Opinion
No. 1671/02.
2012-07-24
The PEOPLE of the State of New York v. Jose SANCHEZ, Defendant.
Charles J. Hynes, District Attorney, Kings County, Brooklyn, by ADA Thomas M. Ross, Esq., Attorney for the People. David Crow, Esq., Legal Aid Society, Criminal Appeals Bureau, New York, Attorney for the Defendant.
Charles J. Hynes, District Attorney, Kings County, Brooklyn, by ADA Thomas M. Ross, Esq., Attorney for the People. David Crow, Esq., Legal Aid Society, Criminal Appeals Bureau, New York, Attorney for the Defendant.
MATTHEW J. D'EMIC, J.
Defendant moves for an order re-sentencing him to a determinate term of incarceration on his conviction of Criminal Sale of a Controlled Substance in the Second Degree pursuant to the Drug Law Reform Act of 2009 (CPL § 440.46). A previous application to reduce his sentence on his conviction of Criminal Possession of a Controlled Substance in the First Degree was previously granted by this court on May 6, 2008.
FINDINGS OF FACT
On March 12, 2002, the defendant was arrested with a kilo of cocaine.After trial he was convicted of the A–I and B drug felonies, as well as bribery and two counts of Assault in the Second Degree for kicking the arresting police officers.
As stated above, the court re-sentenced the defendant on his conviction of first degree drug possession from 20 years to life to a determinate term of 8 years with 5 years post release supervision. At that time, the court was only authorized to review sentences on class A drug felonies (Penal Law § 70.71 [1][a] ).
With the enactment of the 2009 reform, a Court is now authorized to re-sentence a defendant convicted of a class B drug felony to a determinate sentence of from one to nine years, as long as the crime was committed prior to January 13, 2005, and the offender is still serving an indeterminate sentence with a maximum term of more than three years (CPL 440.46[1]; People v. Overton, 86 AD3d 4).
In addition, the offender must not have committed a violent felony in the ten years preceding the application for re-sentence on the drug conviction (CPL § 440.46[5][a] ). Importantly, it is only prior violent felony convictions that are exclusion offenses, measured back from the date the defendant petitions for re-sentence (People v. Sosa, 18 NY3d 436;People v. Devivo, 87 AD3d 794;People v. Lashley, 83 AD3d 868), in this case April 30, 2012.
CONCLUSIONS OF LAW
The first inquiry is whether this offender is eligible for re-sentence. The People contend that his contemporaneous assault convictions on March 3, 2003 render this petition premature since ten years have not passed since the date of conviction. In opposition, the defense argues that contemporaneous convictions are not prior convictions and thus are not exclusion offenses under the statute.
Both sides are wrong.
Clearly, the separate violent felony assault convictions related to the drug arrest must be considered under CPL § 440.46[5]. To determine otherwise would create an absurd result, one not expressed in the statute or case law. On the other hand, the People's contention that the look-back period be measured from the conviction date, and not the offense date, sets an arbitrary measure, one that can be affected by considerations such as vacations, court congestion, and illness. In fact, contrary to the People's contention, the legislation does not begin the look-back period from conviction, but, rather, from the “crime for which the person was previously convicted.” Thus, it is the date of the crime that controls. This interpretation conforms to the look-back period for determining predicate felony status (Penal Law § 70.04[6][iv] and [v] ). It also comports with the majority of appellate decisions interpreting the statute (People v. Williams, 90 AD3d 1547;People v. Bostic, 89 AD3d 1409;People v. Meckwood, 86 AD3d 865;People v. Walltower, 84 AD3d 1124).
Since the offense was committed on March 12, 2002 and the re-sentence application was filed on April 30, 2012, more than ten years have elapsed and the assault convictions are not exclusion offenses that would render Mr. Sanchez ineligible for re-sentence consideration.
Having decided that the defendant is eligible for re-sentence, the inquiry now turns to the merits of the application. It is clear that unless “substantial justice” dictates otherwise, the defendant enjoys “a presumption in favor of granting a motion for re-sentencing” (People v. Gonzalez, 96 AD3d 875). It is therefore required that a court conduct a searching review of the applicant's personal history, including his criminal record (People v. Winfield, 59 AD3d 747); the circumstances of the drug offense (People v. Herrera, 54 AD3d 873); and his prison infractions (People v. Myles, 90 AD3d 952).
The defendant, prior to these drug and related convictions, had a misdemeanor weapons possession and felony drug conviction. In this case, he was caught with a kilogram of cocaine and assaulted the arresting officers. His record of prison infractions is alarming, consisting of over thirty serious and often violent acts of misconduct. He also has a poor record in prison rehabilitation programs.
In the defendant's prior application, this court was willing to overlook much of his behavior in reducing a sentence of twenty years to life to eight years because of his mental instability. On this application, however, the nine year history of prison violence and dangerous behavior cannot be discounted in determining substantial justice.
The defendant argues that his sentence of 5 to 15 years on the B felony is now greater than his reduced sentence on the A felony, somehow perpetrating an injustice. The truth, however, is that he would be released on that sentence but for his own egregious behavior; behavior for which he is responsible in spite of any psychiatric diagnosis.
The court finds for the reasons stated that substantial justice requires the denial of the application for re-sentence. Public safety dictates that those presently responsible for his continued incarceration or release, that is, the New York State Department of Correctional Services and Division of Parole are in the best position to make the determination of when the defendant can safely return to the community (People v. Green, 94 AD3d 907;People v. Gonzalez, 92 AD3d 798;People v. Miller, 88 AD3d 1015;People v. Karim, 85 AD3d 943;People v. Colon, 77 AD3d 849).
This constitutes the Decision and Order of the court.