January 9, 2009
THE PEOPLE OF THE STATE OF NEW YORK
LAWRENCE YOUNG, DEFENDANT
The opinion of the court was delivered by: Joseph K. McKay, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
At issue is whether defendant must be adjudicated a persistent violent felony offender (Penal Law § 70.08), should he be convicted of a violent felony in the above-captioned indictment. Initially the Court notes that this matter does not call for a general advisory opinion but rather for the resolution of an issue of paramount and immediate importance to the parties and to the advancement and ultimate disposition of this case. That is the reason both parties have consented to the Court's determination of this critical issue at this pre-conviction juncture.*fn1
Defendant is currently charged with burglary in the second degree and other related charges. On March 17, 2003 defendant, having pled guilty to robbery in the second degree under the Indictment Number 1121-02 in Queens County before the Honorable Barry Kron, was sentenced as a violent predicate felon to a term of seven years incarceration. No statutorily mandated period of post release supervision ("PRS") was imposed at sentence nor was defendant advised about PRS at his plea. In a January 25, 2008 Order Justice Kron denied defendant's motion to vacate his sentence to exclude a period of PRS which had been imposed by the Department of Corrections (DOCS).*fn2 Instead, the Court held that since DOCS was without authority to impose PRS defendant's sentence did not and would not include a period of PRS. In a subsequent June 25, 2008 Order Justice Kron noted that the Division of Parole had informed the Court in writing that there may be a question of the lawfulness of defendant's non-PRS sentence in light of the recent Court of Appeals decision in Matter of Garner v. New York State Dept. of Correctional Servs., 10 NY3d 358 (2008) and People v. Sparber, 10 NY3d 457 (2008). Justice Kron declined to re-calendar the matter and ordered DOCS to calculate defendant's term of imprisonment without a period of PRS.*fn3
Notwithstanding that defendant did not appeal from his Queens conviction this Court agrees with defendant that he has not forfeited his right to independently challenge the constitutionality of his plea and the legality of his sentence within the context of a predicate felony proceeding. See, People v. Johnson, 196 AD2d 408 (1st Dept 1993); compare People v. Foley, 96 AD2d 866 (2d Dept 1983). Although a defendant may challenge for the first time on appeal his adjudication as a predicate felon based upon an underlying illegal sentence [see People v. Robles, 251 AD2d 20, 21 (1st Dept 1998)(and cases cited therein), lv denied 92 NY2d 904 (1998)] the People have failed to cite any binding precedent requiring defendant to perfect such an appeal in order to preserve the issue before this Court. The Court does not now reach or decide the issue of whether defendant's Queens plea was unconstitutional,*fn4 but I do conclude that the sentence imposed without a period of PRS must be deemed an illegal sentence. See, People v. Sparber, supra; Matter of Garner, supra; People v. Hill, 9 NY3d 189 (2007); compare People v. Curry, 50 AD3d 820 (2d Dept. 2008). Accordingly, the Court now holds that defendant's Queens conviction under indictment No. 1121-02 may not be used as a predicate to enhance any potential sentence in the above-captioned case.
IT IS SO ORDERED.