PEOPLE v. ACEVEDO (2024)

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Matthew J. D'Emic, J.), imposed May 20, 2022, upon his convictions of leaving the scene of an incident without reporting (two counts), upon a jury verdict, after remittitur from this Court for resentencing (see People v. Acevedo, 187 A.D.3d 1030, 133 N.Y.S.3d 271).

ORDERED that the resentence is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

The defendant was originally convicted, after a jury trial, of manslaughter in the second degree (two counts), criminally negligent homicide, and leaving the scene of an incident without reporting (two counts).  In a decision and order dated October 21, 2020, this Court vacated the defendant's convictions of manslaughter in the second degree and criminally negligent homicide and dismissed those counts of the indictment (see People v. Acevedo, 187 A.D.3d 1030, 1030–1031, 133 N.Y.S.3d 271).  In addition, this Court vacated the sentences imposed on the convictions of leaving the scene of an incident without reporting and remitted the matter to the Supreme Court, Kings County, for resentencing on those convictions (see id.).  The Supreme Court resentenced the defendant as a persistent felony offender to two concurrent indeterminate terms of imprisonment of 15 years to life (see Penal Law § 70.10;  CPL 400.20[1]).  The defendant appeals.

The Supreme Court erred in failing to comply with the procedural requirements of Penal Law § 70.10(2) when resentencing the defendant as a persistent felony offender.  The procedure for determining whether a defendant may be subjected to increased punishment as a persistent felony offender requires a two-pronged analysis (see CPL 400.20[1];  People v. Lydon, 209 A.D.3d 764, 174 N.Y.S.3d 894;  People v. Smith, 232 A.D.2d 586, 649 N.Y.S.2d 444).  “Initially, the court must determine whether the defendant is a persistent felony offender as defined in subdivision 1 of section 70.10 of the Penal Law, namely, that he [or she] previously has been convicted of at least two felonies, and secondly, the court must determine if it ‘is of the opinion that the history and character of the defendant and the nature and circumstances of his [or her] criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest’ ” (People v. Oliver, 96 A.D.2d 1104, 1105, 467 N.Y.S.2d 76, affd 63 N.Y.2d 973, 483 N.Y.S.2d 992, 473 N.E.2d 242, quoting CPL 400.20[1][b];  see People v. Lydon, 209 A.D.3d at 765, 174 N.Y.S.3d 894;  People v. Polite, 164 A.D.3d 1372, 1373, 83 N.Y.S.3d 607).  Before imposing such sentence, “the court is obliged to set forth on the record the reasons it found this second element satisfied” (People v. Garcia, 267 A.D.2d 247, 248, 700 N.Y.S.2d 44;  see Penal Law § 70.10[2];  People v. Bazemore, 52 A.D.3d 727, 728, 860 N.Y.S.2d 602).

Here, the Supreme Court failed to comply with the second prong of the analysis by failing to set forth, on the record, the reasons why it was “of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate[d] that extended incarceration and life-time supervision [would] best serve the public interest” (Penal Law § 70.10[2];  see People v. Rivera, 60 A.D.3d 788, 790, 875 N.Y.S.2d 173, mod 15 N.Y.3d 207, 906 N.Y.S.2d 785, 933 N.E.2d 183;  People v. Bazemore, 52 A.D.3d at 728, 860 N.Y.S.2d 602;  People v. Murdaugh, 38 A.D.3d 918, 920, 833 N.Y.S.2d 557).  Accordingly, the resentence must be vacated and the matter remitted to the Supreme Court, Kings County, for resentencing in compliance with Penal Law § 70.10(2) and CPL 400.20(7).

CONNOLLY, J.P., GENOVESI, WARHIT and WAN, JJ., concur.