Motion to Dismiss an ‘Illegally Lenient’ Sentence
People v Francis
NY Slip Op 00996 [34 NY3d 464]
Decided on February 13, 2020
Issue:
Defendant Moves to Dismiss ‘Illegally Lenient’ Sentence via Article 440 Post Judgement Motion
Whether the lower courts erred in denying defendant Francis’s 440.20 motion to dismiss a 1988 six-month incarceration on the ground that it was “illegally lenient,” though defendant benefitted from the lenient sentence.
Holding:
Motion Not Reviewable on Appeal as Defendant Not Adversely Affected
The Court of Appeals held that the courts did not err—that the motion is not reviewable because the error did not adversely affect the defendant, a requirement stipulated by CPL 470.15.
Facts:
In 1982, defendant Francis, using the name “Lawrence Benjamin,” pled guilty to fifth-degree criminal sale of a controlled substance, a felony, and received a 60-day jail sentence. In 1988, as “Gerald Francis,” defendant pled guilty to one count of criminal possession of a weapon, a violent felony, and received six months in prison and five years on probation. Defendant should have received a mandatory sentence of 2 to 4 years incarceration for second felony offender, but his aliases kept the court from his complete criminal history.
In 1991, using the name “Bernell Gould,” defendant pled guilty to attempted robbery in the first degree, a second violent felony, and he was sentenced to 4 to 8 years in prison. Then, in 1997, reverting to his ’82 alias of “Lawrence Benjamin,” defendant was convicted of robbery in the first degree, a violent felony. After being adjudicated a persistent violent felony offender based on his previous convictions, Francis was sentenced to an aggregate prison term of 23 years to life.
In 2009, defendant moved, pursuant to CPL 440.20, to vacate his 1991 sentence, arguing that he should have been sentenced as a second violent felony offender rather than as a second felony offender. Supreme Court denied relief, and the Appellate Division reversed and granted the motion holding that the 1991 sentence had been “invalid as a matter of law because defendant was incorrectly adjudicated a second felony offender rather than a second violent felony offender” (People v Gould, 131 AD3d 874 [1st Dept 2015]. The Appellate Division ordered a new sentencing proceeding on the 1991 conviction. On remand, defendant was adjudicated a second violent felony offender but was sentenced to the same 4 to 8 years in prison.
In 2014, Supreme Court denied defendant’s first CPL 440.20 motion to set aside his 1998 sentence, though it acknowledged the sentence was “illegal,” because it was shorter than the mandatory term of incarceration. But the court held that because defendant “was not aggrieved by the error,” he was not entitled to relief. The following year, after the Appellate Division set aside his 1991 sentence, defendant again moved to set aside the 1988 sentence. Supreme Court denied his second CPL 440.20 motion, contending that the issue was already decided in the first motion. The Appellate Division affirmed, holding that because defendant was not adversely affected by the court’s error in sentencing, his claim should be rejected without consideration of its merits.
Analysis:
Defendant Must Be Adversely Affected for 440 Motions
CPL 440.20 (1) states that, “at any time after the entry of a judgement, the court in which the judgement was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law.” Defendant correctly notes that the language does not include “adverse effect” or “aggrievement” language, however, CPL 470.15 states that, “upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.”
The Court of Appeals explained that this provision is a jurisdictional restriction on the appellate court’s scope of review, and described it as “a threshold prescription of the legislative devolution of powers to the…appellate courts” (People v LaFontaine, 93 NY2d 470, 474 [1988]). CPL 470.15 applies to any appeal, including dispositions of CPL article 440 motions. Therefore, the order of the Appellate Division was affirmed.