Opinion
2005-0236.
Decided August 3, 2011.
For the People: Michael C. Green, Monroe County District Attorney, Timothy Prosperi, A.D.A., Rochester, NY.
For the Defendant: Timothy Donaher, Monroe County Public Defender, Roger Brazil, A. P. D., Rochester, NY.
Following a 4-3 decision by the Court of Appeals reducing defendant's depraved indifference murder conviction (Penal Law § 125.25) to manslaughter in the second degree (Penal Law § 125.15), the People moved to have defendant sentenced as a persistent felony offender pursuant to Penal Law § 70.10.
To be sentenced as a persistent felony offender, a hearing is required and the burden is on the People to prove beyond a reasonable doubt that defendant is a persistent felony offender (CPL 400.20; People v Quinones , 12 NY3d 116 ). The People meet this burden by proving beyond a reasonable doubt that the defendant had been convicted of at least two prior felonies ( see, CPL 400.20; People v Owens, 272 AD2d 481, 482 [2d Dept, 2000]). Once defendant has been proven to be a persistent felony offender, `[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct may be established by any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence, and the standard of proof with respect to such matters shall be a preponderance of the evidence" (CPL 400.20). After the hearing, if the court "is of the opinion that a persistent felony offender sentence is warranted, it may sentence the defendant in accordance with [Penal Law § 70.10 (2)]" (CPL 400.20).
Pursuant to CPL 400.20, the Court held a hearing on June 15, 16, and 23, 2011.
I. Defendant's Felony Convictions
At the hearing, the People established by a Stipulation with defense counsel that defendant has three prior felony convictions in New York State dating back to April 14, 1997, that he received a sentence of more than one year for each, and that the sentences were imposed prior to October 9, 2004, the date that the present offense was committed [People's 1]. The felony convictions are for burglary in the third degree (April 14, 1997), criminal mischief in the third degree (February 5, 1998) and criminal possession of stolen property in the third degree (July 19, 2002). The Stipulation also established that defendant was not pardoned for any of his felony crimes and that defendant had no constitutional challenges to the felony convictions.
Concerning defendant's first and second felony convictions, i.e., burglary in the third degree and criminal mischief in the third degree, they are deemed one conviction for persistent felony
offender status purposes because defendant served a concurrent sentence on those convictions. Accordingly, the Court concludes that the People established beyond a reasonable doubt that defendant stands convicted of two prior felonies for purposes of persistent felony offender status.
The Court may only sentence defendant as a persistent felony offender if the proof shows by a preponderance of the evidence that defendant's history and character and the nature and circumstances of his criminal conduct warrant such a sentence.
II. Defendant's Background and Nature of Prior Criminal Conduct
On the issues of defendant's background and the nature of his prior criminal conduct, the People presented the testimony of Douglas Caliri, a Monroe County Probation Officer, Scott Shepard, a New York State Police Investigator, and Charles Bour, a New York State Parole Supervisor. Defendant presented the testimony of Herrick Kimball, a New York State Department of Corrections industrial training supervisor. Also, the Court received in evidence 17 other exhibits, three of which were submitted by defendant. The testimony and exhibits received in evidence, namely defendant's NYSID report [People's 2], probation records [People's 5, 5a], parole records [People's 7, 7a, 7b] and Rochester City Court certificates of conviction/disposition [People's 11], established defendant's history and character and the nature and circumstances of his criminal conduct.
Significantly, the present offense was committed while defendant was on parole and defendant's criminal history dates back to 1983, when he was a juvenile. He has had 26 arrests, nine of which were felonies and 17 of which were misdemeanors. Of the felonies, four were violent felony arrests.
While imprisoned, defendant has worked most recently at furniture assembly [Defendant's D]. However, over the years of his imprisonment, he has received disciplinary reports for gambling, fighting, absconding, and drug use [see People's 6]. Incredibly, defendant while incarcerated on January 7, 2011, tested positive for THC, the main ingredient in marihuana.
It is clear that defendant has struggled with substance abuse dependency since at least 1992. He has spent numerous years incarcerated and under the supervision of Probation and Parole. He has had numerous chances to rehabilitate himself.
Concerning defendant's 2002 felony conviction for criminal possession of stolen property in the third degree, it is important in the Court's determination that the circumstances of that crime are chillingly similar to the circumstances of the present crime. In connection with his 2002 conviction, defendant stole a person's car, sideswiped another car, fled the stolen car and it ran into a parked car and a Webster Police vehicle. He was driving in excess of [100] miles per hour, crossed a median on Route 104, drove eastbound in the westbound lane and entered and exited the highway via an on-ramp.
In connection with his 2002 conviction, the prosecutor prophetically told the sentencing court:
I think what is most noteworthy about [defendant] is that he's had a chance at everything. He's been sentenced to conditional discharge. He violated that. He's been sentenced to probation on a couple of occasions. He violated that. He's had local jail time, he's had State prison, he's been paroled, he's been to Willard twice. [Defendant] is just not getting it. And this two to four sentence is — I don't think will alleviate any of his problems or stop him from being a career criminal.
[Defendant] is an accident waiting to happen when you look at his record, and he's a career criminal waiting to spend more and more time in State prison.
Also, important in the Court's determination are the facts proven at trial regarding the present offense. The circumstances of defendant's most recent homicide offense are concisely set forth by Justice Pigott in his cogent dissent in People v Prindle , 16 NY3d 768, 771 (2011). Justice Pigott wrote:
A young woman returning from a baby shower is dead because this defendant, who was concerned about being arrested for the theft of a $400 snowplow blade, led police on a 2 1/2-to-4-mile chase from the Town of Brighton into the City of Rochester, running at least five red lights, repeatedly driving at high speeds and in the lanes of oncoming traffic before plowing into the rear driver's side of the victim's vehicle. She did not die immediately, however arriving at the hospital in a comatose state with a severe head injury, broken ribs and a broken pelvis, succumbing to her injuries five days later.
. . .
[Defendant's] van drove . . . `erratically, increasing in speed, weaving inside the two lanes, [and] crossing over the double solid line numerous times.' . . . [Defendant's van] . . . barreled through a red light, causing the traffic with the right-of-way to come to a sudden stop. [As] [t]he van proceeded toward another major intersection . . . [it was observed] `again driving erratically, speeding, increasing speed, going around a double solid yellow line' into oncoming traffic, nearly hitting other vehicles and causing them to swerve and/or stop. Rather than stopping, however, the van raced through another red light at that intersection-where two major thoroughfares in the City of Rochester met-at approximately 65 miles per hour. In the interest of safety, the officer . . . called off the pursuit, but still followed the van at a safe distance. . . . [It was] still going 65 miles per hour, defendant's `driving became worse,' with defendant driving the van in the oncoming lane of traffic the entire time, causing vehicles with the right-of-way to make evasive maneuvers or stop. The van crossed the overpass and turned onto local streets, reaching another heavily-trafficked thoroughfare. There, the van ran a third red light and struck a truck in the intersection. The defendant nevertheless continued his flight. . . .[T]he van, without braking, [went] through a fourth red light at a major intersection . . . `driving erratically, going around cars, crossing over a double yellow solid line, causing cars to pull over.' . . . [T]he van continued erratically at a high rate of speed through a fifth red light. A vehicle, which had a green light, was making a left turn at this intersection. That vehicle's driver observed the van traveling over the double solid yellow line before it slammed into the rear driver's side door. It was this vehicle in which the decedent was traveling. Defendant neither braked nor skidded, and the evidence established that defendant had adequate room to navigate around the vehicle. Defendant fled the scene and was apprehended days later.
Having heard the testimony of the witnesses at the hearing and upon review of all the exhibits received in evidence, the Court "is of the opinion that the history and characteristics of 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). Defendant presents a danger to the community and society must be protected. Unfortunately, this Court can only conclude that defendant is beyond rehabilitation. Therefore, defendant is adjudicated a persistent felony offender.
The above constitutes the Decision and Order of this Court.