People v Warde

[*1] People v Warde 2006 NY Slip Op 52558(U) [14 Misc 3d 1225(A)] Decided on November 14, 2006 Supreme Court, Kings County Holdman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2006
Supreme Court, Kings County

The People of the State of New York,

against

Andrew Warde, Defendant.



7876/2005

Robert K. Holdman, J.

Upon consideration of the defendant's motion [FN1] pursuant to C.P.L. § 440.20, dated October 27, 2006, by which the defendant seeks an order of the Court to set aside the defendant's sentence on the ground that the defendant's seven-year sentence is harsh and excessive, the People's response, dated November 2, 2006, and the defendant's reply, dated November 7, 2006, it is decided as follows:

FACTS

The defendant pleaded guilty in the instant matter to Criminal Possession of Weapon in the Third Degree (P.L. § 265.02 [4]) on March 2, 2006. The evidence adduced before the Grand Jury specifically manifests that a police officer observed the defendant in possession of a loaded .32 caliber revolver and that the defendant tried to run from the police officer.

In return for his plea, after counsel submitted a pre-pleading memorandum for the Court's consideration of a sentence below the statutory minimum of a determinate two-year period of incarceration (P.L. §§ 60.01 [3] [a], 70.02 [3] [c]), the Court found mitigation (P.L. §§ 60.01, 70.00 [4]) and permitted the defendant to enter the Fortune Society program. The Court further promised that upon successful completion of the Fortune Society program, the defendant would be sentenced to a period of intensive supervision probation.

As a further condition of the defendant's plea, the defendant accepted a "no new [*2]arrest" provision, whereby it was explained that if the defendant incurred any new arrest prior to the imposition of sentence, he could receive an enhanced sentence up to seven years in prison.

On August 19, 2006, while enrolled in the Fortune Society and awaiting sentence in the instant case, the defendant was arrested for Criminal Possession of Weapon in the Third Degree (P.L. § 265.02 [4]). The defendant was ultimately indicted for the same crime on September 20, 2006 under Kings County Indictment Number 6804-2006.

On September 22, 2006, the Court, having found a legitimate basis for the defendant's new arrest in violation of the plea agreement, terminated the defendant from the Fortune Society program and ordered an enhanced sentence of seven years incarceration plus three years post-release supervision.

The defendant now brings the instant motion solely arguing that his enhanced sentence was harsh and excessive, and that the defendant's sentence should be reduced to a definite sentence of one-year incarceration.

CONCLUSIONS OF LAW

The defendant's claim that his sentence is excessive and should be reduced is DENIED as it is not a recognizable ground for relief under C.P.L. § 440.20 and must be raised on direct appeal. People v. Cunningham, 305 AD2d 516 (2d Dept. 2003); People v. Boyce, 12 AD3d 728 (3d Dept. 2004), lv. denied, 4 NY3d 741 (2004).

In any event, the defendant's claim is substantively without merit and therefore DENIED.

Here, as the Court previously found, a legitimate basis exists for the defendant's new arrest for Criminal Possession of a Weapon in the Third Degree. People v. Outley, 80 NY2d 702 (1993). By virtue of the defendant's new indictment for Criminal Possession of a Weapon in the Third Degree, the Court was "assured" that a legitimate basis exists for the new arrest and a hearing was not required in this regard. People v. Ricketts, 27 AD3d 488, 489 (2d Dept. 2006), lv. denied, 6 NY3d 852 (2006).

The Court was excruciatingly clear in enumerating its plea requirements, which the defendant knowingly and voluntarily accepted, including the fact that the defendant faced seven years incarceration if he violated any of the terms of his plea, which included a new arrest.

It is the holding of this Court that, under the circumstances of this case, the defendant's enhanced sentence was neither harsh nor excessive. People v. Suitte, 90 AD2d 80 (2d Dept. 1982).

The defendant's contention that a more appropriate sentence should consist of "residential treatment" with the Fortune Society as indicated in his reply papers is misplaced where both the underlying case and new arrest case involve solely gun possessions, and, further, that the defendant underwent anger management in the Fortune Society, not any form of treatment for drug abuse. Even if the defendant had a drug addiction, it is this Court's belief that the enhanced sentence is appropriate under the [*3]circumstances of this case as the defendant received an enormous second chance in receiving the Fortune Society program in the first place and that the defendant affirmatively eschewed that second chance by virtue of his new handgun possession arrest and indictment.

Accordingly, the defendant's motion is denied in all respects.

SO ORDERED.

___________________________________

Hon. Robert K. Holdman, J.S.C.

Judge of the Court of Claims Footnotes

Footnote 1: Defendant is represented on this motion by Michael W. Warren, Esq. The Court issued an interim decision and order, dated November 3, 2006 relative to this matter.