Bond v. Annucci

• Decision Date: 17 December 2020
• Docket Number: 529280
• Citation: Bond v. Annucci, 189 A.D.3d 1843, 137 N.Y.S.3d 570 (N.Y. App. Div. 2020)
• Parties: In the Matter of Thomas BOND, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1843

137 N.Y.S.3d 570

In the Matter of Thomas BOND, Appellant,

v.Anthony J. ANNUCCI, as ActingCommissioner of Corrections and Community Supervision, Respondent.

529280

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 23, 2020

Decided and Entered: December 17, 2020

The Legal Aid Society, New York City(Laura Boyd of counsel), for appellant.

Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the Supreme Court(Elliott III, J.), entered May 24, 2019 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to compel the Department of Corrections and Community Supervision to recalculate certain sentences to run concurrently.

In 2010, petitioner was convicted of attempted burglary in the second degree and sentenced, as a persistent violent felony offender, to a prison term of 12 years to life (hereinafter the original 2010 sentence).Petitioner's persistent sentencing status was based upon felony convictions in 1986 and 2000.In 2012, petitioner moved to vacate that sentence pursuant to CPL 440.20, arguing that he was not a persistent violent felony offender; Supreme Court(Price, J.) vacated the original 2010 sentence and resentenced petitioner as a second violent felony offender to a prison term of seven years to be followed by five years of postrelease supervision (hereinafter the 2010 resentence), and petitioner was released on postrelease supervision (hereinafter PRS).While the People's appeal from the 2010 resentence was pending, petitioner was arrested on new charges stemming from conduct in 2012 and later pleaded guilty to several crimes; he was sentenced in 2013 to an aggregate prison term of 14 years, as a second felony offender (hereinafter the 2013 sentence).¹Thereafter, on the People's appeal from the 2010 resentence, the First Department, relying on recent Court of Appeals authority, concluded that petitioner was not entitled to relief under CPL 440.20 with regard to the original 2010 sentence, vacated the 2010 resentence, and reinstated the original 2010 sentence (seePeople v. Bond,115 A.D.3d 611, 986 N.Y.S.2d 327[2014] ).

In 2015, petitioner filed a second motion pursuant to CPL article 440 to vacate the original 2010 sentence, this time based upon a claim of ineffective assistance of counsel in failing in 2010 to challenge the 2000 predicate conviction under People v. Catu,4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081[2005].Supreme Court(Price, J.) initially concluded, based upon then-governing precedent, that petitioner's 2000 predicate conviction could not be relied upon in determining his sentencing status, vacated the original 2010 sentence, and resentenced him, as a second felony offender, to a prison term of five years in prison with five years of PRS (seePeople v. Bond,52 Misc.3d 207, 209–211, 28 N.Y.S.3d 296[Sup. Ct, Bronx County2016].Supreme Court(Bruce, J.) later granted the People's application pursuant to CPL 440.40 to set aside that resentence based upon People v. Smith,28 N.Y.3d 191, 43 N.Y.S.3d 771, 66 N.E.3d 641[2016], which held that Catu does not apply retroactively in enhanced sentencing proceedings, and ordered that the original 2010 sentence be reinstated.Following a sentencing appearance in March 2018, petitioner was resentenced upon his 2010 conviction, as a persistent violent felony offender, to the original prison term of 12 years to life.²The court did not address how the reinstated original 2010 sentence would run with regard to the 2013 sentence.

The Department of Corrections and Community Supervision(hereinafter DOCCS) thereafter calculated petitioner's parole eligibility date to be in 2030, treating the 2018 proceeding as a reinstatement of the original 2010 sentence and not a de novo resentencing.Finding that petitioner(1) was subject to the undischarged 2010 sentence at the time that he was sentenced in 2013 and (2) committed the crimes underlying the 2013 convictions after the original 2010 sentence was imposed, DOCCS concluded that consecutive sentences were required by Penal Law § 70.25(2–a).

Petitioner commenced this CPLR article 78 proceeding seeking to compel DOCCS to calculate his sentences to run concurrently pursuant to Penal Law § 70.25(1)(a).Petitioner argued, among other points, that the 2018 sentencing court did not specify how the sentences would run and, thus, they must run concurrently.DOCCS opposed that relief, contending that the sentences must run consecutively, as required by Penal Law § 70.25(2–a), and that Supreme Court(Bruce, J.) had no authority in 2018 to alter the original 2010 sentence.Supreme Court(Elliott III, J.) denied the requested relief.Petitioner appeals.

We affirm.DOCCS properly calculated petitioner's 2013 sentence as running consecutively to his reinstated original 2010 sentence, as required by Penal Law § 70.25(2–a).As the foregoing summary establishes, the original 2010 sentence was never properly disturbed and, when Supreme Court(Bruce, J.) set aside the second resentencing in 2017 on the People's motion, it ordered "reinstate[ment of the] original indeterminate sentence of [12] years to life in prison with the designation as a mandatory persistent felony offender."The court later followed its own directive and reinstated that original 2010 sentence and status; although the court gave petitioner an opportunity to create a record challenging one of his predicate convictions, it did not conduct a de novo sentencing.As the court merely reinstated the original 2010 sentence, DOCCS properly deemed that sentence to have been imposed in 2010.

As relevant here, pursuant to Penal Law § 70.25(2–a), where a person is sentenced as a second felony offender and "such person is subject to an undischarged indeterminate or determinate sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence."Petitioner was sentenced as a second felony offender in 2013 and was then subject to the undischarged 2010 indeterminate sentence, and the crimes underlying the 2013 sentence were committed in 2012, after the original 2010 sentence was imposed; thus, DOCCS was required by Penal Law § 70.25 (2–a) to calculate the sentences as running consecutively (seePeople ex rel. Gill v. Greene,12 N.Y.3d 1, 5–6, 875 N.Y.S.2d 826, 903 N.E.2d 1146[2009], cert denied558 U.S. 837, 130 S.Ct. 86, 175 L.Ed.2d 59[2009] ).This is true regardless of whether the sentencing court specified how the sentences would run, as the statute itself requires consecutive sentencing (seeid. at 6, 875 N.Y.S.2d 826, 903 N.E.2d 1146 ).

Petitioner is correct that, under the general default rule, when a sentencing court fails to address how the sentences run, they are to run concurrently (seePenal Law § 70.25[1][a], [b] ).However, that default rule is inapplicable here, and none is needed as the statute provides the rule and "the court ha[d] no choice about which kind of sentence to impose"( People ex rel. Gill v. Greene,12 N.Y.3d at 6, 875 N.Y.S.2d 826, 903 N.E.2d 1146 ).Thus, Supreme Court(Bruce, J.)"is simply deemed to have complied with the statute" – Penal Law § 70.25(2–a) – requiring consecutive sentencing ( id.;seeMatter ofSmith v. Stanford, 142 A.D.3d 1208, 1209–1210, 37 N.Y.S.3d 357[2016];Matter ofCampbell v. Fischer, 104 A.D.3d 979, 980, 960 N.Y.S.2d 333[2013];Matter ofAvent v. Fischer, 70 A.D.3d 1145, 1145–1146, 895 N.Y.S.2d 561[2010] ).Moreover, in 2018, after the resentence was vacated, the court did not impose an "additional term of imprisonment" within the meaning of Penal Law § 70.25(1)...