People v. Jackson

• Decision Date: 24 December 1984
• Citation: 483 N.Y.S.2d 725,106 A.D.2d 93
• Parties: The PEOPLE, etc., Respondent, v. Cortez JACKSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 725

483 N.Y.S.2d 725

106 A.D.2d 93

The PEOPLE, etc., Respondent, v. Cortez JACKSON, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 24, 1984.

Stuart M. Cohen, Brooklyn, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Lisa Margaret Smith, Brooklyn, and Moira Casey, of counsel), for respondent.

Before TITONE, J.P., and BRACKEN, BOYERS and LAWRENCE, JJ.

TITONE, Justice Presiding.

Defendant appeals, as limited by his brief, from an amended sentence of the Supreme Court, Kings County, imposed upon his conviction of violating the terms of probation, the amended sentence being a term of two to six years' imprisonment, to be served consecutively to the sentence imposed on an intervening crime which formed the predicate for the probation violation. The core issue is whether consecutive sentences may be imposed in such circumstances. We conclude that a court imposing an amended sentence upon adjudicating a defendant to be in violation of the terms of probation, may direct that the period of imprisonment run consecutively to any sentence of imprisonment imposed on an intervening crime. There must be a reversal, however, because the record before us does not establish that the court obtained an updated presentence report before imposing the amended sentence. We do not reach the question of whether the interest of justice warrants modification of the sentence.

The basic facts are uncomplicated. On December 15, 1981, defendant pleaded guilty to attempted robbery in the second degree, in full satisfaction of a pending Kings County indictment. In accepting the plea, the court noted that defendant was enrolled in a drug treatment program and that he was a first offender. Accordingly, the defendant was promised that, if he continued with the program, he would be sentenced to probation. That promise was kept when defendant was sentenced to a term of probation not to exceed five years on April 29, 1982.

Defendant, however, was arrested on other charges and pleaded guilty to criminal possession of stolen property in the second degree in Queens County. Because of the Kings County conviction, he was sentenced as a second-felony offender to one and one-half to three years' imprisonment. As a result of this conviction, defendant was charged with having violated the terms of probation in Kings County and, upon his plea of guilty, was resentenced to a term of two to six years' imprisonment, to run consecutive to the Queens County sentence. This appeal concerns only the Kings County sentence.

It is, of course, quite clear that a court may impose a sentence of imprisonment upon the revocation of a probationary sentence (CPL § 410.70, subd. 5; Penal Law, § 60.01, subd. 4). Except for circumstances not here relevant, a consecutive sentence is not authorized, however, unless a person "is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state" (Penal Law, § 70.25, subd. 1).

Appellant argues that there can be only one sentence in a criminal cause and, therefore, the amended sentence must relate back to the date of the original judgment. ¹ He thus reasons that only the sentence imposed on the intervening crime may be directed to run consecutively to any sentence imposed for a probation violation. Because the People did not seek to revoke probation until sentence was imposed on the intervening crime, he claims that consecutive sentences are improper, especially since he was sentenced as a second-felony offender on the intervening crime. ²

The relevant statutes are somewhat unclear. While subdivision 1 of section 65.15 of the Penal Law states that a probationary sentence commences on the date that it is imposed and section 60.01 (subd. 2, par. ) of the Penal Law states that a probationary sentence "shall be deemed a tentative one to the extent that it may be altered or revoked," no statute specifies the controlling date for any amended sentence. Legislative history is not particularly helpful and New York cases provide little guidance (cf. Matter of Johnson v. Smith, 91 A.D.2d 825, 826, 458 N.Y.S.2d 110; People v. Gilmore, 63 A.D.2d 45, 407 N.Y.S.2d 48; People v. Pabon, 53 A.D.2d 568, 384 N.Y.S.2d 817; People v. Reynolds, 45 Misc.2d 424, 426, 256 N.Y.S.2d 1020, revd. on other grounds 25 A.D.2d 487, 266 N.Y.S.2d 604). ³

A review of Federal and sister state decisions, however, strongly suggests that consecutive sentences are permissible. According to the Ninth Circuit, in order "to insure that the defendant is punished both for the original conviction and the subsequent offense, may in its discretion order that the sentence be served consecutive to a federal sentence for an intervening crime" (United States v. Lustig, 555 F.2d 751, 753, cert. den. 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 796). Alaska (Tritt v. State, 625 P.2d 882), California (Matter of Wimbs, 65 Cal.2d 490, 498, 55 Cal.Rptr. 222, 421 P.2d 70), Colorado (People v. Lorenzo, 644 P.2d 50 ), Maryland (Kaylor v. State, 285 Md. 66, 400 A.2d 419) and Oregon (State v. Monahan, 29 Or.App. 791, 564 P.2d 1374) have similarly construed their statutes as authorizing the imposition of consecutive sentences in such circumstances (see, also, Model Sentencing and Corrections Act, 10 ULA, § 3-107; Johnson, Multiple Punishment and Consecutive Sentences: Reflections on the Neal Doctrine, 58 Cal L Rev 357; Remington and Joseph, Charging, Convicting, & Sentencing The Multiple Criminal Offender, 1961 Wis L Rev 528; Note, Criminal Law: Concurrent and Consecutive Sentencing, 1973 U of Ill L F 423). ⁴ As recently observed by the California Court of Appeal, "in the absence of a rule prohibiting the court from considering the facts of the offense which, in part, triggered revocation, we believe it is a proper factor for the trial court to weigh in determining whether to sentence consecutively or concurrently. There is little practical difference in following this procedure when sentencing on the revoked probation and in sentencing the latter conviction consecutively to the earlier, reaching the same result" (People v. Leroy, 155 Cal.App.3d 602, 606, 202 Cal.Rptr. 88).

We agree with these holdings. While the substantive power to prescribe the punishment for a criminal offense is exclusively legislative ( Ohio v. Johnson, 467 U.S. ----, ----, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425; United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 93, 5 L.Ed. 37; United States v. Elkin, 731 F.2d 1005, 1011; State v. Weidner, 37 Or.App. 205, 586 P.2d 810) and, if two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity (Williams v. United States, 458 U.S. 279, 290, 102 S.Ct. 3088, 3095, 73 L.Ed.2d 767; United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488; Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493; Campbell, Law of Sentencing, § 76), the core question always remains that of legislative intent (see United States v. Rodgers, 466 U.S. 475, 104 S.Ct. 1942, 80 L.Ed.2d 492; Dixson v. United States, 465 U.S. 482, ----, n. 19, 104 S.Ct. 1172, 1182, n. 19, 79 L.Ed.2d 458; Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535; People v. Morse, 62 N.Y.2d 205, 476 N.Y.S.2d 505, 465 N.E.2d 12; LaFave & Scott, Criminal Law, § 10). In our view, the Legislature intended to adopt the procedure prevailing in other jurisdictions and afford the Judge imposing an amended sentence on a defendant upon a violation of probation the option of directing that the amended sentence be served consecutively to any term of imprisonment imposed on an intervening crime so long as the defendant, at the time of the imposition of the amended sentence, "is subject to any undischarged term of imprisonment imposed" on the intervening crime (Penal Law, § 70.25, subd. 1).

To be sure, a probation violation could be taken into account by both judges, and the severity of a sentence could be manipulated through the calendaring of the matters. ⁵ Nonetheless, there are sufficient safeguards. For one thing, where indeterminate sentences are imposed at different times, they are presumptively concurrent, unless the court orders otherwise (Penal Law, § 70.25, subd. 1, par. see 3 American Bar Association, Standards for Criminal Justice Sentencing Alternatives and Procedures, Standard 18-4.5, subd par Campbell, Law of Sentencing, § 76; cf. Matter of Johnson v. Smith, 91 A.D.2d 825, 826, 458 N.Y.S.2d 110, supra ). For another, we may review the sentence for proportionality (People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675; People v. Green, 75 A.D.2d 625, 427 N.Y.S.2d 44; People v. Biumi, 50 A.D.2d 931, 377 N.Y.S.2d 202; see State v. Liebfried, 345 N.W.2d 281 ). ⁶

In this case, defendant was "subject to undischarged term of imprisonment imposed at a previous time by a court of this state" and therefore consecutive sentences were permissible (Penal Law, § 70.25, subd. 1). Nevertheless, proportionality review has been inhibited by the absence of an updated probation report, requiring a remittal for further proceedings.

Absent the imposition of the minimum sentence (People v. Navarro, 91 A.D.2d 618, 458 N.Y.S.2d 194) or a bargained sentence and express waiver (People v. Dowdell, 72 A.D.2d 622, 420 N.Y.S.2d 780; People ex rel. Seaman v. Warden, N.Y. City Correctional Inst. for Men, 53 A.D.2d 848, 385 N.Y.S.2d 568), a court imposing a sentence of imprisonment upon finding that the defendant violated the terms of probation must obtain and consider an updated presentence report (see CPL 390.20, subd. 1; People v. Hayes, 101 A.D.2d 893, 475 N.Y.S.2d 805; People v. Cruz, 89 A.D.2d 569, 451 N.Y.S.2d 1001; People v. Klein, 78 A.D.2d 743, 432 N.Y.S.2d 735; People v. Halaby, 77 A.D.2d 717, 430 N.Y.S.2d 717; People v. Grice, 64 A.D.2d 718, 407 N.Y.S.2d 532; see, also, 3 American Bar Association, Standards for...