Opinion
6718/95.
Decided June 30, 2006.
The defendant was charged with Assault in the Second Degree and Grand Larceny in the Second Degree under an extortion theory. During trial, he failed to appear. The trial continued in his absence. He was found not guilty on the assault count, but was found guilty of Attempted Grand Larceny in the Second Degree. In April 1996, he was sentenced in absentia to a term of 2 to 7 years. In September 2005, following a traffic stop in New Jersey, he was placed under arrest based on the bench warrant in this case. In December, he was returned to New York, and the sentence was executed. The defendant has now filed a motion pursuant to CPL § 440.20. He asks that his sentence be reduced to probation or a six-month split.
Under CPL § 430.10, a legally imposed sentence cannot be changed once service has been commenced absent specific authorization in the law. The defendant acknowledges that the sentence was legal at the time it was imposed, but contends that it is unconstitutionally cruel to apply it to him now. He is now married and has a family. He and his wife operate restaurants in Haverstraw, NY. In support of his motion, he has submitted letters from a number of Haverstraw residents attesting to his good character and importance to the community.
The People suggest that there is some question whether the defendant is living an entirely law-abiding life. However, for purposes of this motion, it will be assumed that he is the changed man he asserts to be.
A sentence may be unconstitutionally cruel if its length is so grossly disproportionate that it shocks the conscience. People v. Jones, 39 NY2d 694. In determining whether the sentence meets this standard, three factors are to be considered: the gravity of the offense; the danger the offender poses to society; and the penological purposes of the sentence. People v. Broadie, 37 NY2d 100; People v. Festo, 96 AD2d 765 (1st Dept 1983).
With respect to the first two factors, the defendant does not dispute that the sentence was appropriate given the gravity of the offense and it may be assumed that the defendant no longer poses a threat to society. As to the third factor, the defendant contends that no penological purpose would be advanced by forcing him to serve out the sentence as imposed. In support, he cites People v. Dowd, 140 Misc 2d 436 (Sup Ct, Queens County, 1988). In Dowd, the court found that it would be unconstitutionally cruel to execute the previously-imposed sentence upon the defendant, given that defendant's rehabilitive efforts in the interim.
However, there is an important distinction between this case and Dowd. In Dowd, the [*2]defendant's rehabilitation took place while he was out on bail on a stay of execution pending appeal. There is clearly a very strong penological purpose in not allowing a defendant to attempt to improve his position with respect to sentencing by jumping bail, leaving the jurisdiction, and starting a new life.
Taking into account the three factors, I do not find that imposition of the sentence is unconstitutionally cruel. Accordingly, the motion is denied.