Opinion
C-499.
Decided February 21, 2006.
HON. KATHLEEN M. RICE, District Attorney Nassau County, Mineola, New York.
By: Margaret E. Mainusch, Esq., DOMINIC J. SICHENZIA, ESQ., Carle Place, New York, Attorney for Defendant.
On December 19, 2000, Defendant pleaded guilty to grand larceny in the fourth degree (E-felony.) Sentencing was deferred for the purpose of his completing a drug rehabilitation program under the supervision of TASC.
While awaiting that sentence, he committed a series of additional crimes resulting in his pleading guilty to robbery in the first degree (B-violent felony); attempted robbery in the first degree (C-violent felony) and a violation of VTL 600(1) (a.) As part of this bargained for disposition, Defendant was sentenced to concurrent terms of 9 years determinate and 5 years post release supervision on each of the robbery counts, 1 to 4 years on the pending sentence for grand larceny and 15 days on the VTL violation.
At the time Defendant entered this plea he was made aware that if he were convicted of the crimes with which he was charged he could face consecutive jail terms of 25 years determinate and 15 years determinate plus 5 years post release supervision and 1 to 4 years for the larceny. In other words, he faced a total imprisonment of from 41 years to 44 years.
No appeal was taken, Defendant having waived his rights to such.
He now moves pursuant to CPL 440.20(1) to reduce his sentence to a term of 6 years determinate with 2½ years of post release supervision upon the ground that he is now totally rehabilitated and has "risen above the din of institutional life," claiming that as a result of his rehabilitative efforts the sentence imposed amounts to unconstitutional cruel and unusual punishment.
In support, Defendant has submitted numerous affidavits in his behalf and avers that he has completed various educational courses and addiction treatment programs such as Alcohol and Substance Abuse Treatment and Aggression Resistance Treatment; voluntarily joined Alcoholic Anonymous and Narcotics Anonymous; completed four college courses and has become a teaching assistant to help fellow inmates attain their high school equivalency degrees.
On occasion, appellate courts have reduced legally imposed sentences because of a defendant's rehabilitation as evidenced by educational achievement (see, e.g. People v. Chen, 176 AD2d 628, People v. Chambers, 123 AD2d 270; People v. Hiemel, 49 AD2d 769) and enrollment in substance abuse or other treatment programs (see, e.g. People v. Andrea F.F.; 185 AD2d 557; People v. Chen, supra; People v. Orr, 138 AD2d 416.) All of those sentence modifications were based on rehabilitations occurring either during the period between plea and sentence, during a successful appeal resulting in re-sentencing; or while a direct appeal was pending. "The discretion exercised by appellate courts in those cases was delegated to them by the Legislature and does not have a constitutional genesis in the 8th Amendment of the U.S. Constitution or article I, § 5 of the NY Constitution" (People v. Bedell, 210 AD2d 922 (Wesley, J.) (concurring op).)
"The Legislature may choose to extend additional discretion in this regard to the courts to resentence defendants based upon their rehabilitative efforts while in State custody (see, Fed. Rules Crim. Pro., rule 35[b]). However, article IV, § 4 of the NY Constitution and section 15 of the Executive Law vest authority to commute sentences for all offenses, except treason and cases of impeachment, with the Governor. The Governor's guidelines for clemency require clear and convincing evidence (1) that the applicant has made exceptional strides in self-development and improvement; (2) that the applicant has made responsible use of available rehabilitative programs and identified treatment needs; and (3) that commutation of the sentence is in the interest of justice consistent with public safety and the rehabilitation of the applicant (Guidelines for Review of Executive Clemency Applications, reprinted following McKenney's Cons. Laws of NY, Book 18, Executive Law § 15, at 18-19). While the Governor's guidelines closely parallel judicial considerations under CPL 470.15(6)(b) ( see, People v. Andrea FF., supra, 185 AD2d at 558-559, 586 N.Y.S. 2d 423), the power to grant clemency remains vested by law with the Governor and not with this Court." (People v. Bedell, supra, (Wesley, J.) (concurring op).)
Indeed, the Legislature has given such discretion to the Court in its recent amendments to the Penal Law permitted re-sentencing of certain class A-I and A-II drug felonies.
It has long been established that once a defendant accepts a plea bargain and receives the sentence promised, he will not be allowed to complain about receiving exactly what he expected (People v. McCullers, 40 AD2d 796, aff'd 33 NY2d 806.)
"By waiving the right to appeal in connection with a negotiated plea and sentence, a defendant agrees to end the proceedings entirely at the time of sentencing and to accept as reasonable the sentence imposed.
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We therefore conclude that when a defendant enters into a guilty plea that includes a valid waiver of the right to appeal, that waiver includes any challenge to the severity of the sentence. By pleading guilty and waiving the right to appeal, a defendant has foregone review of the terms of the plea, including harshness or excessiveness of the sentence." (People v. Lopez, ___ NY3d ___, 2006, Slip Op. 01195, 2006 WL 346191.)
Here, Defendant attempts to modify his sentence while still serving it. In People v. Bedell, supra, the court denied that Defendant's application to reduce her sentence upon a claim that her rehabilitation made her current sentence violative of the cruel and unusual punishment clauses of the Federal and New York State Constitutions. Judge Wesley's concurring opinion acknowledges that there is "no authority that permits a mid-sentence constitutional assessment."
This Court attempted to aid in Defendant's rehabilitation for his October 2000 grand larceny, in the hope that he would overcome his addictions and become a law abiding member of society. He squandered that opportunity, by committing additional crimes that escalated in seriousness and violence — terrifying a victim at gunpoint, while another of his victims was accompanied by her children when Defendant stole her purse. He showed further callousness in striking down his victim with this car when she attempted to recover it.
However, the Court is impressed by Defendant's efforts at rehabilitation. His completion of substance abuse programs and educational programs are admirable and praiseworthy. It is to be hoped that he will continue to take full advantage of his opportunities in prison. However, this Court does not have the authority to modify his sentence in the manner he seeks.
The plea bargain herein resulted in justice tempered with mercy. By sentencing him to nine years of incarceration when his crimes carried possible sentences in excess of forty years was a substantial downward departure. Defendant was represented by counsel at all times during the proceedings. He waived his right to appeal with full understanding the consequences. He does not now have the right to modify his sentence in the manner he requested.