People v. Boykins

• Decision Date: 27 April 2018
• Docket Number: KA 16–01467,123
• Citation: 161 A.D.3d 183,75 N.Y.S.3d 386
• Parties: The PEOPLE of the State of New York, Respondent, v. Reginald D. BOYKINS, Defendant–appellant.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 183
75 N.Y.S.3d 386

The PEOPLE of the State of New York, Respondent,
v.
Reginald D. BOYKINS, Defendant–appellant.

123
KA 16–01467

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

Entered: April 27, 2018

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.

VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN (DAVID G. MASHEWSKE OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND CURRAN, JJ.

OPINION AND ORDER

Opinion by Dejoseph, J.:

The issue raised in this appeal is whether the 2004 and 2009 Drug Law Reform Acts ( [DLRA] L 2004, ch 738; L 2009, ch 56) allow a sentencing court to sentence a

75 N.Y.S.3d 387

defendant convicted of a felony offense defined in Penal Law article 220 or 221, i.e., a controlled substance or marihuana offense, as a persistent felony offender (PFO). We conclude that the DLRA removed County Court's discretion to sentence a defendant convicted of a drug felony as a persistent felony offender.

Facts and Procedural History

Defendant was charged by indictment with two counts of criminal possession of a controlled substance (CPCS) in the third degree ( Penal Law § 220.16[1] ), based on allegations that defendant knowingly and unlawfully possessed cocaine with the intent to sell it on February 18, 2012 and March 14, 2012, and two counts of criminal sale of a controlled substance (CSCS) in the third degree (§ 220.39[1] ), based on allegations that defendant knowingly and unlawfully sold cocaine on the same dates. After a jury trial, defendant was convicted of one count each of CPCS in the third degree and CSCS in the third degree for the possession and sale of cocaine on February 18, 2012, and was acquitted of the charges arising from conduct occurring on March 14, 2012.

Defendant was thereafter sentenced as a PFO to concurrent, indeterminate terms of incarceration of 15 years to life.

Direct Appeal:

Defendant appealed from the judgment of conviction, contending, inter alia, that he was improperly sentenced as a PFO because the court erred in determining that defendant's "history and character" and the nature and circumstances of his criminal conduct indicated that extended incarceration and life-time supervision would best serve the public interest. We affirmed, concluding that defendant's "sentence is not unduly harsh or severe," and that " ‘[t]he court properly exercised its discretion when it adjudicated defendant a persistent felony offender and sentenced him accordingly’ " ( People v. Boykins, 134 A.D.3d 1542, 1543, 22 N.Y.S.3d 774 [4th Dept. 2015], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ).

Postconviction Motions For Resentencing :

In March 2015, defendant, acting pro se, moved pursuant to CPL 440.46 to be resentenced in accordance with the DLRA by vacating his sentence as a PFO and resentencing him as a second felony drug offender. In an order dated May 13, 2015, the court denied his motion for resentencing, converted the motion to a motion to set aside the sentence pursuant to CPL 440.20, and reserved decision on the CPL 440.20 motion. In an order dated September 24, 2015, the court denied the converted motion.

Before the court issued the September 24, 2015 order denying the converted motion, defendant, again acting pro se, moved pursuant to CPL 460.15 for leave to appeal to this Court from the order dated May 13, 2015. This Court dismissed defendant's motion for leave to appeal inasmuch as the only matter determined in the May 13, 2015 order was defendant's CPL 440.46 motion, from which defendant may appeal as of right (see CPL 440.46[3] ; L 2004, ch 738, § 23).

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