Supreme Court, New York County, January 22, 2021

Eugene Nathanson, New York City, for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (Gary Galperin of counsel), for plaintiff.

On December 10, 2018, defendant, Jose Lora, filed a motion pursuant to Criminal Procedure Law § 440.20 to set aside the sentences in this matter on the grounds that they are invalid as a matter of law.^[FN1] Defendant argues that his sentences violate the United States Constitution's Eighth Amendment prohibition against cruel and unusual punishment as set forth in Miller v Alabama (567 US 460 [2012]) and Montgomery v Louisiana (577 US 190 [2016]). A hearing pursuant to CPL 440.30 (5) was ordered by this court to determine whether defendant, who was 17 years of age at the time he committed three homicides and other related crimes, had been sentenced with deliberate reference to his youth and its attendant{**71 Misc 3d at 223} circumstances as required by Miller/Montgomery (discussed further below). See People v Lora (70 Misc 3d 181 [Sup Ct, NY County 2020]) for full background, procedural history, and decision granting the hearing.

In brief, the convictions stem from allegations that in 1994, defendant fatally shot several rivals of an alleged drug-trafficking gang, as well as an individual alleged to have been responsible for the death of his girlfriend's brother. Defendant and several other codefendants were indicted for the murders and were also charged in a separate indictment with multiple drug and weapons offenses. The three indictments were consolidated for trial. The codefendants pleaded guilty and testified against defendant, who stood trial alone and was convicted by a jury on December 12, 1996, of two counts of murder in the second degree (Penal Law § 125.25 [1]) and one count of conspiracy in the second degree (Penal Law § 105.15). The jury failed to reach a verdict on a third count of murder. Defendant was sentenced on January 17, 1997, to three consecutive terms of imprisonment: two terms of 25 years to life on the murder convictions, and one term of 8⅓ to 25 years on the conspiracy conviction for an aggregate sentence of 58⅓ years to life imprisonment. Defendant was re-tried on the third murder count and convicted on March 6, 1998. He was sentenced on April 6, 1998, to a term of 25 years to life imprisonment, to be served consecutively to the previously imposed sentences.

The Eighth Amendment to the United States Constitution provides that "[e]xcessive bail [*3]shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In Miller, the United States Supreme Court held that the Eighth Amendment's prohibition on cruel and unusual punishment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders, because "children are constitutionally different from adults for purposes of sentencing." (Miller at 471.) In Montgomery, the Court held that Miller's prohibition on mandatory life without parole for juvenile offenders announced a new substantive rule that, under the United States Constitution, extends the protections of Miller to cases on state collateral review. Under Miller/Montgomery, life in prison is not foreclosed in homicide cases; however, a sentencing judge is required to consider a juvenile offender's "diminished culpability and {**71 Misc 3d at 224}heightened capacity for change," before imposing a sentence of mandatory life imprisonment without the possibility of parole. (Miller at 479; Montgomery, 577 US at 195.)

Defendant specifically argues that his first sentence in which he must serve a minimum of 58⅓ years of incarceration, standing alone, amounts to a de facto sentence of life imprisonment, and that under Miller/Montgomery, sentences of life without parole are prohibited for certain offenders who were under the age of 18 at the time they committed their crimes. He argues that the constitutional scruple against sentencing a youth to life imprisonment without the possibility of parole applies to discretionary sentences which are longer than a defendant could possibly live.

In their written response to the motion, the People argue that defendant's sentences are not prohibited under Miller/Montgomery because defendant has not been, nor was he required to be, sentenced to mandatory life without parole. They maintain that the aggregate term of 83⅓ years of imprisonment^[FN2] is a discretionary sentence that defendant must serve before he is eligible for parole. The People further argue that there are no federal or state cases holding that such discretionary sentences, when imposed on a juvenile, violate the Constitutions of the United States or New York.

On September 30, 2020, this court granted defendant's motion to the extent that a hearing was ordered, pursuant to CPL 440.30 (5), to determine whether defendant was sentenced in accordance with Miller/Montgomery.^[FN3] In ordering the hearing, this court held that [*4]under the unique facts and circumstances of this case, the combined sentences of 83⅓ years to life imprisonment amount to a de facto life sentence. (See People v Lora, 70 Misc 3d at 193.) This court treated the sentences in the aggregate for purposes of its initial analysis because that is{**71 Misc 3d at 225} how the matter was argued by both sides and because "they are consecutive sentences which are each a product of charges contained in a single indictment which was consolidated for trial with an indictment for drug and weapons charges." (Id. at 193 n 7.)

In order to apply Miller/Montgomery's constitutional safeguard, a sentencing court must consider a juvenile offender's youth and its attendant characteristics at the time of the commission of the crimes before a sentence to mandatory life without parole may be imposed. (Montgomery, 577 US at 208-209.) Here, after reviewing the motion papers, relevant case law, the official court file and available transcripts of previous proceedings, this court was unable to determine whether the two trial courts had in fact considered the Miller factors before imposing sentence. Thus, a hearing was granted in People v Lora.

The hearing was conducted on November 13, 2020. Neither side presented witnesses (thus this court makes no findings of fact based on sworn testimony), but both sides offered arguments and responses to this court's inquiries. The defense submitted additional case law on November 16, 2020, followed by written argument from the People on November 23, 2020.

At the hearing and in the written arguments which followed, the People offered the argument for the first time that this court should analyze the two sentences separately to determine whether the first sentence of 58⅓ years to life imprisonment and the second consecutive sentence of 25 years to life, each standing alone, constitute de facto life sentences.^[FN4] The People further argue that it is up to state legislatures to set parole eligibility time frames for juveniles sentenced to lengthy prison sentences, and that there is no New York statute, nor is there any binding precedent which addresses precisely when a sentence is deemed de facto life imprisonment in this state. They contend that defendant's sentence at his first trial, when viewed as a distinct sentence, does not constitute life without parole, because he is eligible for parole within his lifetime.

The Miller Court did not decide whether its sentencing requirements extend to both mandatory and discretionary sentences{**71 Misc 3d at 226} of life without parole and without the guidance of a decision in Mathena v Malvo, the question remains unsettled.^[FN5] State and federal courts across the country are split regarding the question of whether Miller is limited only to sentences [*5]of mandatory life without parole. (See e.g. People v Gutierrez, 58 Cal 4th 1354, 1379, 324 P3d 245, 262 [2014] ["Under Miller, a state may authorize its courts to impose life without parole on a juvenile homicide offender when the penalty is discretionary and when the sentencing court's discretion is properly exercised in accordance with Miller"]; Aiken v Byars, 410 SC 534, 542-543, 765 SE2d 572, 576 [2014] ["We recognize that in holding the Eighth Amendment proscribes a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders, the Court did not expressly extend its ruling to states such as South Carolina whose sentencing scheme permits a life without parole sentence to be imposed on a juvenile offender but does not mandate it . . . we profoundly disagree with the position . . . that the import of the Miller decision has no application in South Carolina"].) In New York, courts have not treated Miller as extending to discretionary sentences of life without parole. (See People v Matias, 68 Misc 3d 352, 364 [Sup Ct, Bronx County 2020] ["(D)efendant's reliance on Miller is misplaced as the sentencing statute governing this case and the imposed sentence are readily distinguishable from the (mandatory) statute and sentence found objectionable in Miller"]; People v Sanchez, 63 Misc 3d 938, 942 [Sup Ct, NY County 2019] ["The second problem for the defendant is what the Supreme Court held with respect to LWOP and minors under the age of 18 in Miller. There, the Court held in a five justice majority decision that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments' . . . Mr. Sanchez received a discretionary LWOP term" (citations and some internal quotation marks omitted)]; People v Aponte, 42 Misc 3d 868, 872 [Sup Ct, Bronx County 2013] ["Although both Miller and Graham (v Florida [560 US 48 (2010)]) held it was unconstitutional to impose life without parole on a person under the age of 18, the defendant received no such sentence. In fact, he is parole eligible. No doubt he is{**71 Misc 3d at 227} 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 the law presently stands, Miller could be interpreted as not contemplating a statute such as New York's discretionary sentencing scheme. Such an interpretation would render the Miller factors inapplicable to defendant's aggregate sentence. Notwithstanding, this court's holding that the aggregate sentence of 83⅓ years to life imprisonment is a de facto life sentence puts this matter squarely within the purview of Miller. The question of whether defendant's first sentence of 58⅓ to life imprisonment should be considered a de facto life sentence on its own, however, remains.

There is no "bright-line" rule for what constitutes a de facto life sentence in federal or state law. As briefly set forth in this court's decision ordering the hearing, New York courts, federal courts, and courts across the United States have made individual rulings on the issue. (See United States v McCoy, 692 Fed Appx 17, 22 [2d Cir 2017], cert denied 583 US —, 138 S Ct 278 [2017] [80 years is "effectively a life sentence"]; People v Buffer, 2019 Ill 122327, 137 NE3d 763 [2019] [40 years is a de facto life sentence]; United States v Grant, 887 F3d 131 [3d Cir 2018] [65 years of imprisonment without parole for a juvenile offender whose life expectancy is 72 years of age is a de facto life sentence].)

Defendant is now approximately 40 years of age and has thus far served approximately 23 years of his sentence. According to the Centers for Disease Control, a 40-year-old [*6]Hispanic male is expected to live to the age of 81.2 years. Should a Hispanic male live to the age of 75, the same government report indicates that he is expected to live to 87.6 years.^[FN6]

[1] This court acknowledges both the seriousness of the crimes for which defendant was convicted, as well as the lengthiness of the sentences imposed, and regrets that it must analyze this weighty issue within the framework of statistical studies related to life expectancy. Such methods tend to dehumanize the issue at hand. This court recognizes that this motion was brought by a real human being for whom time is precious. Nonetheless, a sentence of 58⅓ years of imprisonment {**71 Misc 3d at 228}is appropriate for the crimes herein and is not tantamount to a life sentence under the unique facts and circumstances of this case. With approximately 35 years remaining on the minimum end of his first sentence, defendant could be paroled at 75 years of age, or earlier with the benefit of "good time." Thus, this court holds that defendant's first sentence, standing on its own, does not amount to a sentence of life imprisonment for which the sentencing considerations in Miller are presently applicable. The motion to set aside, as it pertains to the first sentence, is denied.

Defendant's second sentence, however, was ordered to run consecutively to his first sentence. As set forth above and in this court's previous decision, with the addition of a term of 25 years of imprisonment, at a minimum (again, less time credited for good behavior), defendant's aggregate sentence is held to be a de facto life sentence without the possibility of parole.

This court is in no better position now, after presiding over the hearing on November 13, 2020, than it was before, to determine whether the second sentencing court did in fact consider the Miller factors.

[2] A defendant who moves to set aside a sentence must prove that the sentence is unauthorized, illegally imposed or otherwise invalid, by a preponderance of the evidence. (CPL 440.20 [1].) Here, defendant has met his burden as it pertains to the second sentence. This court cannot conclude that the second sentencing court engaged in the proper analysis. Therefore, this court must hold a resentencing hearing with respect to defendant's second sentence of 25 years to life imprisonment to consider whether defendant's "diminished culpability" and "heightened capacity for change" merit a different sentence.