People v. Felix

• Decision Date: 16 March 1982
• Parties: The PEOPLE of the State of New York, Respondent, v. David FELIX, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 945

447 N.Y.S.2d 945

87 A.D.2d 529

The PEOPLE of the State of New York, Respondent, v. David FELIX, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

March 16, 1982.

V. Berger, New York City, for respondent.

Michele Maxian, New York City, for defendant-appellant.

Before MURPHY, P. J., and BIRNS, SULLIVAN, LUPIANO and BLOOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, rendered on August 28, 1980, affirmed.

All concur except BIRNS, J., who concurs in a memorandum in which BLOOM, J., concurs, and LUPIANO, J., who concurs in a separate memorandum, and MURPHY, P. J., and SULLIVAN, J., who dissent in a memorandum by SULLIVAN, J., all as follows:

BIRNS, Justice (concurring).

Defendant was indicted for, inter alia, robbery in the second degree as an armed and violent Class C felony (CPL § 1.20, subd. 41; P.L. § 70.02, subd. 1, § 160.10). The court accepted defendant's plea to the instant Class D violent felony offense on the understanding that a term of one to three years would be imposed, the shortest indeterminate term of imprisonment permissible under P.L. § 70.02, subd. 5(a), and further that an application for a lesser sentence on the basis of mitigating circumstances pursuant to P.L. § 70.02, subd. 5(b) would be carefully considered. At a later date, the court found insufficient mitigating circumstances to warrant a term less than the minimum one to three years otherwise required by P.L. § 70.02, subd. 5. Thereafter, defendant challenged the constitutionality of that section on the ground that it violated due process in excluding him from more lenient treatment on the basis of the crime for which he was indicted (see People v. Drummond, 40 N.Y.2d 990, 391 N.Y.S.2d 67, 359 N.E.2d 663). The court rejected this challenge, finding the statute did not automatically exclude defendant's eligibility for a lesser sentence on the basis of the crime charged in the indictment but only established guidelines and conditions bearing upon the court's discretionary power to grant an alternative, lesser sentence. Indeed, the court found that the three exceptions set forth in P.L § 70.02, subd. 5(b) "allowed the Court much of its usual sentencing discretion regardless of the top count of the Indictment." At the sentencing hearing, the court again denied defendant's application for a lesser sentence based on mitigating circumstances and the term of one to three years was imposed.

On this appeal, defendant again challenges the constitutionality of P.L. § 70.02, subd. 5. We do not believe it necessary to address the constitutional issues in order to determine this appeal. Were the defendant correct in arguing that the statute is unconstitutional (but see People v. Caver, 74 A.D.2d 852, 425 N.Y.S.2d 381; People v. Elliby, 80 A.D.2d 875, 436 N.Y.S.2d 784), he would at best be entitled to the exercise of discretion in sentencing, unfettered by the guidelines and conditions set forth in the statute. Any failure of the sentencing court to exercise the full scope of discretion or to take into consideration all relevant factors can be remedied by the exercise of unfettered discretion by this court (People v. Dolkart, 60 A.D.2d 238, 240, 400 N.Y.S.2d 520). Nor does the difference between the indeterminate one to three year term imposed under the challenged statute and the shortest indeterminate term of imprisonment which could have been imposed in the absence of this statute give vitality to defendant's constitutional argument. In either case, the shortest minimum and maximum periods of imprisonment are fixed by reference to the same statute, P.L. § 70.00; the shortest minimum at one year by subdivision 3 thereof and the shortest maximum at three years by subdivision 2 thereof.

Upon review of this record, even were we to exercise our unfettered discretion in sentencing, we can only conclude that the imposition of a three year indeterminate term of imprisonment was appropriate. Thus, we need take no corrective action.

LUPIANO, Justice (concurring).

Defendant pleaded guilty to attempted robbery in the second degree, a class D violent felony offense, under the first count of the indictment charging robbery in the first degree (uses or threatens the immediate use of a dangerous instrument, to wit, a knife), a class B felony. The second count of the indictment charged defendant with robbery in the second degree (displaying what appeared to be a pistol), a class C felony which is also defined as an "armed felony" (See, Criminal Procedure Law § 1.20). Pursuant to Penal Law § 70.02(5), the Legislature has provided that where a defendant, confronted by an indictment charging an "armed felony," specifically pleads guilty to a class D violent felony in satisfaction of the indictment, pursuant to section 220.10 or 220.30 of the Criminal Procedure Law, the court must impose an indeterminate sentence of imprisonment pursuant to Penal Law § 70. However, the court is permitted to

"impose a sentence other than an indeterminate sentence of imprisonment or a definite sentence of imprisonment for a period of no less than one year, if it finds that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant's participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possible deficiencies in proof of the defendant's commission of an armed felony" (Penal Law § 70.02).

The statute further provides that both

"(t)he defendant and the district attorney shall have an opportunity to present relevant information to assist the court in making a determination pursuant to paragraph (b) ...."

I join our dissenting brother in the view that the constitutional issue presented on this appeal respecting the above statute cannot be avoided. However, I find the statute to be constitutional.

The facts and legal issues bearing on the question of constitutionality are ably set forth in the dissent and are not reiterated herein. Critical to the rationale of the dissent is its observation that

"(s)ince Penal Law § 70.02precludes the imposition of a more favorable sentence which would otherwise be available, its effect is to impose increased punishment on the basis of an act charged, but unproven. In this respect section 70.02is ... fundamentally unfair and violative of due process" (Emphasis supplied).

However, the act charged, but unproven, has been rendered so by virtue of the permission granted the defendant to plead guilty to a lesser charge and thereby to avoid a trial on the act(s) charged. The dissent's observation would obtain relevance if the defendant had a right to plead guilty to a lesser crime. No such right exists.

"At the outset it is noted that defendant had no absolute right to have plea of guilt accepted (Lynch v. Overholser, 369 U.S. 705 Santobello v. New York, 404 U.S. 257 )" (People v. Bartley, 60 A.D.2d 283, 285, 401 N.Y.S.2d 71 ).

Criminal Procedure Law § 220.10 provides, in subdivision 1, that

"(t)he defendant may as a matter of right enter a plea of 'not guilty' to the indictment "

and in subdivision 2, that

"the defendant may as a matter of right enter a plea of 'guilty' to the entire indictment,"

except as provided in subdivision 5 (Emphasis supplied). It has aptly been observed that "permission to enter a lesser plea is a matter of grace" and that, accordingly, "reasonable conditions may be attached thereto" (People v. Esajerre, 35 N.Y.2d 463, 467, 363 N.Y.S.2d 931, 323 N.E.2d 175 see, People v. Elliby, 80 A.D.2d 875, 436 N.Y.S.2d 784 lv. to appl. den. 53 N.Y.2d 942, 440 N.Y.S.2d 1041, 423 N.E.2d 408).

There are two avenues by which a defendant stands convicted of a crime: (1) he may be found guilty by the finder of facts after a jury or non-jury trial upon a plea of not guilty, or (2) he may plead guilty to the crime(s) of which he stands convicted. The defendant exercises full control over his destiny in the second course, in that he chooses to plead guilty to the entire indictment and has a right to do so. If he chooses to plead guilty, not to the entire indictment, but to a lesser crime or crimes, then the matter is one of grace in which permission must be obtained. Here, before the defendant could enter a plea of guilty to a lesser crime, he had to obtain the permission of the court and the consent of the People (CPL 220.10, subd. 4). While the defendant initially has full control, in that he may plead "not guilty" or "guilty" to the entire indictment, once he endeavors to plead guilty to one or more, but not all of the offenses charged or of a lesser included offense with respect to any or all of the offenses charged, or of any combination of offenses charged and lesser offenses included within other offenses charged, his control is less than full, in that he must now obtain the permission of the court and the consent of the People. As this route does not permit of a possible conviction of all the offenses as charged in the indictment, that is, the defendant is not at risk of being convicted of the offenses as charged in the indictment, whether by way of trial and a finding of guilty, or by way of pleading guilty, the legislative branch has determined to circumscribe the privilege thus afforded defendant in escaping that risk.

McKinney's Practice Commentary to Penal Law § 70.02, Book 39 (sections 1.00 to 139. end) in the 1981-1982 Cumulative Annual Pocket Part at pp. 119-120, states, in pertinent part, as follows:

"During the past few years there has been a steadily mounting concern among the public and its officials over a constantly increasing incidence of violent stranger-to-stranger crime .... (A) wide-ranging bill was enacted (L.1978, c. 481) that attempts to address violent crime committed not only by adults but also by juveniles. Section 70.02...