People v. Butler

• Decision Date: 11 October 2011
• Citation: 88 A.D.3d 470,2011 N.Y. Slip Op. 07122,931 N.Y.S.2d 277
• Parties: The PEOPLE of the State of New York, Appellant,v.Denard BUTLER, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 470

931 N.Y.S.2d 277

2011 N.Y. Slip Op. 07122

The PEOPLE of the State of New York, Appellant,

v.Denard BUTLER, Defendant–Respondent.

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

Oct. 11, 2011.

Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for appellant.Darren S. Fields, Brooklyn, for respondent.TOM, J.P., ACOSTA, RENWICK, FREEDMAN, JJ.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered June 16, 2009, which to the extent appealed from, sentenced defendant as a second violent felony offender but not as a persistent violent felony offender, unanimously affirmed.

The question before this Court is whether a defendant with two prior violent felony convictions, who was resentenced for those crimes at the behest of the New York State Division of Parole (DOP) under Penal Law § 70.45 and after the commission of the crime at issue, should have been adjudicated a persistent violent felony offender. We hold that he should not have been.

In 2009, defendant, together with codefendants, was tried and convicted of a 2006 robbery of several individuals at a hot dog stand. He was adjudicated a second violent felony offender and was sentenced to a 12–year prison term. Before defendant's 2009 felony conviction, he was twice convicted of violent felonies in Kings County. In November 1999, after defendant pleaded guilty to criminal possession of a weapon in the third degree (former Penal Law § 265.02[4] ), a class D violent felony, the Kings County Supreme Court sentenced him to a four-month prison term to run concurrently with five years' probation. In March 2001, after defendant had been released from prison but was still on probation, a Kings County jury convicted him of criminal possession of a weapon in the third degree. In April 2001 the Kings County Sentencing Court (Michael J. Brennan, J.) adjudicated defendant a second violent felony offender and sentenced him to both a determinate six-year prison term on the second weapon possession conviction, and a concurrent determinate six-year term for defendant's violation of the probation terms for the 1999 conviction. The court, however, neglected to pronounce the mandatory term of postrelease supervision (PRS) for the 2001 conviction as required under Penal Law § 70.45.

The People, relying on People v. Acevedo, 17 N.Y.3d 297, 929 N.Y.S.2d 55, 952 N.E.2d 1047 [2011], appeal the trial court's adjudication of defendant as a second violent felony offender rather than as a persistent violent felony offender.

Defendant argues that he is not a predicate or persistent violent felon. In particular defendant contends that the April 2001 sentence was a nullity because it did not include PRS, and that “[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement” ( People v. Sparber, 10 N.Y.3d 457, 471, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] ). He opines, consistent with the trial court's finding, that the September 2008 order declining to resentence him constituted a “new sentence,” and that the date of the order should be deemed the sentencing date for determining his status as a predicate felon.

In August 2005, defendant was released from prison, and in October 2006 he committed and was arrested for the robbery at issue on this appeal. In July 2008, while defendant was awaiting trial on the within matter, the DOP notified the Kings County sentencing court that defendant's commitment order for the 2001 conviction did not indicate that the court had imposed the mandatory PRS term, and that his sentence should thus be reviewed pursuant to Correction Law § 601–d.

In September 2008 the court issued a “[PRS] Sentencing Order,” holding that “in the interests of justice and equity,” it declined to resentence defendant and that “no period of [PRS] constitutes part of [defendant's] sentence.” ¹ In March 2009 defendant was found guilty by a jury of the 2006 robbery. The People asked the court to adjudicate defendant a persistent violent felony offender, based on the 1999 and 2001 Kings County convictions. Defendant opposed the application, arguing that he should be sentenced as a first-time violent felony offender because the original sentences for the Kings County convictions were vacated as unlawful and he was resentenced on those convictions after he committed the 2006 robberies.

The trial court decided to sentence defendant as a second violent felony offender ( People v. Butler, 24 Misc.3d 1225[A], 2009 N.Y. Slip Op. 51619 [U], *5, 2009 WL 2232039 [2009] ). The court, relying on People v. Sparber, held that an illegal sentence must be vacated and, that, once vacated, the conviction cannot be a predicate to enhance the defendant's sentence on a subsequent conviction, since it does not satisfy Penal Law § 70.04(1)(b)(ii) ( Butler, 2009 N.Y. Slip Op. 51619[U], *3). However, the trial court refused to consider defendant's first sentence as having been vacated because he failed to raise any challenge to his predicate status at the time of his second sentencing. The court deemed that challenge to have been waived pursuant to CPL 400.15(8) (2009 N.Y. Slip Op. 51619[U], *4–5 citing CPL 400.15[7][b] and 400.16[1] ).

A defendant may be adjudicated a persistent violent felony offender only if he has previously been convicted of two or more predicate violent felonies (Penal Law § 70.08[1][a] ). The persistent violent felony offender statute incorporates by reference a provision that the “[s]entence...