People v. Santana

• Decision Date: 10 February 1983
• Citation: 459 N.Y.S.2d 705,117 Misc.2d 1016
• Parties: The PEOPLE of the State of New York v. Jose SANTANA, Defendant.
• Court: New York Supreme Court

Page 705

459 N.Y.S.2d 705

117 Misc.2d 1016

The PEOPLE of the State of New York v. Jose SANTANA, Defendant.

Supreme Court, Bronx County.

Feb. 10, 1983.

Mario Merola, Dist. Atty., New York City, Bronx County by Joseph Johnson, Asst. Dist. Atty., New York City, for the People.

Lewis Alperin, New York City, for defendant.

HOWARD E. GOLDFLUSS, Justice.

The defendant herein, after being convicted of Robbery Second Degree and Assault Second Degree, faces sentence as a persistent violent felony offender pursuant to Section 70.08 of the Penal Law. The said statute provides that a persistent violent felony offender is a person who stands convicted of a violent felony offense, after having been subjected to two or more predicate violent convictions, and fixes minimum and maximum sentences.

His objection to be so classified is based upon two significant points. At the outset, he claims that the statute is unconstitutional as applied to him because it would be in effect an ex-post facto law which is proscribed by Article I of the U.S. Constitution.

The chronology is as follows:

The defendant was sentenced in June of 1977 after having pled guilty to three separate indictments, each charging him with Criminal Possession of a Weapon in the Third Degree. He received 2-6 years on each indictment, said terms to run concurrently.

On September 1, 1978 § 70.02 of the Penal Law was enacted defining violent felony offenses which required minimum sentences of imprisonment. Although Criminal Possession of a Weapon Third Degree was not at that time included, further amendment of the statute in 1980 did include that crime in the violent felony offender category. Unquestionably, both § 70.02 P.L. as amended and § 70.08 P.L. were enacted after the defendant was sentenced to the three weapon possession indictments. The issue to determine is whether subjecting him to a persistent violent offender sentence for the present conviction which occurred in November of 1982, is in fact ex post facto because it unconstitutionally elevates the degree of his punishment.

Article I directs that "No bill of attainder or ex post facto law shall be passed." Shortly after the constitution was ratified, the United States Supreme Court in Caldor v. Bull, 3 DALL 386, 1 L.Ed. 648 (1798) defined "ex post facto," as applying to four areas.

"1st--Every law that makes an action done before the passing of the law and which was innocent when done, criminal."

"2nd--Every law that aggravates a crime or makes it greater that it was when committed."

"3rd--Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed and"

"4th--Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender."

Obviously, only the 3rd category would apply herein.

No reported appellate decision addresses this issue as it applies to the persistent violent offender statute (70.08 P.L.) However, the courts have dealt with the problem in upholding the sentencing structure of § 70.06 Penal Law, which provides for increased punishment for a second felony offender. The statute was held not to violate the due process clause as it applied equally to all persons so convicted. Nor was it found to be ex post facto because the increased punishment was imposed for the present violation and not as an additional penalty for the prior conviction. See People v. Stark, 78 Misc.2d 87, 355 N.Y.S.2d 906, aff'd 53 A.D.2d 1066, 385 N.Y.S.2d 695; People v. Pray, 50 A.D.2d 987, 376 N.Y.S.2d 691; People v. Irving, 54 A.D.2d 765, 387 N.Y.S.2d 697; People v. Mangiapane, 87 A.D.2d 851, 449 N.Y.S.2d 244. The Court of Appeals directly analyzed the issue in People v. Parker, 41 N.Y.2d 21, at page 26, 390 N.Y.S.2d 837, 359 N.E.2d 348.

"The well founded purpose of providing for the increased punishment for those who actually create the problem for themselves by persistent violations of penal statutes...