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Supreme Court, New York County, New York.

The PEOPLE of the State of New York v. Michael BURNSIDE, Defendant.

Decided: August 30, 2006

Robert M. Morgenthau, District Attorney (William Schaeffer of counsel), for plaintiff. Lawrence DiGiansante, for defendant.

The defendant, Michael Burnside, was convicted after a jury trial of criminal sale of a controlled substance in the third degree (PL 220.39(1)).   On the date fixed for sentence, July 13, 2006, the People filed a statement of predicate violent felony conviction for drug offender (the “ statement”) which was read to the defendant, alleging that the defendant previously had been convicted of a felony (assault in the first degree (PL 120.05)) on July 15, 1993 and that the defendant had been incarcerated in state prison from August 4, 1993 to March 16, 2001.

When questioned about the accuracy of the statement, the defendant admitted that he was the person convicted by guilty plea of assault in the first degree on July 15, 1993 and stated that he had no constitutional challenge to the validity of that conviction.   Nor does the defendant controvert the allegation that he was incarcerated from August 4, 1993 to March 16, 2001.

However, the defendant contends that, when he was sentenced on July 15, 1993, as a predicate felony offender, he had not been furnished with a predicate felony statement and was not questioned about the accuracy or validity of the underlying conviction which made him a predicate felon on July 15, 1993.   The defendant further argues that the sentence of July 15, 1993 was unlawful since it was based upon his status as a predicate felony offender although he had not been properly adjudicated as such.

The significance of defendant's contention, that his 1993 sentence was unlawful, is that the People now rely upon the defendant's incarceration between August 4, 1993 to March 16, 2001 to toll the ten-year limitation on the use of a prior felony conviction to enhance the sentence now to be imposed.

The Penal Law provides that a prior felony conviction cannot serve as a predicate for enhanced punishment if the sentence was imposed more than ten years before the commission of the felony on which the defendant presently stands convicted (PL 70.06[1][b][iv] ). However, if the defendant has been incarcerated “for any reason between the time of the commission of the previous felony and the time of commission of the present felony” the period of incarceration “shall be excluded” in calculating the ten-year period.  (PL 70.06[1][b][v] ).

Although the defendant does not deny the fact of his incarceration during the relevant period, he contends that such incarceration was unlawful, for the reason set forth above, and, thus, may not be used to toll the ten-year exclusion.

The Court of Appeals has held that incarceration pursuant to an unconstitutional conviction may not be used to toll the ten-year exclusion.   People v. Love, 71 N.Y.2d 711, 530 N.Y.S.2d 55, 525 N.E.2d 701 (1988).   In People v. Dozier, 78 N.Y.2d 242, 573 N.Y.S.2d 427, 577 N.E.2d 1019 (1991), the Court of Appeals extended that disqualification to incarceration pursuant to a conviction which had been vacated for newly discovered evidence under CPL 440.10(1)(g) and the indictment was subsequently dismissed on the People's motion.

While the defendant's challenge to his incarceration does not rest on constitutional grounds nor on vacateur of the underlying conviction, the rationale of Love and Dozier appears to be that an unjustified period of incarceration, pursuant to an invalid sentence, may not be used to subject a defendant to enhanced punishment.   cf. People v. O'Garra, 1 Misc.3d 901(A), 2003 WL 22888854 (Sup.Ct.Bx.Co.2003).   Thus, the court finds it appropriate to examine whether the defendant preserved the claim he now advances and, if so, whether it has merit.

 It is well-settled that a failure to file a predicate felony statement prior to sentencing renders the sentence invalid as a matter of law and requires resentencing.  People v. Camble, 17 A.D.3d 235, 793 N.Y.S.2d 393 (1st Dept.2005);  People v. DeFayette, 16 A.D.3d 708, 790 N.Y.S.2d 301 (3d Dept.2005);  People v. Pierre, 8 A.D.3d 904, 780 N.Y.S.2d 389 (3d Dept.), lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 (2004).

 Defendant's contention, that a predicate felony statement was not filed when he was sentenced in 1993 is belied by the contents of the court file of that case of which this court is entitled to take judicial notice.1  In that court file is a predicate felony statement, dated June 21, 1993, alleging that the defendant had previously been convicted of criminal sale of a controlled substance in the third degree on June 28, 1991.   The court's worksheet in that file contains an entry that the defendant was adjudicated a predicate felony offender.   In addition, a transcript of the proceeding held on July 15, 1993, certified by the court reporter, also evidences that the defendant had been properly adjudicated a predicate felony offender before the 1993 sentence was imposed.   But most significantly, the transcript of June 21, 1993, also certified by the court reporter, indicates that, at the time of his plea, the following exchange took place between the court and the defendant.

THE COURT:  Now, Mr. Burnside, I understand you have a previous felony conviction.   You were convicted here in New York County on June 28 of 1991 of criminal sale of a narcotic drug;  is that correct?


THE COURT:  And you got one to three years on that?


THE COURT:  Now, sir, this previous felony conviction is being used to increase your punishment in this case.   Because you're a predicate felon, you must get more time than you would if you weren't a predicate.   You have the right under the law to challenge this previous felony on constitutional grounds.   For example, if you didn't have a lawyer or if the judge didn't give you the promised sentence or if you were forced to take the plea, those would be examples of constitutional challenges.   Have you discussed this matter with Ms. Messina, your attorney?


THE COURT:  And do you have a challenge to this previous felony conviction?

THE DEFENDANT:  Pardon me.

THE COURT:  Do you have any challenge to this previous felony conviction?


(Confers with counsel.)

THE DEFENDANT:  I have no problem.

THE COURT:  The defendant is adjudicated a predicate felony offender.

THE COURT:  This is a violent felony conviction.   If you get into trouble in the future, this conviction as well as your previous felony conviction will be used to increase your punishment in any future case.

Do you understand that?


 There is a further basis for rejecting defendant's challenge to his status as a prior felony offender for sentence purposes.   By not raising that issue on a direct appeal from his 1993 conviction and adjudication, and by not seeking relief by means of a post-judgment motion, the defendant has waived his right to object and the question of the propriety of his adjudication as a prior felon is no longer open. (see, CPL 400.21;  People v. Loughlin, 66 N.Y.2d 633, 495 N.Y.S.2d 357, 485 N.E.2d 1022 (1985);  People v. Gines, 6 A.D.3d 336, 775 N.Y.S.2d 147 (1st Dept.2004);  People v. Levine, 257 A.D.2d 478, 684 N.Y.S.2d 520 (1st Dept.1999)).

Accordingly, the court finds that the defendant's incarceration from August 4, 1993 to March 16, 2001 was pursuant to a validly imposed sentence after he was properly adjudicated a prior felony offender.   The period of that incarceration properly tolls the calculation of the exclusionary period and, thus renders the defendant a predicate violent felony offender for purposes of sentence in the instant case.

This opinion constitutes the decision and order of the court.


1.   As a general rule, a court may take judicial notice of its own records in the case before it (Casson v. Casson, 107 A.D.2d 342, 344, 486 N.Y.S.2d 191 [1st Dept.1985];  Weinberg v. Hillbrae Bldrs., 58 A.D.2d 546, 396 N.Y.S.2d 9 [1st Dept.1977];  Prince, Richardson on Evidence Section 9-301 [Farrell 11th ed.] ), or in another action in the same court.  (Matter of Ordway, 196 N.Y. 95, 89 N.E. 474 [1909];  People v. Dritz, 259 App.Div. 210, 18 N.Y.S.2d 455 [2d Dept.1940];  Devine v. Melton, 170 App.Div. 280, 156 N.Y.S. 228 [1st Dept.1915];  People v. Perez, 195 Misc.2d 171, 175, 757 N.Y.S.2d 711 [Crim. Ct. N.Y. Co.2003] ).


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