Sunday, July 3, 2011

Can a Challenge to an Earlier Invalid Sentence Impact Predicate Status for Sentencing on a Subsequent Felony?

Jim Eckert, Esq.
Assistant Monroe County Public Defender

Sometimes it doesn't help if the other side can see why you're doing what you're doing. Is it possible for a defendant to remove a predicate conviction by challenging an invalid sentence and demanding to be resentenced? At issue before the Court of Appeals recently was the question whether a defendant could - by sacrificing an illegally lenient sentence on a prior conviction - remove a predicate conviction by effectively moving his conviction date from before the current crime was com to after.

The answer under the facts in this case was no (People v Acevedo, 2011 NY Slip Op 05582 [decided June 30, 2011]). But in an homage to the United State Supreme Court, the Court was divided 3-3-1, and so even after reading all the opinions in the case it is not clear what it means for the future.

The primary opinion, issue by Chief Judge Lippman, states, "The threshold, and we believe dispositive, issue on these appeals is whether a resentencing sought by a defendant to correct an illegally lenient sentence is effective" to move the date of that prior conviction. The facts are these, in each case the defendant was not sentenced to post-release supervision (PRS). In each case, having caught a new felony (there was a lot of that going around), the defendant sought to vacate the prior sentences on the entirely reasonable ground that they were illegal. Of course, they were illegally beneficial to him, and this did not escape the notice of the court. "The only practical benefit defendants could possibly gain from the resentencings was to move their sentences to a later date, thus eliminating their prior crimes as predicates in their later cases. We would hold that this tactic was ineffective: in circumstances like these, the original sentencing date should be the one to be considered for predicate-felony purposes."

To the three judges participating in the primary decision, the process failed largely because it's purpose was so transparent. "By the time of their resentence motions, Acevedo and Collado had fully served the sentences originally imposed upon the convictions later used as predicates for sentence enhancement." The court assumed, arguendo, that the resentencings were not nullities, but decided, "In moving to be relieved of their original sentences and thereafter resentenced in connection with their prior felony convictions, defendants manifestly had no expectation that they would obtain "relief" from those originally imposed, fully discharged sentences. It is instead transparent, if only from the timing of their CPL 440.20 motions, that defendants' purpose was, by means of vacatur and resentence, to render their prior convictions useless as predicates to enhance punishment for the crimes they subsequently committed. Resentence is not a device appropriately employed simply to alter a sentencing date and thereby affect the utility of a conviction as a predicate for the imposition of enhanced punishment."

It seems to me that the reason these three judges held that the date was not effectively moved was that there was no benefit at all to the defendant in his underlying motion, except in the knock-on effect on his predicate status. The core of the court's reasoning is this: "it is fair to say that Sparber resentencing is not from the perspective of most defendants remedial. Ordinarily, defendants do not move for the addition of PRS to their sentences." The court's conclusion makes this clear, "The present scenarios afford no occasion to decide what effect a bona fide Sparber resentence, or any resentence other than the ones before us, should have for predicate-felony purposes. All that we would decide is that the Sparber relief these defendants obtained was not effective to avoid the penal consequences of reoffending."

It is unusual (and I think a mistake)for a court to interpret a statutory provision, not on the statute's language, but on the intentions of the person seeking the benefits of the statute. Should the outcome be different if the defendant can prove that his conscience suffered because he knew he had not paid his full debt to society? Thwarting the obvious in a few cases creates confusion in the far more common case where the purpose of the motion to vacate the prior sentence is unclear or unimportant. "You can't have this because we know why you want it" is problematic as a rule of statutory construction.

Judge Piggott and two other judges concurred, reasoning that resentencing never changes the original conviction date, in any case, ever. Arguably, this is the pro-defense position because if sentencing doesn't change when it helps us, leaving the question open if it were to hurt a defendant can only be bad.

The lone dissenter was Judge Jones, "The resentencing in each case took place after the commission of the second felony. Criminal Procedure Law § 70.06 makes absolutely clear that: 'For the purpose of determining whether a prior conviction is a predicate felony conviction . . . [the s]entence upon such prior conviction must have been imposed before commission of the present felony.'" It doesn't seem unreasonable to look to the language of a statute to determine its meaning. Yet Judge Jones was the only judge to vote that way.

So, half the majority said the defendant could not move his conviction date because, on these facts, the defendant was trying to benefit from increasing his old sentence and that's not cricket. Half the majority said the defendant could not move his conviction date because it never moves. Judge Jones, who voted that the defendant was entitled to benefit from the move, nonetheless did so based on reasoning which could conceivably produce a 4-3 vote if the move were to benefit the prosecution. On the other hand, if the Chief Judge's three votes were to change where, say, the prosecution re-opened sentencing for its own purposes (as has happened many times recently), there would appear to be four judges who would say that the DA had effectively moved the predicate to a date after a newer crime occurred.

It looks like another decision is needed before one can answer the question posed by the title to this post.

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