Opinion
12699/93
04-06-2021
The PEOPLE of the State of New York, Plaintiff, v. Jermaine WRIGHT, Defendant.
Eric Gonzalez, District Attorney (Arieh Schulman of counsel), for plaintiff. Robert C. Reuland, Esq., for defendant.
Eric Gonzalez, District Attorney (Arieh Schulman of counsel), for plaintiff.
Robert C. Reuland, Esq., for defendant.
John T. Hecht, J.
In October 1993, during a daytime party of some 50 to 100 teenagers in an apartment in Brooklyn, Jonathan Fields, 17 and armed with a gun, yelled, "Fuck that, don't nobody move because everybody is going to get wet," after which Jermaine Wright, 16, pulled out a gun and joined Fields in spraying the partyers with gunfire. In the living room, Wade Trotman, 19, grabbed two girls, threw them onto a sofa and jumped on top of them. He was shot; they were not. He expired before he reached the hospital. In the kitchen, a 15-year-old girl was shot in the back. Although she was treated in a hospital, a bullet remained lodged inside her, limiting her ability to engage in normal activities and causing her pain. She was expected to have the bullet inside her for life.
After their joint jury trial, both Fields and Wright were convicted of murder in the second degree on a theory of depraved indifference to human life, for the death of Wade Trotman, assault in the first degree, for the shooting of the girl, and criminal possession of a weapon in the second degree.
Wright (hereafter, "defendant") was sentenced to 25 years to life imprisonment on the murder conviction, a consecutive term of 5-to-15 years imprisonment on the assault conviction, and a concurrent term of 5-to-15 years imprisonment on the weapon conviction — effectively a sentence of 30 years to life imprisonment (Marrus, J.). His judgment of conviction was unanimously affirmed by the Appellate Division ( People v. Wright , 236 A.D.2d 567, 654 N.Y.S.2d 637 [2d Dept. 1997] ). The Court of Appeals denied leave to appeal ( People v. Wright , 90 N.Y.2d 899, 662 N.Y.S.2d 442, 685 N.E.2d 223 [1997]).
Fields received the same sentence.
Defendant's criminal history at the time of these crimes included a juvenile delinquency adjudication for his having committed an assault in the second degree when, at the age of 13, he stabbed an 11-year-old in the stomach.
In 2003, while serving his sentence, defendant was convicted of yet another felony, attempted promoting prison contraband in the first degree, "after he was found to be in possession of a plexiglass shank" ( People v. Wright , 40 A.D.3d 1314, 836 N.Y.S.2d 368 [3d Dept. 2007] ). For this he was sentenced to another consecutive term of 1½ to 3 years prison. That conviction was also affirmed ( id. ).
Defendant is eligible for parole in April 2025 ( see http://nysdoccslookup.doccs.ny.gov/ [last accessed Apr. 2, 2021]), when he will be 47 years old.
In September 2020, defendant filed the present motion, pro se , to set aside his sentence, claiming that it was "unauthorized, illegally imposed, or otherwise invalid as a matter of law" ( CPL § 440.20 [1] ). Defendant argued that the "Raise the Age" legislation ( see L 2017 ch 59 Part WWW, §§ 1-106; CPL Article 722), which, among other things, provides a defense of infancy to some 16- and 17-year-olds and changes the way some cases of other 16- and 17-year-olds are adjudicated, should be applied retroactively to him. The People opposed.
The Raise the Age legislation does not purport to affect sentences that were already final when the law became effective. Nor does it alter the adjudication and punishment of murder in the second degree, which remains a felony for which a 16-year-old must be tried and sentenced as if he were an adult. In other words, even if this ameliorative legislation had been in effect on the day of defendant's crimes, it would not have had the impact defendant says it has. Defendant would not have had recourse to the defense of infancy ( see PL § 30.00 [3] [a]). The charges against him would not have been subject to removal to Family Court ( see CPL § 722.23 ). And defendant would still have been subject to trial in Supreme Court with the same sentencing range that applies to an adult ( see PL § 60.10-a). Accordingly, to the extent that his motion relies on Raise the Age, it must be denied.
Defendant cannot, as he claimed in his pro se motion, correctly be described as an "adolescent offender" within the meaning of the Raise the Age legislation inasmuch as it defines an "adolescent offender," pertinently, not simply as any 16-year-old charged with a felony but as a 16-year-old charged with a felony committed on or after October 1, 2018, that is, some 25 years after defendant's crimes ( see CPL § 1.20 [44] ).
Judges presiding over adolescent offender cases do so in a "youth part" and have specialized training ( see CPL § 722.10 [1] ). Nonetheless, and although they are required to "consider the age of the defendant in exercising discretion at sentencing," they are authorized to impose on an adolescent offender "convicted of an offense any sentence authorized to be imposed on a person who committed such offense at age eighteen or older" ( see PL § 60.10-a).
But the court cannot stop there, for in his pro se papers, defendant also presented an argument that merits more lengthy attention. He argued that society's view of the culpability of adolescents vis-à-vis adults has evolved to the point that his sentence may now be understood to violate the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution. Citing Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 [2012], which ruled that a mandatory sentence of life imprisonment without parole for those under 18 at the time of their crimes contravenes the Eighth Amendment, defendant rhetorically, and also poignantly, asked:
Is the Defendant entitled to a hearing so that his youth may be taken into consideration in determining whether to leave his sentence for the felonies [for] which he was sentenced manditorily [ sic ] as an adult?
(Def Mem of Law at 8.)
The Court of Appeals has previously ruled that a mandatory minimum sentence of 15 years to life imprisonment for a 17-year-old convicted of a drug sale does not run afoul of the Cruel and Unusual Punishment Clause ( see People v. Thompson , 83 N.Y.2d 477, 611 N.Y.S.2d 470, 633 N.E.2d 1074 [1994] ). Specifically: an " older adolescent['s] youth was alone insufficient to establish gross disproportionality for constitutional purposes" ( id. at 485, 611 N.Y.S.2d 470, 633 N.E.2d 1074 [emphasis supplied]).
From Thompson , this court might easily infer that the sentencing scheme upheld there could not be cruel or unusual as applied here to an older adolescent's conviction for murder. But to assure that defendant's argument was fully explored, particularly inasmuch as Thompson predated Miller by 18 years and might therefore not sufficiently reflect "contemporary standards of decency" ( id. ), this court assigned defendant an attorney for this motion. Counsel has made a submission, to which the People have responded. Arguments akin to defendant's have been considered and rejected by courts of coordinate jurisdiction in other cases involving 16- and 17-year-olds whose sentences were imposed, as here, for multiple felonies with minimum terms that ran consecutively and with maximum terms of life imprisonment ( see PL §§ 70.00 [2], [3] [a] [1]; 70.25; 70.30).
See also Sandoval v. Lee , 2016 WL 2962205, *11 [E.D. N.Y., May 20, 2016, No. 14-CV-5187 (JMA)] [rejecting, in federal habeas action, Miller claim of 17-year-old sentenced to minimum of 25 years imprisonment].
For example, in People v. Matias , 68 Misc. 3d 352, 123 N.Y.S.3d 792 [Sup. Ct. Bronx Co. 2020] and People v. Aponte , 42 Misc. 3d 868, 981 N.Y.S.2d 902 [Sup. Ct. Bronx Co. 2013], the courts reviewed the sentences of defendants who were 16 (Matias) and 17 (Aponte) at the time of their crimes and who had been sentenced to a minimum term of 50 years and 42½ years, respectively, up to a maximum of life in prison. In both cases, the courts concluded that each defendant had been afforded a particularized sentencing determination that had considered his individual characteristics, including his youth, and that his sentence was not disproportionate to or incommensurate with his crimes. Both Matias and Aponte therefore rejected challenges under Miller .
Parenthetically, Raise the Age does not appear to distinguish the relative culpability of 16- and 17-year-olds; nor does defendant argue that 16-year-olds should be treated differently from 17-year-olds.
Two observations of the Matias court are particularly worth highlighting. First, because Matias would be eligible for release when he was 66 years old, he was not serving a life sentence ( accord People v Ruffin , Sup Ct, Oneida County, Dec 1, 2015, Dwyer, J., indictment No. 09-127, slip op at 13 [16-year-old's sentence of 18 years to life not equivalent to life without parole]). Second, the laws under which he had been sentenced had allowed for discretion on the part of the judge and therefore attention to his youth. As such, his sentence did not violate the Eighth Amendment, as understood by Miller , because it was not a mandatory sentence of life imprisonment ( see Matias , 68 Misc. 3d at 363-65, 123 N.Y.S.3d 792 ).
In People v. Lora , 70 Misc. 3d 181, 133 N.Y.S.3d 412 [Sup. Ct. N.Y. Co. 2020], another court of coordinate jurisdiction did, however, find that a 17-year-old's combined sentences totaling 83? years to life imprisonment (based on an aggregate sentence of 58? years to life imprisonment comprised of two consecutive terms of 25 years to life and another of 8? to 25 years and another consecutive sentence of 25 years to life) were tantamount to life without parole. Notwithstanding that the sentencing laws under which Lora had been sentenced also allowed for discretion by the courts that had sentenced him, the CPL § 440 court found that the record was not "unequivocal[ ]" as to whether the "sentencing courts considered his youth, and its attendant circumstances, when they imposed sentence." Lora therefore ordered a Miller hearing to determine whether the "diminished culpability" and "heightened capacity for change" implied by Lora's youth required resentencing him ( id. at 193-94, 197, 133 N.Y.S.3d 412 ). After conducting that hearing, the court ruled that defendant's first sentence, "58? years of imprisonment, is appropriate for the crimes herein and is not tantamount to a life sentence," thereby rejecting the Miller challenge ( People v. Lora , 71 Misc. 3d 221, 140 N.Y.S.3d 390, 395 [Sup. Ct. N.Y. Co. 2021] [hereafter, " Lora II "]). But as to the second consecutive sentence of 25 years imprisonment, which Lora would begin to serve when he was 75 years old, the court held that the "aggregate sentence is a de facto life sentence without the possibility of parole," and, because the court could not "conclude that the second sentencing court engaged in the proper analysis," resentencing was required ( id. ).
No appellate court has specifically instructed when (if ever) a Miller hearing would be necessary on a CPL § 440.20 motion to set aside a 16- or 17-year-old's murder sentence where the sentencing laws did not require a sentence of life without the possibility of parole. The Third Department (albeit not in an appeal involving CPL § 440), has ruled that a sentence such as the one imposed in this case comports with the Constitution if it guarantees "a juvenile homicide offender—for all but the rare case of an irreparably corrupt juvenile— at some point, a ‘meaningful opportunity to obtain release’ " ( see Hawkins v. NY St. Dep. of Corr. and Community Supervision , 140 A.D.3d 34, 38, 30 N.Y.S.3d 397 [3d Dept. 2016] [ quoting Graham v. Florida , 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 [2010] ]). In Hawkins , the court observed that the 16-year-old defendant's sentence of 22 years to life imprisonment "promised him a meaningful opportunity to obtain release" ( Hawkins , 140 A.D.3d at 38 n.2, 30 N.Y.S.3d 397 ), because the Board of Parole, as the entity charged with determining whether petitioner will serve a life sentence, was required to consider the significance of petitioner's youth and its attendant circumstances at the time of the commission of the crime before making a parole determination.
Id. at 36, 30 N.Y.S.3d 397.
From these cases one may conclude that no Miller hearing is required here.
First, defendant's sentence provides him with a meaningful opportunity to obtain release when he appears before the parole board in the near future. The parole board, as Hawkins pointed out, is required to consider defendant's youth and its attendant circumstances when it decides whether or not he merits release, and defendant's first opportunity to appear before the board is within four years (and would have been a little over a year sooner but for defendant's commission of a new crime while incarcerated).
In fact, Hawkins observed that the United States Supreme Court allows a state to " ‘remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them’ " ( Hawkins , 140 A.D.3d at 39 n.5, 30 N.Y.S.3d 397 [ quoting Montgomery v. Louisiana , 577 U.S. 190, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 [2016] ]).
His codefendant Fields, who was sentenced to the same prison term but not also convicted of a subsequent offense, is eligible for parole in March 2024 ( see http://nysdoccslookup.doccs.ny.gov/ [last accessed Apr. 2, 2021]).
More succinctly, defendant's sentence is simply not a sentence of life imprisonment without parole ( see Matias, Aponte , and Lora II , supra ).
Nor is defendant's minimum 30 year sentence remotely tantamount to a sentence of life imprisonment without parole, as was the minimum of 83? years in Lora / Lora II (specifically, that portion of the aggregate sentences that would run consecutively to the 58? year sentence), which would have provided Lora no opportunity for release (absent compassionate release or commutation) until he was 100 years old. In contrast, defendant in the present case must serve a minimum that is substantially less than that in Aponte (42½ years), Matias (50 years), or, significantly, the first aggregate sentence in Lora (58? years), where no Miller hearing was required, and closer to the 22 years in Hawkins that the Third Department characterized as providing a meaningful opportunity for release. As we have seen, by virtue of the sentence here, defendant would have been eligible for release at the age of 46 but for his reoffending.
Defendant's relatively youthful age of parole eligibility undercuts one of the rationales of Miller , which is that an adolescent sentenced to life imprisonment may actually be subject to a punishment harsher than, and therefore disproportionate to, that of an adult sentenced to life because the adolescent has more life in him ( see Miller , 567 U.S. at 475, 132 S.Ct. 2455 [citation omitted]). The opposite is true here: a 30 year minimum sentence of imprisonment allows a 16-year-old offender to be released when he is middle-aged, whereas the same sentence may result in an adult's incarceration until he is elderly. Accordingly, defendant's 30 year minimum sentence does not implicate one of the central concerns of Miller or violate Thompson 's "gross disproportionality" test ( see Thompson , 83 N.Y.2d at 485, 611 N.Y.S.2d 470, 633 N.E.2d 1074 ).
Second, defendant received the individualized sentence that is constitutionally required. The applicable sentencing structure gave the court a range for each of the crimes of which defendant was convicted ( see PL §§ 70.00, 70.02), as well as the discretion to impose concurrent or consecutive sentences ( see PL § 70.25). In other words, defendant was not subject to a mandatory sentencing scheme that left no room for the court to consider whether and to what extent his youth might warrant a lesser sentence than that of an adult.
As described in detail below, at defendant's sentencing, the court evaluated the gravity of defendant's offenses, his character, and the gravity of the threat he posed to society. These are precisely the factors that the Constitution requires a sentencing judge to consider ( see Thompson , 83 N.Y.2d at 480, 611 N.Y.S.2d 470, 633 N.E.2d 1074, citing People v. Broadie , 37 N.Y.2d 100, 112, 113, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975] ). For this reason too no Miller hearing is required.
Third, and apart from the above factors, no Miller hearing is required because a review of the record discloses that the sentencing court satisfied any Eighth Amendment concerns specifically applicable to adolescents when it considered defendant's youth and its attendant circumstances in relation to defendant's crimes and their punishment.
Again, although Raise the Age does not apply to defendant, see supra , it requires only that a youth part judge do what the sentencing court in this case did: "consider the age of the defendant in exercising its discretion at sentencing" (PL § 60.10-a).
Defendant's age was clearly the focus of defense counsel's argument to the court. Counsel's first words were that defendant was a "very young person." He then described how defendant "didn't have much of a chance in life," not simply because defendant had not lived a long time but also given the circumstances of his home and neighborhood (Brownsville, Brooklyn). Counsel referenced "all the pressures that young people have when they grow up, father some times not there, sometimes the mother not there." Counsel did however candidly concede that both defendant's parents were present in the courtroom at sentence and had been present during earlier proceedings. Defense counsel asked the court to believe that defendant's youth encompassed the capacity to change:
References are to the transcript of Oct. 31, 1994.
I will ask your Honor to take into consideration his youth. This a young man who obviously has problems adjusting to his teenage years, going into his adult years and quite often they look back after a number of years in jail and say, "boy why did I do these things when I was young. Had I to do it all over again I would have done something different."
Defendant declined to make a statement.
A presentence report detailed defendant's educational and social background, based on an interview with his mother, as well as defendant's juvenile criminal record. The sentencing court also reviewed letters from the decedent's family.
The sentencing court, as is evident from the transcript, considered defense counsel's arguments but rejected them and concluded that defendant's crimes were not the product of his youth but of the "irreparable corruption" of his character ( Miller , 567 U.S. at 479-80, 132 S.Ct. 2455 ; Hawkins , 140 A.D.3d at 38, 30 N.Y.S.3d 397 ); or, put more bluntly, that defendant was "irredeemable" ( Graham , 560 U.S. at 75, 130 S.Ct. 2011 ). The court lamented, "I don't know where this defendant's life took a wrong turn."
The court in fact used almost precisely the same language that the United States Supreme Court in Graham, supra , suggested could characterize certain young offenders ("irredeemable"): "There is no redeeming value in your life."
The sentencing court determined that defendant's age did not mitigate his actions. This young defendant had not only taken one person's life and seriously injured another in a depraved armed assault that could easily have taken even more equally young lives but had previously committed another armed assault:
Standing before me is a seventeen year old male; at least he was seventeen at the time this report was prepared. And he stabbed somebody, he shot and killed somebody. He shot and injured somebody else.
In other words, in his short life, and over the course of three years - not, that is, in an isolated incident - defendant had already seriously victimized three different people by stabbing one and shooting two, murdering one.
The sentencing court implicitly contrasted defendant's youth (and perhaps his stature) with his effort to appear "a big man " by wielding weapons:
A trial witness described defendant as "short" ( see Br. of Resp. at 13 n. 26, 1996 WL 34421784 [2d Dept.] [ citing testimony of Carol Spaulding at trial transcript pages 319-22]). The presentence report said he stood 5'4" tall.
I don't know, you were a big man out there with a gun in your hand, with a knife in your hand. But you're not such a big man today standing there with your hands cuffed behind your back, convicted of these crimes. I don't know what I can do other than to punish you for the seriousness of your actions and to protect society from somebody like you.
In the court's view, manhood - to defendant - meant committing crimes of armed violence.
In referencing defendant's violent criminal history over a substantial period of time (3 of his 16 years), the seriousness and wantonness of his crimes ("This was a senseless act of violence."), the number of his victims, and his attraction to and reliance on weapons, the court explained why it did not believe that an adolescent's diminished culpability qualified defendant's actions or that defendant possessed the capacity for change. The gravity, depravity, and repeated nature of defendant's violent actions over a period of years - notwithstanding his youth - and the seriousness of his threat to society required a maximum sentence.
Surely the sentencing court could not have been unmindful of the contrast to defendant's actions that the decedent's presented: Wade Trotman perished shielding two girls from gunfire, thereby demonstrating that adolescents are as capable of heroism as depravity.
The court likewise explained why the sentences should run consecutively:
The assault charge and the murder charge were directed at two different victims who suffered separately and you should have to pay separate punishment for those crimes.
Inasmuch as the sentencing judge took into account and weighed all applicable constitutional concerns, including (even if not constitutionally required) defendant's youth and its attendant circumstances at the time he committed murder and armed assault, defendant's sentence was not unconstitutional.
Defendant's motion is, therefore, denied. Finally, a postscript, as it were: Defendant's subsequent conviction for possessing a shank in prison, a decade after committing these crimes, when he was past his adolescence, confirms the judgment of the sentencing court that defendant's attraction to, reliance on, and determination to possess weapons were not childish habits that he would one day outgrow but intrinsic to his dangerous character.
The foregoing constitutes the decision and order of the court.