People v Rudolph Kaval
People v. Rudolph Kaval (decided December 13, 2022)
Issue before the Court: Is the prosecution bound by an appellate concession that a
defendant is not a predicate offender in a subsequent resentencing in the same case?
Held: Nope, at least not “[u]nder the particular circumstances of this case,” where the
remittal order did not direct imposition of sentence as a particular type of predicate.
Discussion: In 2017, the Second Department remanded for resentencing upon
acceptance of the prosecution’s concession that insufficient tolling was alleged to
permit a 1987 conviction to be used as one of the predicate offenses for the
persistent violent felony offender (PVFO) adjudication. At resentencing, the
prosecution established sufficient tolling and the defendant was resentenced as a
PVFO. The Court agreed that the sentencing court had the authority to reimpose the
PVFO sentence based on its “inherent authority to correct illegal sentences” and the
“mandatory nature” of the persistent felony offender sentencing statutes.
Judge Wilson, alone, dissented arguing that the prosecution should not get two bites
at the apple. Having failed to establish defendant’s eligibility for a PVFO sentence
(even when explicitly challenged to prove the tolling), they should not get a do over.
He also took pains to note his disagreement with how the issue was presented; it
should not be considered a law-of-the-case claim but rather a question of what
deference the Appellate Division should be given to interpret its prior remittal order.
Moreover, the only “mandatory” aspect of the sentencing scheme was the due
process procedural requirements and no “illegal sentence” arises by the prosecution’s
failure to establish a particular predicate status.
CAL observes: In a case that purports to be a one-off with wholly unique
circumstances, there are true gems buried beneath, particularly in Judge Wilson’s
dissent.
According to Judge Wilson, the Second Department on the remittal of this case back
from the Court of Appeals “can adjust Mr. Kaval’s sentencing using its interest of
justice power as it sees fit.” Thus, he endorses a broad view of the Appellate
Division’s sentencing authority that seemingly permits them to look past statutory
minimums and/or predicate status to impose just and appropriate sentences. The
majority did not take issue with that.
The majority (and the dissent) also explicitly endorsed the notion that the Appellate
Division could have simply sent the case back to the sentencing court with a remittal
order limited to resentencing Mr. Kaval as a second violent felony and that remittal
order would have proscribed the reduced sentencing range despite unequivocal
evidence that he was a PVFO. Thus, that inherent authority to correct illegal
sentences and the mandatory nature of the PVFO sentencing scheme are, in fact,
limited. Remittal orders matter.
At resentencing, the court, though adhering to a PVFO sentence, reduced Mr.
Kaval’s sentence from 23-to-life to 20-to-life. While the majority took no issue with
that (it did not address it), Judge Wilson highlighted the plenary nature of such
resentencings. Thus, any resentencing not strictly limited by the remittal order should
be considered a de novo and plenary resentencing.
Additionally, the majority’s focus on the mandatory nature of the predicate
sentencing scheme lends further support to the argument that waivers of challenges
to predicates (see Jurgins) should be very narrowly construed. If the prosecution
could not waive their claim to have Mr. Kaval’s sentenced as a PVFO, how can a
defendant waive his claim to the unconstitutionality of a predicate or the nonequivalence
of an out-of-state predicate?
Lastly, we would be remiss not to note the bizarre contrast in this decision permitting
the prosecution to have another try at proving tolling having failed to do so originally
with the Court’s recent decision in People v. Lashley, 37 N.Y.3d 1140 (2021),
rejecting the defendant’s argument that he was entitled to resentencing based on the
prosecution’s complete failure to allege tolling for an out-of-time predicate.