UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 27, 2007
DENCIL LOPEZ, PETITIONER,
BRIAN FISCHER, RESPONDENT.
The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Dencil Lopez, currently an inmate at Sing Sing Correctional Facility, brings this petition for a writ of habeas corpus, alleging that he is being held in state custody in violation of his constitutional rights. See 28 U.S.C. § 2254. Petitioner asserts that consecutive sentences imposed by the New York State courts violated the Double Jeopardy Clause of the Fifth Amendment, and that delay in issuing his indictment violated his right to a speedy trial under the Sixth Amendment. For the following reasons, the petition is denied.
On July 14, 2000, petitioner was convicted in Bronx Supreme Court, after a jury trial, of manslaughter in the first degree (N.Y. Penal Law § 125.20), three counts of robbery in the first degree (N.Y. Penal Law §§ 160.15, , ), criminal use of a firearm in the first degree (N.Y. Penal Law § 265.09), and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03)-all in connection with a single victim. As a second violent felony offender, petitioner was sentenced to 12 1/2 to 25 years for the manslaughter conviction, to run consecutively to concurrent terms of 12 1/2 to 25 years for the three robbery convictions, 7 1/2 to 15 years for the criminal use of a firearm conviction, and 4 to 8 years for the weapon possession conviction. The sentencing judge explained the rationale of the sentence he imposed:
And after listening to the testimony in this trial, the jurors found you guilty of robbery, and the jury also found you guilty of an independent act, separate and apart from the robberies, an act in which you took a gun and placed it against the head of another person and killed him. . I'm going to have to impose a sentence that is consistent with that verdict and consistent with the findings of this Court.
Sentencing Transcript, Indictment No. 1177/98 at 15 (N.Y. Sup. Ct. Oct. 11, 2000).
On appeal to the Appellate Division, First Department, petitioner argued that his sentence should be modified because it imposed consecutive terms of imprisonment for offenses committed through an act which in itself constituted one of the offenses and also was a material element of another offense. He also argued that his right to a speedy trial was violated. With regard to his sentencing, petitioner relied on New York Penal Law Section 70.25, People v. Laureano, 87 N.Y.2d 640 (1996), and People v. Ramirez, 89 N.Y.2d 444 (1996).*fn1
New York Penal Law Section 70.25 provides:
When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.
Petitioner argued that it was error to impose a consecutive sentence for the manslaughter conviction because the act of causing death, which was a necessary element of the manslaughter charge, was also a material element of one of the counts of robbery in the first degree, that which involved causing "serious physical injury" while committing the robbery or during "immediate flight therefrom." Compare N.Y. Penal Law § 125.20 with N.Y. Penal Law § 160.15.
In a supplemental brief, petitioner further argued that that the three robbery sentences must run concurrently, that the manslaughter sentence must run concurrently with the "causes serious physical injury" robbery sentence, and that therefore, the manslaughter sentence must also run concurrently with the other two robbery sentences. Otherwise, petitioner argued, Section 70.25 would be violated because the three robbery counts would no longer be sentenced to run concurrently. See Darpino Aff., Ex. 3 (defendant's supplemental brief of Dec. 9, 2004).
With regard to petitioner's speedy trial issue, petitioner argued that the prosecution impermissibly delayed petitioner's indictment by sixty months without good cause. In support of this argument, petitioner relied on both the state and federal constitutions.
On February 10, 2005, the Appellate Division modified petitioner's sentence, agreeing with petitioner that his Section 160.15 robbery conviction (robbery that "causes serious physical injury") must run concurrently to his manslaughter sentence. People v. Lopez, 15 A.D.3d 232 (N.Y. App. Div., 1st Dep't 2005). The court reasoned that the act of causing "serious physical injury," which was an element of the robbery conviction, was also the act causing death, which constituted the offense of manslaughter. Id. The Appellate Division rejected petitioner's supplemental argument, however, holding that the sentences for the other two robbery convictions need not run concurrently with the manslaughter sentence. See id. (citing People v. Tanner, 30 N.Y.2d 102, 108 (1972)). By affirming consecutive punishment, the court regarded the elements of robbery while armed with a deadly weapon, and robbery while displaying what appears to be a firearm, as different from the elements of manslaughter, and held accordingly. Compare N.Y. Penal Law § 160.15,  with N.Y. Penal Law § 125.20. The court did not discuss whether its modification of sentence resulted in consecutive, rather than concurrent, treatment of petitioner's three robbery convictions.
As to petitioner's speedy trial argument, the Appellate Division agreed with the prosecution and held that the delay in indicting was caused by the need to gather evidence and that there was no factual issue that warranted a hearing because the petitioner had not made a showing of prejudice, and had not disputed that the delay was in good faith.
On May 16, 2005, the New York Court of Appeals denied petitioner's leave to appeal. Thus the issues are ripe for habeas review. See 28 U.S.C. § 2254(b)(2).
II. Standard of Review
Persons in state custody resulting from a conviction in state court may petition for federal habeas corpus relief on the ground that their custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition for a writ of habeas corpus shall not be granted unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable interpretation of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(1)-(2). In addition, the application cannot be granted unless the petitioner has exhausted available state court remedies, or the state remedies are absent or ineffective, id. § 2254(b)(1), but the court may deny a petition on the merits regardless of whether state remedies have been exhausted, id. § 2254(b)(2).
A. Petitioner's Double Jeopardy Claim is Without Merit
Petitioner maintains that his sentence imposes consecutive terms of imprisonment for the same offense and therefore violates the Double Jeopardy Clause of the Fifth Amendment. The question is whether the modified sentences imposed by the ruling of the Appellate Division, holding that under New York Penal Law Section 70.25, petitioner's sentence for manslaughter may run consecutively with two of the robbery counts-the counts alleging that the robbery was committed while armed with a deadly weapon (§ 160.15) and while displaying a firearm (§ 160.15) -but concurrently with the robbery count involving causation of serious injury, violates the Double Jeopardy Clause. See U.S.C. § 2254(d)(1)-(2).
In addition to protecting against multiple prosecutions by the same sovereign, the Double Jeopardy Clause "protects against multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). However, "[w]here consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Id. (citation omitted). In Brown v. Ohio, the Supreme Court observed:
Because it was designed originally to embody the protection of the common-law pleas of former jeopardy . the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define punishments and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.
Id. at 165. Thus, in the absence of clear legislative choice to allow multiple punishments for the same offense, the court's imposition of such a sentence runs afoul of the Double Jeopardy Clause. In deciding whether two counts constitute the same offense within the meaning of the Double Jeopardy Clause, the Court considers "whether each count contains an element not contained in the other." United States v. White, 240 F.3d 127 (2d Cir. 2001); see also Blockberger v. United States, 284 U.S. 299 (1932).
New York Penal Law Section 125.20 provides that "[a] person is guilty of manslaughter in the first degree when . with intent to cause serious physical injury to another person, he causes the death of such person or of a third person." The Double Jeopardy Clause is not violated by imposing one term of imprisonment for manslaughter consecutively with another term of imprisonment for robbery while "armed with a deadly weapon" and while displaying "what appears to be a .firearm." N.Y. Penal Law §§ 160.15, . Nor is the Double Jeopardy Clause violated by imposition of consecutive terms of imprisonment for the robbery counts at issue here. The "causes serious physical injury" element is sufficiently distinct from the "armed with a deadly weapon" element and the "displays what appears to be a firearm" element such that each count "requires proof of an additional fact which the other does not." Blockberger, 284 U.S. at 309.
Petitioner presented a question of New York law to the appellate courts: if, under Section 70.25, sentence A must run concurrently to sentence B, and sentence B must run concurrently to sentence C, must sentences A and C also run concurrently? If, that is, the robbery convictions must be sentenced concurrently with one another, and the manslaughter conviction must be sentenced concurrently with one of the counts of robbery, must all convictions be sentenced to run concurrently? Conflicting rulings on this matter have issued from the New York Appellate Division. The First and Third Departments have held that sentences A and C may run consecutively without violating Section 70.25, see People v. Battle, 249 A.D.2d 116 (N.Y. App. Div., 1st Dep't 1998); People v. Hyde, 240 A.D.2d 849 (N.Y. App. Div., 3rd Dep't 1997), while the Second Department has held that where A must run concurrently to B, and B must run concurrently to C, A must run concurrently with C. People v. Losicco, 276 A.D.2d 565 (2d Dep't 2000); People v. Dickens, 269 A.D.2d 463 (N.Y. App. Div., 2d Dep't 2000).
The issue, however, is one of interpretation of the New York statute, and not of the Double Jeopardy Clause. The proper construction of a state statute or its application to a habeas petitioner's case is beyond the scope of a federal habeas inquiry. Estelle v. McGuire, 502 U.S. 62, 63 (1991) ("[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions."). The decision of the New York courts, even if a misinterpretation of New York Penal Law Section 70.25, did not result in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Here, the state courts did not "impose more than one punishment for the same offense," Brown v. Ohio, 342 U.S. at 165, and I have found no decision of the United States Supreme Court to support the proposition that the misapplication of a state sentencing statute, without more, is a violation of the prohibition against double jeopardy, or any other provision of the United States Constitution.
B. Petitioner's Speedy Trial Claim is Without Merit
Petitioner also argued on appeal that the sixty-month delay between his arrest and his indictment and trial violated his right to a speedy trial under both the New York and federal constitutions. The Sixth Amendment right to a speedy trial attaches when a person is "accused" of a crime. United States v. Marion, 404 U.S. 307, 313 (1971). In order to establish a Sixth Amendment violation for pre-indictment delay, petitioner must demonstrate that the delay caused "substantial prejudice to [his] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." Id. at 320. The crime occurred on November 11, 1993 and petitioner was arrested shortly thereafter. The prosecution was unable to proceed at that time because "there were no independent witnesses able to connect" appellant to the robbery and homicide, and petitioner was released from custody. After the prosecution was able to secure a witness, however, petitioner was indicted promptly. As the Appellate Division observed, petitioner has not argued that the delay prejudiced him or was caused by bad faith. See People v. Lopez, 15 A.D.3d at 232--33 ("Defendant made no showing of prejudice, and did not dispute the People's showing that the investigation proceeded in good faith and that the delay was caused by the need to gather essential evidence."). Therefore, petitioner's Sixth Amendment claim is denied.