People v. Felix

charging you with an armed violent felony; the plea to be in full satisfaction of the indictment and the plea being under the first count of the indictment”. As part of the pleá colloquy the Trial Judge explained to defendant “that a class D felony under this indictment which charges an armed violent felony in the second count, even though your plea is to a simple violent felony as a class D, attempt [sic] robbery in the second degree, would require the Court to impose as a minimum sentence no less than one, no more than three years in state prison as a minimum sentence” but stated that defendant’s attorney could make and the court would consider “an application for a lesser sentence due to mitigating circumstances”. Defendant admitted as part of the plea that he used or threatened immediate use of a knife, but was not questioned with respect to the display of what appeared to be a pistol and, therefore, did not directly admit the commission of an armed felony as that term is defined in CPL 1.20 (subd 41).

By memorandum and again at the time of sentence, defendant sought a reduced sentence on the basis of mitigating circumstances. His application was denied on the ground that the circumstances did not, as required by section 70.02 (subd 5, par [b]) of the Penal Law, bear upon the manner in which the crime was committed. He also argued that the provisions of that subdivision^[1] violate the

due process issue^[2] must be met and that the statute is constitutional.

I

t is hornbook law that a court will not pass upon a constitutional question if the case can be disposed of in any other way (Matter of Peters v New York City Housing Auth., 307 NY 519 , 527-528; McKinney’s Cons Laws of NY, Book 1, Statutes, § 150; 20 NY Jur 2d, Constitutional Law, § 47). Thus, had the Appellate Division been able to find in the record evidence of mitigating circumstances of the type provided for in the statute, it could have and should have avoided deciding the due process issue.

Here, however, the plurality for affirmance at the Appellate Division while seeking to avoid the constitutional question did not in fact do so. Rather it ignored the facts that sentencing is a function of the Trial Judge (see CPL 380.20; People v Green, 75 AD2d 502 ; People v Gomez, 103 Misc 2d 352 ) and that subdivision 5 of section 70.02 of the Penal Law restricts the discretion in relation to plea negotiation exercised by a Trial Judge, and sustained the sentence imposed as a proper exercise of the discretion vested in the Judges of the Appellate Division. In doing so it has avoided the effect of holding the statute unconstitutional (i.e., reversal) but assumed that the Trial Judge would not, had he been free to weigh all the factors that bear on sentencing, have imposed a lesser sentence, or that if he had, the Appellate Division would have been free to increase, and would have increased, the sentence to that which it was upholding by the exercise of independent discretion. Those assumptions are, however, unfounded (as to sentencing at the appellate level, see Gardner v Florida, 430 US 349 , 354, n 5; and People v Green, supra; as to the impropriety of an increased sentence, see CPL 450.30, subd 2). Consequently, the constitutional issue cannot be avoided.

Enacted at an extraordinary session of the Legislature as a “key” part of a program intended to combat violent

crime, section 70.02 of the Penal Law was intended to establish greater responsibility for an armed violent felony through stiffer sentencing provisions and restrictions upon plea bargaining (see Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 70.02,1982-1983 Cum Ann Pocket Part, pp 132-133; Book 11A, CPL 100.15, p 25). The Legislature did not choose to abolish plea bargaining as it could have (People v Esajerre, 35 NY2d 463 , 467; see Santobello v New York, 404 US 257 , 262). Rather it opted to limit the broad discretion previously exercised in the determination of the crime to be pleaded to and the sentence to be imposed. This it did by (1) proscribing acceptance of a plea to less than a class D violent felony offense from a defendant indicted for a class B or C violent felony offense^[3] (CPL 220.10, subd 5, par [d]), and (2) requiring imposition of an indeterminate sentence on the bargained class D violent felony offense, absent specified ameliorating factors (Penal Law, § 70.02, subd 5), when a defendant has been indicted for an “armed felony” as defined in CPL 1.20 (subd 41) (a violent felony offense aggravated by use of a loaded and functional firearm or display of what appears to be a firearm of a specified type). It is the latter provision which defendant argues violates his right to due process by (1) prescribing the sentence to be imposed upon the basis of an unproved and unadmitted fact and (2) shifting to him the burden of establishing the right to a lesser sentence. We disagree.

A

Defendant’s claim that the statute improperly subjects him to enhanced punishment on the basis of the unproven charge that he was “armed” within the meaning of the “armed felony” definition is largely predicated on People v Drummond ( 40 NY2d 990 , supra) and People v Griffin ( 7 NY2d 511 ). There are, of course, differences in the sentencing discretion available when a defendant has pleaded guilty to a class D violent felony under an indictment charging an armed felony and what would be available had there been no armed felony charge in the indictment under

tains detailed provisions concerning the hearing available as a possible means of defendant’s obtaining a sentence less than that otherwise prescribed by its provisions.

Although an indictment may not be given preclusive effect as to an unadmitted charge (see People c Elliby, 80 AD2d 875 ), it “can give rise to ancillary consequences beyond the formal notification and delineation of the charges” (People v Brian R., 78 Misc 2d 616 , 618, affd 47 AD2d 599 ). Thus, the offenses charged in dismissed counts of an indictment may be considered by the sentencing Judge even over defendant’s objection (Billiteri v United States Bd. of Parole, 541 F2d 938 , 944; see United States v Needles, 472 F2d 652 ; Schulhofer, Due Process of Sentencing, 128 U of Pa L Rev 733, 763; Ann., 96 ALR2d 768 , 787).

Considered in relation to the broad power of the Legislature with respect to sentencing, the purpose sought to be accomplished by the subdivision in question and the fact that it does not give preclusive effect to the indictment’s allegation that defendant was armed, we conclude that the subdivision’s prescription of the minimum sentence to be imposed absent a finding of an ameliorating factor does not violate the due process clause of either the Federal or the State Constitution (see People v Caver, 74 AD2d 852 )..

B

No more violative of due process are the procedural provisions of paragraph (c) with respect to the hearing to be held. Defendant was accorded no hearing because the mitigating circumstances set forth in the memorandum submitted on his behalf concerned his prior history rather than the manner in which the crime was committed. He argues, nevertheless, that paragraph (c) improperly places upon him the burden of proving one or more of the ameliorating factors referred to in paragraph (b).^[4] Although the

paragraph speaks only of “an opportunity to present relevant information to assist the court in making, a determination pursuant to paragraph (b)” and accords that opportunity to both the defendant and the District Attorney, its practical effect is to impose upon a defendant who seeks a determinate sentence an obligation to present evidence he would not otherwise be required to present. In doing so it does not, however, impinge upon due process.

Due process protections apply to sentencing as well as to the trial itself (Gardner v Florida, 430 US 349 , 358, supra), but the “due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure” (Williams v New York, 337 US 241 , 251, reh den 337 US 961 , 338 US 841 ) and does not “implicate the entire panoply of criminal trial procedural rights” (Gardner v Florida, 430 US, at p 358, n 9).^[5] Defendant points to Specht v Patterson ( 386 US 605 ), however, and argues that here, as in Specht, the existence of one of the ameliorating factors requires the making of new factual findings on an issue distinct from that encompassed by the guilt determination. We think Specht readily distinguishable.

Specht involved a defendant convicted under a Colorado indecent liberties statute under which the maximum sentence that could be imposed was 10 years. The trial court, without holding a hearing, used that conviction as a basis for sentencing Specht under the Sex Offenders Act, a separate statute, the maximum under that act being life imprisonment. The Supreme Court held that due process required that defendant have the right to be present with

counsel, to confront and cross-examine witnesses and to present evidence on his own behalf before the court could, on the basis of a new factual finding on the “distinct” issue which the Sex Offenders Act involved, impose a sentence heavier than that permitted for the crime of which he stood convicted (386 US, at p 610; see Schulhofer, op. cit., p 762), a holding essentially similar to that of this court in People v Griffin ( 7 NY2d 511 , supra).

Subdivision 5 of section 70.02 of the Penal Law involves no new criminal charge, no separate statute, no new finding of fact on a distinct issue as the basis for increased punishment. What it does rather is require as part of one statutory scheme that a defendant indicted for an armed felony but permitted to plead to a lesser offense be sentenced to an indeterminate term, while permitting imposition of a lesser sentence if after a hearing the sentencing Judge finds the existence of one of the ameliorating factors it specifies. By pleading to the class D violent felony with the knowledge that because the indictment charges an armed felony the sentence on the class D felony will be indeterminate, the defendant in effect admits, for the purpose of sentence and subject to his right to a lesser sentence if the existence of one of the ameliorating factors be found by the court, that he was armed as charged in the indictment. He is, moreover, accorded the right to deny or explain which due process requires (Gardner v Florida, 430 US, atpp 356,362; see People v Daniels, 58 AD2d 585 , 586). Furthermore, the new facts found in the postplea presentence hearing can only reduce, not enhance,^[6] the punishment imposed. Thus, Specht does not require invalidation of subdivision 5 of section 70.02 of the Penal Law on Federal due process grounds and we perceive no reason for applying the due process clause of the New York Constitution differently.

Finally, we note that due process is not offended by the probability that in most, though not necessarily in all,

cases establishment of an ameliorative factor will require that defendant come forward with proof. In People v Laietta ( 30 NY2d 68 , 75, cert den 407 US 923 ) we noted, in upholding a statute (Penal Law, § 25.00, subd 2) imposing upon defendant the burden of establishing the defense of entrapment, that “presumptions, burdens of going forward, and burdens of persuasion in criminal cases may be placed on defendants” provided the State has “first proved enough of its case” and that there “be justifying reason to shift the burden either because knowledge of the facts is peculiar to the defendant or the onus is based on probabilities of wrongdoing.” Here the People’s case has been sufficiently made by defendant’s plea entered under this statute for by so doing he impliedly concedes being armed, as part of his plea bargain and subject to his right to present “relevant information” concerning “possible deficiencies in proof of [his] commission of an armed felony” or other specified circumstances bearing on commission of the crime to which he has pleaded (Penal Law, § 70.02, subd 5, pars [b], [c]). In many cases, moreover, knowledge of the facts necessary to establish a basis for a lesser sentence will be peculiar to defendant, and in every case, by the Grand Jury’s return of an armed felony indictment which must be based upon reasonable cause (CPL 190.65), the probability of wrongdoing is sufficiently present to justify such burden shifting as the subdivision involves.^[7]

For the foregoing reasons, the order of the Appellate Division should be affirmed.

(dissenting). I share the conviction of the dissenting Justices at the Appellate Division that subdivision 5 of section 70.02 of the Penal Law is unconstitutional under both Federal and New York State Constitutions as working a denial of due process. In my view constitutionally guaranteed due process is denied when the scheme of sentencing is to any significant extent made to turn on a charge set forth in the accusatory instrument but which