People v. Felix

• Decision Date: 15 February 1983
• Parties: , 446 N.E.2d 757 The PEOPLE of the State of New York, Respondent, v. David FELIX, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 1

460 N.Y.S.2d 1

58 N.Y.2d 156, 446 N.E.2d 757

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

Court of Appeals of New York.

Feb. 15, 1983.

Michele Maxian, Caesar D. Cirigliano, Barbara Salken and Bennett M. Lincoff, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Donna Krone, Amyjane Rettew and Vivian Berger, New York City, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

There is no due process infirmity under either the Federal or the State Constitution in the requirement of subdivision 5 of section 70.02 of the Penal Law that a defendant who has been charged with an armed felony and permitted in satisfaction of the indictment to plead guilty to a class D violent felony must receive an indeterminate sentence of one to three years unless the court finds that factors specified in the section warrant imposition of less than an indeterminate sentence. The order of the Appellate Division affirming the judgment of conviction of defendant should, therefore, be affirmed.

I

While allegedly displaying both a knife and what appeared to be a pistol, defendant stole a "Grateful Dead" button from another passenger on a subway train. Indicted for robbery in the first degree (using or threatening the immediate use of a dangerous instrument [the knife] ), robbery in the second degree (displaying what appeared to be a pistol), attempted robbery in the first degree and two counts of criminal possession of a weapon in the fourth degree, defendant pleaded guilty to "attempted robbery in the second degree, as a violent felony under an indictme charging you with an armed violent felony; the plea to be in full satisfaction of the indictment and the plea being under the first count of the indictment". As part of the plea colloquy the Trial Judge explained to defendant "that a class D felony under this indictment which charges an armed violent felony in the second count, even though your plea is to a simple violent felony as a class D, attempt [sic ] robbery in the second degree, would require the Court to impose as a minimum sentence no less than one, no more than three years in state prison as a minimum sentence" but stated that defendant's attorney could make and the court would consider "an application for a lesser sentence due to mitigating circumstances". Defendant admitted as part of the plea that he used or threatened immediate use of a knife, but was not questioned with respect to the display of what appeared to be a pistol and, therefore, did not directly admit the commission of an armed felony as that term is defined in CPL 1.20 (subd. 41).

By memorandum and again at the time of sentence, defendant sought a reduced sentence on the basis of mitigating circumstances. His application was denied on the ground that the circumstances did not, as required by section 70.02 (subd. 5, par. [b] ) of the Penal Law, bear upon the manner in which the crime was committed. He also argued that the provisions of that subdivision ¹ violate t due process clauses of the Federal (U.S. Const., 14th Amdt.) and State (N.Y. Const., art. I, § 6) Constitutions.

The Trial Judge held the subdivision constitutional and imposed the one- to three-year sentence required by section 70.00 of the Penal Law. Distinguishing our decision in People v. Drummond, 40 N.Y.2d 990, 391 N.Y.S.2d 67, 359 N.E.2d 663, cert. den. sub nom. New York v. Luis J., 431 U.S. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394 on the ground that the statute there in question made an indicted youth automatically ineligible for youthful offender treatment based upon the highest count of the indictment, he noted that the three exceptions contained in section 70.02 (subd. 5, par. [b] ) of the Penal Law "allow the Court much of its usual sentencing discretion regardless of the top count of the Indictment" and that the statute only limited the Judge's sentencing discretion by establishing guidelines and conditions for its exercise.

On appeal a sharply divided Appellate Division affirmed (87 A.D.2d 529, 447 N.Y.S.2d 945). Two Judges held that the constitutional issue need not be reached because they concluded that if the sentencing scheme of the statute were unconstitutional and they exercised sentencing discretion unfettered by the guidelines and conditions of the statute they would find the indeterminate three-year term appropriate. A third Judge, concurring for affirmance, reached the constitutional issue and concluded that subdivision 5 represented a rational legislative attempt to encourage bargained for pleas of guilty to lesser offenses while discouraging overly lenient sentences for persons charged in an indictment with an armed felony. The two dissenting Judges held the subdivision unconstitutional "because it requires that a defendant be subjected to enhanced punishment on the basis of an unproven charge, without requiring the People to make any additional showing, thus impermissibly placing upon the defendant the burden of extricating himself from the enhanced sentence" (87 A.D.2d, at p. 540, 447 N.Y.S.2d 945). The matter is before us by leave of one of the dissenting Judges at the Appellate Division (56 N.Y.2d 656, 451 N.Y.S.2d 708, 436 N.E.2d 1310). We conclude that t due process issue ² must be met and that the statute is constitutional.

II

It is hornbook law that a court will not pass upon a constitutional question if the case can be disposed of in any other way (Matter of Peters v. New York City Housing Auth., 307 N.Y. 519, 527-528, 121 N.E.2d 529; McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 150; 20 N.Y.Jur.2d, Constitutional Law, § 47). Thus, had the Appellate Division been able to find in the record evidence of mitigating circumstances of the type provided for in the statute, it could have and should have avoided deciding the due process issue.

Here, however, the plurality for affirmance at the Appellate Division while seeking to avoid the constitutional question did not in fact do so. Rather it ignored the facts that sentencing is a function of the Trial Judge (see CPL 380.20; People v. Green, 75 A.D.2d 502, 426 N.Y.S.2d 736; People v. Gomez, 103 Misc.2d 352, 425 N.Y.S.2d 776) and that subdivision 5 of section 70.02 of the Penal Law restricts the discretion in relation to plea negotiation exercised by a Trial Judge, and sustained the sentence imposed as a proper exercise of the discretion vested in the Judges of the Appellate Division. In doing so it has avoided the effect of holding the statute unconstitutional (i.e., reversal) but assumed that the Trial Judge would not, had he been free to weigh all the factors that bear on sentencing, have imposed a lesser sentence, or that if he had, the Appellate Division would have been free to increase, and would have increased, the sentence to that which it was upholding by the exercise of independent discretion. Those assumptions are, however, unfounded (as to sentencing at the appellate level, see Gardner v. Florida, 430 U.S. 349, 354, n. 5, 97 S.Ct. 1197, 1203, n. 5, 51 L.Ed.2d 393; and People v. Green, supra; as to the impropriety of an increased sentence, see CPL 450.30, subd. 2). Consequently the constitutional issue cannot be avoided.

III

Enacted at an extraordinary session of the Legislature as a "key" part of a program intended to combat viole crime, section 70.02 of the Penal Law was intended to establish greater responsibility for an armed violent felony through stiffer sentencing provisions and restrictions upon plea bargaining (see Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 70.02, 1982-1983 Cum.Ann.Pocket Part, pp. 132-133; Book 11A, CPL 100.15, p. 25). The Legislature did not choose to abolish plea bargaining as it could have (People v. Esajerre, 35 N.Y.2d 463, 467, 363 N.Y.S.2d 931, 323 N.E.2d 175; see Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427). Rather it opted to limit the broad discretion previously exercised in the determination of the crime to be pleaded to and the sentence to be imposed. This it did by (1) proscribing acceptance of a plea to less than a class D violent felony offense from a defendant indicted for a class B or C violent felony offense ³ (CPL 220.10, subd. 5, par. [d] ), and (2) requiring imposition of an indeterminate sentence on the bargained class D violent felony offense, absent specified ameliorating factors (Penal Law, § 70.02, subd. 5), when a defendant has been indicted for an "armed felony" as defined in CPL 1.20 (subd. 41) (a violent felony offense aggravated by use of a loaded and functional firearm or display of what appears to be a firearm of a specified type). It is the latter provision which defendant argues violates his right to due process by (1) prescribing the sentence to be imposed upon the basis of an unproved and unadmitted fact and (2) shifting to him the burden of establishing the right to a lesser sentence. We disagree.

A

Defendant's claim that the statute improperly subjects him to enhanced punishment on the basis of the unproven charge that he was "armed" within the meaning of the "armed felony" definition is largely predicated on People v. Drummond, 40 N.Y.2d 990, 391 N.Y.S.2d 67, 359 N.E.2d 663, supra and People v. Griffin, 7 N.Y.2d 511, 199 N.Y.S.2d 674, 166 N.E.2d 684. There are, of course, differences in the sentencing discretion available when a defendant has pleaded guilty to a class D violent felony under an indictment charging an armed felony and what would be available had there been no armed felony charge in the indictment und which he pleaded; not only is there a minimum prescribed sentence but also the mitigating circumstances that may be considered relate only to the manner in which the crime was committed and do not include circumstances relating to defendant's past history and family situation, circumstances which may be considered by a Judge sentencing a defendant who pleaded under an...