People v. Kaval
| Decision Date | 05 May 2021 |
| Docket Number | Ind. No. 1376/12,2019–01933 |
| Citation | 148 N.Y.S.3d 214,194 A.D.3d 746 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE, etc., respondent, v. Rudolph KAVAL, appellant. |
Janet E. Sabel, New York, N.Y. (Simon Greenberg of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Joseph N. Ferdenzi, and Christopher J. Blira–Koessler of counsel), for respondent.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a resentence of the Supreme Court, Queens County (Ira H. Margulis, J.), imposed February 5, 2019, upon his convictions of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, after remittitur from this Court for resentencing (see People v. Kaval, 154 A.D.3d 875, 63 N.Y.S.3d 411 ).
ORDERED that the resentence is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The defendant was convicted at a jury trial of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts). The People filed a statement pursuant to CPL 400.16 seeking to have the defendant adjudicated a persistent violent felony offender under Penal Law §§ 70.08 and 70.04(1)(b)(iv) and (v), based on his prior convictions of robbery in the second degree on March 27, 1987, and attempted robbery in the second degree on November 12, 1991. The defendant controverted the alleged tolling periods. Following a hearing, the Supreme Court adjudicated the defendant a persistent violent felony offender. On appeal, the People conceded that the sum of the defendant's incarceration dates did not amount to a sufficient tolling period so as to qualify the March 27, 1987 conviction as a predicate violent felony, and this Court vacated the defendant's sentence and remitted the matter to the Supreme Court, Queens County, for resentencing ( People v. Kaval, 154 A.D.3d 875, 63 N.Y.S.3d 411 ).
Upon remittitur, the People filed a statement pursuant to CPL 400.16, again seeking to have the defendant adjudicated a persistent violent felony offender based on the same convictions that were the subject of the prior hearing, purportedly supported by evidence of additional periods during which the defendant was in the custody of the New York City Department of Correction. There is no indication that this information was not available to the People when the defendant was originally sentenced. The defendant objected to the admission of such evidence on the ground that the issue was decided by this Court on the prior appeal. The Supreme Court overruled the defendant's objection and adjudicated him a persistent violent felony offender. We reverse.
"The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" ( Matter of Koegel, 184 A.D.3d 764, 765, 126 N.Y.S.3d 153 [internal quotation marks omitted], lv granted 36 N.Y.3d 905, 2021 WL 505407 ). "An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court" ( J–Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 A.D.3d 809, 809, 847 N.Y.S.2d 130 ; see People v. Evans, 94 N.Y.2d 499, 503, 706 N.Y.S.2d 678, 727 N.E.2d 1232 ), and " ‘forecloses reexamination of [an issue previously determined] absent a showing of newly discovered evidence or a change in the law’ " ( Wolf Props. Assoc., L.P. v. Castle Restoration, LLC, 174 A.D.3d 838, 842, 106 N.Y.S.3d 313, quoting Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P., 116 A.D.3d 667, 669, 983 N.Y.S.2d 293 ).
Here, this Court previously determined, on the merits, that the defendant's incarceration dates did not amount to a sufficient tolling period so as to qualify the March 27, 1987 conviction as a predicate violent felony under Penal Law § 70.04(1)(b)(iv) and (v). The People had a full and fair opportunity to litigate this issue both at the initial hearing before the Supreme Court in 2013, and before this Court on appeal (see People v. Evans, 94 N.Y.2d at 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232 ; People v. Guerra, 65 N.Y.2d 60, 63, 489 N.Y.S.2d 718, 478 N.E.2d 1319 ). Contrary to the People's contention, this Court's prior decision was not based in " ‘manifest error,’ " nor do " ‘exceptional circumstances exist warranting departure from the law of the case doctrine’ " ( People v. Baker, 139 A.D.3d 1078, 1079, 32 N.Y.S.3d 288, quoting People v. Martinez, 194 A.D.2d 741, 741–742, 600 N.Y.S.2d 250 [internal quotation marks omitted]; see People v. Barnes, 155 A.D.2d 468, 469, 547 N.Y.S.2d 131 ). As such, the People are precluded from having the issue reconsidered by this Court (see People v. Baker, 139 A.D.3d at 1079, 32 N.Y.S.3d 288 ).
Upon remittitur, the Supreme Court should not have permitted the People to present additional evidence pertaining to the same prior conviction which they failed to prove at the initial hearing (see People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269 ; cf. People v. Sailor, 65 N.Y.2d 224, 491 N.Y.S.2d 112, 480 N.E.2d 701 ; People v. Johnson, 57 A.D.3d 323, 324, 869 N.Y.S.2d 84 ). Contrary to the conclusion of our dissenting colleague, the fact that the defendant moved to vacate his judgment of conviction pursuant to CPL 440.10 did not open the door to expand the record on direct appeal to support a new position taken by the People that was contrary to a position previously taken on direct appeal (see generally People v. Sposito, 30 N.Y.3d 1110, 70 N.Y.S.3d 156, 93 N.E.3d 881 ), and no authority is cited in support of that theory. Nor was this a proceeding for resentencing pursuant to CPL 440.46, enacted for "certain controlled substance offenders."
Accordingly, we remit the matter to the Supreme Court, Queens County, to resentence the defendant as a second violent felony offender (see Penal Law § 70.04 ).
In light of our determination, we need not reach the defendant's further contention that the resentence was excessive.
DILLON, J.P., dissents, and votes to affirm the resentence, with the following memorandum:
I respectfully dissent and instead vote to affirm the resentence appealed from. In my view, there is actually more than one reason why the resentence should be affirmed.
The first reason involves the effect of this Court's vacatur of the defendant's original sentence, wherein the defendant was sentenced as a persistent violent felony offender under Penal Law §§ 70.08(1)(a) and 70.02 despite the failure of the People at that sentencing proceeding to produce documentation properly qualifying the defendant for such designation (see People v. Kaval, 154 A.D.3d 875, 63 N.Y.S.3d 411 ). This Court properly vacated the erroneous sentence and remitted the matter for resentencing. The conclusion that the defendant's initial persistent violent felony offender adjudication was unauthorized was based upon the record that was before this Court at that time, on that record.
Upon remittitur, the defendant moved in the Supreme Court to set aside the verdict and vacate the judgment of conviction (see CPL 330.30, 440.10 ) on the ground of the ineffectiveness of counsel in failing to adequately argue against the application of the persistent violent felony offender statute. CPL 330.30 and 440.10 motions frequently contemplate by their very nature the presentment of evidence outside of the existing record (see e.g. People v. Neulander, 34 N.Y.3d 110, 113, 111 N.Y.S.3d 259, 135 N.E.3d 302 [CPL 330.30 motion] ; People v. McCoy, 188 A.D.3d 1262, 132 N.Y.S.3d 839 [CPL 440.10] ). In opposition, the People produced documentation from the New York City Department of Correction (hereinafter DOC) which had not been made available to the court at the initial sentence proceeding. The new documentation reflected the total length of the defendant's city and state incarcerations prior to the date of the instant offense and demonstrated that the defendant was, in fact, a persistent violent felony offender, upon taking into account the proper incarceration-related tolling provisions of Penal Law § 70.04(1)(b)(iv) and (v). The People maintained that they had erroneously conceded in the earlier appeal, based on the record available at that time, that the defendant was not a persistent violent felony offender. The People argued that the defendant's counsel could not have been ineffective for failing to oppose the defendant's status as a persistent violent felony offender if the defendant was, in fact, a persistent violent felony offender. The court permitted the new DOC documentation not only in denying the defendant's motion to set aside the verdict and vacate the judgment of conviction, but also for the resentencing itself.
On appeal, the defendant does not contest the accuracy of the documentation presented by the People at the resentencing proceeding showing that he qualifies as a persistent violent felony offender. Instead, he narrowly contends that the Supreme Court erred in considering the new evidence at all. However, by having raised the issue of his status as a persistent violent felony offender within the context of his motion alleging ineffective assistance of counsel, the defendant opened the door to the People's presentment of new documentation, in opposition to the motion, establishing the defendant's persistent violent felony offender history. "The ‘opening the door’ theory has been recognized in a variety of situations" ( People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324 ) and "must necessarily be...
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