People v. Acevedo

• Citation: 17 N.Y.3d 297,929 N.Y.S.2d 55,952 N.E.2d 1047,2011 N.Y. Slip Op. 05582
• Parties: The PEOPLE of the State of New York, Appellant,v.Benito ACEVEDO, Respondent.The People of the State of New York, Appellant,v.Dionis Collado, Respondent.
• Decision Date: 30 June 2011
• Court: New York Court of Appeals Court of Appeals

17 N.Y.3d 297
952 N.E.2d 1047
929 N.Y.S.2d 55
2011 N.Y. Slip Op. 05582

The PEOPLE of the State of New York, Appellant,
v.
Benito ACEVEDO, Respondent.The People of the State of New York, Appellant,
v.
Dionis Collado, Respondent.

Court of Appeals of New York.

June 30, 2011.

[929 N.Y.S.2d 56]

Cyrus R. Vance, Jr., District Attorney, New York City (Dana Poole and Hilary Hassler of counsel), for appellants in the first and second above-entitled actions.Center for Appellate Litigation, New York City (Jan Hoth and Robert S. Dean of counsel), for respondent in the first above-entitled action.Center for Appellate Litigation, New York City (Bruce D. Austern and Robert S. Dean of counsel), for respondent in the second above-entitled action.[17 N.Y.3d 299] [952 N.E.2d 1048] OPINION OF THE COURT Chief Judge LIPPMAN.

The threshold, and we believe dispositive, issue on these appeals is whether a resentencing sought by a defendant to correct an illegally lenient sentence is effective to temporally resituate the sentence and thus alter the underlying conviction's utility as a predicate for enhanced sentencing. This common issue arises from the following facts in each of the above-captioned matters.

People v. Acevedo

In 2006, Mr. Acevedo was convicted of criminal sale of a controlled substance in the third degree and possession of a controlled substance in the third degree and sentenced as a second felony drug offender with a prior violent felony to concurrent prison terms of six years and three years of postrelease supervision (PRS). The predicate conviction for Acevedo's 2006 sentence was one for attempted robbery in the second degree for which Acevedo was originally sentenced in accordance with his plea bargain to a determinate prison term of four years in 2001. Omitted from the 2001 sentence was the statutorily required PRS term ( see Penal Law § 70.45[1] ); it had not been [17 N.Y.3d 300] made a part of the plea and was not pronounced at the 2001 sentencing proceeding. In 2008, some three years after Acevedo had completed the sentence imposed in the 2001 judgment, but while he was still serving his sentence under the 2006 judgment, he moved pursuant to CPL 440.20 to be resentenced on his 2001 conviction. The motion was granted on the People's consent in December 2008, and defendant was resentenced, with the People's consent pursuant to [952 N.E.2d 1049]

[929 N.Y.S.2d 57]

Penal Law § 70.85,^* to the identical term of imprisonment nunc pro tunc to July 19, 2001.

Less than three weeks after the resentence, in early January 2009, Acevedo moved, again pursuant to CPL 440.20, to vacate his second felony drug offender adjudication in the 2006 case. He argued that because his resentence on the 2001 conviction occurred in 2008, it postdated the offense for which he was sentenced in 2006 and, accordingly, that the underlying conviction no longer qualified as a predicate for enhanced sentencing in connection with his 2006 conviction. A predicate sentence, he noted, “must have been imposed before commission of the present felony” (Penal Law § 70.06 [1][b][ii] ).

The motion court, citing People v. Sparber, 10 N.Y.3d 457, 472, 889 N.E.2d 459 (2008), denied vacatur of the 2006 predicate adjudication upon the ground that the defect in the 2001 sentence arose from a mere “procedural error” that did not vitiate the 2001 judgment's validity as a prior felony conviction.

The Appellate Division, with one Justice dissenting, reversed (75 A.D.3d 255, 901 N.Y.S.2d 239 [2010] ). It reasoned that, logically, a resentence entails vacatur of the original sentence and that we had, in fact, held in Sparber that the “sole remedy for a procedural error such as this [the failure of the sentencing court to pronounce a PRS term at sentencing] is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement” (75 A.D.3d at 259, 901 N.Y.S.2d 239, quoting Sparber, 10 N.Y.3d at 471, 859 N.Y.S.2d 582, 889 N.E.2d 459 [emphasis added] ). Nor was the Court of the view that the omission to be cured by the procedure described in Sparber was a mere formality inconsequential beyond the limited purpose of curing the trial court's failure to pronounce the required PRS component of a determinate sentence. Here, [17 N.Y.3d 301] the Court noted our language in Sparber and Matter of Garner v. New York State Dept. of Correctional Servs., 10 N.Y.3d 358, 859 N.Y.S.2d 590, 889 N.E.2d 467 (2008) in which we stressed that resentencing to pronounce a mandatory PRS term had a substantial effect on a defendant and that the procedure implicated the public interest in ensuring the regularity of sentencing ( see Sparber, 10 N.Y.3d at 470, 859 N.Y.S.2d 582, 889 N.E.2d 459; Garner, 10 N.Y.3d at 363, 859 N.Y.S.2d 590, 889 N.E.2d 467). Inasmuch, then, as the Court understood Acevedo's 2001 sentence to have been vacated as a necessary antecedent to his resentencing, it concluded that his operative sentence for the 2001 attempted robbery was the one imposed at the 2008 resentencing—one which plainly did not qualify as a predicate for enhanced sentencing with respect to the crimes for which defendant was convicted in 2006.

People v. Collado

The enhanced sentence challenged by Mr. Collado was imposed in September 2005; Collado, after being convicted of two counts of second degree robbery based upon an incident that took place in December 2004, was then adjudged a second violent felony offender and sentenced to concurrent eight-year terms. The predicate offense for the second violent felony offender adjudication was a second degree attempted robbery conviction obtained against Collado in June 2000, for which he was, at that time, sentenced to a determinate term of two years. PRS, although [952 N.E.2d 1050]

[929 N.Y.S.2d 58]

statutorily mandated as a component of both the 2005 and 2000 sentences, was not pronounced by either sentencing court. At the conclusion of the appellate process stemming from the 2005 judgment of conviction, this Court deemed Collado's still undischarged 2005 sentence illegal by reason of the sentencing court's failure orally to pronounce the PRS portion of Collado's determinate sentence (11 N.Y.3d 888, 889, 873 N.Y.S.2d 258, 901 N.E.2d 752 [2008] ), and, in accordance with Sparber (10 N.Y.3d at 469–471, 859 N.Y.S.2d 582, 889 N.E.2d 459), we remitted the matter for resentencing (11 N.Y.3d at 889, 873 N.Y.S.2d 258, 901 N.E.2d 752).

In January 2009, before the Sparber proceeding with respect to the 2005 conviction, Collado moved pursuant to CPL 440.20 to be resentenced upon his 2000 conviction (the predicate for his 2005 second...