People v. Bedell

• Citation: 210 A.D.2d 922,621 N.Y.S.2d 967
• Parties: PEOPLE of the State of New York, Respondent, v. Precious BEDELL, Appellant.
• Decision Date: 23 December 1994
• Court: New York Supreme Court Appellate Division

Page 967

621 N.Y.S.2d 967

210 A.D.2d 922

PEOPLE of the State of New York, Respondent, v. Precious BEDELL, Appellant.

Supreme Court of New York, Appellate Division Fourth Department.

Dec. 23, 1994.

Nancy Hollander, Albuquerque, N.M., for appellant.

William J. Fitzpatrick by Gary Kelder, Syracuse, for respondent.

Order affirmed for reasons stated in decision at Onondaga County Court. (Appeal from Order of Onondaga County Court, Mulroy, J. CPL art. 440.)

BALIO, CALLAHAN and DOERR, JJ., concur.

WESLEY, J., concurs in result in the following Memorandum:

I concur in the result reached by the majority but believe it necessary to expand upon the discussion of County Court's ability to set aside defendant's sentence pursuant to CPL 440.20(1). Defendant did not question the propriety of her sentence on direct appeal (see, People v. Bedell, 94 A.D.2d 982, 464 N.Y.S.2d 613, lv. denied 59 N.Y.2d 971, 466 N.Y.S.2d 1031, 453 N.E.2d 555), or in the habeas corpus proceeding in Federal court. Furthermore, defendant seeks relief under CPL 440.20(1) only.

The dissent acknowledges that the request by defendant for reduction of her sentence is not premised upon a constitutional attack on the sentence as originally imposed. Rather, the dissent asserts that defendant's sentence is invalid as a matter of law "because [defendant's] continued incarceration through the minimum term violates the constitutional proscription against cruel and unusual punishment (see, U.S. Const. 8th Amend.; N.Y. Const., art. I, § 5)". Although our Court does have the power "to strike down punishments as violative of constitutional limitations, the power must be exercised with especial restraint" (People v. Broadie, 37 N.Y.2d 100, 110, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287). The Court's power to examine the constitutional dimensions of a State-imposed sentencing scheme, however, is limited to weighing the gravity of the offense against the danger the offender poses to society at the time the sentence is imposed (People v. Broadie, supra, 37 N.Y.2d at 112, 371 N.Y.S.2d 471, 332 N.E.2d 338; see also, People v. Escobales, 146 Misc.2d 573, 575, 551 N.Y.S.2d 757). I know of no authority that permits a mid-sentence constitutional assessment as proposed by defendant and the dissent, nor does the dissent provide us with one.

Our Court does have the statutory authority, as created by the Legislature, to review whether a sentence is harsh or excessive on direct appeal (CPL 470.15[6][b]. The dissent correctly notes that appellate courts pursuant to CPL 470.15(6)(b) have on occasion exercised their discretion to reduce sentences, legally imposed, based upon progress towards rehabilitation through educational achievements (see, e.g., People v. Chen, 176 A.D.2d 628, 575 N.Y.S.2d 69; People v. Chambers, 123 A.D.2d 270, 506 N.Y.S.2d 173; People v. Hiemel, 49 A.D.2d 769, 372 N.Y.S.2d 730) and enrollment in substance abuse treatment or other counselling programs (see, e.g., People v. Andrea FF., 185 A.D.2d 557, 586 N.Y.S.2d 423; People v. Chen, supra; People v. Orr, 138 A.D.2d 416, 525 N.Y.S.2d 700). All of those cases, however, represent an alteration of the sentence premised on changes in the individual's life post plea, but prior to sentencing (see, People v. Chambers, supra; People v. Orr, supra ); during the time between a successful appeal and resentencing (see, People v. Hiemel, supra; People v. Andrea FF., supra ); or while a direct appeal was pending (see, People v. Bagley, 128 A.D.2d 980, 513 N.Y.S.2d 291; People v. Chen, supra ). The discretion exercised by appellate courts in those cases was delegated to them by the Legislature and does not have a constitutional genesis in the 8th Amendment of the U.S. Constitution or article I, § 5 of the N.Y. Constitution.

The Legislature may choose to extend additional discretion in this regard to the courts to resentence defendants based upon their rehabilitative efforts while in State custody (see, Fed.Rules Crim.Pro., rule 35[b]. However, article IV, § 4 of the N.Y. Constitution and section 15 of the Executive Law vest authority to commute sentences for all offenses, except treason and cases of impeachment, with the Governor. The Governor's guidelines for clemency require clear and convincing evidence (1) that the applicant has made exceptional strides in self-development and improvement; (2) that the applicant has made responsible use of available rehabilitative programs and identified treatment needs; and (3) that commutation of the sentence is in the interest of justice consistent with public safety and the rehabilitation of the applicant (Guidelines for Review of Executive Clemency Applications, reprinted following McKinney's Cons.Laws of N.Y., Book 18, Executive Law § 15, at 18-19). While the Governor's guidelines closely parallel judicial considerations under CPL 470.15(6)(b) (see, People v. Andrea FF., supra, 185 A.D.2d, at 558-559, 586 N.Y.S.2d 423), the power to grant clemency remains vested by law with the Governor and not with this Court.

Although the record gives only limited details surrounding the death of defendant's daughter in 1980, it is clear that, as the dissent notes, defendant has been a model prisoner while incarcerated. She has changed her life and while doing so, has made significant contributions to other inmates through her writings and her programs in the areas of parenting and foster care. The sad truth remains that, under existing law, defendant has chosen the wrong forum for what may indeed be well-deserved relief.

The dissent concludes that "[r]equiring defendant to remain incarcerated for an additional 10 years amounts to cruel and unusual punishment". However, the relief it suggests, imposing the minimum term of 15 years, does not necessarily resolve the constitutional issue as defined by the dissent. There is no guarantee that defendant will be paroled once she has served the minimum term and applies for parole in July 1995. There is no inherent constitutional right to parole (Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 73, 427 N.Y.S.2d 982, 405 N.E.2d 225). Determinations by the Parole Board are not subject to judicial review if done in accordance with State law (Executive Law § 259-i[5]; see also, Matter of Gonzalez v. Rodriguez, 135 A.D.2d 633, 522 N.Y.S.2d 212; Matter of Davis v. New York State Div. of Parole, 114 A.D.2d 412, 494 N.Y.S.2d 136).

Until the Legislature gives us authority to review a sentence based on the laudable efforts by a defendant during her term of imprisonment to change her life, such that the interest of justice requires a reduction in the minimum imposed, we are prohibited from doing so. I see no basis in the Eighth Amendment of the U.S. Constitution or in article I, § 5 of the N.Y. Constitution that allows otherwise. The order appealed from must be affirmed.

GREEN, Justice Presiding, dissents and votes to reverse in the following Memorandum:

I dissent. Fourteen years ago, defendant was convicted of murder in the second degree (Penal Law § 125.25[2] for killing her infant daughter, LaShonda. The trial court imposed the maximum sentence of 25 years to life. This Court affirmed her conviction (see, People v. Bedell, 94 A.D.2d 982, 464 N.Y.S.2d 613), and the Court of Appeals denied leave to appeal (59 N.Y.2d 971, 466 N.Y.S.2d 1031, 453 N.E.2d 555).

Defendant moved, pursuant to CPL 440.20(1), to set aside her sentence on the ground that it is unconstitutionally harsh. Defendant sought imposition of the minimum term permitted by law upon her murder conviction, 15 years to life imprisonment (see, Penal Law § 70.00[3][a][i]. A hearing was held before County Court. At that hearing, defendant presented compelling evidence of her rehabilitation and of her extraordinary achievements in prison. The hearing ended with the impassioned remarks of the District Attorney of Onondaga County, who had joined defendant's motion seeking a reduction in sentence. The District Attorney expressed the People's view that "justice would be served by this woman being re-sentenced" and beseeched the court to grant defendant's motion.

The court denied the motion solely on the ground that it lacked authority to grant the requested relief pursuant to CPL 440.20. That was error. Subdivision (1) of CPL 440.20 provides:

"At any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law."

Defendant urges that her sentence is "invalid as a matter of law" because her continued incarceration through the minimum term of 25 years violates the constitutional proscriptions against cruel and unusual punishment (see, U.S. Const. 8th Amend.; N.Y. Const., art. I, § 5). CPL 440.20(1) permits defendant to raise such a challenge to her sentence "[a]t any time after the entry of a judgment" and grants the sentencing court discretion to sustain that challenge. The court's discretion is in no way constrained by the fact that defendant has commenced serving her sentence (see, People v. Turner, 47 A.D.2d 564, 363 N.Y.S.2d 638). Further, nothing in the language of the statute limits the court to correcting errors arising at the time the original judgment was entered. Indeed, at least two courts have entertained post-judgment motions alleging that particular sentences, although authorized and legal at the time they were imposed, have been rendered unconstitutionally cruel by subsequent events (see, People v. Escobales, 146 Misc.2d 573, 551 N.Y.S.2d 757; People v. Dowd, 140 Misc.2d 436, 530 N.Y.S.2d 733). In concluding that it lacked discretion to grant the motion, the court erred as a matter of law (see, People v. Aphaylath, 68 N.Y.2d 945, 510 N.Y.S.2d 83, 502 N.E.2d 998; People v. Williams, 56 N.Y.2d 236, 240-241, 451 N.Y.S.2d 690, 436 N.E.2d...