People v. Heisler

• Decision Date: 30 May 2017
• Citation: 55 N.Y.S.3d 216,150 A.D.3d 612
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard HEISLER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 612

55 N.Y.S.3d 216

The PEOPLE of the State of New York, Respondent,

v.Richard HEISLER, Defendant–Appellant.

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

May 30, 2017.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.

ACOSTA, P.J., FRIEDMAN, ANDRIAS, WEBBER, GESMER, JJ.

Judgment of resentence, Supreme Court, New York County (Robert M. Stolz, J.), rendered July 24, 2015, resentencing defendant, as a second violent felony offender, to an aggregate term of 22 years, and bringing up for review an order (same date, court and Justice), which granted the People's CPL 440.40 motion to set aside a resentence of the same court and Justice, rendered February 6, 2015, as amended March 2, 2015, resentencing defendant, as a first felony offender, to an aggregate term of 22 years upon a judgment of the same court (Rena

K. Uviller, J.), rendered November 10, 2011, convicting defendant, upon his plea of guilty, of kidnapping in the second degree and criminal sexual act in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 22 years to life, unanimously affirmed. Appeals from the original judgment of conviction and the intervening judgments of resentence unanimously dismissed as academic.

The court correctly resentenced defendant as a second violent felony offender. The court's earlier determination, in vacating defendant's persistent violent felony offender adjudication, that defendant should be sentenced as a first felony offender (nonpredicate) had no collateral estoppel effect on the People's valid CPL 440.40 challenge to the legality of the nonpredicate sentence. We also find that defendant did not meet his burden of establishing that his predicate violent felony conviction was unconstitutionally obtained.

In 2011, defendant was sentenced as a persistent violent felony offender, based on a 1990 New Jersey conviction and a 1993 Rockland County conviction. Each of the predicate convictions arose from defendant approaching a teenage boy, falsely identifying himself as a police officer and thereafter committing a sexual assault upon the boy. The Rockland County conviction arose from two separate incidents with different victims committed within several weeks.

In 2013, defendant moved pursuant to CPL 440.20 to set aside his sentence as a persistent felony offender, claiming, among other things, that his 1990 New Jersey conviction should not have been used as a predicate violent felony because the New Jersey crimes were not the equivalents of any violent felonies in New York, a claim that is undisputedly correct. In the course of the litigation over defendant's motion, defendant also challenged the use of his 1993 Rockland County conviction as a predicate violent felony on the ground that it had been obtained in violation of his constitutional rights to effective assistance of counsel and due process, in that his plea was allegedly the product of misinformation about his status and concomitant sentencing exposure. In their response, the People suggested that, as a way of disposing of the case without further litigation, the court simply forgo the predicate felony adjudication and sentence defendant as a nonpredicate to concurrent terms of 25 years on each count.

In February 2015, the court granted defendant's motion, noting that the parties and the court had determined that defendant was "not a mandatory persistent violent felon." In place of the original sentence of 22 years to life, the court resentenced defendant as a nonpredicate to an aggregate term of 22 years, with postrelease supervision. However, in March 2015, the Department of Corrections and Community Supervision notified the court and the parties that defendant was legally required to be sentenced as a second violent felony offender. That agency also advised the court that if defendant was not sentenced as a second violent felon, the time he served on the prior sentence would be credited against his present sentence. Upon the People's timely CPL 440.40 motion to vacate the nonpredicate resentence as illegal, the court resentenced defendant as a second violent felony offender based on the Rockland County conviction.

Where a defendant is in fact a predicate offender, sentencing the defendant as a nonpredicate results in an illegal sentence. The provisions of CPL 400.15, governing second violent felony offender adjudications, are mandatory, and neither the People nor a court may ignore or waive a defendant's predicate status (see People v. Scarbrough, 66 N.Y.2d 673, 496 N.Y.S.2d 409, 487 N.E.2d 266 [1985], revg. on dissenting mem. of Boomer, J., 105 A.D.2d 1107, 1107–1109, 482 N.Y.S.2d 197 [4th Dept.1984...