Second Department: NY CPL 440 motion to set aside the verdict granted – remitted to determine whether Defendant was properly sentenced as a mandatory persistent violent felony offender

In People v. Rivera, 2016 NY Slip Op 07036 (Second Department, October 26, 2016), the Court deals with the issue as to whether the Defendant was improperly sentenced as a mandatory persistent violent felony offender. The Defendant went to trial and lost. He was sentenced and, as any good criminal defense attorney would do, he pled with the prosecutor for leniency; however, the defendant was never heard as to the issue of whether he should be considered a mandatory persistent violent felony offender.  The Court reiterated the following facts:

The defendant was convicted, upon a jury verdict, of criminal possession of a weapon in the second degree. Several weeks before sentence was imposed, the prosecutor submitted to the Supreme Court a sentencing letter in which he summarized, among other things, the defendant’s criminal history, including convictions of violent felony offenses in 1986 and 1995. The prosecutor asserted that the defendant was a “mandatory persistent violent felony offender,” that the minimum permissible term was 16 years to life imprisonment, and the maximum was 25 years to life imprisonment. He urged the court to impose a sentence of 20 years to life imprisonment. A week before sentence was imposed, defense counsel responded to the prosecutor’s letter. Counsel acknowledged that the minimum permissible term was 16 years to life, and he urged the court to exercise leniency. The People never submitted a formal statement pursuant to CPL 400.16. At sentencing, the court did not ask the defendant whether he had seen the prosecutor’s letter, and it did not give the defendant an opportunity to controvert any allegations about his prior violent felony convictions. Indeed, the court said nothing about the defendant’s status as a persistent violent felony offender until it actually imposed sentence. The defendant appealed his judgment of conviction to this Court, but he did not raise any claim related to his sentence (see People v Rivera, 98 AD3d 529).

In his appeal, the defendant claims that he had ineffective assistance of counsel and that he was not a persistent violent felony offender. Albeit the Defendant claimed his sentence was illegal, the Court summarily “faulted the defendant for not objecting to the procedure when he was sentenced and for not raising his sentencing claims on his direct appeal…” while it “acknowledged that the procedure by which the defendant was sentenced as a persistent violent felony offender was not in compliance with CPL 400.15 and 400.16.”

CPL 400.15 and 400.16 “govern the procedure that must be followed in any case where it appears that a defendant who stands convicted of a violent felony offense . . . has previously been subjected to two or more predicate violent felony convictions . . . and may be a persistent violent felony offender” (CPL 400.16[1]). Because neither the People nor the Supreme Court complied with that mandatory procedure, the sentence was “illegally imposed” (CPL 440.20[1]), regardless of whether the defendant is, in fact, a persistent violent felony offender (see Penal Law § 70.08[1]), and the Supreme Court should have granted the motion to set aside the sentence (see CPL 440.30[3]).

Conclusion: “[T]he defendant’s motion pursuant to CPL 440.20 to set aside his sentence is granted, the sentence is vacated, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.”

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