People v. Oliver

• Decision Date: 26 September 1983
• Citation: 467 N.Y.S.2d 76,96 A.D.2d 1104
• Parties: The PEOPLE, etc., Respondent, v. Harold OLIVER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 76

467 N.Y.S.2d 76

96 A.D.2d 1104

The PEOPLE, etc., Respondent, v. Harold OLIVER, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 26, 1983.

Stephen J. Pittari, White Plains (Jeanne E. Mettler, White Plains, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Lois A. Cullen and Gerald D. Reilly, White Plains, of counsel), for respondent.

Before MANGANO, J.P., and O'CONNOR, BRACKEN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered July 18, 1980, convicting him of burglary in the third degree, petit larceny criminal mischief in the fourth degree, and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence as a persistent felony offender.

Judgment affirmed.

After the jury found defendant guilty, of inter alia, burglary in the third degree, a hearing was held to determine whether he should be sentenced as a persistent felony offender. At the hearing defendant argued that his past conduct was nonviolent, that the instant offense was not a serious crime, and that the People had initially offered defendant a lenient sentence in exchange for a guilty plea to a lesser crime. In opposition to defendant's contentions the People introduced written statements of the defendant and of the victims of prior crimes committed by him evidencing his propensity towards violence. The probation report revealed that defendant had become involved in criminal acts at a youthful age and that since 1957 he had spent most of his life incarcerated. In fact, his criminal activity was virtually uninterrupted but for such periods of imprisonment, and defendant was released on parole only 17 days prior to his commission of the instant offenses.

Upon sentencing, the court imposed, inter alia, an indeterminate sentence with a minimum term of 15 years and a maximum term of life, which sentence was to run consecutively with the more than six years remaining upon the parole violation.

The procedure for determining whether defendant should be sentenced as a persistent felony offender requires both a hearing and a two-pronged analysis by the court to determine whether or not the defendant should be subjected to increased punishment as a persistent felony offender (CPL 400.20, subd. 1). Initially, the court must determine whether the defendant is a persistent felony offender as defined in subdivision 1 of section 70.10 of the Penal Law, namely, that he previously has been convicted of at least two felonies, and secondly, the court must determine if it "is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest" (CPL 400.20, subd. 1, par. [b] ).

It is established that the persistent felony offender statute is facially constitutional (People v. Suarez, 55 A.D.2d 963, 391 N.Y.S.2d 379; People v. Rosello, 97 Misc.2d 963, 969-971, 412 N.Y.S.2d 975; cf. United States v. Warme, 572 F.2d 57 (2nd Cir.1978), cert. den. 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 393). It likewise has been demonstrated that defendant in this matter was afforded a proper hearing in conformity with CPL 400.20 (cf. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326; People v. Washington, 96 A.D.2d 996, 467 N.Y.S.2d 87 [3d Dept.1983]; People v. Wilson, 64 A.D.2d 782, 407 N.Y.S.2d 921), was afforded the opportunity to controvert any evidence that was offered by the People to show that he was in need of lifetime supervision, and further was afforded the right to present any mitigating factors so as to avoid the imposition of the harsher legal sanctions.

Defendant further argues that he was denied his right to confront witnesses by the court allowing written statements by prior victims to be admitted into evidence without such witnesses being called upon by the People to testify. We note, however, that not only did defendant have the opportunity to cross-examine some of these witnesses at his trial, but further, that he was not prevented from calling such witnesses to testify at the persistent felony offender hearing. CPL 400.20 (subd. 5) further allows consideration of any relevant evidence, including hearsay evidence, in all "[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct".

There is little doubt that without the use of hearsay evidence at such a hearing the practical effect would be to render these provisions ineffective. We determine that the use of such evidence is not a denial of confrontation and does not violate defendant's substantive or procedural due process rights.

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