PEOPLE v. YOUNG (2009)

At issue is whether defendant must be adjudicated a persistent violent felony offender (Penal Law § 70.08), should he be convicted of a violent felony in the above-captioned indictment.   Initially the Court notes that this matter does not call for a general advisory opinion but rather for the resolution of an issue of paramount and immediate importance to the parties and to the advancement and ultimate disposition of this case.   That is the reason both parties have consented to the Court's determination of this critical issue at this pre-conviction juncture.¹

FACTUAL BACKGROUND

Defendant is currently charged with burglary in the second degree and other related charges.   On March 17, 2003 defendant, having pled guilty to robbery in the second degree under the Indictment Number 1121-02 in Queens County before the Honorable Barry Kron, was sentenced as a violent predicate felon to a term of seven years incarceration.   No statutorily mandated period of post release supervision (“PRS”) was imposed at sentence nor was defendant advised about PRS at his plea.   In a January 25, 2008 Order Justice Kron denied defendant's motion to vacate his sentence to exclude a period of PRS which had been imposed by the Department of Corrections (DOCS).²  Instead, the Court held that since DOCS was without authority to impose PRS defendant's sentence did not and would not include a period of PRS. In a subsequent June 25, 2008 Order Justice Kron noted that the Division of Parole had informed the Court in writing that there may be a question of the lawfulness of defendant's non-PRS sentence in light of the recent Court of Appeals decision in Matter of Garner v. New York State Dept. of Correctional Servs., 10 N.Y.3d 358, 859 N.Y.S.2d 590, 889 N.E.2d 467 (2008) and People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008).   Justice Kron declined to re-calendar the matter and ordered DOCS to calculate defendant's term of imprisonment without a period of PRS.³

ANALYSIS

Notwithstanding that defendant did not appeal from his Queens conviction this Court agrees with defendant that he has not forfeited his right to independently challenge the constitutionality of his plea and the legality of his sentence within the context of a predicate felony proceeding.   See, People v. Johnson, 196 A.D.2d 408, 601 N.Y.S.2d 103 (1st Dept. 1993);  compare People v. Foley, 96 A.D.2d 866, 465 N.Y.S.2d 754 (2d Dept. 1983).   Although a defendant may challenge for the first time on appeal his adjudication as a predicate felon based upon an underlying illegal sentence [see People v. Robles, 251 A.D.2d 20, 21, 673 N.Y.S.2d 654 (1st Dept. 1998) (and cases cited therein), lv. denied 92 N.Y.2d 904, 680 N.Y.S.2d 68, 702 N.E.2d 853 (1998) ] the People have failed to cite any binding precedent requiring defendant to perfect such an appeal in order to preserve the issue before this Court.   The Court does not now reach or decide the issue of whether defendant's Queens plea was unconstitutional,⁴ but I do conclude that the sentence imposed without a period of PRS must be deemed an illegal sentence.   See, People v. Sparber, supra;  Matter of Garner, supra;  People v. Hill, 9 N.Y.3d 189, 849 N.Y.S.2d 13, 879 N.E.2d 152 (2007);  compare People v. Curry, 50 A.D.3d 820, 854 N.Y.S.2d 319 (2d Dept. 2008).   Accordingly, the Court now holds that defendant's Queens conviction under indictment No. 1121-02 may not be used as a predicate to enhance any potential sentence in the above-captioned case.

IT IS SO ORDERED.

FOOTNOTES

1.   If defendant is determined not to be a persistent violent felon, he will avoid a mandatory life sentence.   Moreover, he has expressed an intention to plead guilty to the top count of burglary in the second degree (Penal Law § 140.25) as a second violent felony offender [Penal Law § 70.06-3(c) ] if he is not found to be a persistent violent felon.   Defendant's previous adjudication as a second violent felony offender, based as it is on a violent felony conviction in New York Supreme Court under indictment # 3345-85 and subsequent prison sentences, is binding on this defendant for purposes of the present proceeding.   See, CPL 400.15-8;  People v. Tocci, 52 A.D.3d 541, 859 N.Y.S.2d 719 (2d Dept. 2008);  People v. McFadden, 6 A.D.3d 461, 773 N.Y.S.2d 884 (2d Dept. 2004), error coram nobis denied 11 A.D.3d 564, 782 N.Y.S.2d 653 (2d Dept. 2004).

2.   Defendant was then being held on an alleged violation of his PRS, even though the Court had never imposed any PRS as part of defendant's 2003 sentence.

3.   Although the matter was calendared and a record made in open court, Justice Kron did not categorize the proceeding as a re-sentencing and neither defendant nor defense attorney was present.

4.   Defendant to my knowledge has never challenged the voluntariness of his plea before Justice Kron or in any other form, including during this proceeding, thereby undercutting any claim that the plea itself was unconstitutional.

JOSEPH KEVIN McKAY, J.