People v Martinez

[*1] People v Martinez 2006 NY Slip Op 52112(U) [13 Misc 3d 1234(A)] Decided on August 31, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2006
Supreme Court, New York County

The People of the State of New York,

against

Albin Martinez, Defendant.



2682/00



For the People: Anthony Capozzolo

For the Defendant: Peter Frankel

Bruce Allen, J.

The defendant was charged with three counts of Criminal Sale of a Controlled Substance in the Third Degree, four counts of Criminal Sale of a Firearm in the Third Degree, one count of Criminal Possession of a Weapon under, for possessing a defaced firearm, and one count of Criminal Possession of a Weapon in the Third Degree under PL §265.02(4), for possessing a loaded firearm. On February 2, 2001, before Judge Leslie Crocker Snyder, the defendant entered a plea of guilty to one count of Criminal Sale of a Controlled Substance in the Second Degree, one count of Criminal Sale of a Firearm in the Third Degree, and Criminal Possession of a Weapon in the Third Degree under PL §265.02(3), in exchange for a promised sentence of 10 years to life. The sentence was to be 8 years to life on the Criminal Sale of a Controlled Substance in the Second Degree count, concurrent with a term of 2 to 6 years on the Criminal Sale of a Firearm in the Third Degree count, and consecutive to a term of 2 years determinate on the Criminal Possession of a Weapon in the Third Degree count. The defendant allocuted to the three crimes, including admitting that he possessed a defaced firearm. On March 2, 2001, Judge Snyder sentenced the defendant in accordance with the promised terms.

The defendant has now moved to be re-sentenced on the Criminal Possession of a Weapon in the Third Degree count pursuant to CPL §440.20 and applied to be re-sentenced on the Criminal Sale of a Controlled Substance in the Second Degree count pursuant to Chapter 643 of the Laws of 2005 (DLRA II). He asks that he be re-sentenced to 2 to 6 years on the weapon count and to 6 years on the drug count, with all sentences to run concurrent.

The People concede that since Criminal Possession of a Weapon in the Third Degree under PL §265.02(3) is not a violent felony, the determinate sentence of 2 years was illegal. Accordingly, that sentence is vacated, and the defendant will be sentenced to an indeterminate term of 2 to 6 years on that count.

The People also concede that since he is not serving time for a violent felony, the defendant is eligible to be re-sentenced under DLRA II. However, they contend that substantial justice requires that the application be denied.

As a first ground for denial, they assert that it was intended that the defendant plead guilty to a violent felony, and that it was a mutual mistake by the parties that the weapon count chosen was not a violent felony. It is noted that the defendant did not allocute to a violent felony, nor is [*2]there any mention of the weapon count being a violent felony in the plea minutes or sentencing minutes. In any event, it could not have been the intent of the parties that the plea on the weapon count would make him ineligible for re-sentence under DLRA II, since that law did not exist at the time.

Citing the legislative history of DLRA and DLRA II, the People contend that the re-sentencing provisions therein were intended for low-level, nonviolent drug offenders and should not apply to the defendant. However, as the First Department noted in People v. Luis Aranas (August 17, 2006), the wording of the legislation itself makes no such distinction.

The People also contend that the drug sentence was part of an overall plea agreement, highly favorable to the defendant, in which the total sentence was to be 10 years to life. I agree that this should be a significant factor in determining a proper remedy. The overall agreed minimum of 10 years could have been carried out by a different combination of the drug and non-drug sentences. However, I do not believe that this should preclude re-sentencing. Rather, it would affect the length of the proposed re-sentence.

As the People contend, it appears that at the time of his arrest the defendant was fully immersed in a life of very serious crime. However, the People do not dispute that he was still a very young man, and somewhat under the sway of older relatives who treated the sale of guns and drugs as a family business. The defendant has an unblemished disciplinary record in prison. He has completed a vocational culinary training program. Thus he has given some indication that he might be ready to leave his former life behind. On that basis, I believe that a small measure of relief in his sentence is merited.

The application is granted. The proposed re-sentence on the Criminal Sale of a Controlled Substance in the Second Degree count is 7 years determinate, plus 5 years post release supervision, to run consecutive to the 2 to 6 years on the Criminal Possession of a Weapon in the Third Degree and concurrent with the 2 to 6 years on the Criminal Sale of a Firearm in the Third Degree count.

August 31, 2006_____________________