author: Abdus-Salaam, J. Rivera., J.

text:
    [999 NE2d 1176, 977 NYS2d 731]
    The People of the State of New York, Respondent, v Daniel Boyer, Appellant. The People of the State of New York, Appellant, v Equan Sanders, Respondent.
    Argued October 17, 2013;
    decided November 14, 2013

      POINTS OF COUNSEL

      Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), for appellant in the first above-entitled action.
    I. Daniel Boyer should not have been sentenced as a persistent violent felony offender because resentencing of a predicate conviction had been sought by Department of Corrections and Community Supervision after the commission of the offense for which he was sentenced. (People v Quinones, 12 NY3d 116; People v Walker, 81 NY2d 661; People v Meckwood, 20 NY3d 69;
      People v Morse, 62 NY2d 205, appeal dismissed sub nom. Vega v New York, 469 US 1186; People v Acevedo, 17 NY3d 297; People v Sparber, 10 NY3d 457; People v Butler, 88 AD3d 470, 18 NY3d 992; People v Naughton, 93 AD3d 809, 19 NY3d 865; People v Griffin, 99 AD3d 720; People v Bell, 73 NY2d 153.) II. Because the trial court failed to advise Mr. Boyer that a direct consequence of his plea would be that his sentence would be consecutive to an undischarged sentence on a prior conviction, Mr. Boyer’s plea cannot be deemed knowing, voluntary and intelligent, and Mr. Boyer must be given the opportunity to withdraw the plea. (North Carolina v Alford, 400 US 25; Boykin v Alabama, 395 US 238; People v Bryant, 180 AD2d 874; People v Nixon, 21 NY2d 338; People v Harris, 61 NY2d 9; People v Gravino, 14 NY3d 546; People v Hill, 9 NY3d 189, 553 US 1048; People v Ford, 86 NY2d 397; People v Harnett, 16 NY3d 200; People v Bobo, 41 AD3d 129.)

      P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent in the first above-entitled action.
    I. The sentencing court properly adjudicated defendant as a persistent violent felony offender. (People v Sparber, 10 NY3d 457; People v Morse, 62 NY2d 205; People v Acevedo, 17 NY3d 297; People v Lingle, 16 NY3d 621; People v Williams, 14 NY3d 198.) II. Whether a negotiated sentence would run consecutive to an undischarged sentence is a collateral consequence of a plea. (People v Hill, 9 NY3d 189; People v Ford, 86 NY2d 397; North Carolina v Alford, 400 US 25; People v Harris, 61 NY2d 9; People v Francis, 38 NY2d 150; People v Latham, 90 NY2d 795; People v Belliard, 20 NY3d 381.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Dana Poole and Alan Gadlin of counsel), for appellant in the second above-entitled action.
    Defendant should have been sentenced as a persistent violent felony offender because the date of sentence on a prior violent felony offense was not reset by a Sparber proceeding held in that matter. (People v Morse, 62 NY2d 205; People v Sparber, 10 NY3d 457; People v Acevedo, 17 NY3d 297; People v Samms, 95 NY2d 52; People v Lingle, 16 NY3d 621; People v Griffin, 99 AD3d 720; People v Naughton, 93 AD3d 809; People v Bell, 138 AD2d 298, 73 NY2d 153; People v Ashley, 71 AD3d 1286, 16 NY3d 725; People v Kuey, 83 NY2d 278.)

      Steven Banks, Legal Aid Society, Criminal Appeals Bureau, New York City (Elon Harpaz of counsel), for respondent in the second above-entitled action.
    The First Department correctly ruled that Equan Sanders could not be adjudicated a persistent violent felony offender where, after committing the crime at issue in this case, he was resentenced in a Correction Law § 601-d proceeding on one of the two prior convictions the People sought to use for sentence enhancement purposes. (People v Williams, 14 NY3d 198; People v Sparber, 10 NY3d 457; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v Boyd, 12 NY3d 390; People v Butler, 88 AD3d 470, 18 NY3d 992; People v Lingle, 16 NY3d 621; People v Catu, 4 NY3d 242; People v Acevedo, 17 NY3d 297; Matter of Lockett v Juviler, 65 NY2d 182; Matter of Lyons v Goldstein, 290 NY 19.)
   OPINION OF THE COURT

Abdus-Salaam, J.

The primary issue before us is whether, for purposes of determining the sequentiality of a defendant’s current and prior convictions under New York’s sentence enhancement statutes, the controlling date of sentence for the defendant’s prior conviction is the original date of sentence for that conviction or the date of a later resentencing which rectifies the flawed imposition of postrelease supervision (PRS) in accordance with our decision in People v Sparber (10 NY3d 457 [2008]). We hold that, in this context, the date of sentence for a defendant’s prior conviction is the original date on which the defendant received a lawful prison term upon a valid conviction for that prior crime, regardless of whether the defendant or the government seeks resentencing on that conviction to correct the error described in Sparber. Therefore, at sentencing for a more recent crime, the defendant’s prior conviction qualifies as a predicate felony conviction if the original date of sentence precedes the commission of the present offense.

I

People v Boyer

Prior to 2008, defendant Daniel Boyer had several felony convictions. In his most recent prior felony case, defendant received a valid conviction for attempted burglary in the second degree in 2002, and after further proceedings not relevant to his present appeal, defendant was sentenced on that conviction to a lawful determinate prison term in 2005. Upon the imposition of that sentence, the trial court did not pronounce a mandatory PRS term (see Penal Law § 70.45 [1]), though a five-year PRS term was entered on the commitment order.

Defendant completed his prison term and started to serve a period of PRS in 2008. However, shortly after his release to PRS, defendant was arrested for committing a new burglary, and he was indicted on charges of grand larceny in the fourth degree and burglary in the second degree. Defendant entered a negotiated guilty plea to attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]) in exchange for a promised indeterminate prison term of from 13V2 years to life. On February 18, 2009, the court adjudicated defendant a persistent violent felony offender based in part on defendant’s 2002 conviction, and the court imposed the promised sentence.

Thereafter, the Department of Corrections and Community Supervision (DOCCS) notified the trial court that the court had to resentence defendant for his 2002 conviction pursuant to Correction Law § 601-d by either pronouncing a term of PRS or excising PRS from defendant’s sentence upon consent of the People. In November 2009, upon receiving the People’s consent, the court resentenced defendant on his 2002 conviction by maintaining his original prison term and declining to add a PRS term to his sentence (see Penal Law § 70.85).

On November 24, 2009, defendant moved to vacate his sentence for his 2009 conviction. Defendant pointed out that, under Penal Law § 70.04 (1) (b) (ii), a prior conviction does not qualify as a predicate felony conviction that can enhance a defendant’s sentence unless the sentence for the prior conviction was “imposed before commission of the present felony.” Citing this sequentiality requirement, defendant maintained that the 2009 resentencing on his 2002 conviction shifted the date of sentence for the 2002 conviction to the date of resentence, such that the sentence for his 2002 conviction was not imposed until after his commission of his current felony in 2008. Thus, defendant argued, his 2002 conviction no longer qualified as a predicate felony conviction, and the court had to vacate his persistent violent felony offender adjudication and resentence him as a second felony offender. The court denied defendant’s motion to vacate his sentence. Defendant appealed.

The Appellate Division affirmed the judgment of conviction and sentence, as well as the trial court’s order denying defendant’s motion to vacate his sentence. The Appellate Division held that “the original sentencing date on the prior conviction—as opposed to the resentencing date—controls in determining whether the prior conviction may be considered as a predicate in sentencing for subsequent crimes, and defendant’s CPL 440.20 motion was properly denied” (People v Boyer, 91 AD3d 1183, 1185 [3d Dept 2012]). A Judge of this Court granted defendant leave to appeal (see 19 NY3d 1024 [2012]), and we now affirm.

People v Sanders

Before 2007, defendant Equan Sanders had two felony convictions. In 2002, defendant was sentenced to a lawful determinate prison term for his most recent prior felony conviction for attempted criminal possession of a weapon in the third degree. The sentencing court did not pronounce the mandatory PRS component of defendant’s sentence. Defendant served his prison term and was released to an administratively imposed term of PRS under the supervision of the Division of Parole (DOP).

About a month later, in July 2007, defendant was arrested and indicted on two counts of criminal possession of a weapon in the second degree stemming from an incident in New York County. Defendant absconded and, about 10 months later, was involuntarily returned to New York County after his arrest in another county on unrelated charges. On July 31, 2008, DOP notified the sentencing court for defendant’s 2002 conviction that it was required to resentence defendant on that conviction to the extent of either eliminating his PRS term upon consent of the People or orally pronouncing a term of PRS. The court resentenced defendant on his 2002 conviction by maintaining the original prison term and striking the PRS term from his sentence with the People’s consent.

About a year later, defendant and the People were engaged in plea negotiations with respect to the present crime committed in 2007, and the parties asked the court to specify in advance whether it would sentence defendant as a second violent felony offender or a persistent violent felony offender. Defendant argued that he was a second violent felony offender because the resentencing on his 2002 conviction caused the date of sentence for that conviction to occur after his commission of the instant crime, thus disqualifying his 2002 conviction from serving as the predicate for an enhanced sentence for his current crime under Penal Law § 70.04 (1) (b) (ii). The People responded that defendant was a persistent violent felony offender because the original date of sentence for his 2002 conviction preceded his commission of the instant crime. The court initially ruled that, if defendant pleaded guilty, he would be sentenced, as a persistent violent felony offender, to a prison term of 12 years to life because the original date of sentence for his 2002 conviction controlled for purposes of sentence enhancement. Defendant pleaded guilty with that understanding.

While defendant was awaiting sentencing, the Appellate Division, First Department issued its decision in People v Acevedo, wherein the Appellate Division determined that a resentencing to correct a trial court’s failure to orally pronounce PRS at the original sentencing on a prior conviction automatically resets the date of sentence for the prior conviction under the sentence enhancement statutes (see People v Acevedo, 75 AD3d 255, 258-260 [1st Dept 2010], revd 17 NY3d 297 [2011]). Consequently, at sentencing in this case, the court effectively reversed its previous determination and adjudicated defendant a second violent felony offender, reasoning that, under the First Department’s Acevedo decision, the resentencing on defendant’s 2002 conviction reset the date of sentence for that conviction and precluded its use as a predicate felony conviction. The court sentenced defendant, as a second violent felony offender, to a seven-year determinate prison term, to be followed by five years of PRS. The People appealed the judgment of conviction and sentence. In the interim, we reversed the First Department’s decision in Acevedo (see Acevedo, 17 NY3d at 302-305).

The Appellate Division affirmed the judgment of conviction and sentence (see People v Sanders, 99 AD3d 575, 575-576 [1st Dept 2012]). Noting that defendant’s resentence had been imposed after his commission of the current offense, the court held that, “[i]n this situation, the resentencing date controls whether the conviction meets the sequentiality requirement for sentencing as a persistent violent felony offender” (id. at 576). The court cited People v Butler (88 AD3d 470 [1st Dept 2011]), wherein the court had held that “where, in the normal course, the government seeks resentencing of a prior conviction and the sentence is vacated for failure to pronounce a term of PRS[,] the resentencing date should be considered in determining whether the prior conviction meets the sequentiality requirement of the predicate felony offender statutes” (Butler, 88 AD3d at 473).

In a concurring opinion, Justice Sweeny, joined by Justice Gonzalez, stated that he felt constrained by Butler to affirm the sentencing court’s decision (see Sanders, 99 AD3d at 576 [Sweeny, J., concurring]). Justice Sweeny noted, however, that the Second Department had concluded that “it is irrelevant whether the defendant or the government brought the application for a resentence” under Sparber and that “the original sentence date is always determinative as the predicate for persistent violent felony offender status” (id.). Given that this Court’s decision in Acevedo “did not clarify this question,” Justice Sweeny “look[ed] to the Court of Appeals for guidance on this crucial sentencing issue” (id.). Justice Sweeny granted the People leave to appeal (2012 NY Slip Op 94666[U] [2012]), and we now reverse.

II

In both cases, the People contend that, because the court at a resentencing pursuant to Sparber and Correction Law § 601-d merely corrects its prior clerical error in failing to pronounce a term of PRS and does not otherwise disturb the defendant’s sentence or conviction, a Sparber resentencing does not alter the sequentiality of the defendant’s conviction in relation to any subsequently committed crime for purposes of the sentence enhancement statutes.

Defendants respond that, at a Sparber resentencing, the court vacates the defendant’s prior illegal sentence and replaces it with a lawful sentence that includes PRS. Furthermore, in defendants’ view, because PRS is an inseparable component of the defendant’s sentence, the Sparber resentencing necessarily vacates the defendant’s entire original unlawful sentence and replaces it with a completely new lawful sentence, thus resetting the date of all components of the defendant’s sentence. And so, the argument goes, if the defendant commits another crime after the original sentence date for his or her prior conviction but before the Sparber resentencing on the prior conviction, the prior conviction cannot serve as a predicate for an enhanced sentence for the new crime because the new offense was committed before the date of resentence for the prior conviction. Our precedent compels us to reject defendants’ arguments and conclude that the controlling date of sentence for a defendant’s prior conviction is the original date on which the defendant received a lawful prison term pursuant to a valid conviction for that prior crime.

In Sparber, the defendants did not receive oral pronouncement of their mandatory PRS terms at sentencing, and they asked us to remedy that error by vacating any PRS terms that were not properly pronounced (see Sparber, 10 NY3d at 471). We rejected the defendants’ request for such broad relief. Instead, we provided the defendants with the modest remedy of a resentencing meant solely to correct the discrete “procedural error, akin to a misstatement or clerical error,” occasioned by a sentencing judge’s failure to orally pronounce a term of PRS (id. at 472). In applying this remedy to the defendants’ sentences in Sparber, we made a passing statement that we were “vacating]” the defendants’ original sentences (id. at 471).

However, in People v Lingle (16 NY3d 621 [2011]), we clarified that a vacatur of a defendant’s entire original sentence “is clearly not what we meant” by including the term “vacate” in our Sparber decision (id. at 634). In fact, in Lingle, we held that, because “resentencing to set right the flawed imposition of PRS at the original sentencing is not a plenary proceeding” but rather a discrete proceeding designed to correct the “clerical error” at issue in Sparber, a Sparber resentencing “is limited to remedying this specific procedural error” and does not permit the resentencing court to alter the defendant’s prison term or otherwise change any aspect of his or her sentence (id. at 634-635). Thus, taken together, Sparber and Lingle clearly establish that a resentencing to correct the flawed imposition of PRS does not vacate the original sentence and replace it with an entirely new sentence, but instead merely corrects a clerical error and leaves the original sentence, along with the date of that sentence, undisturbed.

Applying that premise in People v Acevedo, we considered the interplay between a Sparber resentencing on a defendant’s prior conviction and the recidivist sentencing laws’ sequentiality requirement (see Penal Law §§ 70.04 [1] [b] [ii]; 70.06 [1] [b] [ii]; 70.10 [1] [b] [ii]). An overwhelming majority of six Judges of this Court agreed that a Sparber resentencing does not automatically reset the date of sentence for a prior conviction and thereby disable that conviction’s use as a predicate felony conviction. Three of those Judges concluded that, because the defendants had initiated resentencing purely as a contrivance to prevent the courts below from using their prior convictions as predicates to enhance the sentences for their current convictions, defendants’ impermissible gamesmanship could not thwart otherwise valid predicate felony offender adjudications by resetting the dates of their sentences for their prior convictions (see Acevedo, 17 NY3d at 302-303 [Lippman, Ch. J.]). Those Judges left open the question of whether a Sparber resentencing initiated by the State could alter the sequentiality of a prior conviction for sentence enhancement purposes (see id. at 303). The three other Judges in the majority would have found that, regardless of whether the State or the defendant initiates resentencing, the Sparber resentencing on the defendant’s prior conviction does not reset the date of sentence “because the resentencing court [ ] lack[s] the power to. reconsider either the conviction or the incarceration component of the original sentence,” thereby leaving the original sentence and the date thereof essentially unchanged (id. at 305 [Pigott, J., concurring]).

In this case, we must decide the question left open by Acevedo, namely whether a Sparber resentencing initiated by the State, as opposed to the defendant, resets the date of sentence for a felony conviction such that it may no longer serve as a predicate felony conviction in relation to a subsequently committed crime. Under Sparber and Lingle, the answer must be that, regardless of which party commences the proceeding, a Sparber resentencing cannot alter the original date of sentence. Given that the resentencing court cannot disturb the defendant’s prison sentence for the prior conviction, the original sentence is not a legal nullity vacated by the pronouncement of PRS. Rather, the conviction and sentence imposed on the original sentence date still stand, and the sentence is simply modified to the limited extent of pronouncing the PRS term required by law. In other words, irrespective of any “resentence” pursuant to Sparber, the original “[s]entence” for “such prior conviction” remains valid, and that original sentence was “imposed before commission of the present felony,” thereby qualifying the prior conviction as a predicate felony conviction for purposes of sentencing on the current crime (Penal Law § 70.04 [1] [b] [ii]; see also Penal Law §§ 70.06 [1] [b] [ii]; 70.10 [1] [b] [ii]).

Importantly, the rule that the original sentence date controls for purposes of a conviction’s qualification as a predicate felony conviction serves the public policy underlying the recidivist sentencing statutes. As we have previously observed, those laws are meant to enhance sentences for defendants who refuse to reform after receiving a valid conviction for a crime and hearing the court pronounce sentence (see People v Morse, 62 NY2d 205, 222 [1984]). Under this rationale, a defendant who was sentenced for a prior conviction and then commits a new crime plainly deserves enhanced punishment for the new crime because the defendant remains unchastened after the court’s pronouncement of the sentence for the prior conviction, and the defendant’s heightened culpability cannot be mitigated in any way by a subsequent Sparber resentencing. Under those circumstances, it would make no sense to set the date of sentence for the defendant’s prior conviction to the date of the Sparber resentencing and thereby prevent the court from enhancing the defendant’s sentence for the current crime.

Moreover, in the sentence enhancement context, a rule premised on the original date of sentence for a prior conviction promotes clarity and fairness. Under this bright-line rule, the defendant and the People alike can easily discern the date of sentence for a prior conviction and know with certainty whether the conviction can serve to enhance the defendant’s sentence. Additionally, the rule is fair because it does not favor one party over the other. The People will not be able to rely on the later date of resentence to bring an otherwise ineligible decades-old conviction within the 10-year look-back period for predicate felony offender adjudication under Penal Law § 70.04 (1) (b) (iv), and the defendant will not be able to avoid a well-deserved sentence enhancement by claiming that the Sparber resentencing upset the sequentiality of his or her predicate felony conviction. Both sides will have to abide by a clear, even-handed rule.

Under this framework, both defendants here should have been sentenced as persistent violent felony offenders because the dates of sentence for their prior convictions were not reset by Sparber resentencings on those convictions, and therefore those convictions were valid predicate felony convictions that could be used to sentence defendants as persistent violent felony offenders for their current crimes. Thus, County Court in Boyer properly sentenced defendant as a persistent violent felony offender, whereas Supreme Court in Sanders erred in refusing to do the same.

Finally, we reject defendant Boyer’s challenge to the validity of his guilty plea based on the court’s failure to inform him that his sentence would run consecutively to a prior undischarged term (see People v Belliard, 20 NY3d 381, 388 [2013]).

Accordingly, in People v Boyer, the order of the Appellate Division should be affirmed. In People v Sanders, the order of the Appellate Division should be reversed and the matter remitted to Supreme Court for resentencing in accordance with this opinion.

Rivera., J.

(dissenting). The majority interprets our law to permit the government to rely on a sentence that is illegal under People v Sparber (10 NY3d 457 [2008]) for purposes of the sequentiality requirement in New York’s sentencing enhancement statutes. In doing so, the majority gives legal significance to an unlawful sentence where such sentence is obviated by a statutorily prescribed resentencing process. This is an untenable interpretation of the law. I dissent.

The majority reads Sparber and People v Lingle (16 NY3d 621 [2011]) as compelling its conclusion that “a resentencing to correct the flawed imposition of PRS does not vacate the original sentence and replace it with an entirely new sentence, but instead merely corrects a clerical error and leaves the original sentence, along with the date of that sentence, undisturbed” (majority op at 24). This conclusion is incorrect and unsupported by our precedent.

We have previously stated that a sentence with a “flawed imposition of PRS” is an illegal sentence (People v Brinson, 21 NY3d 490, 495-496 [2013]; Lingle, 16 NY3d at 630; People v Williams, 14 NY3d 198, 206, 217 [2010]; Sparber, 10 NY3d at 469-471). The proper cure for this defect is for a court to resentence the defendant and impose all the elements of the punishment mandated by law (Sparber, 10 NY3d at 469-470). As we stated in Sparber, “[t]he sole remedy for a procedural error [such as failing to pronounce a mandatory term of PRS] is to vacate the sentence and remit for a resentencing hearing” (id. at 471).

Two statutory procedures provide for resentencing to address these Sparber errors. Correction Law § 601-d provides a procedural vehicle for the Department of Corrections and Community Supervision to commence a resentencing hearing (see People v Velez, 19 NY3d 642, 645-646 [2012]; People v Acevedo, 17 NY3d 297, 303 [2011]; Williams, 14 NY3d at 207-208). Under Penal Law § 70.85, a court may resentence a defendant, with the People’s consent, to a determinate sentence without PRS, which “shall be deemed a lawful sentence” (Penal Law § 70.85). In either case, a court replaces an illegal sentence with a sentence that is in compliance with New York’s criminal laws. As we stated in People v Acevedo (17 NY3d 297, 303 [2011]), Sparber resentencing ensures “that a sentence in connection with which PRS is required will in fact legally impose that prescribed element of punishment” (id. [emphasis added]).

Rather than accept that we meant what we said when we concluded that failure to impose PRS results in an illegal sentence which is cured by vacating the sentence and resentencing the defendant, the majority concludes that the illegal sentence retains a certain validity and may be considered for sequentiality purposes under the sentencing enhancement statutes. This is so, according to the majority, because the underlying illegality is clerical in nature and can be cured in a non-plenary proceeding (majority op at 24). Whether we call it a “clerical error” or a “procedural error,” the failure to impose PRS rendered the original sentence illegal (see Williams, 14 NY3d at 217). There is no way around this conclusion, just as there is no way of avoiding that the method by which this error is cured cannot retroactively make an illegal sentence into a valid one.

Our decisions in Sparber and Lingle do not ignore the fundamental sentencing structure of our criminal law, which recognizes that there can be only one lawful sentence imposed for a conviction (United States v DiFrancesco, 449 US 117, 129 [1980]; People v Biggs, 1 NY3d 225, 228-229 [2003]). It follows that a court corrects an illegal sentence by vacating that sentence and imposing a new one, not superimposing a second, simultaneous sentence over the first.

The majority’s policy arguments in support of its decision are also unpersuasive. While the policy behind enhancing punishment for certain recidivist offenders is significant, the sentencing enhancement statutes can only apply to sentences that conform with the Penal Law, not to illegal sentences. The Penal Law does not impose piecemeal sentences, and no provision permits or otherwise acknowledges what the majority allows: an opportunity for the People to relate a lawful sentence back to an unlawful one for purposes of sequencing an enhanced sentence.

The majority states its preference for a bright-line rule, which will promote clarity and fairness, but there is no logical basis for finding that the majority’s rule is preferable, or any better at promoting a definite answer to the question posed by these appeals. The original unlawful sentence date and the resentencing date are equally easy to determine. A rule that recognizes that the lawful sentence is the one imposed in accordance with all of the statutory elements of the Penal Law, and that only a lawful sentence counts under the enhancement statutes, is just as clear, if not clearer, as one that draws the line at the date when the court imposed the unlawful sentence. Certainly, if we are to pronounce a rule, it should be grounded in a sentence intended to meet all the legal requirements, not one that is statutorily defective.

I would reverse the Appellate Division’s order in Boyer and affirm in Sanders.

Judges Graffeo, Read, Smith and Pigott concur with Judge Abdus-Salaam; Judge Rivera dissents and votes to reverse in an opinion in which Chief Judge Lippman concurs.

In People v Boyer: Order affirmed.

Judges Graffeo, Read, Smith and Pigott concur with Judge Abdus-Salaam; Judge Rivera dissents and votes to reverse in an opinion in which Chief Judge Lippman concurs.

In People v Sanders: Order reversed and case remitted to Supreme Court, New York County, for resentencing.

      . Correction Law § 601-d provides that, whenever DOCCS determines that the trial court did not pronounce a defendant’s term of PRS at sentencing, DOCCS must notify the court of that fact, and once the court receives such notification from DOCCS, the court must hold a resentencing proceeding as outlined in Sparber (see Correction Law § 601-d [1], [2], [3]). At that resentencing, the court must either pronounce a term of PRS or, upon consent of the People, omit the PRS term from the defendant’s sentence and reimpose the original determinate prison term without PRS (see Correction Law § 601-d [3], [4]; Penal Law § 70.85).

      . Penal Law § 70.85 states,
      “[F]or consideration of whether to resentence [pursuant to Correction Law § 601-d], the court may, notwithstanding any other provision of law but only on consent of the district attorney, reimpose the originally imposed determinate sentence of imprisonment without any term of post-release supervision, which then shall be deemed a lawful sentence.”

      . In reaching this conclusion regarding the significance of a Sparber resentencing under the sequentiality requirement for recidivist sentencing, we do not opine on the relationship between the recidivist sentencing statutes and any other form of resentencing.


source: Caselaw Access Project

author: Chief Judge Lippman. Pigott, J.

license: Public Domain

text:
    [1 NE3d 302, 978 NYS2d 101]
    In the Matter of Vilma Lancaster et al., Appellants, v Incorporated Village of Freeport et al., Respondents. (Proceeding No. 1.) In the Matter of William F. Glacken et al., Appellants, v Incorporated Village of Freeport et al., Respondents. (Proceeding No. 2.)
    Argued October 9, 2013;
    decided November 19, 2013

      POINTS OF COUNSEL

      Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Robert A. Spolzino, Peter A. Meisels and Kathleen A. Daly of counsel), for appellants.
    I. The Incorporated Village of Freeport violated appellants’ rights to freedom of speech by revoking their defense and indemnification because they refused Free-port’s demand that they refrain from criticizing the settlement. (New York Times Co. v Sullivan, 376 US 254; Rosenberger v Rector & Visitors of Univ. of Va., 515 US 819; Citizens United v Federal Election Comm’n, 558 US 310; O’Neill v Oakgrove Constr., 71 NY2d 521; Immuno AG. v Moor-Jankowski, 77 NY2d 235, 500 US 954; Fairley v Andrews, 578 F3d 518; Nebraska Press Assn. v Stuart, 427 US 539; United States v Quattrone, 402 F3d 304; Lusk v Village of Cold Spring, 475 F3d 480; Zieper v Metzinger, 474 F3d 60.) II. Appellants’ rejection of a stipulation prohibiting them from criticizing the settlement is not a failure to cooperate that entitles Incorporated Village of Free-port to revoke their defense and indemnification under Public Officers Law § 18. (Matter of O’Brien v Spitzer, 7 NY3d 239; Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586; Matter of LoRusso v New York State Off. of Ct. Admin., 229 AD2d 995; Matter of Polak v City of Schenectady, 181 AD2d 233; Giordano v O’Neill, 131 AD2d 722; Higgins v Town of Southampton, 613 F Supp 2d 327; Mathis v State of New York, 140 Misc 2d 333; Feliberty v Damon, 72 NY2d 112; New York City Hous. Auth. v Housing Auth. Risk Retention Group, Inc., 203 F3d 145; Nelson Elec. Contr. Corp. v Transcontinental Ins. Co., 231 AD2d 207.) III. The Incorporated Village of Freeport violated the Open Meetings Law by revoking appellants’ defense and indemnification in an illegal executive session. (Matter of Gordon v Village of Monticello, 87 NY2d 124; Matter of Csorny v Shoreham-Wading Riv. Cent. School Dist., 305 AD2d 83; Matter of Smith v City Univ. of N.Y., 92 NY2d 707; Weatherwax v Town of Stony Point, 97 AD2d 840; Matter of Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 91 AD3d 1349; Matter of Goetschius v Board of Educ. of Greenburgh Eleven Union Free School Dist., 244 AD2d 552.)

      Jaspan Schlesinger, LLP, Garden City (Stanley A. Camhi, Jessica M. Baquet and Daniel E. Shapiro of counsel), for respondents.
    I. The vast majority of appellants’ arguments are based upon the faulty notion that the Incorporated Village of Freeport insisted on the nondisparagement clause. II. The court lacks subject matter jurisdiction because this appeal does not directly involve a substantial constitutional question. (Matter of Kachalsky v Cacace, 14 NY3d 743; Wynkoop Hollenbeck Crawford Co. v Western Union Tel. Co., 268 NY 108; Matter of Schulz v State of New York, 81 NY2d 336; Tabankin v Codd, 40 NY2d 893; Matter of Town of Rye v New York State Bd. of Real Prop. Servs., 10 NY3d 793; Matter of Sbuttoni, 16 AD3d 693; Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Abrams, 135 AD2d 304; Matter of Garcia v Abrams, 98 AD2d 871; Trump v Trump, 179 AD2d 201, 80 NY2d 892; Alexander v United States, 509 US 544.) III. The Incorporated Village of Freeport properly withdrew appellants’ defense and indemnification as a result of their failure to cooperate as required by the Public Officers Law and the Freeport Village Code. (Thrasher v United States Liab. Ins. Co., 19 NY2d 159; Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Abrams, 135 AD2d 304; Matter of Garcia v Abrams, 98 AD2d 871; New York State Psychiatric Assn., Inc. v New York State Dept. of Health, 19 NY3d 17; Nelson Elec. Contr. Corp. v Transcontinental Ins. Co., 231 AD2d 207.) IV The Open Meetings Law does not provide a basis upon which the resolution and directive can be invalidated. (Matter of Schulz v State of New York, 81 NY2d 336; Weatherwax v Town of Stony Point, 97 AD2d 840; Matthes v Town of E. Fishkill, 785 F2d 43; Matter of Roberts v Town Bd. of Carmel, 207 AD2d 404.) V. Respondents did not violate appellants’ First Amendment rights. (Garcetti v Ceballos, 547 US 410; Waters v Churchill, 511 US 661; Shields v Charter Twp. of Comstock, 617 F Supp 2d 606; Rangra v Brown, 566 F3d 515; Nestor v Britt, 270 AD2d 192; Ruotolo v City of New York, 514 F3d 184; Lewis v Cowen, 165 F3d 154; Ezekwo v New York City Health & Hosps. Corp., 940 F2d 775; Pappas v Giuliani, 290 F3d 143; Alexander v United States, 509 US 544.)
   OPINION OF THE COURT

Chief Judge Lippman.

We hold that a municipality, consistent with its obligations under Public Officers Law § 18, may withdraw its defense and indemnification of current and former municipal officials and officers in a civil action for their failure to accept a reasonable settlement offer, and that First Amendment concerns with respect to the settlement’s nondisclosure clause do not warrant a different conclusion.

Petitioners William F. Glacken, William White, Donald Miller, Renaire Frierson-Davis, Jorge Martinez, Vilma Lancaster, and Harrison Edwards are current and former elected officials and appointed officers of the Village of Freeport (the Village). In 2008, Water Works Realty Corp. and its principal, Gary Melius (collectively, Water Works plaintiffs), commenced two lawsuits against the Village and petitioners alleging that they orchestrated a scheme to deprive Water Works unlawfully of title and interest in certain real property. The complaints alleged, among other things, civil violations of the Racketeer Influenced and Corrupt Organizations Act, and sought $8,500,000 in damages, treble damages, and attorneys’ fees. Defendants removed both actions to the United States District Court for the Eastern District of New York.

The Freeport Village Code § 130-6 adopts Public Officers Law § 18 (3) (a), which provides that a “public entity shall provide for the defense of [an] employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties.” The Village’s duty to defend and indemnify “shall be conditioned upon: . . . [t]he fall cooperation of the employee in the defense of such action or proceeding . . . against the Village based upon the same act or omission” (Freeport Village Code § 130-6 [A] [2] [emphasis added]; Public Officers Law § 18 [5] [ii]).

The Freeport Board of Trustees (the Board) authorized the Village to defend and indemnify petitioners and retained separate counsel for the Village and petitioners. Thereafter, the Village’s counsel began settlement negotiations with the Water Works plaintiffs. They reached an agreement whereby the Water Works plaintiffs would dismiss the actions against the Village in return for $3,500,000 paid over six years.

In November 2009, the Village officially settled the Water Works actions. As part of the settlement, the Water Works plaintiffs agreed to discontinue the actions against petitioners without any cost or admission of wrongdoing if they signed a stipulation of discontinuance containing a nondisparagement clause. The clause required petitioners to “agree[ ] not to ever interfere, nor challenge or criticize the terms of either Stipulation [of Settlement] in any manner.”

On November 10, 2009, the Village’s counsel communicated the Water Works plaintiffs’ offer to petitioners’ counsel. Petitioners’ counsel responded that, in his opinion, the nondisparagement clause constituted a:

“concerted effort by the Village and the plaintiffs to silence any comment by [petitioners] in this matter of public concern, particularly as to those who hold public office, is misguided at best and could be construed as a threat to [petitioners’] First Amendment rights. I suggest revisions ... to avoid even the impression of an effort to impinge on anyone’s right to express themselves or to coerce any public official from fulfilling his/her responsibilities.”

The Village’s counsel answered that the proposed settlement did not violate petitioners’ free speech rights; the settlement was advantageous for petitioners; and refusal would be patently unreasonable and a breach of their duty to cooperate under the Public Officers Law and Village Code.

Petitioners refused to settle. The Board subsequently met in executive session and resolved to withdraw petitioners’ defense and indemnification.

Petitioners continued to litigate the Water Works actions at their own expense. At a court conference in January 2010, petitioners offered to execute an “unconditional” stipulation of discontinuance; the Water Works plaintiffs refused.

In February 2010, petitioners Lancaster, Miller, White, and Martinez commenced a hybrid CPLR article 78 proceeding and declaratory judgment action seeking a judgment (1) vacating the withdrawal; (2) directing respondents to provide a defense; and (3) declaring invalid the Village’s disclaimer of any further obligation to defend petitioners. In March 2010, petitioners Glacken, Frierson-Davis, and Edwards, then represented by different counsel, commenced a substantially similar hybrid article 78 proceeding and declaratory judgment action.

After joining the proceedings, Supreme Court denied both petitions and dismissed the proceedings (2010 NY Slip Op 32341[U] [2010]). It rejected petitioners’ arguments that the Village had infringed their First Amendment rights, improperly withdrawn the defense and indemnification for lack of cooperation, and violated the Open Meetings Law.

The Appellate Division affirmed (Matter of Lancaster v Incorporated Vil. of Freeport, 92 AD3d 885 [2d Dept 2012]). Petitioners then appealed to this Court as of right under CPLR 5601 (b) (1). We now affirm.

Petitioners argue that (1) the Village violated their free speech rights by withdrawing the defense and indemnification; (2) their refusal to settle did not constitute a failure to cooperate justifying revocation of the defense and indemnification under Public Officers Law § 18; and (3) the Board violated the Open Meetings Law by withdrawing the defense and indemnification in executive session.

Petitioners’ constitutional arguments essentially are twofold: the requirement of a nondisparagement clause was an impermissible prior restraint on free speech, and penalizing petitioners for refusing to refrain from criticizing the settlement was unconstitutional retaliation. Neither is persuasive.

Preliminarily, we note that there is no evidence in the record that the Village was responsible for the nondisparagement clause in the Water Works settlement offer. The evidence shows that the Water Works plaintiffs included the clause as a condition of settlement. They apparently continued to insist on the provision even after the Village settled. Their insistence is understandable given petitioner Glacken’s public remarks that Melius was extorting the citizens of Freeport.

It is significant that the evidence does not show the Village to have actively sought to restrict petitioners’ speech. If there were evidence, for example, that as part of the settlement, the Village induced the Water Works plaintiffs to include the non-disparagement clause in the settlement with petitioners, this might be a different case.

Petitioners allege three distinct acts were prior restraints on speech: (1) the inclusion of the nondisparagement clause in the settlement offer; (2) the Village’s threat to cut off the defense and indemnification if petitioners refused to settle; and (3) the Village’s withdrawal of the defense and indemnification.

The Water Works plaintiffs’ inclusion of the nondisparagement clause in the settlement offer was not a prior restraint on speech. Water Works and Melius were private parties and were entitled to offer settlement on whatever terms they saw fit. Had petitioners accepted the settlement and breached its terms, only the Water Works plaintiffs, not the Village, could have sued to enforce it.

Nor was the Village’s “threat” to withdraw the defense and indemnification a prior restraint on speech. “[T]he First Amendment prohibits government officials from encouraging the suppression of speech in a manner which can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request” (Zieper v Metzinger, 474 F3d 60, 65-66 [2d Cir 2007] [internal quotation marks and citation omitted]). The reason the Village threatened to withdraw funding was to end the litigation and save public funds, not to suppress speech.

Finally, the withdrawal of the defense and indemnification was not a prior restraint on speech because it was in response to petitioners’ failure to cooperate; it was not a restraint on what petitioners could say in the future (see Alexander v United States, 509 US 544, 550 [1993]). Petitioners were free to continue litigating and criticize the settlement as they pleased.

Petitioners argue that the Village could not retaliate against them for refusing to give up their rights to criticize the settlement. To succeed on a First Amendment retaliation claim, a plaintiff must prove (1) that he or she engaged in a protected activity; and (2) that the defendant engaged in retaliatory conduct that was motivated by plaintiff’s protected conduct (Gagliardi v Village of Pawling, 18 F3d 188, 194 [2d Cir 1994]). The ultimate question is whether the defendant acted with the intent to retaliate for the protected conduct or for some other reason (id. at 195).

For example, in Cooper v Town of E. Hampton (888 F Supp 376 [ED NY 1995]), the court held that a town board member had stated a retaliation claim where he alleged that the board had refused to defend and indemnify him in a defamation action arising out of certain of his public comments (id. at 380). Critical to the court’s ruling was the allegation that another board member stated that if the board member seeking indemnification “has to spend money for a lawyer, that will teach him a lesson to keep his mouth shut” (id. at 378 [emphasis added]).

Likewise, in Perry v Sindermann (408 US 593 [1972]), the Supreme Court explained that a public college could not refuse to renew a professor’s contract because he had criticized the college administration (id. at 597-598). The Court recognized the importance of the college’s intent (id.). The professor had not been allowed to prove that the college terminated him because of his criticism as opposed to some other reason (id.). Therefore the Court remanded the case for further proceedings (id. at 598, 603).

In this case, there is no evidence that the Village retaliated against petitioners for their desire to be able to criticize the settlement. The Village simply declined to fund petitioners’ defense after they unreasonably refused to settle.

Turning now to petitioners’ Public Officers Law § 18 argument, we find it to be equally without merit. A municipal employer’s statutory duty to defend a public officer under Public Officers Law § 18 is similar to an insurance company’s contractual duty to defend an insured (Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586, 588 [3d Dept 2007]). As in the insurance context, petitioners were obligated to cooperate in the defense of the action as a condition of their defense and indemnification (Public Officers Law § 18 [5] [ii]; Freeport Village Code § 130-6 [A] [2]).

“In order to disclaim coverage on the ground of an insured’s lack of cooperation, the carrier must demonstrate that (1) it acted diligently in seeking to bring about the insured’s cooperation, (2) the efforts employed by the carrier were reasonably calculated to obtain the insured’s cooperation, and (3) the attitude of the insured, after cooperation was sought, was one of willful and avowed obstruction” (New York State Ins. Fund v Merchants Ins. Co. of N.H., 5 AD3d 449, 450 [2d Dept 2004]; Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168 [1967]).

Petitioners’ first argument is that a public officer’s refusal to settle can never constitute a failure to cooperate under Public Officers Law § 18. They claim that an insurer cannot settle a case without the consent of the insured absent a provision in the insurance policy allowing it. They argue that Public Officers Law § 18 is in effect an insurance policy without such a nonconsensual settlement clause. Thus, they contend, their refusal to settle was not a failure to cooperate. Petitioners are wrong.

Unlike an insurer’s duty to its insured, the Village’s duty to defend and indemnify petitioners is statutory, not contractual. Public Officers Law § 18 is not an insurance contract. The absence of a provision in the statute allowing the Village to settle without petitioners’ consent is not dispositive of the Village’s authority to do so. It is the intention of the legislature, as evidenced by the language of the statute, that defines the Village’s authority.

The language of the statute does not support petitioners’ reading. Furthermore, it is inconceivable that the legislature intended such a restricted meaning of the “cooperation” provision as to permit a current or former public employee to refuse a generous settlement offer and expose a municipality to potentially ruinous liability. Otherwise, petitioners would have no financial stake in the litigation and could litigate to the very end, in good faith or otherwise, secure in the knowledge that any judgment against them would be paid by the Village. Petitioners essentially read Public Officers Law § 18 to require them to cooperate in the defense of the action, but not in its settlement. They seek to dictate unilaterally, without any accountability to the taxpayers, how the Village manages public funds and litigation risk. This cannot be, and is not, the law.

Petitioners’ second argument is that the Village did not act diligently to bring about their cooperation. An insurer may not simply disclaim coverage for lack of cooperation after its insured refuses a settlement offer, but instead must attempt to persuade the insured that settlement is the best course of action (see New York City Hous. Auth. v Housing Auth. Risk Retention Group, Inc., 203 F3d 145, 151-152 [2d Cir 2000]).

Here, when petitioners’ counsel expressed reservations about the settlement offer, the Village’s counsel responded to each of the concerns and explained why the nondisparagement clause was proper. In so doing, the Village acted diligently in seeking to bring about petitioners’ cooperation.

Petitioners’ third argument, that their attitude was not one of willful and avowed obstruction, is equally unavailing. The lower courts’ findings to this effect with regard to petitioners’ unreasonable rejection of the settlement offer have support in the record.

Finally, we address petitioners’ contention that the Board violated the Open Meetings Law. The Open Meetings Law prohibits public bodies from conducting business in executive session outside the view of the public (Public Officers Law § 103). An exception exists for “discussions regarding proposed, pending or current litigation” (Public Officers Law § 105 [1] [d]).

Petitioners argue that the Board violated the Open Meetings Law when it decided in executive session to withdraw petitioners’ defense and indemnification because the decision did not regard pending or current litigation to which the Village was a party.

Even if the Board misunderstood “pending or current litigation” (an issue we do not decide), the lower courts did not abuse their discretion in finding that any violations were unintentional and did not warrant invalidation of the Board’s decision (see Matter of Addesso v Sharpe, 44 NY2d 925, 926-927 [1978] [holding sanction inappropriate where body held executive session in good faith]; Matter of Roberts v Town Bd. of Carmel, 207 AD2d 404, 405-406 [2d Dept 1994] [holding sanction not warranted for negligent failure to comply with Public Officers Law § 105]).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Pigott, J.

(dissenting). The majority in this case makes two points: (1) that a municipality may withdraw a defense and indemnification of current and former municipal officials for failure to accept a reasonable settlement offer; and (2) that the First Amendment to the United States Constitution does not warrant a different result. While I have no quarrel with either proposition in the appropriate case, this is not such a case and I therefore dissent.

The Incorporated Village of Freeport hired the law firm of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (Wilson, Elser) to represent it and its elected and appointed officials in two lawsuits (the underlying actions) brought in July 2008. Plaintiff Water Works Realty Corp. and its principal alleged that while they had made a “business decision” not to pay Water Works’ real property taxes, the Village defendants colluded in every fashion possible to deprive plaintiffs of their property through a conspiracy surrounding a tax sale of the Water Works property. The litigation appeared to proceed apace, having initially been brought in state court but removed, on stipulation, to the United States District Court for the Eastern District of New York.

In March 2009, village elections brought a new mayor and two new village trustees. Three of the original board members left office while two, Jorge Martinez and William H. White, remained, along with the Village Treasurer, Vilma Lancaster. In July 2009, the new village majority, perceiving a conflict of interest between the “old board” and the new majority, hired separate counsel, Warren and Warren, LLR to represent the Village going forward. Thereafter, the new majority’s attorney negotiated with attorneys for the plaintiffs in the underlying actions and ultimately agreed to a settlement of $3.5 million to be paid by the Village.

The “stipulation of settlement” appears to have been executed in November 2009 by plaintiffs in the underlying actions, the Village by its new mayor, Andrew Hardwick, and counsel for both the plaintiffs and Warren and Warren, the attorneys hired by the “new Village.”

The rub came, and thus this lawsuit, when someone (it is not entirely clear who) sought not a stipulation of settlement—that had already been agreed to in November 2009 and approved by the board by a vote of 3-0 (with Trustees Martinez and White abstaining)—but, rather, a stipulation of discontinuance that was addressed to the defendants represented by Wilson, Elser. The Village was not noted in this stipulation, apparently because the Village, through its new mayor, had executed the previous stipulation of settlement. The stipulation of discontinuance (which is typically signed by the attorneys, not the litigants), sent to the plaintiffs by Village counsel, stated, in addition to the usual boilerplate, as follows:

“Each undersigned Defendant specifically represents and warrants that he/she has read the Village Stipulation [of settlement] and this Stipulation carefully and; that he/she has fully discussed it with his/ her attorneys and that he/she has signed this Stipulation voluntarily and of his/her own free will; and he/she has no objections to the Village Stipulation nor this Stipulation and agrees not to ever interfere, nor challenge or criticize the terms of either Stipulation in any manner.”

Petitioners refused to sign this stipulation, but made it abundantly clear that they are willing to sign a stipulation of discontinuance absent this language.

The majority makes much of the fact that this stipulation of discontinuance requires no money to be paid by the petitioners and therefore, ipso facto, their refusal to sign the stipulation constitutes a failure to cooperate.

However, one has to ask why, if the plaintiffs in the underlying action are receiving no further funds from defendants, who have not even asked them to sign the stipulation of settlement, one would need anything more than a stipulation of discontinuance signed by their attorneys, as is the usual practice. Indeed, a simple motion before the trial court to dismiss the complaint based upon its settlement would suffice.

Obviously, it is important to someone that these litigants be silenced. Two of them, at the time of the settlement, were still on the Village Board. A third, the Village Treasurer, while not a voting member of the Board, remained in office at the time the settlement was reached. Our decision today means that these two elected officials and the Village Treasurer are prohibited from speaking against a proposal that they have opposed and must, instead, effectively commit perjury by stating that they have “no objections to the Village Stipulation” even though the public record shows otherwise. The better question here is why a village and its new board would insist on this promise of silence. A settlement of this size should invite vigorous debate, not suppress it.

Judges Graffeo, Read, Smith, Rivera and Abdus-Salaam concur with Chief Judge Lippman; Judge Pigott dissents in an opinion.

Order affirmed, with costs.

       Melius also instituted a defamation action in New York Supreme Court against petitioner Glacken, the former mayor, for saying at a political debate in February 2009 that Melius was using the Water Works actions to extort money from the citizens of the Village (see Melius v Glacken, 94 AD3d 959 [2d Dept 2012]).

      . The under lying actions were discontinued against Martinez.

      . The majority assumes that the settlement was “reasonable”; however, I find no record support for this claim, as the parties had not engaged in pretrial discovery prior to the settlement.


author: Smith, J.

text:
    [1 NE3d 298, 978 NYS2d 97]
    The People of the State of New York, Respondent, v Franklin Hughes, Appellant.
    Argued October 9, 2013;
    decided November 19, 2013

      POINTS OF COUNSEL

      Michael A. Fiechter, Bellmore, for appellant.
    I. Strict scrutiny is the appropriate standard to be applied when determining the constitutionality of statutes infringing upon the fundamental individual rights guaranteed by the Second Amendment to the United States Constitution and New York Civil Rights Law § 4. (Carey v Brown, 447 US 455; Romer v Evans, 517 US 620; Police Dept. of Chicago v Mosley, 408 US 92; Regan v Taxation With Representation of Wash., 461 US 540; Massachusetts Bd. of Retirement v Murgia, 427 US 307; Plyler v Doe, 457 US 202; Harper v Virginia Bd. of Elections, 383 US 663; People v Perkins, 62 AD3d 1160; District of Columbia v Heller, 554 US 570; Press v State Univ. of N.Y. at Stony Brook, 388 F Supp 2d 127.) II. Penal Law §§ 265.03 (3) and 265.02 (1) are an unconstitutional restriction of rights guaranteed by the Second Amendment to the United States Constitution and New York Civil Rights Law § 4. (United States v Chester, 628 F3d 673; United States v White, 593 F3d 1199; In re United States, 578 F3d 1195; Matter of City Servs., Inc. v Neiman, 77 AD3d 505; Matter of Al Turi Landfill v New York State Dept. of Envtl. Conservation, 289 AD2d 231.)

      Kathleen M. Rice, District Attorney, Mineóla (Yael V. Levy and Tammy J. Smiley of counsel), for respondent.
    I. This Court lacks jurisdiction over defendant’s constitutional challenge to New York’s gun possession laws because it was raised for the first time in a motion to set aside the verdict and, even then, defendant challenged only one of the two laws he now identifies as unconstitutional. (People v Hines, 97 NY2d 56; People v Padro, 75 NY2d 820; People v Davidson, 98 NY2d 738; People v Iannelli, 69 NY2d 684; People v Middleton, 54 NY2d 42; People v Gibian, 76 AD3d 583; People v Fogarty, 12 AD3d 854; People v Bautista, 25 AD3d 341; People v Brown, 265 AD2d 893; People v Knapp, 79 AD3d 1805.) II. New York legitimately penalizes unlicensed firearm possession by convicted criminals without running afoul of the Second Amendment. (District of Columbia v Heller, 554 US 570; United States v Barton, 633 F3d 168; United States v Rozier, 598 F3d 768; United States v Vongxay, 594 F3d 1111; United States v Scroggins, 599 F3d 433; United States v Skoien, 614 F3d 638; United States v McCane, 573 F3d 1037; Carey v Musladin, 549 US 70; Sheet Metal Workers v EEOC, 478 US 421; United States v Chester, 628 F3d 673.)

      Eric T. Schneiderman, Attorney General, New York City (Nikki Kowalski, Simon Heller, Barbara D. Underwood and Richard Dearing of counsel), for New York State Attorney General, intervenor-respondent.
    The convictions here do not violate the Second Amendment. (District of Columbia v Heller, 554 US 570;
      United States v Decastro, 682 F3d 160; United States v Torres-Rosario, 658 F3d 110; United States v Barton, 633 F3d 168; United States v Moore, 666 F3d 313; United States v Anderson, 559 F3d 348; United States v Williams, 616 F3d 685; United States v Joos, 638 F3d 581; United States v Vongxay, 594 F3d 1111.)
   OPINION OF THE COURT

Smith, J.

Defendant was convicted of a class C felony and sentenced to 372 years in prison for possessing a loaded weapon in his home. He does not dispute that his conduct is punishable as a crime, but says that punishing it as a class C felony violates his Second Amendment right to keep and bear arms. We hold that this right has not been violated.

I

Defendant’s ex-girlfriend Erica lived in an apartment in Hempstead, Long Island. Though their romantic relationship had ended, defendant visited her and stayed at her apartment frequently—so frequently that the trial court, which tried the case without a jury, found that the People had failed to prove that Erica’s apartment was not defendant’s home. On the day before the event that is now at issue, defendant was at Erica’s apartment, heard shooting outside, and decided to bring a gun with him for protection the following day.

On that day, defendant arrived at Erica’s apartment with a loaded handgun, for which he had no permit. He chatted with members of Erica’s family, then stepped outside—apparently still, under the findings of the trial court, in the curtilage of his home. There he encountered two men, one of whom was Quentin Roseborough. After an argument, defendant drew the gun and shot Roseborough dead.

Defendant was indicted on one count of murder and three counts of criminal possession of a weapon. He raised a justification defense to the murder charge, relying on his own written statement to the police and testimony before the grand jury, in which he said that he shot Roseborough—known to him by the nickname “Maniac Guns”—after Roseborough pulled a gun on him. Eyewitnesses corroborated significant details in defendant’s account, and the trial judge believed it. The court acquitted defendant of murder, of manslaughter as a lesser included offense, and of possession of a weapon with intent to use it unlawfully. The court convicted him, however, of criminal possession of a weapon in the second degree (possession of a loaded firearm), a class C felony, and of criminal possession of a weapon in the third degree (possession of a firearm by one previously convicted of a crime), a class D felony.

Defendant had a previous conviction for a misdemeanor, resisting arrest, which was essential to both of his weapon convictions. As we explain in more detail below, the prior misdemeanor barred defendant from defeating the second degree weapon possession charge on the ground that the possession took place in his home (see Penal Law § 265.03 [3]); and previous conviction of a crime is an element of third degree weapon possession (see Penal Law § 265.02 [1]). If he had not previously been convicted of any crime, defendant would have been found guilty in this case only of a class A misdemeanor, criminal possession of a weapon in the fourth degree (possession of a firearm) (Penal Law § 265.01 [1]).

Defendant moved in the trial court, pursuant to CPL 330.30, to set aside his conviction for second degree weapon possession. The Court denied the motion and sentenced defendant to 3V2 years of imprisonment on the second degree count and one year on the third degree count, to run concurrently. The Appellate Division affirmed the judgment of conviction and sentence as to both counts, rejecting defendant’s argument that his Second Amendment rights had been violated (People v Hughes, 83 AD3d 960 [2d Dept 2011]). A Judge of this Court granted leave to appeal (19 NY3d 961 [2012]), and we now affirm.

II

Defendant’s only significant argument on appeal is that his convictions of a class C and a class D felony infringed his Second Amendment right to keep and bear arms. The People assert that we may not reach this argument because it is not preserved. As to defendant’s conviction for third degree weapon possession (the class D felony), the People are right. Defendant never challenged the third degree count on constitutional grounds at Supreme Court. But as to defendant’s second degree (class C felony) conviction, we conclude that, as the Appellate Division held, the preservation was adequate under the circumstances of this case.

Defendant did not move before or during trial to dismiss the second degree weapon possession charge on constitutional grounds. He did, however, make such a motion after trial, but before sentence, pursuant to CPL 330.30. He argued—essentially as he argues here—that to convert a weapon possession crime to a class C felony on the basis of a prior misdemeanor conviction is an infringement of his right to keep and bear arms.

The People argued in Supreme Court this issue was raised too late. They had a point. CPL 255.10 (1) (a) defines a motion to dismiss or reduce an indictment as a “pretrial motion,” and CPL 255.20 (1) requires such motions to be made “within forty-five days after arraignment and before commencement of trial.” The trial court might well have been within its discretion if it had refused to consider defendant’s CPL 330.30 motion. However, the People, though complaining of the motion’s tardiness, did not suggest that they had been prejudiced by the delay. They now argue that, had defendant’s argument been raised earlier, they might have mooted it by proving that defendant had a prior felony conviction, but they never said this to the trial court.

The trial court did not accept the People’s timeliness objection, and decided defendant’s motion on the merits. We reject the idea that the court was powerless to do so. Defendant could have asserted his constitutional claim in a motion to dismiss the indictment pursuant to CPL 210.20, a motion that must normally be made before trial, but one which “the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of . . . on the merits” (CPL 255.20 [3]). The court was not deprived of its discretion because defendant may have put the wrong section number—CPL 330.30 rather than 210.20—on his motion papers, and it was not an abuse of discretion for the court to entertain the belated motion. Having been raised by defendant and decided by the trial court, the constitutional issue as to the second degree weapon possession conviction was preserved for appeal (see CPL 470.05 [2]).

m

Under Penal Law § 265.01 (1), a person who “possesses any firearm” is guilty of criminal possession of a weapon in the fourth degree, a misdemeanor. But a person who possesses “any loaded firearm” is guilty of criminal possession in the second degree, a class C felony (Penal Law § 265.03 [3]), unless “such possession takes place in such person’s home or place of business” (id.). The home or business exception is inapplicable, however, if the person possessing the weapon “has been previously convicted of any crime” (Penal Law § 265.02 [1] [incorporated by reference in Penal Law § 265.03 (3)]; see People v Jones, 22 NY3d 53 [2013] [decided today]).

This last provision—the prior-crime exception to the home or place of business exception—resulted in defendant’s conviction for second degree weapon possession. Although the trial court found that defendant possessed the gun in his home, that does not help him under the statute, because he was previously convicted of a misdemeanor, resisting arrest. Defendant’s argument is, in essence, that to elevate a weapon possession charge to a class C felony on the basis of a prior misdemeanor conviction impermissibly burdens his right to keep and bear arms under the Second Amendment (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”), which was interpreted in District of Columbia v Heller (554 US 570 [2008]) and McDonald v Chicago (561 US 742 [2010]) to create an individual right to bear arms that the states are bound to respect.

To put defendant’s argument in context, it is important to understand that New York’s criminal weapon possession laws prohibit only unlicensed possession of handguns. A person who has a valid, applicable license for his or her handgun commits no crime (Penal Law § 265.20 [a] [3]). Nor is a license to possess a handgun in one’s home difficult to come by. Subject to some qualifications, a “householder” is entitled to a license to “have and possess in his dwelling” a pistol or revolver (Penal Law § 400.00 [2] [a]); the only qualification relevant here is that the householder must not have been “convicted anywhere of a felony or a serious offense” (Penal Law § 400.00 [1] [c]). Resisting arrest is not a “serious offense” as defined in the Penal Law (Penal Law § 265.00 [17]). Thus, if the resisting arrest conviction was defendant’s only one, there is no apparent reason why he could not have obtained a license to have a handgun in his home. It is undisputed, however, that he had no such license.

Defendant does not dispute the State’s power to punish him for having an unlicensed handgun in his home. He claims, however, that punishment of this crime as a class C felony is unconstitutionally severe. The People say that defendant’s argument is fundamentally misconceived: the Second Amendment, according to the People, limits a state’s power to punish gun possession, but does not limit the severity of punishment when a constitutionally valid law has been violated. Severity, they say, is governed by the limitations of the Eighth Amendment (“nor [shall] cruel and unusual punishments [be] inflicted”).

Defendant cites no case in which the Second Amendment has been applied to limit the penalties that may be imposed for concededly unlawful gun possession. The People, on the other hand, cite no authority holding that no such Second Amendment limits exist. The question appears to be an open one, and we need not decide it here. Assuming that there are cases in which the severity of punishment would transgress Second Amendment limits, this is not such a case.

We assume without deciding that the punishment imposed on defendant is subject to Second Amendment scrutiny, and we therefore consider what level of scrutiny is triggered by a Second Amendment claim. This question was left unanswered by the Supreme Court in Heller (see 554 US at 628-629). Since Heller, several Federal Courts of Appeals have applied intermediate scrutiny in Second Amendment cases (see Heller v District of Columbia, 670 F3d 1244, 1261-1264 [DC Cir 2011]; United States v Booker, 644 F3d 12, 25 [1st Cir 2011]; United States v Masciandaro, 638 F3d 458, 471 [4th Cir 2011]; United States v Chester, 628 F3d 673, 683 [4th Cir 2010]; United States v Marzzarella, 614 F3d 85, 97 [3d Cir 2010]; United States v Reese, 627 F3d 792, 802 [10th Cir 2010]; United States v Skoien, 614 F3d 638, 641-642 [7th Cir 2010 en banc]; contra United States v Engstrum, 609 F Supp 2d 1227 [D Utah 2009]). Indeed, the Supreme Court’s Heller opinion itself seems to point in the direction of intermediate scrutiny. It flatly rejects the less stringent rational basis scrutiny (554 US at 628 n 27); on the other hand, it says that nothing in its opinion “should be taken to cast doubt on” a number of “longstanding prohibitions” of firearms possession (id. at 626-627). Such an endorsement of categorical restrictions seems hard to reconcile with the highest level of scrutiny, strict scrutiny, as usually practiced. We conclude that, assuming any Second Amendment scrutiny is appropriate here, intermediate scrutiny is the right kind.

Intermediate scrutiny requires us to ask whether a challenged statute bears a substantial relationship to the achievement of an important governmental objective (Clark v Jeter, 486 US 456, 461 [1988]). Penal Law § 265.03 (3), making it a class C felony for anyone previously convicted of any crime to possess an unlicensed, loaded firearm in his home or elsewhere, easily passes this test. The statute does not, it must be remembered, forbid anyone convicted of any misdemeanor from possessing a gun on pain of class C felony punishment; most misdemeanants—including the present defendant, assuming that resisting arrest was his only prior crime—are eligible for licenses to have guns in their homes.

It is beyond dispute that preventing the criminal use of firearms is an important government objective; and keeping guns away from people who have shown they cannot be trusted to obey the law is a means substantially related to that end. More specifically, to punish severely a convicted criminal who, though eligible for a license, again violates the law by obtaining an unlicensed gun is a means well-suited to the end of assuring that lawbreakers do not have firearms. We need not decide whether a truly draconian sentence for such unlawful possession would raise constitutional problems. The 3/2 year sentence this defendant received does not.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Lippman and Judges Graffeo, Read, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Order affirmed.


text:
    [999 NE2d 1184, 977 NYS2d 739]
    The People of the State of New York, Respondent, v Harold Jones, Appellant.
    Argued October 9, 2013;
    decided November 19, 2013

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (David J. Klem of counsel), for appellant.
    I. The appeal should have been dismissed as untimely because the People failed to file a notice of appeal or obtain reconsideration within 30 days of service on them of the decision reducing the count of the indictment. (Kilmer v Hathorn, 78 NY 228; People v Coaye, 68 NY2d 857; People v Singleton, 72 NY2d 845; People v Elmer, 98 AD3d 810, 19 NY3d 501, 20 NY3d 1011; People v Washington, 86 NY2d 853; People v Torres, 179 AD2d 358; People v Stevenson, 176 AD2d 516; Matter of De Luca v Caputa, 8 NY2d 1020; McCoy v Metropolitan Transp. Auth., 75 AD3d 428; Reid v Presbyterian Hosp. in City of N.Y., 254 AD2d 139.) II. An individual previously convicted of a crime who possesses a loaded gun in his home or place of business is guilty of third degree, but not second degree, criminal possession of a weapon. (People v Powell, 54 NY2d 524; People v Lamont, 21 AD3d 1129; People v Hedgeman, 70 NY2d 533.) III. The indictment was jurisdiction-ally defective in failing to include elements within its body and the special information attached to the indictment was improperly utilized. (People v Sanchez, 84 NY2d 440; People v Iannone, 45 NY2d 589; People v Kohut, 30 NY2d 183; People v Santana, 7 NY3d 234; People v Cooper, 78 NY2d 476; Old Chief v United States, 519 US 172; People v Santorelli, 80 NY2d 875.)

      Cyrus R. Vance, Jr., District Attorney, New York City (David P. Stromes and Patrick J. Hynes of counsel), for respondent.
    I. A defendant who has been previously convicted of any crime commits second degree possession of a weapon under Penal Law § 265.03 (3) by possessing a loaded firearm in his home. (People v Hughes, 83 AD3d 960, 19 NY3d 961; People v Lamont, 21 AD3d 1129; People v Sams, 19 Misc 3d 1133[A], 2008 NY Slip Op 50993[U]; People v Montilla, 10 NY3d 663.) II. Defendant’s efforts to avoid a merits decision by seeking reversal of the Appellate Division’s decision on other grounds must be rejected. (People v Goodfriend, 64 NY2d 695; People v Washington, 86 NY2d 853; People v Aubin, 245 AD2d 805; People v Bowden, 28 Misc 3d 1204[A], 2010 NY Slip Op 51147[U]; People v Ashe, 187 Misc 2d 532; People v Singleton, 72 NY2d 845; People v Lynch, 195 Misc 2d 814; People v Coaye, 68 NY2d 857; People v Elmer, 19 NY3d 501; Flisch v Walters, 42 AD3d 682.)
   OPINION OF THE COURT

Smith, J.

Defendant was charged with criminal possession of a weapon in the second degree for possessing a loaded firearm. The alleged possession occurred in his home, but defendant had previously been convicted of a crime. He claims that under Penal Law § 265.03 (3) he is entitled, despite his prior conviction, to rely on the so-called “home or business” exception in the definition of second degree weapon possession. We reject that argument and hold that defendant’s indictment for second degree possession was proper.

I

Defendant was charged in two indictments with a variety of crimes, but only a single count is now before us. That count was based on evidence before the grand jury that a loaded gun was found in a bathroom; the bathroom, it is now conceded, was part of defendant’s home. The indictment alleges simply that defendant committed criminal possession of a weapon in the second degree in violation of Penal Law § 265.03 (3) in that he “possessed a loaded firearm.” With the indictment, the People filed a special information, alleging that defendant had previously been convicted of criminal possession of a controlled substance in the first degree.

Supreme Court, concluding that possession of the weapon in defendant’s home did not constitute second degree possession, reduced the charge to third degree possession. On the People’s appeal, the Appellate Division reversed and reinstated the second degree charge (People v Jones, 103 AD3d 411 [1st Dept 2013]). A Judge of this Court granted leave to appeal (21 NY3d 944 [2013]), and we now affirm.

II

Before reaching the merits of the appeal, we must consider a jurisdictional issue. Defendant says that the People’s appeal to the Appellate Division was untimely, and that therefore the Appellate Division could not consider it. He says that the appeal was not taken “within [30] days after service upon [the People] of a copy” of Supreme Court’s order reducing the second degree count to third degree possession (CPL 460.10 [1] [a]).

Defendant’s theory is that the 30-day time to appeal began running when, according to defendant’s brief, Supreme Court “provided copies” of its order “to the parties in open court.” In fact, the record does not show that the court did any such thing. At the transcript page defendant cites, the court only says that there is “a decision on file.” But even if the factual premise of defendant’s argument were correct, his argument would have no merit. We have interpreted CPL 460.10 (1) (a) “to require prevailing party service”—not just the handing out of an order by the court—“to commence the time for filing a notice of appeal” (People v Washington, 86 NY2d 853, 854 [1995]). Here, it is undisputed that defendant, the prevailing party at Supreme Court, never served the order on the People.

m

On the merits, this appeal requires us to interpret the “home or business” exception to the second degree weapon possession statute, Penal Law § 265.03 (3). Under that statute:

“A person is guilty of criminal possession of a weapon in the second degree when: . . .
“(3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one ... of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person’s home or place of business.”

Section 265.02 (1), to which the above quoted language refers, defines criminal possession of a weapon in the third degree. Under Penal Law § 265.02 (1), a person is guilty of third degree criminal possession when he or she “commits the crime of criminal possession of a weapon in the fourth degree . . . and has been previously convicted of any crime.” The Appellate Division read the reference in section 265.03 (3) to section 265.02 (1) as creating an exception to the home or business exception—i.e., to make that exception inapplicable when the defendant has a previous criminal conviction. We agree with this reading of the statute.

The language of the statute, fairly read, supports the Appellate Division’s holding. The home or business exception is qualified by the words “except as provided in subdivision one ... of section 265.02” and section 265.02 (1) applies to a person who “has been previously convicted of any crime.” Thus such a person may not rely on the home or business exception in a prosecution under Penal Law § 265.03 (3).

Defendant would have us read the “except as provided” phrase of section 265.03 (3) not as excluding certain cases from the home or business exception, but as stating the fact that those cases are covered by the third degree statute, Penal Law § 265.02 (1). Thus defendant would paraphrase the statute as saying: “possession in the home or place of business is not second degree possession, but it is third degree possession, as Penal Law § 265.02 (1) says.” This argument alters the plain meaning of the statutory words: it reads the word “except” out of Penal Law § 265.03 (3). The argument also makes the statute a strange one. Why should the law defining second degree possession include a remark about what the third degree statute says? It is not the normal function of a Penal Law section to provide information about what other sections contain.

Defendant argues that his reading of the statute is less strange when the history of Penal Law § 265.03 (3) is considered. Until 2006, possession of a loaded firearm outside of one’s home or place of business was third degree possession only, and the predecessor statute to Penal Law § 265.03 (3) was a subdivision of Penal Law § 265.02 (see former Penal Law § 265.02 [4], as repealed by L 2006, ch 742). At that time, subdivisions (1) and (4) of Penal Law § 265.02 said that a person commits the third degree offense when:

“(1) Such person commits the crime of criminal possession of a weapon in the fourth degree . . . and has been previously convicted of any crime; or ... .
“(4) Such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one . . . constitute a violation of this section if such possession takes place in such person’s home or place of business.”

Thus, until 2006, Penal Law § 265.02 (1) governed the case where a defendant convicted of a prior crime possessed a firearm (loaded or unloaded) in his home or place of business. The “except as provided” phrase in subdivision (4) was necessary to make clear that the home or business exception did not apply to subdivision (1).

When former Penal Law § 265.02 (4) was repealed and replaced by section 265.03 (3), the legislature tracked the language of the former statute. It retained the “except as provided” phrase, altering it to refer to “subdivision one ... of section 265.02.” On defendant’s theory, the phrase was no longer necessary, because the two subdivisions were now in different sections, but the legislature, in mechanically transposing language, overlooked this. Defendant says that the legislature did not intend to change the meaning of the “except as provided” phrase, which he says still means, as it did before the 2006 legislation, that Penal Law § 265.02 (1) governs cases like the one before us.

Defendant’s speculation—essentially, that the 2006 legislature blundered—is contradicted by legislative history showing that the legislature knew precisely what it was doing. A month and a half after enacting Penal Law § 265.03 (3), the 2006 legislature amended it to correct an error. The Senate sponsor of the corrective legislation provided a memorandum in its support, in which he described the purpose of section 265.03 (3). The new subdivision was, he said, “intended to increase the penalty for criminal possession of a loaded firearm under the circumstances where ... [a] person possesses a loaded firearm in his home or place of business and has previously been convicted of a crime” (Senate Introducer Mem in Support, Bill Jacket, L 2006, ch 745 at 3). Thus a memorandum by a knowledgeable legislator virtually contemporaneous with the enactment of Penal Law § 265.03 (3) describes it as meaning what it says. We hold that interpretation to be correct.

IV

Defendant also argues that, regardless of the meaning of the home or business exception, the indictment here is insufficient because it does not allege defendant’s prior criminal conviction. It is improper, defendant says, to allege that conviction separately, in a special information. The Appellate Division held the special information proper under CPL 200.60, which says that a previous conviction shall not be included in an indictment, but in a special information, where that previous conviction “raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter.” (CPL 200.60 [1].)

We see no need to decide the CPL 200.60 question, because in our view defendant’s previous conviction was not an “element of the offense charged”—criminal possession of a weapon in the second degree—and so did not have to be alleged at all (see CPL 200.50 [7] [a]). No doubt, in a more typical second degree possession case, where the home or business exception is factually inapplicable—i.e., where the alleged possession took place somewhere else—the inapplicability of the exception is an element of the offense, and either the indictment or a special information must allege the fact that makes it inapplicable. But where the defendant has a previous conviction, the exception never comes into play, its inapplicability is not an element of the offense, and the indictment need not allude to it.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Lippman and Judges Graffeo, Read, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.