People v. Lora

70 Misc.3d 181

133 N.Y.S.3d 412

The PEOPLE of the State of New York,

v.Jose LORA, Defendant.

9482-94

4824-95

5293-95

Supreme Court, New York County, New York.

Decided September 30, 2020

Gary Galperin, Esq., Assistant District Attorney, District Attorney, New York County, One Hogan Place, New York, New York 10013

Eugene Nathanson, Esq., Attorney for Defendant, 80 Broad Street, Floor 5, New York, New York 10004

Juan M. Merchan, J.

HON. JUAN M. MERCHAN, A.J.S.C.:

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, 748 N.Y.S.2d 8 (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, 754 N.Y.S.2d 213, 784 N.E.2d 86 (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 , 2005 WL 372295 (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 , 2010 WL 3632506 (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 , ––– U.S. ––––, 139 S.Ct. 1317, 203 L.Ed.2d 563 (2019). 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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (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...