People v. Bryant
| Decision Date | 03 March 1975 |
| Citation | 47 A.D.2d 51,365 N.Y.S.2d 223 |
| Parties | The PEOPLE, etc., Respondent, v. Nathaniel BRYANT, Appellant. The PEOPLE, etc., Respondent, v. Joel G. KRAMER, Appellant. The PEOPLE etc., Respondent, v. Alexander J. MISTRETTA, Appellant. The PEOPLE, etc., Respondent, v. Michael J. PARISI, Appellant. The PEOPLE, etc., Respondent v. Jerome RICHMAN, Appellant. The PEOPLE, etc., Respondent, v. Leslie WALDRON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
James J. McDonough, Mineola (Stephen N. Shapiro and Matthew Muraskin, Mineola, of counsel on the appeals by Bryant, Parisi, Mistretta and Waldron; Eugene Murphy and Matthew Muraskin, Mineola, of counsel on the appeals by Richman and Kramer), for appellants.
William Cahn, Dist. Atty., Mineola (Jules E. Orenstein, Great Neck, of counsel on the appeals by Bryant and Parisi; Jules E. Orenstein, Great Neck, and John J. Budnick, Mineola, of counsel on the appeals by Richman, Mistretta and Waldron; Jules E. Orenstein, Great Neck, and Andrew C. Morganstern, Mineola, of counsel on the appeal by Kramer), for respondent.
Before COHALAN, Acting P.J., and BRENNAN, BENJAMIN, SHAPIRO and MUNDER, JJ.
After pleading guilty to various felonies, the defendants in the six above-captioned cases were sentenced as second felony offenders pursuant to the provisions of section 70.06 of the Penal Law. They now appeal from their sentences. We affirm.
These appeals present common constitutional and statutory issues. One or more of the defendants pose the following questions: (1) whether section 70.06 of the Penal Law, which defines, and then prescribes, the sentence that a court must impose when it has found that a defendant is a second felony offender, violates the Federal constitutional ban on 'cruel and unusual' punishment; and (2) whether paragraph 3 of section 400.21 of the CPL violates a defendant's privilege against self-incrimination when it provides that a defendant who stands convicted of a felony, and who might be a second felony offender under section 70.06 of the Penal Law and who has been given a copy of the prosecutor's statement setting forth the alleged predicate felony wishes to controvert any allegation in the statement, Must specify the allegation he wishes to controvert and shall be deemed to have admitted uncontroverted allegations in the statement. 1
In addition, in three of the cases (Bryant, Mistretta and Waldron) there is a contention that the mandatory requirements of section 400.21 of the CPL were not complied with by the prosecutor and the sentencing court and that, therefore, the sentences are illegal and must be vacated and the defendants remanded for proper sentencing.
Before the legal issues herein can be properly dealt with, the facts in each of the six cases must be analyzed.
In Bryant the defendant was indicted for burglary in the third degree and petit larceny. He entered a plea of guilty to attempted burglary in the third degree in satisfaction of both charges. At the plea hearing the Assistant District Attorney, in the presence of the defendant and his counsel, stated that the defendant was a prior felony offender. Both the court and the court clerk informed the defendant that because he had a prior felony conviction the court would be required to impose a minimum sentence of 1 1/2 to 3 years. The defendant said he understood and pleaded guilty. At the sentencing hearing the court, after noting that the probation report stated that in 1971 the defendant pleaded guilty to robbery in the second degree and was sentenced to an indeterminate term of five years, asked the defendant if he admitted the previous felony conviction, and the defendant's attorney replied in the affirmative. The court sentenced the defendant as a second felony offender to an indeterminate prison term of from 1 1/2 to 3 years in prison.
It does not appear, however, that the prosecutor gave the defendant a copy of a statement of his prior conviction or that the defendant was informed by the court of his right to controvert specific allegations in the statement and to a hearing, in the event of such controversion, on the issue of the correctness of any allegations thus controverted.
In Kramer the defendant was indicted for burglary in the second degree and grand larceny in the second degree. He entered a plea of guilty to burglary in the third degree, a class D felony, in satisfaction of this indictment and other charges. At the plea hearing he was advised by the court, prior to its acceptance of his plea, that by his plea he was waiving his constitutional rights to a speedy trial, a jury trial, confrontation of the witnesses against him and his privilege against self-incrimination. The court also advised him, prior to accepting his plea, that if he were a prior felony offender the court was mandated to impose on him a specified minimum term. At the sentencing hearing the defendant admitted that he had been served with a statement from the District Attorney of a prior felony conviction in the State of New York in 1971, did not avail himself of his right to controvert the allegations therein and admitted them. The court sentenced him as a second felony offender to an indeterminate prison term of two to four years.
In Mistretta the defendant was indicted for criminal possession of a controlled substance in the fifth and seventh degrees, criminal possession of a hypodermic and reckless endangerment of property. He pleaded guilty to attempted criminal possession of a controlled substance in the fifth degree, a class D felony, in satisfaction of all the charges against him. At the plea hearing the court informed him that it had in its possession a record which showed that he had a 1970 New York State felony conviction for criminally selling a dangerous drug in the fourth degree and warned him that there were additional mandatory penalties for second felony offenders. The defendant admitted that he was the individual so convicted. It does not appear, however, that he was given a copy of the prosecutor's statement of prior convictions or that he was informed of his right to controvert specific allegations in such a statement and to a hearing, in the event of such controversion, on the issue of the correctness of the statement and the constitutionality of the prior conviction. He was sentenced to an indeterminate prison term of two to four years.
In Parisi the defendant was indicted for burglary in the third degree and grand larceny in the third degree. He pleaded guilty to the latter charge, in satisfaction of both charges. At his plea hearing the court informed him that it had 'a statement of the District Attorney * * * which states that on July 14, 1969, you were convicted of attempted criminally selling a dangerous drug in the third degree.' When asked if that was right, the defendant said, The record of the sentencing hearing in April, 1974 shows that the clerk of the court informed the defendant that the District Attorney had filed a statement showing that the defendant had been convicted in 1969 of the crime of attempted criminallyselling a dangerous drug in the third degree, advised the defendant that he could controvert that allegation as untrue or on the ground that the previous conviction had been obtained in violation of his rights under the Constitution of the United States, and asked him if he wished to controvert any of the allegations in the statement. The defendant replied, 'No.'
In Richman the defendant was indicted for attempted bribery in the second degree. In March, 1974 he pleaded guilty to attempted bribery, a class E felony, in satisfaction of this indictment and another one. At the plea hearing the court informed him he would be pleading guilty to a class E felony and inquired if a District Attorney's statement with respect to prior felony convictions had been served. The Assistant District Attorney then stated for the record that he was giving copies of a prior felony offender information to the defendant and the court. The defendant's counsel then acknowledged receipt of the prior felony offender statement. The court noted that the statement showed the defendant had been convicted in 1965 in Queens County of grand larceny in the second degree, a felony. The defendant replied, 'Yes', when asked by the court if he admitted conviction of that crime. The court then informed him that by pleading guilty to a class E felony he was subjecting himself to a sentence of 1 1/2 to 3 years, adding, 'That is the minimum sentence that I may impose on someone who has previously been convicted of a felony.' The following colloquy ensued:
'The Defendant: I have had several zip threes in my life. When I was sentenced I could have gotten probation but I was never really eligible for probation. Under the new law I am not saying you would ever consider probation on my record.
The Court: I have no choice.
Defendant: I know that.
The Court: I must give you a minimum of one and a half to three.
The Defendant: I know that, but under the circumstances it is a bargain, yes, sir.'
At the sentencing hearing in April, 1974 the court stated that the defendant had pleaded guilty to a class E felony and that the court, as it had promised, was going to give the 'least sentence' it could impose, 1 1/2 to 3. Then the clerk stated that the District Attorney had filed an information accusing the defendant of the above-mentioned prior 1965 conviction, a felony, advised the defendant that he could controvert any of the allegations in the information, and asked him if he wished to do so, to which the defendant replied, 'No sir, I don't.'
In Waldron the defendant was indicted for criminal possession of a controlled substance in the fifth and seventh degrees and for resisting arrest. He pleaded guilty to attempted criminal possession of a controlled substance in...
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