People v. Sailor

• Citation: 491 N.Y.S.2d 112,480 N.E.2d 701,65 N.Y.2d 224
• Parties: , 480 N.E.2d 701 The PEOPLE of the State of New York, Respondent, v. James SAILOR, Also Known as Leroy Cooper, Appellant.
• Decision Date: 04 June 1985
• Court: New York Court of Appeals

Page 112

491 N.Y.S.2d 112

65 N.Y.2d 224, 480 N.E.2d 701

The PEOPLE of the State of New York, Respondent, v. James SAILOR, Also Known as Leroy Cooper, Appellant.

Court of Appeals of New York.

June 4, 1985.

David B. Weisfuse and Stephen J. Pittari, White Plains, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Richard E. Weill and Gerald D. Reilly, White Plains, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant has been convicted after trial of several offenses arising out of a 1978 bank robbery. He does not contest the validity of these convictions; rather, he insists that the sentence imposed upon him as a second felony offender violates the double jeopardy clause of both the United States Constitution (U.S. Const. 5th amend.), made applicable to the States through the 14th Amendment (U.S. Const. 14th amend.; see, Benton v. Maryland 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707), and the New York State Constitution (N.Y.Const., art. I, § 6). This is so, he claims, because County Court used a 1969 Florida conviction for attempted robbery as a predicate felony when it sentenced him although the prosecution had failed to prove his identity as the subject of that judgment in a prior persistent felony offender hearing. We affirm the judgment and hold that the protections embodied in the double jeopardy clauses of the Federal and State Constitutions do not apply to these enhanced sentencing proceedings required under New York's second and persistent felony offender statutes (Penal Law §§ 70.06, 70.10).

Following defendant's trial in 1979, County Court determined that enhanced sentencing might be appropriate because of defendant's prior record and it conducted a persistent felony hearing for that purpose (CPL 400.20). At the hearing defendant admitted that he had previously been convicted in Florida of attempted robbery and aggravated assault in 1969 and escape in 1971 although the convictions were in the name of Leroy Cooper. The court found defendant to be a persistent felony offender and sentenced him accordingly. On appeal, the Appellate Division, 101 A.D.2d 844, 475 N.Y.S.2d 876, affirmed defendant's convictions but vacated his sentence because the court had failed to give defendant prior notice, as the statute requires, of a factor in his background which it relied upon in making its determination that a persistent felony offender sentence was warranted (see, People v. Neloms (Sailor), 85 A.D.2d 746, 449 N.Y.S.2d 646). It remitted the matter for resentencing.

On remittal, County Court issued a new persistent felony offender statement (see, CPL 400.20[3] ) setting forth the identical Florida convictions that had served as the basis for the previous determination and ordered another hearing. This time, however, defendant denied that he was the subject of these prior Florida convictions and announced that he would put "the People to the burden of proving that he is the same person" as Leroy Cooper. At the hearing which followed, the People introduced certificates of defendant's 1969 and 1971 Florida convictions and they then attempted to prove that Leroy Cooper was the defendant by introducing defendant's FBI rap sheet and a certified copy of the transcript of the prior persistent felony offender hearing at which defendant had admitted the convictions. The court rejected the identity evidence because it found both documents constituted hearsay and were inadmissible. The prosecution offered no further proof and the court found that defendant was not a persistent felony offender because the People had failed to prove that he was the subject of the prior Florida convictions.

Before sentence was imposed, the prosecution filed a predicate felony conviction statement alleging the same Florida convictions that had been the subject of defendant's two prior persistent felony offender hearings and sought to have defendant adjudged a second felony offender (see, CPL 400.21[2]; Penal Law § 70.06). At the preliminary examination that followed, defendant objected to the proceeding on grounds of double jeopardy and collateral estoppel because the People were using the same convictions that they had failed to prove in the earlier persistent felony offender hearing. The court rejected these contentions and ordered a hearing. Following the hearing, the court found that the prosecution had proved that defendant was convicted of attempted robbery in Florida in 1969 and that the conviction constituted a proper predicate felony conviction and it sentenced defendant as a second felony offender.

Defendant asserts that the constitutional guarantees against double jeopardy prevent the prosecution from subjecting him to a second felony offender hearing on the basis of the same convictions that the People failed to prove at his prior persistent felony offender hearing. He also contends that the common-law doctrine of collateral estoppel precludes the People from relitigating whether he and Leroy Cooper are one and the same person but that even if constitutional double jeopardy and common-law collateral estoppel principles do not operate to bar imposition of the second offender sentence he has received, he still must be sentenced as a first offender because his 1969 Florida conviction for attempted robbery is not the equivalent of a New York felony and therefore is not a proper predicate for the second offender sentence.

I

The collateral estoppel claim must be resolved first because if the litigation can be resolved on that ground the constitutional claim should not be addressed (see, Matter of Beach v. Shanley, 62 N.Y.2d 241, 254, 476 N.Y.S.2d 765, 465 N.E.2d 304; People v. Felix, 58 N.Y.2d 156, 161, 460 N.Y.S.2d 1, 446 N.E.2d 757).

Collateral estoppel principles, as they exist independent of the prohibition against double jeopardy, apply to criminal as well as civil actions, but because of the different interests involved, they are applied with greater flexibility in criminal matters than in civil litigation (see, People v. Plevy, 52 N.Y.2d 58, 64-65, 436 N.Y.S.2d 224, 417 N.E.2d 518; People v. Berkowitz, 50 N.Y.2d 333, 344-345, 428 N.Y.S.2d 927, 406 N.E.2d 783; People ex rel. Dowdy v. Smith, 48 N.Y.2d 477, 482-484, 423 N.Y.S.2d 862, 399 N.E.2d 894). Society's primary interest in civil disputes is that they be decided in a peaceful, orderly and impartial manner. Thus litigation-limiting estoppel principles are applied liberally in civil litigation. They are not so readily applied in criminal litigation, however, because in those matters society is concerned not only with seeing that guilt or innocence is established but that it is established correctly. Collateral estoppel should not preclude the prosecution in this case from relitigating defendant's prior felony convictions at the second felony offender hearing because: (1) there was no final judgment rendered in the prior hearing (compare, People v. Plevy, supra, 52 N.Y.2d at p. 64, 436 N.Y.S.2d 224, 417 N.E.2d 518, with Matter of McGrath v. Gold, 36 N.Y.2d 406, 412, 369 N.Y.S.2d 62, 330 N.E.2d 35); (2) the prosecution could not, as a matter of law, appeal the discretionary persistent felony offender determination (see, CPL 450.30[2]; Restatement [Second] of Judgments § 28[1] ); (3) the prosecution did not receive a full and fair adjudication of the issue in the persistent felony offender hearing because the court erroneously excluded evidence of defendant's formal judicial admission, an exception to the hearsay rule (see, Richardson, Evidence § 216, at 191-193 [Prince 10th ed] ) and (4) arguably the determination concerning the prior attempted robbery conviction was not essential to the determination of two or more prior felonies at the persistent felony offender hearing; the same finding would have been required if the other two prior convictions were not proved (see, Penal Law § 70.10[1][a] ). We proceed, therefore, to defendant's constitutional claim.

II

The constitutional guarantee against double jeopardy provides protection against successive prosecutions for the same offense and against multiple punishments for the same offense (United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656). Accordingly, it has had only limited application to sentencing until recently (see, United States v. DiFrancesco, supra, 449 U.S. at pp. 133-135, 101 S.Ct. at pp. 435-436). In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 and Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164), however, the United States Supreme Court held that the protections embodied in the double jeopardy clause of the 5th Amendment apply to trial-type determinations of punishment. Because these decisions are central to defendant's argument, we analyze them in some detail.

The issue in Bullington was whether or not the State could seek the death penalty at retrial after the defendant had been sentenced to life imprisonment at the punishment phase of his first trial. ¹ The court noted that it was "well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted for the crime charged" but that this principle had not been extended to sentencing decisions because "[t]he imposition of a particular sentence usually is not regarded as an 'acquittal' of any more severe sentence that could have been imposed" (Bullington v. Missouri, 451 U.S. 430, 437-438, 101 S.Ct. 1852, 1857-1858, 68 L.Ed.2d 270, supra; see also, United States v. DiFrancesco, 449 U.S. 117, 129-130, 101 S.Ct. 426, 433-434, 66 L.Ed.2d 328, supra ). It found, however, that the sentencing procedures required by the Missouri death penalty statute differed "significantly" from those employed in its prior double jeopardy-sentencing decisions in three material ways. First, the "unbounded discretion" that normally applied to...