PEOPLE v. BURGOS

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The PEOPLE of the State of New York, Respondent, v. Ruben BURGOS, Defendant–Appellant.

Decided: June 30, 2015

ACOSTA, J.P., SAXE, DeGRASSE, RICHTER, JJ. Seymour W. James, Jr., The Legal Aid Society, New York (Laura Boyd of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered January 26, 2011, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the second degree, sentencing him to concurrent terms of three years and three and one-half years respectively, and ordering forfeiture of $34,505, affirmed.

At sentencing, defendant and the People executed, and the court so-ordered, a stipulation wherein defendant agreed to forfeit, pursuant to CPL 220.50(6), the sum of $34,505 seized at the time of his arrest on drug charges. The stipulation bore the criminal caption “THE PEOPLE OF THE STATE OF NEW YORK - against-Ruben Burgos, Defendant.” After the stipulation was executed, the court sentenced defendant to the promised term of imprisonment. Defendant now appeals from the judgment of conviction seeking to vacate the forfeiture stipulation.

At the outset, we reject the People's contention, adopted by the dissent, that this appeal is not properly before us because the forfeiture was not part of the judgment of conviction. Pursuant to Penal Law § 60.30, a court has the authority to order a forfeiture of property, and any order exercising that authority “may be included as part of the judgment of conviction.” In People v. Detres–Perez (127 AD3d 535 [1st Dept 2015] ), relying on Penal Law § 60.30, this Court recently found that a forfeiture agreement was part of the judgment of conviction and thus reviewable on the appeal from the judgment. Likewise here, the court's so-ordering of the stipulation at the time of sentencing rendered it part of the judgment of conviction and reviewable on this appeal as of right (see CPL 450.10). Contrary to the dissent's position, we do not conclude that Penal Law § 60.30 authorizes the inclusion of forfeiture as part of a defendant's sentence. Rather, that provision allows a court to order forfeiture as a separate component of the judgment of conviction (see People v. Carmichael, 123 AD3d 1053 [2d Dept 2014] [“although not an authorized component of a criminal sentence[,]” “an order of forfeiture pursuant to a valid settlement of a civil forfeiture claim may be included as part of the judgment of conviction”] ). The dissent fails to convincingly distinguish this Court's recent precedent in Detres–Perez and the Second Department's decision in Carmichael. The cases relied upon by the dissent do not require us to hold that defendant's challenge is not reviewable on this appeal. In People v. Smith (15 NY3d 669 [2010] ), the Court found that the registration requirements of New York City's Gun Offender Registration Act (GORA) were not part of the defendant's sentence or otherwise subsumed within the judgment of conviction (id. at 673). In reaching that conclusion, the Court reasoned that neither the Penal Law nor the Criminal Procedure Law authorizes a sentencing court to impose GORA registration (id.). Here, in contrast, Penal Law § 60.30 explicitly authorizes the inclusion of a forfeiture order as part of the judgment of conviction. Nor does People v. Abruzzese (30 AD3d 219 [1st Dept 2006], lv denied 7 NY3d 784 [2006] ) require a different result. Unlike Abruzzese, where the sentencing court did not order any forfeiture, the court here explicitly so-ordered the forfeiture stipulation at the time the sentence was pronounced. Finally, the omission of the forfeiture order from the sentence and commitment sheet does not render the order unreviewable since a forfeiture, although not a component of a criminal sentence, can nevertheless be part of the judgment of conviction (see People v. Carmichael, 123 AD3d at 1053; Penal Law § 60.30).

The appeal being properly before us, the judgment of conviction should be affirmed. At sentencing, defendant did not raise any of his current appellate challenges to the stipulation, seek to withdraw his plea, or otherwise express any unwillingness to proceed with sentencing if forfeiture was a condition of the plea. Thus, defendant's claims are unpreserved (see People v. Detres–Perez, 127 AD3d at 535), and we decline to reach them in the interest of justice.

As an alternative holding, we reject the claims on the merits. Defendant contends that the forfeiture stipulation is not enforceable because the procedures set forth in Penal Law § 480.10 were not followed. The stipulation makes clear, however, that the forfeiture was governed by CPL 220.50, not Penal Law § 480.10 (see People v. Rodriguez, 123 AD3d 631 [1st Dept 2014] ). Any failure to strictly adhere to the procedures set forth in CPL 220.20 would not be a basis for reversal here in light of defendant's acknowledgment, in the stipulation, that he agreed to forfeit the money as a condition of his plea. Contrary to defendant's contention, there is no basis to conclude that the court coerced him to execute the stipulation, or that the stipulation was not otherwise entered into knowingly and voluntarily. Nor is there any showing that the court specifically required defendant to execute the stipulation before sentencing.

On this appeal, defendant seeks to challenge his forfeiture of $34,505 pursuant to a written stipulation that he signed on the date of his sentence. Defendant contends that the forfeiture was not carried out in the manner prescribed by Penal Law § 480.10. Accordingly, he argues that “[b]ecause the forfeiture mandate was not authorized as a matter of law, the judgment should be modified on the law by vacating the forfeiture of appellant's money.” The stipulation was so-ordered by the court and contains a recital that the money was subject to forfeiture as “a condition of defendant's plea ․” Nonetheless, I dissent and would dismiss this appeal because I disagree with the majority's premise that the forfeiture was part of the judgment of conviction.

“[N]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” (People v.. Pagan, 19 NY3d 368, 370 [2012] [internal quotation marks and citation omitted] ). As relevant here, CPL 450.10 authorizes a defendant to appeal only from a judgment rendered in a criminal case (see People v. Smith, 15 NY3d 669, 673 [2010] ). “A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence” (id. [internal quotation marks and citation omitted] ). For the reasons stated below, the forfeiture, which defendant asks us to vacate, was not part of his guilty plea or his sentence. Accordingly, it was not part of a judgment of conviction within the contemplation of CPL 1.20(15) and 450.10.

As demonstrated by the minutes, the forfeiture was not mentioned at all during defendant's January 11, 2011 plea colloquy. Therefore, it could not have been part of the plea. Nor was the forfeiture part of the January 26, 2011 sentence since it was not included as part of the court's pronouncement of sentence. CPL 380.20 and 380.40(1) collectively require that courts pronounce sentence in every case where a conviction is entered (see People v.. Sparber, 10 NY3d 457, 470 [2008] ). This means that a forfeiture of property would have to be included as part of the sentence pronounced in order to be regarded as such (cf. People v. Guerrero, 12 NY3d 45, 47 [2009] [finding that the mandatory surcharge and crime victim assistance fee need not be pronounced by judge at sentencing proceeding] ). As shown by the minutes, the only reference to the forfeiture on the sentencing day was the following:

“[PROSECUTOR]: People rely on the promise. I believe forfeiture was part of the agreed upon sentence.

“[DEFENSE COUNSEL]: It was not.

“[THE COURT]: I don't recall.

“[DEFENSE COUNSEL]: Based on my memory and file that was never discussed.

“[THE COURT]: What is the amount?

“[PROSECUTOR]: Thirty four thousand five hundred dollars.

“[THE COURT]: Pretty significant.

“[DEFENSE COUNSEL]: Can I have the forfeiture agreement?

“[PROSECUTOR]: Yes.

“[DEFENSE COUNSEL]: Judge, I am handing up the executed forfeiture agreement ․”

There was no other mention of the forfeiture during the sentencing. The foregoing colloquy does not approach a pronouncement of the forfeiture as part of the sentence as required under CPL 380.20 and 380.40(1). For this reason and because of its omission from the plea colloquy, the forfeiture is not part of the judgment of conviction. Also, the fact that the stipulation apparently did not surface and was not executed until the sentencing date further refutes any argument that it was a condition of the plea. Moreover, the stipulation contains no reference to, let alone a recital that it was to be made part of defendant's sentence. The majority posits that “the court's so-ordering of the stipulation at the time of sentencing rendered it part of the judgment of conviction.” However, the majority stops short of attributing the forfeiture to either the plea or the sentence. By operation of CPL 1.20(15) and 450.10, it must be part of one or both to be appealable as of right.

This case is controlled by People v. Abruzzese (30 AD3d 219 [1st Dept 2006], lv denied 7 NY3d 784 [2006] ) in which we dismissed an appeal on the ground that the forfeiture in that case was not part of the judgment of conviction. To be specific, in Abruzzese, we dismissed a “[p]urported appeal from [a] forfeiture agreement ․ as taken from a nonappealable paper” (id. at 220). The same unavailable relief is sought here inasmuch as defendant's opening brief calls for an order “vacating the forfeiture of money recovered from appellant.” Significantly, the forfeiture requirement does not appear on defendant's “Uniform Sentence and Commitment” form (commitment sheet). This omission confirms my belief that it is not part of the judgment of conviction (see Smith, 15 NY3d at 674 [analogous omission from a commitment sheet confirmed the Court's conclusion that requirements of registration and notice under New York City's Gun Offender Registration Act1 were not part of a sentence] ). The majority cites People v. Carmichael (123 AD3d 1053 [2d Dept 2014] ), in which the court held that “an order of forfeiture pursuant to a valid settlement of a civil forfeiture claim may be included as part of the judgment of conviction” (id. at 1053 [citation omitted] ). The reference to Carmichael, however, merely begs the central question of how a forfeiture becomes part of a judgment. People v.. Detres–Perez (127 AD3d 535 [1st Dept 2015] ) is distinguishable insofar as we found in that case that the “forfeiture agreement was part of the judgment of conviction” (id.). As stated above, the record here supports no such finding. As the majority notes, Penal Law § 60.30 authorizes the inclusion of a forfeiture or other civil penalty as part of a judgment of conviction. The problem here is that no inclusion in a manner required by law has taken place. I find it unnecessary to address defendant's remaining arguments in light of the fact that the appeal should have been dismissed in the first instance.

FOOTNOTES

1.  Administrative Code of the City of New York §§ 10–601 et seq.

All concur except DeGRASSE, J. who dissents in a memorandum as follows: