People v Cintron

[*1] People v Cintron 2005 NY Slip Op 52173(U) [10 Misc 3d 1066(A)] Decided on November 9, 2005 Supreme Court, Bronx County Greenberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2005
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Eliezer Cintron, Defendant.



7862/87

Ethan Greenberg, J.

Defendant Eliezer Cintron petitions pursuant to the Rockefeller Drug Law Reform Act of 2004 for resentence.

Pursuant to this Court's Interim Order of October 12, 2005, defendant requested a hearing on his Petition, see People v. Figueroa, 21 AD2d 337 (1st Dept. 2005), and a hearing was conducted before this Court on November 4, 2005.

Based on the foregoing, and upon all prior proceedings and papers in this case [FN1], the Court makes the following Findings of Fact and Conclusions of Law.

On or about March 22, 1989, a jury found defendant Cintron guilty of Criminal Possession of a Controlled Substance in the First Degree (PL §220.21[1]), Unlawful Imprisonment in the First Degree (PL §135.10) (three counts), Endangering the Welfare of a Child (PL §260.10) (two counts), Assault in the Third Degree (PL §120.00[1]), Criminal Possession of a Weapon in the Fourth Degree (PL §265.01[1]) (three counts), and Criminal Possession of a Weapon in the Fourth Degree (PL §265.01[4]).

Mr. Cintron's crimes in this case were truly terrible. He beat his girlfriend Jacqueline Curet with a broomstick and with his fists. He held Ms. Curet and her two small children prisoner in their apartment for several days. The police were summoned to rescue Ms. Curet. When they did so, they also recovered 1,010 vials of crack cocaine, three revolvers, and one rifle, all belonging to the defendant. [*2]

On or about May 1, 1989, the trial judge, the Hon. Ivan Warner sentenced defendant, as a second felony offender, to terms of imprisonment of fifteen years to life on the drug felony, one to four years [FN2] on the Unlawful Imprisonment charges, and one year on each of the misdemeanor counts, with all these sentences to run concurrently. Defendant appealed. His conviction was affirmed. People v. Cintron, 173 AD2d 277 (1st Dept.), leave denied, 78 NY2d 1074 (1991).

As noted, Justice Warner sentenced defendant to the then applicable legal minimum sentence of fifteen years-to-life on his A-1 drug felony conviction. At the same time, however, Justice Warner took care to state: All sentences are to run concurrently, and I would strongly suggest, most strongly suggest to the parole authorities and the District Attorney's office of Bronx County that before this defendant is released from incarceration that they give careful study to this individual and his entire life and the interests of the community . . . .

(Tr., May 1, 1989, pp. 18-19.)

Justice Warner passed away in 1994. Defendant's Petition was randomly assigned to this Court on or about October 11, 2005.

Pursuant to the provisions of the Rockefeller Drug Law Reform Act of 2004 (the "Reform Act"), defendant Cintron is entitled to petition for resentence. A defendant, such as Mr. Cintron, who was convicted of a Class A-1 drug felony and sentenced under the pre-Reform Act law as a second felony offender, may now be resentenced to a determinate sentence within the range of fifteen to thirty years pursuant to the Reform Act where (as here) the prior felony was a violent felony. PL §§60.09, 70.71. On the other hand, under the Reform Act the Court may instead deny defendant's Petition for resentence if "substantial justice" so dictates. (L-2004, Ch. 738, §23.) See People v. Lafontaine, 9 Misc 3d 434 (Sup. Ct., NY Co. 2005).

Defendant has a serious criminal record separate and apart from this case. In 1978 he was arrested for Arson in the Second Degree, and ultimately pleaded guilty to Reckless Endangerment in the First Degree, a Class D Felony.[FN3] It appears that this Reckless Endangerment case grew out of an incident where defendant attempted to set fire to a house occupied by a former girlfriend and her family. Defendant was sentenced to sixty days in prison, together with five years probation. In 1980 defendant absconded from probation and did not return until rearrested on new charges in September of 1985. On September 28 of 1985 defendant was arrested and charged with a rape and unlawful imprisonment committed that same day; defendant ultimately pleaded guilty to the misdemeanor Sexual Misconduct, and received six months in prison. It appears that the Sexual Misconduct case grew out of an incident where defendant had sex with a sixteen year old girl. In October of 1985 defendant was arrested and charged with a felony assault committed on September 4, 1985. He ultimately pleaded guilty to Attempted Assault in the First Degree and received a prison sentence of 16 months to four years. It appears that this Attempted Assault conviction grew out of an incident where defendant (who was originally involved in a fight with a girlfriend) hit a good samaritan in the face with a bottle, inflicting wounds requiring eighty stitches.

It further appears (from defendant's NYSIID sheet) that defendant was released on parole following his Attempted Assault conviction in July, 1987. Thus he had been at liberty for less [*3]than one-half a year when he committed the crimes charged in the present case in December of 1987.

Section 23 of the Reform Act expressly provides that a defendant's "institutional record of confinement" is among the factors that may be considered upon a petition for resentence. Defendant Cintron has had a mixed record while in prison. Between the years 1990 and 2000 he was found guilty in six different disciplinary proceedings, as detailed in the People's submission. Two of those proceedings involved charges of fighting. Defendant is not eligible for any merit time reduction in his sentence because he was found guilty of a Tier 3 violation. He has been eligible for parole since 2002 (once he served fifteen years in prison), but the parole authorities have not seen fit to release defendant. (Defendant was most recently denied parole in October of 2004.) On the other hand, defendant has not been cited for any infractions since the year 2000, and (as detailed in the Report of the Legal Aid Sentencing Specialist Shreya Mandal, LMSW) he has made significant progress in his pre-GED classes and in counseling in recent years.

The Court is mindful that upon resentence defendant would be subject to a mandatory period of five years post-release supervision. In addition, it appears that defendant was convicted of Unlawful Imprisonment in connection with two children then under the age of three years; accordingly, it also appears that upon his release from prison defendant will be required to register as a Sex Offender pursuant to the Sex Offender Registration Act. Thus defendant will be subject to significant supervision and oversight upon his release from prison.

The Reform Act is less than one year old. So far there have been only a few decisions that apply the Act and explicate its meaning and purpose. In the most general terms, the self-evident purpose of the Reform Act's resentencing provisions is to allow some defendants sentenced under prior law to seek a reduction in their sentences; the Reform Act thus embodies the Legislature's determination that some of the mandatory sentence provisions of the old "Rockefeller Drug Laws" were too severe.

It is true that, as noted in People v. Lafontaine, 9 Misc 3d 434(S. Ct., NY Co. 2005), the primary focus of many of the legislators who supported the Reform Act was to address a limited number of cases where a relatively sympathetic defendant received a sentence of fifteen or twenty-five years to life. In particular, the legislative debates evidence a special concern for youthful non-violent defendants who had participated in only one drug transaction, and had done so either because of their own addiction or because of financial hardship. See Lafontaine at 437-38.

However, the substance of the Reform Act makes it plain that the Legislature intended to make resentencing available to a wider range of defendants. For example, under the terms of the Reform Act, even a defendant like Mr. Cintron - - who had two felony convictions (one violent) prior to his A-1 felony drug conviction herein - - is entitled to petition for resentence. The Reform Act thus embodies a legislative determination that the former Rockefeller Drug Law's sentencing provisions for A-1 felonies were too severe across a broad spectrum of cases. (Moreover, the new statute is consistent with the Legislature's recently demonstrated general preference for determinate sentences coupled with post-release supervision, rather than indeterminate sentences coupled with parole.) See People v. Alejandro Lopez, N.Y.L.J., October 18, 2005, p. 18, col. 1 (Sup. Ct., NY Co.) (Allen, J.).

Defendant Cintron seeks to be resentenced to the legal minimum of fifteen years in prison.[FN4] The Court believes such a sentence would be too lenient. Defendant is not a first time, [*4]or even a second-time, offender. He has two separate felony convictions - - one for Reckless Endangerment in the First Degree and one for Attempted Assault in the First Degree - - prior to this case. This case was not solely about the non-violent possession of drugs; rather, the case involved acts of brutal violence and deliberate intimidation committed by defendant against his girlfriend and her defenseless small children. Moreover, defendant possessed a cache of four firearms - - in all likelihood intended to protect his illegal drugs. The sheer volume of drugs recovered - - 1,010 vials of crack cocaine - - suggests that defendant was a successful professional drug dealer. (See Tr., May 1, 1989, p.16.) The parole authorities - - who are best able to understand and evaluate defendant's institutional confinement record in the context of similarly situated defendants - - have not yet determined that defendant is a good candidate for release. For all these reasons, the legal minimum sentence of fifteen years is not appropriate here. [FN5]

For their part, the People ask that defendant be denied resentence altogether, leaving undisturbed the original mandatory fifteen year to life sentence. The Court believes that such a course would be too harsh. As detailed in Ms. Mandal's Report, defendant has made a genuine effort over the last five or so years to prepare to return to society and to lead a law-abiding life. He has now served nearly eighteen long hard years in a penitentiary for the crime of possessing narcotics. Consistent with the Reform Act's overarching ameliorative purposes, the Court finds that defendant is an appropriate candidate for resentence.

Having given due consideration to all these different and sometimes countervailing factors, the Court finds that a sentence of twenty years in prison is warranted here.

Accordingly, it is hereby Ordered that - - unless defendant withdraws his Petition for Resentence or appeals from this Order within the time period required by law - - this Court will enter an Order vacating defendant's original indeterminate sentence of fifteen years to life following his conviction for Criminal Possession of a Controlled Substance in the First Degree,

and imposing a determinate concurrent sentence of twenty years in prison, together with a period of five years post-release supervision, for said crime.

This Opinion shall constitute the Findings, Decision and Order of the Court.

Dated: Bronx, New York____________________

November 9, 2005Ethan Greenberg, A.J.S.C. Footnotes

Footnote 1:The Court has reviewed the following materials in connection with defendant's Petition: A. Defendant's Petition for Resentencing, dated August 5, 2005, together with the Supporting Affirmation of Mitchell Briskey, Esq. of the Legal Aid Society, also dated August 5, 2005. The Briskey Affirmation includes the Report of Shreya Mandal, LMSW, who serves as a Sentencing Specialist for the Legal Aid Society. B. The Affirmation in Support of the People's Response to said Petition by Assistant District Attorney John Moreira, dated September 29, 2005. C. The Reply Affirmation of Mr. Briskey dated October 13, 2005, and Mr. Briskey's letter submission of November 1, 2005. D. The prior court records in this matter. In particular, the Court has reviewed with special care the minutes of the prior sentence proceeding conducted on May 1, 1989, and the presentence report prepared at that time by the Probation Department E. The records of defendant's disciplinary proceedings while in prison on this offense. F. The original Record on Appeal in this matter, and each side's Brief on that appeal.

Footnote 2:Although the issue is somewhat academic, it appears that as a second felony offender defendant should have received a two-to-four year sentence (or one-and-a-half to three years) on this count, rather than one to four years.

Footnote 3:At the time of the original sentence in the instant case, defendant's counsel asserted that this 1978 conviction was a Youthful Offender adjudication, rather than an adult felony conviction. However, defendant's NYSIID sheet indicates that it was indeed a felony conviction.

Footnote 4:Initially, the Court gave some consideration to resentencing defendant to fifteen years in prison, but running that sentence consecutively to defendant's other sentences. However, the Reform Act does not make it clear whether a resentencing court has the authority to revisit the question of concurrent vs. consecutive sentences. See People v. Acevedo, 9 Misc 3d 376 (Dutchess Co. Ct. 2005) and People v. Danilo Kinch, Ind. No. 1501/85 (Sup. Ct., Kings County; Marrus, J., 3/8/2005). It would be useful for the Legislature or a higher court to clarify that point.

Footnote 5:Defendant also very briefly argues (as almost an aside) in defense counsel's Reply Affirmation that defendant is entitled to resentence as an A-2 felony drug offender on the ground that the weight increase requirements of the Reform Act should be applied retroactively. However, defendant also correctly concedes that it has recently been decided that those weight increase requirements do not apply retroactively. People v. Quinones, ___ AD3d ___, 801 NYS2d 595 (1st Dept. 2005).