People v. Miles
| Decision Date | 26 April 1983 |
| Citation | 93 A.D.2d 776,461 N.Y.S.2d 985 |
| Parties | The PEOPLE of the State of New York, Respondent, v. George MILES, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
W.J. Comiskey, New York City, for respondent. R. Clark, New York City, for defendant-appellant.
Judgment, Supreme Court, New York County (H. Altman, J.), rendered on June 3, 1981, and order of said court entered on June 21, 1982, affirmed.
All concur except Asch and Milonas, JJ., who concur in separate memoranda; SULLIVAN, J.P., concurs in the result only; and CARRO and BLOOM, JJ., dissent in separate memoranda, all as follows:
I would affirm the judgment and order from which the appeal has been taken. I agree that this Court has the power, upon review, to itself impose some legally authorized lesser sentence if it modifies or reverses the judgment as a matter of discretion in the interest of justice (CPL 470.20 subd. 6). I do not believe People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864, restricts this appellate power. However, on careful consideration of the sentences of the appellant and of the others who participated with him in this tragic event I must agree with the conclusion of Justice Milonas. The crime itself was a heinous one. The participant Steven Sherman, who did little more than act as lookout, received a sentence of 15 years to life. While it is true that the principal actor Geoghegan received a sentence of 6 1/6 to 18 1/2 years as a result of his plea negotiations, the procedural problems resulting from the reversal of his initial conviction, plus the necessity for a re-trial with its attendant vagaries, apparently served to enable his attorney to effect the sentence which he was afforded. These differences in sentences do not appear to be so disparate in view of the seriousness of the crime in which the appellant willingly and actively engaged, so as to warrant reduction of his sentence in the interest of justice.
Defendant George Miles was indicted on September 5, 1980 for two counts of murder in the second degree, one count of robbery in the first degree and one count of robbery in the second degree. On September 21, 1981, he pleaded guilty to one count of manslaughter in the first degree. Defendant admitted that on November 13, 1975, he, along with Steven Sherman, Henry Geoghegan and Thomas Gilligan, went to the apartment of Jan DeVroom, who was known to both Gilligan and Sherman, with the intention of perpetrating a robbery. Defendant carried a small knife and was aware that Geoghegan was armed with a 12-inch folding knife. As Gilligan and Sherman stood guard downstairs, defendant and Geoghegan entered DeVroom's apartment and then tied up their victim. When DeVroom resisted, Geoghegan, in defendant's presence, stabbed him thirteen times in the neck, chest and throat. Gilligan and Sherman then joined the two men in the apartment, and the four of them ransacked the premises in a search for valuables. During this time, DeVroom was lying, bloodied, on the kitchen floor. Defendant did not know whether he was still alive. Subsequently, defendant and his accomplices split the proceeds of the robbery, defendant receiving between $150 and $200 as his share. Following the crime, defendant fled to California, remaining there until August 19, 1980, when he was arrested on a warrant. He waived extradition and was returned to New York. During the period of defendant's lengthy sojourn in California, his confederates were arrested and prosecuted. Sherman was convicted, after trial, of murder in the second degree and robbery in the first degree, receiving a sentence of 15 to life on the murder count and 12 1/2 to 25 for the robbery. This court affirmed on May 24, 1979 (70 A.D.2d 790, 416 N.Y.S.2d 453). Geoghegan was tried and convicted of two counts of murder in the second degree and one count of robbery in the first degree, for which he was sentenced to 25 years to life, as well as to lesser concurrent terms. However, on May 24, 1979, this court reversed and remanded for a new trial (68 A.D.2d 279, 416 N.Y.S.2d 279) and the Court of Appeals affirmed (51 N.Y.2d 45, 431 N.Y.S.2d 502, 409 N.E.2d 975). He was later permitted to plead guilty to manslaughter in the first degree and was sentenced to 6 1/6 to 18 1/2 years. Gilligan, who testified against both Sherman and Geoghegan at their trials, pleaded guilty to attempted robbery in the second degree and received an indeterminate prison term of no more than 3 years. His conviction was affirmed by the Appellate Division on June 15, 1978 (63 A.D.2d 1124, 405 N.Y.S.2d 1012). Defendant's plea of guilty to manslaughter in the first degree was in full satisfaction of the charges against him. He expressed his understanding that the plea, which was the result of extended negotiations with the prosecution, was based upon an agreed sentence of 8 1/3 to 25 years. When defendant appeared for sentencing on June 3, 1981, his lawyer relying upon the pre-sentence report and other materials submitted on his client's behalf, requested that the court consider a lesser sentence. The court advised defendant that under People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864, the People were entitled to seek to vacate the plea if a lesser sentence were to be imposed. The prosecutor indicated that the People would indeed ask that the case be returned to its pre-plea status in the event of a lesser sentence, noting that the People were ready for trial. Defendant's attorney then described the facts which in his opinion warranted a reduced sentence--the defendant's age at the time of the murder (20 years), his "constructive" activities while in California, the imbalance between the defendant's promised sentence and that of Geoghegan (in both instances 8 1/3 to 25 years), the death of defendant's sister, his father's poor health and the concern of defendant's family. Defense counsel asserted, however, that he did not wish the court to deviate from the original sentence if that would cause the district attorney to insist on his right to restore the murder charges. The court then proceeded to impose a sentence of 8 1/3 to 25 years, commenting that it was a "provident one" and that it would have adhered to the promise in any event. On May 21, 1982, defendant moved pursuant to CPL section 440.20 to set aside his sentence on the ground that it was founded on the mistaken belief that Geoghegan had received the same sentence when, in reality, and despite greater culpability, he had only been sentenced to 6 1/6 to18 1/2 years and, in addition, that law enforcement authorities had failed to inform the court of defendant's assistance to the Department of Corrections. In that regard, defendant referred to a letter written by Inspector General Eng of the Department of Corrections stating that the defendant's "cooperation would be made known to any legitimate authority desiring this information for whatever help it might provide." Nonetheless, Eng observed that no commitment had been made to defendant with respect to the DeVroom murder.
In response, the People stated that although defendant had volunteered to cooperate, he had not performed any service of value nor provided any information previously unknown to the Department of Corrections. On June 21, 1982, the court denied defendant's motion to vacate, finding meritless his allegation concerning the mistake of fact. According to the court, defendant was aware that Geoghegan had not yet been sentenced and could have been given a maximum of 8 1/3 to 25 years under his plea. Defendant's sentence was, thus, not rendered "unauthorized, illegally imposed or otherwise invalid as a matter of law" simply because Geoghegan had actually received a lesser sentence. The court also rejected defendant's claim regarding the supposed nondisclosure of his cooperation with the Department of Corrections and reaffirmed its prior decision that sentence imposed upon him was appropriate. Although defendant has apparently made an attempt at rehabilitation and has also manifested some remorse for his involvement in the crime, that cannot obscure the fact that the murder and robbery at issue here was a brutal, heinous crime which defendant helped to plan and execute. Prior to its commission, he armed himself with a knife; he also had knowledge of the twelve-inch "buck knife" being carried by Geoghegan. He watched Geoghegan repeatedly stab the tied-up DeVroom, making no effort either to come to the victim's assistance or to stop Geoghegan. When DeVroom lay bleeding in the kitchen, he and his cohorts ransacked the apartment. If convicted of the original charges in the indictment, the defendant could have been sentenced to 25 years to life, but largely because of the mitigating factors to which he now points, he was permitted to plead guilty to the lesser offense of manslaughter in the first degree. Under these circumstances, and in view of the seriousness of the crime, he has already been accorded sufficient leniency. Certainly, the sentence imposed by the court can hardly be deemed to constitute an abuse of discretion. Absent such an abuse, the sentence should be affirmed. (People v. Junco, 43 A.D.2d 266, 351 N.Y.S.2d 1, aff'd 35 N.Y.2d 419, 363 N.Y.S.2d 82, 321 N.E.2d 875, cert. den. 421 U.S. 951, 95 S.Ct. 1686, 44 L.Ed.2d 106). Defendant's associate, Steven Sherman, who remained downstairs during the murder and is thus, if anything, less culpable than defendant, is currently...
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