The following named papers numbered 1 to 3 have been considered by the Court on this motion: Notice of Motion and Annexed Affidavit 1-2 People’s Affirmation in Opposition 3 DECISION AND ORDER Defendant was charged under three indictments (70002-82, formerly 54733-82; 70003-82, formerly 54697-82; and 70004-82, formerly 54775-82) with numerous crimes, including 146 counts of robbery in the first degree, four counts of rape in the first degree, three counts of attempted murder in the second degree, three counts of burglary in the first degree, and six counts of assault in the first degree. The People alleged that in 1982 defendant and several accomplices committed a series of heinous crimes in multiple locations in Nassau County involving numerous acts of robbery, assault, and rape. Defendant was also charged under a separate indictment (51168-82) with two counts of murder in the second degree, three counts of burglary in the first degree, and two counts of robbery in the first degree, for an incident in 1981 in which the People alleged that defendant and co-defendants broke into a boarding house in Westbury, robbed some of the boarders, and killed one of them. On November 1, 1982, defendant pled guilty to all charges in indictments 70002-82, 70003-82, and 70004-82. On December 7, 1982, this court (Harrington, J.) sentenced defendant on all three indictments. On indictment 70002-82, defendant was sentenced to multiple concurrent terms of imprisonment, the longest of which was twelve-and-one-half to twenty-five years. On indictment 70003-82, defendant was also sentenced to multiple concurrent terms of imprisonment, the longest of which was twelve-and-one-half to twenty-five years. On indictment 70004-82, defendant was also sentenced to multiple concurrent terms of imprisonment, the longest of which was twelve-and-one-half to twenty-five years. The court ordered each of these sentences to be served consecutively to each other and those previously imposed in other counties. After those sentences were imposed, however, defendant was convicted, under indictment 51168-82, after a jury trial, of two counts of murder in the second degree, three counts of burglary in the first degree, and two counts of robbery in the first degree. Defendant committed the crimes alleged in that indictment in 1981, prior to the commission of the crimes in 1982 to which defendant pleaded guilty and was sentenced under indictments 70002-82, 70003-82, and 70004-82. On June 3, 1983, the court (Harrington, J.) sentenced defendant to multiple concurrent terms of imprisonment, the longest of which was twenty-five years to life in prison. The court ordered this sentence to be served consecutively with the sentences previously imposed under indictments 70002-82, 70003-82, and 70004-82. Defendant’s judgments of conviction under indictments 70002-82, 70003-82, and 70004-82 were affirmed on appeal. People v. Martin, 104 AD2d 1063 (2d Dept 1984). Defendant’s judgment of conviction under indictment 55168-82 was also affirmed on appeal. People v. Martin, 114 AD2d 424 (2d Dept 1985). A letter from the Department of Corrections and Community Supervision (“DOCCS”) attached to the People’s papers states that DOCCS calculated defendant’s aggregate term of incarceration on all of the sentences imposed on defendant to be 1,751 and one-third years to life. In that letter, counsel for DOCCS explained that Penal Law section 70.30(1)(c), which otherwise would have limited defendant’s aggregate term of incarceration, did not apply, because of the subsequent conviction under indictment 55168-82 for two counts of murder in the second degree, a class A felony, for which defendant was sentenced to twenty-five years to life in prison, to be served consecutively with the sentences previously imposed under indictments 70002-82, 70003-82, and 70004-82. In support of that position, counsel for DOCCS cited Roballo v. Smith, 63 NY2d 485, 488 (1984) (“[Penal Law §70.30[1][c]) does not apply if at least one of the convictions was for a class A felony.”). Prior to the instant motion, defendant filed numerous petitions in various courts challenging DOCCS’ calculation of his aggregate term of incarceration. All were denied. Defendant also filed numerous motions to set aside his sentences and to set aside the judgments of convictions on numerous grounds. All were denied. Defendant also filed an inmate grievance challenging DOCCS’ calculation, and when that was denied he filed an article 78 petition, which was also denied. The denial of that petition was affirmed on appeal. Matter of Martin v. Central Office Review Committee of NYS Department of Correctional Services, 69 AD3d 1237 (3d Dept 2010). Notwithstanding the numerous decisions denying all of his prior claims, defendant filed the instant motion in which he argues, among other things, that he should be entitled to “conditional release” pursuant to federal law and the laws of other states. Defendant also argues that his aggregate term of incarceration should have been limited by Penal Law §70.30(1)(c). The People oppose defendant’s motion in its entirety. The People argue that there is no provision in the laws of the State of New York for “compassionate release” and that since defendant’s sentences were legally imposed they may not be altered. The People also argue that Penal Law §70.30(1)(c) does not apply because of the subsequent murder conviction for which he was sentenced to twenty-five years to life in prison. For the reasons that follow, defendant’s motion is denied. As the People correctly contend, there is no statute in the State of New York that allows for “compassionate release” or would otherwise entitle defendant to the relief he seeks in his motion. Although there are statutes that allow for compassionate release that are applicable to criminal cases prosecuted in other jurisdictions, there is no such statute applicable to criminal cases in New York. See People ex rel. Squirrell v. Langley, 68 Misc 3d 498, 509 (Sup Ct Putnam County 2020). Inmates who are terminally ill may be eligible for release on medical parole, (see Executive Law §259-r), which at least one court has referred to as a compassionate release program (see People v. Purley, 298 AD2d 499, 502 [2d Dept 2002]) but defendant does not seek such relief in his motion, much less establish that he is entitled to it. Moreover, notwithstanding defendant’s arguments that he is deserving of a reduced sentence, he is not entitled to such relief, because the court may only set aside a sentence if it was “unauthorized, illegally imposed or otherwise invalid as a matter of law.” CPL §440.20(1). The fact that defendant’s sentences were entirely legal and legally imposed constitutes a procedural bar to such relief. See People v. Jogie, 118 AD3d 1025 (2d Dept 2014). Moreover, the court may deny a motion to set aside a sentence if the “moving papers do not allege any ground constituting legal basis for the motion.” CPL §440.30(4)(a). Here, there is no basis to conclude that defendant’s sentences were unauthorized or otherwise invalid as a matter of law. Defendant’s argument that he should be entitled to a modification or reduction of his sentence pursuant to Penal Law §70.30(1)(c) — which has been repeatedly rejected by numerous courts — is without merit. After defendant was under indictments 70002-82, 70003-82, and 70004-82, he was subsequently convicted under indictment 55168-82 of two counts of murder in the second degree, a class A felony, and sentenced to twenty-five years to life in prison, to be served consecutively to the previously imposed sentences. Thus, Penal Law section 70.30(1)(c) is inapplicable. See Roballo, 63 NY2d at 488; see also People v. Bell, 188 AD3d 904, 907 (2d Dept 2020) (“the sentencing limitations provided in Penal Law §70.30 [1][e] do not apply where the two or more crimes include, as here, a class A felony”). Even if defendant’s claim had merit, the instant motion would not be a proper avenue for defendant to obtain relief. The appropriate relief would be to compel DOCCS to recalculate his sentence in accordance with the applicable statutory provisions. Defendant has already sought that relief and been denied. His appeal has also been denied. See Matter of Martin v. Central Office Review Committee of NYS Department of Correctional Services, 69 AD3d 1237 (3d Dept 2010). Accordingly, the court cannot modify or set aside defendant’s sentence, and his motion must be denied. This constitutes the decision and order of the court. SO ORDERED Dated: August 28, 2024
