PEOPLE v. APONTE

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The PEOPLE of the State of New York v. Jimmy APONTE, Defendant.

No. 765–1982.

Decided: December 31, 2013

Melanie Sarver, Assistant District Attorney, Office of the Bronx District Attorney, Defendant, Pro Se.

By motion submitted July 24, 2013, defendant moves to vacate his sentence pursuant to Criminal Procedure Law § 440.20, on the basis that it violates the Eighth Amendment of the United States Constitution. After review of the motion papers, papers on file with the court, and prior court proceedings, defendant's motion is denied.

I. Background and Procedural History

On March 23, 1983, judgment was entered against the defendant in Supreme Court, Bronx County (Cerbone, J.), convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[3] ), robbery in the first degree (Penal Law § 160.15[2] ) (two counts), assault in the first degree (Penal Law § 120.10[1] ), and criminal possession of a weapon in the second degree (Penal Law § 265.03). Upon his conviction, defendant was sentenced as follows: a term of life imprisonment with a mandatory minimum period of twenty-five years (murder conviction); a consecutive indeterminate term of fifteen years imprisonment with a mandatory minimum period of five years (assault conviction); a concurrent indeterminate term of twenty-five years imprisonment with mandatory minimum period of twelve and one-half years (each robbery conviction); a concurrent indeterminate term of twenty-five years imprisonment with a mandatory minimum period of eight and one-third years (criminal possession of a weapon conviction).

Also on March 23, 1983, the defendant was sentenced under Indictment 1254–1982 to an aggregate indeterminate term of twenty-five years imprisonment with mandatory minimum period of twelve and one-half years, imposed consecutively to the life term imposed under Indictment 765–1982.

Finally, on June 27, 1983, defendant was sentenced on his conviction for attempted murder under Indictment 770–1982 to an indeterminate term of twenty-five years imprisonment with a mandatory minimum period of eight and one-third years.

On direct appeal of his conviction under Indictment 765–1982 to the Supreme Court of the State of New York, Appellate Division, First Department, defendant claimed that: (1) his indictment and trial were premised upon an illegal arrest; (2) his placement in a line-up violated his constitutional rights; (3) the alleged murder weapon should not have been received in evidence; (4) his guilt was not established beyond a reasonable doubt; and (5) the imposed sentence should be reduced.

On April 14, 1987, the Appellate Division modified defendant's judgment of conviction by reducing the unauthorized sentence imposed on the criminal possession of a weapon to an indeterminate term of fifteen years with a mandatory minimum period of five years. His judgment of conviction was affirmed in all other respects (People v. Aponte, 129 A.D.2d 461 [1st Dept 1987] ). On April 27, 1988, the Court of Appeals denied defendant's application for leave to appeal from the Appellate Division (Hancock, J.) (People v. Aponte, 71 N.Y.2d 966 [1988] ).

On August 8, 1996, defendant moved the Supreme Court, Dutchess County (Hillery, J.) to vacate his judgment of conviction pursuant to CPL § 440.10. On December 16, 1996, Justice Hillery denied defendant's motion in its entirety.

On August 6, 1998, defendant moved the Supreme Court, Bronx County (Cerbone, J.) to vacate his judgment of conviction pursuant to CPL § 440.10 asserting the same claims. On March 8, 1999, defendant submitted a supplemental affirmation claiming that his co-defendant, Phillip Nieves, in a letter to defendant's attorney, confessed to the robbery and murder. On April 26, 1999, Justice Cerbone denied defendant's motion in its entirety.

In motion papers dated March 28, 2000, defendant sought a certificate granting him leave to appeal the denial of his CPL § 440 .10 motion. By order entered June 20, 2001, the Appellate Division denied his application.

On July 13, 2001, defendant, through counsel, filed a habeas petition with regard to Indictment 765–1982 in the Southern District of New York. On March 11, 2002, the Southern District dismissed defendant's petition (Aponte v. Artuz, No 01 civ 6404[SHS][JCF] [SDNY 2002] ).

Defendant now moves pro se to vacate his sentence pursuant to CPL § 440.20, asserting that the adult sentence imposed violates the Eighth Amendment of the United States Constitution, specifically its ban against cruel and unusual punishment, on the basis that he was seventeen years old at the time his crimes were committed.

II. Discussion

To prevail on a motion to vacate the sentence, the defendant must establish that his sentence “was unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL § 440.20[1] ). Defendant cannot, and does not, claim that his sentence was unlawful or otherwise improperly imposed. Indeed, he concedes that in 1982, when he committed the crimes for which he was convicted, he was correctly sentenced as an adult. Defendant asserts, however, that the imposed sentences have since been rendered illegal or invalid as a matter of law. He suggests that because New York presently deems a person seventeen years of age a juvenile offender, an authorized sentence may not exceed a term of life imprisonment with a minimum mandatory period of nine years. He is wrong.

It is correct that such a sentence is authorized for juvenile offenders (see PL §§ 70.05[2][a], [3][a] ). But the defendant was not a juvenile offender. CPL § 1.20(42) defines “juvenile offender” as a person who is thirteen to fifteen years of age, which is precisely what it was in 1982. And, as it relates to the felony murder conviction (PL § 125.25[3] ), CPL § 1.20(42) limits a juvenile offender to individuals fourteen and fifteen years of age. At age seventeen, then, the defendant was clearly not a juvenile offender.1

Defendant further claims his sentence violates the Eighth Amendment and its ban on cruel and unusual punishment. He argues that being seventeen years of age, and not yet an adult, the length and severity of his sentence was both flawed and inaccurate. A duly enacted statute enjoys a strong presumption of validity (People v. Pagnotta, 25 N.Y.2d 333 [1969]; Wasmuth v. Allen, 14 N.Y.2d 391 [1964] ). To successfully challenge its constitutionality, at least in the context of a sentencing statutory scheme, a defendant would need to present clear evidence that it is does not contemplate a youthful age (see e.g. Pagnotta, 25 N.Y.2d at 337). He is entirely unable to do so.

First, and most saliently, the Legislature must have recognized that an individual's youthfulness should be considered for purposes of sentencing, otherwise it would not have specifically created a “juvenile offender” designation. In so doing, it was apparently determined that a person seventeen years of age possesses sufficient maturity to be sentenced as an adult (see e.g. Wasmuth, 14 N.Y.2d at 397; I.L.F.Y. Co. Temporary State Hous. Rent Commn., 10 N.Y.2d 263, 269 [1961]; US v. Juvenile Male, 2013 WL 461220, *1 [EDNY, Jan. 30, 2013, No. 11–CR–717 [JFB] ). As noted, that designation was in effect in 1982, and remains so today.

In support of his claim, defendant relies on Miller v. Alabama (132 S Ct 2455 [2012] [unconstitutional to impose life imprisonment without parole on a defendant under the age of eighteen] ), Graham v. Florida (130 S Ct 2011 [2010] [unconstitutional to impose life imprisonment on a juvenile offender convicted of a non-homicide offense] ), and, Roper v. Simmons (125 S Ct 1183 [2005] [unconstitutional to impose death on a defendant under the age of eighteen] ). Such reliance is entirely misplaced. Although both Miller and Graham held it was unconstitutional to impose life without parole on a person under the age of eighteen, the defendant received no such sentence. In fact, he is parole eligible. No doubt he is unhappy over the prospect that the aggregate mandatory minimum periods of imprisonment may preclude him from ever being paroled, he nevertheless remains eligible for it. As for his reliance on Roper, defendant was obviously never exposed to the imposition of a death sentence.

Moreover, the People correctly argue that defendant fails to prove the sentencing statute violates the Eighth Amendment as it applies to him, i.e., sentencing him as an adult when he was seventeen at the time he committed the crime of felony murder is cruel and unusual punishment. As they point out, the claim that age, by itself, would prevent the imposition of a sentence for an A–I felony pursuant to Penal Law §§ 70.00(2)(a) and (3)(a)(i) on the basis of cruel and unusual punishment has been rejected (People v. Thompson, 83 N.Y.2d 477 [1994] [defendant seventeen years of age sentenced on an A–I drug sale conviction did not implicate the Eighth Amendment]. In assessing whether a sentencing structure is cruel or unusual, courts consider factors such as rehabilitation, deterrence, and recidivism (Thompson, 83 N.Y.2d at 477; People v.. Broadie, 37 N.Y.2d 100 [1975] ). The Court of Appeals, in addressing these factors, summarized them as “(1) the gravity of the offense, primarily in terms of the harm it causes society, but also in comparison with punishments imposed for other crimes in this State as well as with punishments for the same or similar crimes in other jurisdictions; and (2) the character of the offender and the gravity of the threat he [or she] poses to society” (Thompson at 480).

Applying these factors, nothing here evinces that the imposed sentence was in any manner disproportionate or incommensurate with the crimes he committed. The defendant was convicted of engaging in a crime spree where he murdered the victim by shooting him in the chest, and committed two armed robberies. True, the defendant was only seventeen years of age at the time. But as the People note, the havoc he wreaked, the brutality he savagely inflicted on others, and the methodical execution of his victim exudes an abject depravity unparalleled by adults of any age. Considering that he had no difficulty serving notice on society of inability, indeed his unfitness, to live within it, characterizing the imposed sentence as anything other than justifiably appropriate is simply incomprehensible.

III. Conclusion

For the reasons stated above, this court finds that defendant's sentence was lawful and valid as a matter of law, and did not violate the Eighth Amendment of the United States Constitution. Defendant's motion to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.20 is therefore denied in all respects.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

FOOTNOTES

1.  The People also note that the defendant would not have been eligible for youthful offender treatment because murder in the second degree (PL § 125.25[3] ) was, and is, a class “A–I” felony (PL § 125.25; CPL § 720.10[2][a] ). Citing People v. Drayton (39 N.Y.2d 580 [1976], they indicate that because the status of “youthful offender” is a legislatively created benefit, it carries no constitutional guarantees.

RICHARD LEE PRICE, J.

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