People v. Ryan
| Decision Date | 12 March 1996 |
| Citation | 168 Misc.2d 961,640 N.Y.S.2d 978 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Robert RYAN, Also Known as Keith Kittredge, Defendant. |
| Court | New York Supreme Court |
Charles J. Hynes, District Attorney of Kings County, for plaintiff.
The issue to be decided is whether a court more than one year after sentencing a defendant has the inherent power to vacate an illegal sentence where the defendant was illegally sentenced as a first-time felony offender as a direct result of his fraud and misrepresentation of his name and criminal record.
On October 31, 1994, the defendant pled guilty before me to class C felonies on two indictments. Under Indictment Number 13483/93 the defendant pleaded guilty to burglary in the second degree, and under Indictment Number 5550/94 the defendant pleaded guilty to attempted robbery in the first degree. At the time, the defendant's fingerprint record in each file indicated that the defendant had no prior convictions. The prosecution recommended sentences of 1 1/2 to 4 1/2 years on each plea to run concurrent to each other. Based on the facts then known to the court, this sentence was believed to be legal and appropriate. At the plea allocution, the court clerk advised the defendant that if he had previously been convicted of a predicate felony, as defined in Penal Law § 70.06, he would be subject to different or additional punishment.
On November 14, 1994, since the prosecution had not filed a predicate felony statement pursuant to CPL Article 400 and the Probation Department's pre-sentence report did not indicate that the defendant had any prior criminal record, the defendant was sentenced as promised.
Subsequently, on November 17, 1995, one year and three days after the sentences were imposed, this court received a letter from an Inmate Records Coordinator at the Great Meadows Correctional Facility which indicated that the defendant was not a first offender at the time he was sentenced in 1994. In fact, according to the letter, the defendant was a persistent violent felony offender under the name Keith Kittredge. The defendant had the following prior felony convictions:
(1) On December 14, 1979, the defendant was sentenced on two indictments. On Indictment Number 1271/79, the defendant was sentenced on a conviction for robbery in the first degree to 1 1/2 to 4 1/2 years, and on Indictment (2) On June 29, 1983, the defendant was sentenced on three separate indictments. Under Indictment Number 424/83, the defendant was sentenced to 3 to 6 years for convictions on two counts of burglary in the third degree; on Indictment Number 843/83, the defendant was sentenced to 3 to 6 years on two counts of attempted burglary in the second degree; and on Indictment Number 874/83, the defendant was sentenced to 3 to 6 years on two counts of attempted burglary in the second degree. All sentences were to run concurrent to each other;
Number 3056/79, the defendant was sentenced to one year imprisonment on a conviction for attempted robbery in the third degree;
(3) On December 15, 1987, on Indictment Number 1877/87, the defendant was sentenced on a conviction for attempted burglary in the second degree to 6 years to life.
All of the above convictions were under the name Keith Kittredge.
Thus, the defendant should have been sentenced by this court as a persistent violent felony offender pursuant to CPL § 400.16. At the time of these crimes, the mandatory minimum sentence for a persistent violent felony offender convicted of a class C felony was 8 years to life. Therefore, the sentences imposed were illegal.
After receiving the above letter, the court ordered that the defendant be produced from the State Department of Correctional Services. On January 17, 1996, the defendant was produced and was represented by the same counsel who represented him at sentencing. After conferring with the defendant, counsel stipulated that the defendant did indeed have the extensive criminal record noted above under the name Keith Kittredge.
It is not disputed that the People are now time-barred from moving to set aside the sentences on the ground that they were invalid as a matter of law. CPL § 440.40(1) requires that such a motion be made not more than one year after sentence is imposed. However, it is well settled that courts have inherent power, i.e., in the absence of explicit statutory authority, to correct sentences in instances where the correction relates to mistakes or errors which may be termed clerical in nature. See, People v. Minaya, 54 N.Y.2d 360, 445 N.Y.S.2d 690, 429 N.E.2d 1161 (1981), cert. denied 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144 (1982) (). Even after the one year deadline of CPL § 440.40(1), the sentencing court has the inherent power to correct an illegal sentence imposed as a result of a clerical or judicial error that deviates from what clearly was intended by the parties. See, People v. Wright, 56 N.Y.2d 613, 450 N.Y.S.2d 473, 435 N.E.2d 1088 (1982) ().
But, as noted in the McKinney's Practice Commentaries to CPL § 440.40, the question is open as to whether this inherent power to correct illegal sentences extends beyond mere clerical or judicial errors of the type made in Minaya and Wright. The Fourth Department has held that it does (People v. Ford, 143 A.D.2d 522, 533 N.Y.S.2d 35 [4th Dept.1988], appeal denied 73 N.Y.2d 786, 536 N.Y.S.2d 746, 533 N.E.2d 676), but the First Department--rejecting the reasoning of the Fourth Department--has held that it does not (People v. Riggins, 164 A.D.2d 797, 559 N.Y.S.2d 535 [1st Dept.1990].
In Ford, the defendant was convicted of a felony committed while on parole. Although Penal Law § 70.25(2-a) required that the court impose a sentence to run consecutively with respect to the undischarged sentence, the court sentenced the defendant to concurrent time. When the error was discovered, the court set aside the original sentence and resentenced the defendant to consecutive time. On appeal, the Fourth Department held that the sentencing court had inherent power to correct this error and impose a consecutive sentence with the defendant being given an opportunity to withdraw his guilty plea. The opinion in Ford did not indicate that the illegal sentence was vacated after one year. However, this court has obtained the records and minutes of the proceedings in the Ford case from the Niagara County Clerk's Office. Those records show that the illegal sentence was, in fact, vacated after one year on the court's own motion pursuant to what it found to be its inherent power to do so relying on People v. Wright, supra.
The First Department in Riggins, however, held that a sentencing court lacked the inherent power to correct an illegally imposed concurrent sentence nearly two years after the original sentence was imposed. According to Riggins, a court only has inherent power to correct an illegal sentence which was imposed in clear contravention of what was intended due to a patent clerical or judicial error as in Minaya and Wright.
Because the facts in this case are distinguishable from both Ford and Riggins, it is not essential to decide which opinion is correct. In this case, unlike the cases of Ford and Riggins, the illegal sentence that was imposed was the result of a fraud and misrepresentation of fact by the defendant.
When arrested for burglary and related charges on November 10, 1993, the defendant here told the police his name was Robert Ryan--a name he never previously gave the police. Apparently, due to a failure to accurately check the defendant's fingerprint record, the New York State Division of Criminal Justice Services produced a fingerprint record showing this was the defendant's first arrest. The defendant was released on his own recognizance at his Criminal Court arraignment on November 11, 1993. The defendant did not appear on the adjourned date, November 21, 1993, in Part AP-1 and a bench warrant was ordered.
On May 4, 1994, the defendant was arrested for a robbery and related charges committed on March 11, 1994 while the defendant was still a fugitive on the earlier case. The defendant again gave his name as Robert Ryan and again his fingerprint record did not disclose his numerous prior convictions. The defendant was subsequently indicted on both cases under the name Robert Ryan.
While the indictments were pending, the defendant never disclosed his true identity. He even filed, through counsel, motions to dismiss the indictments in the interest of justice pursuant to CPL § 210.40 based on assertions that he had tested positive for HIV and that he had never been arrested prior to these cases. In support of these motions, the defendant submitted a report from a Forensic Social Worker employed by the Legal Aid Society which asserted that the information in that report was obtained from the defendant, his family (names not specified), and medical records. This so-called investigative report failed to disclose that the defendant had spent most of his adult life in prison under another name.
Clearly, the defendant, perhaps with the aid of the family members...
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