Supreme Court, Kings County, April 6, 2021

Robert C. Reuland for defendant.

Eric Gonzalez, District Attorney (Arieh Schulman of counsel), for plaintiff.

In October 1993, during a daytime party of some 50 to 100 teenagers in an apartment in Brooklyn, Jonathan Fields, 17 and armed with a gun, yelled, "Fuck that, don't nobody move because everybody is going to get wet," after which Jermaine Wright, 16, pulled out a gun and joined Fields in spraying the partyers with gunfire. In the living room, Wade Trotman, 19, grabbed two girls, threw them onto a sofa and jumped on top of them. He was shot; they were not. He expired before he reached the hospital. In the kitchen, a 15-year-old girl was shot in the back. Although she was treated in a hospital, a bullet remained lodged inside her, limiting her ability to engage in normal activities and causing her pain. She was expected to have the bullet inside her for life.

After their joint jury trial, both Fields and Wright were convicted of murder in the second degree on a theory of depraved indifference to human life, for the death of Wade Trotman, assault in the first degree, for the shooting of the girl, and criminal possession of a weapon in the second degree.

Wright (hereafter, defendant) was sentenced to 25 years to life imprisonment on the murder conviction, a consecutive term of 5 to 15 years' imprisonment on the assault conviction, and a concurrent term of 5 to 15 years' imprisonment on the weapon conviction—effectively a sentence of 30 years to life imprisonment{**71 Misc 3d at 966} (Marrus, J.).^[FN1] His judgment of conviction was unanimously affirmed by the Appellate Division (People v Wright, 236 AD2d 567 [2d Dept 1997]). The Court of Appeals denied leave to appeal (People v Wright, 90 NY2d 899 [1997]).

Defendant's criminal history at the time of these crimes included a juvenile delinquency adjudication for his having committed an assault in the second degree when, at the age of 13, he [*2]stabbed an 11 year old in the stomach.

In 2003, while serving his sentence, defendant was convicted of yet another felony, attempted promoting prison contraband in the first degree, "after he was found to be in possession of a plexiglass shank" (People v Wright, 40 AD3d 1314, 1314 [3d Dept 2007]). For this he was sentenced to another consecutive term of 11/2 to 3 years in prison. That conviction was also affirmed (id. at 1315).

Defendant is eligible for parole in April 2025 (see Department of Corrections and Community Supervision, Inmate Lookup, http://nysdoccslookup.doccs.ny.gov/ [last accessed Apr. 2, 2021]), when he will be 47 years old.

In September 2020, defendant filed the present motion, pro se, to set aside his sentence, claiming that it was "unauthorized, illegally imposed or otherwise invalid as a matter of law" (CPL 440.20 [1]). Defendant argued that the "Raise the Age" legislation (see L 2017, ch 59, § 1, part WWW, §§ 1-106; CPL art 722), which, among other things, provides a defense of infancy to some 16 and 17 year olds and changes the way some cases of other 16 and 17 year olds are adjudicated, should be applied retroactively to him. The People opposed.

The Raise the Age legislation does not purport to affect sentences that were already final when the law became effective.^[FN2] Nor does it alter the adjudication and punishment of murder in the second degree, which remains a felony for which a 16 year old must be tried and sentenced as if he were an adult.^[FN3] In other words, even if this ameliorative legislation had been{**71 Misc 3d at 967} in effect on the day of defendant's crimes, it would not have had the impact defendant says it has. Defendant would not have had recourse to the defense of infancy (see Penal Law § 30.00 [3] [a]). The charges against him would not have been subject to removal to Family Court (see CPL 722.23). And defendant would still have been subject to trial in Supreme Court with the same sentencing range that applies to an adult (see Penal Law § 60.10-a). Accordingly, to the extent that his motion relies on Raise the Age, it must be denied.

But the court cannot stop there, for in his pro se papers, defendant also presented an argument that merits more lengthy attention. He argued that society's view of the culpability of adolescents vis-à-vis adults has evolved to the point that his sentence may now be understood to violate the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution. Citing Miller v Alabama (567 US 460 [2012]), which ruled that a mandatory sentence of life imprisonment without parole for those under 18 at the time of their crimes [*3]contravenes the Eighth Amendment, defendant rhetorically, and also poignantly, asked: "Is the Defendant entitled to a hearing so that his youth may be taken into consideration in determining whether to leave his sentence for the felonies [for] which he was sentenced manditorily [sic] as an adult?" (Defendant's mem of law at 8.)

The Court of Appeals has previously ruled that a mandatory minimum sentence of 15 years to life imprisonment for a 17 year old convicted of a drug sale does not run afoul of the Cruel and Unusual Punishment Clause (see People v Thompson, 83 NY2d 477 [1994]). Specifically: an "older adolescent['s] . . . youth . . . was alone insufficient to establish gross disproportionality for constitutional purposes" (id. at 485 [emphasis supplied]).

From Thompson, this court might easily infer that the sentencing scheme upheld there could not be cruel or unusual as applied here to an older adolescent's conviction for murder. But to assure that defendant's argument was fully explored, particularly inasmuch as Thompson predated Miller by 18 years and might therefore not sufficiently reflect "contemporary standards of decency" (id.), this court assigned defendant an {**71 Misc 3d at 968}attorney for this motion. Counsel has made a submission, to which the People have responded.

Arguments akin to defendant's have been considered and rejected by courts of coordinate jurisdiction in other cases involving 16 and 17 year olds whose sentences were imposed, as here, for multiple felonies with minimum terms that ran consecutively and with maximum terms of life imprisonment (see Penal Law §§ 70.00 [2], [3] [a] [i]; 70.25, 70.30).^[FN4]

For example, in People v Matias (68 Misc 3d 352 [Sup Ct, Bronx County 2020]) and People v Aponte (42 Misc 3d 868 [Sup Ct, Bronx County 2013]), the courts reviewed the sentences of defendants who were 16 (Matias) and 17 (Aponte) at the time of their crimes and who had been sentenced to a minimum term of 50 years and 421/2 years, respectively, up to a maximum of life in prison.^[FN5] In both cases, the courts concluded that each defendant had been afforded a particularized sentencing determination that had considered his individual characteristics, including his youth, and that his sentence was not disproportionate to or incommensurate with his crimes. Both Matias and Aponte therefore rejected challenges under Miller.

Two observations of the Matias court are particularly worth highlighting. First, because Matias would be eligible for release when he was 66 years old, he was not serving a life sentence (accord People v Ruffin, Sup Ct, Oneida County, Dec. 1, 2015, Dwyer, J., indictment No. 09-127, slip op at 13 [16 year old's sentence of 18 years to life not equivalent to life without parole]). Second, the laws under which he had been sentenced had allowed for discretion on the part of the judge and therefore attention to his youth. As such, his sentence did not violate the Eighth [*4]Amendment, as understood by Miller, because it was not a mandatory sentence of life imprisonment (see Matias, 68 Misc 3d at 363-365).

In People v Lora (70 Misc 3d 181 [Sup Ct, NY County 2020]), another court of coordinate jurisdiction did, however, find that a 17 year old's combined sentences totaling 831/3 years to life imprisonment (based on an aggregate sentence of 581/3 years to {**71 Misc 3d at 969}life imprisonment comprised of two consecutive terms of 25 years to life and another of 81/3 to 25 years and another consecutive sentence of 25 years to life) were tantamount to life without parole. Notwithstanding that the sentencing laws under which Lora had been sentenced also allowed for discretion by the courts that had sentenced him, the CPL 440.20 court found that the record was not "unequivocal[ ]" as to whether the "sentencing courts considered his youth, and its attendant circumstances, when they imposed sentence" (Lora at 193-194, 196 [emphasis omitted]). Lora therefore ordered a Miller hearing to determine whether the "diminished culpability" and "heightened capacity for change" implied by Lora's youth required resentencing him (id. at 193-194, 197). After conducting that hearing, the court ruled that defendant's first sentence, "581/3 years of imprisonment[,] is appropriate for the crimes herein and is not tantamount to a life sentence," thereby rejecting the Miller challenge (People v Lora, 71 Misc 3d 221, 227-228 [Sup Ct, NY County 2021] [hereafter, Lora II]). But as to the second consecutive sentence of 25 years' imprisonment, which Lora would begin to serve when he was 75 years old, the court held that the "aggregate sentence is . . . a de facto life sentence without the possibility of parole," and, because the court could not "conclude that the second sentencing court engaged in the proper analysis," resentencing was required (id. at 228).

No appellate court has specifically instructed when (if ever) a Miller hearing would be necessary on a CPL 440.20 motion to set aside a 16 or 17 year old's murder sentence where the sentencing laws did not require a sentence of life without the possibility of parole. The Third Department (albeit not in an appeal involving CPL 440.20) has ruled that a sentence such as the one imposed in this case comports with the Constitution if it guarantees "a juvenile homicide offender—for all but the rare case of an irreparably corrupt juvenile— . . . at some point, a 'meaningful opportunity to obtain release' " (see Matter of Hawkins v New York State Dept. of Corr. & Community Supervision, 140 AD3d 34, 38 [3d Dept 2016], quoting Graham v Florida, 560 US 48, 75 [2010]). In Hawkins, the Court observed that the 16-year-old defendant's sentence of 22 years to life imprisonment "promised him a meaningful opportunity to obtain release" (Hawkins, 140 AD3d at 38 n 2), because the Board of Parole, "as the entity charged with determining whether petitioner will serve a life sentence, was required to{**71 Misc 3d at 970} consider the significance of petitioner's youth and its attendant circumstances at the time of the commission of the crime before making a parole determination." (Id. at 36.)

From these cases one may conclude that no Miller hearing is required here.

First, defendant's sentence provides him with a meaningful opportunity to obtain release when he appears before the Parole Board in the near future.^[FN6] The Parole Board, as Hawkins [*5]pointed out, is required to consider defendant's youth and its attendant circumstances when it decides whether or not he merits release, and defendant's first opportunity to appear before the Board is within four years (and would have been a little over a year sooner but for defendant's commission of a new crime while incarcerated).^[FN7]

More succinctly, defendant's sentence is simply not a sentence of life imprisonment without parole (see Matias; Aponte; Lora II).

Nor is defendant's minimum 30 year sentence remotely tantamount to a sentence of life imprisonment without parole, as was the minimum of 831/3 years in Lora/Lora II (specifically, that portion of the aggregate sentences that would run consecutively to the 581/3 year sentence), which would have provided Lora no opportunity for release (absent compassionate release or commutation) until he was 100 years old. In contrast, defendant in the present case must serve a minimum that is substantially less than that in Aponte (421/2 years), Matias (50 years), or, significantly, the first aggregate sentence in Lora (581/3 years), where no Miller hearing was required, and closer to the 22 years in Hawkins that the Third Department characterized as providing a meaningful opportunity for release. As we have seen, by virtue of the sentence here, defendant would have been eligible for release at the age of 46 but for his reoffending.

Defendant's relatively youthful age of parole eligibility undercuts one of the rationales of Miller, which is that an adolescent{**71 Misc 3d at 971} sentenced to life imprisonment may actually be subject to a punishment harsher than, and therefore disproportionate to, that of an adult sentenced to life because the adolescent has more life in him (see Miller, 567 US at 475). The opposite is true here: a 30 year minimum sentence of imprisonment allows a 16-year-old offender to be released when he is middle-aged, whereas the same sentence may result in an adult's incarceration until he is elderly. Accordingly, defendant's 30 year minimum sentence does not implicate one of the central concerns of Miller or violate Thompson's "gross disproportionality" test (see Thompson, 83 NY2d at 485).

Second, defendant received the individualized sentence that is constitutionally required. The applicable sentencing structure gave the court a range for each of the crimes of which defendant was convicted (see Penal Law §§ 70.00, 70.02), as well as the discretion to impose concurrent or consecutive sentences (see Penal Law § 70.25). In other words, defendant was not subject to a mandatory sentencing scheme that left no room for the court to consider whether and to what extent his youth might warrant a lesser sentence than that of an adult.

As described in detail below, at defendant's sentencing, the court evaluated the gravity of defendant's offenses, his character, and the gravity of the threat he posed to society. These are precisely the factors that the Constitution requires a sentencing judge to consider (see Thompson, 83 NY2d at 480, citing People v Broadie, 37 NY2d 100, 112, 113 [1975]). For this reason too no Miller hearing is required.

Third, and apart from the above factors, no Miller hearing is required because a review of the record discloses that the sentencing court satisfied any Eighth Amendment concerns specifically applicable to adolescents when it considered defendant's youth and its attendant [*6]circumstances in relation to defendant's crimes and their punishment.^[FN8]

Defendant's age was clearly the focus of defense counsel's argument to the court. Counsel's first words were that defendant was a "very young person."^[FN9] He then described how defendant "didn't have much of a chance in life," not simply because defendant had not lived a long time but also given the circumstances{**71 Misc 3d at 972} of his home and neighborhood (Brownsville, Brooklyn). Counsel referenced "all the pressures that young people have when they grow up, father some times not there, sometimes the mother not there." Counsel did however candidly concede that both defendant's parents were present in the courtroom at sentence and had been present during earlier proceedings.

Defense counsel asked the court to believe that defendant's youth encompassed the capacity to change:

"I will ask your Honor to take into consideration his youth. This a young man who obviously has problems adjusting to his teenage years, going into his adult years and quite often they look back after a number of years in jail and say, 'boy why did I do these things when I was young. Had I to do it all over again I would have done something different.' "

Defendant declined to make a statement.

A presentence report detailed defendant's educational and social background, based on an interview with his mother, as well as defendant's juvenile criminal record. The sentencing court also reviewed letters from the decedent's family.

The sentencing court, as is evident from the transcript, considered defense counsel's arguments but rejected them and concluded that defendant's crimes were not the product of his youth but of the "irreparable corruption" of his character (Miller, 567 US at 479-480; Hawkins, 140 AD3d at 38); or, put more bluntly, that defendant was "irredeemable" (Graham, 560 US at 75).^[FN10] The court lamented, "I don't know where this defendant's life took a wrong turn."

The sentencing court determined that defendant's age did not mitigate his actions. This young defendant had not only taken one person's life and seriously injured another in a depraved armed assault that could easily have taken even more equally young lives but had previously committed another armed assault: "Standing before me is a seventeen year old male; at least he was seventeen at the time this report was prepared. And he stabbed somebody, he shot and killed somebody. He shot and injured somebody else." [*7]In other words, in his short life, and over the course of three years—not, that is, in an isolated incident—defendant had already seriously {**71 Misc 3d at 973}victimized three different people by stabbing one and shooting two, murdering one.

The sentencing court implicitly contrasted defendant's youth (and perhaps his stature)^[FN11] with his effort to appear "a big man" by wielding weapons:

"I don't know, you were a big man out there with a gun in your hand, with a knife in your hand. But you're not such a big man today standing there with your hands cuffed behind your back, convicted of these crimes. I don't know what I can do other than to punish you for the seriousness of your actions and to protect society from somebody like you."

In the court's view, manhood—to defendant—meant committing crimes of armed violence.

In referencing defendant's violent criminal history over a substantial period of time (3 of his 16 years), the seriousness and wantonness of his crimes ("This was a senseless act of violence"), the number of his victims, and his attraction to and reliance on weapons, the court explained why it did not believe that an adolescent's diminished culpability qualified defendant's actions^[FN12] or that defendant possessed the capacity for change. The gravity, depravity, and repeated nature of defendant's violent actions over a period of years—notwithstanding his youth—and the seriousness of his threat to society required a maximum sentence.

The court likewise explained why the sentences should run consecutively: "The assault charge and the murder charge were directed at two different victims who suffered separately and you should have to pay separate punishment for those crimes."

Inasmuch as the sentencing judge took into account and weighed all applicable constitutional concerns, including (even if not constitutionally required) defendant's youth and its attendant circumstances at the time he committed murder and armed assault, defendant's sentence was not unconstitutional.

Defendant's motion is, therefore, denied.

{**71 Misc 3d at 974}Finally, a postscript, as it were: defendant's subsequent conviction for possessing a shank in prison, a decade after committing these crimes, when he was past his adolescence, confirms the judgment of the sentencing court that defendant's attraction to, reliance on, and determination to possess weapons were not childish habits that he would one day outgrow but intrinsic to his dangerous character.