To: Howard Levine
From: Nataliya Borushchak
Re: Jerryed Burgess
Date: October 26, 2015
Whether the Department Of Corrections of NYS will credit the defendant for the time that he was already in if Honorable Judge Fabrizio sentences him to nunc pro tunc. That will indicate his consideration effective as of some earlier date to be release from incarceration by the order of the Honorable Judge.
On May 4, 2015, defendant Jerryed Burgess was sentenced by the Bronx Supreme Court to the time of incarceration of one and a half to three years of state prison in full satisfaction of the plea: “ …a plea of guilty to 110/120.05, Attempted Assault in the Second Degree, an E nonviolent felony, with the understanding that he is going to be sentenced to a minimum of one and a half years and a maximum of three years in state prison.
He is going to get credit for all two years and approximately four months of time that he has currently been incarcerated and the prosecutor on April 29th is going to be dismissing his misdemeanor case that's on in AP5 on that date.” (page 3)
The appellate court noted that the Latin phrase nunc pro tunc, translated as “now for then,” signifies that “a thing is now done which should have been done on the specified date.” The court explained, “before a court order or judgment may be ordered nunc pro tunc to take effect on a certain prior date, there must first be an order or judgment actually decreed or signed on that prior date.” The court further noted that a decreed or signed order or judgment “not entered due to accident, mistake, or neglect of the clerk,” may be appropriately entered at a later date nunc pro tunc to the date when it was decreed or signed—provided that no prejudice has arisen. A nunc pro tunc order is a way for a Judge to correct an order previously made which was improperly entered or expressed.
The plea agreement that was promised to the defendant must be kept as it is in Brady v United States 397 U.S.742 (1970). That clearly stays that The voluntariness of plea of guilty must be governed by the following standard “(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).”
Finally, the majority observed that the plea was intelligently made, in that he was “advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more t...