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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 226
The People &c.,
Respondent,
v.
Dwight Giles,
Appellant.
-----------------------
No. 227
The People &c.,
Respondent,
v.
Sean Hawkins,
Appellant.
Case No. 226:
Jan Hoth, for appellant.
Sheryl Feldman, for respondent.
Case No. 227:
Michael W. Warren, for appellant.
Sholom J. Twersky, for respondent.
MEMORANDUM:
In People v Giles, the order of the Appellate Division
should be affirmed. In People v Hawkins, the order of the
Appellate Term should be affirmed.
Defendants' motions to set aside the verdict pursuant
to CPL 330.30 (1) were procedurally improper because they were
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- 2 - No. 226 & 227
premised on matters outside the existing trial record, and CPL
330.30 (1) did not permit defendants to expand the record to
include matters that did not "appear[ ] in the record" prior to
the filing of the motions (CPL 330.30 [1]). We express no
opinion on whether a trial court has the authority to consider a
CPL 330.30 (1) motion as a premature de facto CPL 440.10 motion
in certain cases because defendants here did not ask the trial
courts to consider their motions as such, and in each case, the
trial court neither deemed the motion to be a premature CPL
440.10 motion nor decided the motion in accordance with the
criteria and procedures delineated in CPL 440.30 (cf. People v
Wolf, 98 NY2d 105, 118-119 [2002]). In People v Giles,
defendant's challenge to the constitutionality of his sentencing
as a persistent felony offender is without merit (see People v
Bell, 15 NY3d 935, 936 [2010]; People v Battles, 16 NY3d 54, 59
[2010]; People v Quinones, 12 NY3d 116, 129-130 [2009]).
- 2 -
People v Dwight Giles, People v Sean Hawkins
Nos. 226 and 227
SMITH, J. (concurring):
I join the majority memorandum, and add some comments
on each case.
I
In People v Hawkins, I agree with Judge Pigott that a
court has power, in a proper case, to entertain a motion under
CPL 440.10 even where the motion is made before the entry of
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- 2 - Nos. 226 and 227
judgment -- i.e., to overlook the technical defect that the
motion is premature. I agree with the majority, however, that
the motion in Hawkins cannot be treated as a CPL 440.10 motion,
because the proper procedures were not followed.
II
The main purpose of this concurrence is to respond to
Judge Abdus-Salaam's dissenting opinion in People v Giles.
A
In Apprendi v New Jersey (530 US 466 [2000]) and a
number of later cases, the United States Supreme Court held that,
under the Due Process Clause of the Fourteenth Amendment to the
federal Constitution, a defendant's sentence may not be enhanced
beyond what would otherwise be its maximum term on the basis of
facts that are not found by a jury beyond a reasonable doubt.
One exception has been recognized: under Almendarez-Torres v
United States (523 US 224 [1998]), a case left undisturbed by
Apprendi (530 US at 489-490) and never subsequently overruled,
"the fact of a prior conviction" may be found by a judge
(Apprendi, 530 US at 490).
In People v Rosen (96 NY2d 329, 335 [2001]) we
interpreted New York's persistent felony offender statute (PFO
statute) to make prior convictions "the sole determinate" of
whether a defendant is eligible for enhanced sentencing. We
reaffirmed and explained the holding of Rosen in People v Rivera
(5 NY3d 61 [2005]) and People v Quinones (12 NY3d 116, 122-131
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- 3 - Nos. 226 and 227
[2009]) (see also People v Battles, 16 NY3d 54, 59 [2010]; People
v Bell, 15 NY3d 935, 936 [2010]).
It seems to me that the statute as we have interpreted
it is unquestionably valid under Apprendi and Almendarez-Torres.
Indeed, an en banc panel of the United States Court of Appeals
for the Second Circuit has unanimously agreed that the statute is
constitutional on its face (Portalatin v Graham, 624 F3d 69 [2d
Cir 2010]; see id. at 100 [Winter, J., dissenting]). Whether we
correctly interpreted the statute in Rosen and later cases is a
different question. I admit that that question -- one of New
York, not federal, law -- is fairly debatable, but I am somewhat
puzzled that the debate continues after all these decisions and
all these years.
B
The substantive part of the PFO statute is found in
section 70.10 of the Penal Law. A persistent felony offender is
defined as anyone (other than a persistent violent felony
offender, see Penal Law § 70.08), "who stands convicted of a
felony after having previously been convicted of two or more
felonies" (Penal Law § 70.10 [1] [a]). Penal Law § 70.10 (2)
authorizes a court that has found a person to be a persistent
felony offender to impose the sentence authorized for a class A-I
felony when the court "is of the opinion that the history and
character of the defendant and the nature and circumstances of
his criminal conduct indicate that extended incarceration and
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- 4 - Nos. 226 and 227
life-time supervision will best serve the public interest."
The PFO statute also includes procedural provisions,
contained both in the Penal Law and in the Criminal Procedure
Law. Under CPL 400.20, an enhanced sentence may not be imposed
unless, "based upon evidence in the record of a hearing pursuant
to this section," the court has found that the defendant is a
persistent felony offender and "is of the opinion" contemplated
by Penal Law § 70.10 as to defendant's history and character and
the nature and circumstances of his conduct (CPL 400.20 [1]). In
directing a hearing, the court must annex to and file with its
order the dates and places of the convictions that render the
defendant a persistent felony offender and "[t]he factors in the
defendant's background and prior criminal conduct which the court
deems relevant for the purposes of sentencing the defendant as a
persistent felony offender" (CPL 400.20 [3]). The burden of
proof at the hearing is on the People (CPL 400.20 [5]).
Defendant's status as a persistent felony offender must be proved
beyond a reasonable doubt, but "[m]atters pertaining to the
defendant's history and character and the nature and circumstance
of his criminal conduct may be established by any relevant
evidence . . . and the standard of proof with respect to such
matters shall be a preponderance of the evidence" (id.). If the
court chooses the enhanced sentence "the reasons for the court's
opinion shall be set forth in the record" (Penal Law § 70.10
[2]).
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- 5 - Nos. 226 and 227
If the PFO statute were read -- as it could be -- to
mean that a court may impose an enhanced sentence only after it
has found, in a non-jury proceeding, facts "pertaining to the
defendant's history and character and the nature and
circumstances of his criminal conduct," it would raise serious
problems under Apprendi. Mindful of our obligation to adopt,
where possible, an interpretation that renders a statute
constitutional, we held in Rosen, and have several times
reaffirmed, that that is not what the statute means. We said in
Rosen:
"It is clear from the . . .
statutory framework that the prior
felony convictions are the sole
determinate of whether a defendant
is subject to enhanced sentencing
as a persistent felony offender.
Then, the court must consider other
enumerated factors to determine
whether it 'is of the opinion that
a persistent felony offender
sentence is warranted' (CPL 400.20
[9]). As to the latter, the
sentencing court is thus only
fulfilling its traditional role --
giving due consideration to
agreed-upon factors -- in
determining an appropriate sentence
within the permissible statutory
range."
(96 NY2d at 335.)
In Rivera, we explained and expanded on Rosen's
holding:
"We could have decided Rosen
differently by reading the statutes
to require judicial factfinding as
to the defendant's character and
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- 6 - Nos. 226 and 227
criminal acts before he became
eligible for a persistent felony
offender sentence. If we had
construed the statutes to require
the court to find additional facts
about the defendant before imposing
a recidivism sentence, the statutes
would violate Apprendi. But we did
not read the law that way. Under
our interpretation of the relevant
statutes, defendants are eligible
for persistent felony offender
sentencing based solely on whether
they had two prior felony
convictions. Thus, as we held in
Rosen, no further findings are
required."
(5 NY3d at 67.)
Once again in Quinones, responding to an argument that
the PFO statute was unconstitutional under Cunningham v
California (549 US 270 [2007]), we said:
"[D]efendant argues that New York's
discretionary persistent felony
offender sentencing scheme suffers
from the same constitutional
infirmity as [the California
statute in Cunningham] because the
'higher persistent felony offender
range cannot be imposed without the
judicially-found fact that the
"nature and circumstances" of the
criminal conduct and the "history
and character" of the defendant
warrant lifetime supervision in the
public interest.' Defendant's view
of New York's sentencing scheme is
inaccurate."
***
"New York's sentencing scheme . . .
is a recidivist sentencing scheme.
That is, under New York's scheme, a
defendant is subject to an enhanced
sentence based solely on the
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- 7 - Nos. 226 and 227
existence of two prior felony
convictions. . . . [I]t is only
after a defendant's eligibility for
an enhanced sentence is determined
that a judge is given the
discretion to choose the
appropriate sentence within a
sentencing range prescribed by
statute."
(12 NY3d at 125, 128-129.)
In short, as we have read the PFO statute, it might as
well say: "A defendant with two prior felonies may, in the
court's discretion, be sentenced as provided by law for a class
A-I felony. In exercising its discretion, the court shall take
into account such facts as it deems relevant pertaining to the
defendant's history and character and the nature and
circumstances of his criminal conduct." Such a statute poses no
arguable problem under Apprendi. It enhances the statutory
maximum solely on the basis of prior convictions, as
Almendarez-Torres permits, and allows the sentencing judge to do
what sentencing judges normally do -- to choose, in his or her
discretion, a sentence equal to or less than the statutory
maximum. Perhaps it is unusual to require, as the PFO statute
does, that the court conduct an evidentiary hearing, governed by
specified burdens of proof, to find the facts that it deems
relevant to the exercise of its discretion, and to set forth the
reasons for its discretionary decision on the record. But these
requirements, unusual or not, are not unconstitutional.
The decision of the Second Circuit in Portalatin
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- 8 - Nos. 226 and 227
confirms that the constitutionality of the PFO statute as we have
interpreted it is beyond fair doubt. In Portalatin, the en banc
court, by a vote of 9-3, vacated the previous opinion of a three
judge panel (Besser v Walsh, 601 F3d 163 [2d Cir 2010]) and
denied the habeas corpus petitions of three New York prisoners
who claimed that their sentences under the PFO statute violated
Apprendi. For present purposes, what I find most significant in
Portalatin is that all 12 judges agreed on the facial
constitutionality of the statute. While Besser, the panel
opinion, can be read as holding the PFO statute unconstitutional
on its face, the Portalatin dissenters (including two of the
three judges who decided Besser) conceded that any such holding
would be incorrect. Judge Winter said:
"my colleagues have successfully
defended the PFO statute against a
facial attack by showing that the
predicate felonies may alone
justify a Class A-I sentence"
(624 F3d at 100 [dissenting opinion]).
The Portalatin dissenters disagreed with the majority
only as to whether the statute had been unconstitutionally
applied to the cases before them (see id. at 95).
In short, Rosen and later cases interpret the PFO
statute in a way that eliminates any serious question about its
constitutionality under Apprendi. Whether we were correct as a
matter of New York law to adopt that interpretation is a
different, and fairly debatable, question. Certainly, in
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- 9 - Nos. 226 and 227
choosing that interpretation, we were influenced, as we should
be, by a desire to save the constitutionality of the statute (see
McKinney's Cons. Laws of N.Y., Book 1, Statutes § 150; Tauza v
Susquehanna Coal Co., 220 NY 259, 267 [1917] [Cardozo, J.,
quoting United States v Jin Fuey Moy, 241 US 394, 401 [1916] ["A
statute must be construed, if fairly possible, so as to avoid not
only the conclusion that it is unconstitutional, but also grave
doubts upon that score"]). I think we were right.
It is possible, however, to argue that we went too far,
and did not merely interpret the statute but rewrote it in order
to save it (see Shechtman, Is Persistent Felony Offender Statute
Constitutional?, New York Law Journal [January 4, 2011]).
Essentially this argument has been ably made by three dissenting
Judges in two of our prior cases (see Rivera, 5 NY3d at 71-76
[Kaye, C.J., dissenting]; id. at 76-83 [Ciparick, J.,
dissenting]; Battles, 16 NY3d at 59-68 [Lippman, C.J.,
dissenting]), and it is ably made again by Judge Abdus-Salaam
today. But I respectfully suggest that, at this late date, the
question should be considered settled.
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People of the State of New York v Dwight Giles
No. 226
People of the State of New York v Sean Hawkins
No. 227
ABDUS-SALAAM, J. (concurring in People v Hawkins, concurring in
part and dissenting in part in People v Giles):
As the Court correctly disposes of defendants' post-
verdict motions in these cases, I concur with its memorandum
decision in full in People v Hawkins and in part in People v
Giles. In Giles, I dissent from the Court's decision to uphold
defendant's sentence because the trial court made additional fact
findings essential to elevate defendant's punishment beyond the
maximum authorized by the jury's verdict, in violation of the
United States Supreme Court's Apprendi line of cases (see
Apprendi v New Jersey, 530 US 466, 490 [2000]).
Under the familiar Apprendi rule, "[a]ny fact (other
than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt" (United
States v Booker, 543 US 220, 244 [2005]; see Apprendi, 530 US at
490). Therefore, where a sentencing statute places a defendant
in an entirely different sentencing range based on certain facts,
those facts, other than the existence of a prior conviction, must
be found by the jury rather than the judge (see Cunningham v
California, 549 US 270, 275 [2007]; Booker, 543 US at 234-244).
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- 2 - No. 226 & 227
But once the jury has found the facts that place the defendant
within a particular statutory sentencing range, the court may
exercise its traditional discretion to fashion a particular
sentence within the range based on a variety of factual
considerations related to the defendant's background and crimes
(see Southern Union Co. v United States, __US__, 132 S Ct 2344,
2353 [2012]; Cunningham, 549 US at 288-293).
Under Penal Law § 70.10 and CPL 400.20, a court must
make two findings of fact before it can impose a sentence within
the heightened range specified for persistent felony offenders.
First, the court must find, pursuant to the procedures laid out
in CPL 400.20, that the defendant "is a persistent felony
offender" because he or she "stands convicted of a felony after
having previously been convicted of two or more felonies" (Penal
Law § 70.10 [1] [a]; see Penal Law § 70.10 [2]; CPL 400.20 [1]).
"[A]nd," second, the court must be "of the opinion that the
history and character of the defendant and the nature and
circumstances of his criminal conduct indicate that extended
incarceration and life-time supervision will best serve the
public interest" (Penal Law § 70.10 [2]; see CPL 400.20 [1]). To
reach the essential and self-evidently fact-driven "opinion," the
court "must then make such findings of fact as it deems relevant
to the question of whether a persistent felony offender sentence
is warranted" (CPL 400.20 [9]). The People need only prove the
existence of the aggravating background and circumstances factors
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- 3 - No. 226 & 227
by a preponderance of the evidence (see CPL 400.20 [5]).
This recitation of the statutory terms suffices to show
that the relevant statutes violate the Apprendi rule. Although
the first essential finding of the existence of the defendant's
prior convictions is not subject to Apprendi's prohibition (see
Booker, 543 US at 244; Almendarez-Torres v United States, 523 US
224, 239-247 [1998]), Apprendi and its progeny bar the sentencing
judge from making the second requisite finding that the
defendant's character, history and criminal conduct warrant
enhanced sentencing. Because neither a jury verdict nor a guilty
plea encompasses the second fact finding that is a prerequisite
to punishment under an elevated statutory sentencing range, the
persistent felony offender sentencing statutes improperly require
a judge, as opposed to a jury, to find additional facts essential
to the defendant's punishment beyond the maximum authorized by a
guilty verdict or plea. On its face, then, the persistent felony
offender sentencing scheme violates the Apprendi rule, and those
who, like defendant Giles, are sentenced under that scheme are
entitled to vacatur of their sentences.
I acknowledge that we have consistently rejected
Apprendi challenges to the statutes at issue, basically reasoning
that the statutes do not make a judicial fact finding about the
defendant's character and background a prerequisite for enhanced
sentencing but rather entail a mere exercise of traditional
judicial discretion to place the defendant within a single broad
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- 4 - No. 226 & 227
sentencing range authorized solely by his or her prior felonies
(see People v Rivera, 5 NY3d 61, 69 [2005]; People v Rosen, 96
NY2d 329, 334-336 [2001]). But as explained in detail by the
partial dissent in People v Battles (16 NY3d 54 [2010]), that
interpretation of the New York sentencing regime is no more able
to shield it from constitutional challenge than was the
California courts' dubious interpretation of the sentencing
scheme invalidated by the Supreme Court in California v
Cunningham, supra (see Battles, 16 NY3d at 62-68 [Lippman, C.J.,
dissenting in part]).
Indeed, that is so because the rationale for our prior
decisions in this area largely proceeds from a flawed assumption
clearly rejected by the Supreme Court in Cunningham. Under that
assumption, the sentencing court supposedly does not unlawfully
increase the defendant's maximum punishment by selecting a
heightened sentencing range based on facts other than the
existence of the defendant's prior and current convictions
instead of choosing a sentencing range based solely on the
aforementioned convictions. In either case, the argument goes,
the court is really just making a discretionary choice of where
to sentence the defendant within a single expanded range
encompassing both the range authorized by the convictions and the
one authorized by the additional facts (see id.; see also
Cunningham, 549 US at 289-293). As the Supreme Court and the
Battles dissent observed, this theory does not withstand close
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- 5 - No. 226 & 227
scrutiny because the relevant statutory maximum authorized by the
jury's verdict and the defendant's convictions remains distinct
from the one authorized by the supposedly discretionary judicial
fact findings, and "broad discretion to decide what facts may
support an enhanced sentence, or to determine whether an enhanced
sentence is warranted in any particular case, does not shield a
sentencing system from the force of [the Supreme Court's]
decisions" (Cunningham, 549 US at 290]; see Battles, 16 NY3d at
66-68).
Aside from relying on the discredited rationale
espoused in People v Rosen and People v Rivera, we maintained in
People v Quinones (12 NY3d 116 [2009]) that:
"[u]nlike the sentencing schemes in Apprendi,
Ring, Blakely, Booker and Cunningham, all of
which effectively provided for judicial
fact-finding of an element(s) of an offense
as a prerequisite to enhancing a sentence
beyond the relevant sentencing range, the New
York sentencing scheme, after a defendant is
deemed eligible to be sentenced as a
persistent felony offender, requires that the
sentencing court make a qualitative judgment
about, among other things, the defendant's
criminal history and the circumstances
surrounding a particular offense in order to
determine whether an enhanced sentence, under
the statutorily prescribed sentencing range,
is warranted." (Quinones, 12 NY3d at 130
[emphasis added]).
But whatever the merit of this elements-related rationale at the
time we decided Quinones and, later, Battles, the Supreme Court
has recently rejected it and emphasized that a jury, rather than
a judge, must find any fact necessary to increase the defendant's
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- 6 - No. 226 & 227
punishment beyond the maximum authorized by a jury verdict or
guilty plea, whether or not the fact in question is deemed an
essential element of the relevant offense (see Southern Union
Co., 132 S Ct at 2356). Specifically, in Southern Union Co. v
United States, supra, the Court rebuffed the government's
argument that Apprendi barred only a judicial finding of separate
wrongful acts deserving of punishment and not findings of facts
that merely quantify the harm caused by the offense found by the
jury, as the Court concluded that there is no "constitutionally
significant difference between a fact that is an 'element' of the
offense and one that is a 'sentencing factor'" (id. at 2356).
Thus, taken together, Cunningham and Southern Union have
demolished the two central pillars of our decisions in Battles
and its predecessors.
As federal law has evolved, our Apprendi precedents
have devolved into hollow and discredited words supporting a
clearly unconstitutional sentencing framework. Therefore, in
People v Giles, I would annul the relevant Penal Law and CPL
provisions requiring the sentencing court to make fact findings
about defendant's history, his character and the nature of his
criminal conduct, vacate defendant's sentence and remit to
Supreme Court for resentencing.
- 6 -
People v Sean Hawkins
No. 227
PIGOTT, J.(dissenting):
After a bench trial, defendant was found guilty of 10
counts each of sexual abuse in the second degree and sexual abuse
in the third degree and one count of endangering the welfare of a
child. Prior to being sentenced, defendant moved to set aside
his verdict on the ground that he was denied the right to a
public trial. His motion was supported by affirmations of two
attorneys, who averred that they had attempted to enter the
courtroom during the proceedings but observed a "Do Not Enter"
sign posted on the courtroom door, and thus could not enter. One
of the attorneys further alleged that he had been stopped by a
court officer and told not to enter the courtroom. The People
opposed the motion by way of an attorney affirmation, arguing
that the courtroom was always open, and, alternatively, sought a
hearing on the matter.
Criminal Court granted the motion, finding that it was
"clear that the [Do Not Enter] sign was posted." It noted that
"signs of this nature are routinely posted by court staff, and
there is nothing to suggest otherwise. While the sign was not
viewed by [the] court prior to being posted, and the language
excluding officers was not dictated, authorized or approved by
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- 2 - No. 227
this court, it ultimately falls upon the court to accept
responsibility." The court held that it was constrained to grant
the motion to set aside the verdict and ordered a new trial for
defendant.
The Appellate Term, with one Justice dissenting,
reversed, on the law, and reinstated the verdict (36 Misc 3d 54
[App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). The court
held that defendant's CPL 330.30 (1) motion should have been
denied by Criminal Court because it "was procedurally defective
as it was based on a ground which did not appear in the record"
(id. at 55). The Appellate Term noted that Criminal Court "did
not treat the motion as a 'de facto CPL 440.10 motion'" (id.).
The court stated that defendant "should have waited until after
sentencing before making an appropriate CPL 440.10 motion, in
which matters may be raised which do not appear in the record"
(id. at 56). The court continued: "Even if the motion had been
treated as a 'de facto CPL 440.10 motion' it is not properly
before this Court, since defendant did not seek leave to appeal
from the denial of the motion" (id.). Thus, the court did not
reach the merits of defendant's motion (id.).
Justice Weston dissented. She agreed with the majority
that, since defendant's motion was based on matters outside the
record, it was not proper for the court to set aside the verdict
pursuant to CPL 330.30 (1) (id.). Nevertheless, in the interest
of judicial economy, she would have treated the motion as one to
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- 3 - No. 227
vacate the conviction pursuant to CPL 440.10 and granted leave to
appeal from the order denying the motion (id.). I agree with
Justice Weston.
Under CPL 330.30 (1), a defendant may move to set aside
the verdict on any ground that appears "in the record" that would
require a reversal or modification on appeal as a matter of law.
Under the statute, the motion may be made "at any time after
rendition of a verdict of guilty [but] before sentence" (CPL
330.30). I agree with the majority that because defendant's
claim concerns a nonrecord matter, CPL 330.30 (1) review is not
authorized (see majority op at 2).
Nonrecord matters are brought by way of a CPL 440.10
motion, which under that statute is permissible after sentencing.
There is no clear statutory remedy that provides for an attack on
a judgment of conviction based on nonrecord matters after verdict
but prior to sentencing. Several courts have remedied this "gap"
by considering a defendant's CPL 330.30 (1) motion as one made
under CPL 440.10 (a "de facto CPL 440.10 motion") "where fairness
and judicial economy are not sacrificed" (People v Toland, 2 AD3d
1053, 1055-56 [3d Dept 2003]; see People v Thompson, 177 Misc 2d
803, 809 [Sup Ct Kings County 1998]; see also People v Wolf (98
NY2d 105, 119 [2002] [agreeing with the Appellate Division that
defendant's application was "at best, a de facto CPL 440.10
motion"]).
In my view, the trial court did just that in this case,
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- 4 - No. 227
although it did not expressly say so. Defendant brought to the
court's attention a significant issue: defendant's right to a
public trial had been violated. While a motion pursuant to CPL
440.10 would appear to be premature, the court stated that it had
sufficient knowledge to decide the matter immediately. To
conclude that the court could not consider the issue at that
juncture, thus requiring defendant to wait to be sentenced and
then raise the same issue in a post-sentence 440.10 motion,
defies the concept of judicial fairness and economy.1
The Appellate Term was also incorrect in suggesting
that defendant's appeal was not properly before it from a CPL
440.10 motion because defendant did not seek leave to appeal.
Defendant prevailed at the trial level and, therefore, it would
have been the People who would have sought permission to appeal.
For these reasons, I dissent.
1
Indeed, based on the majority's decision today, defendant
may now bring a 440.10 motion, some four years after verdict, and
with an earlier decision from the trial court holding in his
favor.
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- 5 - No. 227
* * * * * * * * * * * * * * * * *
For Case No. 226: Order affirmed, in a memorandum. Judges Read,
Smith, Pigott and Rivera concur, Judge Smith in a separate
concurring opinion in which Judges Read and Pigott concur. Judge
Abdus-Salaam dissents in part in an opinion in which Chief Judge
Lippman concurs.
For Case No. 227: Order affirmed, in a memorandum. Chief Judge
Lippman and Judges Read, Smith, Rivera and Abdus-Salaam concur,
Judge Smith concurring in a separate opinion. Judge Pigott
dissents in an opinion.
Decided December 18, 2014
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