People v De Los Dios
Annotate this CaseDecided on May 27, 2014
Supreme Court, Bronx County
The People of the State of New York
against
Jose De Los Dios, Defendant.
627/99
For People of the State of New York:
Robert T. Johnson, Esq.
District Attorney, Bronx County:
By: Nikki Harding, Esq.
Assistant District Attorney
For Defendant:
Elizabeth Mosher, Esq.
Center of Appellate Litigation
74 Trinity Place
11th Floor
New York, New York 10006
Dominic R. Massaro, J.
Defendant moves for resentencing, pursuant to the Drug Law Reform Act of 2009 (DLRA) (CPL §440.46), on two B felony drug convictions. Although not disputing that Defendant is eligible for resentencing, the People object to Defendant's motion on the ground that substantial justice warrants a denial.
In a decision dated March 20, 2012, the Court granted Defendant's motion to the extent that a resentencing hearing was ordered and scheduled for May 10, 2012. On May 10, 2012, at the request of defense counsel, since Defendant was not present and reportedly had stopped reporting to parole, the Court agreed to take the case off the calendar until a time when Defendant was present.
In a letter, dated February 6, 2014, defense counsel requested that the matter be recalendared. [*2]Counsel informed the Court that Defendant had been returned to New York and had pled guilty to a violation of parole for moving out of the state without permission. In a letter of response, dated March 21, 2014, the People continued to oppose Defendant's motion for resentencing on substantial justice grounds. Relying on their original argument, the People also asked the Court to consider the circumstances under which Defendant was returned to the custody of the New York State Department of Corrections and Community Supervision (hereinafter DOCCS). The Court reinstated the matter and a resentencing hearing was held on May 8, 2014.Background
Indictment Number 627-1999
On March 29, 1999, Defendant pled guilty to Criminal Sale of a Controlled Substance In or Near School Grounds, a class B felony (PL §220.44[2]) and Criminal Sale of a Controlled Substance in the Third Degree, a class B felony (PL §220.39[1]). Defendant, acting in concert with another individual, sold a narcotic drug to an undercover police officer in exchange for pre-recorded buy money. At the time of his arrest on this 1999 matter, Defendant had an active warrant in effect since July 25, 1997, for a prior felony plea (Indictment Number 7958-1996) to Criminal Sale of a Controlled Substance in the Third Degree, a class B felony (PL §220.39[1]). On the prior plea, Defendant had been placed under the supervision of the Center for Alternative Sentencing and Employment Services (CASES), but had failed to complete the program and the warrant had been issued.
On May 14, 1999, Defendant was sentenced to two to six years incarceration on Indictment Number 627-1999 to run concurrently with his indeterminate jail alternative of one to three years incarceration on Indictment Number 7958-1996. On November 22, 1999, Defendant was released to the Division of Parole.
Indictment Number 824-2000
On September 13, 2000, Defendant pled guilty to Criminal Sale of a Controlled Substance in the Third Degree, a class B felony (PL §220.39) . While on parole, Defendant sold two ziplock bags of crack-cocaine to an undercover police officer in exchange for pre-recorded buy money. As part of the agreed upon sentence, Defendant was placed under the supervision of Treatment Accountability for Safer Communities (TASC) and ordered to enter and complete an eighteen to twenty-four month residential drug treatment program. If Defendant successfully completed the terms and conditions of his plea, he would have been allowed to withdraw his felony plea and re-enter a plea to a misdemeanor, with the final sentence to be time served. If Defendant failed to complete any of the terms and conditions, including the drug treatment program, Defendant faced an indeterminate jail alternative sentence of fifty-four months to nine years. Moreover, Petitioner was made aware that if he did not complete the terms and conditions of this plea, the Division of Parole would sentence him to a further consecutive term of incarceration based on his release on Indictment Numbers 1958-1996 and 627-1999.On November 20, 2001, Defendant was released to TASC for placement in a drug treatment program. On December 18, 2001, the Court was informed that Defendant was not in compliance with the terms and conditions of his plea and a warrant was issued for his arrest. On December 6, 2002, Defendant was returned to Bronx Supreme Court. He had been arrested in Tompkins County, New York and subsequently pled guilty to Criminal Possession of Marijuana in the Fourth Degree, a class A misdemeanor (PL §221.15) and received 120 days incarceration. Based on Defendant's case history, the length of time he voluntarily absented himself and the circumstance surrounding his involuntary return, a further opportunity to complete a drug treatment program was denied.
On February 27, 2003, Defendant was sentenced to his jail alternative of fifty-four months to [*3]nine years incarceration on Indictment Number 824-2000 and was held until May 27, 2005 when he received a supplemental merit release to parole. Notwithstanding, on January 27, 2008, he was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree, a class A misdemeanor (PL §220.03). Since his release in 2005, Defendant has been violated and incarcerated by the Division of Parole on five separate occasions.
Defendant's disciplinary record while incarcerated indicates that he has one Tier 2 disciplinary infraction from 2008.Discussion
The DLRA of 2009 (CPL §440.46) provides that certain defendants serving indeterminate sentences for class B drug felonies, pursuant to the so called, now repealed Rockefeller Drug Laws, may apply for resentencing. The purpose of the DLRA is to provide relief to low level, non-violent drug offenders previously sentenced under a deemed system of harsh punishment. While resentencing is not mandatory, if a defendant is eligible, there is a statutory presumption in favor of resentencing. The DLRA provides that an eligible inmate's application for resentencing "shall" be granted unless "substantial justice" dictates that it be denied (see CPL §440.46[3]). In People v. Ford, 103 AD3d 492 (1st Dept 2013), the First Department stated "[w];e have consistently held that in determining whether substantial justice dictates the denial of a resentencing application, it is proper to consider the totality of the circumstances, including the nature and seriousness of the offense for which the defendant was sentenced, the defendant's conduct post-sentence and his or her criminal and institutional record."
Defendant submits that he is a non-violent, low-level drug offender who has struggled with addiction since his teens. He puts forth that the combination of his non-violent drug related criminal record, his participation in positive programming while incarcerated and his near spotless disciplinary record support his application for resentencing. Defendant maintains that he is exactly the type of person that the DLRA envisions and the People's emphasis on his failures to complete CASES and drug diversion is not a valid reason to deny resentencing, as this is part of the recovery process.
It is the People's position that Defendant has received numerous bites at the apple with every chance to address his substance abuse issues. The People argue that Defendant already has received two pleas in the ameliorative and rehabilitative spirit of the DLRA, years in advance of the actual amendments to the sentencing guidelines. The People submit that following both pleas, Defendant failed to take advantage of the of the opportunities for rehabilitation. Instead, he has refused treatment, warranted for extended periods of time and has only returned to court based on new arrests. As to Defendant's most recent return on a warrant, the People note that Defendant was arrested in Clinton, Missouri for being in a vehicle containing a large amount of drugs. Although the charges against Defendant were dismissed and another passenger in the vehicle took responsibility for the drugs, Defendant had left New York without permission from DOCCS and was found in a suspicious situation. Furthermore, the People claim that but for his own criminal activities and his inability to abide by the terms and conditions of his release, Petitioner would have been eligible to have his parole terminated on the effective date of the DRLA 2009.
Resentencing "involves a complex balancing of several sets of compelling and in some respects competing concerns." (see People v. Sosa, 18 NY3d 436, 442 [2012]). Although "prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief " (see People v. Paulin, 17 NY3d 238, 242 [2011]), such violations are relevant considerations. In this case, when considering the totality of the circumstances, Defendant's non-violent criminal record, his street level drug convictions, his minimal prison disciplinary record and the educational and rehabilitation programs he took advantage of while incarcerated, these still do not [*4]outweigh his history of recidivism and absconding. (see People v. Vargas, 113 AD3d 570 [1st Dept 2014]; People v. Moore, 112 AD3d 481 [1st Dept 2013]; People v. Ford, supra; People v. Spann, 88 AD3d 597 [1st Dept 2011]). Here, the pattern that emerges is of Defendant absconding from supervision and, as a result, forfeiting opportunities for rehabilitation and advantageous sentencing offers and routinely being returned as a result of an arrest involving drugs. At the time of his arrest in 1999, Defendant had an active warrant since 1997. When he was returned to court in 2002, after being arrested in upstate New York, he had an active warrant in effect for about a year. When defendant was most recently arrested in Clinton, Missouri, there was an active warrant for almost two years. The circumstances of Defendant's latest case of absconding is particularly troubling since he was on notice that the Court had ordered a resentencing hearing in regards to his DLRA application. Nonetheless, Defendant moved to Missouri, without permission from DOCCS, purportedly to create a more stable environment for himself. At this he failed, being arrested in a car with a large quantity of drugs. Although the Missouri charges against Defendant were dismissed, because of his ongoing behavior, Defendant does not deserve the relief that he is requesting.
Given the totality of the circumstances, the Court determines that substantial justice dictates the denial of Defendant's motion for resentencing. This constitutes the decision and order of this Court.May 27, 2014______________________________Dominic R. Massaro, JSC
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