People v Rivera

[*1] People v Rivera 2010 NY Slip Op 50788(U) [27 Misc 3d 1217(A)] Decided on May 4, 2010 Supreme Court, Bronx County Marvin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2010
Supreme Court, Bronx County

The People of the State of New York

against

Eduardo Rivera, Defendant.



3505-2004



For the defendant

David Howard Sinkman, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, New York

David A. Crow, The Legal Aid society, New York, New York

For the People

Nikki Harding

Assistant District Attorney

Bronx County District Attorney

Seth L. Marvin, J.

Resolution of this motion for resentencing under the Drug Law Reform Act of 2009 ("DLRA) involves the interpretation of the term "substantial justice dictates" pursuant to CPL § 440.46.

The Facts

The facts are not in dispute. Via a felony complaint filed on August 13, 2004, the defendant Eduardo Rivera was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees. Via a superior court information, defendant pleaded guilty to criminal sale of a controlled substance in the third degree on September 16, 2004 before Justice Wiley, with the promise that upon the successful completion of a drug rehabilitation program, supervised by Treatment Accountability for Safer Communities ("TASC"), he would be allowed to withdraw his plea of guilty. In that event, defendant would re-plead to a misdemeanor and receive a sentence of a conditional discharge. If, however, defendant failed to complete the program, the court promised to sentence him to 4 ½ to 9 years jail.On October 6, 2004, defendant was released from custody with the condition that he enter [*2]and remain in a drug program. On January 25, 2005, information was received that defendant had violated the terms and conditions at his drug treatment program and a warrant was issued for his arrest. Defendant was involuntarily returned on the warrant on February 28, 2005 after he was arrested in New York County for robbery in the second degree. Defendant pleaded guilty to robbery in the third degree on June 14, 2005 and received a sentence of 2 -4 years to be served concurrently with his sentence on the instant matter.

On July 26, 2005, defendant was sentenced to an indeterminate term of imprisonment of from 4 ½ to 9 years, to be served concurrently with the sentence imposed in Manhattan. Defendant now moves, pursuant to the DLRA, to be re-sentenced via a Notice Of Motion filed on February 11, 2009. The People's Response was filed on February 23, 2010 and a Reply Affirmation was filed on or about March 25, 2010.

The Statute

Criminal Procedure Law §440.46 (1) provides that:

Any person in the custody of the department of correctional

services convicted of a class B felony offense defined in

article two hundred twenty of the penal law which was

committed prior to January thirteenth, Two thousand five,

who is serving an indeterminate sentence with a maximum

term of more than three years, may...apply to be resentenced

to a determinate sentence in accordance with sections 60.04

and 70.70 of the penal law in the court which imposed the

sentence.

As recognized in People v. Cruz, 26 Misc 3d 1233(A)(Sup. Ct., Bronx Co. 2010)

" Upon its review of the submissions and findings of fact made in conjunction with the

application, the court shall, unless substantial justice dictates that the application be

denied, in which event the court shall issue a order denying the application..." As Justice

Seewald noted, "In enacting CPL § 440.46...it is notable that [t]he Legislature could have made

resentencing automatic, or it could have required a finding of extraordinary circumstances in

order to deny resentencing, but it did not do either'[.]" 26 Misc 3d 1233(A) at 2 (citation

omitted).

In making a resentencing determination, the Court may consider

any facts or circumstances' relevant to the imposition of a new [*3]

sentence which are submitted by the Defendant or the People and in

addition shall consider a defendant's institutional confinement record.

Such a review shall include a petitioner's disciplinary history and

participation or willingness to participate in correctional treatment or

programming.

People v. Brown, 26 Misc 3d 1204(A)(Sup. Ct., NY Co. 2010) at 8(emphasis added).

Of paramount importance is the proposition that "...where a Defendant is eligible for

resentencing, resentencing is not mandatory. Courts rather have measure of discretion' in

determining whether or not to grant a resentencing application." Id. At the same time, " there is

a strong presumption in favor of granting a resentencing application for all eligible defendants.'"

Id. (citation omitted).

The People concede that defendant is eligible for re-sentencing but argue that, pursuant to

CPL §440.46 (3), "substantial justice dictates" that re-sentencing be denied.

Analysis



Defendant's criminal history reflects 16 arrests, ten dates of birth, two social security numbers and five dates of birth. On the date defendant was arrested on the instant matter, he had one prior felony conviction (grand larceny in the third degree) and at the time he pleaded guilty in this case, he had somehow accumulated 18 misdemeanor convictions (as meticulously compiled [without objection] on pages 9-16 of the People's Response) , to wit: petit larceny (5), criminal trespass in the second degree (3), criminal possession of a controlled substance in the seventh degree (3), criminally possessing a hypodermic needle (20, menacing in the second degree (2), assault in the third degree, criminal facilitation in the fourth degree and criminal possession of a weapon in the fourth degree. Additionally, prior to sentencing in the instant case, defendant was convicted upon a plea of guilty of robbery in the third degree. Furthermore, defendant was afforded five opportunities to complete community service. Defendant, however, was unable to take advantage of any of these opportunities.

A review of defendant's institutional records reveals that defendant had seven disciplinary incidents between July11, 2007 and November 20, 2009.[FN1] After disciplinary hearings, defendant was found guilty of the violation in each case. Significantly, on February 26, 2009, defendant was the subject of a Tier 3 citation for fighting and providing false information. The charges were sustained and defendant received three months in a special housing unit and three months [*4]deleted from his good time.

In People v. Flores, 50 AD3d 1156 (2nd Dept.), appeal dismissed, 10 NY3d 934

(2008), the Appellate Division, Second Department, affirmed the trial court's denial of a motion for re-sentencing, observing that:

The Supreme Court...providently exercised its discretion in denying

the defendant's application to be resentenced...The defendant is a

second felony offender with a prior criminal history dating back

to 1994...Moreover, despite the defendant's positive achievements

while incarcerated, he also has a poor prison disciplinary record....

The 2005 DRLA expressly provides that the court may consider

the institutional record of confinement of a person seeking to be

resentenced thereunder...Here, during approximately 5 1/3 years of

incarceration, the defendant received six disciplinary tickets...The

defendant also received disciplinary sanctions which totaled 60

days of keeplock time for five other disciplinary infractions...

In an analogous case, People v. Perez, 57 AD3d 921 (2nd Dept. 2008), the Appellate Division, Second Department, again affirmed the trial court's denial of a motion for re-sentencing "...on substantial justice grounds..." In so doing, the Second Department noted that during six months of incarceration, "...the defendant received disciplinary tickets for six Tier 3 and ten Tier 2 infractions...Under these circumstances, the court properly concluded that substantial justice dictated the denial of the defendant's resentencing motion [.]" See People v. Winfield, 59 AD3d 747 (2nd Dept. 2009) (trial court denied motion for re-sentencing based upon defendant's extensive prior criminal history and extensive disciplinary history while in prison).

At the time defendant was arrested in this case, he had a felony conviction and numerous misdemeanor convictions. After failing to complete a drug treatment program and while a warrant for arrest was outstanding, defendant was arrested for the violent felony of robbery in the

second degree. After considering the standards outlined above, defendant's criminal history,

as well as his lengthy disciplinary record while in prison, it is manifest that substantial justice

dictates that defendant's motion to be re-sentenced be denied.

Conclusion

This constitutes the amended decision and order of the court.

Dated: May 4, 2010

Bronx, New York

Seth L. Marvin, A.J.S.C. Footnotes

Footnote 1:Exhibit I of defendant's moving papers.