People v. Plummer
| Decision Date | 26 April 1984 |
| Citation | 124 Misc.2d 337,476 N.Y.S.2d 426 |
| Parties | The PEOPLE of the State of New York v. Gerald PLUMMER. |
| Court | New York Supreme Court |
In two separate indictments defendant was charged with the crimes of kidnapping in the first degree, robbery in the first degree, rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, and criminal use of a firearm in the first degree. 1
On March 5, 1984 defendant pled guilty to attempted rape in the first degree and attempted robbery in the first degree, in full satisfaction of both indictments. 2
On March 28, 1984, the People filed a statement with the court, requesting that the defendant be sentenced as a second violent felony offender. Counsel for the defendant controverted the predicate violent felony statement, claiming that the prior conviction was a "YO" (youthful offender) and thus could not serve as a predicate. A hearing thereon was held before this court pursuant to C.P.L. 400.15, subdivision 5.
This court makes the following findings of fact and conclusions of law:
On December 20, 1968, in the United States District Court for the Southern District of New York, defendant pled guilty to violating Section 371 of Title 18 of the United States Code. The defendant received youthful offender treatment under the Federal Youth Corrections Act (U.S.Code, Tit. 18, Sect. 5005, et seq ). Pursuant to Section 5010(b) of Title 18, United States Code, Chapter 402, defendant was committed to the custody of the Attorney General as a youthful offender for treatment and supervision until discharged by the Federal Youth Correction Division of the Board of Parole as provided in Section 5017(c) of Title 18 of the United States Code. 3
It is this conviction which the People contend is a predicate violent felony conviction as defined in Section 70.06 of the Penal Law and on the basis of which the defendant may be sentenced as a second violent felony offender.
Clearly, under the Federal Youth Corrections Act, an accused who is deemed to be a young adult offender, initially stands convicted of a crime (Tuten v. United States, 460 U.S. 660, 103 S.Ct. 1412, 75 L.Ed.2d 359; People v. Celli, 105 Misc.2d 1005, 430 N.Y.S.2d 949, aff. 91 A.D.2d 1071, 458 N.Y.S.2d 896.
However, Subdivision (A) of Section 5021 of Title 18 of the United States Code provides that:
"Upon the unconditional discharge by the commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the commission shall issue to the youth offender a certificate to that effect."
The words of the statute are clear. Once an individual has been unconditionally discharged under this section, such discharge automatically sets aside the conviction (see Tuten v. United States, supra ).
Under New York law, the burden of proof is on the People to demonstrate beyond a reasonable doubt that a defendant sought to be sentenced as a second violent felony offender has a predicate violent felony conviction (CPL 400.15 ). As proof of defendant's predicate conviction, the People have submitted, and rely primarily, on a certified copy of defendant's judgment of conviction and commitment as a youth offender (see People's Exh. 1). Notwithstanding this proof, the distinct possibility remains that prior to the expiration of the maximum sentence imposed on him, the defendant was unconditionally discharged, thereby automatically setting aside the conviction (U.S.Code, Tit. 18, Sec. 5021).
Defendant's N.Y.S.I.S. (N.Y. State Identification System) Sheet, introduced as People's Exhibit 2, does not reflect this conviction. Indeed, its absence could be attributable to the conviction's expungement. Similarly, People's Exhibit 3, a certified extract of the defendant's criminal docket entries in the U.S. District Court for the Southern District of New York, gives no indication as to whether or not the conviction has been expunged.
The People introduced defendant's Federal Bureau of Investigation criminal record sheet, which states "6 years (Y.C.A. 5010-b) rel by full term expiration 5-5-75". This record, however, gives no indication as to what conviction this information relates. The expiration date of May 5, 1975 is longer than six years from the date of conviction which is the basis of the People's predicate statement. No explanation for this additional period of time has been offered by the People. If, in fact, the entry on the F.B.I. sheet referred to defendant's December 20th 1968 conviction, then pursuant to statute (18 U.S.C. § 5017(c)) defendant's maximum sentence would have expired on December 20, 1974, and not May 5, 1975, as indicated in the entry. This court, therefore, has a reasonable doubt as to whether the record entry pertains to the conviction specified in the People's predicate statement.
In addition to the exhibits offered, the People called one witness, a supervising investigator of the District Attorney's office. This witness testified that he had no personal knowledge as to whether defendant's federal conviction had been set aside and that he had not investigated the files of the United States District Court, concerning defendant's conviction. The People had the onus of producing...
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...by the prosecutor before sentence is imposed setting forth the date and place of each alleged predicate felony conviction. In People v. Plummer, 476 N.Y.S.2d 426, the court stated the following, in discussing the allocation of burdens under the second violent felony offender statute which i......
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People v. Blue
...beyond a reasonable doubt, the setting aside of such conviction, pursuant to [the Federal Youth Corrections Act]" ( People v. Plummer, 124 Misc.2d 337, 340, 476 N.Y.S.2d 426). We find that the People failed to disprove that the defendant's Federal conviction had been set aside and, therefor......