People v Lopez

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[*1] People v Lopez 2005 NY Slip Op 51975(U) [10 Misc 3d 1056(A)] Decided on October 7, 2005 Supreme Court, New York County Allen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2005
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Alejandro Lopez, Defendant.



3135/87



For the People: Catherine A. Christian

For the Defendant: Lloyd Epstein and Ira Mickenberg

Bruce Allen, J.

The defendant, Alejandro Lopez, was the leader of a notorious drug-selling ring in the mid 1980's. Today he has become, apparently, a model prisoner. Is he entitled to relief under a new resentencing provision of the so-called Rockefeller drug laws? Read on.

Following a jury trial in 1988 before Justice Leslie Crocker Snyder, the defendant was convicted of Criminal Possession of a Controlled Substance in the First Degree and Conspiracy in the Second Degree. Justice Snyder sentenced the defendant to consecutive maximum terms of 25 years to life on the possession count and 8 to 25 years on the conspiracy count. She also imposed a fine of $3 million. The conviction was affirmed in all respects on appeal.

The defendant, now aged 57, has been incarcerated continuously on this case for more than 17 years. He has applied to be resentenced on the possession count pursuant to the Drug Law Reform Act, L.2004 c.738, §23. As a first felony offender, the defendant would be subject to a determinate term of from 8 to 20 years. The defendant seeks any term but asserts that it should be made to run concurrent with the sentence on the conspiracy count. Even a 20 year term, if run concurrent, could make him immediately eligible for release. Under the defendant's current sentence, he will have to serve approximately six more years before he becomes eligible. As required under the Act, a hearing was held on the defendant's application. Both sides presented evidence.

Section 23 of the Drug Reform Act, which governs applications for resentence, provides in part:

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 law, in the event of a resentence and shall enter an order to that effect.

The People have taken the general position that due to the nature of the defendant's [*2]criminal activity, substantial justice requires that the application be denied. The defense position is that regardless of the defendant's past criminal conduct, he deserves reconsideration because he has demonstrated great progress toward rehabilitation while incarcerated. The initial question, then, is whether a resentencing order should be issued.

As quoted above, the Drug Reform Act requires that, unless substantial justice dictates otherwise, the court must issue an order specifying a proposed resentence. And while the Act does not define what "substantial justice" means, it does say in the same paragraph that 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." This all-inclusive language appears to apply both to the court's initial decision whether to resentence and to the final decision as to what the appropriate resentence, if any, should be.

It is undoubtedly true, as the People contend, that the main impetus for the passage of the Act was to benefit low-level participants in the drug trade, a category the defendant decidedly does not fit in. It is also likely that this legislation never would have been passed if the crack-cocaine epidemic of the 1980's and 1990's had continued unabated.

By its own terms, however, the Act is not limited to the lowest level participants. To the contrary, the Act introduces a new sentencing scheme which covers all levels of participants. The new scheme is consistent, moreover, with the legislature's demonstrated general preference for determinate sentences and post-release supervision rather than indeterminate sentences and parole. The legislature previously acted to ameliorate the law under which the defendant was sentenced by allowing merit time of up to one third of the minimum term of an indeterminate sentence for an A-I drug felony. Correction Law §803. Thus, a defendant serving a sentence of 25 years to life is now eligible for parole after serving 16 years. This change clearly suggests that the legislature no longer believes that possession of even a large amount of drugs is entirely equivalent to the A felony of intentional murder one of Justice Snyder's stated reasons for imposing the maximum sentence in this case.

Most significantly, the wording of §23 ("unless substantial justice dictates ...") indicates a strong legislative preference for determining a proposed resentence. The Legislative Memorandum in support of the Act describes the resentencing process as a "conversion" of the old sentence to a new term consistent with the prospective reforms. And while the underlying purpose of §23 is obviously ameliorative, a judge does not have to determine that a defendant is deserving of a "break" before proposing a resentence. The section explicitly contemplates that in some instances the proposed resentence may in fact be harsher than the original sentence.

Simply put, there is a strong presumption in favor of granting a resentencing application for all eligible defendants. That presumption can only be overcome by special circumstances in a particular case. Does the defendant's criminal activity represent such a special circumstance?

To be sure, as the prosecutor points out, the defendant was far from a minor player in the drug trade. He headed a sophisticated organization which, over several years, sold crack cocaine in vast quantities. The operation severely diminished the quality of life for the residents of the surrounding neighborhood and ruined the lives of the hapless souls he preyed upon. Through his drug profits, the defendant was able to maintain a lavish lifestyle. When police [*3]officers moved in and executed a search warrant at the defendant's apartment, they seized 800 glassines of cocaine with a total weight of just over four ounces. Those drugs formed the basis of the first degree possession count.

Yet the defendant's drug "spot", while one of the most brazen, was not unique. Prosecution witnesses at the hearing agreed that the defendant's operation was one of many that flourished openly at that time on the Lower East Side. True, the long-term undercover investigation turned up some evidence that the defendant's organization had carried out violent acts, including murders. But the police never charged the defendant and his co-conspirators with any such crimes.

In sum, neither the type nor the scale of the defendant's crimes is special in the sense that the legislature would not have contemplated such a scenario when passing the Act. The defendant is entitled, therefore, to a proposed resentence. Of course, even though the defendant's crimes are not grounds for denying the application for resentence, they remain the most critical factor in determining what the new sentence should be.

The key issue with regard to the resentence is whether to impose consecutive or concurrent terms. As noted, any concurrent term could result in the defendant being immediately eligible for release. At least one colleague has concluded that there is no legal power to substitute a concurrent term for a consecutive one in this situation. See, People v. Acevedo, 2005 NY Slip Op 25348 (Dutchess County Court; Hayes, J). On the other hand, another colleague reached the opposite result and substituted a concurrent sentence. Under the circumstances of that case, such a resentence, the judge reasoned, was most consistent with the statute's clear concern for reaching a just resolution. See, People v. Danilo Kinch, Ind. No. 1501/85 (Sup Ct, Kings County; Marrus, J 3/8/2005). The prosecution here, although opposing vigorously the defendant's argument for concurrent sentences, does not contend that I lack the power to do so.

Nevertheless, even if I do have the power, I decline to exercise it. In my view, there is no reason to revisit Justice Snyder's ruling that the defendant receive consecutive sentences for his leadership role in the conspiracy. Indeed, the conspiracy count really was the greater crime, despite the fact that it carried a lesser sentence. The sentence on that count should not be subsumed by the sentence on the drug count.

The remaining question, then, is the number of years to be given on the drug possession count. Again, in determining the appropriate resentence under the Act, 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."

While the defendant's involvement in the drug operation points heavily toward a sentence at the higher end of the 8 to 20 year sentencing range, there are countervailing factors, too. When the defendant was convicted in 1988 as a first felony offender of possessing 4 ounces of cocaine, the minimum sentence was 15 years to life and the maximum, which he received, was 25 years to life. If he were convicted today for possessing the same amount of cocaine, his sentence range would be remarkably less: from 3 to 10 years in jail. And even under the old law Justice Snyder expressed a willingness to impose a sentence in the neighborhood of 20 years to life to cover all charges in a pre-trial plea agreement. All of this suggests that something less than the maximum term is called for now. [*4]

In addition, the defendant's submission reveals that he has maintained an excellent disciplinary record during his many years in jail. He has taken full advantage of educational and counseling opportunities. Although he was virtually illiterate when he entered prison, he has earned his GED and completed 39 college credits. He has become a highly skilled woodworker. He has continued to take primary responsibility for the raising of his daughter, now a lawyer, and has assisted in the raising of other children in his extended family. He has been offered a job in film making upon his release. Several Corrections Officers have written letters of commendation.

To rebut the defendant's claims regarding his institutional record, the People introduced evidence at the hearing intended to show that, while in prison, the defendant has enlisted his daughter, his prospective employer, and others to manipulate funds retained from his drug proceeds. I do not find such evidence sufficient to establish that the defendant has engaged in any illicit activities, but it does raise doubts about the completeness of his application. It also indicates that the defendant has not been fully responsible in complying with the fine imposed by Justice Snyder; this is somewhat countered, however, by the fact that the People apparently made no effort to collect the fine prior to the filing of this application.

Taking into consideration all the circumstances, I propose a resentence of 17 years on the possession count, with five years of post release supervision. That sentence is to run consecutive to the defendant's sentence of 8 to 25 years on the conspiracy count. The combined minimum sentence, therefore, will be more than 25 years. The $3 million fine also remains in effect. While the defendant's actual release date is a matter to be determined by the prison authorities, it appears that under this resentence the defendant's earliest possible release date will be advanced by a few years. Such a resentence strikes a balance between the defendant's serious criminal past and his subsequent efforts to create a new life for himself. It is consistent with the interests of justice and the recent legislative enactments.

According to the Act, the defendant is free to accept or to reject this proposed resentence. Counsel should provide notice of the defendant's decision within 30 days.

October 7, 2005 _____________