People v. Sheppard

• Decision Date: 03 July 2014
• Citation: 2014 N.Y. Slip Op. 04982,989 N.Y.S.2d 168,119 A.D.3d 986
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Tarrant J. SHEPPARD, Appellant.

119 A.D.3d 986
989 N.Y.S.2d 168
2014 N.Y. Slip Op. 04982

The PEOPLE of the State of New York, Respondent,
v.
Tarrant J. SHEPPARD, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

July 3, 2014.

[989 N.Y.S.2d 169]

Donna C. Chin, Ithaca, for appellant.

Gwen Wilkinson, District Attorney, Ithaca (Daniel Johnson of counsel), for respondent.

Before: STEIN, J.P., McCARTHY, GARRY, LYNCH and DEVINE, JJ.

GARRY, J.

Appeals (1) from a judgment of the County Court of Tompkins County (Rowley, J.), rendered August 14, 2013, which resentenced defendant following his conviction of the crime of criminal possession of a weapon in the third degree, and (2) by permission, from an order of said court, entered October 17, 2013, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In October 2003, Enrique Chavez died after he was shot in his apartment in the City of Ithaca, Tompkins County. Defendant was one of several individuals who were suspected of involvement, but no arrests were made at that time. Several years later, Ismail Abdur–Razzaaq and his brother, Umar Abdur–Razzaaq, implicated defendant in the shooting as part of a cooperation agreement related to pending federal charges. Defendant was thereafter charged with manslaughter in the second degree, criminally negligent homicide, criminal possession of a weapon in the third degree and tampering with physical evidence. Following a jury trial, he was acquitted of all charges except criminal possession of a weapon in the third degree. His motion to set aside the verdict pursuant

[989 N.Y.S.2d 170]

to CPL 330.30 was denied, and he was sentenced as a second felony offender to the statutory maximum prison term of 3 1/2 to 7 years.

Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, and County Court denied the motion. He appealed from the judgment of conviction and the denial of this motion. While that appeal was pending, defendant moved again pursuant to CPL 440.10 to vacate the judgment of conviction based upon newly discovered evidence. Before the second motion was decided, this Court affirmed the denial of the first CPL 440.10 motion, modified the judgment of conviction by vacating the sentence, and remitted the matter for resentencing (107 A.D.3d 1237, 967 N.Y.S.2d 498 [2013],lv. denied22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ). County Court then resentenced defendant to the same prison term and denied his second CPL 440.10 motion, without a hearing. Defendant now appeals from the judgment that resentenced him and, by permission, from the order denying the second CPL 440.10 motion.

Defendant contends that his sentence—the maximum permissible period of confinement for a second felony offender convicted of a class D felony ( seePenal Law §§ 70.06[3][d]; [4][b]; 265.02)—is harsh and excessive in view of his relatively minimal criminal history and long-standing issues with substance abuse. However, the record reveals that County Court specifically considered these factors and nonetheless concluded that the maximum term was appropriate, based upon defendant's failure to take responsibility for the instant offense and his history of repeated failures to take advantage of or comply with opportunities for substance abuse treatment. We find no abuse of the court's discretion in this regard or any extraordinary circumstances warranting a reduction in the interest of justice ( see People v. Dawson, 110 A.D.3d 1350, 1353, 973 N.Y.S.2d 850 [2013];People v. Ashley, 45 A.D.3d 987, 989, 845 N.Y.S.2d 539 [2007],lv. denied10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258 [2008];People v. Abbott, 275 A.D.2d 481, 484, 711 N.Y.S.2d 611 [2000],lv. denied96 N.Y.2d 731, 722 N.Y.S.2d 798, 745 N.E.2d 1021 [2001] ).

Defendant next contends that County Court erred in denying his second motion pursuant to CPL 440.10 to vacate the judgment of conviction. Contrary to defendant's contention, the bench decision in which the court set forth the reasons for denying the motion, as amplified by the court's comments during argument on the motion, was sufficient to comply with the statutory requirement to “set forth on the record [the court's] findings of fact, its conclusions of law and the reasons for its determination” (CPL 440.30[7]; see People v. Watkins, 79 A.D.3d 1648, 1648–1649, 913 N.Y.S.2d 620 [2010],lv. denied16 N.Y.3d 800, 919 N.Y.S.2d 517, 944 N.E.2d 1157 [2011] ). Further, upon review, we agree with County Court that two of the three issues raised in the motion had been raised in defendant's first CPL 440.10 motion. As these issues were considered and resolved upon the prior appeal, they are not now properly before us ( seeCPL 440.10[3][b]; People v. Glinton, 74 N.Y.2d 779, 780, 545 N.Y.S.2d 93, 543 N.E.2d 736 [1989]...