Opinion
14-0079
04-25-2016
The People of the State of New York, Respondent v. Lauren Purpura, Appellant/Defendant
For the Respondent: SANDRA DOORLEY, ESQ. BY: Leah Mervine, Esq. Monroe County District Attorney 47 S. Fitzhugh Street Rochester, New York 14614 For the Appellant/Defendant: EASTON THOMPSON KASPEREK SHIFFRIN LLP BY: William T. Easton, Esq. 16 West Main Street, Suite 243 Rochester, New York 14614
For the Respondent: SANDRA DOORLEY, ESQ. BY: Leah Mervine, Esq. Monroe County District Attorney 47 S. Fitzhugh Street Rochester, New York 14614 For the Appellant/Defendant: EASTON THOMPSON KASPEREK SHIFFRIN LLP BY: William T. Easton, Esq. 16 West Main Street, Suite 243 Rochester, New York 14614 Christopher S. Ciaccio, J.
It is hereby ORDERED that the judgment of the Rochester City Court (Castro, J.) so appealed from is modified as a matter of discretion in the interest of justice by reducing the sentence to a term of sixty days in the Monroe County Jail (with credit for time previously served) and as modified the judgment is affirmed for the reasons set forth below.
Defendant was sentenced on November 14, 2011 to three years' probation upon her plea to Driving While Intoxicated, a misdemeanor. In September of 2013 she admitted to violating probation, and was resentenced in October 2014 to nine months incarceration. She now appeals the sentence on the ground that it is harsh and excessive.
Because the lower court seemingly sentenced the defendant almost entirely on the basis of her behavior while on probation, it is necessary to recount the circumstances in detail.
Nearly two years of her three year probationary term went by without any allegation that the defendant had violated probation. On August 8, 2013 an Information for Delinquency was filed alleging that she had failed to report to probation on six occasions, drank a small amount of alcohol several times, had not made any payments on the fine and surcharges, and had not entered into a treatment program. City Court issued a warrant for her arrest.
On September 19, 2013 the defendant turned herself in, and she was arraigned the next day and held without bail. On September 30, the Court told her that if she admitted to a violation, the Court would release her from custody and adjourn sentencing for six months in order to "monitor her progress." If she were compliant with the terms and conditions of probation for that period of time, she would be restored to probation and the period of delinquency would not be excluded from the time she owed on probation. She entered the plea and was released.
On January 6, 2013, probation reported that the defendant had completed a substance abuse evaluation and had been diagnosed with multiple drug dependencies. She was attending out-patient sessions three times per week. The only problem noted was that "her attendance has slipped of late." She had paid her fines and surcharges.
City Court did not find this report favorable, and indicated it would "pull the plug" if the probationer did not do a "complete reversal," citing that "she's missing appointments," and was still having "problems with substance abuse," although neither assertion is clear from the probation report. There were no positive screens and no admissions of drug use, and the "continued drug use" cited by the report which caused the Probationer to be recommended to an in-patient treatment facility could as easily have been a reference to the use reported in the Information for Delinquency, which occurred before August 5.
She returned to court on February 10, 2014. A "big improvement" was noted by the Court, and the matter was adjourned to March 25, one week shy of the six month period.
Defendant appeared with counsel on March 25, 2014. The report from probation was again favorable. Defense counsel requested that the Court restore the defendant to probation, reminding the court that the period of what was essentially "interim supervision" would only last six months. The court declined, and instead adjourned the matter for an additional six weeks in order to continue to "monitor (the defendant's) compliance."
Two more appearances were scheduled, and at both it was reported that the probationer was doing well. The Court continued to reject requests from defense counsel to restore the defendant to probation.
Between a June 10 appearance and an appearance on September 16, the probationer relapsed badly, as reported by probation in a letter to the Court. She was taken into custody, and on October 16, 2014 she was sentenced to nine months in jail.
This Court reviews the sentence imposed by Rochester City Court as a "matter of discretion in the interest of justice in the event that the sentence, though legal, was unduly harsh or severe" (People v Garcia-Gual, 67 AD3d 1356 [4th Dept 2009], lv denied 14 NY3d 771 [2010]); People v Thompson, 132 AD3d 1364, 1367 [4th Dept 2015]).
A sentencing court, even one imposing a sentence for a violation of probation, must engage in balancing the objectives of penal sanctions — rehabilitation, deterrence, isolation and retribution. (Penal Law § 1.05; People v. Farrar, 52 NY2d 302, 305 [1981]) — and in particular, must consider the particular circumstances of the offender ( People v Notey, 72 AD2d 279, 283 [2nd Dept 1980]).
Additionally, a sentence imposed for a violation of probation must consider not only the probationer's performance while on probation, but also, the nature of the underlying offense of conviction and what would have been an appropriate sentence for that conviction, if probation had not been available, taking into account, among other things, the defendant's criminal history (See e.g. People v Brand, 100 AD3d 1154 [3d Dept 2012]); People v Smoke, 15 AD3d 729, 730 [3d Dept 2005]; People v Spriggs, 8 AD3d 833 [3d Dept 2004]); lv denied 3 NY3d 681 [2004]; People v Oehler, 52 AD3d 955, 957 [3d Dept 2008], lv denied 11 NY3d 792 [2008]; People v Berry, 288 AD2d 501 [3d Dept 2001]).
Here, the defendant's record on probation was mixed. On one hand she paid her fines, made most (if not all) appointments, participated in out-patient and in-patient treatment, committed no new offenses, and furthered her education, all while working and supporting herself and her five year old son. In no way can her probation term be characterized, as argued by the People, as "one of persistent violations and poor (and) abysmal performance."
On the other hand, she had a regrettable and tragic relapse into drug use at what was the very end of the probationary term. Certainly her inability to "stay clean" and follow through with treatment recommendations at the end of her term would justify a conclusion that probation was no longer effective and that a term of incarceration would be appropriate.
But once that determination was made, the Court failed to consider, at least judging from the record of the sentencing hearing, additional factors in arriving at an appropriate period of incarceration, including the probationer's personal circumstances, the underlying conviction and what would have been an appropriate sentence at the time of the conviction, if probation had been rejected or defendant deemed not appropriate for probation.
In determining an appropriate sentence within a given range, this Court finds it useful to consider what factors would justify a sentence at each end of the scale. In this case, on a conviction for Driving While Intoxicated, one year in jail - the maximum sentence of incarceration - would be justified by, for instance, an extensive criminal history, including and especially, multiple alcohol-related offenses; an accident and/or injuries caused by the intoxication; a high BAC level; a refusal to comply with requests to take field sobriety tests or to take the Breathalyzer; an obnoxious or belligerent demeanor and attitude towards the arresting officer; and a multitude of suspensions and scofflaws.
The low end of the range - a fine and a one year conditional discharge and/or brief period of incarceration - would be justified and appropriate in the absence of the factors above, and such is the case here.
Other than the license suspension charges (the record references two pending charges, not three, as maintained by the People, and there is certainly no record of "many crimes,") few circumstances existed to justify pushing the defendant's sentence to the upper range for Driving While Intoxicated. The defendant also presented with an array of mitigating circumstances regarding her upbringing and personal history.
Had defendant initially rejected probation, it is hard to imagine that the sentence of incarceration imposed would have exceeded thirty days. As the Assistant District Attorney stated prior to the plea, "there is nothing egregious about the case There is no criminal history whatsoever . The People extended an offer to an "AI" (Driving While Ability Impaired).
Consequently, in receiving a sentence of nine months (or 75% of the maximum), the defendant has been punished, not so much for Driving While Intoxicated, but for failing to comply with the Court's directives with regard to drug use, in short, for having an uncontrollable drug addiction. Equal if not greater weight should have been given to what an appropriate sentence would have been in the absence of probation at the time of conviction, a function of defendant's criminal history, her personal circumstances, and any mitigating factors regarding her background and social circumstances, none of which appears to have been taken into account by City Court.
The Court therefore modifies the judgment as a matter of discretion in the interest of justice (see People v Watkins, 300 AD2d 1074 [4th Dept 2002]) by reducing the sentence to a term of sixty days in the Monroe County Jail, time previously served to apply. The case is remitted to Rochester City Court pursuant to CPL §460.50(5).
This constitutes the ORDER of the Court. Dated: April 25, 2016 Rochester, New York HON. CHRISTOPHER S. CIACCIO Monroe County Court Judge