DECISION AND ORDER On December 12, 1996, Defendant Jose Lora was convicted after a jury trial of two counts of Murder in the Second Degree [Penal Law (hereinafter "P.L.") §125.25(1)] and one count of Conspiracy in the Second Degree [P.L. §105.15]. The jury failed to reach a verdict on a third count of murder. He was sentenced on January 17, 1997 to three consecutive terms of imprisonment: two terms of twenty-five years to life on the murder convictions, and one term of eight and one-third to twenty-five years on the conspiracy conviction. Defendant was re-tried on the third murder count and convicted on March 6, 1998. He was sentenced on April 6, 1998 to a term of twenty-five years to life imprisonment, to be served consecutively to the previously-imposed sentences, for an aggregate sentence of eighty-three and one-third years to life imprisonment. Defendant now moves1 to set aside the sentences pursuant to Criminal Procedure Law (hereinafter “C.P.L.”) §440.20 on the grounds that the sentences are invalid as a matter of law because they violate the United States Constitution’s Eighth Amendment prohibition on cruel and inhuman punishment. He maintains that the sentences should be vacated, or that a hearing should be held. Procedural History The convictions stem from allegations that Defendant, when seventeen years of age, fatally shot several rivals of his alleged drug-trafficking gang, as well as an individual alleged to have been responsible for the death of his girlfriend’s brother. Defendant and several other co-defendants were indicted for the murders. Defendant and the co-defendants were also charged in a separate indictment with multiple drug and weapons offenses. The indictments were consolidated for trial. The co-defendants pled guilty and testified against Defendant, who stood trial alone and was convicted as set forth above. Defendant perfected an appeal, in which he claimed that he received ineffective assistance of counsel at a pre-trial lineup from his attorney, who had previously represented several prosecution witnesses in an unrelated matter. He challenged the admission of certain evidence of his criminal activity at his first trial and claimed that the trial court’s jury instruction on reasonable doubt shifted the burden of proof. Defendant further argued that the trial court’s instruction to the jury, that he would not face the death penalty if convicted, violated his due process rights. He made the same arguments regarding his second trial, with the additional claim that irrelevant and unduly prejudicial evidence of crimes committed by his alleged gang and other associates had been improperly admitted. The Appellate Division, First Department, rejected Defendant’s ineffective assistance of counsel claim, and held that Defendant had failed to establish that counsel’s potential conflict affected his limited representation at the lineup (new counsel was assigned thereafter), and that the trial court was not obligated to conduct an inquiry as to whether Defendant waived his right to conflict-free representation. The Court further held that the reasonable doubt instruction was proper, the voir dire issue regarding the death penalty was without merit, and the evidence of Defendant’s criminal activity was properly admitted. All other issues were determined to be unpreserved. People v. Lora, 298 A.D.2d 149 (1st Dept. 2002). The Court of Appeals denied leave to appeal the decision of the Appellate Division. People v. Lora, 99 N.Y.2d 560 (2002). In 2005, Defendant filed a writ of habeas corpus with the United States District Court, Southern District of New York, in which he relied upon the same arguments raised in his state appeal. A magistrate reported and recommended that the writ be denied in its entirety [Report and Recommendation of Magistrate Gabriel Gorenstein, J., Lora v. West, 2005WL372295 (U.S.D.C. Southern Dist. N.Y. 2005)], which the District Court ostensibly adopted in an unpublished decision. Defendant subsequently moved for reconsideration of the denial of his petition. Magistrate Gorenstein recommended that the motion be denied as untimely. The United States District Court, per Hon. Richard Howell, J., District Judge, held that the four-year delay in filing was due to Defendant’s own neglect, not the attorney misconduct he claimed. The District Court adopted the magistrate’s report and recommendation, denying the motion for reconsideration. See Lora v. West, 2010WL3632506, (U.S.D.C. Southern Dist. N.Y. 2010). In 2011, Defendant filed a motion to vacate the judgment in New York County Supreme Court, pursuant to C.P.L. §440.10, on the grounds that the indictment was jurisdictionally defective, the crimes and the defendants charged were improperly joined, the People had engaged in prosecutorial misconduct during the presentation to the grand jury, the trial court’s legal instructions were erroneous, and trial counsel’s representation was ineffective. In a decision dated June 18, 2012, the Court, (Hon. A. Kirke Bartley, J.), denied the motion based on Defendant’s failure to raise the issues on direct appeal, although sufficient facts appeared on the record to have permitted adequate review of his claims. Defendant moved for reconsideration under Civil Practice Laws and Rules §2221. In a decision dated December 7, 2012, Judge Bartley deemed that Defendant’s papers constituted a motion to reargue, as they contained no new facts for the Court to consider. The Court ruled that it had neither misapprehended nor overlooked the facts or the law when it denied Defendant’s motion to vacate for failure to raise the record-based issues on direct appeal. The instant motion to set aside the sentences was filed on December 10, 2018, pursuant to C.P.L. §440.20, on the specific grounds that Defendant’s sentences amount to a de facto sentence of life imprisonment without parole, and that sentences of life without parole are prohibited for certain offenders who were under the age of eighteen when they committed their crimes. On March 26, 2019, prior to filing their response to this motion, the People informed this Court that the United States Supreme Court (hereinafter “U.S. Supreme Court”) had granted a writ of certiorari on March 18, 2019 in Mathena v. Malvo, 139 S.Ct. 1317 2019 WL 1231751. In that case, the U.S. Supreme Court was to decide whether the Miller/Montgomery rule (discussed below) applies only to juvenile defendants who received mandatory sentences of life without parole, or to all (mandatory and discretionary) juvenile defendants who receive sentences of life without parole. The People suggested that the Mathena v. Malvo appeal was potentially dispositive of the instant motion, because the appellant in that case was seeking resentencing in Virginia because of his youth at the time of his crime. This Court agreed to hold this matter in abeyance, pending a ruling by the U.S. Supreme Court. When the U.S. Supreme Court did not hear oral argument by the end of its 2018-2019 term, this Court directed the People to file a response. The People did so on September 6, 2019. On September 13, 2019, the U.S. Supreme Court announced that oral argument on Mathena v. Malvo was scheduled for October 16, 2019. This Court notified the parties that it would hold its decision in abeyance again, until the U.S. Supreme Court had rendered its decision. Assigned motion counsel filed a reply brief on September 30, 2019, This Court anticipated that a decision would be handed down at some point during the U.S. Supreme Court’s 2019-2020 term. However, in February 2020, the news media reported that Mr. Malvo had withdrawn his request for resentencing, after the Governor of Virginia signed legislation allowing for the possibility of parole for juvenile offenders serving sentences of twenty years to life imprisonment. On July 9, 2020, the U.S. Supreme Court formally announced that Mathena v. Malvo had been dismissed. In the interim, on March 16, 2020, due to the pandemic, the instant matter was administratively adjourned to May 22nd, July 10th, August 21st and September 30th, 2020.2 Contentions of the Parties Defendant argues that his sentences are invalid as a matter of law because they violate the Eighth Amendment’s prohibition against cruel and unusual punishment. He relies on Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) to support his claim that his sentences amount to a de facto sentence of life imprisonment without parole, and that sentences of life without parole are prohibited for certain offenders who were under the age of eighteen when they committed their crimes. Defendant stresses that he was seventeen years of age when he allegedly committed the murders, and that he will likely die before he is eligible for parole. The People argue that the aggregate term of eighty-three and one-third years imposed in these cases does not amount to life without parole, but rather, is a minimum sentence that Defendant must serve before he is eligible for parole. They contend that his sentences are not prohibited under Miller/Montgomery because he has not been, nor was he required to be, sentenced to life without parole, and that there are no federal or state cases holding that such sentences when imposed on a juvenile violate the Constitutions of the United States or New York. The People also argue that while Miller/Montgomery require a hearing in which the sentencing court considers the youth of defendants facing both, mandatory or discretionary life-without-parole sentences, Defendant is not entitled to such a hearing because he was sentenced to consecutive terms of imprisonment for three separate murders committed on three separate dates. Notwithstanding, the People contend that Defendant’s youth was in fact considered by the sentencing courts, in compliance with Miller’s requirement that a sentencing court must consider a juvenile offender’s youth and attendant characteristics before determining whether life-without-parole is an appropriate sentence. They claim that Defendant’s youth was addressed at both trials and that the sentencing courts were aware that he was seventeen years of age when he committed the murders. The People argue that since the characteristics of his youth were raised and argued before both sentencing courts, Defendant has already received the consideration he would be entitled to under Miller and that consequently, his request for resentencing, or a hearing, should be denied. Assigned motion counsel filed a reply brief, in which he argued that the constitutional scruple against sentencing a youth to life imprisonment without the possibility of parole applies to discretionary sentences which are longer than a defendant could possibly live. Motion counsel argues that a juvenile should not be sentenced to lifetime imprisonment simply because that juvenile committed depraved and heinous crimes, and that such a sentence may not be imposed without considering the Miller factors. The reply further argues that the sentencing courts here did not examine or resolve the Miller factors and, therefore, Defendant’s “lifetime sentence” is unconstitutional. Discussion C.P.L. §440.20 provides, in pertinent part, that at any time after the entry of a judgment, the court 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. A defendant’s motion to set aside a sentence must allege a legal basis and essential facts which support or tend to support the claim, whether from the personal knowledge of the defendant or another person, or upon information and belief, in which case the affiant must state the source of the information and the grounds for such belief. C.P.L. §440.30(1)(a). The motion impacts only the sentence, and, if granted, does not affect the underlying conviction. C.P.L. §440.20 (4). A court may deny a motion to set aside a sentence, without a hearing, where the moving papers do not contain allegations of fact tending to substantiate the claim being raised. See C.P.L. §440.30(4)(b); People v. Ozuna, 7 N.Y.3d 913 (2006). “The party challenging the validity of the sentence bears the burden of coming forward with supporting allegations sufficient to create an issue of fact.” People v. Session, 34 N.Y.2d 254, 255-56 (1974). In Miller v. Alabama, supra, upon which Defendant relies, two defendants were convicted of capital murder in Alabama, and capital felony murder and aggravated robbery in Arkansas, respectively. Both convictions stemmed from crimes committed when the defendants were fourteen years of age, and both defendants were sentenced to life imprisonment without the possibility of parole. The sentences were upheld by the highest courts in each respective state. Certiorari was granted and the U.S. Supreme Court held that the Eighth Amendment’s prohibition on cruel and unusual punishment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. The Court further held that, based on the principle that children are “different,” sentencing laws must allow judges to take a defendant’s youth into account. The Court held that those differences attendant to a defendant’s youth counsel against irrevocably sentencing them to a lifetime of imprisonment without the possibility of parole. The Court did not bar sentencing of a juvenile convicted of homicide to life in prison, but stressed that “…[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes [before us] violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.” Miller at 489. Thus, “…a juvenile convicted of a homicide offense cannot be sentenced to life in prison without parole absent consideration of the juvenile’s special circumstances in light of the principles and purposes of juvenile sentencing.” Montgomery v. Louisiana3, supra at 725. Those principles and purposes were previously articulated in Roper v. Simmons, 543 U.S. 551 (2005), in which the U.S. Supreme Court held that a capital sentence is prohibited in cases involving juvenile offenders who were under eighteen years of age at the time they committed a capital offense. The Supreme Court expanded its ruling in Graham v. Florida, 560 U.S. 48 (2010), holding that the United States Constitution prohibits the imposition of life without parole in cases involving juveniles convicted of crimes other than homicide, and that the juvenile must have a meaningful opportunity to receive parole. Roper and Graham, and their progeny4, establish that: ‘children are constitutionally different from adults for purposes of sentencing…First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking…Second, children are more vulnerable…to negative influences and outside pressures, including from their family and peers; they have limited contro[l] over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings…And third, a child’s character is not as well formed as an adult’s; his traits are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity]…. ‘Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.’ (Miller at 471-472 [internal quotation marks omitted].) Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” Miller, supra at 2458 (internal quotations and citations omitted). New York Appellate Courts have addressed Miller/Montgomery in the context of parole board determinations. In Matter of Hawkins v. New York State Dept. of Corr. & Community Supervision, 140 A.D.3d 34 (3rd Dept. 2016), the Appellate Division, Third Department held that: [A]s a person serving a sentence [twenty-two years to life imprisonment] for a crime committed as a juvenile [murder in the second degree committed when he was sixteen years of age and who was denied parole release nine times since becoming eligible], petitioner has a substantive constitutional right not to be punished with a life sentence if the crime reflects transient immaturity, and that petitioner was denied his constitutional right to a meaningful opportunity for release when the Board failed to consider the significance of petitioner’s youth and its attendant circumstances at the time of the commission of the crime. The Board, 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. That consideration is the minimal procedural requirement necessary to ensure the substantive Eighth Amendment protections set forth in Graham v. Florida, Miller v. Alabama, and Montgomery v. Louisiana (citations omitted)…A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court…[N]either the hearing transcript nor the Board’s written determination reflects that the Board met its constitutional obligation to consider petitioner’s youth and its attendant characteristics in relationship to the commission of the crime. [Under Montgomery], [t]he Eighth Amendment requires a sentencer to consider a juvenile offender’s youth and attendant characteristics before punishing an offender with a life in prison…Because petitioner was entitled to a meaningful opportunity for release in which his youth, and its attendant characteristics, were considered by the Board, we agree with Supreme Court that petitioner is entitled to a de novo parole release hearing. Hawkins, supra at 36, 38, and 39-40. See also Matter of Rivera v. Stanford, 172 A.D.3d 872 (2nd Dept. 2019), in which the Parole Board’s determination to deny petitioner’s fourth application: appears to have been solely based on the seriousness of the crimes he committed…Parole Board was required to consider the fact that the petitioner was 16 years old when he committed the subject crimes [of robbery in the first degree and criminal use of a firearm in the first degree] and the attendant characteristics of his age in relationship to the commission of the crime at issue…Neither the transcript of the 2016 interview nor the Board’s determination shows that the Board considered the petitioner’s youth at the time and its attendant characteristics in relationship to the crime he committed. Instead, the record reflects that the Parole Board did not factor in the petitioner’s age at the time and the impact that his age had on his decisions and actions during the commission of these crimes when it decided to deny him parole release based on the serious nature of the instant offenses…While the Parole Board mentioned in passing that it noted the petitioner’s young age at the time the crimes were committed, it failed to set forth any meaningful discussion of that issue. Instead, the Parole Board simply discounted the petitioner’s youth at the time because it was concerned that [his] poor behavior shows limited maturity and self-control, referring back to the petitioner’s disciplinary history in prison. Rivera, supra at 876. Matter of Campbell v. Stanford, 173 A.D.3d 1012, 1014-1016 (2nd Dept. 2019) (“…[A]lthough majority of the decision denying parole focuses on the crimes of conviction [two counts of murder in the second degree], the Parole Board also considered the petitioner’s age at the time of the crimes…the Parole Board considered the petitioner’s youth and its attendant characteristics in relationship to the commission of the crime[s] at issue…and did not base its determination solely upon the seriousness of the offenses.”); Matter of Allen v. Stanford, 161 A.D.3d 1503, 1507-1508 (3rd Dept. 2018) (“…Board properly considered the necessary statutory factors, as well as petitioner’s youth…and its attendant circumstances.”); Matter of Putland v. New York State Department of Corrections and Community Supervision, 158 A.D.3d 633, 634 (2nd Dept. 2018) (“The petitioner is entitled to a meaningful opportunity for release in which the Parole Board considers, inter alia, his youth at the time of the commission of the crimes and its attendant circumstances.”); Matter of Martin v. Stanford, 58 Misc.3d 345, 347 (Sup. Ct. Cayuga Co. 2017) (“For petitioners who were under the age of eighteen at the time of the commission of the crime, the Board must also consider the youth and its attendant characteristics in relationship to the commission of the crime at issue.”). Several Courts of coordinate jurisdiction have denied motions to set aside a sentence on facts similar to the case at bar. In People v. Aponte, 42 Misc.3d 868 (Sup. Ct. Bx. Co. 2013), Hon. Richard Lee Price, J. decided the C.P.L. §440.20 motion of a defendant who was convicted of murder in the second degree, two counts of robbery in the first degree, assault in the first degree, and criminal possession of a weapon in the second degree. The crimes were committed when the defendant was seventeen years of age. In 1983, the defendant was sentenced to twenty five years to life imprisonment on the murder conviction, a consecutive term of five to fifteen years of imprisonment on the assault conviction, concurrent terms of twelve and one-half to twenty five years of imprisonment on each robbery conviction, and a concurrent term of eight and one-third years to twenty five years of imprisonment on the weapon conviction.5 On the same date, the defendant was sentenced under a separate indictment to an aggregate term of twelve and one-half to twenty five years of imprisonment, to run consecutively to the sentence on the murder conviction. Several months later, he was sentenced to eight and one-third to twenty-five years of imprisonment on a conviction for attempted murder under yet another indictment.6 In sum, this defendant faced a minimum period of forty-two and one-half years of incarceration, before consideration by the Parole Board. The defendant in Aponte argued that his sentence violated the Eighth Amendment ban against cruel and unusual punishment, because he was only seventeen years of age when the crimes were committed. The Court held that although Miller v. Alabama, and Graham v. Florida held it unconstitutional to impose life without parole on a person under the age of eighteen, Aponte had received no such sentence. “No doubt he is unhappy over the prospect that the aggregate mandatory minimum periods of imprisonment may preclude him from ever being paroled, he nevertheless remains eligible for [parole].” People v. Aponte, supra at 872. In People v. Matias, 123 N.Y.S.3d 792 (Sup. Ct. Bx Co. 2020), Hon. Steven L. Barrett, J. decided a C.P.L. §440.20 motion based upon a claim that the defendant’s imposed sentence in 1994 of consecutive terms of twenty five years to life imprisonment for two murder convictions, and a concurrent term of five to fifteen years of imprisonment on a related weapons conviction, violated the Eighth Amendment’s prohibition on cruel and unusual punishments as applied to juvenile offenders. The defendant claimed that, in contravention of Miller/Montgomery, the sentencing Court did not properly consider his youth (16 years of age at the time of commission). The motion Court held that after reviewing the pre-sentence report and hearing from counsel, it was satisfied the sentencing court was made aware and properly considered all mitigating and aggravating factors, including the defendant’s age, and “…imposed the type of individual sentence required by Miller and the Eighth Amendment.” Matias at 802. Here, as in Aponte and Matias, Defendant received sentences, in the aggregate, the mandatory minimum periods of which may prevent him from ever reaching parole status before his natural life expectancy. This Court holds that, under the unique facts and circumstances of this case, the combined sentence was in fact a de facto life sentence.7 Although Miller does not prohibit a life sentence, a juvenile may not be sentenced to an “unsurvivable” prison sentence without first considering his youth, immaturity, and potential for rehabilitation. There is no “bright line” rule for what constitutes a de facto life sentence in federal or state law, however, New York federal courts and courts across the United States have made individual rulings on the issue. For example, in United States v. McCoy, 692 Fed.Appx. 17, 22 (2nd Cir. N.Y. 2017), cert. denied 138 S.Ct. 278 (2017), the U.S. Court of Appeals for the Second Circuit held that a sentence of eighty years is “effectively a life sentence.” The Supreme Court of Illinois extended the constitutional protections set forth in Miller to juvenile defendants sentenced to more than 40 years in prison. The Court held that “[i]n determining when a juvenile defendant’s prison term is long enough to be considered de facto life without parole, we choose to draw a line at 40 years,” See People v. Buffer, 137 N.E.3d 763, (Sup. Ct. of Illinois 2019). See also People v. Woods, __ N.E.3d __ 2020 WL 4436706 (App. Ct. of Illinois, First District, Sixth Division, July 31, 2020); United States v. Grant, 887 F.3d 131 (U.S.C.A. 3rd Cir. 2018); and Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013). The People argue that references to Defendant’s age were made in both sentencings, and that both judges were aware that he was seventeen at the time he committed the murders. This Court does not doubt that the sentencing judges were aware of Defendant’s youth. The question is whether the sentencing courts considered his youth, and its attendant circumstances, when they imposed sentence. Did he receive the individualized sentencing hearing required by Miller? When Defendant was first sentenced on January 17, 1997, the prosecutor did not reference Defendant’s age or its attendant characteristics. Defense counsel spoke of “…two people actually that were the leaders of this organization, people older than this defendant somewhat more sophisticated than this defendant, and…I think perhaps even the jury recognized…that this man was being used by people older, smarter, more sophisticated, more aware of things for their own purposes, without excusing his behavior, but that somehow he was drawn into it because of these other people. I’d ask the Court to be as lenient as possible. In more specifics, I’d ask the Court to consider concurrent sentences in this case.” Transcript of January 17, 1997, Page 6, Lines 14-20, Page 7, Lines 2-10. The Court then stated: You know, Mr. Lora’s appearance, your appearance is totally inconsistent with your actions. You were perfectly gentlemanly throughout the trial, never a problem to us, and always comported yourself well, but unfortunately I can’t sentence you based on that. I don’t know what happened in your life. I am not a psychiatrist. Something went wrong someplace. At this point I can’t examine why. I am sorry that it resulted in what can only be viewed as some of the most antisocial acts that can occur, obviously murder being the most antisocial. I deliberately had a psychiatric evaluation done because I thought perhaps something was wrong with you, and that I should know about that. But the psychiatric clinic of the Supreme Court found that there’s nothing wrong with you and you don’t need any psychiatric treatment. I am not suggesting that their work-up would reach the proportion I would have liked but they find no reason for any further analysis and nothing in your background to explain the fact that you are a cold blooded killer. That’s the only way I can say it. It’s very sad that someone who probably had the potential to be otherwise resulted in being a cold blooded killer. You have evinced no emotion at any time during this courtroom appearance, at no time during the violent, vicious acts that you committee in furtherance as a leader of this drug gang and in furtherance of it’s (sic) business. The fact that other people were also in this situation just as vicious and just as criminal…is not something I can concern myself about when I sentence…Mr. Lora. And there’s really very little else to say…. Transcript of January 17, 1997, Page 8, Lines 14-25, Page 9, Lines 2-25, Page 10, Lines 2-6. Defendant was later sentenced on April 6, 1998, on the murder count for which he was re-tried and found guilty. The prosecutor, again, made no reference to Defendant’s age and its attendant characteristics. Defense counsel stated that Defendant was under the tutelage of two individuals who were purportedly the leaders of the gang. He further stated: I think it is also clear and somewhat saddened that this probation report is not fuller in terms of the defendant’s mental capacity…There is some reference to it but it’s not explored, about his mental capacity, about his educational background. I think this defendant at the time he was involved with this incident was about seventeen going on eighteen, with a limited education. I think he had some learning disorders. I think it is clear from the record and the gist of the record that this homicide was planned by [the two individuals] to some extent since they were the ones really running the spot, and they utilized Mr. Lora for their purpose. It wasn’t his idea. It was something that really affected him as much as the two superior persons in this organization, either experience or age, who happened to plead guilty in this case and got the deals that they got…I think the records that you have heard here does indicate that certainly Mr. Lora was the lesser of the three in terms of running this organization, making decisions, and I think was substantially used by them for their purpose because of his background and went along with them. Not as the initiator but certainly as the participant without a doubt. And I think that is a factor that is clear…Otherwise as the Court knows he is already sentenced to a substantial period of time which I think would basically indicate that he will be spending the rest of his life in jail. And I would ask the Court to consider whatever sentence is imposed here to run concurrent with the previous sentence imposed.” Transcript of April 6, 1998, Page 5, Lines 15-18, 20-25, Page 6, Lines 2-11, 14-25, Page 7, Lines 2-5. The Court sentenced the Defendant finding that it could see “…no mitigating factors in the overall situation in which the defendant committed these acts.” Transcript of April 6, 1998, Page7, Lines 18-20. In reviewing these proceedings, this Court cannot unequivocally state that the trial courts considered Defendant’s youth and its attendant characteristics in relationship to the commission of the crime. On the record before this Court, defense counsel merely references Defendant’s age at the time the crimes were committed. There does not appear to be any meaningful discussion of that issue and how it related to the offenses in the sentencing courts’ colloquy. Although Defendant had the benefit of a psychiatric evaluation prior to the first sentence, and both sentences were rendered after consideration of Pre-Sentence Investigations, this Court is not certain these documents adequately addressed the Miller considerations. It appears from the record, that the initial sentencing court based its determination on the Pre-Sentence Investigation, psychiatric evaluation, and counsels’ arguments. The second sentencing court appeared to find nothing of value which would mitigate against the maximum sentence, but this Court is not aware whether Defendant’s age and its attendant characteristics were adequately, or at all, considered. This Court does not sit in judgment of what a court of concurrent jurisdiction decided decades ago before the scientific advances which have provided much more insight into the adolescent brain and its development, and before the holdings in Graham, Miller, and Montgomery. In fact, both sentences could very well be appropriate, as the case law does not prohibit such sentences, only that they must be rendered with certain considerations. One cannot understate the seriousness of the heinous and depraved crimes committed here, and the need to protect the community by removing Defendant from society. Nevertheless, New York’s public policy regarding juvenile offenders has evolved over the years, as evidenced by this state’s Raise the Age (hereinafter referred to as “RTA”) legislation. See C.P.L. Article 722. This legislation raised the age of criminal responsibility and advanced the goal of rehabilitation for youth, in part, by creating a new category of “adolescent offenders.” At the time the legislation first took effect on October 1, 2018, defendants who were sixteen years of age at the time their crime was committed were treated as “adolescent offenders.” Defendants who were seventeen years of age were added in the legislation as of October 1, 2019. See C.P.L. §1.20, subd. 44. RTA provides for designated Youth Parts (with exclusive jurisdiction over adolescent offenders for initial arraignment and subsequent proceedings), removal to Family Court (under certain circumstances), specialized juvenile detention facilities, probation case-planning, and other age-appropriate services, such as parental notification and specially designed interrogation rooms. The present environment is far different from what Defendant faced over twenty years ago. Moreover, although the Court of Appeals has long held that “[r]egardless of its severity, a sentence of imprisonment which is within the limits of a valid statute is not a cruel and unusual punishment in the constitutional sense, [see People v. Jones, 39 N.Y. 694, 697 (1976); see also, People v. Broadie, 37 N.Y.2d 100 (1975), and People v. Pagnotta, 25 N.Y.2d 333, 337 (1969)], “[it] is not to say that in some rare case on its particular facts it may not be found that the statutes have been unconstitutionally applied.” People v. Broadie, supra at 119. In such a rare case, a court must apply an objective analysis, considering: “(1) the gravity of the offense, primarily in terms of the harm it causes society, but also in comparison with punishments imposed for other crimes in this State as well as with punishments for the same or similar crimes in other jurisdictions; and (2) the character of the offender and the gravity of the threat he…poses to society (internal citations omitted)” People v. Thompson, 83 N.Y.2d 477, 480 (1994), quoting People v. Broadie, supra at 100. The Aponte court relied on People v. Thomas, 83 N.Y.2d 477 (1994) (17 year old’s sentence on an A-I drug sale conviction did not implicate the Eighth Amendment) and People v. Broadie, 37 N.Y.2d 100 (1975) (in assessing whether a sentencing structure is cruel or unusual, courts consider such factors as rehabilitation, deterrence, and recidivism). Based on the foregoing, a hearing must be ordered, pursuant to C.P.L §440.30 (5), to determine whether Defendant was sentenced with deliberate reference to his youth and its attendant circumstances, at the time he committed the murders. Graham and Miller “…bar life without parole…for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility…[P]risoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition — that children who commit even heinious crimes are capable of change…” Montgomery, supra at 736. If Defendant was not sentenced accordingly, this Court must then hold a resentencing hearing to consider whether Defendant’s “diminished culpability” and “heightened capacity for change” merit a different sentence. Miller, supra at 479. This opinion constitutes the Decision and Order of the Court. Dated: September 30, 2020
