Courts - Retroactive Application of Judicial Decision - Erlinger v United States

Crimes - Sentence - Second Felony Offender - Admission to Predicate Felony

William Figueroa, defendant pro se.

Eric Gonzalez, District Attorney, Brooklyn (David E. Mehl of counsel), for the People.

{**87 Misc 3d at 1044}By an order dated February 27, 2025, this court granted the defendant^[FN1] permission^[FN2] to file a new motion with this court, to the extent that he only raises new issues, namely, issues not previously asserted and determined upon either a prior postjudgment motion in this court, nor upon appeal, or before a federal court.

The parameters of the motion properly before the court are as follows. The defendant is permitted to bring a new motion pursuant to CPL 440.20 to assert his sentencing claims pursuant to Erlinger v United States (602 US 821 [2024]) (and related case law), as they are articulated in his current papers.^[FN3] This court will also entertain the defendant's application for leave to reargue (and/or renew) matters determined in the court's decision and order dated [*2]October 10, 2024. However, any claims or discussion beyond the scope of these two categories of claims, as were outlined in the court's order dated February 27, 2025 (granting leave to bring the instant motion and delineating the scope thereof), are not properly before the court.

The People have opposed the motion^[FN4] and the defendant has replied to their papers in opposition to reargument.

Upon due consideration of the noted submissions of the parties upon this motion, coupled with a review of the court files, and the trial and sentencing minutes, the court determines that the motion is denied in its entirety.{**87 Misc 3d at 1045}

The facts and procedural history of this matter have been summarized in the parties' current and prior submissions as well as in the court's prior decisions and orders, and will not be reiterated herein, except as necessary.

Upon the instant motion, moving for reargument, the defendant is again seeking vacatur of his conviction and dismissal of his indictment, or a retrial absent outright dismissal. Additionally, effectively bringing a CPL 440.20 application, Mr. Figueroa is also attacking his sentence, contending that he should not stand sentenced as a second felony offender.

I. Reargument of Decision and Order dated October 10, 2024

As a reminder, a motion for leave to reargue must "be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). "A motion for leave to reargue 'is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented' " (Haque v Daddazio, 84 AD3d 940, 942 [2d Dept 2011], quoting Mazinov v Rella, 79 AD3d 979, 980 [2d Dept 2010]).

Upon the prior motion (determined in the court's decision and order of Oct. 10, 2024) the defendant had sought renewal based upon information gleaned from the Santiago trial transcript which he deemed to be "new evidence," but did not so establish to the satisfaction of the court.

In the current motion, Mr. Figueroa repeats several of these claims, again citing to ballistics testimony from his trial (from Detectives Bettenhauser and Solowsky) and juxtaposing it to the ballistics testimony presented at the Santiago trial (by Detective Natale) which affirmatively established that his .357 magnum revolver did not fire the fatal shot or any of the [*3]other two tested bullets^[FN5] recovered from inside the Hernandez house. In addition to reiterating his previous erroneous contention{**87 Misc 3d at 1046} that if this evidence had been presented at his trial the jury would have acquitted him,^[FN6] Figueroa now additionally asserts that the testimony of Detectives Bettenhauser and Solowsky constituted impermissible hearsay and violated his right to confrontation. The tests they recounted had been conducted had been done by each of them personally, although Detective Bettenhauser apparently had assistance with the laser trajectory tests, hence his occasional references to "we."

The court finds that this latter claim, based upon the trial record, is not properly raised herein as it could have and should have been previously asserted, either upon appeal or a prior CPL 440 motion (see CPL 440.10 [2] [c] and CPL 440.10 [3] [c], respectively); and this new claim is not properly brought upon reargument, or renewal. Moreover, the court agrees that, even if properly raised at this juncture, such claim is meritless. The court's review of the cited testimony fails to discover the claimed hearsay aspects of the detectives' testimony. No inadmissible hearsay evidence was adduced through either of these detectives, and thus there was no violation of the defendant's confrontation rights. Moreover, Detective Bettenhauser's reference to a ".357," again cited in Mr. Figueroa's reply, was first adduced upon the defense's cross-examination of the witness regarding gun caliber and the type of gun which could have fired the .38 ammunition.

Citing to further record-based evidence from both his trial and Mr. Santiago's trial, namely the absence of forensic evidence linking him to the .357 magnum gun, to the murder scene or to Mr. Santiago's red Camaro (i.e., gunshot residue, fingerprints, hair follicles, etc.), the defendant contends that this proves his innocence.

The court concludes that these claims also could have and should have been raised at a much earlier point in time, and are now barred at this juncture. In any event, the cited lack of forensic evidence is not proof of innocence and does not negate{**87 Misc 3d at 1047} the acting in concert theory of guilt upon which Mr. Figueroa was convicted. Additionally, the defendant mischaracterizes the [*4]evidence adduced at trial when he asserts herein that there were no witnesses linking him to the Hernandez shooting. This assertion ignores the testimony of Antonio Duran who stated that he was in the car with Mr. Santiago and Mr. Figueroa at the time of the drive-by Hernandez shooting and saw each of the men firing their guns toward the Hernandez home. The court does note that Mr. Duran subsequently recanted his trial testimony; however that matter was the subject of posttrial hearings and the court rejected this as a ground for vacating Mr. Figueroa's conviction, a determination which is now law of the case herein. That finding should have been (and may have been) raised on appeal.

The defendant also asserts upon this motion that his indictment was fatally defective because it failed to identify the person with whom the defendant was charged to have acted in concert, in the commission of all of the crimes charged against him.

Not only is it too late to be raising this claim for dismissal of the indictment, apparently for the very first time, but the court further finds such argument meritless.

Review of the defendant's indictment confirms that, in every count, he is charged with "acting in concert with another person" in the commission of the crime alleged therein. Factually, this is distinguishable from the case cited by the defendant, People v Toro (147 Misc 2d 991 [Sup Ct, Bronx County 1990]), wherein both defendants were named in the indictment caption but certain counts only named one defendant and failed to identify the codefendant as an accomplice, thereby failing to put the non-enumerated defendant on notice that he too was being charged with such crime.

Here, by contrast, every count charged against Mr. Figueroa contained the "acting in concert" language. Thus, the indictment put him on notice of the crimes with which he was being charged. Moreover, "there is no legal distinction between liability as a principal or criminal culpability as an accomplice" (People v Rivera, 84 NY2d 766, 769 [1995]), and the jurors were given proper instructions on the law concerning accomplice culpability at Mr. Figueroa's trial (see Figueroa trial minutes at 1413-1415; cf. People v Ballo, 191 AD3d 482 [1st Dept 2021], lv denied 37 NY3d 953 [2021]). Lastly, while separately indicted, both Mr. Figueroa and Mr. Santiago were{**87 Misc 3d at 1048} well aware that they were both charged with the same crimes. In fact, they jointly participated in various pretrial hearings and proceedings.

In recounting certain factual recitations, both in previous papers and upon this motion, the defendant has ascribed improper motives on the part of the People as well as the court. Here, Mr. Figueroa specifically charges the court with "knowingly introducing wrong and misplaced arguments" in its prior decision (see mot papers at 12) and with trying to avoid a "wrongful conviction liable law suit" (mot papers at 9-12) in its discussion concerning certain evidence adduced at the Santiago trial which the defendant had referenced and found to be exculpatory for him, but which the court noted had been rebutted by Detective Gomez.

Reference to the court citation highlighted by the defendant confirms that the court did, indeed, erroneously identify this testimony as being contained in the minutes of the Figueroa trial, instead of the Santiago trial (see first full paragraph on last page of decision and order of Oct. 10, 2024). While the page citations were correct, there was an unintentional mis-citation to the defendant's trial minutes instead of the Santiago trial minutes. The citation should be deemed to refer to the Santiago trial rather than the Figueroa trial. This was merely a ministerial error, nothing more. It does not constitute a basis for disturbing the court's findings in the order of October 10, 2024.

In his final claim under this point heading, the defendant also takes issue with a comment [*5]made by Judge Egitto at the sentencing. Upon Mr. Figueroa's sentencing proceeding Judge Egitto had said, "When you randomly shoot 357 magnums and 38's into a building at 4:30 in the morning, you don't care who dies" (see Figueroa sentencing minutes at 15, lines 7-9). Mr. Figueroa urges that this was a false statement which confused the jury.

This claim, such as it is and being raised for the first time, is not properly before this court at this point in time. Any arguments relating to factual misstatements or erroneous considerations made by the sentencing judge should have been raised upon the defendant's original appeal from his judgment of conviction, or, at the least, upon the first CPL 440 motion which Mr. Figueroa brought before Judge Egitto.

The court concludes that none of the defendant's "reargument" claims herein are meritorious or warrant any remedial or further action on the part of the court.{**87 Misc 3d at 1049}

While the defendant also urges that the court should have conducted a hearing upon the prior motion, he fails to show why. The court finds that its prior determination was properly made without conducting a hearing as there were no factual issues requiring a hearing thereon.

II. CPL 440.20 Application Based upon Erlinger

The defendant is urging that his sentence^[FN7] be vacated, and, barring outright dismissal of the conviction (under Point I), at the least, he seeks to be resentenced as a first felony offender (instead of as a second felony offender) based upon the recent U.S. Supreme Court precedent of Erlinger v United States (602 US 821 [2024]).

Briefly stated, Erlinger addressed a claim pertaining to whether particular facts necessary for sentence enhancement must be submitted to a jury and proved beyond a reasonable doubt, rather than being determined by the sentencing judge.

Relying on Erlinger and the precedents preceding it, in particular Apprendi v New Jersey (530 US 466 [2000]), the defendant contends that facts, namely, "any fact," used to increase a defendant's sentence must be proved to a jury beyond a reasonable doubt; this includes the [*6]finding of a prior felony conviction. Since the sentencing judge here "determined, without a jury, that he had a prior felony conviction," Mr. Figueroa maintains that his sentencing to enhanced incarceration sentences as a second felony offender was unconstitutional and he had been deprived of due process.

Twenty-four years prior to Erlinger, the U.S. Supreme Court held in Apprendi v New Jersey that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted{**87 Misc 3d at 1050} to a jury, and proved beyond a reasonable doubt." (Apprendi at 489-490.) In Almendarez-Torres v United States (523 US 224 [1998]), the Supreme Court had articulated what was subsequently termed the exception to the Apprendi rule, to wit: that, upon sentencing, a trial judge was permitted to make the finding of the fact of a prior conviction, but only that finding (see Apprendi at 488-490).

Over the years, however, various court decisions and several U.S. Supreme Court Justices have come to criticize and question the Almendarez-Torres exception to the Apprendi jury sentencing enhancement rule.

In Erlinger v United States, the U.S. Supreme Court was presented with a constitutional challenge to the federal Armed Career Criminal Act (ACCA; 18 USC § 924 [e] [1]) which exposed the defendant to a harsher sentence for his conviction as a felon in possession of a firearm if he had three or more qualifying convictions for offenses "committed on occasions different from one another." Citing to the Apprendi rule, the Erlinger court held that the Fifth and Sixth Amendments required a unanimous jury to make the determination, beyond a reasonable doubt, that a defendant's past offenses were committed on separate occasions (rather than during a single criminal episode) for ACCA's enhanced sentencing purposes.

Viewing Erlinger as a broadening of the Apprendi rule and a rejection of the so-called Almendarez-Torres exception, the defendant here asserts that Almendarez-Torres will inevitably be overruled and should no longer be followed, including in this case.

Moreover, because CPL 400.21 provides that the court make the finding as to whether the defendant is a predicate felony offender, the defendant urges that the determination of this issue cannot now be submitted to a jury, and that his sentence should simply be vacated and that he be resentenced as a first felony offender.

In their answering papers, the People maintain that the motion to set aside the sentence should be denied for various reasons and they raise four points in opposition to this application.

The court agrees that the defendant has a number of obstacles in his way to establishing his entitlement to resentencing as a first-time offender, with one of them being the question of whether Erlinger is retroactively applicable to this{**87 Misc 3d at 1051} case (and if so whether its application requires disturbing his sentence).

However, before reaching those issues, a threshold observation to be made here is that the defendant's sentence upon his conviction for murder in the second degree, an A-I felony, fell outside the predicate sentencing scheme. Non-drug A-I felony sentences stand alone and have no predicate felony sentence enhancement provisions. As was true in 1989 when the instant crimes were committed, and still holds true at present, the sentencing range for a first-time felony offender (or a predicate felony offender) convicted of murder pursuant to Penal Law § 125.25 (1) or (2) is between 15 and 25 years to life imprisonment (Penal Law §§ 70.00 [1], [3] [a] [i]; [2] [a]; cf. 70.06).

Thus, the only sentences here which were subject to enhancement for a second felony offender were those imposed for the defendant's conviction for reckless endangerment in the [*7]first degree and for criminal possession of a weapon in the second degree. The court will summarize the sentencing ranges for these offenses, for both a predicate offender and a first-time felony offender. At the time of the instant crimes, the sentencing statutes provided for indeterminate sentences of incarceration, with the minimum being one third of the maximum term for a first-time offender, and one half of the maximum for a second felony offender.

Reckless endangerment in the first degree (Penal Law § 120.25, a D felony) carried a sentencing range of 1 to 3 years up to 21/3 to 7 years' imprisonment for a first-time offender (Penal Law § 70.00), and a range of between 2 to 4 years and 31/2 to 7 years for a second felony offender (Penal Law § 70.06).

Criminal possession of a weapon in the second degree (under Penal Law § 265.03, a C violent felony) had a sentencing range from 11/2 to 41/2 years up to 5 to 15 years for a first-time offender (Penal Law former § 70.02); and 3 to 6 years to 71/2 to 15 years for a second felony offender (Penal Law former § 70.06).

(While the third-degree weapon possession convictions under Penal Law § 265.02 [4], class D violent felonies, were also subject to the second felony offender sentencing provisions of Penal Law former § 70.06, those two sentences were to run concurrently with the criminal possession of a weapon in the second degree convictions. Reducing them would have no material effect on the defendant's net minimum sentence.){**87 Misc 3d at 1052}

It may be concluded accordingly that, even if successful on his resentencing claims, Mr. Figueroa's sentence for murder in the second degree would remain intact, and his net minimum sentence would (only) be reduced by six years and two months^[FN8] (and the maximum would remain undisturbed).

In their first argument point opposing resentencing, the People maintain that, under the circumstances here presented,^[FN9] this case would fall under the Almendarez-Torres "fact of a prior [*8]conviction" exception to the Apprendi holding which permits a court to make this finding, rather than a jury (Erlinger at 838), and which our Court of Appeals has found to be constitutional, and which has not been disturbed thus far.^[FN10]

This court also agrees that this straight-forward determination in the instant case of the simple fact that Figueroa had a prior nonviolent felony conviction does not require a jury and falls squarely in the noted exception. While continuing case law appears to be whittling away at the so-called Almendarez-Torres "exception" and has certainly been narrowing it, Erlinger did not overrule that precedent and the majority opinion expressly stated that the Court was not presently revisiting that narrow exception and it had no application to the sentence in that case (Erlinger). In this court's view, the facts and situation{**87 Misc 3d at 1053} in Erlinger are also very different from the matter at bar and its holding does not serve to call into question the legality of the court's finding that Mr. Figueroa was a predicate felony offender by virtue of a 1987 prior drug sale conviction (by guilty plea).

Before continuing further, the court must discuss the matter of retroactivity.

To briefly recap the direct history of this case (as is relevant to the retroactivity analysis): the defendant was sentenced on March 13, 1991, and on March 27, 1995, the Appellate Division unanimously affirmed Mr. Figueroa's judgment of conviction (as well as the order denying his first motion to vacate his judgment, upon the consolidated appeal) (People v Figueroa, 213 AD2d 669 [2d Dept 1995]). On May 19, 1995, the defendant's application for permission to appeal to the Court of Appeals from the Appellate Division's affirmance of his conviction was denied (People v Figueroa, 85 NY2d 972 [1995]). Figueroa's conviction became final 90 days later, on August 17, 1995, when his time for filing a petition for writ of certiorari in the United States Supreme Court expired (see Policano v Herbert, 7 NY3d 588, 593 [2006]; see also Clay v United States, 537 US 522, 527 [2003]).

Since his judgment is final, and became final long before Erlinger or Apprendi were decided, Erlinger would only apply to Mr. Figueroa if it is found that this decision should be retroactively applied herein, that is, upon collateral review.

Under the federal principles of retroactivity, the U.S. Supreme "Court has held that a decision announcing a new standard 'is almost automatically nonretroactive' where the decision 'has explicitly overruled past precedent' " (Allen v Hardy, 478 US 255, 258 [1986], citing Solem v Stumes, 465 US 638, 646, 647 [1984]).

In seeking to clarify the rules on retroactivity for cases on collateral review, the Supreme Court in Teague v Lane acknowledged that it is often difficult to determine what is a "new rule"; nevertheless, the Court observed that, generally, "a case announces a new rule when it [*9]breaks new ground or imposes a new obligation on the States or the Federal Government" (Teague v Lane, 489 US 288, 301 [1989], reh denied 490 US 1031 [1989]). However, the Teague court stated that, "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules{**87 Misc 3d at 1054} are announced" (id. at 310). As for the two exceptions to the rule of non-retroactivity for "new rules," the Teague court observed that "a new rule should be applied retroactively if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe' " (id. at 311 [citation omitted]); or it is a watershed rule of criminal procedure (id.) which implicates the fundamental fairness of the trial and without which new procedure "the likelihood of an accurate conviction is seriously diminished" (id. at 312-313).

This court opines that, albeit it is an extension of the Apprendi "new rule," Erlinger announced a procedural "new rule," as defined under these principles given that a jury's unanimous, beyond a reasonable doubt determination must be made in place of what was previously a judge's finding upon a preponderance of the evidence regarding prior convictions used to enhance sentences. Hence, Erlinger would not be retroactively applicable on collateral review here. Further, in this court's view, allowing a judge's determination on the existence and nature of the defendant's predicate conviction(s) to stand here does not implicate the serious concerns articulated in the exceptions to the general rule of non-retroactivity—neither the fundamental fairness of the defendant's trial nor the accuracy of the conviction are implicated in this new sentencing procedural requirement.

Therefore, this court concludes, as have others, that, under federal principles of retroactivity, Erlinger need not and should not be given retroactive effect. Nor does this court find that retroactive application of Erlinger is required under state law.

The current New York retroactivity test was first articulated in People v Pepper (53 NY2d 213 [1981], certs denied 454 US 967 [1981], 454 US 1162 [1982]). The Pepper test requires the court to

"weigh three factors to determine whether a new precedent operates retroactively: the purpose to be served by the new standard; the extent of the reliance by law enforcement authorities on the old standard; and the effect on the administration of justice of a retroactive application of the new standard. The second and third factors are, however, only given substantial weight 'when the answer to the retroactivity question is not to be found in the purpose of the new rule itself. Thus, where otherwise{**87 Misc 3d at 1055} there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial' " (Policano v Herbert, 7 NY3d 588, 603 [2006] [citation omitted], citing Pepper, 53 NY2d at 220-221).

As the Court of Appeals subsequently noted in People v Baret regarding the Pepper factors,

"[u]nder the first and most important factor, 'current constitutional standards that go to the heart of a reliable determination of guilt or innocence' will be applied retroactively, but 'decisions which are only collateral to or relatively far removed from the fact-finding process at trial' apply prospectively only (Pepper, 53 NY2d at 221)" (People v Baret, 23 NY3d 777, 799-800 [2014], cert denied 574 US 1085 [2015]).

Here, neither Ehrlinger nor Apprendi concern a determination of guilt or innocence.

Turning to the remaining two Pepper factors—i.e., reliance on the old standard and the effect of retroactivity on the administration of justice, the court concludes that these militate against a finding of retroactivity, given the "floodgate" impact such finding would have, not to [*10]mention the enormous cost of impaneling juries for the singular task of making factual findings concerning the existence and nature of a person's prior felonies many years if not decades following a conviction after trial or even upon a plea if the sentence was not fully negotiated. The task and the cost of carrying it out would be staggering and overwhelming.

Accordingly, this court finds that, under both the federal and state retroactivity tests, Erlinger should not be applied retroactively to this case, and thus the court rejects this resentencing claim.

In any event, putting aside the retroactivity question, this court agrees with the People's further observation that, insofar as Mr. Figueroa explicitly admitted the facts necessary to find his prior conviction a predicate felony for sentencing purposes, no jury finding thereon would be necessary for Apprendi purposes (see United States v Booker, 543 US 220, 244 [2005]; see also People v Frazier, 85 Misc 3d 482, 487 [Sup Ct, Queens County 2024] [as defendant conceded his prior felony convictions{**87 Misc 3d at 1056} (in his plea allocution), it was held that even under Erlinger, the court had the "authority to find the sole fact of the defendant's prior conviction"]).

In light of these findings, the court need not discuss the People's fourth argument against resentencing.

The defendant's application to vacate his sentence pursuant to CPL 440.20 is, respectfully, denied.

Based upon all of the foregoing, this court concludes that the defendant's motion is denied in its entirety, without a hearing.