People v. Saez

• Decision Date: 03 July 1984
• Citation: 478 N.Y.S.2d 1002,125 Misc.2d 125
• Parties: The PEOPLE of the State of New York v. Humberto SAEZ.
• Court: New York Supreme Court

Page 1002

478 N.Y.S.2d 1002

125 Misc.2d 125

The PEOPLE of the State of New York v. Humberto SAEZ.

Supreme Court, Kings County.

July 3, 1984.

Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn, for the People; Jeanette E. Carrington, Asst. Dist. Atty., Brooklyn, of counsel.

Caesar D. Cirigliano, Legal Aid Soc., Brooklyn, for defendant; Stephanie Benson, Brooklyn, of counsel.

LEWIS L. DOUGLASS, Justice.

On January 4, 1984, the defendant, Humberto Saez, waived his right to be prosecuted by indictment and the court authorized the filing of a Superior Court information. The defendant pled guilty to the crime of Attempted Sale of a Controlled Substance in the fifth degree and, on January 30, 1984, was sentenced to six months in jail and five years probation. He was not sentenced as a predicate felon.

After the sentencing, the People discovered that the defendant had been previously convicted of a predicate felony in Michigan and, now, have applied, pursuant to Criminal Procedure Law, Section 440.40, for an order to set aside the sentence upon the ground that it was invalid as a matter of law. The People argue that the second felony offender sentencing provision of Section 70.06 are mandatory and failure to sentence the defendant as a second felony offender was invalid as a matter of law. Conversely, the defendant argues that the sentence was not illegal and that resentencing would frustrate legitimate expectations of finality and violate the Constitutional provisions against Double Jeopardy, especially in this case where the defendant has already served his jail sentence. Therefore, the issue presented by this case is whether a court may set aside a sentence and resentence a defendant as a predicate felon when the prosecutor, due to a lack of knowledge of the previous felony, failed to file a predicate felony information statement before the original sentencing.

It is well established that, under certain circumstances, a court is allowed to set aside a sentence. People v. Wright, 56 N.Y.2d 613, 450 N.Y.S.2d 473, 435 N.E.2d 1088 (1982); People v. Minaya, 54 N.Y.2d 360, 445 N.Y.S.2d 690, 429 N.E.2d 1161 (1981) cert. den. 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144 (1981); People v. Blount, 54 A.D.2d 718, 387 N.Y.S.2d 469 (2d Dept.1976); People v. Crawford, 64 A.D.2d 612, 406 N.Y.S.2d 531 (2d Dept.1978); People v. Anderson, 60 A.D.2d 632, 400 N.Y.S.2d 175 (2d Dept.1977); People v. Brown, 54 A.D.2d 719, 387 N.Y.S.2d 470 (2d Dept.1976). Criminal Procedure Law section 440.40 subdivision 1 provides that "At any time not more than one year after the entry of a judgment, the court in which it was entered may, upon motion of the people, set aside the sentence upon the ground that it was invalid as a matter of law."

One recognized application of C.P.L. section 440.40 subdivision 1 is in cases of clerical error. In People v. Wright, 56 N.Y.2d 613, 450 N.Y.S.2d 473, 435 N.E.2d 1088 (1982), where the Trial Judge had misspoken in sentencing the defendant to a concurrent, rather than a consecutive, sentence, the Court of Appeals allowed the court to correct the error. Also, in People v. Minaya, 54 N.Y.2d 360, 445 N.Y.S.2d 690, 429 N.E.2d 1161 (1981) cert. den. 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144 (1981), the Court of Appeals allowed a correction of a clerical error in imposing the negotiated term. Clearly, when a court makes a simple clerical error, it should be allowed to correct the mistake and impose the sentence that would be supported by the record.

In the present case, it is not claimed that the sentence imposed on January 30, 1984 was a clerical error on the part of the court. On the contrary, the court imposed a sentence that is supported by the record, which did not include a predicate felony information statement. Therefore, the sentence can not be set aside as a clerical error.

Another application of C.P.L. section 440.40 subdivision 1 is in cases where the sentence violates a statute. In People v. Blount, 54 A.D.2d 718, 387 N.Y.S.2d 469 (2d Dept.1976), the Supreme Court, Appellate Division, vacated as unlawful a sentence which violated the second felony offender sentencing provisions of Penal Law section 70.06. The sentencing court had not followed the provisions of P.L. section 70.06 because it believed that the statute was unconstitutional. Since the statute was constitutional, the sentence contrary to the statute was set aside as invalid as a matter of law.

In the present case, we are also dealing with P.L. section 70.06, but it is not alleged that the court refused to apply the second felony offender statute in a situation where the record warranted its application. Therefore, People v. Blount, is not determinative in this case.

Other courts have set aside sentences where the prosecutor failed to follow the proper procedure for determining whether the defendant is a second felony offender. In People v. Crawford, 64 A.D.2d 612, 406 N.Y.S.2d 531 (2d Dept.1978), even though the prosecutor had not filed a predicate felony information statement, the defendant was sentenced as a second felony offender. That sentence was vacated. Similarly, in People v. Anderson, 60 A.D.2d 632, 400 N.Y.S.2d 175 (2d Dept.1977), the court held that "since there was 'no substantial compliance with C.P.L. 400.21 to support a waiver of the defendant's rights under that statute or create an estoppel,' the sentence must be vacated...." 60 A.D.2d 632, 400 N.Y.S.2d 175 (2d Dept.1977) citing People v. Woodard, 48 A.D.2d 980, 369 N.Y.S.2d 580 (3d Dept.1975). Clearly, a court can not legally impose a second felony offender sentence when the prosecutor has not filed a predicate felony information statement.

Again, the present case does not fall within this class of cases. In the present case, since the prosecutor had not filed a predicate felony information statement, the court did not sentence the defendant as a second felony offender. Unlike People v. Crawford, and People v. Anderson, this sentence is supported by the record. Therefore, the sentence can not be set aside on the basis of these cases.

In People v. Brown, 54 A.D.2d 719, 387 N.Y.S.2d 470 (2d Dept.1976), the sentence was set aside as invalid as a matter of law because, even though the defendant twice admitted, prior to his initial sentencing, that he was a second felony offender, the lower court failed to defer sentencing until the appropriate information statement had been filed by the prosecutor. Clearly, the holding in People v. Brown, is that when the defendant is a known second felony offender and the prosecutor has not filed a predicate felony statement, the court must defer sentencing until the appropriate statement has been filed or else the sentence will be deemed invalid as a matter of law.

In the present case, the defendant was not known to be a predicate felon. The record shows that only after sentencing did the prosecutor discover the previous felony conviction in Michigan. It would seem that People v. Brown, can be distinguished from the present case, yet one county court has held otherwise. People v. Sapp, 105 Misc.2d 312, 432 N.Y.S.2d 73 (Dutch.Co.Ct.1980).

In People v. Sapp, the Dutchess County Court stated the following:

The provisions of Penal Law section 70.06 expressly provide that the sentencing provisions encompassed by the same are mandatory (Penal Law section 70.06, subd. 2). In the proceeding at bar, it appears that those provisions were not observed because of the lack of knowledge by the probation department and the People at the time of sentencing that the defendant had previously been convicted of a predicate felony. This Court is satisfied after reviewing the papers submitted for and against the motion that the failure to have defendant arraigned as a Second Felony Offender prior to the time of his sentencing was an oversight on the part of the people and not the result of any deliberate conduct on their part. Under such circumstances, the sentence previously imposed on January 23, 1979 must be vacated as a nullity. (People v. Brown, 54 A.D.2d 719, 387 N.Y.S.2d 470).

105 Misc.2d 312, 432 N.Y.S.2d 73 (Dutch.Co.Ct.1980).

In order to understand People v. Sapp, one must examine the policy concerns behind the decision. These concerns were well put in People v. Brown, where the court stated the following:

The purpose of the procedures of C.P.L. 400.21 is to ensure that defendants sentenced under section 70.06 of the Penal Law are, in fact, second felony offenders. That procedure was not intended to allow known second felony offenders to be sentenced as first offenders if the prosecutor failed to comply with its provisions.

54 A.D.2d 719, 387 N.Y.S.2d 470 (2d Dept.1976). But, the holding in People v. Brown is based on the fact that the defendant was a known second felony offender who was not being prosecuted in the manner that the law mandated. People v. Sapp, takes the reasoning of People v. Brown, a step further, the concern being that, even though the defendant may not be a known second felony offender, he is a second felony offender who is not being treated as one. It seems that People v. Sapp, is concerned about cases where a defendant will plead quickly, before the prosecutor has all the information, in order to escape the intent of the legislature.

But, Criminal Procedure Law section 400.21 places the burden of establishing the existence of a prior conviction on the prosecution. Under the statute, the prosecutor must file a statement and the defendant has a chance to controvert the prosecutor's allegations. C.P.L. section 400.21 subdivisions 2, 3. Subdivision 2 states the following:

When information available to the court or to the people prior to sentencing for a felony indicates that the defendant may have previously been subjected to a predicate felony conviction, a statement must be filed by ...