People v Howard

[*1] People v Howard 2005 NY Slip Op 51862(U) [9 Misc 3d 1130(A)] Decided on November 15, 2005 Westchester County Ct Bellantoni, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 15, 2005
Westchester County Ct

THE PEOPLE OF THE STATE OF NEW YORK,

against

MORRIS HOWARD, Defendant.



75-0039

Rory J. Bellantoni, J.

Defendant has moved this Court for re-sentencing under the Rockefeller Drug Reform Laws. NY Penal Law §§60.40, 70.70, 70.71; §23 of the NY Penal Ch. 40, Pt. Three, Article 220 Refs & Annos. The case appeared on the Court's calendar on August 10, 2005, and September 21, 2005. In addition, the following papers were read:

Memorandum in Support of Re-Sentencing, with exhibits1-2

Affirmation of ADA Joseph Latino,

Memorandum of Law3-4

Based upon the foregoing papers, it is hereby ORDERED that Defendant's motion is denied in its entirety.

Defendant's motion for re-sentencing concerns Indictment No. 75-0039, which was consolidated with Indictment No. 75-0040, at both the trial and appellate level. Defendant pleaded guilty to both Indictments at the same time, as detailed herein.

By way of background, pursuant to Indictment No. 73-0540, Defendant was charged with Kidnapping in the First Degree, Robbery in the First Degree, Grand Larceny in the Third Degree, Attempted Grand Larceny in the First Degree, Robbery in the Second Degree, and Possession of a Weapon, Dangerous Instrument and Appliance as a felony. On June 17, 1975, Defendant was convicted after a jury trial of all counts. On July 18, 1975, Defendant was sentenced to the following terms of imprisonment: (i) twenty years to life for the Kidnapping conviction; (ii) zero to twenty years for each count of Robbery in the First Degree; (iii) zero to four years for Grand Larceny in the Third Degree; (iv) zero to seven years for Attempted Grand Larceny in the First Degree and the Weapons charge; and (v) zero to ten years for Robbery in the Second Degree. All [*2]sentences were ordered to run concurrently. Defendant's convictions arose from a series of events that occurred on March 19, 1973, when Defendant abducted a record store owner in an attempt to rob him. Defendant's convictions under Indictment No. 73-0540 were affirmed by the Appellate Division, Second Department. People v. Howard, 55 AD2d 1054, 391 NYS2d 777 (2nd Dep't 1977).

On or about November 21, 1975, Defendant was convicted, upon his plea of guilty to Indictment No. 75-0039, of Criminal Sale of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the First Degree, and Criminal Possession of a Controlled Substance in the Third Degree. On or about December 18, 1975, Defendant was sentenced to two indeterminate terms of twenty-five years to life imprisonment for his conviction of Criminal Sale of a Controlled Substance in the First Degree, and Criminal Possession of a Controlled Substance in the First Degree. At the same time, Defendant was sentenced to 8 1/3 years to life imprisonment for his conviction of Criminal Possession of a Controlled Substance in the Third Degree. All three sentences were ordered to run concurrently. In addition, Defendant's sentence under Indictment No. 75-0039, was ordered to run concurrently with his sentences under Indictment 73-0540, for Kidnapping and other related violent crimes. The facts underlying the charges contained in Indictment No. 75-0039 concern the seizure of one kilogram of cocaine from Defendant's apartment on or about January 8, 1975.

At the same time Defendant pleaded guilty to the charges contained in Indictment No. 75-0039, Defendant also pleaded guilty to Indictment No. 75-0040, by which Defendant was charged with the crimes of Criminal Sale of a Controlled Substance in the Second Degree, and Criminal Possession of a Controlled Substance in the Third Degree. Defendant was sentenced to two indeterminate terms of 8 1/3 years to life imprisonment for his conviction under Indictment No. 75-0040, which sentences were to run concurrently with one another, and to run concurrently to the sentences imposed upon Defendant under Indictment No. 75-0039, as well as to the sentences imposed upon him under Indictment No. 73-0540. The charges underlying Indictment No. 75-0040 arose from a drug transaction that occurred on the night of January 8, 1975.

Defendant's convictions under Indictment Nos. 75-0039 and 75-0040 were unanimously affirmed by the Appellate Division, Second Department. People v. Howard, 60 AD2d 636, 400 NYS2d 184 (2nd Dep't 1977).

By Indictment No. 75-0598, Defendant was charged with Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree. On or about June 3, 1976, Defendant pleaded guilty to Murder in the Second Degree in full satisfaction of said indictment. On June 24, 1976, Defendant was sentenced to a term of fifteen years to life imprisonment for his conviction, to run concurrently with his sentences under Indictment Nos. 73-540, 75-0039 and 75-0040. The murder charge arose from a drug transaction that occurred on or about January 8, 1975, during which Defendant shot the victim after a dispute about payment.

Despite a rather lengthy and inclusive criminal history, Defendant, in essence, was [*3]sentenced to a total of 25 years to life imprisonment for all of his crimes as all of his prison terms were ordered to run concurrently; Defendant could have received consecutive sentences totaling at least 68 1/3 to life.

Defendant now moves to be re-sentenced on his convictions for Criminal Sale of a Controlled Substance in the First Degree, and Criminal Possession of a Controlled Substance in the First Degree, under Indictment No. 75-0039, both A-I felonies, pursuant to the Rockefeller Drug Reform Laws. NY Penal Law §§60.40, 70.70, 70.71; §23 of the NY Penal Ch. 40, Pt. Three, Article 220 Refs & Annos. Defendant alleges that the offenses for which he is now incarcerated occurred over thirty years ago when Defendant was approximately thirty years old. Defendant asserts that he has been a model prisoner and that he is one of the success stories of the New York State prison system. Defendant claims that he has acknowledged the mistakes of his early life, and served his period of punishment appropriately and without incident. Defendant asserts that he has led a positive life in prison, having participated in all available education programs, successfully completed those programs, and worked in positions of increased responsibility and trust. Nonetheless, the Court notes that Defendant has been denied parole four times since becoming eligible in 1999.

In consideration of the foregoing, and for the reasons set forth herein, Defendant's motion for re-sentencing is denied in its entirety.

In December 2004, the New York State Legislature passed the Rockefeller Drug Reform Law (L. 2004, ch. 738, §§ 1-41, et seq.). The legislation provided for a new determinate sentencing scheme that ameliorated the harshness of the sentences for felony drug offenses defined in Penal Law Article 220 or 221. Under the new law, defendants who have been convicted of certain felony drug offenses before enactment of the new statute may apply for re-sentencing under the new statute. Upon application, a defendant serving an indeterminate sentence of at least 15 years to life for an A-I felony drug offense may be re-sentenced under NY PENAL Law §70.71. Upon a defendant's application to be re-sentenced, the Court: may consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by such person or the People and may, in addition, consider the institutional record of confinement of such person, but shall not order a new pre-sentence investigation and report or entertain any matter challenging the underlying basis of the subject conviction. The court shall offer an opportunity for a hearing and bring the applicant before it. The court may also conduct a hearing, if necessary, to determine whether such person qualifies to be re-sentenced or to determine any controverted issue of fact relevant to the issue of sentencing. Upon its review of the submissions and the findings of fact made in connection with the application, the court shall, unless substantial justice dictates that the application should be denied, in which event the court shall issue an order denying the application, specify and inform such person of the term of a determinate sentence of imprisonment it would impose upon such conviction, as authorized for a class A-I felony by and in accordance with section 70.71 of the penal [*4]law, in the event of a re-sentence and shall enter an order to that effect.[FN1] (emphasis added)

It is clear by a plain reading of the statute that a Court is not required to grant a Defendant's motion for re-sentencing. Indeed, a court may deny the application if substantial justice dictates. People v. LaFontaine, 9 Misc 3d 434, 799 NYS2d 729 (Sup. Ct. NY Co. 2005)

In People v. LaFontaine, 9 Misc 3d 434, 799 NYS2d 729, the Court found that substantial justice dictated that it deny a defendant's motion for re-sentencing under the Drug Reform Laws. Defendant therein was a seller of multi-kilogram quantities of heroin and cocaine, and the leader of a thirteen-plus member drug conspiracy. According to the Court, "the narcotics that defendant routinely distributed throughout New York City destroyed lives, ruined families and wrecked the community." People v. LaFontaine, 9 Misc 3d at 440, 799 NYS2d at 733. The Court found that substantial justice warranted that it deny the defendant's motion for re-sentencing since the defendant was not an individual within the category of persons whom the Drug Reform Laws sought to assist. Id.

Notably, in rendering its decision, the Court in People v. LaFontaine stated that there is no explanation in the statute concerning what constitutes "substantial justice", nor is there any specific statutory guidance regarding when "substantial justice" warrants the denial of an application for re-sentencing. People v. LaFontaine, 9 Misc 3d at 437, 799 NYS2d at 731. The Court therefore considered the circumstances that led to the enactment of the statute, one of which was to ameliorate Draconian sentences imposed against first time, or low-level drug offenders.[FN2] Indeed, the Court in People v. LaFontaine described the purpose of the statute as follows: For decades, politicians, the public, and the press, have denounced the mandatory sentences required under the so-called Rockefeller drug laws as harsh and Draconian. Periodically, the news media would draw public attention to a tragic story of someone jailed for up to twenty-five years to life for participating in a single drug sale for fiscal or addiction considerations. The legislators who supported the new statute identified those deserving of more lenient treatment as low-level, non-violent drug offenders, first-time offenders who were misguided in their youth, mules, addicts driven to possession or selling drugs because of a drug habit, or others duped or coerced into a drug transaction by a supposed friend or a domineering spouse. As the Senate Majority Leader said when speaking in support of the new sentencing scheme, the new statute serves to "help [the offenders] get out of trouble, straighten out their lives, be productive and constructive citizens."

[*5]People v. LaFontaine, 9 Misc 3d at 437-438, 799 NYS2d at 731-732.

In light of the foregoing, and in consideration of the facts and circumstances surrounding Defendant's incarceration, substantial justice dictates that the within Defendant's motion for re-sentencing pursuant to the Rockefeller Drug Reform Laws be denied. NY Penal Law §§60.40, 70.70, 70.71; §23 of the NY Penal Ch. 40, Pt. Three, Article 220 Refs & Annos.

Defendant simply is not within the category of individuals that the Rockefeller Drug Reform Laws were enacted to assist. The Defendant was at the helm of a one man crime wave in the mid-1970's. In 1973, Defendant was convicted of Kidnapping, Robbery in the First Degree, Grand Larceny in the Third Degree, Attempted Grand Larceny in the First Degree, Robbery in the Second Degree, and Possession of a Weapon. In 1975, Defendant was convicted of Criminal Sale of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the First Degree, Criminal Sale of a Controlled Substance in the Second Degree, and Criminal Possession of a Controlled Substance in the Third Degree. In 1976, Defendant was convicted of Murder in the Second Degree. All of Defendant's convictions arose from unrelated crimes that were separate and distinct from each other. This is not a case where Defendant was convicted of several incidents that were part of the same transaction or occurrence. Defendant simply is not one of those individuals who was a first-time offender, or who was misguided in his youth.

As Defendant's criminal history illustrates, Defendant was not a first-time or low-level drug offender. The seizure of drugs from Defendant's apartment on January 9, 1975 was the result of an undercover investigation that took place in late 1974 and early 1975, and was aimed at purchasing large quantities of narcotics from major dealers, of which Defendant was one. Defendant's murder conviction arose from a drug transaction gone awry during which Defendant shot the victim after a dispute about payment. Defendant was also convicted in 1973 of Kidnapping and Robbery during an incident where Defendant abducted a record store owner in attempt to rob him. It is clear that Defendant is not within the contemplation of those individuals to whom the legislature sought to grant relief through its enactment of the Drug Reform Laws.

Defendant has already received a benefit by having been sentenced to concurrent terms of imprisonment for his convictions under Indictment Nos. 75-0039 and 75-0040. Defendant pleaded guilty to Indictment Nos. 75-0039 and 75-0040 after being convicted by a jury under Indictment No. 73-0540. Defendant was sentenced to concurrent sentences for his convictions under Indictment Nos. 73-0540, 75-0039, 75-0040 and 75-598, when he easily could have been sentenced to consecutive sentences consecutive terms of up to 68 1/3 years to life imprisonment. The Court can infer that Defendant pleaded guilty to Indictments 75-0039, 75-0040, and 75-598, to avoid consecutive sentences since at the time of his pleas, Defendant was incarcerated on his convictions for Kidnapping and other related violent offenses under Indictment No. 73-0540. Defendant obtained a benefit from pleading guilty and receiving concurrent terms of imprisonment on his convictions under Indictment Nos. 75-0039 and 75-0040, which were also ordered to run concurrently with his sentences of imprisonment under [*6]Indictment No. 73-0540, for Kidnapping and other related violent offenses. Substantial justice therefore dictates that Defendant not receive yet another benefit by being re-sentenced under the Rockefeller Drug Reform Laws.

If this Court were to grant Defendant's application for re-sentencing under the Rockefeller Drug Reform Laws, it would, in essence, eviscerate the exception contained in the Drug Reform Laws that provides a Court may deny an application for re-sentencing where substantial justice dictates. Defendant herein is a violent predicate felon who has been convicted of, or pleaded guilty to, virtually every type of major crime conceivable, to wit: Murder in the Second Degree, Kidnapping, Robbery in the First Degree, Grand Larceny in the Third Degree, Attempted Grand Larceny in the First Degree, Robbery in the Second Degree, Possession of a Weapon, Criminal Sale of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the First Degree, Criminal Sale of a Controlled Substance in the Second Degree, and Criminal Possession of a Controlled Substance in the Third Degree. If this Court grants Defendant's application it would effectively create a per se right to re-sentencing for any defendant with any type of criminal history. By granting Defendant's application herein, the Court would create precedent whereby almost any Defendant would be automatically entitled to re-sentencing, as it is difficult to imagine many Defendants having more serious criminal histories than this Defendant.[FN3] Substantial justice mandates that this Court deny Defendant's application for re-sentencing based upon Defendant's extensive and varied criminal history.

Finally, the Court notes that even if it were to grant Defendant's application for re-sentencing, Defendant would not be released from jail since he is still serving a sentence of imprisonment on the Murder, Kidnapping, Robbery, Grand Larceny, Robbery in the Second Degree, and Weapons Possession convictions (Indictment Nos. 73-0540 and 75-0598), as well as 8 1/3 to life for his convictions on drug charges under Indictment No. 75-0040. It appears that Defendant has moved for re-sentencing with the hope that his motion will be granted and that the parole board will therefore look favorably upon him at his next parole board appearance, thereby increasing his chances for parole.[FN4] Defendant, therefore, is not utilizing the instant application solely to ameliorate an unduly harsh prison sentence on various drug charges, but to obtain a favorable inference to be used at his next parole hearing with respect to his Murder, Kidnapping and other convictions. Hence, Defendant is not within the group of persons contemplated by the legislature when it enacted the Drug Reform Laws. [*7]

While it is noteworthy that Defendant has realized the error of his youth, and has changed his life during his imprisonment, the Court finds that substantial justice dictates that Defendant's motion for re-sentencing under the Rockefeller Drug Reform Laws be denied.

The foregoing constitutes the Decision and Order of the Court.

Dated:November 15, 2005

White Plains, New York

__________________________________________

Hon. Rory J. Bellantoni

County Court Judge

Westchester County

Office of the District Attorney

Richard J. Daronco Courthouse

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Ted Brundage, Esq.

200 Mamaroneck Avenue

White Plains, NY 10601

Footnotes

Footnote 1:Defendant herein was afforded an opportunity for a hearing, but Defendant waived said hearing.

Footnote 2:The Court cited McKinney's Cons. Laws of NY, Book 1, Statutes §124 ["In ascertaining the purpose and applicability of a statute, it is proper to consider the legislative history of the act, the circumstances surrounding the statute's passage, and the history of the times"].

Footnote 3:It should be noted that the Court in People v. LaFontaine denied an application for re-sentencing to a defendant with a substantially shorter criminal resume than that of Defendant herein.

Footnote 4:Defendant's motion states: "Mr. Howard will continue to appear before the Parole Board in his efforts to be granted parole on those matters completely independent of this conviction. It is important to Mr. Howard that he be relieved of the burden of this continuing sentence each time he seeks parole on the other matters." Defendant's Memorandum of Law p. 7.