People v. Celli

• Decision Date: 15 July 1980
• Parties: The PEOPLE of the State of New York v. Barbara CELLI, Defendant.
• Court: New York County Court

Page 949

430 N.Y.S.2d 949

105 Misc.2d 1005

The PEOPLE of the State of New York v. Barbara CELLI, Defendant.

Westchester County Court.

July 15, 1980.

Carl A. Vergari, Dist. Atty. of Westchester County, White Plains, for plaintiff.

Stephen J. Pittari, The Legal Aid Society of Westchester County, White Plains, for defendant Celli.

JOHN C. COUZENS, Judge.

By Indictment No. 80-00004-01, the defendant was charged with the crimes of Robbery in the Third Degree and Grand Larceny in the Second Degree (two counts). On May 30, 1980, the defendant appeared before this Court, withdrew her previously entered plea of not guilty and entered a plea of guilty to Robbery in the Third Degree, in full satisfaction of the indictment. The matter was thereafter adjourned for sentencing. However, on the date set therefor, the defendant, duly served by the People with a Predicate Felony Conviction Statement, challenged the prior felony conviction. It was the defendant's contention that the conviction was a "YO" (youthful offender) and thus could not serve as a predicate.

On July 8, 1980, a hearing thereon was held before this Court pursuant to Criminal Procedure Law Section 400.21(5). It was the People's contention that the defendant had been convicted of the crime of theft of Postal Service (18 U.S.C. § 641) in the United States District Court for the Southern District of New York on July 23, 1976. In support thereof, the People introduced into evidence without objection two certified copies of the Judgment and Probation/Commitment Order of the United States District Court. The People's Exhibit No. 1 establishes that on April 9, 1976, the defendant, upon her plea of guilty, was convicted of the offense of unlawfully, wilfully and knowingly stealing, purloining and converting a thing of value of the United States, to wit, approximately $660.00 belonging to and in possession of the United States Postal Service. Pursuant to the Federal Youth Corrections Act (18 U.S.C. chap. 402, § 5005 et seq.) the defendant was sentenced as a "Youthful Offender" (sic), that is, the imposition of sentence was suspended and she was placed on probation for a period of three (3) years (18 U.S.C. § 5010(a)). The People's Exhibit No. 2 further establishes that on July 23, 1976, the probation of April 9, 1976, and the suspension of the imposition of sentence were revoked upon the admission by the defendant of a violation of probation. The defendant was committed pursuant to Section 5010(b) to the custody of the Attorney General for treatment and supervision at the Federal Correction Institution, Lexington, Kentucky, until discharged by the Federal Youth Correction Division of the Board of Parole, as provided in Section 5017(c). ¹ It is this conviction upon her resentencing that the People contend is a predicate felony conviction as defined in Penal Law Section 70.06 and on the basis of which the defendant may be sentenced as a second felony offender.

The People also offered the testimony of Inez Grant, a United States Probation officer with the Probation Department for the Southern District of New York. She testified substantially to the facts contained in the People's Exhibits No. 1 and 2. She further testified that the defendant was incarcerated in the federal correction institution for three (3) years and that, pursuant to Section 5017(c), she was paroled on August 10, 1979. In October, 1979, the defendant came under her parole supervision where she still remains. However, the defendant is currently in the process of having her parole revoked and a federal warrant has been filed. ² The defendant remains under the supervision of the Attorney General. She has not been discharged by the United States Parole Commission (pursuant to 18 U.S.C. § 5017(c)). Nor has the defendant's conviction been set aside (pursuant to 18 U.S.C. § 5021(a)). Nevertheless, the possibility remains that prior to the expiration of the maximum sentence imposed on her, the defendant remains eligible and could be discharged unconditionally pursuant to these statutory provisions.

The defendant presented no witnesses and introduced no evidence.

At the conclusion of the hearing the People argued that, in the absence of an unconditional discharge (and the concomitant certificate setting aside the conviction) the defendant should be sentenced as a second felony offender. The defendant argued that the prior conviction could not serve as a predicate for three reasons. The Court must reject them all.

First, the defendant contends that the conviction on April 9, 1976, was obtained in violation of the defendant's constitutional rights in that she was without counsel. The defendant relies on People's Exhibit No. 1. ³ The Court cannot agree. Rather than establishing that the defendant was without counsel, the record is silent with respect thereto. However, the Court finds this in no way relevant to its determination. ⁴ The People have relied not upon the judgment of conviction reflected in Exhibit No. 1, but, rather, upon the resentencing which occurred on July 23, 1976, as reflected in Exhibit No. 2, where there is the unequivocal and unchallenged indication that the defendant appeared with (named) counsel. Thus, the Court concludes that the People have met their burden of proving that such predicated felony conviction was constitutionally obtained (CPL § 400.21(7)(a), (b)). The defendant has failed to set forth any other factual allegations to support a claim of the unconstitutionality of the conviction (cf. People v. Spencer, 32 N.Y.2d 446, 346 N.Y.S.2d 225, 299 N.E.2d 656).

The defendant also argues that the sentencing court failed to make a finding that the defendant would not benefit from probation at the time a sentence of incarceration was imposed on July 23, 1976. This Court can find no statutory requirement therefor. Rather, a finding that a youth will not "derive benefit" need only be made if the sentencing court does not sentence the offender under the Youth Corrections Act (18 U.S.C. § 5010(b) or (c)) but chooses instead to impose sentence under "any other applicable penalty provision" (18 U.S.C. § 5010(d)). Sentence was, in fact, imposed under the Act (18 U.S.C. § 5010(b)) and thus no such finding was necessary (Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855). Indeed the sentencing court necessarily found that the defendant would benefit from treatment and supervision under the Act.

Finally, the defendant argues that her continued eligibility for a discharge and the issuance of certificate vacating her conviction bar its use as a predicate. It is only this contention that warrants serious consideration by this Court. Nevertheless, the Court concludes that the conviction is a predicate felony conviction for reasons which will be set forth.

The issue before the Court appears to be one of first impression in this State. ⁵ It is therefore important to determine what is as well as what is not before it. Indeed, it is what is not before this Court that is determinative. That is, the defendant has not been previously adjudicated a "youthful offender" as that term is employed in Article 720 of the Criminal Procedure Law. She neither falls within the definition thereof (CPL § 720.10) nor the sentencing provisions therefor (CPL § 720.20). Rather, the defendant has been sentenced as a "youth offender" pursuant to the Federal Youth Corrections Act. The distinction is not merely one of semantics. However, it may, at first blush, be belied by the similarity of purpose to be served by Article 720 and the federal act.

Briefly, the Federal Youth Corrections Act was designed to enlarge the sentencing options of the federal trial courts and provide further discretionary use of a system for the sentencing and treatment of "youth offenders" between sixteen (16) and twenty-two (22) years of age (18 U.S.C. §§ 4216, 5006(d)). The Act permits the substitution of correctional rehabilitation rather than retributive punishment in an attempt to restore normal behavior patterns (18 U.S.C. §§ 5006(f), 5010; Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855, later app., 7 Cir., 524 F.2d 190, cert. denied 424 U.S. 977, 96 S.Ct. 1483, 47 L.Ed.2d 747, see generally United States v. Buechler, 1 Cir., 557 F.2d 1002, United States v. Hayes, 9 Cir., 474 F.2d 965, Watts v. Hadden, D.C., 469 F.Supp. 233, United States v. Glasgow, D.C., 389 F.Supp. 217, Guidry v. United States, D.C., 317 F.Supp. 1110, affirmed, 5 Cir., 433 F.2d 968). The Act seeks to enhance the probability of rehabilitation and thereby attain its goal in part by providing that the conviction of a youthful offender is automatically set aside if his conduct following conviction leads the court or the Parole Commission, in the exercise of its discretion, to discharge him unconditionally from probation or parole, respectively, prior to the expiration of the maximum period fixed at sentencing (18 U.S.C. §§ 5017, 5010; see United States v. Doe, 6 Cir., 556 F.2d 391; United States v. Bronson, 10 Cir., 449 F.2d 302, cert. denied 405 U.S. 994, 92 S.Ct. 1268, 31 L.Ed.2d 463; Tatum v. United States, D.C.Cir., 310 F.2d 854; United States v. Hall, D.C., 452 F.Supp. 1008; United States v. Glasgow, supra ). Thus, upon satisfying the requirements of the Act, the youth offender is relieved of the disabilities attendant a criminal conviction and is restored to his status quo ante (United States v. Fryer, D.C., 402 F.Supp. 831, affirmed 6 Cir., 545 F.2d 11).

Clearly, the federal statute is not the counterpart of the New York statutory provisions for "youthful offenders" (cf. United States v. Canniff, 2 Cir., 521 F.2d 565, 569, cert. denied 423 U.S. 1059, 96 S.Ct. 796, 46 L.Ed.2d 650; Guidry v. United States, supra at 1112). It differs in both its mode and time of operation. The difference is indeed what is determinative in the case at bar. ⁶ While in New York the statutory provisions are operative at the...