Opinion
47/2003.
Decided September 9, 2004.
Upon consideration of the defendant's pro se motion, dated June 8, 2004, to set aside his sentence pursuant to CPL § 440.20, and the People's response, dated August 2, 2004, the defendant's motion is denied.
The defendant moves to set aside two consecutive sentences of two to four years imposed on his convictions following guilty pleas to Attempted Assault in the Second Degree and Intimidating of Witness in the Third Degree and resentence him to a prison term of one-and-third to three years on the grounds that he pled guilty to crimes for which he was not indicted or that were dismissed, the indictment was defective, and that he was illegally sentenced to consecutive terms of incarceration.
BACKGROUND
According to the Grand Jury minutes, on December 24, 2002, the defendant and his mother were visiting the home of complainant, Theresa Lavermicocca, and her family. An argument ensued between the defendant's mother and the complainant. The defendant's mother accused the complainant of stealing money from her. The next day, December 25, 2002, the defendant called the complainant and told her that he was coming over to kill her for stealing from his mother. Later that same day, the defendant entered the complainant's home and cut her arm with a sharp object. The defendant was arrested at the scene. On December 26, 2002, the complainant received a threatening telephone call relating to the incident the day before. On January 1, 2003, another telephone call was received by the complainant who recognized the defendant's voice as the caller. She passed the telephone to her husband to whom the defendant made a threat concerning the charges.
The defendant was indicted on the following charges: Burglary in the First Degree (PL 140.30) (two counts), Burglary in the Second Degree (PL 140.25), Assault in the Second Degree (PL 120.05), Assault in the Third Degree (PL 120.00), Criminal Possession of a Weapon in the Fourth Degree (PL 265.01), Intimidating a Witness in the Third Degree (PL 215.15) (two counts), and Tampering with a Witness in the Third Degree (PL 215.11).
On March 19, 2003 the defense made an oral motion to inspect the Grand Jury minutes and dismiss. In its Decision and Order, dated May 13, 2003, the Court dismissed Counts Eight and Nine (one count of intimidating and one court of tampering each related to the husband of the complainant) with leave to re-present, but found all other counts to be supported by legally sufficient evidence. Counts Eight and Nine were dismissed because there was insufficient evidence to establish that the defendant knew he was speaking to the complainant's husband when he made his threats on January 1, 2003. The people chose not to re-present the dismissed counts to the Grand Jury.
PLEA OF GUILTY
On June 27, 2003 the defendant pleaded guilty to the lesser included offense of Attempted Assault in the Second Degree (PL § 110/120.05 [2]) and Intimidating a Witness in the Third Degree (PL § 215.15). The conditions of the plea, as agreed to by the defendant, were as follows: (1) a period of incarceration of two to four years for Attempted Assault in the Second Degree and two to four years for Intimidating a Witness in the Third Degree, to run consecutively to each another; (2) waiver of the defendant's right to appeal; and (3) final orders of protection.
The count of Attempted Assault in the Second Degree to which the defendant pleaded guilty is a lesser included count of Count Four, Assault in the Second Degree. This count involved the defendant causing physical injury to the complainant by means of a dangerous instrument. In his plea allocution, the defendant admitted using a razor blade in an attempt to cause physical injury to the complainant.
The count of Intimidating a Witness in the Third Degree charged the defendant with having another person telephone the complainant and threaten her to induce her to drop the charges. The defendant admitted doing this at his plea allocution.
SENTENCE
On July 16, 2003, the defendant was sentenced pursuant to his plea agreement to two consecutive terms of incarceration of two to four years. Moreover, the defendant was adjudicated a second felony offender. Had this plea agreement not been worked out, the defendant, as a potential persistent violent felony offender, was facing a life sentence if he had been convicted of the violent felony offenses of burglary and assault charged in the indictment based on his two prior convictions for Attempted Robbery in the Second Degree.
CONCLUSIONS OF LAW
The defendant's first claim is that he pleaded guilty to a defective indictment, because it was based on "perjured testimony" in that the complainant's testimony that the defendant cut her with a sharp object is untrue. The defendant fails to support this claim with credible evidence, and, further, this claim is contradicted by the defendant's own sworn statements at his guilty plea. Further, the defendant by this motion is seeking a sentence reduction and not a vacatur of the guilty plea which, if granted, would require him to stand trial on the assault charge, and if convicted, face a life sentence as a persistent violent felony offender. The defendant, after being well-represented by counsel, admitted to the facts which he now disputes. Under these circumstances, his claim regarding perjured testimony is denied.
As to the defendant's second claim that he pleaded guilty to a crime for which he was not indicted, specifically, Attempted Assault in the Second Degree, this contention is also not a basis to reduce his sentence. The defendant pleaded guilty to Attempted Assault in the Second Degree (PL 110/120.05 [2]), a lesser included offense of Count Four, Assault in the Second Degree (PL 120.05). Criminal Procedure Law § 220.10 (4) (c) specifically authorizes, with the permission of the Court and the People, a defendant to plead guilty to a combination of charges in the indictment and lesser included offenses of charges in the indictment. Accordingly, the defendant's guilty plea to Attempted Assault in the Second Degree was lawful.
Finally, the defendant's claim that he was illegally sentenced to consecutive terms of incarceration is entirely without merit as it is belied by the controlling statute ( see PL 70.25). "Concurrent sentences are required only `for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.'" People v. Arroyo, 93 NY2d 990,991 (1999), citing, P.L. § 70.25 (2). Consecutive sentences may not be imposed, however, where: "(1) a single act constitutes two offenses, or (2) a single act constitutes one of the offenses and a material element of the other." Arroyo, 93 NY2d at 991, quoting, People v. Laureano, 87NY2d 640, 643; see also, People v. Day, 73 NY2d 208, 210-211 (1989). The defendant's actions of attempting to assault the complainant on one date, and on a subsequent date, having someone telephone the complainant and threaten her to induce her to drop the charges against the defendant, constitute wholly separate and distinct criminal acts comprising completely different material elements. Therefore, it was entirely proper to sentence the defendant to consecutive terms of incarceration for these two offenses pursuant to the defendant's own plea bargain.
As noted, this plea bargain spared the defendant from facing the possibility of a life sentence if he had been convicted of the violent felony offenses charged in the indictment. The imposition of consecutive sentences, based on the facts of the case and defendant's prior record was not only lawful, it was appropriate.
Further, the defendant's motion for a sentence reduction to one-and-a third to three years, disregards his status as a second felony offender which requires that the minimum sentence on each felony conviction be one-half the maximum sentence imposed. P.L. § 70.06 (4) (b).
Accordingly, the defendant's motion is denied in all respects.