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Nickens v. Moscicki

July 21, 2010


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Philip Nickens ("Petitioner" or "Nickens") brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his resentencing in Supreme Court for the State of New York, New York County. Petitioner contends that the resentencing violated his rights under the Double Jeopardy Clause because it increased a previous sentence in which he had a legitimate expectation of finality. (Pet. Br. 9) Petitioner also contends that he was denied effective assistance of trial counsel because his lawyer did not raise the double jeopardy issue before the trial court. (Am. Pet. at 6, 8) For the reasons stated below, Nickens' petition will be denied.


On January 26, 1990, Philip Nickens and two accomplices, Tyrone Crudup and Tracy Lang, stole crack cocaine from the occupants of an apartment at 557 West 174th Street in Manhattan. (Steward Decl., Ex. A at 11; Resp. Br. at 2; Pet. Br. at 2) In the course of the robbery, Tyrone Crudup shot and killed an occupant of the apartment. (Resp. Br. at 2) Petitioner was the lookout during the robbery, and later used the stolen drugs. (Ex. A at 12; Resp. Br. at 2; Pet. Br. at 4)

In 2005, Petitioner was charged in New York Supreme Court with second degree murder in connection with the 1990 robbery and murder. (Ex. A at 5; Ex. E at 2) On January 18, 2006, Petitioner was charged with robbery in the first degree, arising out of the same incident. (Ex. D at 2; Ex. E at 2)

When first charged in 2005 with the 1990 robbery and murder, Petitioner was serving a sentence for two unrelated first-degree robbery convictions. Pursuant to October 19, 1990 sentences imposed in connection with those convictions, Petitioner had a conditional release date of February 20, 2006, and a maximum expiration date of February 20, 2014. (Ex. E at 4; Ex. A at 9; Pet. Mem. at 5 n.4)


A. Plea Hearing

New York Supreme Court Justice Carol Berkman held a plea hearing on February 1, 2006. (Ex. B) Petitioner, represented by Daniel Parker, waived his right to indictment (Ex. A at 6), and pled guilty to first-degree robbery pursuant to a plea agreement.*fn1 (Ex. A at 11-13) The record of the plea makes clear that the parties agreed, and the court understood, that (1) Petitioner would be sentenced to "twelve and a half to twenty-five years concurrent with the time he is doing [on the 1990 case]"; and (2) the court would "impose a sentence nunc pro tunc on the new case . . . back ten and a half years. . . . [to] August 1st, 1995." (Ex. A at 9, 13, 16; Ex. D at 2; Ex. E at 2-3). During the plea hearing, the Assistant District Attorney ("ADA") explained that the "nunc pro tunc date" was calculated "to go back ten and one half years, so that Mr. Nickens will wind up doing two years at least on this case[.]"*fn2 (Ex. A at 8) Petitioner's attorney confirmed that this was his understanding of the plea agreement, stating that the sentence would run from "August 1st, 1995[,]" or approximately ten and one half years prior to the sentencing date. (Ex. A at 9, 13)

B. Sentencing Hearing

Petitioner appeared with counsel for sentencing on February 15, 2006. (Ex. B) The ADA reminded the court that the parties had agreed to a sentence of "[t]welve and a half to twenty-five[years,] nunc pro tunc ten and a half years." (Ex. B at 2) Defense counsel agreed, stating that Petitioner would "receive [prison time served] credit going back ten and a half years on this sentence. And that . . . [Petitioner would] not be parole eligible for the next two years [after the sentencing date]." (Ex. B at 3) In pronouncing sentence, Justice Berkman stated: "the defendant is sentenced to a term of twelve and a half to twenty-five [years]. That is nunc pro tunc to August 1, [1995], to run concurrently with [the sentences he is already serving]." (Ex. B at 6)

C. Re-Sentencing Hearing

Petitioner's case was re-opened at the People's request, and the parties appeared for resentencing before Justice Berkman on April 19, 2006. (Ex. C) The circumstances surrounding the People's request are confusing. The ADA stated that he had received a letter from the State Division of Parole informing him that Petitioner was immediately parole eligible because the Parole Division deemed that Petitioner's February 15, 2006 sentence was fully concurrent with the prison term imposed as part of Petitioner's October 19, 1990 sentence.*fn3 In other words, the Parole Division -- despite Justice Berkman's nunc pro tunc language -- understood her to have directed that Petitioner's February 15, 2006 sentence should be treated as if it had begun to run on October 19, 1990, rather than August 1, 1995, as Justice Berkman had ordered. (Ex. C at 2) The ADA stated that because Justice Berkman had used the word "concurrent," "that made the sentence begin to run from the date that he originally went to prison," rather than August 1, 1995. (Ex. C at 3) The State Division of Parole found the court's "nunc pro tunc" language to be "meaningless." (Ex. C at 6) The ADA went on to say that, according to the Division of Parole, the court must "specify on the record that the time was to be concurrent with the time remaining on those two [unrelated] sentences" in order to effectuate the parties' intent for the sentence. (Ex. C at 3; see also id. at 6) Justice Berkman had, of course, provided that Petitioner's new sentence would be served concurrently with his prior sentences, with the new sentence beginning on August 1, 1995. (Ex. B at 6)

At the April 19, 2006 re-sentencing, the prosecutor reiterated the parties' agreement and understanding that petitioner's sentence would be "nunc pro tunc 10-1/2 years and that [his] sentence [would] begin to run from August 1, 1995." (Ex. C at 2) Petitioner's attorney expressed agreement with the prosecutor's statements, and confirmed that "we agreed ...

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