People v. Pagan

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: GRAFFEO
• Citation: People v. Pagan, 2012 NY Slip Op 4278, 19 N.Y.3d 368, 971 N.E.2d 347, 948 N.Y.S.2d 217 (N.Y. 2012)
• Decision Date: 05 June 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Jorge PAGAN, Appellant.

19 N.Y.3d 368

971 N.E.2d 347

948 N.Y.S.2d 217

2012 N.Y. Slip Op. 04278

The PEOPLE of the State of New York, Respondent,

v.Jorge PAGAN, Appellant.

Court of Appeals of New York.

June 5, 2012.

Legal Aid Society, New York City (Steven B. Wasserman and Steven Banks of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Karen Griffin, Leonard Koerner and Stephen J. McGrath of counsel), for respondent.

OPINION OF THE COURT

GRAFFEO, J.

The threshold question before us is whether a defendant can appeal from an order modifying the conditions of a sentence of probation. We conclude that such an appeal is not authorized by the Criminal Procedure Law. Instead, judicial review must be sought in a CPLR article 78 proceeding.

Defendant Jorge Pagan pleaded guilty to one count of criminal possession of a weapon in the third degree. Pursuant to a plea agreement, defendant was sentenced in June 2008 to six months in jail and five years of probation. More than three months later, the New York City Department of Probation applied to the court to enlarge the conditions of defendant's probation under CPL 410.20 so as to authorize searches of defendant's home during his probationary term. Defendant opposed the application, asserting that the court lacked the authority to modify the conditions of probation to include warrantless home searches.

In January 2009, Supreme Court granted the application to the extent of modifying the conditions of probation to permit the Department of Probation to conduct sporadic “knock and announce” searches of defendant's home at reasonable hours when he was present. Without addressing appealability, a divided Appellate Division affirmed (76 A.D.3d 414, 906 N.Y.S.2d 37 [1st Dept.2010] ). One of the dissenting Justices granted defendant leave to appeal, and we now reverse.

It is well established that “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” ( People v. Dunn, 4 N.Y.3d 495, 497, 796 N.Y.S.2d 331, 829 N.E.2d 295 [2005] [internal quotation marks and citation omitted]; see also People v. De Jesus, 54 N.Y.2d 447, 449, 446 N.Y.S.2d 201, 430 N.E.2d 1254 [1981] ). We have emphasized that criminal appeals are thereby “limited” ( People v. Bautista, 7 N.Y.3d 838, 839, 823 N.Y.S.2d 754, 857 N.E.2d 49 [2006] ), and that “[c]ourts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes. This is especially so in one of the most highly structured and highly particularized articles of procedure—appeals” ( People v. Hernandez, 98 N.Y.2d 8, 10, 743 N.Y.S.2d 778, 770 N.E.2d 566 [2002] [internal quotation marks and citation omitted] ).

CPL article 450 governs the appealability of orders in criminal proceedings. Analysis begins with CPL 450.10, which “codifies a criminal defendant's common-law right to appeal to an intermediate appellate court” ( People v. Ventura, 17 N.Y.3d 675, 679, 934 N.Y.S.2d 756, 958 N.E.2d 884 [2011] ). As relevant to this case, CPL 450.10(2) allows a defendant to appeal from a “sentence” as prescribed by CPL 450.30(1). CPL 450.30(1), in turn, provides that a defendant may appeal from a sentence on the basis that it is “invalid as a matter of law” or “harsh or excessive.”

Significantly, CPL 450.30(3) further specifies that an appeal from a sentence pursuant to CPL 450.10(2) can have only one of two meanings. First, an appeal lies from “the sentence originally imposed” (CPL 450.30[3] ). Alternatively, a defendant may appeal from “a resentence following an order vacating the original sentence” ( id.). Hence, an appeal predicated on CPL 450.10(2) that is not taken from either a sentence or a resentence must be dismissed ( see De Jesus, 54 N.Y.2d at 449, 446 N.Y.S.2d 201, 430 N.E.2d 1254).

In this case, the January 2009 order modifying the conditions of defendant's sentence of probation does not fit either of these statutory categories. It was not the sentence originally imposed in June 2008. Nor did the court “vacat[e] the original sentence” and impose a resentence in January 2009. Rather, the court altered the conditions of probation pursuant to CPL 410.20(1), which authorizes a court to “modify or enlarge the conditions of a sentence of probation.” Because the January 2009 modification order was not a “sentence” within the meaning of CPL 450.30(3), there is no statutory basis for defendant to pursue an appeal.

Recognizing this obstacle, defendant would have us treat the January 2009 modification order as if it were a resentence even though the court never “vacat[ed] the original sentence” as required by CPL 450.30(3). In contrast, the dissent views the modification to be “part of the original sentence” (dissenting op. at 372, 948 N.Y.S.2d at 219, 971 N.E.2d at 349). But, as we have indicated, we cannot apply a more expansive interpretation just because we think it is a good idea, “especially when an adequate legal remedy aside from a direct appeal [is] available” ( Dunn, 4 N.Y.3d at 497, 796 N.Y.S.2d 331, 829 N.E.2d 295;see also People v. Laing, 79 N.Y.2d 166, 170–171, 581 N.Y.S.2d 149, 589 N.E.2d 372 [1992] ). Here, defendant could have brought a CPLR article 78 proceeding in the nature of prohibition to challenge the modification of the conditions of his sentence of probation on the ground that the court lacked the power to modify as it did ( see Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 359, 653 N.Y.S.2d 237, 675 N.E.2d 1189 [1996] ). Consequently, the proper vehicle to have challenged Supreme Court's January 2009 modification order was an article 78 proceeding, not a direct appeal.

Finally, because the Appellate Division, like us, lacked jurisdiction to entertain defendant's appeal, we remit to that Court for dismissal of the appeal ( see People v. Joseph R., 17 N.Y.3d 767, 768, 929 N.Y.S.2d 71, 952 N.E.2d 1064 [2011];People v. Jian Jing Huang, 1 N.Y.3d 532, 533–534, 770 N.Y.S.2d 685, 802 N.E.2d 1083 [2003] ).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court, with directions to dismiss the appeal taken to that Court.

SMITH, J. (dissenting).

The majority has given a literalistic reading to CPL 450.30(3), producing a convoluted rule the Legislature could not possibly have intended: A defendant can appeal from his sentence when it is first imposed, and if it is vacated he can appeal from a resentence; but if, without being vacated, it is modified...