[*1]
People v Eugene B.
2004 NY Slip Op 51366(U)
Decided on November 10, 2004
Nassau County Ct
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2004
Nassau County Ct


PEOPLE OF THE STATE OF NEW YORK

against

EUGENE B., Defendant.




61428



Hon. Denis Dillon
District Attorney Nassau County
Mineola, New York
By: Margaret E. Mainusch, Esq.

Salvatore J. Marinello, Esq.
Salvatore J. Marinello, P.C.
Attorney for Defendant
55 Mineola Boulevard
Mineola, New York 11501

Joseph C. Calabrese, J.

Defendant was charged with criminal sale of a controlled substance in the first degree; criminal sale of a controlled substance in the second degree; criminal possession of a controlled substance in the second degree; criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree (5 counts.)

On May 5, 1987[FN1], Defendant was convicted, after plea before the Hon. Edward A. Baker, of one count of criminal sale of a controlled substance in the second degree, a class A-II felony in [*2]full satisfaction of the indictment, and based upon affidavits previously provided to the Court[FN2] Assistant District Attorney Barbara Kornblau recommended and the Court immediately sentenced Defendant to lifetime probation. Prior to accepting the plea and imposing sentence, the Court never advised Defendant of the sentencing parameters attendant to a class A-II felony or that he could be resentenced to such term if he were to violate lifetime probation. There is no evidence that the Administrative Judge of the Nassau County Courts was ever notified of the proposed plea and sentence or that he concurred therein. Additionally, the sentencing Court made no findings on the record in support of the sentence imposed (see PL 65.00(1)(b).)

On February 1, 1989, Defendant was charged with a violation of probation. He was arraigned thereon before Judge Baker on February 6, 1989 and remanded pending disposition. On May 4, 1989, Defendant admitted the violation and was released to the custody of TASC. The Court monitored Defendant's rehabilitation through TASC until January 25, 1990 at which time Judge Barker sentenced him to one year in the Nassau County Correctional Center "with lifetime probation being continued."

On April 2, 1990, "V. Paul Pennetti, Assistant Deputy Director Probation Department" advised "Laurence Leff, Chief Assistant District Attorney" as follows:

"The above-cited individual [Eugene B..., Ind. No. 61428] was convicted by plea on November 25, 1986 to Criminal Sale Controlled Substance 2 , an A-II Felony. The Hon. Edward Baker sentenced the defendant to Lifetime Probation with Restitution of $791.67 payable through Probation - said sentence imposed May 5, 1987.
"Subsequently, the Probation Department filed a Violation of Probation and on January 25, 1990, Jude Baker resentenced the defendant to One Year Nassau County Correctional Center, Lifetime Probation Continued.
"It is Probation's contention that this sentence is not permissible under the existing Articles of the Penal Law; pursuant to Sec. 440.60 of the CPL, I am referring this matter to you for appropriate action."


The Court jacket states that on April 12, 1990 Judge Baker, "vacated and set aside" the "sentence of May 5, 1986" (sic) and resentenced Defendant to "time served and lifetime probation." The minutes of the resentencing indicate somewhat differently:
[DEFENSE COUNSEL]: If your Honor pleases, sometime later in [*3]January through an oversight, my client was erroneously sentenced to a year. I understand after a conference that your Honor needs to resentence retroactively to six months and time served.
I have advised my client of it, and admonished him and told him of the Court's leniency. He swears that he will never be back.
For that what your Honor is about to do, I, on behalf of my client, wish to express my thanks and have no objection to the resentence.
[ADA]: I think the subsequent sentence would be that he be restored to probation without jail time.
THE COURT: That will be the sentence. The previous sentence is set aside, vacated. The defendant is sentenced to restored to probation.

***

THE COURT: Don't come back. I have some very serious options available to me.

[DEFENSE COUNSEL]: I told him.

However, the Court did not advise Defendant of the range of "very serious options", to wit, the sentencing he faced if he violated probation.

At this time, Defendant had served 194 days of actual jail time - 28 days (from March 27, 1985 to April 23, 1985) prior to his original sentence and 166 days (from February 6, 1989 to May 4, 1989 and January 1, 1990 to April 12, 1990) after his original sentence to his April 12, 1990 resentence. In this regard, the mere fact that Defendant remained in custody in excess of six months before resentencing does not, in the absence of any other illegality, render the "time served" element of the sentence allegedly excessive. (See, People v. Marinaccio, 297 17D2d 754.)

On July 25, 1991, Defendant was again charged with a violation of probation. Defendant admitted the violation on September 11, 1991 and was sentenced. The Court jacket states "sentence is probation sentence of January 25, 1990 vacated and set aside. Sentence is New York State Department of Corrections Life - 3 yrs." The commitment sent to the State Department of Correctional Services likewise notes the term of 3 years to life and that "sentence of January 25, 1990 vacated and set aside."

Subsequent to Defendant's initial release from state prison he has been charged with multiple parole violations and has served substantial additional periods of incarceration. A current violation of parole is pending based on a charge of criminal contempt in the first degree for his alleged violation of an order of protection.

Defendant moves for an order vacating and setting aside the sentences of January 25, [*4]1990, April 12, 1990 and September 11, 1991 as having been illegally imposed and to bar further prosecution on the indictment upon the grounds of double jeopardy.

Defendant does not challenge the validity of his original plea or the sentence imposed on May 5, 1987 (see, People v. David, 65 NY2d 809, aff'g 102 AD2d 551.) Defendant does, however, claim that this plea and sentence implicates his double jeopardy claim since he was not advised at that time of the full range of sentencing that the Court could impose for a class A-II felony, to wit, that the sentences imposed on January 25, 1990, April 12, 1990 and September 11, 1991 exceeded his "legitimate expectations of what the final sentence should be," i.e., lifetime probation.

The January 25, 1990 sentence was clearly illegal insofar it purported to impose a sentence in excess of six (6) months and continue Defendant on probation (People v. Latzen, 165 AD2d 912.)

In Pirro v. Angiolillo, 89 NY2d 351, the Court held that where legally imposed, the imprisonment part of a "split sentence" (PL 60.01(2)(d)) is a penalty that exists separate and apart from the probationary term and cannot be altered once its service has begun.

However, a different rule applies to an illegally imposed sentence.

With regard to the April 12, 1990 proceeding wherein Judge Baker set aside and vacated the "May 5, 1986" (sic) sentence and resentenced Defendant to time served and continued lifetime probation, the Court has the inherent power to correct an illegal sentence (see, January 25, 1990) over Defendant's objection and impose a legal sentence when the corrected sentence falls within the sentence range which the Court initially advised Defendant of at the time of the plea (People v. Williams, 87 NY2d 1014; People v. Minaya, 54 NY2d 360.)

In Williams, supra, the defendant pleaded guilty to burglary in the second degree and, at the time of the plea, was told by the court that he could be sentenced to up to 15 years imprisonment. Although he was a first felony offender he was subsequently sentenced to a predicate felony sentence of 3½ to 7 years imprisonment. On its own motion, the court, thereafter, corrected its error and resentenced the defendant to 3½ to 10½ years in prison, a sentence greater than initially imposed but well within the defendant's bargained-for expectation. The Court of Appeals held

"Here the trial court had the inherent power to correct an illegal sentence. Defendant's claim of double jeopardy must also be rejected. That claim would be colorable only if the defendant's sentence had been increased beyond his legitimate expectations of what the final sentence should be. In view of the court's statement during the plea proceedings that the defendant could receive up to 15 years in prison, there could be no expectation of finality on his part with respect to the lesser and illegal sentence."


The rule in Williams was further explained in People v. De Valle, 94 NY2d 870 wherein [*5]the Court of Appeals again held that a trial court has the inherent power to correct any illegal sentence, even when it results in a more severe sentence than initially imposed.
"Here, however, there is a factor not present in Williams, namely that in order to correct he sentence to comply to comply with the requirements of Penal Law § 70.25(2-a,) the court would have to impose a more severe sentence than the sentence originally promised. In People v. Selifoff, 35 NY2d 227, 239, this Court held that if a court made a sentencing promise to a defendant and was unable to fulfill it, the defendant had a right to withdraw the guilty plea and to be restored to pre-plea status. Defendant here did not seek to withdraw his guilty plea and did not demonstrate on the record before us that he detrimentally relied on the illegal sentence in a way that could not be rectified by restoring him to his pre-plea status if he so desired."


In Minaya, supra, the defendant pled guilty to attempted robbery in the first degree with the Court promising a maximum indeterminate term of imprisonment of eight years. At sentence the Court sentenced the defendant to three years. After the defendant had commenced serving his sentence, the court realized its mistake and on its own motion, resentenced the defendant, nunc pro tunc to eight years.

Sustaining the lower courts resentence, the Court of Appeals held that insofar as the defendant was resentenced to the term promised at the time of his plea the error in the initial sentence could be corrected a few months later, without either violating the statutory prohibition against changing sentences or the defendant's right under the double jeopardy clause.

The following are evident from the history of this case - (1) the sentencing Court failed to follow the statutory mandates of PL 65.00(1)(b) as conditions precedent to imposing a sentence of lifetime probation (People v. David, 65 NY2d 809, aff'g 102 AD2D 551); (2) Defendant was never advised of the sentencing parameters of his A-II felony, to wit, that he could be sentenced for up to 81/3 to life if he violated the bargained for lifetime probation; (3) the January 25, 1990 re-sentence for a violation of probation was both illegal and without the sentencing parameters of which Defendant had been advised at the time of his plea; (4) the April 12, 1990 sentence, including time served, while statutorily permissible, was also in excess of the sentence Defendant was advised at the time of his plea; (5) the July 25, 1991 sentence while statutorily permissible was likewise greater than the maximum sentence Defendant was advised he could receive at the time of his plea; and finally, (6) Defendant's subsequent sentences for parole violations were based on the resentence of July 25, 1991.

While the Court is cognizant that the original plea and sentence was not imposed in accordance with law it does not have the inherent power to vacate such. (See, Campbell v. Pesce, 60 NY2d 165; Kisloff v. Covington, 73 NY2d 445.)

The Double Jeopardy Clause consists of three separate guarantees: [1] "It protects [*6]against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense" (North Carolina v. Pearce, 395 US 711; People v. Biggs, 1 NY3d 225.)

Defendant contends that this case falls in the third category. The proscription against multiple punishments for the same offense are typically argued within the context of concurrent verus consecutive sentences (see, People v. Gonzalez, 99 NY2d 76; People v. Losicco, 181 M2d 860) or where a defendant had acquired a legitimate expectation of finality in the maximum term previously imposed (People v. Trimm, 252 AD2d 673.)

While Defendant argues that his expectation of finality was for a sentence not to exceed lifetime probation without further jail, his argument is belied by the minutes of the April 12, 1990 resentence wherein the sentencing Court advised him that it had "some very serious options available" and by the conditions of probation he signed on May 5, 1987 which state:
Commission of an additional offense other than a traffic infraction as well as violation of any other following conditions constitutes grounds for the revocation of the Accordingly of probation and imposition of a term of imprisonment as specified in the New York State Penal Law and Criminal Procedure Law.


Double jeopardy is, accordingly, not implicated.

The problem lies in that both the sentencing Court's failure at the plea to advise Defendant of the range of sentencing that could be imposed and by the Court's failure to follow the conditions precedent mandated by PL 65.00(1)(b.)

Accordingly, the case shall appear on the calendar of December 8, 2004 for Defendant, if he be so advised, to move to vacate his plea and sentence of May 5, 1987, or any other motion he deems to be proper under the facts herein. Otherwise, denied.

The People shall, forthwith, prepare the requisite order to produce to insure Defendant's presence in Court on December 8, 2004.

SO ORDERED.

E N T E R

Dated: November 10, 2004

Joseph C. Calabrese, JCC

Footnotes


Footnote 1:The Court jacket indicates this May 5, 1986 as the date of plea and sentence and although the minutes indicate that the plea and sentence occurred on May 5, 1987. Based on the case history on the back of the Court jacket the 1987 date is the correct one.

Footnote 2: There are no affidavits in the Court file and none have been provided by the People in their Affirmation in Opposition to Defendant's Motion.