[*1]
People v Witherspoon
2004 NY Slip Op 51278(U)
Decided on October 27, 2004
Supreme Court, Kings County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 27, 2004
Supreme Court, Kings County


The People of the State of New York 

against

Jamel Witherspoon, Defendant.




10258/99

Abraham Gerges, J.

Defendant moves to vacate the sentence imposed under Ind. 10258/89. In determining this motion the Court has considered defendant's motion papers, the People's reply papers, the January 3, 2001 sentencing transcript, and the Court file.[FN1] Defendant, and co-defendant Cecil Middleton, were indicted for two counts of Attempted Robbery in the Second Degree, Attempted Robbery in the Third Degree, Attempted Grand Larceny in the Fourth Degree and Criminal Possession of a Weapon in the Fourth Degree. Defendant was convicted, after a jury trial on October 19, 2000, of Attempted Robbery in the Third Degree and Criminal Possession of a Weapon in the Fourth Degree.

On January 3, 2001, after conducting a non-jury hearing pursuant to PL 70.10 and with the notice required by CPL 400.20, defendant was sentenced as a discretionary persistent felony offender to a term of incarceration of a minimum of fifteen years to a maximum of life.

On June 17, 2002, defendant, with the assistance of counsel, perfected the appeal of his judgment of conviction to the Appellate Division, Second Department. One of the points addressed on appeal was that the lower court improperly sentenced defendant as a persistent felony offender by failing to make certain factual findings. In an Opinion dated December 23, 2002, the Appellate Division, Second Department unanimously affirmed defendant's judgment, [FN2] the court among other issues, found that defendant's sentencing claim was unpreserved and without merit. On March 7, 2003 defendant's application for leave to appeal was denied by the Court of Appeals.[FN3]

Defendant claims that the New York State persistent felony offender statutes are violative of the constitutional standards in Apprendi v. New Jersey [FN4] and Ring v. Arizona.[FN5]

CPL 440.20
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CPL 430.10 prohibits a court from altering a commenced incarceration sentence, except where specifically authorized by law [FN6]. Even when a term of imprisonment has not begun, a lower court is without authority to modify a sentence if the term of the court in which the sentence was imposed has passed.[FN7] CPL 440.20 is an exception to CPL 430.10 [FN8]. The former provision provides for the vacatur of sentence, even after the commencement of an incarceration sentence, where the original sentence is illegal. If the sentence is legal, the court is not authorized to change the sentence. [FN9] CPL 440.20 does not encompass a claim that the sentence was excessive.[FN10]

In Apprendi v. New Jersey, the Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."[FN11] In Ring v. Arizona, the Supreme Court extended Apprendi to capital defendants finding that they "are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum sentence."[FN12] The Supreme Court has held that the holdings in Apprendi and Ring are not retroactive to a case on a collateral attack.[FN13]

Further, the Court of Appeals in People v. Rosen, [FN14] 96 NY2d 329, explicitly held that New York State's discretionary persistent offender statues do not violate Apprendi. Defendant's prior felony convictions "are the sole determinate of whether a defendant is subject to enhanced sentencing as a persistent felony offender," only then does the court turn to consideration of other [*3]enumerated factors to determine discretionary persistent felony offender status. [FN15] As the Court noted, prior felony convictions which enhance sentence constitute "an explicitly noted exception to the general rule in Apprendi." [FN16] The Appellate Division, Second Department post Ring has also affirmed the continuing validity of Rosen. [FN17]

This Court is bound by the principles of stare decisis,[FN18] and thus bound by Rosen, and the Appellate Division decisions adhering to Rosen. As the discretionary persistent offender determination was lawful, this Court is not authorized to change the sentence imposed.

The motion to vacate the sentence imposed for Ind. 10258/99 is hereby denied.

This constitutes the Decision and Order of the Court.

J S C

Footnotes


Footnote 1:Defendant had filed a pro se motion on March 4, 2004, which was withdrawn by Counsel by letter dated May 24, 2004. This decision addresses the issues raised in the motion made by defense counsel dated May 4, 2004.

Footnote 2:People v. Witherspoon, 300 AD2d 605 (2002).

Footnote 3:People v. Witherspoon, 99 NY2d 634 (2003).

Footnote 4:Apprendi v. New Jersey, 530 U.S. 466 (2000).

Footnote 5:Ring v. Arizona 536 U.S.584 (2002).

Footnote 6:People v Richardson, 100 NY2d 847, 850-851(2003); Matter of Pirro v Angiolillo, 89 NY2d 351, 356(1996); People v Vasquez, 88 NY2d 561, 580-581(1996).

Footnote 7:People v Chunn, 186 AD2d 262, 263(1992); People v White,121 AD2d 762, 763-764(1986); cf. Hennessy v Cunningham, 57 AD2d 298, 300(1996).

Footnote 8:People v Turner, 47 AD2d 564, 565(1975).

Footnote 9: People v Corso, 40 NY2d 578, 580(1976); People v Romain, 288 AD2d 242, 243(2001); People v Gurlakis, 160 Misc 2d 345(1994); People v Hilker, 134 Misc 2d 420, 422-423, affd 133 AD2d 986(1987); see also Vasquez, 88 NY2d 561(1996).

Footnote 10:People v Cunningham, 305 AD2d 516(2003); see People v Bronsky, 21 AD2d 981(1963).

Footnote 11:Apprendi, supra, 530 U.S. at 469.

Footnote 12:Ring, supra, 536 U.S. at 589.

Footnote 13:Schriro v. Sommerlin, US , 124 S ct. 2519, 159 LEd2d 442(2004).

Footnote 14:People v. Rosen, 96 NY2d 329(2001),

Footnote 15:Id. at 335.

Footnote 16:Id. at 334.

Footnote 17: People v. Norris, 5 AD3d 796 (Second Dept. 2004), lv denied 3 NY3d 645; People v. Hyatt, 2 AD3d 749 (Second Dept. 2003), lv denied 1 NY2d 629; see also People v. Stevens, 8 AD3d 2 (Fourth Dept.2000);

Footnote 18:Mountainview Coach v. Storms, 102 AD2d 663(1984).