People v. Paniagua
| Decision Date | 06 September 2007 |
| Docket Number | No. 977-978,977-978 |
| Citation | 45 A.D.3d 98,841 N.Y.S.2d 506,2007 NY Slip Op 6578 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JUAN PANIAGUA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert S. Dean, Center for Appellate Litigation, New York City (Gayle Pollack of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York City (Eleanor J. Ostrow of counsel), for respondent.
Defendant was convicted in October 2002 of criminal sale of a controlled substance in the first degree (a class A-I felony) and criminal sale of a controlled substance in the second degree (a class A-II felony), inter alia. He was sentenced on these two counts to concurrent indeterminate terms of 15 years to life (Penal Law § 70.00 [2] [a]; [3] [a] [i]) and three years to life (§ 70.00 [2] [a]; [3] [a] [ii]), respectively, which were the minimum sentences allowed by law.
In 2004, the Legislature, in the Drug Law Reform Act (2004 DLRA), authorized new sentencing guidelines for these class A felonies (see Penal Law § 70.71). The legislation permitted certain convicted A-I felons to apply for resentencing under the new guidelines (L 2004, ch 738, § 23). Defendant made such an application with regard to his A-I conviction. He also sought resentencing on his A-II conviction. On July 12, 2005 (the first order appealed from herein), he was resentenced on the A-I count to a determinate term of eight years, to be followed by five years of postrelease supervision. His application with respect to his A-II conviction was denied as premature, without prejudice, in light of the fact that further ameliorative reform with regard to A-II resentencing was pending and had not yet been enacted into law.
Further legislation was enacted and became effective in October 2005 (2005 DLRA), this time permitting certain convicted A-II felons to apply for resentencing under this new law (L 2005, ch 643). Defendant this time applied for resentencing on his A-II conviction, but in order to qualify, he requested reinstatement of his original sentence on the A-I conviction. On March 13, 2006 (the second order appealed from herein), the court denied this latest application.
Defendant's challenge to the resentence on his class A-I felony is without merit because he received the minimum sentence allowed under the 2004 DLRA—a determinate term of eight years' imprisonment, which, by law, must be accompanied by a term of five years of postrelease supervision—and precisely the sentence defendant requested. Defendant also contends that the court erred in refusing to resentence him on his A-II conviction at the time.
As to the appeal from the resentence on the A-I felony, defendant argues that the court violated the provision of the 2004 DLRA that directs a sentencing court to "specify and inform" the defendant of the proposed sentence and to give him the opportunity to withdraw the application or to appeal the proposed sentence before it is imposed (2004 DLRA § 23). By not following that procedure, he argues, he was denied the opportunity to consult with counsel before the imposition of sentence and thereby lost the ability to be subsequently resentenced on his class A-II felony conviction.
At the outset we note that defendant never preserved this argument for appellate review and we decline to renew it in the interest of justice. In any event, the claim is meritless. The 2004 DLRA provides that a sentencing court "shall ... specify and inform" the defendant of the determinate sentence it proposes to impose and "shall enter an order to that effect." (Id.) The court "shall notify" the defendant that "unless he or she withdraws the application or appeals from such order," it will vacate the originally imposed sentence and impose the determinate sentence. (Id.) An appeal as of right may be taken from the newly imposed sentence on the grounds that the term of the new sentence is harsh or excessive, or is unauthorized as a matter of law.
Thus, the "specify and inform" provision recognizes that a resentencing court's proposed sentence might be less favorable, from a defendant's perspective, than the indeterminate sentence originally imposed. For instance, under the 2004 DLRA, a resentencing court could decide to impose a determinate sentence that is longer than the minimum term of the defendant's indeterminate1 sentence. In such a situation, a resentencing court's failure to "specify and inform" a defendant of the proposed sentence before imposing that sentence would expose the defendant to a determinate sentence that, to him, might be more onerous than the indeterminate sentence he is already serving.
As this Court has recognized, however, when, as here, the resentencing court imposes a determinate sentence that the defendant finds manifestly acceptable, the imposition of that sentence without first "specifying and informing" the defendant of the proposed sentence—even if a technical violation of the statute—does not entitle the defendant to any relief on appeal (see People v Bennett, 31 AD3d 298 [2006], lv denied 7 NY3d 846 [2006]; see also CPL 470.05 [1] []). Where, as here, a defendant receives the very sentence that he requests, which happens to be the minimum under the law and considerably less than the minimum term of the original indeterminate sentence, there is no risk, nor can there be any argument, that he is being subjected to a sentence less desirable than the one he is serving. Nor, in such circumstances, can a defendant be heard to complain that he was not given advance notice of the proposed sentence. By any rational measure, the resentence at issue was a much more favorable sentence than the one originally imposed. Thus, the resentencing court's determination to impose the minimum sentence— the sentence defendant requested—cannot be assailed.
The reality of the appeal of the A-I resentence is not that it is anything less than entirely favorable to defendant or that he ultimately wants any other resentence on his class A-I felony conviction, but rather that he hopes a temporary reinstatement of his original sentence on that conviction will make him eligible for resentencing on his class A-II felony conviction. As noted, the 2005 DLRA, affecting sentences on class A-II felony convictions, was signed into law after defendant had already been resentenced on his class A-I felony conviction.
Defendant's subsequent motion to be resentenced on his class A-II felony conviction was denied because, as the court ruled, he failed to meet one of the eligibility requirements, i.e., that he be not more than 12 months from being an eligible inmate as that term is defined in Correction Law § 851 (2). What defendant seeks by the appeal of his resentence on his A-I conviction is a vacatur of his resentence on that conviction, a reversal of the denial of resentence on his class A-II conviction for lack of eligibility, and a remand for further proceedings. At that time, defendant will argue that the temporary reinstatement of his original sentence on his class A-I felony now makes him eligible for resentencing on his class A-II felony conviction, and then request the court to reimpose the very same eight-year determinate sentence and five-year term of postrelease supervision on his class A-I felony that the court previously imposed.
We reject the attempt to use this appeal for the purpose of making an end run around the eligibility requirements of the 2005 DLRA. Even if defendant could achieve eligibility for resentencing on the class A-II felony conviction only by obtaining a reinstatement of his original 15-to-life sentence on his class A-I felony conviction, we would not countenance the vacatur of a favorable class A-I felony resentence to accommodate a defendant's circuitous attempt to take advantage of the eligibility requirements of the 2005 DLRA and then permit the reimposition of that very same sentence.
After the 2005 DLRA took effect, defendant petitioned for resentencing on his A-II conviction, asking the court to impose a determinate sentence of three years' imprisonment, which must be accompanied by a term of five years of postrelease supervision. The sentencing court denied the petition on the ground of ineligibility because defendant "cannot meet the requirement under the revised DLRA that he is not more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the Correction Law." This was an incorrect ruling insofar as section 851 (2) is concerned. As will be discussed, infra, however, defendant failed to meet a second prerequisite for resentencing, namely, the "eligibility requirements" for receiving merit time set forth in Correction Law § 803 (1) (d). Thus, his application for resentencing on his class A-II felony conviction was properly denied.
The 2005 DLRA sets forth several eligibility criteria for a defendant seeking resentencing on a class A-II felony conviction. Such defendant must be "in the custody of the department of correctional services convicted of a class A-II felony offense" as defined in Penal Law article 220, and the class A-II felony offense must have been "committed prior to the effective date of this section," i.e., October 29, 2005 (DLRA § 1). The inmate must have been "sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than three years." (Id.) It also provides for the particular requirement upon which the sentencing court relied—that the inmate must be "more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law." (Id.) Finally, the enactment states that the inmate must meet "the eligibility requirements of parag...
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