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In a split decision, New York state’s highest court reversed an Appellate Division decision on sentencing a repeat offender.
Defendant Rudolph Kaval was convicted of second-degree criminal possession of a weapon and two counts of third-degree criminal possession of a weapon.
The prosecution sought to have Kaval sentenced as a persistent violent felony offender (PVFO), which requires an indeterminate sentence with a maximum of life in prison.
The prosecution cited two prior convictions to establish the designation: a March 27, 1987, conviction for second-degree robbery; and a Nov. 12, 1991, conviction for attempted second-degree robbery.
Under the law, convictions older than 10 years from the date of the current offense cannot be used to support a PVFO designation. However, periods of time when a defendant is incarcerated between the date of a prior offense and the date of the recent offense is not counted toward the 10-year period.
Kaval’s attorney challenged the use of the 1987 conviction as a predicate because the records submitted by the prosecution did not show a sufficient period between the 1987 conviction and the more recent crimes.
To be able to use the 1987 conviction as one of the two predicates to support a PVFO designation, the prosecution was required to prove that Kaval was incarcerated for at least 14 years, nine months, and 14 days between the date of the 1987 conviction and the date of the more recent offense.
The prosecution submitted a certificate of incarceration from state prison officials showing that Kaval was incarcerated for 14 years, one month, and 26 days, which was not enough.
The prosecutor told the judge that there was “approximately a year” of incarceration in “downstate facilities,” but did not provide any evidence of that incarceration. Regardless, in 2013 the judge designated Kaval a PVFO and imposed a sentence of 23 years to life.
On appeal to the Appellate Division if state Supreme Court, Second Department, Kaval argued that the prosecution failed to prove a sufficient period of incarceration to sentence him as a PVFO and the prosecution conceded the issue.
The Second Department agreed. The panel vacated the sentence and sent the case back to Supreme Court for resentencing.
At resentencing, the prosecution, for the first time, submitted records of Kaval’s incarceration in New York City jails, showing that Kaval was incarcerated for 1,047 days.
The records were obtained from the state in response to a subpoena issued six years after Kaval was first sentenced. The prosecution never explained why the records were not obtained sooner.
Based on the newly provided records, the judge adjudicated Kaval a PVFO and sentenced him to 20 years to life. On a second appeal after the resentencing the Second Department reversed that decision.
In a recent decision, the New York State Court of Appeals ruled that the Second Department “should have affirmed defendant’s resentencing as a persistent violent felony offender.”
“At the time of resentencing, Supreme Court was on notice of the supplemental evidence of defendant’s prior incarceration, which conclusively demonstrates that defendant is, in fact, a persistent violent felony offender,” the Court of Appeals wrote.
“Although we certainly do not condone the People’s unexplained lack of diligence in presenting the supplemental evidence at the original sentencing hearing, on the record before us, that evidence demonstrates that Supreme Court correctly resentenced defendant as a persistent violent felony offender,” the panel wrote.
Judge Rowan Wilson dissented.
“This is an odd case, in which the parties have mistakenly attempted to apply the law of the case doctrine and also argue about whether the People, having failed to present available evidence at the initial sentencing, can concede error on appeal and obtain a free do-over,” Wilson wrote.
“Ordinarily, whether in a civil or criminal context, we do not allow parties a second chance at an apple that could readily have been picked the first time – especially when, as here, they had an obligation to pick it the first time,” Wilson wrote.
“I would hold that (Kaval) must be sentenced as a second violent felony offender, not a persistent one. Had the shoe been on the other foot, and Mr. Kaval failed to present available evidence that might have led to a mitigation of his sentence, we would not let him reopen his sentencing procedure to seek a more lenient sentence,” Wilson wrote.
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