PEOPLE v. GRANGER (2020)

DECISION / ORDER

Based upon his alleged status as a victim of domestic violence, the Defendant, Shawn G. Granger, has filed an application pursuant to Criminal Procedure Law § 440.47 seeking to be resentenced on prior convictions.¹ He also requested this Court to assign an attorney to assist him. Although CPL § 440.47 requires the Court to make a preliminary assessment of whether an applicant is eligible for resentence before assigning an attorney to represent him or her, it has assigned Attorney Adam R. Matteson to assist the Defendant, because the statute, enacted in 2019 and effective August 12 of that year, has a number of complexities which are exacerbated by the procedural context of this case.

CPL § 440.47 permits “persons confined in an institution ․ serving a sentence with a minimum or determinate term of eight years or more ․” to apply to the judge or justice who imposed the sentence  ² for a resentence on the basis that he or she was “a victim of domestic violence subjected to substantial physical, sexual, or psychological abuse inflicted by a member of (his or her) family.” Penal Law § 60.12(1). In support of that application, the Defendant filed a copy of his Department of Corrections and Community Supervision (DOCCS) Inmate Information sheet showing him to have an “aggregate maximum” period owed of 8 years 1 month and 23 days. However, a second document submitted with the information sheet showed that his sentence on Jefferson County Indictment 17-197-17 was for a determinate period of only seven years. The balance of the aggregate maximum was based upon time owed on his earlier sentences under Indictments 461-09, 265-09 and 781-09.³

On May 26, 2010, the Defendant was sentenced on the three 2009 indictments. He was sentenced to three concurrent eight year determinate periods of incarceration in DOCCS, followed by a three year period of post release supervision (hereinafter PRS) for Indictment 461-09. That indictment was prosecuted by the New York State Attorney General's Office.

The two remaining indictments were prosecuted by the Jefferson County District Attorney's Office. Judge Martusewicz sentenced the Defendant to three years determinate on a conviction for Assault in the Second Degree (with three years PRS) followed by concurrent five year determinate sentences for convictions of Criminal Possession of a Controlled Substance in the Third and Fourth Degrees.⁴ For Indictment 265-09, the Defendant was sentenced to a five year determinate sentence for the crime of Criminal Possession of a Controlled Substance in the Third Degree, followed by three years of PRS and a concurrent period of one and one-half years determinate followed by two years of PRS for a conviction of Criminal Possession of Marijuana in the Second Degree.⁵

The final result of the sentences imposed was that the Defendant was effectively sentenced to eight years in DOCCS, followed by the various periods of post release supervision.⁶ The Defendant began serving that sentence and in 2016, he was released to parole, owing one year, one month and twenty-three days on the original eight year sentence.

After the Defendant was sentenced for the 2019 indictments, he was returned to state prison. Upon his return, DOCCS merely added the time owed on the prior convictions to the seven years imposed upon the 2017 conviction, thereby arriving at an “aggregate maximum” remaining period of state prison incarceration. DOCCS does not otherwise establish an order of priority for their records.

As a result, the Court must, as a matter of apparent first impression, determine whether the DOCCS computation of “maximum aggregate” time owed makes him eligible for resentencing on the 2017 indictment. If not, is he eligible for resentencing on the original 2009 indictments for which he received concurrent eight year sentences?⁷

The People assert that the Defendant is not eligible for resentence because the sentence imposed was less than eight years. The Defendant argues that because the “aggregate maximum” is greater than eight years, the Defendant is eligible. Neither truly address the alternative question of whether the Defendant could be eligible for resentence for the 2009 indictments, even if not eligible for the 2017 conviction. This Court determines that under either scenario, the Defendant is not eligible for resentence.

As previously noted, CPL § 440.47 permits a defendant serving a sentence of eight years or more to apply for resentence. It does not provide that a defendant serving “a sentence or sentences” or serving “a combined sentence” of eight years or more to be eligible. Had the legislature so intended, it could have easily crafted the statute to so provide. As a result, this Court determines that the DOCCS calculation of an “aggregate maximum” does not somehow convert a seven year sentence into something more.⁸

The question then becomes whether the failure of DOCCS to specify the order in which the “aggregate maximum” was to be served then permits this Court to resentence the Defendant on the 2009 indictments. Once again, this Court concludes that it does not.

CPL § 70.25(2-a) provides that “[w]hen an indeterminate or determinate sentence of imprisonment is imposed pursuant to §․70.06․⁹ and such person is subject to an undischarged indeterminate or determinate sentence of imprisonment imposed prior to the date the crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence”. Even where, as here, the Court fails to state its sentence is to run consecutively, the court “is deemed to have imposed the consecutive sentence the law requires”. People ex rel. Gill v. Greene, 12 N.Y.3d 1, 875 N.Y.S.2d 826, 903 N.E.2d 1146 (2009). Thus, pursuant to the plain language of the statute, and as noted in numerous appellate cases, the 2017 conviction sentence was to begin only once the Defendant had completed serving his sentence on the 2009 indictments. See e.g., People ex rel. Washington v. Burge, 30 A.D.3d 1066, 816 N.Y.S.2d 650 (4th Dept.), lv. den., 7 N.Y.3d 711, 823 N.Y.S.2d 770, 857 N.E.2d 65 (2006), People ex rel. Smith v. Burge, 30 A.D.3d 1066, 816 N.Y.S.2d 650 (4th Dept. 2006), Matter of Colon v. Fischer, 74 A.D.3d 1670, 903 N.Y.S.2d 800 (3d Dept.), lv. den., 15 N.Y.3d 710, 2010 WL 4008336 (2010).

As shown in the Defendant's exhibit J, he was returned to DOCCS custody on March 15, 2018. At that time he owed one year, one month and twenty-three days on his 2009 convictions. Thus, on May 8, 2019, he completed serving his sentence on the 2009 indictments. Since he has completed serving that sentence, the court is without power to modify it and, as noted, he is similarly ineligible on Indictment 17-197-17.

For the reasons set forth herein, the Defendant's application for resentence is DENIED in its entirety.

The foregoing constitutes the written Decision and Order of the Court.

FOOTNOTES

1.   The Defendant filed a pro se application pursuant to CPL § 440.47, citing only Indictment 17-197-17. For reasons set forth hereafter, the Court is also considering the other matters.

2.   The original sentencing Judge, the Honorable Kim Martusewicz, has retired and his replacement, the Honorable David A. Renzi has recused; so the matter has been transferred to the undersigned as Acting Jefferson County Court Judge.

3.   For clarity purposes the indictments will be referred to as the 2009 indictments

4.   Post release supervision sentences of three and two years, respectively, were also imposed. In addition, a number of other charges that were required to be merged into the state prison sentence were also imposed.

5.   As with Indictment 781-09, a number of lesser, merger-required convictions were also imposed.

6.   Pursuant to Penal Law § 70.45(5)(c) all of the periods of PRS merged into the longest period imposed, i.e. three years.

7.   The Court requested memoranda from the People and Mr. Matteson relative to this issue and noted that, although the Defendant's pro se application referred only to the 2017 conviction, I would consider the application to apply to all indictments. Each Counsel submitted an excellent memorandum addressing the first issue, as well as others relative to whether the defendant was, or was not, eligible for resentence for a number of other procedural reasons. Based upon the reasoning hereafter, the Court does not need to address the other arguments.

8.   CPL § 1.20(14) defines “sentence” as “the imposition and entry of sentence upon a conviction”. Section 1.20 (13) defines “conviction” as “the entry of a plea of guilty to, or verdict of guilty upon, an accusatory instrument․or to one or more counts of such instrument.” Thus, regardless of how DOCCS computes the “maximum aggregate”, it is clear that there are two separate and distinct sentences, with only the first arguably contemplated by CPL § 440.47.

9.   That section applies to second felony offenders. Defendant was sentenced as a second felony offender.

Donald E. Todd, J.