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Cimino v. Conway

United States District Court, W.D. New York

February 27, 2017

RAYMOND CIMINO, Petitioner,
v.
JAMES T. CONWAY, Superintendent, Attica Correctional Facility, Respondent.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Represented by counsel, Raymond Cimino (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being unconstitutionally detained in Respondent's custody pursuant to an illegally enhanced sentence.

         II. Factual Background and Procedural History

         A. The Underlying Conviction and Persistent Felony Offender Application

         Following a jury trial in Monroe County Supreme Court (Mark, J.), a verdict was returned on July 31, 2002, convicting Petitioner of two counts of attempted aggravated assault on a police officer (New York Penal Law (“P.L.”) §§ 110.00, 120.11) and three counts of first-degree reckless endangerment (Id. § 120.25), as charged in Indictment #0569/2001.

         B. The Persistent Felony Offender Hearing

         The prosecution subsequently filed an application requesting that the trial court exercise its discretion to find that Petitioner was a persistent felony offender (“PFO”) pursuant to New York Penal Law (“P.L.”) § 70.10. At the hearing[1] on October 25, 2002, the prosecution offered proof of five predicate felony convictions: an April 25, 1980 conviction in Monroe County Court for Attempted Burglary in the Third Degree for which he was sentenced to 1 year in Monroe County Jail; an April 9, 1991 conviction in Monroe County Court for Burglary in the Third Degree for which he was sentenced to 2 to 4 years “DOC” (i.e., state prison); an October 18, 1991 conviction in Erie County Court for Burglary in the Third Degree for which he was sentenced to 11/3 to 4 years in state prison; a February 2, 2000 conviction in Monroe County Court for Criminal Possession of Stolen Property in the Fourth Degree for which he was sentenced to 11/2 to 3 years in state prison; and a November 30, 2000 conviction for Grand Larceny in the Fourth Degree in Monroe County Court for which he was sentenced to 2 to 4 years in state prison. (See Persistent Felony Offender Information;[2] H.8-9).[3]

         On November 7, 2002, at the conclusion of the PFO hearing, Justice Mark issued a ruling on the record, finding that Petitioner “is adjudicated a [PFO] based on his [having] at least five prior felony convictions and his conviction for the present five felonies. . . .” At sentencing on November 7, 2002, Justice Mark sentenced him to 16 years to life on the attempted aggravated assault convictions, and 10 to 12 years on the first-degree reckless endangerment convictions, those sentences to be served concurrently.

         On November 8, 2002, the parties appeared before Justice Mark again, who noted that they had utilized the incorrect sentencing scheme, resulting in an illegal sentence. Accordingly, Justice Mark issued a corrected sentence, consisting of 15 years to life on each of the five convictions, those sentences to be served concurrently.

         C. The First Four Motions to Vacate and the Direct Appeal

         Prior to perfecting his direct appeal, Petitioner filed three pro se motions to vacate the conviction pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10, all of which were unsuccessful.

         On March 14, 2008, The Appellate Division, Fourth Department, unanimously affirmed the conviction, and leave to appeal to the New York Court of Appeals was denied. See People v. Cimino, 49 A.D.3d 1155 (4th Dep't), lv. denied, 10 N.Y.3d 861 (2008).

         Petitioner then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was denied by this Court on March 2, 2011. See Cimino v. Conway, No. 08-CV-6318 (MAT), 2011 WL 815677 (W.D.N.Y. Mar. 2, 2011), cert. denied sub nom., Cimino v. Bradt, 132 S.Ct. 1716 (2012).

         In December of 2012, while Petitioner's petition for certiorari was pending before the United States Supreme Court, he filed his fourth C.P.L. § 440.10 motion. The Monroe County Supreme Court (Renzi, J.) denied the motion on February 24, 2013.

         D. The Fifth Motion to Vacate

         On November 8, 2013, Petitioner filed his fifth pro se motion to vacate in Monroe County Supreme Court (Renzi, J.), seeking to have his PFO sentence set aside under C.P.L. § 440.20. According to Petitioner, at the time of his sentencing in 2002, he did not have at least two prior felony convictions for which sentences of imprisonment in excess of one year were imposed, contrary to the requirements of P.L. § 70.10. In particular, Petitioner maintained that his Monroe County Court convictions for Criminal Possession of Stolen Property in the Fourth Degree and Grand Larceny in the Fourth Degree each resulted in Petitioner being sentenced to the Willard Campus drug treatment program, from which he was released to parole before serving one year. Therefore, Petitioner argued, Justice Mark's use of the 2000 convictions in connection with the PFO adjudication was improper.

         Justice Renzi noted that New York state courts have consistently held that for purposes of Section 70.10, “it is immaterial whether a defendant actually served a sentence in excess of one year.” February 24, 2015 Order Denying C.P.L. § 440.20 Motion (“2/24/15 Order”) at 3 (collecting cases). Therefore, Justice Renzi found, even though Petitioner “apparently served less than one year on his 2000 convictions due to his placement in the Willard drug treatment program, there is no question he was sentenced to terms in excess of one year (11/2 to three years on February 2, 2000, and 2 to 4 years on November 30, 2000, respectively).” (2/24/14 Order at 3). Justice Renzi noted that Petitioner violated his parole in June 2000, following his “first [Willard] sentence”, and received his “second Willard sentence in November 2000.” (2/24/14 Order at 4). Nevertheless, Justice Renzi found, “each sentence imposed was in excess of one year.” (Id.). To the extent that Petitioner argued that he was “not incarcerated in a prison facility for either sentence in 2000 prior to his arrest for the offenses underlying this motion. . ., and that those felonies do not count for persistent felony purposes, ” Justice Renzi rejected that argument because New York courts have “interpreted the legislative intent behind . . . P.L. § 70.10 . . . as not precluding the use of sentences which exceed one year, but which are comprised primarily of a drug-treatment or reformatory component.” (Id.) (collecting cases)).

         E. The March 13, 2014 Vacatur of the 2000 Fourth-Degree Grand Larceny Conviction

         In 2013, Petitioner moved for vacatur of his 2000 fourth-degree grand larceny conviction in Monroe County Court on the ground that it was illegal to sentence him to the Willard Drug Treatment Campus because he had already participated in the program and did not qualify for admission to the ...


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