People v. Thompson

• Decision Date: 11 February 2016
• Docket Number: No. 16.,16.
• Citation: 26 N.Y.3d 678,47 N.E.3d 704,2016 N.Y. Slip Op. 00997,27 N.Y.S.3d 425
• Parties: The PEOPLE of the State of New York, Respondent, v. Freddie THOMPSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 678
47 N.E.3d 704
27 N.Y.S.3d 425
2016 N.Y. Slip Op. 00997

The PEOPLE of the State of New York, Respondent
v.
Freddie THOMPSON, Appellant.

No. 16.

Court of Appeals of New York.

Feb. 11, 2016.

Lynn W.L. Fahey, Appellate Advocates, New York City (A. Alexander Donn of counsel), for appellant.

Daniel M. Donovan, Jr., District Attorney, Staten Island (Anne Grady and Morrie I. Kleinbart of counsel), for respondent.

OPINION OF THE COURT

FAHEY, J.

47 N.E.3d 705

This appeal turns on our conclusion that to revoke a penalty of probation does not equate to annulling a sentence under Penal Law § 60.01. In November 2010, defendant was convicted of, inter alia, two counts of the class B violent felony of robbery in the first degree (Penal Law § 160.15[4] ) (generally, instant conviction). Our primary interest in this case, however, lies not with those crimes, but with one of defendant's prior convictions—specifically, his June 1994 conviction of the class B violent felony of assault in the first degree (Penal Law § 120.10 [1] ) (generally, prior conviction)—and the question whether that conviction qualifies as a predicate violent felony offense (see Penal Law § 70.04 [1][b] [second violent felony offender statute] ) for the purpose of sentencing him as a second violent felony offender with respect to the instant conviction.

Defendant was originally sentenced to probation with respect to the prior conviction on June 8, 1994 (generally, original sentence). After violating that probation, however, defendant was resentenced on December 21, 1995 to a prison term with respect to that crime (generally, resentence).

The principal question before us is whether the date of the original sentence, rather than the date of the resentence, determines whether the prior conviction comes within the 10–year look-back period in the second violent felony offender statute for the purpose of imposing sentence on the instant conviction (see Penal Law § 70.04[1][b][iv] [providing, subject to an exception immaterial here, that “sentence must have been imposed not more than (10) years before commission of the felony of which the defendant presently stands convicted”

for the prior conviction to constitute a predicate violent felony conviction] ). Based on our determination that the revocation of probation under Penal Law § 60.01 is not the analogue of the annulment of a sentence, we conclude that the original sentence controls for the purposes of determining eligibility under the look-back period in Penal Law § 70.04. We further conclude that, on these facts, defendant should not have been resentenced as a second violent felony offender with respect to the instant conviction.

I.

The instant robberies were committed on February 18 and February 25, 2010 and, in December 2010, Supreme Court sentenced defendant, as a second felony offender, to concurrent terms of 20 years' incarceration to be followed by five years'

47 N.E.3d 706

postrelease supervision (PRS) with respect to that conviction. Defendant was adjudicated a second felony offender based on a prior drug conviction.

Approximately two months later, the People “recommended” that the court treat defendant as a second violent felony offender based on the prior conviction, that is, the June 8, 1994 conviction of assault in the first degree. As noted, with respect to that conviction defendant initially was sentenced to five years' probation. That probation, however, was later revoked and, in place of the original sentence of probation, defendant was resentenced to a term of 2 to 6 years' incarceration on December 21, 1995.

In view of what they characterized as the December 21, 1995 “re-sentence date” with respect to the prior conviction, the People submitted to the sentencing court papers “in support of treating defendant as a second violent felony offender” with respect to the instant conviction. There, the People contended that, to the extent the “re-sentence date of December 21, 1995” controls as the date on which sentence was imposed upon the prior conviction, that conviction would qualify as a predicate violent felony pursuant to Penal Law § 70.04(1)(b)(iv), thereby rendering defendant eligible to be sentenced as a second violent felony offender with respect to the instant conviction. There is no dispute that, to the extent the resentence date is the controlling date of sentence with respect to the prior conviction, that conviction would constitute a predicate violent felony and thus subject defendant to sentencing as a second violent felony offender with respect to the

instant conviction. It is also undisputed that, to the extent the date of the original sentence controls for determining when “sentence [was] imposed” (§ 70.04[1][b][iv] ) with respect to the prior conviction, defendant cannot now be adjudicated a second violent felony offender on the basis of that crime.

Supreme Court agreed with the People that the date of the resentence, not the date of the original sentence, is the controlling date for the calculation of the look-back period, and it adjudicated defendant a second violent felony offender for the purpose of imposing sentence upon the instant conviction. In resentencing defendant with respect to those robbery crimes, the court reimposed its initial punishment, that is, it ordered concurrent determinate terms of 20 years' incarceration to be followed by five years' PRS.

Defendant subsequently appealed from both the judgment of conviction and sentence, and the resentence. The Appellate Division dismissed the appeal from so much of the judgment as imposed the sentence, and it rejected defendant's challenges to the balance of the judgment, which were based on grounds not at issue here (118 A.D.3d 822, 822–823, 987 N.Y.S.2d 189 [2d Dept.2014] ). The Appellate Division modified the resentence as a matter of discretion in the interest of justice by reducing the determinate terms of imprisonment imposed upon the instant conviction from 20 years to 15 years, and, as so modified, it affirmed the resentence (see id. ). In doing so, that Court concluded that Supreme Court did not err in resentencing defendant as a second violent felony offender inasmuch as the controlling date of the imposition of sentence for the prior conviction is the date of the resentence, not the date of the original sentence (see id. at 823, 987 N.Y.S.2d 189 ). A Judge of this Court granted defendant leave to appeal (24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ), and we now reverse the order of the Appellate

47 N.E.3d 707

Division insofar as appealed from.¹

II.

Before addressing the main issue before us, we consider the preliminary question whether this Court may hear this appeal. The People contend that this Court is powerless to address the merits of this case for three main reasons. None of those points has merit.

First, the People contend that CPL 450.90(1), which governs an appeal to this Court from an order of an intermediate appellate court, does not vest this Court with jurisdiction to hear this appeal. That section provides, in relevant part, that “[a]n order of an intermediate appellate court is adverse to the party who was the appellant in such court when it affirms the judgment, sentence or order appealed from.... An appellate court order which modifies a judgment or order appealed from is partially adverse to each party” (id. ).

According to the People, the Appellate Division merely modified the resentence here, and because the last sentence of CPL 450.90(1) provides that an Appellate Division order that modifies a judgment or order appealed from is partially adverse to each party, but does not say that an Appellate Division order that modifies a resentence creates adversity, this Court has no authority to hear this appeal. We disagree. The Appellate Division order modified the resentence to the extent of reducing defendant's period of incarceration from 20 to 15 years, but it otherwise affirmed the resentence (see 118 A.D.3d at 822–823, 987 N.Y.S.2d 189 ; see also CPL 450.30[3] [equating a resentence with a sentence for the purpose of specifying the instances in which a defendant may appeal to an intermediate appellate court]...