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McCullough v. Fischer

United States District Court, W.D. New York

February 10, 2014

ROBERT McCULLOUGH, Petitioner,
v.
BRIAN FISCHER, Commissioner of the New York State Department of Corrections and Community Supervision, Respondent.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

Petitioner, Robert McCullough, has filed a petition under 28 U.S.C. § 2241(a)(3) claiming that he is being held in custody by the New York State Department of Corrections and Community Supervision ("DOCCS") unlawfully and in violation of the sentence imposed orally by the sentencing court, Monroe County Court, on October 15, 1998. Petitioner claims, as best the Court can discern, [1] that the Judge pronounced that he was being sentenced, upon his conviction of two counts of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law, § 265, 03), to a "single indeterminate sentence of 7-½ to 15 years and an indeterminate sentence of 3-½ to 7 years upon the conviction of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law[, §] 265.02)." The Judge ordered that the "two imposed sentences" were to run concurrently...." (Docket No. 1, Petition, ¶ 1, at 3.) At the time of the sentencing, petitioner was serving an unrelated prison sentence of 10 to 20 years, [2] and the Judge ordered that the sentences being imposed were to run consecutive to the unrelated sentence petitioner was then serving. ( Id., ¶ 2, at 3.)

Petitioner then claims that after serving over 14 years, he obtained a copy of the sentencing transcripts and the order of commitment. Upon reviewing the transcripts, he discovered that while it was the Judge's intention to impose consecutive sentences upon the two separate counts of Criminal Possession of a Weapon in the Second Degree, the transcripts demonstrate clearly that the Judge imposed only a "single sentence upon both [Second Degree] counts and failed to direct that said sentences were to be run consecutive to each other." ((Petition, at ¶ 3, at 4 (citing Exh. A, Sentencing Transcript, at 26-27.) The order of commitment, however, states that the "two' separate indeterminate sentences of 7-1/2 to 15 years was imposed upon [the] two' separate criminal possession of a weapon in second degree offenses (convictions)." The order of commitment also states that the two 7-½ to 15 year sentences were consecutive. ( Id., ¶ 4, at 4 (citing Exh. B).)

Petitioner therefore claims that since the order of commitment conflicts with the sentence imposed orally by the Judge, the sentence imposed orally controls and because the State has refused to correct the order of commitment due process prohibits the order of commitment from being corrected at this late time and he should be released unconditionally. ( Id., at 14.) Petitioner appears to argue that since the State has refused to correct the order of commitment when he brought it to its attention, there was no sentence imposed upon one of the two counts of Criminal Possession of a Weapon in the Second Degree and since he has served over 16 years in prison he "has completed the minimum term of his unrelated indeterminate 10 to 20 year sentence by over 6 years and has also completed and pas[s]ed his Conditional Release (good time) date upon the unrelated 10 to 20 year indeterminate prison term." ( Id., at 15.)

Petitioner alleges that upon discovering that the order of commitment did not reflect accurately the sentence pronounced orally by the Judge, he submitted a letter, dated June 5, 2012, to the "the attorney in charge" informing him of such error and requesting that a correction be made. On October 15, 2012, he received a reply from a Sentencing Review Coordinator asserting that petitioner's sentence complied with Section 70 of New York's Penal Law. ( Id., ¶¶ 5-6, at 5.) On June 11, 2012, petitioner wrote to the Inmate Records Coordinator at the Elmira Correctional Facility and he received a reply, dated June 21, 2012, asserting that DOCCS was bound by the order of commitment and advising him that if he believed the order of commitment or sentencing minutes were incorrect he should write to the Monroe County Court. ( Id. at ¶ 7, at 5-6.)

On October 23, 2012, petitioner filed a state court proceeding in Supreme Court, Albany County under Article 78 of New York's Civil Practice Law and Rules, seeking an order compelling DOCCS to either inform Monroe County Court of the sentencing errors or calculate his sentence upon the sentence orally pronounced as reflected in the transcript of the sentencing. ( Id., at ¶ 8, at 6.) The petition was denied on the basis that "[i]t is well settled, however, that prison officials are conclusively bound by the contents of commitment papers accompanying a prisoner.'" The order denying the petition also noted that any issues related to a discrepancy between the sentencing minutes and commitment order must be raised in the sentencing court and not in an Article 78 proceeding. On November 7, 2013, the Appellate Division, Third Department affirmed the denial of petitioner's Article 78 petition. ( Id., at ¶¶ 9-12, at 7-8.)

DISCUSSION

A. Recharacterization of Petition

Petitioner purports to bring the instant petition under 28 U.S.C. § 2241 and states that he is not "attacking and/or challenging the state court conviction and/or judgment." He claims his sole contention is that he is being held unlawfully in violation of the Fourteenth Amendment's Due Process Clause. (Petition, at 1.) The Court presumes there are a couple of reasons why petitioner states specifically that he is bringing this petition under § 2241, and not § 2254, and that he is not attacking the conviction itself, including AEDPA's[3] gate-keeping mechanism, 28 U.S.C. § 2244(b), and timeliness provisions, id., § 2244(d)(1)-(2). However, the United States Court of Appeals has made it clear that a state prisoner "must, bring a challenge to the execution of his or her sentence... under §§ 2254. A petition under §§ 2241 is therefore unavailable to [such a petitioner.]" Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir.2003); see, e.g., James v. Walsh, 308 F.3d 162, 167 (2d Cir.2002); Jenkins v. Haubert, 179 F.3d 19, 23-24 (2d Cir.1999) (citing Preiser v. Rodriguez, 411 U.S. 475, 489-92 (1973)); Savage v. Snow, 575 F.Supp. 828, 834 (S.D.N.Y.1983) ("a state prisoner seeking the restoration of good time credits must bring an action for a writ of habeas corpus under 28 U.S.C. §§ 2254") (citing Preiser, supra ).

Section 2254 governs petitions filed on behalf of any person in custody pursuant to the judgment of a State court, ' on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.' By its terms, section 2254 is not limited to challenges to an underlying conviction or sentence but can be used by any state prisoner who is in custody pursuant to a state court judgment and who challenges that custody on constitutional grounds.'

Robinson v. Atkinson, 2004 WL 1798129 (S.D.N.Y., Aug. 5, 2004) (quoting 28 U.S.C. § 2254; and citing Rossney v. Travis, 2003 WL 135692, at *3 (S.D.N.Y. Jan. 17, 2003); see also James, 308 F.3d at 167 (A federal due process challenge claiming state incarceration beyond that authorized by a judgment and sentence is a claim that state prisoner is "in custody" in violation of federal laws, and thus is within federal habeas corpus statute for state prisoners - 2254 -, not traditional habeas corpus statute - 2241.) Because petitioner is a state court prisoner challenging the execution of a state court sentence, the instant petition must be recharacterized as one brought under § 2254.

B. Notice of Recharacterization and Opportunity to Withdraw

Generally, before a court can recharacterize a petition brought under § 2241 or some other statute as one brought under § 2254 it must first provide petitioner notice and an opportunity to withdraw the petition lest the petition be subject to the gatekeeping mechanism of § 2244(b) without petitioner's notice of the consequences of that.[4] See Cook, 321 F.3d at 281-82; see also Adams v. United States ("Adams I"), 155 F.3d 582, 584 (2d Cir. 1998) (district courts should not recharacterize motions brought under some other provision to ones brought under § 2255 unless petitioner is advised of consequences of such recharacterization, i.e., second or successive petition restrictions, and provided opportunity to withdraw petition).[5] Accord Gitten v. United States, 311 F.3d 529, 532-33 (2d Cir.2002). In addition, a petition recharacterized as one brought under § 2254 will also be subject to the one year period of limitations set forth in § 2244(d)(1).

C. Second or Successive Petition

Petitioner has already brought a petition under § 2254 challenging the imposition of the Criminal Possession of Weapons convictions at issue and it was denied. McCullough v. Bennet, 02-CV-0249S. The judgment denying the petition was affirmed by the Second Circuit. ( Id., Docket Nos. 12-15.) If the instant petition is a second or successive petition under § 2244(b), then notice and an opportunity to withdraw is not required because if the first petition has been denied on the merits previously "the concerns raised in Adams [I] are not implicated when AEDPA's gatekeeping limitations have already been triggered by the prisoner's knowing conduct in filing for habeas relief under § 2255." Adams v. United States (" Adams II "), 372 F.3d 132, 136 (2d Cir.2004) (citing Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir.2001). In other words, notice is not necessary if a previously filed § 2254 petition has been denied on the merits. See Jiminian, 245 F.3d at 148 (so holding in the context of a § 2255 Motion).

The Second Circuit has also held that "when a prisoner has already had a § 2255 petition dismissed on the merits, a district court faced with a § 2241 petition raising previously available claims that are properly the subject of a § 2255 motion should treat the motion as a second or successive motion and refer it to [the Second Circuit] for certification [under § 2244(b)(2)]." Adams II, 372 F.3d at 136 (emphasis added) (citing Jiminian, 245 F.3d at 148).[6]

The question therefore is whether the instant petition is a second or successive petition under § 2244(b). If it is, the petitioner does not need to be provided notice before the petition is recharacterized as one brought under § 2254, see Jiminian, 245 F.3d at 148; Adams II, 372 F.3d at 136, and the petition must be transferred to the Second Circuit for a determination under § 2244(b)(2)-(3)- i.e., whether the Second Circuit will authorize the district court to consider a second or successive petition. See Jiminian, 245 F.3d at 148.

In James, 308 F.3d at 167-68, the Second Circuit addressed a similar question regarding whether a later filed petition which raised a claim alleging the incorrect application of credit for time served and a miscalculation of James's conditional release date was a second or successive petition under § 2244(b). Id., at 168. James had filed previously a habeas corpus petition under § 2254 challenging the imposition of his sentence and it was denied as time barred. James then brought another § 2254 petition claiming that the New York State Department of Corrections (DOCS), DOCCS's predecessor, had erred "in its calculation and application of his sentence and that he was being held in violation of federal and state law. Specifically, James alleged that DOCS had failed to apply the credit the for time served on his lesser sentence to his overall sentence, and thus miscalculated his conditional release date as April 2000 instead of April 1999." Id., at 165. The district court determined that the later petition was a second or successive petition and transferred it to the Second Circuit for a determination under § 2241(b)(2)-(3) regarding whether leave to file a second or successive petition in the district court would be granted.

James then filed an application for leave to file a second or successive petition and counsel was appointed to address the issues of whether (i) James's "attack on the administration of his sentence was properly brought in a Section 2254 petition; (ii) James's current application [petition] should be treated as a first petition under Stewart v. Martinez-Villareal, 523 U.S. 637 (1998)." Following submissions by James's counsel, the Second Circuit addressed the following issues: "(i) whether [§ 2244(b)(2)'s] gatekeeping requirements apply to James's 1999 petition, given that he challenged the administration, rather than legality, of his sentence, (ii) if so, whether James's 1999 petition is successive within the meaning of Section 2244, and (iii) if the petition is not successive, whether [the Second Circuit] may consider its merits." James, 308 F.3d at 166.

After determining that James's petition was properly brought under § 2254, and not § 2241, id. at 166-67, and thus subject to § 2244(b)(2)'s gatekeeping mechanisms, the Court then went on to decide if the petition was a second or successive petition. Because what constitutes a "second or successive petition within the meaning of § 2244(b) is not defined, the Court had to look to the pre-AEDPA abuse-of-writ doctrine. Under said doctrine, "a subsequent petition is second or successive' when it raises a claim that was, or could have been, raised in an earlier petition." Id. at 167 (citations omitted). Because James's subsequent petition alleged "the incorrect application of credit for time served and a miscalculation of the conditional release date[, ] James could not have argued that he was in custody in violation of laws of the United States before the time when, according to his calculations, he should have been released.... Thus, the present claim had not arisen by 1997, when James filed his first habeas petition." Id. at 168.

The Second Circuit held that "[b]ecause the claim asserted in the [subsequent] petition did not exist when James filed his [first] petition, the [subsequent] petition was not second or successive' for the purposes of AEDPA's gatekeeping provisions." Id. The Court also held that a denial of James's application for leave to file the petition might implicate the Suspension Clause of the United States Constitution. Id. Thus, claims that could not have been raised in an earlier petition do not implicate AEDPA's gatekeeping requirements. Id.

Applying the holding of James to the instant petition, the question appears to be whether the claim alleged in the instant petition existed at the time petitioner filed his first petition in 2002 in which he challenged the imposition of his sentence. As outlined above, petitioner claims, or at least appears to claim, that because the sentencing court orally imposed only a single sentence of 7-½ to 15 years on the two Criminal Possession of a Weapon in the Second Degree convictions but the commitment order imposed a sentence of 7-½ to 15 years on both counts to run consecutively, the order of commitment is a nullity and cannot be corrected at this time without running afoul of due process. Because petitioner has served the minimum term of his unrelated 10 to 20 year sentence by over six years and the order of commitment upon which he is being held by DOCCS is a nullity, petitioner claims he is entitled to an unconditional discharge. In 2002, when petition filed the first petition, he would not have, according to his calculations, served the minimum term of his unrelated 10 to 20 year sentence and therefore he could not have brought this claim in that earlier petition.

Accordingly, because petitioner could not have brought back in 2002 the instant claim-as construed-, the instant petition, pursuant to the holding of James, is not a second or successive petition that needs to be transferred to the Second Circuit pursuant to § 2244(b)(2) and the Court must therefore provide notice to petitioner of its intention to recharacterize the instant petition as one brought under 28 U.S.C. § 2254 and an opportunity for petitioner to withdraw the petition.[7]

Petitioner will therefore be provided an opportunity to withdraw the instant petition no later than March 1, 2014. If petitioner does not provide the Court notice of his intent to withdraw the instant petition, the petition will be recharacterized as one brought under § 2254 and respondent will be directed to file a response and memorandum of law in opposition to the petition. In light of the issues addressed above and if petitioner consents to the recharacterization of the petition, the Court will provide respondent an opportunity to address the following issues at this time: (i) whether the petition is a second or successive petition and (ii) if so, should it be transferred to the Second Circuit for a determination whether petitioner should be granted leave to file a second or successive petition. Respondent my respond to this Order no later than March 21, 2014.

CONCLUSION

Based on petitioner's claim related to the execution of his sentence, the instant petition must be recharacterized as a petition brought under 28 U.S.C. § 2254. Before such recharacterization, however, the Court must first provide petitioner notice of its intention to recharacterize the petition to one brought under § 2254 and the opportunity to withdraw it rather than having it so recharacterized and subject to the gatekeeping requirements of § 2244(b)(2) and the one year statute of limitations set forth in § 2244(d). If petitioner does not respond to this Order by March 1, 2014, and advise the Court of his intention to withdraw the petition, the petition will be so recharacterized and respondent will be directed, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, to respond to the petition. At this time, respondent will be provided an opportunity to address the following issues no later than March 21, 2014: (i) whether the petition is a second or successive petition and (ii) if so, should it be transferred to the Second Circuit for a determination whether petitioner should be granted leave to file a second or successive petition in this Court.

ORDER

IT IS HEREBY ORDERED that the Court intends to recharacterize the instant petition as one brought under 28 U.S.C. § 2254 and that said recharacterization means that the petition will be subject to the gatekeeping requirements of 28 U.S.C. § 2244(b) and the one year statute of limitations of 28 U.S.C. § 2244(d);

FURTHER, that the recharacterization will occur unless petitioner notifies the Court, in writing, no later than March 1, 2014, that he either (1) consents to the recharacterization despite the consequences of recharacterization and the application of the one year period of limitations as set forth above, or (2) voluntary withdraws the petition rather than it being recharacterized as one brought under 28 U.S.C. § 2254;

FURTHER, that if petitioner does not advise the Court, in writing, by March 1, 2014, of either his consent to the recharacterization of this petition or his voluntary withdrawal of this petition, the Court will recharacterize the petition as one brought under § 2254;

FURTHER, that respondent may file a response to this Order no later than March 21, 2014, addressing the following issues: (i) whether the petition is a second or successive petition and (ii) if so, should it be transferred to the Second Circuit for a determination whether petitioner should be granted leave to file a second or successive petition in this Court. Petitioner may file a reply to any response of respondent no later than April 5, 2014; and

FURTHER, that the Clerk of the Court shall serve a copy of the petition, together with a copy of this order, electronically via a Notice of Electronic Filing to Alyson Gill and Arlene.Roces@ag.ny.gov> of the Office of the Attorney General, Federal Habeas Unit.

SO ORDERED.

JURISDICTION

This petition is being submitted to this court pursuant to Article 28 USC 2241(c)(3). The petitioner, by this proceeding, is not attacking and/or challenging the state court's conviction and/or judgment. It is petitioner's sole contention that he is being illegally detained and punished in the respondent's custody in violation of the 14th Amendment due process clause, to wit: "The respondent is detaining and punishing petitioner upon the authority of an order (warrant) of commitment that was not issued by the judge of the court, and such contains sentences and judgments that was imposed by the clerk of the court.'"

PROPER VENUE

Due to the fact that petitioner is presently unlawfully detained and being punished at the Elmira Correctional Facility which is located in the County of Chemung, the petition is properly made to this court (Western District).

EXHAUSTION REQUIREMENT(S)

Though not required to do so, the petitioner informs the court that the enclosed federal constitutional claims have been fully presented to the State administrative agents and the proper state courts.

OBJECTION(S)

From the gate the petitioner objects to any opposing and/or answering papers from the respondent and/or his attorney. During the State proceedings the respondent(s) failed to address and oppose "any" of petitioner's federal constitutional claims and arguments. In the event that the court direct an answer from the respondent(s), the petitioner will renew his objections once again at that time.

FACTS

October 15 , 1998 Sentencing Proceeding

1. On October 15, 1998 the petitioner was sentenced by the Monroe County Court Judge upon his convictions of two counts of Criminal Possession of a Weapon in the Second degree (N.Y. Penal Law 265.03) to an single indeterminate sentence of 7½ to 15 years and an indeterminate sentence of 3½ to 7 years upon the conviction of Criminal Possession of a Weapon in the Third degree (N.Y. Penal Law 265.02). The court ordered and directed that the two imposed sentences were to run concurrently with each other. (see exhibit "A" pages 26-27).

2. At the time of the October 15, 1998 sentencing proceeding the petitioner was serving an unrelated prison term of 10 to 20 years. The court during the October 15, 1998 sentencing proceeding directed that the two imposed (7½ to 15 and 3½ to 7) concurrent sentences were to run consecutive to the previously (10 to 20) imposed sentence. (see ex. "A" pages 26-27).

Recent Discovery. Order of Commitment

3. After being confined and serving his prison term for over approximately 14 years, the petitioner obtained a copy of the October 15, 1998 sentencing transcripts and a copy of the order of commitment. Upon reviewing such petitioner discovered that while it was clearly the October 15, 1998 sentencing judge intent to impose consecutive sentence upon the two separate criminal

possession of a weapon in the second degree convictions, the sentencing transcripts clearly demonstrate that the sentencing judge only imposed a single sentence upon both counts and failed to direct that said sentences were to be ran consecutive to each other. (see ex. "A" p. 26-27).

4. The order of commitment that was subsequently prepared the same day (October 15, 1998) by the clerk of the court outside the presence of the petitioner alleges and records that "two" separate indeterminate sentences of 7½ to 15 years was imposed upon "two" separate criminal possession of a weapon in the second degree offenses (convictions). The order of commitment further directs and orders the two purportedly imposed 7½ to 15 year sentences are "consecutive" to each other. (see exhibit "B").

Complaints And Grievances To Prison Officials

5. The petitioner, upon discovering that the order of commitment that he was being detained and punished upon did not reflect and/or record the orally pronounced sentence(s) of the October 15, 1998 judge, immediately by letter dated June 5, 2012 wrote to and informed the attorney in charge (Richard De Simone) that the calculation of petitioner's prison terms as being consecutive based upon the authority of the order of commitment was erroneous as well as unlawful and sought immediate correction of such.

6. By letter of response dated October 15, 2012, Ms. Diane Holford (Sentencing Review Coordinator) on behalf of Richard de Simone alleged that petitioner's prison calculation complied with the requirements of Penal Law 70. Ms. Holford, however, did not address the evident conflict between the written order of commitment and the orally pronounced sentence of the court.

7. Petitioner by subsequent letter of complaint dated June 11, 2012 wrote Ms. K. Rafferty the Inmate Records Coordinator at the Elmira Correctional Facility. By response letter dated June 21, 2012 Ms. D. Noyes (Inmate Records Coordinator) informed petitioner that DOCCS was bound by the order of commitment. She further informed petitioner that if he belived that the order of commitment or the sentence minutes were wrong that petitioner should write the court of conviction.

Commencement of State Court Action

8. Due to DOCCS agents not willing to perform their affirmative and constitutional duties the petitioner petitioned the Supreme Court of Albany County New York by way of an Article 78 Petition dated October 23, 2012 seeking an order compelling DOCCS to abide by and enforce both federal and state law which requires DOCCS to either inform the sentencing court of such errors (Correction Law 601-a) or calculate petitioner's sentences upon the orally pronounced sentence(s) as reflected in the sentencing transcripts. (numerous federal law omitted).

9. The attorney for DOCCS, Assistant Attorney General Kristen Quaresimo, submitted an answer dated January 25, 2013 purportedly opposing the petitioner's petition. Ms. Quaresimo in her opposing papers did not, as well as could not, deny the fact that the October 15, 1998 sentencing court did not impose two separate sentences upon the two separate second degree weapon convictions and that the court did not (as falsely alleged in the order of commitment) direct that the two purported terms were to run consecutive to each other.

Decision And Order of The Supreme Court

10. By Decision and Order dated March 9, 2013, the Albany County Supreme Court Justice Joseph C. Tersi dismissed appellant's petition. The court ruled that: "Here, petitioner failed to demonstrate that respondent erred in calculating his CPW 2nd convictions conseqcutively. Petitioner contends that the Commitment is incorrect, and that Respondent must calculate his sentence in accord with the minutes of his 1998 sentencing. It is well settled, however, that prison officials are conclusively bound by the contents of commitment papers accompanying a prisoner.' As such. Respondent's reliance on the Commitment is not arbitrary and capricious. It was wholly appropriate." The court went further to rule that: "Moreover, Petitioner's claim that a discrepancy exists between the sentencing minutes and the commitment order. must be raised before the sentencing court not in this CPLR Article 78 proceeding."

Appeal To The Supreme Court Appellate Division

11. The petitioner immediately appealed the erroneous decision and order of the Albany County Supreme Court to the Supreme Court Appellate Division Third Judicial Department.

The petitioner perfected and presented two arguments before the Appellate Division. Petitioner argued under Point One that: "New York State Correctional Personnel Are Constitutionally bound by the orally pronounced judgment of the court and the lower Article 78 Petition Court is bound by the Supremacy Clause of the United States Constitution." and Point Two that: "New York State Correctional officials as well as their legal representatives continues to intentionally disregard and defy federal orders and mandates which prohibits the detaining and punishing of a State prisoner upon the authority of an order of commitment which contains the sentence of a court clerk and/or an administrative personnel."

12. The Supreme Court Appellate Division Third Department by Decision and Order entered November 7, 2013 affirmed the lower court's decision and order. McCullough v. Richard DeSimone. ___ A.D.3d ___, (2013).

State Prison Officials And Courts Failed to Adress and/or Consider Federal Claims

13. Neither the State agents in their responding papers nor the State Courts in their decision and orders responded to or gave ruling upon petitioner's timely presented Federal Constitutional claims and arguments.

The petitioner clearly demonstrated by documentary proof and controlling Supreme Court precedents and federal law that petitioner cannot, constitutionally, be detained and punished upon the authority of an order of commitment which contains a sentence imposed by the clerk of the court. Hill v. United States ex rel. Wampler , 298 U.S. 460; Earley v. Murray , 451 F.3d 71 (2nd Cir 2006), Cert. den. 127 S.Ct. 3014; Scott v. Fischer , 616 F.3d 100 (2nd Cir); Sudler v. City of New York , 689 F.3d 159 (2nd Cir. 2012); Vincent v. Yelich , 718 F.3d 157 (2nd Cir. 2013); Bentley v. Dennison , 852 F.Supp.2d 379 (SDNY 2012); Locantore v. Hunt , 775 F.Supp.2d 680 (SDNY 2011); Hill v. Lance , 598 F.Supp.2d 371 (WDNY 2009); Willet v. Berbary , 456 F.Supp.2d 404 (WDNY).

14. Even New York State Law recognize the fact that a clerk of the court is not authorized to impose sentence not pronounced by the court in an order of commitment. Peo. v. Vasquez , 88 N.Y.2d 561 (1996) (Where court failed to direct the order that sentences were to run and clerk alleged in order of commitment that sentences were to run consecutively); Peo. v. Sparber , 10 N.Y.3d 457 (2008) (Stating that a clerk's notation upon the order of commitment does not satisfy the statutory demands of the orally pronounced sentence of the judge of the court); Peo. v. Curry , 50 A.D.3d 820 (2nd Dept. 2008) (Sentence of 5 years issued by the clerk in amended order of commitment void where court only imposed 3 years of Post Release Supervision); Peo. v. Duncan , 42 A.D.3d 470 (2nd Dept.).

15. When it comes to the issue of confinement and punishment of a prisoner, the law has been well established that, on federal due process level it is the orally pronounced sentence of the court as recorded in the sentencing records that gives prison officials legal authority to detain its prisoners. Wampler supra; Earley supra; U.S. v. A-Abras Inc. , 185 F.3d 26, 29 (2nd Cir.1999); U.S. v. Marquez , 506 F.2d 620, 622 (2nd Cir.1974); U.S. v. Carr , 557 F.3d 93 (2nd Cir. 2009); U.S. v. Rosario , 386 F.3d 166, 168-69).

16. Any and every State law or prison procedure(s) that is in conflict and/or at odds with the federal due process clause is unconstitutional. Earley v. Murray , 462 F.3d 147 (2nd Cir 2006) ("Whatever conceptualization respondent-appellee (DOCCS) has about the function of New York Penal Law Sections 70.00 and 70.45, they cannot operate to undermine protections contained in the Federal Constitution. As Wampler requires the custodial terms of sentences to be explicitly imposed by a judge, any practice to the contrary is simply unconstitutional and cannot be upheld."

17. New York State Courts have established by decisional case law that "prison officials are conclusively bound by the order of commitment accompanying the prisoner." Prison officials have interpreted such law to mean that they are bound to enforce the contents of the order of commitment even if such are erroneous and in evident conflict with the orally pronounced judgment of the judge of the court.

18. As in the petitioner's case state prison officials, even though they are in possession of the orally pronounced sentence of the court which clearly reveal that the court did not impose any consecutive sentence(s) upon the second degree weapons convictions, relies upon an unconstitutional practice and law to continue to detain and unlawfully punish the petitioner.

19. New York State prison officials are fully aware that they are constitutionally bound by federal court orders, decisions, and mandates pertaining to the detaining and punishing its prisoners. Moreover, the Supremacy Clause of the United States Constitution and Supreme Court and Orders from the Second Circuit Court of Appeals precludes state officials taking actions that violate the Federal Constitution and the rights of the prisoners, even if those actions are authorized or mandated by state law. Any reasonable high-ranking New York State Official would know that he or she is bound by decisions of the Second Circuit Court of Appeals and that the United States Constitution trumps any conflicting state law. Bentley v. Dennison , 852 F.Supp.2d 379 (S.D.N.Y. 2012). The Second Circuit Court of Appeals has just recently made clear once again and warning the state prison officials that "As a general matter, federal constitutional standards rather than state law define the requirements of procedural due process.... The fact that the State may have specified its own procedure that it may deem adequate for official action. does not settle what protection the federal due process clause requires." Vincent v. Yelich , 718 F.3d 157, 169 (2013).

20. While it is admirable that State prison officials seek to adhere to state court decisions and laws as they pertain to the detaining, calculating, and punishing a prisoner upon the authority of the order of commitment, however, as once again mandated by the Second Circuit Court of Appeals "States and local officials are required to comply not just with state law but with federal law as well." Vincent at 170.

CONCLUSION

New York State officials and their legal representatives continues to disregard and rebel against federal laws and mandates of the federal courts. Such defiance by state prison officials forces state prisoners to petition the federal courts for relief. Such is a total waste of time and resources. This matter could have been easily resolved if the state officials would have abided by established law(s).

The state prison officials as well as their legal representatives continues to demonstrate that they will not abide by nor adhere to the principles announced by the Supreme Court in Wampler and neither by the Second curcuit's mandates unless they are ordered to do so in a direct proceeding. The law is no respector of persons. The state and its agents are not free to disregard orders and mandates of the federal courts. If the state officials disagree with the federal orders and mandates which prohibits the unconstitutional detaining and punishing of its prisoners upon the authority of an order of commitment that contains sentences imposed by a Court Clerk and/or an Administrative personnel, they must appeal. Until such time, however, the state prison officials are constitutionally bound by the federal Constitution and mandates of the federal courts. see Maness v. Meyers , 419 U.S. 449, 458-460; Balter v. Regan , 63 N.Y.2d 630 cert. den. 469 U.S. 934.

RELIEF

From the face of the records it is clearly evident that the sentencing court on October 15 , 1998, though he intented to do so, did not order or direct that petitioner serve two consecutive 7½ to 15 years sentences upon the two second degree weapon offenses and convictions. (see ex. "A" p. 26-27).

The administrative clerk of the court did not possess jurisdiction and/or authority to cure the sentencing court's omission by including such consecutive sentence(s) and judgment(s) in the order of commitment. Petitioner has been held and punished upon the jurisdictionally defective order of commitment since October 15, 1998. The order of commitment, in the absence of being corrected by a court of record, is void and a nullity.

The state has refused to seek correction of the jurisdictionally defective commitment when brought to their attention by the petitioner. The state had an affirmative duty (Correction Law 601-a) to seek correction but continuously fail to do such. The state has no interest in seeing justice done in this matter.

Unconditional Discharge

The sentencing court negated to impose sentence upon each count of the indictment that petitioner was convicted upon. Such failure constiuted a violation of New York Criminal Procedure Law 380.20. It is to late in the hour for the court to correct its oral sentencing error (CPL 380.30, see also U.S. v. Ray , 578 F.3d 184; U.S. v. Paul , 634 F.3d 668 (2nd Cir. 2011); Peo. v. Drake , 61 N.Y.2d 359) due to the fact that petitioner has been detained and punished in the absence of a sentence on one of the convictions since 1998. Due process would prohibit such late correction of said sentencing error(s) and neglect.

To present date the petitioner has been incarcerated for approximately 16½ years. In the absence of the jurisdictionally defective order of commitment that contains judgment imposed by the court clerk, the petitioner has completed the minimum term of his unrelated indeterminate 10 to 20 year sentence by over 6 years, and has also completed and pasted his Conditional Release (good time) date upon the unrelated 10 to 20 year interminate prison term. The petitioner, upon this court's finding that the order of commitment that contains sentences and judgments that were imposed by the clerk of the court, would be entitled to "immediately discharge" from the respondent's custody.

Based upon all the enclosed facts and supporting laws, the petitioner pray that the petition be granted and that the court upon granting such direct petitioner's unconditional discharge from the respondents custody, and for all further relief as the court deems just and proper.

EXHIBIT "A"

MR. BERNSTEIN: Sir, you are Robert McCullough?

THE DEFENDANT: Yes, sir.

MR. BERNSTEIN: And you are with your attorney, Mr. David Murante?

THE DEFENDANT: Yes, sir.

MR. BERNSTEIN: Your Honor, I move this case for sentencing. I did have an opportunity to read the probation report of Cheryl Santore thoroughly reviewing that, and I would like to review with the Court a few of the facts of the case before I address this Defendant's lengthy criminal record. As the Court knows Officers Anthony DiFante and Wesley Brown saved the lives of three civilians of our community, Mr. Corey Minter and Mr. Jagdeep Drumgoole and a Mr. Turrell Wyatt, because of their courageous reaction to what was an explosive and deadly situation that only one person created according to the evidence according to what the jury believed in this particular case, and that is this Defendant that stands before you to be sentenced, Robert McCullough. They prevented this Defendant from taking those three individuals' lives. On the other hand there is sort of an ironic twist with this case. Officer Mariano bravely and courageously saved the life of this Defendant because the officer's work is to protect the community, not to ask questions about whether or not a particular civilian has a prior criminal record at the time that he is trying to protect that person's life, and that was done courageously in this case. The jury heard all the evidence in this case. Mr. Murante wanted the jury to believe that his client was shot by someone else other than the police during the course of trying to prevent this crime, the crimes that were being committed by his client. However, the jury found, no, that wasn't the case. They found that this Defendant unlawfully possessed that loaded weapon with the intent to use it unlawfully against two separate individuals by two separate and distinct conducts. In this case it's clear from the evidence that this Defendant went over to that Cadillac, pointed the gun at the window and ordered Corey Minter who was seated in the front passenger seat from that vehicle, and he dragged him out of that vehicle by his Cuban chain. The police officers interceded and protected him from his life being take by this Defendant. At the same time this Defendant on that occasion took that gun and he pointed it at Mr. Drumgoole. And in order for Mr. Drumgoole to extricate himself from that car the police assisted on that occasion by telling this Defendant to drop his gun. But this Defendant continued to fire and he fired in the direction of Mr. Drumgoole, and that is what the jury found and that was the theory of the People's case all the way through from Grand Jury presentation throughout the trial. And in fact, Your Honor, in our arguments, my responding motion arguments regarding the multiplicity of the counts that counsel was arguing, I stated that the Defendant grabbed Corey Minter from the parked Cadillac while pointing the handgun at him. Defendant fired in the direction of Jagdeep Drumgoole as he tried to extricate himself from the parked Cadillac. And just prior to those comments I indicated that the Defendant pointed the gun at Corey Minter and Jagdeep Drumgoole when he approached that vehicle. So, counsel during his summation, my recollection was to draw attention away from the Defendant firing at the police officers said that, ladies and gentlemen, my client was shooting at Mr. Drumgoole, not at the police officers. And of course counsel wanted them to believe it was self-defense. The jurors disavowed any self-defense. They said he had the intent, the intent to use that gun unlawfully against Mr. Drumgoole.

Now, turning to the Defendant's record, Your Honor has had an opportunity to know the Defendant well inasmuch as Your Honor presided over a serious trial, another violent trial for acts committed by this Defendant. January 20, 1997, this Defendant broke into two women's home, beat up both of them with a loaded weapon. He was convicted on I believe it was October 20, 1997, and you sentenced him to ten to twenty years. However, during the interim period of time between January 20, 1997, when he was out on bail, he made bail. Your Honor, did set bail and he was able to make that bail. He committed other violent crimes. He committed the crimes he is here to be sentenced upon on August 28, 1997, again, using deadly weapons. This Defendant has a prior conviction for possession of a loaded weapon other than the one I have just mentioned from January 20, 1997.

I know the Court has had an opportunity to read some of the letters of the police officers who acted so bravely and courageously in this situation. I again want to remind the Court that they are the protectors of the community and their letters speak to that aspect as protectors of the community. They were witnesses to a crime that unfolded in their presence. Officer Wesley Brown said that he had served in Desert Storm, the Desert Storm war, and he said, I knew I was expendable in the military but it was a choice I made to be willing to give my life for my country if need be so that the good people of our nation could maintain peace and democracy. And I am out serving my country on a smaller scale. And he asks as the protector of the community as a witness to the crimes that occurred in this particular case in their presence, in his capacity as protector of the community he asks to give this Defendant the maximum sentence allowable. Officer Anthony DiFante among many other comments, I know the Court has had an opportunity to read these letters, and so to continue he states as a police officer I live eight hours a day with other people's problems and tragedy. I protect and serve our community. And when I go home at night I do my best to leave that behind. Robert McCullough shares my dreams, my thoughts. These things are more difficult to leave behind. Again, these comments I state are only as protector of the community being offered to this Court as he was a witness to those crimes as they unfolded before him. And there were many other letters from loved ones that the Court has had an opportunity to read.

I submit I had an opportunity to read the presentence investigation report by Cheryl Santore. Your Honor, this Defendant is only twenty-seven years old. And when you chronicle his history in our community there is only one conclusion that you can have and that is that this Defendant is violent and a risk to this community. He has going all the way back to 1988, his first contact with the criminal justice system as an adult, and he continues to appear in October of '89. He got a break and pled down to Criminal Possession of a Weapon in the Fourth Degree. He was given a sentence of ninety days in the County Jail at that time to see if that could have any impact upon him and it has had no impact upon him, Your Honor. In addition this Defendant now is sentenced to ten to twenty years on the crimes that the Court presided over. The Court knows about his violent risk to this community. I reviewed counsel's November 13, 1998 letter to the Court relative to his interpretation of certain cases regarding consecutive sentences. I submit that the facts in the cases he cited are so disparate from the case we have here and his conclusions are so divergent from what the Court of Appeals have held that the Court should decline to follow his interpretation. The cases are clear and numerous and they have allowed consecutive sentences based on this type of case. The motion recently in People v. Bryant, July of 1992 , 92 N.Y.2d 216, there was a bank robbery that was tried in State Court where two individuals had two separate defaced firearms and they used them during the course of this particular robbery. Each one of them was charged as an accomplice to one another. So, they were charged with two separate counts of CPW 3 along with other charges. The court sentenced both of those defendants to consecutive sentences for the possession of those, Criminal Possession of a Weapon in the Third Degree, as to each gun. The court held that the consecutive sentences for the two counts of Criminal Possession of a Weapon in the Third Degree could be applied because of what they call the actus reus meaning bodily movement is different and the actus reus does not constitute in and among itself a statutory element of the other. In our case the actus reus, this Defendant intending to use that gun unlawfully against Corey Minter in one particular fashion was distinct and separate. He grabbed him out of the car and ordered him out of the car and held the gun to him, one distinct actus reus against this Defendant in relation to this gun. In addition to that there was a separate and distinct actus reus that this Defendant employed although it be the same gun against Mr. Drumgoole by pointing it at him and forcing him to extricate the car and firing at him as he did so. An actus reus in either of these particular offenses constitutes a statutory element of the other. In People v. Sumpter, and I have discussed these cases with counsel over the phone, 207 A.D.2d 605, the defendant fires two gunshots, each bullet killing a separate victim. The defendant fired in rapid succession and the shots were part of the same transaction. The court held that the defendant committed separate acts neither of which were a material element of the other. And they cite the case of People v. Brown , 80 N.Y.2d 361, and counsel cited that in his letter to the Court and that is also supportive of the concept of separate acts and distinct acts can be consecutive, consecutive sentences can be granted for those acts. People v. Laureano , 87 N.Y.2d 640, counsel refers to that as well in his letter and states that the statutory elements do overlap under either prong of the statute. The People may yet establish the legitimacy of separate sentencing showing that the acts or commissions by the Defendant were separate and distinct acts. And they cite People v. Brown. And People v. Brack , 670 N.Y.2d 898, which was a 1998 case, a defendant goes into a social club with two semiautomatics with intent to kill one particular drug rival that he knows is in the bar. He is in there and in the process of that one intent at that time to fire at him he shoots at eight different individuals. All eight of them were seriously wounded and eight counts of Attempted Murder in the Second Degree were charged. He was sentenced consecutively by the court as to each one of those and got six to twelve years. The court held that the fact that the defendant's mental state was the same for each of the Attempted Murder in the Second Degree charges is not determinative of the issue of whether consecutive sentences could be imposed. The test is not whether the criminal intent is one and the same in inspiring the whole transaction but rather whether separate acts were committed with the requisite criminal intent. In this case we have the requisite intent. Each attempt was nevertheless caused by this Defendant's affirmative acts of firing shots in the direction of each victim and in that case he had an affirmative act as to each of the victims separate and distinct. And in People v. Braithwaite, 63 NY2 839, there were two consecutive convictions for felony murder. The court granted two consecutive sentences and held that it was the same robbery which was the predicate for the two felony murder charges and that they occurred in a single expended transaction, a robbery. It was separate acts that caused the death of the owner and the clerk and neither is a material element of the other. And again the same analysis with People v. Ramirez , 89 N.Y.2d 444. There the court held that there were two security personnel that got out of their vehicle. The court said the intent for the robbery as to one of them, Mr. Donohue, was distinct from the life-threatening assault against the other, Mr. Bailey, and consecutive sentencing is permissible when the defendant's acts are distinguishable by culpable mental state, the nature, the manner of use, the time, the place and the victim, and they go back to citing People v. Brown. They want on to say here the violent, repeated shooting of Bailey was a separate and distinct act which was not a material element of the forcible theft of Mr. Donohue's gun and payroll bags. The fact that the crimes were temporally close in a single criminal episode is not dispositive. In People v. Daniels , 240 A.D.2d 590, this was June of '97, the defendant ordered three occupants in a car at gunpoint to surrender money. The court held that this was separate and distinct conduct from defendant's subsequent act of ordering one of the three of the occupants out of the truck and shooting him several times and killing him. So, Your Honor, I think the cases clearly and the case law shows that consecutive sentencings are appropriate. I would ask in the name of this community and in the name of the risk that this Defendant poses to this community and in the name of the victims in this particular case that the maximum sentence be imposed as to each count of Criminal Possession of a Weapon in the Second Degree that this Defendant was convicted for. I guess it is counts four and five. And I would ask the Court to impose that sentence of seven and a half to fifteen years consecutive to one another and also sentence the Defendant to the maximum period of time on the ninth count of Criminal Possession of a Weapon in the Third Degree as well, thank you, Your Honor.

THE COURT: Mr. Murante.

MR. MURANTE: Your Honor, before I begin let it be clear that I don't think anybody is questioning that these officers performed with valor and distinction. They are certainly a credit to the community and a credit to their families. My client was acquitted as to any misconduct toward those officers, and I am sure the Court will not include any part of its sentencing function that has to do with the allegations made in connection with those police officers. The jury found not that these police officers were incredible but merely the physical evidence did not support what they testified to at least beyond a reasonable doubt, and the verdict reflects that conclusion I submit quite accurately.

This indictment in selecting whether the counts can be sentenced consecutively or concurrent were drawn in a manner that would involve the unlawful possession of a weapon in connection with Mr. McCullough's possession of this weapon as the indictment reads while the two named individuals were in the vehicle. My client is not charged with unlawful use of that weapon. He is not charged with shooting at anybody. He is not charged with breaking into that car. All of those acts to the extent that they may have occurred or not occurred merely go to whether he was in possession of that weapon with intent to use it unlawfully. Respectfully to Mr. Bernstein who has done a fine job here, another way that that indictment should have been drawn perhaps with hindsight, sometimes it is easy to second guess, but if there were other allegations supported under the proof such as reckless endangerment in connection with firing in the direction of the police officers or Attempted Assault in the First Degree regarding Messrs. Drumgoole and Minter, then perhaps they should have been in the indictment. And if those acts were in the indictment this Court could probably consider consecutive sentences. One of the cases cited in counsel's oral presentation and contained in the written memorandum that I submitted to you and Mr. Bernstein is People v. Laureano that involved a manslaughter and a robbery. In those instances the Court of Appeals found that the sentence should have been concurrent rather than consecutive. Even the cases recited by Mr. Bernstein other than the bank robbery where the defendant was convicted of two counts of possession of a weapon in connection with the weapon he possessed and in connection with the weapon possessed by a co-defendant, each and every one of the cases cited by counsel at this time were convictions for possession of a weapon and some other substantive act involving the use of that particular weapon whether it be manslaughter. One of the cases cited two victims that was called Manslaughter in the First Degree and it was held and, yes, consecutive sentences are proper. Nowhere do you find a case that says that consecutive sentences are proper in connection with criminal possession of one weapon possessed with intent to use unlawfully during the course of one incident. It would be impossible to do so otherwise. How do you separate out which specific acts occurred during the course of an incident in connection with the Defendant's state of mind. And that's what we are talking about here. The indictment as I said reads that he possessed the weapon with intent to use it unlawfully while these two gentlemen sat in the car. That is what he was convicted of. As far as Mr. Drumgoole during the trial while he may have said something different in the Bill of Particulars the theory was always that there were six shots fired in connection with the immediate area of that vehicle on Joseph Avenue. There was testimony from one of the People's witnesses that three of those shots were fired into the car causing damage to the vehicle and presumably at least arguably three additional shots were fired across the street, two of which hit a Mazda where Officer Brown testified he was stationed during the course of this tragic incident. The People's theory throughout was that it was used unlawfully, that it was fired across the street to Officer Brown and also another count charges with reference to the third round, the other round toward Officer DiFante who was on the other side of the police vehicle. When you start splitting hairs as to when the gun was used and who it was used against where the only count in the indictment charges possession with intent to use unlawfully, and there are two counts involving two different individuals, you risk sentencing my client in a manner that penalizes him for crimes with which he wasn't charged. That is what the District Attorney is asking you to do, sentence him because he fired at Drumgoole, sentence him because he used a gun unlawfully against Minter unlawfully pulling him out of the car. The Court of Appeals have held and the Appellate Division Fourth Department which this Honorable Court is bound by has held that under such circumstances consecutive sentences are improper. It is exactly for the reasons stated that it is impossible to separate the charge in connection with the entire scenario presented during the course of the trial and that is especially so here. I would suggest by the indictment it is limited to the time these men were sitting in the car. In addition to the cases cited I mention the Murphy case , 115 A.D.2d 249. Murphy is where an individual enters a store and shoots one of the clerks and then turns the gun toward a girlfriend also in the car demanding the money which constituted robbery and two counts of Criminal Possession of a Weapon in the Second Degree. It was also a consecutive sentence on the weapons charges and was improper under the circumstances. In connection with the case cited by Mr. Bernstein, Sumpter which I believe involved a robbery, there were multiple robberies, possession of a gun. Again, the court held that consecutive sentences on the robbery was permissible. I think there was only one conviction of Criminal Possession of a Weapon in the Second Degree. The connection with the recent Court of Appeals case, consecutive sentences were proper but there were two guns involved, one of which was possessed by a co-defendant. The defendant was convicted of possessing the weapon he used in specific manners throughout the robbery and convicted as an accomplice or accessory in connection with the possession of the weapon by his co-defendant and the manner with which the co-defendant uses that weapon. Again, two weapons were involved. Interestingly enough, People v. Williams, 144 A.D.2d 1012, the use by one individual of a scissors and a knife, two weapons in the commission of a rape and sodomy, two separate sexual assaults on particular individuals, again, there was consecutive sentences. In connection with the possession of a weapon in the second degree, two counts, one for the scissors and one for the knife, it was held inappropriate. In another case more recent and decided in 1995, People v. Lane, Fourth Department, again, respectfully, Your Honor, you are not bound by many people because you lead the way in the community as far as scholarly decisions and interpretation of the law, Fourth Department, and if you have a superior that is it, 221 A.D.2d 948, multiple victims concerning the use of one single gun, three counts of possession of a weapon in the indictment, convictions of all three counts, the trial court sentenced consecutively. As held by our Appellate Division consecutive sentences were improper. The sentences should have run concurrently under the circumstances. Many of the cases cited by counsel deal quite frankly with use of the gun, possession of the gun with intent to possess unlawfully and a substantive actus reus with the use of the gun whether robbing somebody or shooting somebody, and that is the distinction that we have here. The charges are basically those two counts basically overlapping. The possession of the same gun in the same act creates and establishes the same two crimes. It is just classic under the law, I submit respectfully, that these counts should be sentenced concurrently. One of the reasons that I fear that we are here even arguing this point in connection with something, and I respectfully disagree with Mr. Bernstein, I trust his opinions when it comes to my welfare, but in this particular case because this shooting involved police officers who are present, and because this shooting involves a verdict which is contrary to what many people felt should have been the verdict, despite that I say as an objective professional who was here during the course of his summation, representing my client there are objective reasons that the jury came to their conclusion supported by the physical evidence and various other things presented during the course of this case. The verdict was proper. But that just doesn't justify because the people are upset about the verdict that we should twist the law to make it a harsher sentence. Very rarely during conversations did he mention Messrs. Drumgoole or Minter. And quite frankly they don't have a letter here from their families or themselves. The letters we have here are from the good police officers who did a fine job that night and those that support them, again, all good officers and outstanding citizens of this community. Again, while the emotional aspect of this case may cause one to lean toward consecutive sentences, the law is clear and I am here asking the Court respectfully to apply the law as it should be applied in connection with the conviction we have here of criminal possession of a weapon with intent to use unlawfully, and that's all we have here.

Now, with reference to appropriate sentence I ask the Court to use its discretion. Mr. Bernstein outlined my client's prior record. But many of the counts resulted in acquittal. The counts that remained of all the counts were I suggest the least onerous of all the counts. I would suggest respectfully that while incarceration is mandatory the circumstance in the verdict indicate something less than the maximum as required in connection with this case. Thank you for your time, Your Honor.

MR. BERNSTEIN: Your Honor, just in reply I think the crimes that this Defendant was convicted of as the Court well knows were not the least onerous. These were crimes. And one way you prove a Criminal Possession of a Weapon in the Second Degree and what the intent of a person is when they have a gun is by looking at what they do before, during and after the use and what they did before, during and after the possession of that gun. One of the ways you prove it is by his actually firing it. Although it is not an aspect you have to prove it is certainly appropriate to do that and that is certainly as the crime of Criminal Possession of a Weapon in the Second Degree even though he went beyond that and fired at an individual. So, I submit, Your Honor, it is clear that consecutive sentences are warranted under the law.

MR. MURANTE: If I could just respond. The Court has studied Pons and the recent decision. I don't have the cite. I am sure you know the cite and Mr. Bernstein. But Pons is a self-defense case and the Court did not charge self-defense even though there was some proof that my client may have been the initial aggressor. And because the jury did not apply self-defense they found absolutely that he wasn't a person subjected to initial aggression by one or more people in that vehicle which is something that we can argue for and we don't know because the counts of the indictment did not suggest any unlawful behavior other than directed toward the police officers for which there was an acquittal. It doesn't suggest or allege any unlawful behavior in connection with the use of that weapon and for that very reason self-defense is not generally allowed even though I thought it should be because of the specific nature of the indictment here where the District Attorney narrowed down the use of the weapon to a specific point in time, to wit, when these people were in the car, and directed to specific individuals as to that count. Drumgoole and Minter are not here. Pons talks about the possession of the weapon during the continuum of time during the actual use of it. And Pons as it doesn't stand for this proposition makes it clear that this proposition is appropriate. The possession with intent to use has nothing to do with whether the individual used it. As Mr. Bernstein said it is not an element. That is something you may have looked to if he intended to use it unlawfully whether that is the case. But whether the individual actually uses the gun or not is irrelevant to establishing this crime.

MR. BERNSTEIN: That is how you prove it is a separate and distinct act as to Mr. Drumgoole and that is why you can prove the intent in this case. I submit that the jury and I submit counsel in his summation said my client was firing at Mr. Drumgoole, he wasn't firing at the police officers. He wanted to exonerate his client by arguing that. I submit, Your Honor, there is more than ample proof before that jury to support that conviction and ample law to support a consecutive sentence which I respectfully request the Court to sentence him to consecutive sentences.

MR. MURANTE: If I may get to respond.

THE COURT: Please do.

MR. MURANTE: That summation was made in connection with the theory that my client was not the initial aggressor or what was going on was him defending himself from perhaps being shot at by Mr. Drumgoole. But, again, I suggest that what he did with that gun that it may be evidence, counsel is saying it is evidence. It is evidence but it is not an element of the crime. And in response to what he said as I recall there is an assumption of law that if you possess that gun it is presumed to be used with intent to use unlawfully. What this jury hung its hat on the Court does not know. To sentence him for what he did during the continuum of time when he possessed that gun by using consecutive sentences here would be inappropriate and subject my client to double jeopardy. That is the thrust of the written memorandum we submitted and I know counsel disagrees. Thank you for your time, Your Honor.

THE COURT: I appreciate the cases submitted by both the People and the Defense. This Court of course is bound by the Fourth Department, Mr. Murante, but I think that those cases have been submitted and the Court can legally sentence Mr. McCullough consecutively.

Mr. McCullough, the law gives you the right to speak prior to sentence. Is there anything you want to say?

THE DEFENDANT: I wish you would follow our laws as Mr. Murante stated. That is all, Your Honor.

THE COURT: Mr. McCullough, you were charged with three counts of aggravated assault on a police officer, attempted assault on a police officer for firing at two police officers. And you were charged with two counts of Criminal Possession of a Weapon in the Second Degree for firing your handgun at two individuals, and you were charged with one count of Criminal Possession of a Weapon in the Third Degree. The jury acquitted you of the three counts of attempted aggravated assault upon a police officer. As indicated despite the verdict the police officers believe they were fired upon and they sent the letters that were referred to by Mr. Bernstein to this Court. They describe very graphically the terror they felt at being fired at, and the interesting comments by Officer Brown that he thought he was expendable when he served in the military but he doesn't want to be expendable as a police officer, and another interesting comment in a letter to the effect that a police officer who believes his fellow officers have been fired upon nevertheless saved your life by stopping you from bleeding from the injuries you received.

THE DEFENDANT: I was acquitted on all those charges.

THE COURT: I said that, Mr. McCullough.

THE DEFENDANT: Okay, Your Honor.

THE COURT: As indicated by Mr. Bernstein there is a prior conviction for Burglary in the First Degree and Assault in the Second Degree when you broke down a door to an apartment and assaulted two females by striking them with your handgun. These crimes and the crimes you are recently convicted of indicate you have a propensity to commit violent acts and represent a threat to the community.

Mr. McCullough, upon your conviction then for the crime of Criminal Possession of a Weapon in the Second Degree it is the judgment of the Court that you be sentenced to an indeterminate sentence of imprisonment which shall have a maximum term of fifteen years and a minimum period of imprisonment of seven and one-half years, that you be committed to the custody of the New York State Department of Correctional Services and that you be delivered to the Wende Correctional Facility, there to be dealt with in accordance with the laws pertaining to your sentence. It is the further judgment of this Court that this sentence be served consecutively. Upon your conviction for Criminal Possession of a Weapon in the Third Degree it is the judgment of this Court that you be sentenced to an indeterminate sentence of imprisonment which shall have a maximum of seven years and a minimum period of three and one-half years, and that you be committed to the custody of the New York State Department of Correctional Services and be delivered to the Wende Correctional Facility, there to be dealt with in accordance with the laws pertaining to your sentence. It is the further judgment of this Court that this sentence be served concurrently. These sentences just imposed will be consecutive to the sentence previously imposed by this Court. And I find upon your conviction of Assault in the First Degree and Assault in the Second Degree you are also to pay a surcharge of $155.00. I advise you, that you have thirty days from this date to appeal this conviction and sentence.

MR. MURANTE: Exception respectfully, thank you very much.

MR. BERNSTEIN: Thank you, Your Honor.

EXHIBIT "B"


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