People v Caba

[*1] People v Caba 2009 NY Slip Op 50973(U) [23 Misc 3d 1127(A)] Decided on May 19, 2009 Supreme Court, New York County Conviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2009
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Ramon Caba, Defendant.



594/2003



Susan Krischel, Assistant District Attorney, on behalf of Bridget G. Brennan, Special Narcotics Prosecutor for the City of New York, for the People.

Ramon Caba, Pro-Se, for the Defendant.

Daniel P. Conviser, J.

Defendant was convicted in 2003 by guilty plea of the crimes of Conspiracy in the Second Degree and Criminal Possession of a Controlled Substance in the Second Degree.[FN1] Pursuant to his plea agreement, Defendant was sentenced to consecutive indeterminate terms of 7 to 21 years on the conspiracy count and 6 years to life imprisonment on the possession count. Defendant was then resentenced pursuant to the Drug Law Reform Act of 2005 to a determinate sentence of 5 ½ years on the possession count with the sentence for the conspiracy charge unchanged. Those two sentences were again ordered to run consecutively. Defendant now moves pursuant to CPL 440.20 to set aside his sentences as unlawfully imposed. He argues that the Court was required to impose concurrent rather than consecutive sentences upon him with respect to his two convictions. He asks that upon setting aside these sentences, this Court reimpose the two sentences he is currently serving and direct that they run concurrently rather than consecutively. For the reasons stated below, Defendant's motion is denied.

STATEMENT OF FACTS

[*2]Defendant was arrested here for his role in a conspiracy which involved the receipt and transportation of 2000 kilograms of cocaine. He was arrested on January 28, 2003 along with three co-defendants. According to the People, Defendants here were involved in an organization which received large quantities of cocaine which were then transported to various destinations in the United States via hidden compartments in railway cars. Agents of the Drug Enforcement Administration observed Petitioner's three co-defendants (the "co-defendants") purchase garbage cans, bags and tools from a store in Queens and then deliver those items to a warehouse in Queens adjacent to a railway spur. The following day, a tanker car arrived at the warehouse. Several days later, two co-defendants and a third person drove a Ford Explorer from a house in Queens to the warehouse. Shortly thereafter, a minivan left the warehouse and traveled to a parking lot in Queens. The Ford Explorer also then arrived at the parking lot and later left the lot with the same two co-defendants.

About an hour later, Petitioner arrived at the parking lot, entered the mini-van and drove away. Petitioner was stopped and approximately 400 kilograms of cocaine from the min-van were seized. A search warrant executed at the warehouse resulted in the recovery of approximately 1600 kilograms of cocaine and the items earlier bought from the store. Petitioner and his co-defendants were indicted on one count of Conspiracy in the Second Degree and two counts of Criminal Possession of a Controlled Substance in the First Degree. Petitioner, as noted supra, pled guilty on May 29, 2003 to one count of Conspiracy in the Second Degree, for which he was promised and received an indeterminate sentence of 7 to 21 years in prison and one count of Criminal Possession of a Controlled Substance in the First Degree (later construed at Defendant's sentencing proceeding to be a plea of guilty to Criminal Possession of a Controlled Substance in the Second Degree) for which Defendant was promised and received an indeterminate sentence of 6 years to life imprisonment, to run consecutively. That 6 year to life sentence was subsequently modified to a determinate sentence of 5 ½ years imprisonment, which was also to run consecutively.

The indictment alleged six overt acts in support of the conspiracy, only one of which (the 4th alleged overt act) involved the Defendant here. It was alleged that Petitioner's co-defendants (1) purchased garbage bags and plastic garbage containers; (2) went to a warehouse; (3) drove to a supermarket; . . . (5) stored approximately 1600 kilograms of cocaine, and (6) possessed keys to unlock the location where that cocaine was stored. The indictment alleged that the Defendant, pursuant to the fourth alleged overt act, was inside of a van which contained approximately 400 kilograms of cocaine.

Defendant's plea allocution, in pertinent part, reads as follows:

The Court: Now you're pleading guilty to Criminal Possession

of a Controlled Substance in the First Degree because you're

admitting that on January 28, 2003, in the county of Queens,

you together with the co-defendants in this case were in

possession of an amount of cocaine that exceeded four ounces,

correct?

Petitioner: Yes, correct.

[*3]The Court: Suffice it to say it was well in excess and the People

allege that the total weight of the cocaine in that case was

2,000 kilos or more than 4,000 pounds, correct?

Petitioner: Correct.

The Court: And you're pleading guilty to the first count of conspiracy

because you're admitting that from January 4th, 2003 until January

28, 2003, you were acting together with the co-defendants to conspiracy,

the purpose of which was to possess the cocaine that had that substantial

weight on that date, correct?

Petitioner: Correct.

The Court: And you did that in furtherance of conspiracy together

with the others to possession cocaine, correct?

Petitioner: Correct.

The Court: And in furtherance of that, you assisted with regard to

transportation of that cocaine on January 28, 2003, in that you were

inside of a van that contained 400 kilograms of cocaine, correct?

Petitioner: Correct.

CONCLUSIONS OF LAW

Penal Law § 70.25 (2) (hereafter referred to as the "mandatory concurrent sentencing statute") provides: When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.

If neither of the two prongs of the statute are applicable, then a court is empowered to impose consecutive sentences upon a defendant. People v. Laureano, 87 NY2d 640 (1996). If both prongs of the statute are satisfied, a court may nevertheless still impose a consecutive sentence if "the acts or omissions' committed by defendant were separate and distinct acts". Id. 87 NY2d at 643. (citations omitted). An "act or omission" refers to the actus reus, the "bodily movement" or "failure to act" that constitutes the offense. Id. at 644.

In order to prove the crime of Conspiracy in the Second Degree pursuant to Penal Law § 105.15, the People must prove that a defendant, "with intent that conduct constituting a Class A felony be performed . . . agrees with one or more persons to engage in or cause the performance [*4]of such conduct." It must also be proven that one of the conspirators committed an "overt act" in furtherance of the conspiracy. Penal Law § 105.20. The crime of conspiracy is separate and distinct from the crime which is the object of a conspiracy. People v. Krasnewicz 116 AD2d 1016 (4th Dept 1986), app. denied, 67 NY2d 945. In this case, it was alleged that Defendant was part of a conspiracy to commit the Class A felonies of Criminal Possession and Criminal Sale of a Controlled Substance in the First Degree.

Where a defendant has pled guilty to one or more counts in an indictment, the People, in arguing that consecutive sentences are justified, may rely upon facts adduced at a defendant's plea allocution as well as the allegations contained in the counts of the indictment to which the defendant pleads guilty. Laureano, supra 87 NY2d at 644. On the other hand, where a defendant has pled guilty to a lesser offense than that charged in the indictment, the People may rely only upon those facts and circumstances admitted during a plea allocution. Here, Defendant pled guilty to Conspiracy as charged in count one of the indictment. Given that the Defendant was ultimately sentenced upon an understanding that he had pled guilty to the Crime of Criminal Possession of a Controlled Substance in the Second Degree, however, his plea on this count, in the Court's view, must be construed as being to a lesser included count of the indictment.

The indictment in this case alleged a conspiracy in which the Petitioner and his three co-defendants agreed to engage in conduct constituting the crimes of Criminal Sale and Criminal Possession of a Controlled Substance in the First Degree from on or about January 4, 2003 to on or about January 28, 2003 (the date of Petitioner's arrest in this case). During his plea allocution, Defendant specifically acknowledged, as outlined supra, that he engaged in such conduct. Defendant was then sentenced consecutively by virtue of his possession of 400 kilograms of cocaine — a partial object of the conspiracy — which possession occurred at the end of the period during which the conspiracy was in effect, on January 28, 2003.

The Court of Appeals confronted a similar legal issue involving consecutive sentences imposed for Conspiracy in the Second Degree and Attempted Murder in People v. Arroyo, 93 NY2d 990 (1999). Defendants in Arroyo met on an evening, were armed and were prepared to seek out the victim. The Court held that at this point, the crime of Conspiracy to commit murder was complete. About an hour later, the co-defendants saw the intended victim, shot at him and missed. The Court held that these two occurrences were separate and distinct acts warranting the imposition of consecutive sentences.

A similar circumstance exists here. Here, Defendant and his co-defendants engaged in a conspiracy over a period of 24 days and committed overt acts over a period of six days, from January 22 to January 28, 2003.[FN2] On January 28, 2003, Defendant also committed the separate crime of Criminal Possession of a Controlled Substance in the Second Degree. Courts have held in other cases that a defendant can be given consecutive sentences for the possession of illegal narcotics and a conspiracy to possess those same narcotics. People v. Cordoba, 208 AD2d 420 (1st Dept 1994), app. denied, 84 NY2d 1010; see also, People v. Martinez, 198 AD2d 197 (1st Dept 1993), app. denied,82 NY2d 927 (1994). [*5]

Defendant's motion must be denied because neither of the two prongs of the mandatory concurrent sentencing statute are applicable here. Defendant's participation in the conspiracy did not relate only to the single overt act he committed, it also concerned his agreement with his co-defendants over a longer period of time to possess both the cocaine he was convicted of possessing as well as an additional quantity of cocaine. Thus, the first prong of Penal Law § 70.25 (2) is not satisfied here. The two crimes Defendant were sentenced for were not committed through a single act or omission; they were committed through one overlapping act (Defendant's possession of cocaine) and additional acts which did not overlap (the conspiracy).

Several points are relevant in this regard. First, the conspiracy began prior to the time Defendant possessed narcotics. The conspiracy also concerned more than the 400 kilograms of cocaine Defendant possessed. It also concerned an approximate 1600 additional kilograms of cocaine which were recovered in the warehouse. The conspiracy included five alleged overt acts which predated Defendant's possession crime.

The question of whether the second prong of the statute is satisfied here, in the Court's view, is a more difficult one but it is also an issue which has already been definitively answered by controlling authority the Court is bound to follow. The second prong of the statute as applied here asks whether Defendant's possession crime was committed through an act or omission which in itself constituted one of the offenses (the possession crime) and also was a material element of the conspiracy crime. The first part of this requirement is obviously satisfied here in that Defendant's act of possessing cocaine constituted the entire basis for his possession conviction. The issue here thus boils down to whether the "overt act" Defendant committed by possessing cocaine was a "material element" of the crime of conspiracy. If that overt act was a material element of the crime of conspiracy, then Defendant's motion here would have to be granted because the second prong of the mandatory concurrent sentencing statute would be satisfied.

The statutory definition of Conspiracy in the Second Degree, as outlined supra, requires proof that "with intent that conduct constituting a Class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct." Penal Law § 105.15. The overt act requirement provides that "[a] person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy". Penal Law § 105.20.

In the Court's view, the question of whether an "overt act" is a material element of conspiracy is not apparent on the face of the statute. On the one hand, appellate courts have often referred to the overt act requirement as an "element" of conspiracy, although the joinder of these two terms has in those cases been applied in somewhat colloquial parlance not necessarily intended to address the question posed here. See e.g. Robinson v. Snyder, 259 AD2d 280 (1st Dept 1999), lv. denied, 93 NY2d 810 (allowing a prosecution for both conspiracy and narcotics crimes constituting overt acts in support of the conspiracy: "the overt act itself is not the crime in a conspiracy prosecution; it is merely an element of the crime that has as its basis the agreement")(emphasis added); People v. Hamilton, 263 AD2d 966 (4th Dept 1999), app. dismissed, 94 NY2d 915 (2000) (referring to the "overt act element of the crime of conspiracy").

The First Department, however, squarely addressed the question, in dicta, in People v. Hiladrio 291 AD2d 221 (1st Dept 2002), lv. denied, 98 NY2d 676, in a different fashion. There, [*6]the Court was apparently considering whether Defendant's previous federal conviction for conspiracy to sell cocaine could be used as a predicate "foreign" conviction with equivalent elements to a New York crime for the purpose of enhancing Defendant's instant sentence, given that the federal statute, unlike its New York counterpart, did not require an "overt act" to be proven in furtherance of a conspiracy. The Court held that Defendant's claim was unpreserved and refused to reach the issue in the interests of justice, but opined that if the issue was reached: [T]he New York requirement of an overt act, which is not found in Federal conspiracy law, is an evidentiary requirement concerning the manner in which conspiracy must be established, rather than being an element of the crime. 291 AD2d at 222.

The Hildario decision cited in turn to a decision of the Third Department in which the Court, this time in a holding, likewise found that the overt act requirement is an evidentiary rule, rather than an element of the crime of conspiracy for purposes of assessing whether a prior federal conspiracy conviction would qualify as a predicate felony under New York law. People v. Miller, 284 AD2d 724 (3d Dept 2001), lv. denied, 97 NY2d 685. Miller, in turn relied upon an earlier Third Department decision stating the same principle. People v. Rossney, 178 AD2d 765 (3d Dept 1991), lv. denied, 81NY2d 794 (1993). See also, People v. Feingold 125 AD2d 587 (2d Dept 1986), app. denied, 69 NY2d 880 (1987) (finding that criminal sale of a controlled substance was not a material element of the crime of conspiracy and thus upholding consecutive sentences.)

The rule cited in Miller and Rossney and the conforming dicta in Hiladrio means that the second prong of the consecutive sentencing statute, like the first, is not applicable to Defendant here. While Defendant's possession of cocaine "constituted" his possession crime, it was not a "material element" of the crime of conspiracy. For that reason, there was no bar to the Court lawfully imposing consecutive sentences upon the Defendant.

The Court understands why Defendant here feels that the consecutive sentences imposed upon him were not justified. It is obviously true, as Defendant indicates, that there was only one overt act that the Defendant was charged or convicted of committing in his case in furtherance of the conspiracy and that one overt act was also the sole basis for his conviction of the possession charge. The Court thus understands why Defendant believes it is fundamentally unjust to impose consecutive sentences upon him for one overt act and then additionally for an agreement to commit crimes for which no additional overt acts on the part of the Defendant were ever alleged or proven. The law applicable to Defendant's motion, however, in the Court's view, clearly requires the result reached here. For all of these reasons, Defendant's motion is denied.

Dated: New York, New York__________________________

May 19, 2009Daniel P. Conviser, A.J.S.C. Footnotes

Footnote 1: The minutes of Defendant's plea proceeding indicate, as cited infra, that Defendant pled guilty to one count of Criminal Possession of a Controlled Substance in the First Degree, not the Second Degree. The minutes indicate that the Court and the parties clearly understood that Defendant's plea was to the first degree crime. The sentence promised to the Defendant at his plea, however, was a sentence of 6 years to life imprisonment, an unlawful sentence at the time for the first degree crime he pled guilty to but a lawful sentence for Criminal Possession of a Controlled Substance in the Second Degree. At sentencing, the pre-sentence investigation and report indicated that the Defendant had pled guilty to the crime of Criminal Possession of a Controlled Substance in the First Degree. At sentencing, however, the parties and the sentencing court indicated and agreed that Defendant's plea was to Criminal Possession of a Controlled Substance in the Second Degree and then sentenced him for that crime. See Defendant's Motion for Resentencing, April 17, 2006, Exhibit "F".

Footnote 2: As noted supra, since Defendant pled guilty to the crime of Conspiracy in the Second Degree as charged in the indictment, the Court here is entitled to consider all of the overt acts charged in that indictment in determining this motion.