63 Misc.3d 938 (2019)

98 N.Y.S.3d 719

2019 NY Slip Op 29114


Supreme Court, New York County.

Decided April 16, 2019.

Attorney(s) appearing for the Case

Lamar Sanchez, defendant pro se.

Cyrus R. Vance, Jr. , District Attorney ( Sarah Walsh of counsel), for plaintiff.


The defendant moves here to vacate his sentence of life imprisonment without the possibility of parole (LWOP) imposed upon his conviction for first-degree murder and vacate concurrent sentences for second-degree murder and be resentenced to a determinate term of 25 years with five years of postrelease supervision. He argues that a United States Supreme Court decision, Miller v Alabama (567 U.S. 460 [2012]), which barred the imposition of mandatory LWOP sentences on children under the age of 18, should also be applied to his case. He asserts that he was 69 days past his eighteenth birthday at the time of his arrest and that advances in the scientific understanding of the adolescent brain indicate that the same considerations which motivated the Supreme Court's decision in Miller should also be applied to reduce his sentence. For the reasons outlined here, that motion is denied without an evidentiary hearing.

Statement of Facts

Mr. Sanchez was convicted after a jury trial in 1997 of one count of murder in the first degree and additional counts of second-degree murder for causing the death of three people. The crimes occurred in 1995. He received an LWOP sentence for the first-degree murder count. He received two consecutive 25 year to life terms for two counts of intentional second-degree murder (for an aggregate term of 50 years to life) to run concurrently to the LWOP sentence. He also received three consecutive 25 year to life terms for three counts of felony murder (for an aggregate term of 75 years to life) to run concurrently with the other sentences.

The People recount that the crimes occurred after the defendant's then 18-year-old girlfriend recruited him to kill her father and steal $30,000 the father kept in the family's apartment. The defendant, along with a codefendant, went to the girl's apartment, shot and killed the girl, then shot and killed the girl's mother and 14-year-old brother. They then stole $30,000 from the apartment. The father was not home at the time and was not attacked. The defendant's convictions were affirmed by the First Department and leave to appeal was denied by the Court of Appeals. (People v Sanchez, 268 A.D.2d 364 [1st Dept 2000], lv denied 95 N.Y.2d 838 [2000].) Justice McLaughlin of this court denied a previous pro se motion by the defendant seeking to vacate elements of his sentence on other grounds. (People v Sanchez, Sup Ct, NY County, Jan. 15, 2015.)

The defendant asserted at his sentencing that although he was present with his codefendant when the murders were committed, he did not commit them. The People argued, however, that he actually killed his former girlfriend and was an accomplice to the two additional murders. The First Department, in their brief decision denying the defendant's appeal, said there was "overwhelming evidence" of his guilt. (268 AD2d at 365.)

Conclusions of Law

The defendant's basic claim here is that advances in neuroscience make it clear that the same considerations which led the United States Supreme Court to prohibit mandatory LWOP sentences for children under 18 must also apply to crimes committed by young adolescents like him. He says that while he was a "reckless, violent and volatile adolescent" at the time of the murders, he is now a "mature, productive, and independent thinking adult" who has "won the respect of prison officials and fellow inmates," is supported by his family and has earned educational certificates. He provides no corroborating evidence for these claims, but the court will assume they are true for purposes of this motion. Mr. Sanchez says he has been married for 13 years.

Even before confronting the defendant's primary argument, however, there are a couple of initial bars to the relief he seeks here. First, his proposed determinate sentence of 25 years with five years of postrelease supervision would not be a lawful sentence for any of his convictions. Even were the court to accept the defendant's argument regarding his LWOP term, the only remedy this court might be able to fashion would be to change his current LWOP sentence to a sentence with a minimum term of between 20 and 25 years and a maximum term of life imprisonment. (See Penal Law § 70.00[3][a][i][A].) That would still leave, however, concurrent sentences of 50 years to life and 75 years to life intact, meaning the defendant would initially be eligible for parole consideration about the time of his 93rd birthday (assuming the 75 year minimum term imposed for his felony murder convictions would be added to his age at arrest of 18 years). That would obviously be a Pyrrhic victory.

The second problem for the defendant is what the Supreme Court held with respect to LWOP and minors under the age of 18 in Miller. There, the Court held in a five justice majority decision that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on `cruel and unusual punishments'" (567 US at 465 [emphasis added]). Mr. Sanchez received a discretionary LWOP term. (See Penal Law § 70.00[3][a][i][A] [authorizing an indeterminate sentence with a minimum term of between 20 and 25 years and a maximum life sentence for a conviction for first-degree murder]; [5] [authorizing an LWOP sentence for first-degree murder].)

Miller concerned the cases of two 14 year olds who had been convicted of murder and sentenced to LWOP. The Court noted that the sentences were mandated upon the defendants' convictions under state law "even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate." (567 US at 465.) In both cases, however, prosecutors and courts had the discretion in the first instance to try the defendants in a juvenile court where an LWOP sentence would not have been available. In Montgomery v Louisiana (577 US ___, 136 S.Ct. 718 [2016]), the Court held that Miller announced a new substantive constitutional rule which was retroactive to state convictions for which direct appeals had been exhausted. Thus, the Miller rule applies to the claim here.

The mandatory LWOP sentences at issue in Miller, the Court held, prevented the Court from taking the defendants' youth into account when imposing sentence. This was especially significant because of the Court's conclusion that LWOP and death sentences imposed similar punishments. Just as the Court had previously held that a statute which made the death penalty mandatory for certain convictions was unconstitutional, an equivalent rule for youth facing an LWOP sentence was also required. Thus, Miller held that the Eighth Amendment "forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (567 US at 479 [emphasis added].)

As noted supra, however, under New York law, by contrast, although LWOP is mandatory for certain offenses, the defendant here was subject to a discretionary LWOP term. Moreover, there were obvious facts in this case which justified a more than minimum sentence beginning with the fact that the defendant was convicted of three murders including the murder of an 18-year-old girl and a 14-year-old boy.

The Miller Court discussed the argument that LWOP should simply be prohibited for any juveniles, whether a sentencing scheme allowed for LWOP discretion or not, but found that was an argument it did not need to address. It did note, however, that "appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon" especially because "of the great difficulty ... of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." (567 US at 479-480 [citations and internal quotation marks omitted].) It is important to note, however, that although New York's LWOP statute for first-degree murder is discretionary, the statute provides no standards for how this sentencing discretion should be exercised. It does not require a court to consider a defendant's youth (although a defendant must be over the age of 18) or how a defendant's young age might counsel against an LWOP sentence.

On the other hand, New York's first-degree murder statute applies only to intentional murder and then only to certain categories of intentional murder which the legislature has deemed most egregious. (Penal Law § 125.27; see Miller [Breyer, J., and Sotomayor, J., concurring] [expressing opposition to imposing LWOP sentences on juveniles under any sentencing scheme unless a juvenile kills or intends to kill a victim, rather than allowing LWOP sentences for juveniles for felony murder].)

The final and most basic problem with the defendant's claim, of course, is that he was over the age of 18 at the time of these crimes, not under 18. The Miller Court noted that the Supreme Court has adopted "categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty." (567 US at 470 [citation omitted].) The Court noted that it had previously held that the Eighth Amendment prohibits the death penalty for children or an LWOP sentence on a child for a non-homicide offense. Children differ from adults because children lack maturity and a fully developed sense of responsibility, are more vulnerable to outside pressures and negative influences and have characters which are not as fixed as adults, meaning a child's actions are less likely to be indicative of continuing criminality. "Life without parole forswears altogether the rehabilitative ideal. It reflects an irrevocable judgment about [an offender's] value and place in society, at odds with a child's capacity for change." (567 US at 473 [citation and internal quotation marks omitted].)

Legal lines often seem arbitrary in some cases. The instant case raises the two ways in which an arbitrary line may be most problematic. First, it is a case which is very close to the 18-year-old line. Second, the consequences of being on one side or the other of the Miller line could hardly be more consequential. The 18-year-old demarcation determines whether a youth who has committed a murder may face life with no possibility of parole or may have a chance for release later in life. As the Miller Court emphasized, LWOP sentences share characteristics of death sentences, since they enact a complete forfeiture of liberty and are also more onerous when imposed on children because children will likely spend more time in prison under LWOP sentences than adults.

The 18-year-old line, however, is not the only one which the United States Supreme Court has drawn in LWOP cases. It is also the line which has been drawn by the New York State Legislature. The crime for which the defendant received an LWOP sentence, murder in the first degree, cannot be imposed upon a defendant under New York law unless he is over the age of 18. (Penal Law § 125.27[1][b].) The New York State Legislature adopted the same LWOP sentence restriction in 1995 (when the legislature enacted the sentences of LWOP and the death penalty) which the United States Supreme Court adopted as a matter of constitutional due process 17 years later.1

This court is not aware of any New York State case which has ever invalidated an LWOP sentence upon an adult offender because of the offender's youth. The Sixth Circuit rejected a similar claim in United States v Marshall (736 F.3d 492 [6th Cir 2013], cert denied 573 U.S. 922 [2014]; see also Martinez v Pfister, 2017 WL 219515, *5, 2017 US Dist LEXIS 7354, *12-14 [ND Ill, Jan. 19, 2017, No. 16 C 2886] [the Miller rule applies only to juveniles]).

On the other hand, one federal district court has applied the Miller rule to a defendant over the age of 18. (Cruz v United States, 2018 WL 1541898, 2018 US Dist LEXIS 52924 [D Conn, Mar. 29, 2018, No. 11-CV-787 (JCH)].) In that case, the defendant was convicted of two murders committed on orders of the leader of a gang he had joined but wished to leave, 20 weeks after his eighteenth birthday. He was convicted of the murders and given concurrent LWOP sentences under a statute which made those sentences mandatory. The district court found that although Miller had announced a rule applicable to children under 18, it had not held that youth over the age of 18 could not be subject to the same rule.

The court conducted an extended and thoughtful analysis of the Eighth Amendment principles at issue in the case including societal trends and scientific research, heard expert testimony and concluded that the Miller rule should be applied to the 18-year-old defendant in the case. This court, of course, is not bound by that decision. But the Cruz decision is also not applicable to what occurred here. The district court's decision in Cruz, like the Supreme Court's decision in Miller, concerned a mandatory LWOP statute. This court also respectfully disagrees with the Cruz court's conclusion that the Miller Court did not draw its prohibition line at age 18. This court reads the Miller case as indeed standing for the proposition that there is no constitutional prohibition on imposing mandatory LWOP sentences for youth aged 18 or older.

Of course, this court would have the option here to appoint counsel to the defendant (although he has not asked for that). At that point, the court might inform this newly assigned lawyer that he might consider moving for an evidentiary hearing at which the world's leading experts on adolescent brain development might be called to testify about whether drawing an LWOP prohibition line at age 18 was reasonable, given whatever advances had occurred in adolescent brain science between the Miller decision in 2012 and today. This court has opted not to do so for a couple of reasons.

It is clear that the science of adolescent brain development is more advanced today than it was when Miller was decided in 2012. That science is indeed undoubtedly advancing with each passing day. But the fact that adolescent brains are not fully developed until after age 18 was also a fact which was widely understood in the scientific community (and doubtless by the Supreme Court) at the time Miller was decided. (See discussion infra.) Second, this court does not have any reason to believe the United States Supreme Court today would expand the Miller rule to youth over the age of 18 or expand it to discretionary LWOP statutes like the one here. In this court's view, this is not a case in which this New York trial court should ask a randomly assigned attorney from New York's assigned counsel panel to mount a landmark challenge to the Eighth Amendment jurisprudence established by a series of United States Supreme Court decisions.

On the other hand, in this court's view, there are certainly strong policy arguments for allowing a resentencing motion to occur in cases like this. That is because the basic point raised by the defendant here is obviously correct: the development of the adolescent brain does not end at age 18, or any point close to that. Rather, a wealth of brain research has shown that the attributes of adolescent brains which have led courts to prohibit certain punishments for children continue to some degree until about age 25.2 The 18-year-old line certainly finds support in the lines drawn by the law for other legal responsibilities, like voting, military service or the right to marry without parental consent. On the other hand, the law also draws some lines at age 16, or age 21. Research on adolescent brain development does not support drawing Eighth Amendment lines at age 18, as opposed to, for example, 19, 20 or 21. The expert witness relied upon by the court in Cruz v United States testified that he was "absolutely certain" that the conclusions about the differences between under-18 defendants and adults which were relied upon in Miller and Graham also applied to defendants who were 18 years old. (2018 WL 1541898, *24, 2018 US Dist LEXIS 52924, *65.)

Lines with respect to the assignment of full adult criminal responsibility must be drawn somewhere, of course. But while the choice of age 18 as the demarcation for mandatory LWOP sentences has obviously been informed by brain development research, the precise place the line has been drawn is based on law and policy considerations, not science. The United States Supreme Court in finding the imposition of the death penalty unconstitutional on children under the age of 18 in Roper v Simmons (543 U.S. 551, 574 [2005]) recognized that same point 14 years ago. (Id. ["The qualities that distinguish juveniles from adults do not disappear when an individual turns 18.... The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest"]; see also id. at 600 [O'Connor, J., dissenting] ["at least at the margins between adolescence and adulthood ... the relevant differences between `adults' and `juveniles' appear to be a matter of degree, rather than of kind"].)

In this court's view, the legislature should consider allowing a discretionary motion for resentencing in cases where an offender sentenced to LWOP was under an age higher than 18 (for example, under age 21), to a life sentence with the possibility of parole. The problem is that even if such a law were enacted, the defendant here, who committed three murders, might be a particularly unsympathetic candidate for such relief. But, in this court's view, if a firm line is to be drawn in cases like this, drawing it at 18 presents an unjustifiable risk that it will exclude offenders who present the same brain development issues as minors under 18. In this case, there is no plausible argument that the defendant could not be constitutionally subject to mandatory LWOP the day before his 18th birthday because his degree of brain development at that point did not justify such an irrevocable punishment, but, 70 days later, his brain had developed to the point where subjecting him to a complete forfeiture of his liberty was justified. A different way of addressing the same issue would be through legislation now being considered in New York to allow offenders over the age of 55 to be eligible for parole.

Of course, as noted supra, lines must be drawn somewhere. But with respect to the degree of risk we are willing to tolerate that we have gotten the line wrong, the stakes here counsel a requirement for a degree of certainty we would not insist on, for example, were we deciding whether to subject a person above or below a certain age to a $50 fine. It has been often said that "death is different" and thus requires a degree of protection for criminal defendants we do not insist on for other crimes. (Furman v Georgia, 408 U.S. 238, 306 [1972] [Stewart, J., concurring].) But the Supreme Court has also asserted that "we [have] viewed this ultimate penalty [LWOP] for juveniles as akin to the death penalty" and have thus "treated it similarly to that most severe punishment." (Miller, 567 US at 475.)

Even were such a statute to be enacted, however, it might provide no benefit to the defendant unless it also allowed a resentencing for concurrent sentences imposed with an LWOP term. This court does not believe it has the discretion to grant the defendant's motion as a matter of federal constitutional law. Nor is this court aware of any authority interpreting the New York State Constitution which would allow a different result. The motion is therefore denied.


1. (L 1995, ch 1.) The New York Court of Appeals subsequently invalidated New York's death penalty in People v LaValle (3 N.Y.3d 88 [2004]) but left intact the LWOP sentences which had been enacted in conjunction with the death penalty.
2. See e.g. Matter of Kenroy C., 55 Misc.3d 535, 540 n 5 (Fam Ct, Kings County 2017) ("Cutting-edge brain imaging technology reveals that regions of the adolescent brain do not reach a fully mature state until after the age of 18. These regions are precisely those associated with impulse control, regulation of emotions, risk assessment, and moral reasoning. Critical developmental changes in these regions occur only after late adolescence"), quoting brief of the American Medical Association, American Psychiatric Association, et al. as amici curiae in support of respondent in Roper v Simmons, 543 U.S. 551 (2005), available at 2004 WL 1633549, *2-3; Christopher Ramos, Adolescent Brain Development, Mental Illness and the University-Student Relationship, 24 S Cal Rev L & Soc Just 343, 360 (2015) ("the human brain does not reach full maturity until a person reaches about twenty-five years of age" [citation omitted]); Cruz v United States, 2018 WL 1541898, *23-25, 2018 US Dist LEXIS 52924, *61-71 (discussing expert evidence in the case about the continuation of adolescent brain development until age 24).


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