People v. Province
| Decision Date | 08 January 2015 |
| Citation | 2 N.Y.S.3d 320,47 Misc.3d 286,2015 N.Y. Slip Op. 25001 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Jerry PROVINCE, Defendant. |
| Court | New York Supreme Court |
Jerry Province, Pro Se.
Michael Fineman, Esquire, New York.
Ryan Hayward, Esquire, Assistant District Attorney, New York County District Attorney's Office, New York, for the prosecution.
On June 27, 2014, defendant Jerry Province was convicted after a jury trial of one count of assault in the second degree, (PL § 120.05[3] ), one count of obstructing governmental administration in the second degree (PL § 195.05) and one count of resisting arrest (PL § 205.30). The People sought to have defendant adjudicated a second violent felony offender (PL § 70.04[1] ) pursuant to CPL § 400.15 and sentenced accordingly. Citing CPL § 400.15(7)(b), defendant, then acting pro se, challenged the People's proposed adjudication on the ground that the proposed predicate violent felony convictions upon which that adjudication would be based were obtained in violation of his federal constitutional rights and therefore could not serve as predicate felony convictions in this case. The convictions in question are defendant's convictions upon his pleas of guilty on November 18, 1999, in Supreme Court, Kings County, to burglary in the second degree, a class C violent felony (PL § 140.25[2] ), under each of two indictments (People v. Jerry Province, Kings Co. Ind. Nos. 3581/99, 4710/99)(1999 convictions or 1999 plea cases), for which he received concurrent sentences of four years' imprisonment on December 3, 1999. The People maintained that the violation in question is not of a federal constitutional nature affecting predicate sentencing enhancement and that the alleged violation could not be retrospectively challenged either under the law applicable at the time of defendant's plea or under the current law as applied to defendant's plea under general principles of retroactivity.
On November 21, 2014, this court determined, in an oral ruling, that defendant was not procedurally barred from challenging the federal constitutionality of his 1999 convictions in the instant predicate sentencing proceeding; that defendant's 1999 convictions were obtained in violation of his federal constitutional rights under People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005) ; and that they could not serve as predicate felony convictions for sentence enhancement purposes here. This court then adjudicated defendant a first violent felony offender and sentenced him accordingly. (PL § 70.02[2][a] ).1 This written decision and order further explains the court's determination.
As stated, on June 27, 2014, after a jury trial,2 defendant was convicted, inter alia, of one count of assault in the second degree (PL § 120.05[3] ), a class D violent felony offense. On August 8, 2014, this court commenced a predicate adjudication hearing pursuant to CPL § 400.15 at which the People sought to have defendant adjudicated a second violent felony offender (PL § 70.04) based upon defendant's 1999 convictions. During oral argument, defendant, appearing pro se, challenged the use of the 1999 convictions as predicate violent felony convictions on the ground that those convictions were obtained in violation of his rights under the Constitution of the United States due to the failure of the plea court to inform defendant that his sentences in each case would include a period of post-release supervision. The predicate adjudication hearing was subsequently adjourned to September 2, 2014.
On September 2, 2014, the predicate adjudication hearing continued, with further oral argument concerning the constitutionality of the 1999 convictions. This court adjourned the proceeding for the People and defendant's legal advisor to submit written briefs in support of their respective positions.
By amicus curiae letter brief dated September 24, 2014, Michael Fineman, Esquire, then legal advisor to defendant, argued that defendant's 1999 convictions were obtained in violation of People v. Catu, supra, in that the sentencing court failed to advise defendant that his sentences would each include a period of post-release supervision (PRS). Counsel argued that defendant's pleas were thus not knowingly, intelligently or voluntarily entered, violating defendant's rights to due process under the federal constitution, rendering them unavailable as predicate felony convictions for sentencing enhancement purposes in this case. (See PL § 400.15[7][b] ).
On October 6, 2014, the People served and filed their response to the amicus curiae
letter brief (Affirmation of Ryan Hayward, Esquire, dated Oct. 6, 2014), asserting that a Catu error does not constitute a federal constitutional violation for purposes of such proceedings. Citing People v. Catalanotte, 72 N.Y.2d 641, 536 N.Y.S.2d 16, 532 N.E.2d 1244 (1988), the People further argued that in any case, the 1999 convictions could not be challenged as violative of the 2005 Catu rule either under the law then in existence, or by retroactive application of the Catu ruling to defendant's 1999 convictions.
On October 9, 2014, defendant refused to be produced by the New York City Department of Correction for his court appearance. Due to defendant's refusal to appear, this court withdrew defendant's right to pro se representation and reassigned Mr. Fineman as his defense counsel. The predicate hearing was further adjourned for a further submission by defense counsel, to be followed by the court's ruling on defendant's predicate status on November 21, 2014.
On October 16, 2014, this court received a memorandum of law from defense counsel Fineman in further support of defendant's position. On November 21, 2014, with defendant present, the court issued its oral ruling, granting the defense motion precluding enhanced sentencing of defendant on the ground that the 1999 convictions violated defendant's federal constitutional rights under Catu. Defendant was sentenced as indicated as a first violent felony offender.
To establish that a defendant is subject to sentencing as a second violent felony offender under PL § 70.04, the People have the burden of proving beyond a reasonable doubt that the defendant has been subjected to the predicate violent felony conviction in question. (CPL § 400.15[7][a] ; People v. Konstantinides, 14 N.Y.3d 1, 15, 896 N.Y.S.2d 284, 923 N.E.2d 567 [2009] ; People v. Harris, 61 N.Y.2d 9, 14, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983] ). Once the People have satisfied this requirement, the burden shifts to the defendant to prove that the conviction was unconstitutionally obtained, offering sufficient facts to overcome the presumptions of validity and regularity of his prior felony convictions. (See Harris, supra, 61 N.Y.2d at 16, 471 N.Y.S.2d 61, 459 N.E.2d 170 ).
In this case, defendant's application presents several issues, each of which this court will address in turn.
The threshold question before the court is whether defendant may raise his Catu challenge in the current predicate adjudication proceeding.3
The Appellate Division, First Department has recognized that a defendant has an independent right to challenge a prior conviction on Catu grounds, even if there has been no appeal of that conviction. (People v. Santiago, 91 A.D.3d 438, 439, 936 N.Y.S.2d 37 [1st Dept.2012] ). Accordingly, defendant may raise such a challenge at the predicate adjudication proceedings in this case. (See also CPL § 400.15[7][b] [] ).
The next question to be answered is whether a Catu error occurred at defendant's 1999 plea allocution. Upon review of the transcript of that allocution (Tr. of proceedings, 1999 plea cases, Nov. 18, 1999), this court finds that the plea court made no reference to PRS at any time in the course of the proceedings. Accordingly, the court finds that, to the extent that the Catu rule is applicable to the plea proceedings resulting in the 1999 convictions, it was violated by the plea court.
The People's contention (citing People v. Catu, 2 A.D.3d 306, 768 N.Y.S.2d 600 [1st Dept.2003] ), that defendant has not raised a viable Catu claim because he has failed to show prejudice, i.e., that “knowledge of the post-release supervision component of [his] sentence would ... have affected defendant's decision to plead guilty” (id. ), is erroneous. In its decision in Catu, the Court of Appeals reversed the ruling of the First Department and expressly disavowed any such requirement. (People v. Catu, supra, 4 N.Y.3d at 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 ).4 The Court of Appeals adhered to that view in People v. Louree, 8 N.Y.3d 541, 838 N.Y.S.2d 18, 869 N.E.2d 18 (2007), in stating that “a defendant does not have to show that he would have declined to plead guilty if he had been correctly informed by the court ....”, citing its prior ruling in Catu. (Id. at 545, 838 N.Y.S.2d 18, 869 N.E.2d 18 ).
The federal habeas corpus cases cited by the People in support of their argument are not binding precedent for the present purposes. (See People v. Pignataro, 22 N.Y.3d 381, 386 n. 3, 980 N.Y.S.2d 899, 3 N.E.3d 1147 [2013] ). Furthermore, the People's reliance on Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), to require a showing of prejudice is misplaced. That case involved a Sixth Amendment claim of ineffective assistance of counsel, not a Fifth Amendment due process error on the part of a plea court. In any case, the decision of the Court of Appeals in Catu is dispositive for this court.
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