People v. Giles

• Decision Date: 18 December 2014
• Citation: 2 N.Y.S.3d 30,24 N.Y.3d 1066,25 N.E.3d 943,2014 N.Y. Slip Op. 08871
• Parties: The PEOPLE of the State of New York, Respondent, v. Dwight GILES, Appellant. The People of the State of New York, Respondent, v. Sean Hawkins, Appellant.
• Court: New York Court of Appeals Court of Appeals

24 N.Y.3d 1066

25 N.E.3d 943

2 N.Y.S.3d 30

2014 N.Y. Slip Op. 08871

The PEOPLE of the State of New York, Respondent

v.Dwight GILES, Appellant.

The People of the State of New York, Respondent

v.Sean Hawkins, Appellant.

Court of Appeals of New York.

Dec. 18, 2014.

Robert S. Dean, Center for Appellate Litigation, New York City (Jan Hoth of counsel), for appellant in the first above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Sheryl Feldman and Naomi C. Reed of counsel), for respondent in the first above-entitled action.

Michael W. Warren, Brooklyn, for appellant in the second above-entitled action.

Kenneth P. Thompson, District Attorney, Brooklyn (Sholom J. Twersky and Leonard Joblove of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURTMEMORANDUM.

In People v. Giles, the order of the Appellate Division should be affirmed. In People v. Hawkins, the order of the Appellate Term should be affirmed.

Defendants' motions to set aside the verdict pursuant to CPL 330.30(1) were procedurally improper because they were premised on matters outside the existing trial record, and CPL 330.30(1) did not permit defendants to expand the record to include matters that did not “appear[ ] in the record” prior to the filing of the motions. We express no opinion on whether a trial court has the authority to consider a CPL 330.30(1) motion as a premature de facto CPL 440.10 motion in certain cases because defendants here did not ask the trial courts to consider their motions as such, and in each case, the trial court neither deemed the motion to be a premature CPL 440.10 motion nor decided the motion in accordance with the criteria and procedures delineated in CPL 440.30 (cf. People v. Wolf, 98 N.Y.2d 105, 118–119, 745 N.Y.S.2d 766, 772 N.E.2d 1124 [2002] ). In People v. Giles, defendant's challenge to the constitutionality of his sentencing as a persistent felony offender is without merit (see People v. Bell, 15 N.Y.3d 935, 936, 915 N.Y.S.2d 208, 940 N.E.2d 913 [2010] ; People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026 [2010] ; People v. Quinones, 12 N.Y.3d 116, 129–130, 879 N.Y.S.2d 1, 906 N.E.2d 1033 [2009] ).

SMITH, J. (concurring).

I join the majority memorandum, and add some comments on each case.

I

In People v. Hawkins, I agree with Judge Pigott that a court has power, in a proper case, to entertain a motion under CPL 440.10 even where the motion is made before the entry of judgment—i.e., to overlook the technical defect that the motion is premature. I agree with the majority, however, that the motion in Hawkins cannot be treated as a CPL 440.10 motion, because the proper procedures were not followed.

II

The main purpose of this concurrence is to respond to Judge Abdus–Salaam's dissenting opinion in People v. Giles.

A

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and a number of later cases, the United States Supreme Court held that, under

the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, a defendant's sentence may not be enhanced beyond what would otherwise be its maximum term on the basis of facts that are not found by a jury beyond a reasonable doubt. One exception has been recognized: under Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), a case left undisturbed by Apprendi, 530 U.S. at 489–490, 120 S.Ct. 2348 and never subsequently overruled, “the fact of a prior conviction” may be found by a judge (Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ).

In People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844 (2001) we interpreted New York's persistent felony offender statute (PFO statute) to make prior convictions “the sole determinate” of whether a defendant is eligible for enhanced sentencing. We reaffirmed and explained the holding of Rosen in People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194 (2005) and People v. Quinones, 12 N.Y.3d 116, 122–131, 879 N.Y.S.2d 1, 906 N.E.2d 1033 (2009) (see also People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026 [2010] ; People v. Bell, 15 N.Y.3d 935, 936, 915 N.Y.S.2d 208, 940 N.E.2d 913 [2010] ).

It seems to me that the statute as we have interpreted it is unquestionably valid under Apprendi and Almendarez–Torres. Indeed, an en banc panel of the United States Court of Appeals for the Second Circuit has unanimously agreed that the statute is constitutional on its face (Portalatin v. Graham, 624 F.3d 69 [2d Cir.2010] ; see id. at 100 [Winter, J., dissenting] ). Whether we correctly interpreted the statute in Rosen and later cases is a different question. I admit that that question—one of New York, not federal, law—is fairly debatable, but I am somewhat puzzled that the debate continues after all these decisions and all these years.

B

The substantive part of the PFO statute is found in section 70.10 of the Penal Law. A persistent felony offender is defined as anyone (other than a persistent violent felony offender, see Penal Law § 70.08 ) “who stands convicted of a felony after having previously been convicted of two or more felonies” (Penal Law § 70.10[1][a] ). Penal Law § 70.10(2) authorizes a court that has found a person to be a persistent felony offender to impose the sentence authorized for a class A–I felony when the court “is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest.”

The PFO statute also includes procedural provisions, contained both in the Penal Law and in the Criminal Procedure

Law. Under CPL 400.20, an enhanced sentence may not be imposed unless, “based upon evidence in the record of a hearing held pursuant to this section,” the court has found that the defendant is a persistent felony offender and “is of the opinion” contemplated by Penal Law § 70.10 as to defendant's history and character and the nature and circumstances of his conduct (CPL 400.20[1] ). In directing a hearing, the court must annex to and file with its order the dates and places of the convictions that render the defendant a persistent felony offender and “[t]he factors in the defendant's background and prior criminal conduct which the court deems relevant for the purpose of sentencing the defendant as a persistent felony offender” (CPL 400.20[3] ). The burden of proof at the hearing is on the People (CPL 400.20[5] ). Defendant's status as a persistent felony offender must be proved beyond a reasonable doubt, but “[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct may be established by any relevant evidence ... and the standard of proof with respect to such matters shall be a preponderance of the evidence” (id. ). If the court chooses the enhanced sentence “the reasons for the court's opinion shall be set forth in the record” (Penal Law § 70.10[2] ).

If the PFO statute were read—as it could be—to mean that a court may impose an enhanced sentence only after it has found, in a nonjury proceeding, facts “pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct,” it would raise serious problems under Apprendi. Mindful of our obligation to adopt, where possible, an interpretation that renders a statute constitutional, we held in Rosen, and have several times reaffirmed, that that is not what the statute means. We said in Rosen:

“It is clear from the ... statutory framework that the prior felony convictions are the sole determinate of whether a defendant is subject to enhanced sentencing as a persistent felony offender. Then, the court must consider other enumerated factors to determine whether it ‘is of the opinion that a persistent felony offender sentence is warranted’ (CPL 400.20[9] ). As to the latter, the sentencing court is thus only fulfilling its traditional role—giving due consideration to agreed-upon factors—in determining an appropriate sentence within the permissible statutory range.” (96 N.Y.2d at 335, 728 N.Y.S.2d 407, 752 N.E.2d 844.)

In Rivera, we explained and expanded on Rosen 's holding:

“We could have decided Rosen differently by reading the statutes to require judicial factfinding as to the defendant's character and criminal acts before he became eligible for a persistent felony offender sentence. If we had construed the statutes to require the court to find additional facts about the defendant before imposing a recidivism sentence, the statutes would violate Apprendi. But we did not read the law that way. Under our interpretation of the relevant statutes, defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Thus, as we held in Rosen, no further findings are required.” (5 N.Y.3d at 67, 800 N.Y.S.2d 51, 833 N.E.2d 194.)

Once again in Quinones, responding to an argument that the PFO statute was unconstitutional under Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), we said:

“[D]efendant argues that New York's discretionary persistent felony offender sentencing scheme suffers from the same constitutional infirmity as [the California statute in Cunningham ] because the ‘higher persistent felony offender range cannot be imposed without the judicially-found fact that the “nature and circumstances” of the criminal conduct and the “history and character” of the defendant warrant lifetime supervision in the public interest.’ Defendant's view of New York's sentencing scheme is inaccurate....

“New York's sentencing scheme ... is a recidivist sentencing scheme. That is, under New York's scheme, a defendant is subject to an enhanced sentence based solely on the existence of two prior felony convictions.... [I]t is only after a defendant's eligibility for an enhanced sentence is determined that a judge is

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