People v. Alvarez

• Decision Date: 16 July 1991
• Parties: The PEOPLE of the State of New York v. Lloyd ALVAREZ.
• Court: New York Supreme Court

Page 592

573 N.Y.S.2d 592

151 Misc.2d 697

The PEOPLE of the State of New York v. Lloyd ALVAREZ.

Supreme Court, Kings County,

IAS Part 6.

July 16, 1991.

Michael A. Drobenare, Brooklyn, for Alvarez.

Charles J. Hynes, Dist. Atty., Kings County Asst. Dist. Attys. Lindsay Brown and Jay Cohen, for the People.

HERBERT KRAMER, Justice.

Defendant moves for an order setting aside his sentence upon the ground that it was "invalid as a matter of law" under People v. Van Pelt, 76 N.Y.2d 156, 556 N.Y.S.2d 984, 556 N.E.2d 423; CPL 440.20[1].

Defendant was convicted after a jury trial of the crimes of Murder in the Second Degree (2 counts) and Robbery in the First Degree. On November 12, 1980 Justice John R. Starkey sentenced defendant to terms of imprisonment of from 20 years to life on the murder counts and 5 to 15 years on the robbery count. The sentences to run concurrently (min. 11-12-80 pp. 7-8). The Appellate Division, Second Department, reversed defendant's judgement of conviction because of errors in the trial court's jury charge (96 A.D.2d 864, 465 N.Y.S.2d 758).

Defendant was retried before this court without a jury and was convicted of the crimes of Murder in the Second Degree (2 counts) and Robbery in the First Degree. Defendant was sentenced by this court on November 15, 1984 to concurrent indeterminate terms of 12 1/2 to 25 years imprisonment on the robbery count and 25 years to life imprisonment on the murder counts (min. 11-15-84, p. 8). The Appellate Division, Second Department, in November, 1987, affirmed defendant's judgment of conviction (134 A.D.2d 599, 521 N.Y.S.2d 497). One of the issues raised on defendant's appeal was whether it was improper for this court to impose a greater sentence after retrial. The appellate court wrote:

"... [a]lthough a presumption of vindictiveness may arise when a greater sentence is imposed following a retrial, where, as here, the sentences are imposed by different Judges, the presumption is inapplicable and the defendant has to prove actual vindictiveness (see, People v. Best, 127 A.D.2d 671, 511 N.Y.S.2d 897, [lv. denied 70 N.Y.2d 642, 518 N.Y.S.2d 1034, 512 N.E.2d 560]; Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104). The defendant failed to meet this burden in view of the court's statement that it was not aware of the prior sentence and was imposing its sentence based on the defendant's past criminal history and the nature of the instant offenses" (People v. Alvarez, 134 A.D.2d 599, 600, 521 N.Y.S.2d 497; emphasis added).

Leave to the Court of Appeals was denied on March 24, 1988 (71 N.Y.2d 892, 527 N.Y.S.2d 1001, 523 N.E.2d 308).

On June 5, 1990 the Court of Appeals decided People v. Van Pelt, 76 N.Y.2d 156, 556 N.Y.S.2d 984, 556 N.E.2d 423, supra. In that case the court held that the State's Due Process Clause makes no distinction between the imposition of a higher sentence after retrial by the same or a different sentencer. In either case the presumption of vindictiveness applies.

CPL 440.20 subdivision 2 states that:

"2. [n]otwithstanding the provisions of subdivision one, the court must deny such a motion when the ground or issue raised thereupon was previously determined on the merits upon an appeal from the judgment or sentence unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue" (emphasis added).

Since this issue was determined on appeal, the court must decide whether People v. Van Pelt, 76 N.Y.2d 156, 556 N.Y.S.2d 984, 556 N.E.2d 423, supra announced a "retroactively effective change in the law ..." (CPL 440.20[2].

A case announces a "new rule" if the result reached was not "dictated" by precedent existing at the time defendant's judgment of conviction became final ¹ (Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334; see also, Griffith v. Kentucky, 479 U.S. 314, 321, n. 6, 107 S.Ct. 708, ----, n. 6, 93 L.Ed.2d 649). In People v. Pepper, 53 N.Y.2d 213, supra, at 219, 440 N.Y.S.2d 889, 423 N.E.2d 366, the court referred to new law as an "abrupt change ... in decisional law".

The presumption of vindictiveness was formulated by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 decided June 23, 1969. ² It was based on the federal Due Process Clause. The presumption was held to be rebuttable by showing that the higher sentence was based upon "events subsequent to the first trial ..." and not because the defendant was successful on appeal (395 U.S. supra, at 723, 89 S.Ct., at 2079).

Later cases held that the presumption of vindictiveness in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, supra was inapplicable where there were two different sentencers (see, e.g. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 [1972]; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 [1973]; Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104, supra, [1986].

In Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104, supra, decided February 26, 1986, the Supreme Court held that the presumption of vindictiveness did not apply when the original sentence and the higher sentence were imposed by two different sentencers. When there are two different sentencers, the Court held, "a sentence 'increase' cannot truly be said to have taken place" (475 U.S., supra at 140, 106 S.Ct. at 979) and actual vindictiveness must be proved. Thus, at the time the Appellate Division, Second Department, decided defendant's appeal (November, 1987) the law was that when two different judges imposed the sentences, the presumption of vindictiveness was inapplicable and defendant had to prove that the higher sentence was imposed because of "actual vindictiveness" (People v. Alvarez, 134 A.D.2d 599, supra, at 600, 521 N.Y.S.2d 497). The Appellate Division held that defendant failed to meet this burden (People v. Alvarez, supra at 600, 521 N.Y.S.2d 497).

Prior to People v. Van Pelt, 76 N.Y.2d 156, 556 N.Y.S.2d 984, 556 N.E.2d 423, supra the courts have never considered New York State's due process requirement on the issue of increased sentencing as being different from the federal due process requirement as enunciated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, supra and its progeny (see, e.g. People v. Miller, 65 N.Y.2d 502, 493 N.Y.S.2d 96, 482 N.E.2d 892 [1985], cert. denied 474 U.S. 951, 106 S.Ct. 317, 88 L.Ed.2d 300; People v. Williams, 34 N.Y.2d 657, 355 N.Y.S.2d 578, 311 N.E.2d 650 [1974]; People v. Alvarez, 134 A.D.2d 599, 521 N.Y.S.2d 497 [1987] supra, lv. denied 71 N.Y.2d 892, 527 N.Y.S.2d 1001, 523 N.E.2d 308 [1988]; People v. Best, 127 A.D.2d 671, 511 N.Y.S.2d 897 [1987], lv. denied 70 N.Y.2d 642, 518 N.Y.S.2d 1034, 512 N.E.2d 560 [1987]; People v. Best, 112 A.D.2d 942, 492 N.Y.S.2d 463 [1985], lv. denied 66 N.Y.2d 917, 498 N.Y.S.2d 1031, 489 N.E.2d 776 [1985]; People v. Simone, 78 A.D.2d 685, 432 N.Y.S.2d 248 [1980]; Matter of Avery v. Rechter, 71 A.D.2d 500, 502-503, 423 N.Y.S.2d 514 [1979]; People v. Yannicelli, 47 A.D.2d 911, 366 N.Y.S.2d 230 [1975], mod. 40 N.Y.2d 598, 389 N.Y.S.2d 290, 357 N.E.2d 947 [1976].

In People v. Van Pelt, 76 N.Y.2d 156, 556 N.Y.S.2d 984, 556 N.E.2d 423, supra the Court for the first time imposed a "more protective benefit" of our State due process than its federal counterpart (People v. Van Pelt, supra, at 162, 556 N.Y.S.2d 984, 556 N.E.2d 423).

The Court finds that Van Pelt announced a "new rule" (see, People v. Pepper, 53 N.Y.2d 213, supra, at 219, 440 N.Y.S.2d 889, 423 N.E.2d 366).

The court will now determine whether the "new rule" set forth in People v. Van Pelt, 76 N.Y.2d 156, 556 N.Y.S.2d 984, 556 N.E.2d 423, supra is to be given retroactive effect to cases which were already final on the date it was decided (People v. Pepper, 53 N.Y.2d 213, 220, 440 N.Y.S.2d 889, 423 N.E.2d 366).

Decided with People v. Pepper, 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366, supra was People v. Torres, 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366. In Torres the issue was whether People v. Samuels, ³ 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344 was to be given retroactive application in a collateral attack on a conviction which was final. Sentence had been pronounced on Torres on March 3, 1976. His conviction was affirmed by the Appellate Division, Second Department, on June 26, 1978 (63 A.D.2d 1033, 406 N.Y.S.2d 500). On August 15, 1978 leave to appeal to the Court of Appeals was denied (45 N.Y.2d 831). On January 15, 1980 the Court of Appeals decided People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344, supra. Torres made an application for reconsideration as a result of the Samuels decision ⁴. The Court of Appeals held that absent "manifest injustice" Samuels was not retroactive to Torres' case which was already final when the change in law occurred.

In People v. Laffman, 161 A.D.2d 111, 554 N.Y.S.2d 840, involving a collateral attack (CPL Article 440), the court held that when a new rule of law has as its purpose "preserving the fact-finding process from unreliably obtained information bearing directly and substantially on a defendant's guilt or innocence ..." the new rule should be given retroactive effect, whether on direct review or in a collateral attack (161 A.D.2d, supra, at 112-113, 554 N.Y.S.2d 840; emphasis added).

Defendant had a full hearing before the Appellate Division, Second Department, as to whether it was improper for this court to impose a greater sentence after retrial. The Appellate Division in November, 1987, almost three years prior to the decision in People v. Van Pelt, 76 N.Y.2d 156, 556 N.Y.S.2d 984, 556 N.E.2d 423, supra, decided the issue against defendant in accord with the law existing at that time (134 A.D.2d 599, supra, at 600, 521 N.Y.S.2d 497).

Furthermore, the issue presented by People v. Van Pelt, 76...