Opinion
1538/01.
Decided February 16, 2010.
The People were represented by the Office of the Bronx County District Attorney, by A.D.A. Nikki Harding.
The defendant was represented by Office of the Appellate Defender, by Lily Goetz, Esq.
Defendant's motion, pursuant to CPL § 440.46, for resentencing under the Drug Law Reform Act of 2009 (L 2009, ch 56, Pt AAA, § 9) [hereinafter "DLRA-3] and in accordance with sections 60.04 and 70.70 of the Penal Law is denied.
The defendant and his appellate attorney, as well as an assistant district attorney, personally appeared before the Court on February 8, 2009. Although the Court offered them the opportunity for a hearing, as instructed by the Appellate Division in People v Diaz ( 68 AD3d 497 [1st Dept 2009]), defendant's counsel, after brief oral argument, instead elected to have the Court determine the instant motion on the submitted papers, which were quite extensive.
In essence, the Court holds that, as matter of its discretion — and not as a matter of law — it may decline to resentence, pursuant to CPL § 440.46, a defendant who absconds during trial in 2002 and is involuntarily returned on a bench warrant six years later. In this regard, the defendant at bar may not fairly seek to be placed in a better position than those similarly situated convicted class B drug-selling/possessing felons who, in 2002, had lawfully commenced their terms of imprisonment and subsequently became eligible for parole status in the ensuing years — rather than deliberately choosing to abscond and escape from justice, as did the defendant.
In this case, the defendant, who had previously posted bail, appeared with his assigned counsel before this Court, in early May 2002, for trial [by jury] of his indictment for criminal sale of a controlled substance in the third degree (PL § 220.39) — a class B felony offense. After some preliminary proceedings, including the administration of Parker warnings ( see People v Parker , 57 NY2d 136), trial was adjourned to May 13th. At that time, the defendant did not return to court. The prosecution then requested that the defendant be tried in absentia.
After conducting a thorough Parker hearing, this Court ruled that the defendant had deliberately and intentionally failed to return to court, thereby forfeiting his right to be present at his trial.
A jury subsequently found the defendant guilty as charged, on May 21st.
The next month, on June 20th, the Court conducted a second Parker hearing to determine if the defendant, upon the People's application, should be sentenced in absentia as well. Upon conclusion of the hearing, the Court again found that the defendant had intentionally absented himself from the proceedings, thereby forfeiting his right to be present at sentencing ( see generally People v Corley , 67 NY2d 105). The Court thereupon sentenced the defendant, as a predicate felon, to an indeterminate sentence of 6 to 12 years.
In her supporting affirmation [dated12/1/09], defense counsel does not deny that the Court sentenced the defendant as a predicate felon based upon his prior conviction for attempted criminal sale of a controlled substance ( id. at p 11, ¶ 20).
Defendant subsequently remained at large for six years, until July 17, 2008, when he was involuntarily returned to court from New Jersey pursuant to an extant New York bench warrant. At that time, defendant was brought before another judge of Supreme Court, Bronx County, for execution of the previously imposed 6 to 12 year prison term.
Upon oral argument, defense counsel clarified that the defendant was returned to New York from New Jersey and not Delaware, as inferred from the defendant's moving papers.
About eighteen months later, on December 2, 2009, defendant served the instant motion for resentencing pursuant to CPL § 440.46.
In pertinent part, CPL § 440.46 states that "[t]he provisions of section twenty-three of chapter seven hundred thirty-eight of the laws of two thousand four shall govern the proceedings on and determination of a motion brought pursuant to this section; . . .".
Turning to L 2004, ch 738, § 23 ["DLRA-1]", this statute provides, in relevant part as follows:
"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 an order denying the application, specify and inform [the defendant] of the term of a determinate sentence it would impose upon such conviction, as authorized for a class [B] felony . . .".
(L 2004, ch 738, § 23. [emphasis supplied].)
In enacting CPL § 440.46, as well as DLRA-1, and DLRA-2 [enacted in 2005], 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' [citation omitted]" ( People v Salcedo , 40 AD3d 356 , 357 [1st Dept 2007], appeal dismissed 9 NY3d 850; see also People v Wilson , 46 AD3d 338 [1st Dept 2007]).
In any event, this Court is keenly aware of the almost unrestricted latitude entrusted in the resentencing courts by the Legislature and the Appellate Division upon entertaining a defendant's resentencing application pursuant to CPL § 440.46. In this case, however, the Court declines to exercise its discretionary authority to resentence the defendant, as he is clearly seeking to benefit from his explicit wrongdoing — wrongdoing patently separate and distinct from the charged class B felony drug sale he had committed. More particularly, had the defendant not absconded shortly before the commencement of trial, he would have in fact served the minimum six-year period of the previously imposed indeterminate sentence and, moreover, become eligible for parole prior to the enactment of CPL § 440.46.
Manifestly, in enacting DLRA-3, the legislature never contemplated the instant situation, namely, whether an absconding defendant should be permitted to profit by his own wrongdoing in evading trial and sentence, and yet, many years later, still claim the benefit of recently enacted CPL § 440.46.
Thus given this apparent legislative oversight, the Court must assume that the defendant is plainly eligible to apply for resentencing under the DLRA-3 legislation as a matter of law. However, whether this Court, as matter of discretion, should grant his application is entirely another matter, since it is a basic principle of our state's jurisprudence that a party cannot take affirmative advantage of, or benefit by, his own wrongful conduct. As expressly recognized by the Supreme Court in Diaz v US ( 223 US 442), "[n]either in criminal nor in civil cases will the law allow a person to take advantage of his own wrong".
This principle is frequently applied by the courts where a defendant absconds from trial, thus allowing a court to try the defendant in absentia ( see Diaz v US , 223 US 442, supra; People v Sanchez , 65 NY2d 436 [1985]; People v Parker , 57 NY2d 136, supra). It has also been commonly applied in other situations as well — i.e., where a defendant causes a witness to be unavailable for trial; under those circumstances, the prosecution, after establishing the requisite foundation ( see generally People v Geraci , 85 NY2d 359 [1995], habeas corpus dismissed 23 FS2d 246 [EDNY], affd 211 F3d 6 [2nd Cir], cert denied 531 US 1018), may introduce the witness's Grand Jury testimony (and his other out-of-court hearsay statements), so that the defendant " does not benefit from his or her wrongful conduct. . . ." ( People v Bosier ( 6 NY3d 523, 528 [2006] [emphasis added]).
For example, in People v McNair ( 22 AD3d 376 [1st Dept 2005], lv denied 6 NY3d 778), the defendant pleaded guilty to criminal sale of a controlled substance in the third degree with "a promise that the defendant could obtain a misdemeanor disposition upon successful disposition of a drug program . . ." ( id. at 377). Defendant, however, absconded, and was returned on a bench warrant. At that time, the court sentenced the defendant to a term of 4½ to 9 years. Finding no abuse of sentencing discretion, the Appellate Division unanimously affirmed, noting that "the sentencing court properly determined that defendant violated his plea agreement by failing to complete the program, and by having to be brought back to court on a bench warrant seven years later [citation omitted]" ( id.).
Similarly, in People v Valles ( 21 AD3d 855 [1st Dept 2005], lv denied 6 NY3d 760), a unanimous Appellate Division held that the sentencing " court properly exercised its discretion in declining to give defendant a second chance to complete a drug treatment program after he originally absconded . . ." ( id. [ emphasis supplied]; see also People v Anonymous , 59 AD3d 215 [1st Dept 2009], lv denied 12 NY3d 850).
In other "plea cases", where the defendant had flagrantly violated the agreement by failing to subsequently appear at sentencing, the Court of Appeals has ruled that the sentencing court is "no longer bound by the plea promise and could properly impose an enhanced sentence [citations omitted]" ( People v Figgins , 87 NY2d 840, 841 [emphasis supplied]; see also People v Holmes , 67 AD3d 1069 , 1071 [3rd Dept 2009]), provided, this Court notes, the defendant had been previously and appropriately warned — at the time of plea — that such enhancement "would probably happen [citations omitted]" ( People v Browning , 44 AD3d 1067 [2nd Dept 2007]; see also People v Baez , 67 AD3d 1204 [3rd Dept 2009]).
In any case, putting aside the fact that the defendant is seeking to reap a "windfall" from his prior unjustified act of absconding justice, the most troubling aspect of the instant application — indeed, it is truly significant — is the glaring fact that defendant's moving papers are conspicuously silent about any of his activities during the intervening six years he had eluded capture.
Specifically, the defendant has not factually demonstrated that he was gainfully employed in the latter half of 2002 and through the ensuing years of 2003 to his apprehension in 2008. On the other hand, if not lawfully employed, defendant does not state how he was supporting himself. Nor does the defendant claim he had not been abusing and/or selling drugs during this time frame. More significantly, defendant does not even allege that he was engaged in any constructive activities at any point while unlawfully at liberty. What is more, upon oral argument, defense counsel candidly conceded that there was no physical or lawful impediment (i.e., hospitalization or incarceration) preventing the defendant from voluntarily returning to New York at any time during the six years he had remained a fugitive.
Consequently, the defendant has completely failed to demonstrate that the equities of his situation should now be resolved in his favor, thereby entitling him to a more lenient sentence — notwithstanding his entirely self-created illegal status as an absconder.
Moreover, in exercising its resentencing discretion under DLRA-3, the statute — like the two prior enacted Drug Law Reform Acts [DLRA-1 2] — specifically authorizes the sentencing court to consider the defendant's institutional record ( see People v Perez , 57 AD3d 921, 922 [2nd Dept 2008]). Here, however, by virtue of the defendant's act of absconding, the defendant has clearly frustrated the Court's ability to weigh and apply this prong of the statute, as he has only been in state prison for a very brief period of time — less than seven (7) months. On the other hand, it is notable that, during his very brief stint in prison, the defendant has already "earned" one tier 3 violation, on July 6, 2009.
According to computerized inmate records, published "on the web", defendant was received in state prison on May 15, 2009; the instant motion was filed in Supreme Court, Bronx County, on December 2, 2009.
While the defendant nonetheless asserts that he is now on the road to rehabilitation, his brief travel route so far is truly insignificant in light of his absconding and prior criminal record.
Lastly, in reaching its decision, the Court was not negatively influenced by the fact that in his letter [dated 6/7/09] to the Court seeking the appointment of counsel to prosecute the instant motion, defendant had clearly misrepresented his prior felonious record.
Specifically, defendant wrote "I am a first-time felony offender . . .", when in fact, the defendant was sentenced as a predicate felony offender based upon his prior conviction for attempted criminal sale of a controlled substance.
Thus, for the reasons stated above, the Court declines to exercise its discretion to resentence the defendant.
Nevertheless, to avoid the necessity of a remand to this Court for further consideration — in the event the Appellate Division, upon defendant's anticipated appeal, concludes that this Court must resentence the defendant — notwithstanding the critical fact that he had absconded during trial and remained a fugitive from justice for six years — the Court would, upon such a direction, issue an order ( see People v Loyd , 53 AD3d 679, 680 [3rd Dept 2008]) specifying that the defendant, as a second drug felony offender, be resentenced to a determinate sentence of six years plus three years of post-release supervision.
As stated by .the Appellate Division in People v Graves ( 66 AD3d 1513 [4th Dept 2009]), it is error for the resentencing court to "impose[] the new sentence without first affording defendant the opportunity to appeal from the order specifying the new sentence that the court would impose and to withdraw his application for resentencing following our determination of that appeal [citations omitted]" ( id. at 1514).
In arriving at this proposed sentence, the Court would take into account defendant's predicate felony status (discussed above), as well as the undisputed fact that, by absconding and remaining at large for years, the defendant had also committed the crime of bail jumping in the first degree (PL § 215.57), a class D felony ( see People v Villanueva , 144 AD2d 285 [1st Dept 1988], lv denied 73 NY2d 897 [a court may use extraneous crimes to enhance a sentence where, as here, "it first ascertained by way of accurate, reliable evidence that defendant actually committed those crimes . . ."]).
As aptly noted by Chief Judge Lippman in People v Goldstein ( 12 NY3d 295 ), a "court's decision to proceed with sentencing, and enhance the sentence by reason of the defendant's failure to heed the Parker warnings he had been given, [does] not rise to the level of an abuse of discretion" ( id. at 301 [italics in original]).
Above all else, while the defendant was apparently not interested in a plea bargain that would have resulted in his incarceration, "[i]t is to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea' [citation omitted]" ( People v Franco , 48 AD3d 477, 478 [2nd Dept 2008], lv denied 10 NY3d 840; see People v DeHaney , 66 AD3d 1040, 1041 [2nd Dept 2009]; People v Davis , 27 AD3d 761, 762 [2nd Dept 2006], lv denied 7 NY3d 847), especially where, as here, the Court did not punish the defendant for exercising his right to trial ( see People v Nelson , 68 AD3d 1252, 1256 [3rd Dept 2009]).
In any event, as noted at the outset, defendant's motion for resentencing is denied.
The foregoing opinion constitutes the decision and order of the Court.