People v De Los Dios

[*1] People v De Los Dios 2012 NY Slip Op 50498(U) Decided on March 20, 2012 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2012
Supreme Court, Bronx County

The People of the State of New York,

against

Jose De Los Dios, Defendant.



627-1999



For the People:

Robert T. Johnson

Bronx County District Attorney

by: Nikki Harding, Esq.

Assistant District Attorney

For Defendant:

Robert S. Dean, Esq.

Barbara Zolot, Esq.

Center for Appellate Litigation

74 Trinity Place - 11th Floor

New York, New York 10006

Dominic R. Massaro, J.

Defendant Jose De Los Dios moves in two separate motions for resentencing pursuant to the Drug Law Reform Act of 2009 [FN1] (see, Crim Proc. Law §440.46) imploring the Court to use its discretion to resentence him under Penal Law §70.70 to a determinate term because his present sentence is excessive.

Movant submitted the two resentencing motions in the belief that the motions could not properly be heard and decided jointly as a matter of judicial economy because Defendant was sentenced by separate judges who must hear the motions. In this regard, Defendant maintains that Crim. Proc. Law §440.46(3), incorporating by reference the procedural provisions of the 2004 Drug Law Reform (L. 2004, ch. 738, §23) provides for assignment of resentencing motions to the original sentencing judge. In this case, both sentencing judges are retired. Consequently, the Court finds that judicial economy as well as the interests of justice are served by disposing of the motions jointly.

Indictment No. 627-1999

In Indictment No. 627-1999, Defendant seeks resentencing for his conviction, after a guilty plea, to one count of Criminal Sale of a Controlled Substance in or near School Grounds (Penal Law §220.44) [*2]and one count of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.49). In this case, the Court (Seewald, J.) sentenced Defendant to two to six years concurrent with a prior sentence of one to three years imposed under Indictment No. 7958-1996 for third degree sale of a controlled substance. Defendant concedes that the later conviction fails to independently qualify for resentencing because the maximum sentence does not exceed three years (see, Crim Proc. Law §44.46[1]).

Indictment No. 824-2000

Defendant's motion, in Indictment No. 824-2000 seeks resentencing for his conviction, after a guilty plea, to one count of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §220.39). In this case, the Court (Collins, J.) sentenced Defendant to an indeterminate sentence of four and one half to nine years.

Background

Defendant is now incarcerated at Queensboro Correctional Facility after being returned to custody several times for parole violations. The present reincarceration violation is Defendant's fourth such infraction.

Because of his immaturity, Defendant initially, after a guilty plea to Indictment 627-1999, the first indictment in issue here, was placed under supervision of the Center for Alternative Sentencing and Employment Services (CASES), a program for young adults. The program included daily supervision, academic and vocational training, employment opportunities and drug treatment. Unfortunately, Defendant failed to complete the CASES program and a warrant was issued against him which remained outstanding until his arrest in 1999.

The prosecutor advises that when Defendant pled guilty to Indictment No. 824-2000, the second indictment in issue here, he was placed under the supervision of Treatment Accountability for Safer Communities (TASC) for residential drug treatment for 18 months to 24 months. Consequently, on November 29, 2000, Petitioner was released to TASC for appropriate placement with a program. However, on December 18, 2001, TASC told the Court Defendant was not in compliance and had left the program. Consequently, a warrant was issued, but Defendant remained at large avoiding reimprisonment until his arrest on December 6, 2002, in Tompkins County for Criminal Possession of Marijuana in the Fourth Degree (Penal Law §221.15).

Defendant's Application

Defendant justifies resentencing upon his alleged addiction problem which he has had since his teens, as well as his immaturity and illiteracy during the periods when he violated Court assigned treatment (see generally, Crim Proc. Law §440.46[3]). Defendant maintains he is eligible for resentancing in both cases because he is a low level non-violent drug offender and serving a sentence that is too harsh for the offense (see generally, People v. Paulin, 17 NY3d 238 [2011]).Defendant points out that his criminal record is confined to three street level felonies and two misdemeanors and he has no violent convictions. Additionally, he claims he is engaged in positive institutional programs, including drug treatment. Additionally, he has but one disciplinary incident, a Tier 2 infraction, in 2008.

Excusing his leaving the CASES and TASC programs, Defendant says he acted out of youth and immaturity. In this regard, he points out that failure to complete earlier drug programs is not a valid reason for denying resentencing (see generally, People v. Milton, 86 AD3d 478 [1st Dept. 2011]) and his current sentence is both harsh and counterproductive in light of a near spotless disciplinary record (see generally, People v. Berry, 89 AD3d 954 [2nd Dept. 2011]). Maintaining that his convictions are not unusually serious, as a non-violent drug offender involved in drug rehabilitation, he desires to reform himself. Accordingly, Defendant says he should be given the opportunity to be heard in a hearing justifying resentencing (see generally, People v. Jenkins, 86 AD3d 522 [1st Dept. 2011]). Defendant suggests that he be given a reduced sentence closer to a two year minimum.

District Attorney's Opposition

In opposition, the prosecutor argues that "substantial justice" demands that Defendant not be

re-sentenced under the Drug Law Reform Act of 2009 or any other statute. In this regard, the prosecutor [*3]in essence says that Defendant's conduct bars resentencing. Significantly, Defendant has returned to prison four times by the Division of Parole (2006, 2007, 2008, and 2011) and the fact that he has been convicted three times during the period in issue negates Defendant's relief.

Stated another way, Defendant's criminal convictions (including a drug conviction in Ithaca while a warrant was outstanding) and his lack of cooperatation with rehabilitation programs require denial of resentencing. Because Defendant absconded twice from drug rehabilitation forces the Court to decline a further opportunity to receive special treatment (see generally, People v. McNair, 22 AD3d 376 [1st Dept. 2005]). Clearly, Defendant is not a proper beneficiary of the Drug Law Reform Act of 2009.

Significantly, the prosecutor made no comment upon Defendnt's eligibility for resentencing or his request for a resentencing hearing.

Reply

While the District Attorney was silent, Defendant says the prosecutor agrees that he is eligible for resentencing. Nevertheless, the prosecutor continues to oppose resentencing upon substantial justice considerations. In response, Defendant excuses his prison conduct and abandoning drug rehabilitation upon grounds that the sentenced imposed was unduly punitive, costly and counterproductive, especially as applied to a non-violent low level drug seller such as himself.

Legal Discussion

In order to apply for resentencing under Crim. Proc. Law § 440.46, a person must (1) be in the custody of DOCCS; (2) have been convicted of a class B felony offense defined in article 220 of the Penal Law; (3) have committed the offense prior to January 13, 2005; (4) be serving an indeterminate sentence with the maximum term of more than three years; and (5) not be serving a sentence for or have a predicate felony conviction involving an exclusion offense (see generally, People v. Overton, 86 AD3d 4 [2nd Dept. 2011]).

Meeting the above resentencing criteria does not mean a person is entitled to relief pursuant to CPL §70.70. It simply means such person is eligible to apply for relief. Whether he will be so resentenced hinges upon the Court's determination as to whether substantial justice dictates that the application be granted or denied under Crim. Proc. Law §440.46(3) (see generally, People v. Avila, 27 Misc 3d 974 [Sup. Ct. Kings 2010]).

Because the prosecutor fails to object to either Defendant's resentencing eligibility or whether he is entitled to a hearing (see generally, People v. Jenkins, supra.), the Court finds Defendant satisfies the criteria with regard to resentencing eligibility. Further, the Court orders that Defendant be brought before it and allowed an opportunity to be heard upon the issue of substantial justice.

The Court must now address the ultimate question of whether, after assessing his background, circumstances and prison record, Defendant should, in fact, be granted a resentence. Preliminarily, concerning substantial justice and proof required to support resentencing, the Court requires the parties to submit facts and circumstances relevant to the issue of imposition of a new sentence. Upon review of the submission(s) of either or both parties, the Court will determine what substantial justice dictates (see generally, People v. Anderson, 85 AD3d 1043 [2nd Dept. 2011] [substantial justice under the 2005 DLRA resentencing provisions]).

In addition to institutional disciplinary confinement records, courts have considered the following factors in determining resentence application vis-a-vis the rendering of substantial justice:

(1) defendant's prior criminal history, (2) the quantity of drugs underlying the current offense, (3) whether the current offense was committed while defendant was on parole or probation, (4) whether defendant has shown remorse, and (5) whether defendant has a history of parole violations (see, People v. Overton, 86 AD3d 4 [ 2nd Dept. 2011]).

As Defendant argues, there can be no dispute that the impetus for the DLRA was legislative [*4]wisdom that the then drug laws' mandated sentences were excessively harsh when applied to street-level offenders who possessed or sold only small quantities of illegal drugs in order to feed their own addiction. The legislators determined that mandated sentences had proven counterproductive in that incarcerating low level offenders was hugely expensive and such lengthy periods of imprisonment were more likely to foil any sincere desire on the offender's part to overcome his addiction and become a law-abiding member of society. Because the DLRA embodies a legislative effort to reverse these so called Rockefeller Drug Laws' effects, the Legislature incorporated a presumption in favor of granting motions for resentencing "unless substantial justice dictates that the application should be denied [FN2] " (see, People v. Flores, 27 Misc 3d 1204A [Sup. Ct. Bronx 2010]).

Conclusion

Defendant's counsel steadfastly maintains that the Court must hold a hearing upon Defendant's instant application. On this record, the Court agrees that it has a statutory obligation to offer an opportunity for a hearing and bring the applicant before it, especially where facts are contested (see generally, People v. Anonymous, 85 AD3d 414 [1st Dept. 2011]). The Court notes that Crim. Proc. Law §440.46 (3) provides that the procedural provisions of §23 of chapter 738 of the laws of 2004 (see, 2004 Rockefeller Drug Law) govern proceedings on and determination of a motion brought pursuant to CPL §440.46 (see, People v. Flores, supra.). After considering the procedural provisions of the 2004 Rockefeller Drug Law, the Court finds factual issues yet remain in dispute.

Based upon the foregoing, it is

ORDERED that, pursuant to Crim. Proc. Law §440.46 (3), the branch of Defendant Jose De Los Dios' motion seeking a hearing upon his motion requesting that the Court resentence him to a determinate term of imprisonment pursuant to the DLRA because his present sentence is excessive, is GRANTED; and it is further

ORDERED that the branch of Defendant Jose De Los Dios' motion, requesting the Court resentence Defendant pursuant to Crim. Proc. Law §440.46, is STAYED pending the hearing ordered; and it is

ORDERED that the parties are to contact the Part Clerk within fifteen days of entry of this decision and order to schedule a hearing in this matter.

The foregoing [FN3] constitutes the Decision and Order of this Court.

Dated: Bronx, New York

March 20, 2012

___________________________DOMINIC R. MASSARO, JSC Footnotes

Footnote 1: Drug Law Reform Act of 2009, L. 2009, Ch. 56, Part AAA, §9 (eff. Oct. 7, 2009). See, Mancuso, Comment: Resentencing after the "Fall" of Rockefeller: the Failure of the Drug Law Reform Acts of 2004 and 2005 to Remedy the Injustices of New York's Rockefeller Drug Laws and the Compromise of 2009, 73 Albany L. Rev. 1535 (2010).

Footnote 2: See, L. 2004, ch 738, § 23.

Footnote 3: In deciding the motion regarding Indictment No. 627-1999, the Court considered the following papers: (1) Notice of Motion for DLRA Resentencing; Affirmation in Support of Resentencing; exhibits; (2) People's response to Petitioner's Motion for Resentencing; and (3) Reply Affirmation in Support of Resentencing. In deciding the motion regarding Indictment No. 824-2000, the Court considered the following papers: (1) Notice of Motion for DLRA Resentencing; Affirmation in Support of Resentencing; exhibits; (2) People's response to Petitioner's Motion for Resentencing; and (3) Reply Affirmation in Support of Resentencing.