CAL in the Courts

Court of Appeals Settles "Look-Back" Eligibility Issue For DLRA Resentencings

On February 14, 2012, a four-judge majority of the Court of Appeals decided People v. Gilberto Sosa, holding that, under  C.P.L. § 440.46(5)'s plain meaning and consistent with the legislation's "broad remedial objectives," a prior violent conviction will not disqualify an individual from applying for resentencing unless it falls within the ten years preceding the motion's filing, excluding the statutorily designated tolling periods.  In so holding, the Court of Appeals joined the four Departments of the Appellate Division who had previously held that the "look-back" period runs from the date of the application's filing rather than, as the People proposed, the commission date of the drug offense.  As a result, defendants can  "age" in to eligibility as the distance between their prior violent conviction and the present widens. The Court of Appeals also rejected the People's contention that all the time spent incarcerated on the old-law drug sentence should be tolled because it inadequately demonstrates a defendant's ability to live crime-free in society. The Court observed that the Legislature's directive for resentencing courts to consider a defendant's institutional record "is not compatible with the view that time spent incarcerated is categorically without bearing upon, and thus logically to be excluded from counting toward, a defendant's basic eligibility for sentencing relief under DLRA-3."  The three dissenting judges believed that drug offenders with violent histories were not meant to "reap the benefits of these reforms on a 'rolling basis.'"   Barbara Zolot represented Mr. Sosa.

CAL Successfully Restores Jail Time Credit

After our client's sentence was reduced by the Appellate Division, First Department, NYC DOC recalcuated his sentence to deny him almost three years of previously credited jail time, maintaining that the time was instead correctly credited to parole time owed.  CAL attorneys Carl Kaplan and David Klem parsed the byzantine Penal Law statutes governing jail time versus parole time credit and prepared to file an Article 78.  In the process of exhausting administrative remedies, Carl wrote to city DOC outlining our claims and asking for the restoration of the original jail time credit.  On February 7, Carl was advised that all the time was restored, earning our client's release nearly three years earlier than it had stood. 

DLRA Resentencing on CAL Motion to Renew

In People v. McPhatter, Brent McPhatter, through different counsel, had filed a resentencing motion in January 2010 pursuant to the 2009 Drug Law Reform Act, seeking resentencing on his 1999 class B drug conviction.  In June 2010, N.Y. Supreme Court Justice Marcy Kahn denied the motion, finding that Mr. McPhatter's 2000 conviction for attempted assault in the first degree, for which he had received a concurrent sentence of eight years (and five years' PRS) was an exclusion offense, as it was a violent conviction that he was still serving.  In November 2011, CAL filed a motion to renew based on the Third Department's decision in People v. Devivo, 87 A.D.3d 794 (3d Dep't 2011), which held that convictions sustained subsequent to the drug conviction do not qualify as exclusion offenses under C.P.L. §440.46(5)'s plain language.  The People conceded eligibilty but argued that Mr. McPhatter's criminal record --- specifically two assault convictions --- dictated against granting the motion.  Shifting the focus to Mr. McPhatter's outstanding progress since his September 2010 release, including steady employment and union membership, CAL attorney Elizabeth Mosher persuaded Justice Kahn to resentence Mr. McPhatter to a new term that left him free and clear of both the drug and assault sentences, including any remaining periods of PRS.             

Appellate Division Grants Leave Where Trial Court Denied a Padilla Motion Because Defendant Had Been Deported

In People v. Antonio Badia, CAL moved to vacate Mr. Badia’s criminal conviction on the ground that his lawyer failed to explain that he could be deported as a result of the guilty plea. However, Mr. Badia was deported before the trial judge could decide the motion. The judge then denied the defendant’s motion to withdraw his guilty plea because Mr. Badia was no longer in the jurisdiction. The trial judge recognized that the defendant was in a "Catch 22" situation, "since his unavailability is due in part to the conviction he is moving to challenge." In January 2012, the Appellate Division granted our motion to appeal the judge’s ruling. The New York State Court of Appeals recently held that the Appellate Divisions may not dismiss appeals after someone is deported. This case raises the related issue of whether deportation permits trial courts to reject constitutional challenges raised in a postconviction motion. 

First Department Reverses Lower Court's Upward Departure

On February 2, 2012, the Appellate Division, First Department took the unusual step of reducing the lower court's risk level determination in a SORA hearing.  In People v. Aguilar, the First Department found that the lower court abused its discretion in upwardly departing from a level 2 to a level 3, where neither the Board nor the People had asked for such a departure.  The factors cited by the lower court, the First Department found, did not warrant an upward departure either because they were adequately accounted for in the risk assessment instrument, or were not of a type that would indicate a "strong likelihood of recidivism."  Jan Hoth represented Mr. Aguilar.  
 

New Leave Grants: Ineffective Assistance of Counsel and the §601-d 40-Day Time Limit for PRS Resentencings

Two new leave grants will take CAL clients to the Court of Appeals:

In People v. Akieme Nesbitt, dissenting judge Diane Renwick granted leave on January 17, 2012, on the issue of whether counsel was ineffective for presenting no defense whatsoever to the assault counts when a defense existed.  David Klem represents Mr. Nesbitt.  

In People v. Vincent Rodriguez, Judge Piggot granted leave on January 20, 2012, on the question of whether a court's failure to impose resentence within the 40-day time limit for PRS resentencings fixed by Correction Law §601-d(4)(c) & (d) renders the resentence untimely and unlawful, or in the alternative, creates a constitutionally enforceable expectation of finality.  Mark Zeno represents Mr. Rodriguez.   

Padilla Issues to be Considered by the Appellate Division

The Appellate Division, First Department has granted leave to appeal from the denial of a Padilla 440 motion brought by CAL attorney Robin Nichinsky on behalf of her client Matthew Chacko.  The pertinent issues include whether counsel has a duty to investigate a client's immigration status and the proper considerations for the Strickland prejudice prong.  The lower court essentially concluded that Mr. Chacko suffered no prejudice because he had received a favorable plea.     

People's Motion to Dismiss Denied; Appellate Division Will Hear Appeal for Deported Client Seeking Plea Vacatur

On January 24, 2012, the Appellate Division denied the People's motion to dismiss in People v. Rosario, thus allowing the appeal to proceed notwithstanding the client's deportation.  CAL attorney Robin Nichinsky had argued that the Court of Appeals' broad rule in People v. Ventura applied to Mr. Rosario, who sought plea vacatur rather than the dismissal remedy sought in Ventura.     

Circuit to Consider IAC Claim for Counsel's Failure to Object to Flawed Reasonable Doubt Charge

On January 13, 2012, District Judge Robert Sweet granted a certificate of appealability in Miller v. Phillip, concluding that reasonable jurists could differ over whether CAL client Richard Miller received ineffective assistance of counsel where  counsel failed in a first-degree murder case to object to portions of the court's charge referencing a preponderance standard, and affirmatively requested a burden-reducing "two-inference" charge.  Barbara Zolot represents Mr. Miller.  

Failure to Appeal Previous Conviction Held No Bar to Challenging Constitutionality of Predicate

In People v. Benjamin Santiago, the First Department reversed the lower court's denial of Mr. Santiago's motion to set aside the sentence imposed on his 2007 conviction.  That motion had argued that the 2004 predicate violent felony conviction used to enhance his 2007 sentence was unconstitutionally obtained in violation of People v. Catu.  The lower court denied the motion as procedurally barred because Mr. Santiago had not appealed the 2004 conviction.  The First Department, however, held that the failure to appeal the earlier conviction "did not constitute a forfeiture" of Mr. Santiago's "right to independently challenge its constitutionality within the context of a predicate felony proceeding." 

The First Department further held that CPL § 470.15, People v. LaFontaine, 92 N.Y.2d 470 (1998), and People v. Concepcion, 17 N.Y.3d 192 (2011), barred it from considering the People's argument, raised for the first time on appeal, that Mr. Santiago's failure to raise the argument at the 2007 violent felony offender adjudication waived his right to challenge the 2004 conviction by subsequent motion.  As the trial court had relied solely on the ground that Mr. Santiago had failed to appeal the earlier conviction, the Appellate Division was "without authority to affirm an order based on an issue of law or fact that the trial court did not hear and determine against the appellant," and could not "invoke an alternate ground for affirmance."     CAL attorney Robin Nichinsky brought the motion to set aside the sentence and represented Mr. Santiago on appeal.