People v. Bradshaw
| Docket Number | 2010–09061,Ind. No. 1503/05 |
| Decision Date | 21 September 2022 |
| Citation | 210 A.D.3d 44,175 N.Y.S.3d 272 |
| Parties | The PEOPLE, etc., respondent, v. Jay BRADSHAW, appellant. |
| Court | New York Supreme Court — Appellate Division |
Patricia Pazner, New York, NY (Erica Horwitz of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.
On this appeal we are presented with an opportunity to consider whether the retroactive imposition of a supplemental sex offender victim fee pursuant to Penal Law § 60.35(1)(b) violates the Ex Post Facto Clause of the United States Constitution (see U.S. Const., art I, § 10[1]). For the reasons that follow, we conclude that the supplemental sex offender victim fee is not a form of punishment, and therefore, there is no constitutional violation if such a fee is imposed at sentencing for crimes committed prior to the effective date of the legislation providing for such a fee.
On April 29, 2004, the 17–year–old victim was alone in the apartment where she resided with her fiance´ and his family, when she heard the doorbell ring, followed by knocking on the door to the apartment. Unable to see anything through the peephole and unable to hear what the person outside the door was saying, the victim opened the door slightly. Although the victim then tried to close the door, the individual, whom the victim later identified as the defendant, was holding a knife and put his arm through the door. As the victim screamed for help, the defendant entered the apartment and locked the door. When the victim started to call 911 on her cell phone, the defendant pushed her to the couch, causing her to drop her phone. The defendant told the victim, "shut up bitch" and held her with her back toward him, and the knife blade to her neck. After walking the victim through the apartment and asking her where the money was, the defendant took the victim into the master bedroom for a second time, pushed her face down on the bed, pulled her pants down, placed a plastic grocery bag on his penis, made contact with the victim's anus, and then penetrated her vagina. The defendant made the victim take off her engagement ring and give it to him, and he took her cell phone. After the victim heard the defendant leave the apartment, she discovered that her wallet, a DVD player, and $5 that had been on a table in her bedroom were gone.
A DNA profile, generated from semen stains on the shirt the victim had been wearing at the time of the offense, was matched to a DNA profile generated from a buccal swab taken from the defendant.
After a nonjury trial, the defendant was convicted of burglary in the first degree, rape in the first degree, sexual abuse in the first degree, criminal sexual act in the first degree, and robbery in the first degree. On June 24, 2010, the Supreme Court sentenced the defendant to determinate terms of imprisonment of 25 years, to be followed by a period of postrelease supervision of 5 years, on the convictions of burglary in the first degree, rape in the first degree, criminal sexual act in the first degree, and robbery in the first degree, and a determinate term of imprisonment of 7 years, to be followed by a period of postrelease supervision of 3 years, on the conviction of sexual abuse in the first degree. The sentences imposed on the convictions of burglary in the first degree, rape in the first degree, criminal sexual act in the first degree, and sexual abuse in the first degree were to run concurrently with each other, and consecutively to the sentence imposed on the conviction of robbery in the first degree, and all of the sentences were to run consecutively to a 9–year sentence that the defendant was serving as a result of a conviction in Kings County. At sentencing, the court also imposed a surcharge, as well as, inter alia, a sex offender registration fee and a supplemental sex offender victim fee.
On appeal, the defendant contends, among other things, that the Supreme Court's imposition of the supplemental sex offender victim fee at sentencing violated the Ex Post Facto Clause of the United States Constitution. On August 20, 2004, an amendment to Penal Law § 60.35, adding a provision for the imposition of a supplemental sex offender fee in the amount of $1,000, was signed into law (see L 2004, ch 56, part E, § 1). The defendant argues that because he committed the offenses for which he was convicted in April 2004, prior to the August 2004 enactment of the amendment to the statute providing for the imposition of the supplemental sex offender fee, the court's imposition of such a fee violated the Ex Post Facto Clause (see People v. Fomby, 42 A.D.3d 894, 896, 839 N.Y.S.2d 901 ). The defendant relies upon, inter alia, this Court's decision and order in ( People v. Diggs , 73 A.D.3d 1210, 900 N.Y.S.2d 918 ), wherein we held, albeit based on the People's concession, that the Supreme Court should not have imposed, among other things, a DNA databank fee, a sex offender registration fee, and a supplemental sex offender victim fee pursuant to Penal Law § 60.35 when the crimes for which the defendant was convicted were committed prior to the effective date of the legislation providing for the fees. However, as pointed out by this Court in ( People v. Foster , 87 A.D.3d 299, 927 N.Y.S.2d 92 ), and as will be discussed herein, the Court of Appeals in its opinion in ( People v. Guerrero , 12 N.Y.3d 45, 876 N.Y.S.2d 687, 904 N.E.2d 823 ), has "cast doubt upon the determination that the retroactive imposition of the various fees and surcharges mandated by Penal Law § 60.35 represents an unconstitutional ex post facto penalty" ( People v. Foster, 87 A.D.3d at 308, 927 N.Y.S.2d 92 ).
Penal Law § 60.35(1)(a) states in pertinent part, "there shall be levied at sentencing a mandatory surcharge, sex offender registration fee, DNA databank fee and a crime victim assistance fee in addition to any sentence required or permitted by law." In 2004, section 60.35 was amended to add a provision requiring that a supplemental sex offender victim fee of $1,000 is to be paid by defendants convicted of, inter alia, an offense defined in article 130 of the Penal Law (see L 2004, ch 56, part E, § 1; Penal Law § 60.35[1][b] ).
We begin our analysis with the Ex Post Facto Clause of the United States Constitution which provides that "[n]o State shall ... pass any ... ex post facto law" (U.S. Const., art I, § 10[1]). "The constitutional prohibition against ex post facto laws applies to ‘penal statutes which disadvantage the offender affected by them’ " ( People v. Foster, 87 A.D.3d at 306, 927 N.Y.S.2d 92, quoting Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 ). "A statute will be considered an ex post facto law if it ‘punishes as a crime an act previously committed, which was innocent when done,’ ‘makes more burdensome the punishment for a crime, after its commission,’ or ‘deprives one charged with crime of any defense available according to law at the time when the act was committed’ " ( People v. Foster, 87 A.D.3d at 306, 927 N.Y.S.2d 92, quoting Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 ; see Rogers v. Tennessee, 532 U.S. 451, 456, 121 S.Ct. 1693, 149 L.Ed.2d 697 ; Collins v. Youngblood, 497 U.S. at 42, 110 S.Ct. 2715 ). "In contrast, a statute which is enacted for nonpunitive purposes, and is not so punitive in effect as to negate that nonpunitive intent, may be retroactively applied without violating the Ex Post Facto Clause" ( People v. Foster, 87 A.D.3d at 306, 927 N.Y.S.2d 92 ; see United States v. Ward, 448 U.S. 242, 248–249, 100 S.Ct. 2636, 65 L.Ed.2d 742 ).
In determining whether the retroactive application of a statute violates the Ex Post Facto Clause, a two-stage inquiry is required (see Matter of Devine v. Annucci, 150 A.D.3d 1104, 1106, 56 N.Y.S.3d 149 ; People v. Foster, 87 A.D.3d at 306–307, 927 N.Y.S.2d 92 ; Doe v. Pataki, 120 F.3d 1263, 1274–1275 [2d Cir.] ). The threshold issue to be determined is the legislature's intent in enacting the challenged statute; that is, was the statute enacted for a regulatory rather than a punitive purpose (see Matter of Devine v. Annucci, 150 A.D.3d at 1106, 56 N.Y.S.3d 149 ; People v. Foster, 87 A.D.3d at 306–307, 927 N.Y.S.2d 92 ; Doe v. Pataki, 120 F.3d at 1274–1275 ). However, even if the court finds that the challenged statute was not intended to punish, the court must next consider whether the statute is so punitive in effect as to negate the nonpunitive intent (see Matter of Devine v. Annucci, 150 A.D.3d at 1106, 56 N.Y.S.3d 149 ; People v. Foster, 87 A.D.3d at 306, 927 N.Y.S.2d 92 ; Doe v. Pataki, 120 F.3d at 1274–1275 ).
We now turn to the issue of whether the retroactive imposition of the supplemental sex offender victim fee, pursuant to Penal Law § 60.35(1)(b), violates the Ex Post Facto Clause. To determine this issue, we look to the analysis and findings of the Court of Appeals in People v. Guerrero , wherein the Court found that Penal Law § 60.35 was not intended to be punitive (see People v. Guerrero, 12 N.Y.3d 45, 876 N.Y.S.2d 687, 904 N.E.2d 823 ). In Guerrero , the Court of Appeals addressed the issue of whether the imposition of a mandatory surcharge and crime victim assistance fee mandated by Penal Law § 60.35(1) must be pronounced by the judge in open court at sentencing (see People v. Guerrero, 12 N.Y.3d at 46–47, 876 N.Y.S.2d 687, 904 N.E.2d 823 ). The Guerrero Court held that the "mandatory surcharge and crime victim assistance fee mandated by Penal Law § 60.35(1) are not part of a sentence within the meaning of sections 380.20 and 380.40 of the CPL ; therefore, a judge need not pronounce them in a defendant's...
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