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1 SUPREME COURT TRIAL TERM NEW YORK COUNTY PART X THE PEOPLE OF THE STATE OF NEW YORK -against- Indictment No. 1304/09 DAVID SNIPES, Defendant X RUTH PICKHOLZ, J. Defendant moves to set aside his sentence on the ground that he was unlawfully adjudicated a persistent violent felony offender. The defendant was convicted after trial of robbery, burglary and assault for his participation in an October 9, 2008 push-in robbery. Immediately prior to sentence the People filed a statement alleging that he had previously been convicted of two prior violent felonies. The earlier of the two was an October 22, 1992 conviction for robbery in the first degree which is not in dispute here. The second was an October 13, 1999 conviction after plea for attempted robbery in the second degree under indictment 7231/999. The sentencing court (Rena Uviller, J.) sentenced defendant to seven years in prison on that conviction on October 20, She further directed that the sentence was to run concurrently with a ten year term she imposed that same day on a conviction for robbery in the first degree under indictment 8007/98. 1 Although the law required the sentencing court to impose a period of post-release supervision (PRS) in addition to a 1 indictment 1304/09. The conviction under indictment 8007 was not used to enhance the sentence that I imposed on

2 determinate prison term for each of those convictions (Penal Law 70.45), Judge Uviller did not impose a PRS term in either case. On March 23, 2010, the day of the sentence on the instant conviction, the defendant admitted both the 1992 and the 1999 violent felony convictions and did not challenge their constitutionality. I then adjudicated him a persistent violent felony offender and sentenced him to thirteen concun ent terms of from twenty-five years to life. As happened similarly in numerous other cases, the New York State Department of Correctional Services informed the defendant that he would be obligated to serve a term ofprs on his convictions under indictments 7231/999 and 8007/98 despite the fact that the sentencing court had made no mention of a PRS term in either case. The Court of Appeals subsequently held that DOCS had no authority to administratively impose PRS in such cases (see Matter of Garner v. New York State Dept. of Correctional Services, 10 NY3d 358). The court further held in People v. Sparber (1 0 NY3d 457) that the sole remedy in instances where the sentencing court fails to pronounce a term of post-release supervision as required by law "is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement" (People v. Sparber, 10 NY3d 457 at 471). Ifthe court does not wish to add a term of post-release supervision to the defendant's sentence, and the District Attorney agrees, it need not do so. But in that case the court must "reimpose the originally imposed determinate sentence of imprisonment without any term of post -release supervision, which then shall be deemed a lawful sentence" (Penal Law 70.85). Almost two years later, the court held that there was a temporal limitation on the power of a com1 to resentence a criminal defendant, even where the original sentence imposed was illegal: -2-

3 [C]riminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts. Even where a defendant's sentence is illegal, there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired). In these situations, the sentences are beyond the court's authority and an additional term of PRS may not be imposed... Once a defendant is released from custody and returns to the community after serving the period of incarceration that was ordered by the sentencing court, and the time to appeal the sentence has expired or the appeal has been finally determined, there is a legitimate expectation that the sentence, although illegal under the Penal Law, is final and the Double Jeopardy Clause prevents a court from modifying the sentence to include a period of post-release supervision" (internal citations omitted) (People v. Williams (14 NY3d 198 at 217, ). On November 24, 2009, subsequent to the court's pronouncements in Sparber and Gardner, but prior the issuance of Williams, Judge Uviller sua sponte resentenced defendant on indictments 7231/99 and 8007/98. He had been released from prison by that time. With the People's consent the court reimposed the determinate term it had originally imposed for his conviction under indictment 7231/99 without a term of post-release supervision. The People gave no such consent as to the conviction for robbery in the first degree (indictment 8007 /98), and Judge Uviller was therefore required to resentence him to ten years in prison plus five years of postrelease supervision on that indictment. He appealed his new sentence on indictment 8007/98 on the ground that the court had wrongly imposed a PRS term. On April 14, 2010, shortly after Williams was decided, Judge Uviller issued an order vacating "that pmiion of the defendant's sentence which reflects a period of post-release supervision." The appeal from the November 24, 2009 resentencing was then dismissed as moot. The resentencing proceedings have played havoc with defendant's status as a persistent violent felony offender. Where a court imposes an illegal sentence for a conviction and -3-

4 later vacates it, and then imposes one that is legal, the conviction cannot serve as a predicate felony to enhance the defendant's punishment for a crime committed prior to the date of resentence (see People v. Robles, 251 AD2d 20; People v. Boyer, 19 AD3d 804; People v. Bell, 73 NY2d 153 ). This rule applies where, as here, the defendant must be resentenced because his original sentence did not contain a term of post-release supervision as required by law (see People v. Acevedo, 75 AD3d 255; People v. Collado, 73 AD3d 608). Defendant committed the crime underlying indictment 1304/09 on October 9, 2008, six weeks before he was resentenced on indictment 7231/99. Indictment 7231/99 can therefore no longer be used to enhance his sentence on indictment 1304/09 (see People v. Acevedo, 75 AD3d 255). The People concede this point. They argue, however that although my original sentence must be vacated, it is still possible for me to adjudicate him a persistent violent felony offender based upon a different pair of prior violent felony convictions- the October 22, 1992 conviction for robbery in the first degree, which was one of the two utilized when I adjudicated him a persistent violent felony offender on March 9, 2010, and the 1999 conviction for robbery in the first degree under indictment 8007/98, which was not. There appears to be no impediment to using the 1992 conviction. The 1999 conviction for robbery in the first degree (indictment 8007/98) is problematic. The defendant argues that indictment 8007/98 may not be used to enhance his sentence any more than indictment could have been used for that purpose because Judge Uviller vacated his sentences on indictment 8007/98 and 7231/99 on the same day. Both indictments are therefore equally barred from use as predicate felonies pursuant to Acevedo and Collado. What is more, Judge Uviller modified the sentence on indictment 8007/09 once again on April 14, 2010, when she vacated the -4-

5 PRS portion of the sentence. Which of these two dates is the effective resentence date is irrelevant according to defendant, as each came after he committed the crimes for which he seeks resentencing here. The People contend otherwise. Relying upon the pronouncements of the Court of Appeals in People v. Williams, that, "the Double Jeopardy Clause prevents a court from modifying the sentence to include a period of post-release supervision" ( 14 NY 3d 198 at ) and that the illegal sentence is "beyond the court's authority" (id. At 217) they argue that Judge Uviller's November 24, 2008 modification of defendant's sentence was a nullity. If that is the case, they continue, then his original sentence date governs for purposes of determining whether he is a persistent violent felony offender pursuant to Penal Law According to their reasoning, as the original sentence date preceded his commission ofthe crimes underlying indictment 1304/09, defendant may still be adjudicated a persistent violent felony offender. The People made much the same argument in both Acevedo (75 AD3d 255) and Collado (73 AD3d 608). The defendant in Acevedo pleaded guilty to attempted robbery in the second degree, a violent felony, in The sentencing court imposed a determinate prison term but no PRS term after adjudicating him a second felony offender. DOCS later administratively imposed a five-year term ofprs. Six months after he had been released from prison on his 2001 felony the defendant committed several drug offenses and he was later convicted of these crimes. The sentencing court adjudicated him a second felony drug offender based upon his 2001 conviction, and sentenced him to concurrent determinate prison terms and a term of PRS. The -5-

6 defendant did not contest his adjudication as a second felony drug offender upon his appeal. He later moved to set aside his sentence on the attempted robbery conviction, arguing that the sentence was illegal because the court had failed to impose a PRS term. The People consented to the imposition of the same determinate term that had originally been imposed without any term of PRS. Defendant was so sentenced. He then applied for resentencing on the drug convictions on the ground that the sequentiality requirements of the second felony offender statute (Penal Law 70.06) were no longer met. Before the appeal was decided the Court of Appeals decided People v. Williams (14 NY3d 198). The People argued, inter alia, that the attempted robbery resentencing proceedings were a nullity pursuant to Williams. The court rejected this argument on two grounds. The court held: Williams bars an upward modification of a sentence after a defendant has been released from incarceration. Here, the modified sentence imposes no additional punishment on defendant. Therefore, it does not violate the due process rights under consideration in Williams. Rather, it is a valid sentence and determines the date of the offense for the purpose of second felony offender adjudication. Moreover, the People did not raise any objection at defendant's resentencing but, to the contrary, gave their consent. (75 AD3d 255 at 260)(last sentence emphasis added). In many respects the facts of People v. Collado (73 AD 3d 608) mirror those before me. The defendant in Collado was sentenced to a two-year determinate sentence in 2000 following his guilty plea to a violent felony. The court made no mention of PRS at sentence. After defendant's release DOCS imposed a period of PRS on its own initiative. The defendant then committed several robberies. After he was convicted of these crimes in2005 the sentencing court adjudicated him a second violent felony offender and imposed concurrent eight-year prison terms. The court pronounced no term ofprs, but a five year PRS term was indicated on the commitment -6-

7 sheet. The Court of Appeals remitted the 2005 case to the trial court for resentencing in light of People v. Sparber (1 0 NY3d 457). The defendant then moved to set aside his sentence on the 2000 case. The sentencing court on the 2000 case imposed a term of PRS on that case, and held that the 2000 case could serve as a predicate conviction to enhance defendant's sentence on the 2005 case. The court then imposed eight-year prison terms and a five-year term of PRS on the 2005 case "whether or not [defendant] is a second felony offender." The People contested defendant's motion to set aside the sentence on the 2005 case. They again argued that, pursuant to People v. Williams, ( 14 NY 3d 198) the sentencing court had lacked jurisdiction to set aside the sentence on defendant's 2000 conviction and that the original sentencing date therefore governed for determining his predicate status. The Appellate Division held that unlike defendant, the People had not preserved the issue whether principles of double jeopardy prevented upward modification of defendant's sentence. They noted that the People were "not within the ambit of the protection afforded by the Double Jeopardy Clause" (73 AD3d 698, 610) and further stated: Nor have the People identified any procedure entitling them to contest the resentencing court's jurisdiction at this late date. Notably, they did not object to resentencing on the predicate offense, but actively sought the imposition of a period of PRS. Nor did they appeal from resentencing in the instant matter. Since this Court's review is restricted to issues "which may have adversely affected the appellant" (CPL [1]), we cannot consider the People's alternative argument in favor of affirmance (see People v Karp, 76 NY2d 1006 [1990]). Moreover, defendant does not object to the modified sentence. Therefore, the issue of the sentencing court's jurisdiction is not before us. Although preservation principles do not apply to the proceedings before me, it nevertheless holds true that the People are not protected by the Double Jeopardy Clause and may not invoke it against this defendant. Moreover, not only did the People not object to his -7-

8 resentencing in 2008, but at that proceedings they affirmatively asked the court to impose a PRS term on his conviction on indictment 8007/98. Additionally, they did not appeal from the resentencing. They have therefore waived any argument that double jeopardy principles prevent him from being resentenced. Even were that not the case, it would not help them, if as they argue, defendant's sentence reverted to the one that Judge Uviller originally imposed. That sentence was and remains illegal. It would therefore be unlawful to use the underlying conviction to enhance defendant's sentence. As the other two possible sentence dates (November 24,2008 and April14, 2010) came after defendant's commission ofthe crime, they may not be utilize for this purpose either. Accordingly, defendant's application to set aside his sentence as unlawful and to be sentenced as a second violent felony offender is granted. Dated: May 16, 2011 A.J.S.C. -8-