Opinion
No. CR99-483659
February 25, 2004
MEMORANDUM OF DECISION
Hector Estrada, petitioner, was found by a jury as not a drug dependant person and guilty on each count of the information:
Count 1: Sale of Narcotics, a violation of General Statutes Sec. 21a-278(b) which provides for a period of up to 20 years incarceration, 5 years of which are a mandatory minimum; Count 2: Sale of a Controlled Substance (Narcotics) Within 1500 feet of a School, a violation of General Statutes Sec. 21a-278a(b), which provides for a mandatory 3-year period of incarceration consecutive to a violation of General Statutes Sec. 21a-278; Count 3: Conspiracy to Commit Sale of Narcotics, a violation of General Statutes Sections 53a-48a and 21a-278(b), which provides a sentence of up to 20 years of incarceration, 5 years of which are a mandatory minimum; Count 4: Conspiracy to Commit Sale of a Controlled Substance (Narcotics) Within 1500 feet of a School, a violation of General Statutes Sections 53a-48(a) and 21a-278a(b), which provides for a mandatory 3-year period of incarceration consecutive to any conviction of General Statutes Sec. 21a-278.
The court sentenced the petitioner on Count 1 to 20 years incarceration, on Count 2 to 3 years incarceration, on Count 3 to 14 years incarceration and on Count 4 to 3 years incarceration. Each sentence is to be served consecutive one to the other for a net effective sentence of 40 years incarceration. It is this revised sentence the Division will review.
The parties did not address the remand of the Appellate Court of which the Division takes judicial notice. The Appellate Court in State v. Estrada, 71 Conn. App. 344, held that the petitioner was convicted of two separate conspiracy offenses and was ultimately penalized for both offenses and that only a single penalty prescribed by the statute can be imposed.
The Appellate Court remanded the matter with direction to merge the conviction on the two conspiracy offenses and to vacate the sentence for one of them.
In accordance with the remand, on December 4, 2002, the trial court imposed the following sentence:
Count 1: 20 years (5-year mandatory minimum);
Count 2: 3 years (mandatory minimum consecutive to Count 1);
Count 3: 17 years (5 years mandatory minimum).
Count 4 was merged in Count 3. All sentences were to be served consecutively one to the other for a net effective sentence of 40 years incarceration.
We rely for a factual basis for the offenses upon the record reported in State v. Estrada, 71 Conn. App. 344, wherein it is reported the jury reasonably could have found the following facts:
On July 27, 1999, an undercover officer, Edward Azzaro, a member of the statewide cooperative crime control task force, posed as a drug addict as part of an undercover operation to buy illegal narcotics. As part of this operation, Azzaro, dressed in street clothing, was given two ten dollar bills and was driven in an unmarked police vehicle to a location a short distance away from Poplar Street and Grand Avenue in New Haven. The target of the undercover operation at Poplar Street and Grand Avenue was a suspected drug dealer named Wilfredo Rivera, who was known frequently to wear a blue shirt with a large star on it. When Azzaro arrived at the surveillance area, he did not see Rivera, but he did see the defendant exiting a store on the corner of Poplar and Grand. The two men made eye contact, and the defendant asked Azzaro, "How many do you want?" Azzaro interpreted the question to mean how many individually wrapped pieces of narcotics did he want to purchase. Azzaro responded," Two." The defendant then offered to give Azzaro a "deal" by selling him a "bundle," which is normally ten to fifteen pieces of individually wrapped cocaine or heroine, for sixty dollars. Azzaro responded that he had only twenty dollars. The defendant replied that that was not enough and said that he would be around for an hour.
After their conversation ended, Azzaro walked down Grand Avenue, toward a prearranged pickup area. As he was walking, he saw the target of the surveillance, Rivera. Rivera and Azzaro made eye contact. Rivera asked Azzaro if he wanted "dope," a street term for heroin, to which Azzaro replied affirmatively. Rivera then said, "Yes," and gestured for Azzaro to follow him back toward Poplar Street. As the two walked back toward Poplar Street, Rivera was looking around in a manner that led Azzaro to believe that Rivera was searching for someone. Rivera began to walk down a side street, but stopped when he saw the defendant. Rivera then changed direction and began to walk ahead of Azzaro toward the defendant. Rivera walked up to the defendant, and the two walked side by side for a few seconds. The detectives, who were videotaping Azzaro, Rivera, and the defendant, caught on film the defendant's right hand pass next to Rivera's left hand. The videotape also showed that prior to this, Rivera was swinging his arms with his hands open.
At trial, Azzaro testified that he believed that the defendant had given Rivera narcotics during that "contact," even though he did not personally witness the transfer of narcotics from the defendant to Rivera, and did not know if Rivera possessed drugs when he first encountered him. After Rivera's left hand passed next to the defendant's right hand, Rivera immediately turned around, and Azzaro saw two glassine bags in Rivera's left hand where previously he had seen none. Rivera handed Azzaro the bags, and Azzaro gave him the twenty dollars. Inside the bags was a white powdery substance that later tested positive for heroin.
The videotape revealed that, as Azzaro was leaving the area, Rivera walked back to the defendant and, after briefly talking to him, took money out of his pants pocket and tried to give some of it to the defendant. The defendant did not take the money, but gestured for Rivera to follow him around the corner to the side of a building. The defendant was not arrested that day.
The area of Poplar Street and Grand Avenue where the defendant, Rivera and Azzaro exchanged the heroin was less than 400 feet from the real property comprising a public elementary school.
At the hearing before the Division counsel for the petitioner claimed that the sentence imposed upon the petitioner was excessive. Counsel represented that the target of the police investigation, Mr. Rivera, only received a six-year period of incarceration.
It is noteworthy that Mr. Rivera apparently elected to waive a trial and plead guilty. The record is devoid of the criminal history, if any, of Mr. Rivera, and the record before the Division is inadequate for any form or comparative analysis of the sentences. It is notable that the petitioner was the supplier to Mr. Rivera.
Counsel for petitioner emphasized that the quantity of narcotics sold by his client "cannot be quantified." Counsel further claimed that his client has a serious substance abuse history, despite the jury not finding petitioner drug dependent.
Counsel for the State emphasized petitioner's lengthy criminal history.
Before the Division the parties indicated that evidence consisted of only residue of a narcotic substance (heroin) that is too minute to be quantified.
The sentencing court was justifiably outraged by the conduct of the petitioner relevant to petitioner's involvement in selling narcotics, a crime for which he has a previous conviction. The sentencing court said, in part:
Mr. Estrada, you stand before the Court having been convicted of four serious felonies, which are not only serious in their consequences, but also crimes which ruin lives and carry an enormous potential for violence. Your criminal activities of July 27, 1999, were a blight against society, detrimental to the welfare of school age children in the Fair Haven community and have the untold effect of destroying lives, shattering dreams, and hurting families. The illegal sale of drugs, regardless of their quantity, is a criminal activity that is hideous and has no redeeming value.
(Transcript July 6, 2000, page 13-14.)
The trial court proceeded to comment on the outrageous criminal history of the petitioner and said in relevant part.
You are not a stranger to our criminal justice system and you have demonstrated either an unwillingness or an inability to conduct yourself as a law abiding member of our society. Since July 13, 1981 your criminal history reveals a violation of probation and convictions for twenty-one (21) crimes, including the present matters. Your average conviction rate is 1.1 convictions per year over the past nineteen years, a statistical fact that is absolutely astounding, especially when you factor in the intervening period of times you were incarcerated . . . ( Id., page 14.)
You began a life of crime at the age of 18, and for 19 years you have consistently continued to ignore, violate and defy our criminal laws. Your criminal activities include a wide and varied range of crimes reflecting convictions for a series of serious felonies, such as on two occasions robbery in the first degree, burglaries, escapes from custody, failure to appear, larcenies and sales of narcotics . . . ( Id., page 15.)
Your criminal history is absolutely deplorable Mr. Estrada and graphically depicts a man who has used our criminal justice system as a revolving door. A man who has failed to benefit from, or learn from his past periods of incarceration. A man who has failed to appreciate or even take advantage of past acts of leniency. A man who has failed to demonstrate any remorse or redeeming qualities. ( Id. 15-16.)
I have looked for mitigating circumstances in the evidence and in the pre-sentence investigation report and have found none . . . ( Id., 16.)
We have quoted the trial court at length because it demonstrates the comprehensive and thoughtful concerns of the trial court and notes the court's understandable outrage at this type of criminal activity, its effect on the entire fabric of our society and the outrage expressed at the petitioner's lengthy criminal history.
A sentencing judge has very broad discretion in imposing any sentence within the statutory limits. State v. Huey, 199 Conn. 121, 126 (1986). It is generally recognized that the purposes of sentencing include the punishment of the defendant, the protection of the public, deterrence of the defendant and the public and affording the defendant an opportunity to rehabilitate himself.
Beyond the purposes of a sentence, the sentencing court must consider such factors as the nature and circumstances of the offense, the defendant's criminal history, the defendant's historical background, including but not limited to socio-economic and educational background, the defendant's denial or acceptance of responsibility and such other mitigating and/or aggravating factors of which the court has a minimal indicium of reliability in fashioning an appropriate sentence.
State v. Huey, supra, 127.
The nature and circumstances of the offense in the case before us is a substantial component of any sentence. As outrageous an act as the sale of narcotics is we must be mindful of the facts herein: that the sale to the undercover officer from petitioner to Rivera and from Rivera to the agent was one transaction; we must also be mindful that the quantity of the narcotics was apparently a residue amount. On the other hand, the court is to consider the terrible scourge narcotics trafficking has on our society, the fact that the defendant has a prior conviction for sale of narcotics and the fact that the defendant was the supplier to the target, Mr. Rivera.
Obviously the extensive criminal history of the petitioner must be factored in to achieve an appropriate sentence. The Division need not here repeat the record of petitioner.
The components of the various factors utilized in sentencing must all be considered and certain factors justifiably demand they be given more weight than other factors. The factors to be considered must be accorded a certain degree of proportionality one to the other in order to arrive at an appropriate sentence.
It is the finding of the Division that the petitioner's criminal history, as egregious as it is, and the nature of the offense are given weight that is disproportionate to the particular criminal conduct attributable to the petitioner.
Pursuant to Connecticut Practice Book § 43-23 et seq., the Sentence Review Division is limited in the scope of its review. The Division is to determine whether the sentence imposed "should be modified because it is inappropriate or disproportionate in the light of the nature of the offense, the character of the offender, the protection of the public interest and the deterrent, rehabilitative, isolative and denunciatory purposes for which the sentence was intended." The Division is without authority to modify sentences except in accordance with the provisions of Connecticut Practice Book § 43-23 et seq., and Connecticut General Statute § 51-194, et seq.
Taking into consideration the serious nature of the crimes, the quantity of narcotics seized, the egregious extent of the petitioner's criminal history, the conduct engaged in by petitioner and other relevant factors, the Division finds that a forty (40) year sentence of incarceration for the factual basis of the crimes herein presented is inappropriate and disproportionate to others similarly situated.
The matter is referred to the Superior Court Judicial District of New Haven at G.A. 23, and, pursuant to General Statute Sec. CT Page 2854 51-196 the Superior Court shall resentence the petitioner on Count 1 to a term of 6 years, on Count 2 to a term of 3 years, and on Count 3 to a term of 6 years incarceration, each to be consecutive one to the other for a net effective sentence of 15 years incarceration.
SENTENCE MODIFIED.
Miano, J.
Holden, J.
Iannotti, J.
Miano J., Holden, J., and Iannotti, J., participated in this decision.