People v. Brabham

• Decision Date: 21 September 1983
• Citation: 121 Misc.2d 897,470 N.Y.S.2d 275
• Parties: The PEOPLE of the State of New York v. Lee BRABHAM a/k/a Calvin Jenkins a/k/a Alvin Jenkins.
• Court: New York Supreme Court

Page 275

470 N.Y.S.2d 275

121 Misc.2d 897

The PEOPLE of the State of New York v. Lee BRABHAM a/k/a Calvin Jenkins a/k/a Alvin Jenkins.

Supreme Court, Criminal Term Kings County, Part 37.

Sept. 21, 1983.

Leo J. Kimmel, Brooklyn, for defendant.

Elizabeth Holtzman, Dist. Atty., Kings County by James Felix, Brooklyn, for the People.

MEMORANDUM AND ORDER

BERNARD FUCHS, Justice.

Defendant has pleaded guilty to criminal possession of a weapon in the third degree. He previously pleaded guilty to manslaughter in the first degree on June 2, 1970; robbery in the second degree on June 14, 1972; and robbery in the third degree on November 5, 1975.

The first two previous convictions are for violent felony offenses. Defendant committed the present crime on July 12, 1982. He was incarcerated from January 6, 1976 to July 12, 1978, and from September 19, 1972 to September 18, 1974. Defendant's sentence on the 1970 conviction was imposed August 13, 1970, more than ten years before he committed the present crime. The excess has, however, been sufficiently tolled by his periods of incarceration so that the 1970 conviction may form a predicate for defendant's adjudication as a persistent violent felony offender (Penal Law, § 70.04, subd. 1(b)(iv) and (v)).

Defendant challenges only the 1970 conviction as a predicate on which to adjudicate him a persistent violent felony offender (see Penal Law, § 70.02 and § 70.08). The ground for this challenge is that the court did not advise defendant before he pleaded guilty in 1970 of his right to remain silent and to confront and cross-examine witnesses (see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274). The People concede this claim and admit that the 1970 conviction was unconstitutional.

After defendant's conviction in 1975, the People filed a second felony offender statement which specified both the 1970 and 1972 convictions as predicates. Defendant admitted to being a second felony offender, waived a hearing, and was adjudged accordingly. By this action defendant waived his claim that any conviction underlying that adjudication was unconstitutional unless he could show good cause for his failure to assert the claim (CPL 400.21, subd. 7(b)). The court's finding in 1975 is "binding upon * * * defendant in any future proceeding in which the issue may arise" (CPL 400.21, subd. 8; People v. Morcilio, 91 A.D.2d 1074, 459 N.Y.S.2d 15 (2d Dept.1983)).

Defendant seeks now to show good cause for his failure in 1975 to challenge the 1970 conviction by alleging that his counsel provided ineffective representation. Since failure to propose such a challenge bespeaks counsel's ineffectiveness, defendant argues, there was good cause for defendant's failure to assert the challenge. If defendant is correct, the 1975 sentencing proceeding and the judgment in which it culminated were themselves unconstitutional (Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); People v. Droz, 39 N.Y.2d 457, 384 N.Y.S.2d 404, 348 N.E.2d 880 (1976). Any underlying finding that defendant was a predicate felon based on the 1970 conviction may not be permitted now to have the effect of enhancing defendant's punishment (Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980)).

The argument is sympathetic even on the facts of the present case and could well prevail if defendant's 1975 plea had been taken in 1981 or later (People v. Pruitt, 83 A.D.2d 872, 442 N.Y.S.2d 19 (2d Dept.1981); cf. People v. Lewis, 94 A.D.2d 670, 462 N.Y.S.2d 665 (1st Dept.1983) lv. to app. granted, 60 N.Y.2d 592, 467 N.Y.S.2d 1038, 454 N.E.2d 133). Under the law as it stood in 1975, however, the mere failure of the court which accepted the 1970 plea to inform defendant of his "Boykin rights" did not vitiate the plea as a predicate for second felony offender status (People v. Mancusi, 41 A.D.2d 12, 341 N.Y.S.2d 663 (4th Dept.1973) app. dsmd. 34 N.Y.2d 951, 359 N.Y.S.2d 566, 316 N.E.2d 879 (1974).

It was sufficient under Mancusi for the court to determine that the plea was knowingly and voluntarily taken without specific mention of the Boykin rights. No "formal catechism of questions" to defendant was required. The Mancusi court distinguished that case from Boykin, (supra ) by pointing out that the defendant in Mancusi was represented by counsel throughout the proceedings; they were unhurried, each step following a lapse of at least a week; the court fairly advised the defendant as to the consequences of his plea and by examining defendant determined that the plea was voluntary and intelligent. The court also pointed out that defendant had received the benefit of the plea, satisfaction of a nine-count indictment, by pleading to two counts.

In the present defendant's 1970 case, he was represented by counsel for six months before he pleaded guilty. More than five months had elapsed since defendant's arraignment. A transcript of defendant's allocution reveals that the court fairly advised defendant as to the consequences of his plea and determined that the plea was voluntary and intelligent within the meaning of Mancusi; and defendant benefitted from the plea by satisfying an indictment for murder and obtaining the court's promise of a four-year sentence.

Against this legal and factual background no appropriate Boykin challenge to defendant's 1970 conviction was available in 1975 to controvert the People's second felony offender statement. There is, accordingly, no merit in defendant's argument that his counsel represented him ineffectively (see McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

The second felony offender statement filed by the People after defendant's 1975 conviction specified both the 1970 and 1972 convictions as predicates. Only one was required. Penal Law, section 70.06, as it stood in 1975, defined a second felony offender as "a person who stands convicted of a felony * * * after having previously been subjected to one or more predicate felony convictions * * *." (Emphasis supplied.) This raises the question whether the court in 1975, relied on one or both of the two earlier convictions in finding defendant a predicate felon and if one, which one.

If the 1975 decision that defendant was a second felony offender rests solely on the 1970 conviction or on both the 1970 and 1972 convictions, defendant (by failure to controvert it) waived his claim that the 1970 conviction was unconstitutional (CPL § 400.21, subd. 7(b) and is bound by the court's 1975 finding (CPL § 400.21, subd. 8). If it rests solely on the 1972 conviction, there was no 1975 finding that the 1970 conviction made him a predicate felon and CPL § 400.21 subd. 8 is inapplicable.

The minutes of defendant's sentencing before Justice Lentol in 1975 cannot be found and Justice Lentol himself is dead. Both official and evidentiary sources which could clarify the 1975 judgment are thus beyond reach.

In form, defendant is controverting the 1970 conviction as a predicate for persistent violent felony offender status on the ground that it was unconstitutionally obtained (CPL 400.15, subd. 7(b)). The unconstitutionality of the 1970 conviction is, however, not disputed (see People v. Alicea, 89 A.D.2d 872, 453 N.Y.S.2d 241 (2d Dept. 1982) lv. to app. granted 58 N.Y.2d 826, 459 N.Y.S.2d 1047, 466 N.E.2d 143). The real issue is whether the Court, in 1975, found the 1970 conviction to be a predicate for its adjudication of defendant as a second felony offender. If so, defendant is in effect estopped to challenge the 1970 conviction in this proceeding. The determination of what the court found is either one of fact or one of interpretation of the 1975 judgment.

Under CPL § 400.15, subd. 5 "the uncontroverted allegations" in the People's present predicate felony statement "are not sufficient to support a finding" that defendant is a persistent violent felony offender. Because defendant controverts the 1970 conviction a hearing is required at which the People have the burden of proof (CPL § 400.15, subd. 7(a)). Whether this includes the burden of proving the constitutionality of the predicate conviction has been a matter of some controversy (cf. People v. Abbott, 113 Misc.2d 766, 449 N.Y.S.2d 853 (S.Ct.N.Y.1982) with People v. Leston, 117 Misc.2d 712, 459 N.Y.S.2d 364 [S.Ct.N.Y.1983] ). I agree with the reasoning of People v. Leston (supra ), which reviews the authorities and concludes that the People do have that burden.

In the present case, the constitutionality of the 1970 conviction is not in issue. Do the People also have the burden of proving the estoppel by judgment provided by CPL § 400.21 subd. (8)? Since the purpose of the hearing is to determine whether defendant is a persistent violent felony offender and the estoppel issue is part of that determination, the burden of proving any fact essential to the estoppel is on the People (CPL 400.15, subd. 7(a)).

At a hearing held August 24, 1983, neither side offered any evidence beyond the documents already referred to. These are in evidence. Neither side is prepared to offer evidence which could reconstruct the 1975 sentencing proceeding.

Without the 1975 sentencing minutes or the testimony of Justice Lentol, all that appears is the 1975 adjudication of defendant as a second felony offender on the basis of a second felony offender statement citing the 1970 and 1972 convictions. Defendant concedes that neither of these convictions was challenged in 1975.

Under the language quoted above from Penal Law section 70.06, Justice Lentol was free legally to rely on both prior convictions. The fact that neither was challenged is sufficient evidence that he did so. There was no reason for him to pick and choose between them. If the issue of estoppel is one of fact under CPL § 400.15, I conclude that the People have sustained their burden.

The result is the same if the issue is one of interpretation of Justice Lentol's 1975 judgment. The only...