Supreme Court, New York County, August 7, 2020

David Gray for defendant.

Cyrus R. Vance, Jr., District Attorney (Brian D. Foley of counsel), for plaintiff.

Defendant moves to vacate his sentence pursuant to CPL 440.20 (1) on the grounds that it now constitutes cruel and unusual punishment. He seeks to be re-sentenced under CPL 440.20 (4) to time served plus five years' postrelease supervision. The People oppose the motion. For the reasons that follow, the motion is denied.

The court has had access to its computerized files, although not to its physical records and files, of these two indictments. The court has also reviewed the published decisions of the Appellate Division, First Department, affirming defendant's conviction on indictment No. 08614-00,^[FN2] and of the United States District Court for the Southern District of New York denying his petition for a writ of habeas corpus,^[FN3] both of which supply facts relevant to this motion.

The charges in these two indictments arose out of a vicious attack on Timothy Moses in the early hours of November 14, 1999, inside and outside Club Monaco in New York County (2009 WL 3241292, *2-3, 2009 US Dist LEXIS 97399, *3-8). Moses, a welder and budding rap artist, was there to attend{**69 Misc 3d at 427} one birthday party, while defendant was there with Ralph Alicea and other members of Alicea's drug trafficking organization to attend a different party (2009 WL 3241292, *2, 2009 US Dist LEXIS 97399, *3-4). At some point Moses got angry that Alicea was staring at him. Moses confronted him, which led to " 'aggressive' words and gestures" [*2]between them; then "Alicea smashed Moses in the mouth with a champagne bottle, shattering his teeth" (2009 WL 3241292, *2, 2009 US Dist LEXIS 97399, *4). After Moses and Alicea's group were all expelled from the club, Alicea and several others, including defendant, approached Moses in the street. Defendant was carrying a knife (2009 WL 3241292, *2, 2009 US Dist LEXIS 97399, *4-5).

Moses thought defendant was holding a box cutter or razor and was afraid he was going to cut him, so Moses punched defendant in the face (2009 WL 3241292, *3, 2009 US Dist LEXIS 97399, *5). "Alicea gave the group orders to attack and the group kicked, punched, and stabbed Moses" (2009 WL 3241292, *3, 2009 US Dist LEXIS 97399, *6). Alicea also "yelled, 'Kill the motherfucker,' and [defendant], who was standing right next to Alicea, made a 'jabbing' or 'socking' motion towards Moses's body" (id.). A member of Alicea's organization who subsequently cooperated with the prosecution "saw Alicea hold Moses in a headlock and watched [defendant] drop the casing on his knife and stab Moses . . . 'ripp[ing him] from his chest going down' " (id.). As Moses tried to run away, another person smacked him over the head with an aluminum bat, splitting open his forehead. Alicea's group fled (id.).^[FN4]

Moses was left on the street, where a police officer found him "unresponsive, unconscious, and covered in blood" (2009 WL 3241292, *3, 2009 US Dist LEXIS 97399, *7). A paramedic who arrived at the scene testified that, in addition to having an injury to his forehead, "Moses was . . . bleeding profusely from 'a gaping wound that looked like an incision that would have been done with like a razor . . . from the right shoulder over to the midline' and a 'stab wound to his lower right side . . . below the rib cage.' " (2009 WL 3241292, *3, 2009 US Dist LEXIS 97399, *7-8.) The treating emergency room doctor testified that, in addition to blunt head trauma and a laceration on the middle of his forehead, Moses had a laceration across his chest and a puncture wound "at the base of his rib cage" (2009 {**69 Misc 3d at 428}WL 3241292, *3, 2009 US Dist LEXIS 97399, *8). His bowel was punctured, which required doctors to check for air in his abdominal cavity. He received 30 stitches to close the wound on his forehead and 69 staples "to close the laceration that ran across his chest and over his shoulder" (id.).

"Moses's recovery required three days in the hospital and several months of extensive outpatient treatment. He had no vision in his right eye for two months, and needed physical therapy to regain motion in his arm, where his muscles were cut. Additionally, he could not eat and talk normally for several months because his teeth were shattered and required a brace to keep them in place." (2009 WL 3241292, *3, 2009 US Dist LEXIS 97399, *8-9 [citations omitted].)

Several members of Alicea's drug organization were indicted for drug conspiracy in January 2000 and cooperated with the police (2009 WL 3241292, *4, 2009 US Dist LEXIS 97399, *9). Defendant was also indicted for drug conspiracy (see exhibit 2, attached).^[FN5] Based on information provided by the cooperators, defendant and Alicea were subsequently arrested and charged with attempted murder in the second [*3]degree, two counts of assault in the first degree and two counts of assault in the second degree for the attack on Moses (2009 WL 3241292, *4, 2009 US Dist LEXIS 97399, *10; see also exhibit 2). They were tried together on the attempted murder indictment before the Honorable Leslie Crocker Snyder in October 2001. On October 30, 2001, the jury found defendant guilty of attempted murder and two counts of assault in the first degree. On July 25, 2003, Justice Snyder sentenced him to concurrent prison terms of 25 years on each count.

Both the Appellate Division and the federal court found the evidence of defendant's guilt overwhelming (33 AD3d at 327; 2009 WL 3241292, *14, 2009 US Dist LEXIS 93704, *41).{**69 Misc 3d at 429}

Defendant argues that "[a] sentence of confinement to a state penitentiary that is incapable of handling the medical needs of inmates brought by the novel coronavirus pandemic violates the 8th Amendment of the United States Constitution, and Article 1, § 5 of the New York State Constitution" (id. ¶ 17) for two reasons.

"First, the volume and gravity of the outbreak within the prison walls reflect that the government, prison officials, and/or prison staff have demonstrated deliberate indifference to the health of prison inmates.

"Second, the risk of death to exposure to COVID-19 is a de facto changed circumstance that has made White's sentence grossly disproportionate to his crime of conviction." (Id. ¶¶ 18-19.)

Regarding his claim of deliberate indifference, defendant asserts that New York "has been aptly described" as the global epicenter of the pandemic, that FCF has been "an epicenter within the New York state prison system," and that "his housing unit was the epicenter of the outbreak at FCF" (id. ¶¶ 8, 65; White aff ¶ 48). Counsel provides information about the "[s]pecific conditions at the Fishkill Correctional Facility" (Gray affirmation ¶¶ 29-54, 59, 62-63; White aff ¶¶ 4-52) and provides statistics about the number of FCF inmates who have been tested and the number of FCF inmates who have died (Gray affirmation ¶¶ 29, 30). He also includes the affidavit of Dr. Brie Williams, a professor of medicine at the University of California,{**69 Misc 3d at 430} San Francisco, who explains why prisons "create the ideal environment for the transmission of contagious disease" (id. ¶ 39; defendant's exhibit A).^[FN6] He also describes New York State's actions in response to the pandemic from March until the beginning of July 2020 (id. ¶¶ 25-33) and provides statistics about the numbers of New Yorkers who have been tested for the disease and those who have died [*4]from it (id. ¶ 37).

Defendant also provides specific information about his housing unit and his medical conditions and treatment.^[FN7] He lives in a 55-member unit in a cell with three roommates; all of the people in the unit use the same shared bathroom, which has five toilets and five showers. There is not enough room for social distancing in the bathroom or in the cell, in which the beds are approximately three feet apart (White aff ¶¶ 4-6). In mid-April, "[s]igns warning inmates of the dangers of the coronavirus and the importance of hygiene and social distancing were placed throughout Fishkill in common areas" (id. ¶ 28), although "inmates are not complying with social distancing rules" (id. ¶ 42) and "social distancing rules are not being observed or enforced while prisoners are in transit, congregating in the recreation yard, or dining in the mess hall" (id. ¶ 43). In late April, two inmates from defendant's housing unit, who had shown signs of COVID-19, died (id. ¶¶ 16, 27, 36). Defendant has been issued hand sanitizer and masks, and is able to buy soap when his hand sanitizer supply is exhausted (id. ¶¶ 8, 14, 28, 37). But only one quarter to one third of the inmates and one half of the staff in his housing unit are wearing masks (id. ¶¶ 40-41). Defendant states that neither antibody tests nor "[b]road testing of inmates" has occurred, and he has not been tested (id. ¶¶ 49-51). He believes that some inmates who have symptoms of the disease will not report their symptoms or ask to be tested, "and will cause others to fall ill" (id. ¶¶ 52-54).^[FN8]

{**69 Misc 3d at 431}As for his specific medical conditions, defendant is a 56-year-old African-American and Latino man who suffers from hyper- or hypothyroidism, type 2 diabetes, arthritis and hypertension (Gray affirmation ¶ 76; White aff ¶¶ 55, 58-59; People's mem at 12 n 7). He is prescribed medication for his conditions (Gray affirmation ¶ 77; defendant's exhibit D). He claims that his high blood pressure in particular, as well as his status as an incarcerated African-American man, puts him at heightened risk for more severe complications if he contracts COVID-19 (Gray affirmation ¶¶ 76, 78).

Defendant relies heavily on People v Horsey (2020 NY Slip Op 32745[U] [Sup Ct, Albany County, June 5, 2020, Lynch, J.] [defendant's exhibit F]) in support of the motion. Horsey, also an inmate at FCF, brought a CPL 440.20 motion to vacate his sentence on the ground that his continued incarceration constituted cruel and unusual punishment.^[FN9] The People consented to the requested [*5]relief (id. at *2) and the court granted the motion. The court held that "the current direct impact of COVID-19 on this high-risk Defendant renders the sentence 'grossly disproportionate' to the crime he was convicted of, and unconstitutional as cruel and unusual punishment" (id. at *10).^[FN10] Although the court noted that "[t]he heightened threat of the COVID-19 virus to incarcerated individuals, standing alone, is an insufficient basis to sustain the requested relief" (citations omitted) it found that Horsey had "presented evidence that COVID-19 inmate infections at the FCF appear to be out of control, as evidenced by multiple inmate deaths" (id. at *5). The court also found that while

"FCF has provided some masks and sanitizer on a{**69 Misc 3d at 432} limited basis, as well as provided some signage warning of the dangers of COVID-19[,] [i]t is manifest that such efforts are de minimis in relation to the risk. This is demonstrated by the fact that as of May 12, 2020, FCF reported 89 positive COVID-19 cases, with 5 deaths." (Id. at *8-9.)^[FN11]

The court held that, "[b]y its lackluster efforts to account for COVID-19 at its facility, FCF has acted recklessly, manifesting its deliberate indifference to [Horsey]'s medical needs and safety" (id. at *10).^[FN12]

"does not oversee the state prison system, nor does it have access to the defendant's medical records, much [*6]less those of other inmates . . . [and therefore] is not in a position to respond to the defendant's claims that: (1) he is suffering from serious medical ailments; and (2) the conditions at FCF pose a particular danger to his health" (People's mem at 12).

The People argue that defendant must bring a civil proceeding against prison officials in the county where the prison is located.

The People also argue that the Horsey decision is "an outlier." Not only did the People there consent to the defendant's release, unlike here, but a judge of coordinate jurisdiction in the same county recently declined to follow the Horsey decision,{**69 Misc 3d at 433} holding that, even though the People there were (again) consenting to the granting of the CPL 440.20 motion in the interest of justice, the court "ha[d] no authority to reduce a valid sentence in the interest of justice" (People v Cancer, Sup Ct, Albany County, July 27, 2020, indictment No. 33-6322, slip op at 6 [People's exhibit D]).^[FN13] Moreover, courts in New York County, Bronx County, Richmond County and Suffolk County have also denied such motions (see People's mem at 11-12).

Even if the court were to reach the merits of the present claim, it should deny the motion because defendant's "allegations are insufficient to prove that the conditions at FCF rise to the level of deliberate indifference" (People's mem at 15). Defendant's claims are based "solely on his own self-serving statements," which the court is not required to credit (id.). Moreover, publicly-available information from DOCCS shows that

"(1) as of July 28, 2020, at 3:00 p.m., FCF had administered 478 COVID-19 tests to inmates, of which 103 were positive, 288 were negative, and 87 have results pending (the average number of tests conducted by other DOCCS facilities listed in the dataset was only 112-113 tests); (2) the defendant relies on data as of June 30, 2020, when FCF reported conducting only 195 tests, of which 83 were positive. According to the July 28, 2020, report, FCF had conducted 238 additional tests in 28 days, resulting in only 20 additional confirmed cases; (3) as of July 28, 2020, at 3:00 p.m., of the 103 positive tests, 82 inmates had recovered from the virus and five are deceased, leaving only 16 current positive tests in the facility. Based on the defendant's own statement and DOCCS' protocol, these positive tests and those whose test results are pending and are exhibiting symptoms, have{**69 Misc 3d at 434} been quarantined from the rest of the inmates." (People's mem at 15-16 [footnotes omitted].)

Additionally, both defendant's own moving papers and "open source information provided by DOCCS" show what steps have been taken to contain the spread of COVID-19 at FCF, including distributing masks and hand sanitizer, suspending inmate programming, family visits and attorney-client visits, putting up signs warning inmates about the dangers of the virus and the importance of hygiene and social [*7]distancing, putting defendant's housing unit in quarantine for a time, checking inmates' temperatures and limiting time and the number of inmates in the exercise yard. The People argue that these actions demonstrate that FCF "has taken steps to address the COVID-19 pandemic" and belie the claim of deliberate indifference (id. at 17).

CPL 440.20 (1) provides that "[a]t any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law." (Emphasis added.) In addition, "[e]xcept as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced." (CPL 430.10.)

"Thus, by its plain language, CPL § 440.20 is a statute that only involves the legality of a sentence at the time it was pronounced; the law does not permit a court to change the sentence once the defendant has been committed to the custody of DOCCS and has begun serving that sentence. See People v Richardson, 100 NY2d 847, 850 (2003)." (People v Burgan, Sup Ct, Bronx County, Apr. 22, 2020, Fabrizio, J., indictment Nos. 2948/08, 2922/11, slip op at 1 [denying CPL 440.20 motion seeking furlough "until the medical dangers of the COVID-19 pandemic have subsided"] [attached as exhibit 3]; see also People v Goldberg, Sup Ct, NY County, June 10, 2020, Ward, J., indictment Nos. 554/15, 4619/16, slip op at 1 [denying CPL 440.20 motion founded on claim that sentence had become cruel and unusual because elderly inmate with severe emphysema{**69 Misc 3d at 435} and high blood pressure was extremely susceptible to, and at great risk of death from, COVID-19; "the defendant's challenge is more correctly addressed as an objection to the conditions under which he is required to serve his sentence"].)

In Horsey, the court granted the CPL 440.20 motion despite the fact that the Appellate Division had previously rejected Horsey's claim that his sentence should be reduced in the interest of justice (304 AD2d at 853). The court cited People ex rel. Carroll v Keyser (184 AD3d 189 [3d Dept 2020]) for the proposition that Horsey had properly raised his constitutional claim in a CPL 440.20 motion (2020 NY Slip Op 32745[U], *3). But this court does not agree that the Third Department clearly held that such a motion under CPL 440.20 is proper. The petitioner in People ex rel. Carroll filed a proceeding on behalf of an inmate of Sullivan Correctional Facility pursuant to CPLR article 70, seeking his release because of the spread of COVID-19 in that facility. Petitioner claimed that DOCCS officials were failing to protect the inmate from his high risk of infection and that his continued confinement was therefore cruel and unusual as well as excessive punishment (184 AD3d at 191). Although the Third Department "acknowledge[d] the unsettled state of the law as to whether habeas corpus lies to challenge the conditions of confinement for individuals in [the inmate]'s position" (184 AD3d at 192-193), the Court nevertheless reached the merits and reversed the grant of the petition, holding that petitioner had not met her burden of showing that the inmate's detention [*8]was illegal (id. at 193).^[FN14] The Court then observed that petitioner "further alleges that [the inmate] was {**69 Misc 3d at 436}illegally confined in that his sentence, although lawful when imposed, became grossly excessive due to the risks created by the ongoing pandemic" (id. at 196). In disposing of that claim, the Appellate Division remarked,

"There is no doubt that sentences authorized by statute may nevertheless be 'so disproportionate as would constitute cruel and unusual punishment in violation of constitutional limitations' (People v Broadie, 37 NY2d [100,] 110 [1975]; see US Const 8th Amend; NY Const, art I, § 5). It is doubtful that a sentence proper at the time of imposition can become grossly disproportionate as a result of changed prison or inmate medical conditions (see Richardson v State of New York, 182 Misc 2d 845, 847-848 [(Monroe County Ct) 1999]) or that such a challenge could be raised anywhere other than in a postconviction motion to the sentencing court (see People v Pena, 28 NY3d 727, 730 [2017]; People ex rel. McCray v Favro, 178 AD3d 1241, 1242 [2019]; see also CPL 440.20 [1]; People v Diaz, 179 Misc 2d 946, 951 [(Sup Ct, NY County) 1999]; Richardson v State of New York, 182 Misc 2d at 848). To the extent that the issue is properly before us, our review of the factors articulated in People v Broadie (37 NY2d at 110-113) satisfies us that [the inmate]'s punishment is not 'so grossly disproportionate to [his] offense as to amount to an unconstitutionally cruel and unusual punishment' (People v Jones, 39 NY2d 694, 697 [1976]). Thus, as petitioner failed to demonstrate the illegality of [the inmate]'s confinement, Supreme Court should have dismissed the petition." (184 AD3d at 196.)^[FN15]

{**69 Misc 3d at 437}Because the petitioner in People ex rel. Carroll had not brought a [*9]CPL 440.20 motion, this portion of the decision was dictum.

Moreover, in People v Bedell (210 AD2d 922 [4th Dept 1994], lv denied 85 NY2d 935 [1995]), the Fourth Department rejected a CPL 440.20 motion grounded on a claim of cruel and unusual punishment made many years after the sentence was imposed, because it was the wrong vehicle to use to bring that claim. Bedell was convicted of murdering her daughter (id. at 925). Fourteen years later, she brought a CPL 440.20 motion to set aside the sentence on the ground that it was "unconstitutionally harsh" in light of her "rehabilitation and . . . her extraordinary achievements in prison" (id.). The motion court "denied the motion solely on the ground that it lacked authority to grant the requested relief pursuant to CPL 440.20" (id.), and the Appellate Division "affirmed for reasons stated in" the motion court's decision (id. at 922). As the concurring judge wrote,

"The Court's power to examine the constitutional dimensions of a State-imposed sentencing scheme, however, is limited to weighing the gravity of the offense against the danger the offender poses to society at the time the sentence is imposed (People v {**69 Misc 3d at 438}Broadie, supra, [37 NY2d] at 112; see also, People v Escobales, 146 Misc 2d 573, 575 [Sup Ct, Bronx County 1990]). I know of no authority that permits a mid-sentence constitutional assessment as proposed by defendant and the dissent, nor does the dissent provide us with one." (210 AD2d at 923;^[FN16] see also People v Goldberg; People v Burgan; People v Britt, 2009 NY Slip Op 31476[U], *2 [Sup Ct, Kings County 2009] [CPL 440.10 and 440.20 motion brought by inmate convicted of attempted murder in mid-1990s, asking the court "to change his sentence based on the events that occurred (to him in prison) after a lawful sentencing"; "By electing to proceed under C.P.L. § 440.20(1), the focus of inquiry is on the sentence imposed by the court viewed under the circumstances as they existed on the sentencing date. See People v. Hilker, 134 Misc.2d 420, 422-23 (Tioga County Ct. 1987).^[FN17] Defendant's constitutional claims are solely based on the circumstances that existed after the sentencing date, after defendant had been incarcerated, and thus is denied of any remedy under C.P.L. § 440.20(1) by his own selection"]; People v Ekinici, 191 Misc 2d 510, 512-513 [Sup Ct, Kings County 2002] [court had no authority to grant CPL 440.20 motion to vacate fine portion of sentence that was legally imposed before defendant's death]; Richardson v State of New York.)

This court has not found a case on point from the First Department, nor has one been called to the court's attention. Accordingly, this court respectfully declines to follow Horsey.{**69 Misc 3d at 439}

Although defendant here frames his claim as one going to the continued legality of his sentence, his real challenge, as the People correctly argue, is to the conditions of his confinement. Although defendant may feel an understandable sense of urgency in seeking release from FCF, he cannot use a CPL 440.20 motion to circumvent the procedures that are in place to address claims of deliberate indifference to his medical needs. Other avenues are available to him. (See People ex rel. Ferro v Brann, 183 AD3d 758 [2d Dept 2020] [affirming denial of habeas petition because petitioner, who contracted COVID-19 while incarcerated, failed to demonstrate that prison officials had been deliberately indifferent to his medical needs or that he was entitled to immediate release from custody as a remedy for any failure to address his medical needs]; Matter of Hakeem v Wong, 223 AD2d 765, 766 [3d Dept 1996] ["Although petitioner attempts to formulate a constitutional argument of cruel and unusual punishment under the 8th Amendment of the US Constitution, this contention does not excuse the necessity of resorting to administrative relief. The question of whether there was deliberate indifference to his medical [*10]needs must first be heard at the administrative level before the constitutional issue can be addressed" (citation omitted)], lv denied 88 NY2d 802 [1996].)

Moreover, by bringing a motion under the Criminal Procedure Law, rather than an administrative proceeding, a CPLR article 78 proceeding or a petition for a writ of habeas corpus under CPLR article 70 in the county where he is incarcerated, defendant has left DOCCS out of this proceeding. But DOCCS is a necessary party to address his claims about the current conditions at FCF and to provide evidence about what steps FCF has taken to mitigate the spread of COVID-19. Like the court in Cancer, this court has not "receive[d] any submissions from defendant's fellow inmates, medical providers, Fishkill staff, New York State Inspector General Staff or any representative of NYSDOCCS," and many of defendant's claims are based on his own observations (People's exhibit D at 4).

Finally, this court also agrees with the Burgan court (exhibit 3 at 3) that the relief defendant seeks here—a re-sentencing to time served—is not a legal sentence. Defendant does not dispute that his sentence was legal when it was imposed. Given the viciousness of defendant's own participation in the crime and the extent of the victim's injuries, this court also agrees with the People that the sentence cannot be described as unduly harsh or excessive.{**69 Misc 3d at 440}

For all of the foregoing reasons, the court holds that it has no authority to grant defendant's CPL 440.20 motion.

In any event, even if the court were to consider defendant's claims on the merits, it would deny the motion. Defendant has not established that FCF has been deliberately indifferent to his medical needs during the COVID-19 pandemic. To the contrary, as the People point out, his own moving papers establish that prison officials have taken steps to reduce the spread of the disease. (See also People v Cancer, People's exhibit D at 3 ["Defendant's own submissions actually demonstrate steps that Fishkill has taken to address the COVID-19 pandemic"].) Defendant asserts that "FCF houses approximately 1,800 inmates" (Gray affirmation ¶ 31). Testing of inmates at FCF has clearly increased since defendant filed this motion, but only 20 additional confirmed cases were found between June 30th and July 28th, and no more inmates have died. As the Third Department noted in People ex rel. Carroll,

"One could certainly infer . . . that the officials at DOCCS, like many other officials at all levels of government, failed to initially grasp the severity of the COVID-19 threat or the best methods of addressing it, and that they are now adapting to the situation. Deliberate indifference means more than being caught flat-footed, or even negligent, and a failure to properly 'alleviate a significant risk that [DOCCS officials] should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of [unconstitutional] punishment.' " (184 AD3d at 195-196 [citations omitted].)

For all of these reasons, the motion to set aside the sentence pursuant to CPL 440.20 is denied.

"After one panel of the Appellate Division, First Department, construed the 911 call [in that case] as indicating that gunshots emanated from outside the apartment, and reversed [the codefendant's] conviction, a different panel reached the opposite conclusion and ruled against [Diaz], when his appellate counsel did not emphasize this issue. The anomalous result was that [Diaz] began serving 15 years' imprisonment, while his codefendant . . . , equally culpable, was released" (179 Misc 2d at 950).

The court then found Diaz's sentence " 'grossly disproportionate' as applied to him and thus . . . constitutionally prohibited as 'cruel and unusual punishment' given the disparate treatment of the codefendant . . . , the nature of the offense, and the lack of physical violence" (id. at 956; but see People v Jogie, 118 AD3d 1025, 1026 [2d Dept 2014], lv denied 23 NY3d 1063 [2014] [reversing county court that granted CPL 440.20 motion to set aside defendant's sentence in the interest of justice, after codefendant successfully appealed, pleaded guilty and received lower sentence; "(a) trial-level court has no authority under CPL 440.20 to reduce a valid sentence in the interest of justice" (citations omitted)]).