People v. Maldonado

• Decision Date: 08 September 1981
• Docket Number: No. 837-77,837-77
• Citation: 82 A.D.2d 576,442 N.Y.S.2d 567
• Parties: The PEOPLE, etc., Respondent, v. Anibal MALDONADO, Appellant. (Ind.).
• Court: New York Supreme Court — Appellate Division

Page 567

442 N.Y.S.2d 567

82 A.D.2d 576

The PEOPLE, etc., Respondent, v. Anibal MALDONADO, Appellant. (Ind. No. 837-77).

Supreme Court, Appellate Division Second Department.

Sept. 8, 1981.

William E. Hellerstein, New York City (Judith Preble, New York City, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Allan P. Root and Beth S. Lasky, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P. and RABIN, MARGETT and BRACKEN, JJ.

BRACKEN, Justice.

On the instant appeal, the defendant challenges his resentencing as a second felony offender, claiming double jeopardy principles barred reconsideration of his second felony offender status since there was the substitution of a different predicate felony after the remand by this court for resentencing (on April 23, 1979), and since the substituted predicate felony conviction was unconstitutionally obtained. The resentence of defendant as a second felony offender on August 15, 1979, nunc pro tunc to November 17, 1977, was based upon a predicate felony conviction rendered in Kings County. The prior sentence of November 17, 1977 was based upon a felony conviction rendered in the State of New Jersey.

The memorandum decision of this court (People v. Maldonado, 69 A.D.2d 891, 415 N.Y.S.2d 701), included the following statement:

"Judgment affirmed as to the conviction; judgment reversed as to the sentence, on the law, and case remanded to the Criminal Term for resentencing before a Justice other than the one who imposed the original sentence * * * trial court's conduct at the sentencing hearing, threatening the defendant with dire consequences if he exercised his right to challenge the second felony offender statement, compounded the prosecutor's error of relying, in that statement, solely on the defendant's New Jersey conviction. This requires setting aside the sentence and remanding the case for resentencing."

The defendant thereafter submitted to Criminal Term a motion dated May 24, 1979, based upon the double jeopardy clauses of the Federal and State Constitutions, for an order precluding the use by the People of defendant's conviction under Kings County Indictment No. 1520/72 as a predicate felony conviction. On June 27, 1979 the court (STARKEY, J.) denied defendant's motion, and on June 29, 1979 the People served a second felony offender statement alleging defendant's conviction on March 9, 1973 in Kings County of the offense of criminal possession of stolen property in the second degree, a class E felony. A hearing was held on August 8, 1979 after defendant controverted the predicate felony conviction rendered March 9, 1973 upon the ground that such conviction was unconstitutionally obtained. The court issued the following oral decision prior to resentencing the defendant to a two-to-four year term of imprisonment, nunc pro tunc to November 17, 1977:

"Motion to set aside the Second Felony Offender determination is denied in accordance to section 400.21 of the CPL. A hearing was held. The defendant only contention is that he was denied due process on the underlining trial and additionally he had insufficient counsel. This Court finds the defendant has been subjected to a Predicate Felony conviction. His constitutional rights have not been abrogated. Nor did he have insufficient counsel. The People have met their burden. That is the decision of the Court."

The resentence should be affirmed.

We note at the outset that the procedures of CPL 400.21, established to insure that defendants sentenced under section 70.06 of the Penal Law are, in fact, second felony offenders, were not intended to allow known second felony offenders to be sentenced as first offenders, if the prosecution failed to comply with the provisions (People v. Brown, 54 A.D.2d 719, 387 N.Y.S.2d 470).

The defendant, however, contends that the People, by filing a new predicate felony offender statement charging him with another and different crime than that originally charged in the initial predicate felony offender statement, have subjected him to multiple predicate felony offense proceedings. CPL 400.21 requires that the People designate all predicate felonies, while the finding mandated by CPL 400.21 (subd. 7, par. is limited to "a predicate felony conviction".

"The general design of the Double Jeopardy Clause of the Fifth Amendment is that described in Green v. United States [355 U.S. 184, 187-188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199]:

" 'The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense ... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' " (United States v. Di Francesco, 449 U.S. 117, 127-128, 101 S.Ct. 426, 432, 66 L.Ed.2d 328.)

The Supreme Court, in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, summarized the protection afforded by the double jeopardy clause as follows:

"That guarantee double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."

In determining the issue in this appeal, the following principles set forth in United States v. Di Francesco, 449 U.S. 117, 131, 101 S.Ct. 426, 434, supra, are instructive:

"Finally, if the first trial has ended in a conviction, the double jeopardy guarantee 'imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set...