of conviction renders moot the consecutive or concurrent aspect of the associated sentence by operation of law because there is no longer another sentence to which the remaining valid sentence can be either concurrent or consecutive. Significantly, the second felony offender provision (Penal Law § 70.06) uses the imposition of sentence, not the date of conviction, as the criterion of predicate status. The question of which “sentence” (Penal Law § 70.06 [1] [b]) constitutes the predicate for purposes of second felony offender adjudication in the event of reversal has been resolved; “the `sentence’ is the sentence imposed as a part of the final judgment”

The discretion to impose either a concurrent or consecutive sentence under Penal Law § 70.25 (1) is constrained by the subsequent provisions of section 70.25. For purposes of this case, there is no pertinent provision that operates to limit the sentencing court’s discretion. Moreover, because the judgment of conviction for the earlier drug offense was vacated, petitioner was not subject to an undischarged sentence “imposed prior to the date on which the present drug crime was committed” so as to implicate the operation of Penal Law § 70.25 (2-a).

This analysis finds further support on policy grounds. If the reasoning suggested by respondents were to be adopted, it would have a significant impact upon the disposition of criminal cases. Eliminating the option to extend the offer of a concurrent sentence would deprive the District Attorney of a powerful incentive for inducing a defendant to accept a plea. As a matter of public policy, the considerable latitude accorded to the District Attorney to negotiate the resolution of a criminal prosecution should not be unnecessarily fettered.

Accordingly, the judgment of the Supreme Court, Bronx County, which granted the article 78 petition and directed that petitioner’s sentences be served concurrently, should be affirmed.

If you need legal advice regarding your sentence imposed by reason of conviction of a drug crime, contact Stephen Bilkis and Associates for free consultation. Our Bronx Criminal Attorneys and Bronx Drug Crime Attorneys can help you and will be glad to discuss your legal problems and help you determine the best course of action regarding your case.

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