Opinion
No. 7942–1998.
11-28-2014
The PEOPLE of the State of New York, v. Damon CRUZ, Defendant.
Robert T. Johnson, Esq., District Attorney, Bronx County, by Nikki Harding, Esq. Assistant District Attorney, for People of the State of New York. Steven M. Greenberg, Esq., Office of Appellate Defender, New York, by Samantha L. Stern, Esq., for Defendant.
Robert T. Johnson, Esq., District Attorney, Bronx County, by Nikki Harding, Esq. Assistant District Attorney, for People of the State of New York.
Steven M. Greenberg, Esq., Office of Appellate Defender, New York, by Samantha L. Stern, Esq., for Defendant.
Opinion
DOMINIC R. MASSARO, J.
Defendant moves for resentencing, pursuant to the Drug Law Reform Act of 2009 (hereinafter “DLRA”) (CPL § 440.46 ), on two B felony drug convictions. Although not disputing that he is eligible for resentencing, the People object to Defendant's motion on the ground that substantial justice warrants denial.
On November 10, 1998, Petitioner was arrested after handing an undercover officer four glassines of heroin in exchange for pre-recorded buy money. On January 7, 1999, Petitioner pled guilty to Criminal Sale of a Controlled Substance in the Third Degree (PL § 220.39[1] ), in full satisfaction of indictment number 7942–1998. As part of the agreed upon sentence, Petitioner was placed under the supervision of Treatment Alternative to Street Crime (hereinafter “TASC”) and ordered to enter and complete an 18–24 month residential drug treatment program. If Petitioner successfully completed the terms and conditions of his plea, he would be allowed to withdraw his felony plea and enter a plea to a misdemeanor with the final sentence to be a conditional discharge. If Petitioner failed to complete any of the terms of his plea, including the drug treatment program, Petitioner, as a second felony offender, faced an indeterminate sentence of 4½ to 9 years incarceration.
On February 10, 1999, Petitioner was released to the custody of TASC for placement in a drug treatment program. On September 2, 1999, Petitioner's case was advanced and the Court was informed by TASC that Petitioner had violated the terms and conditions of his plea by leaving his assigned program without permission and against clinical advice. The Court issued a warrant for his arrest.
On December 18, 2002, Petitioner was extradited back to New York following a November 21, 2002, arrest in Tennessee where he was charged with four counts of indecent exposure. On February 25, 2003, Petitioner was sentenced on indictment number 7942–1998 to the jail alternative of 4½ to 9 years incarceration (Byrne, J.). He was held until September 2, 2005, when he received a presumptive release to the Division of Parole (hereinafter “DOP”).
Since this date, Petitioner has been reincarcerated on the instant matter due to parole violations on five occasions: (1) from April 25, 2007, to July 12, 2007; (2) from May 13, 2008, to August 8, 2008; (3) from September 30, 2008, to November 10, 2008; (4) from April 1, 2013, to October 23, 2013; and (5) from January 24, 2014, to June 25, 2014. Petitioner currently is being held at Rikers Island Correctional Facility based on a July 1, 2014, arrest. He was charged under Bronx docket number 2014BX0350138 with Public Lewdness (PL § 245.00[a] ), Resisting Arrest (PL § 205.30) and related charges. On November 12, 2014, Petitioner pled guilty to Resisting Arrest and will be sentenced on December 1, 2013 to the promised sentence of six months incarceration.
This history has been culled from the Petitioner and the People's submissions.
On April 3, 1995, Petitioner was convicted upon a plea of guilty to Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39 ) and was sentenced to an indeterminate term of one year to three years incarceration in satisfaction of Bronx County indictment number 5568–1994. Petitioner was held until July 20, 1995, when he failed to return to the Department of Corrections (hereinafter “DOCS”) after an approved leave.
On December 9, 1997, authorities realized that Petitioner, who had used an alias, was wanted on New York County docket number 2N015277. On the same date he pled guilty to Attempted Resisting Arrest (PL § 110/205.30). On January 16, 1998, Petitioner was returned to the custody of DOCS to continue finishing his sentence on Bronx indictment number 5568–1994. He was released to parole on April 8, 1998, with a maximum expiration date of August 18, 1998.
On November 10, 1998, Petitioner was arrested on the present matter. After failing to complete drug treatment on this case and warranting, Petitioner was discovered in Dyersburg, Tennessee, where he was arrested on November 22, 2002, and charged with four counts of indecent exposure. He was extradited back to New York and on February 25, 2003, was sentenced to the jail alternative of 4 ½ to 9 years incarceration (Byrne, J.). On September 2, 2005, he received a presumptive merit release to DOP. At the time of this release, Petitioner's maximum expiration date for supervision was September 13, 2011.
In their response the People state that it is unclear what the final disposition was on this Tennessee arrest, but there is no indication that it was dismissed.
On April 25, 2007, Petitioner was reincarcerated by DOCS for an unknown violation of the terms and conditions of his parole supervision. On July 12, 2007, he was released to parole.
On March 4, 2008, Petitioner was arrested in Bronx County and charged with Trespass (PL § 140.05) and Criminal Trespass in the Second Degree (PL § 140.15). On March 5, 2008, he pled guilty to Trespass (PL § 140.05), a violation and received a conditional discharge. As punishment for violating parole. Petitioner spent six months in DOCS custody. He was released on November 10, 2008.
On May 13, 2008, Petitioner was reincarcerated by DOCS for an unknown violation of the terms and conditions of his parole supervision. He was held until August 8, 2008, when he was released to parole.
On May 21, 2012, Petitioner, using an alias, was arrested in Sanford, Florida for committing a lewd or lascivious act in front of a person who was less than sixteen years old. He pled guilty to Florida Statute § 800.04, as a felony, on September 27, 2012, and received a twelve month and four day sentence.
In April 2013, Petitioner was extradited back to New York and was reincarcerated by DOCCS for violating parole. On September 13, 2013, Petitioner was adjudicated a Level 2 Sex Offender in New York based on his Florida conviction. Petitioner was released to parole on October 23, 2013. On November 22, 2013, he was arrested in New York County and charged with Public Lewdness (PL § 245.00) and Exposure of a Person (PL § 245.01). On January 24, 2014, Petitioner was found guilty, after trial, of Public Lewdness (PL § 245.00) was sentenced to 60 days imprisonment and returned to DOCCS custody. On June 25, 2014, Petitioner was released to parole. On July 1, 2014, he was arrested and charged with Public Lewdness (PL § 245.00[a] ), Resisting Arrest (PL § 205.30) and related charges under Bronx docket number 2014BX035038. On November 12, 2014, he pled guilty to Resisting Arrest and on December 1, 2014, will be sentenced to the promised sentence of six months.
By this time DOCS and DOP merged to form DOCCS.?
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Petitioner's Institutional Record
Petitioner was found guilty of three Tier 2 disciplinary citations while incarcerated: November 26, 2003, at Livingston Correctional Facility for being Out of Place and a Movement Violation; July 25, 2005, at Groveland Correctional Facility for Loss/Damage to Property and for not complying with the regulation regarding utensils in the mess hall; and, August 1, 2013, at Midstate Correction facility for Violent Conduct and Fighting.
On the positive side, Petitioner has participated in the Alcohol and Substance Abuse Treatment Program twice while incarcerated, taken classes in English as a Second Language (ESL), commercial arts and custodial maintenance. He has also participated in the Sex Offender Counseling and Treatment Program.
Discussion
Petitioner argues that having served 8½ years with a maximum expiration date of January 24, 2015, he has been adequately punished for this low level nonviolent drug offense. He submits that he has used his time in prison productively, participating in drug and alcohol treatment multiple times, taking ESL courses, receiving vocational programming, working various jobs and maintaining a good disciplinary record during his incarceration. Petitioner further assures the Court that he will have the support of the Office of the Appellate Defender social work unit upon his release. Petitioner states that he does not seek to excuse the negative aspects of his record, namely that he absconded prior to being sentenced in this case, violated parole multiple times and reoffended. However, in light of the presumption in favor of resentencing and considering the totality of the circumstances, substantial justice does not require a denial of his application. In his reply affidavit, Petitioner further submits that while his indecent behavior is deserving of punishment, it does not require the denial of resentencing on his drug offense.
Although not disputing that Petitioner is eligible for resentencing, the People object to Defendant's motion on the ground that substantial justice warrants denial. The People argue that if it were not for Petitioner's committing new offenses while under parole supervision, he would not be in the custody or supervision of DOCCS. The People also stress that, Petitioner's pattern of sexually deviant conduct, particularly as it involves minors, is grounds to deny his motion for resentencing. This when coupled with his previous opportunity to complete drug treatment, his long absence from drug treatment, his history of warranting for years at a time, his extraditions from Florida and Tennessee and his use of aliases to avoid detection by the Criminal Justice Agency have placed him outside the group of individuals the Legislature sought to benefit from the DLRA.
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 system of punishment deemed harsh. While resentencing is not mandatory, if a defendant is eligible, there is a statutory presumption in favor of resentencing (see People v. Arroyo, 99 AD3d 515 [1st Dept 2012] ). 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 Court 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.” While a defendant's status as a parole violator may be relevant to a determination of whether substantial justice dictates denial of resentencing, it is merely one factor to consider and does not mandate denial of a resentencing motion (see People v. Paulin, 17 NY3d 238 [2011] )
Here, while the facts underlying Petitioner's conviction indicate a street level drug sale, since this conviction, he has absconded from a drug program and from parole, violated parole several times, used an alias, and engaged in a pattern of lewd behavior. When Petitioner first absconded from TASC supervision on this case, he was discovered approximately three years later in Tennessee, having been arrested and charged with four counts of indecent exposure. Petitioner was extradited back to New York. Later while on parole, he stopped reporting in and around September 13, 2011. On May 21, 2012, he was arrested in Florida and on September 27, 2013, pled guilty to a felony charge of committing a lewd or lascivious act in front of a minor. He was extradited back to New York. On September 17, 2013, following a Sex Offender Registration Act hearing (SORA) in New York, Petitioner was designated a Level 2 Sex Offender. On November 22, 2013, a month after he was released to parole, Petitioner was arrested for Public Lewdness (PL § 245.00) in New York County and was convicted, after trial, of that charge. Then, on July 1, 2014, one week after again being released to parole, Petitioner was arrested for Public Lewdness (PL § 245.00) and Resisting Arrest (PL § 205.30). Petitioner pled guilty to Resisting Arrest and is to be sentenced on December 1, 2014, to the promised sentence of six months incarceration.
Petitioner's conduct indicates to the Court that he does not deserve the relief that he is requesting as “[h]e displays an extensive pattern of inability to control his behavior which outweighed any mitigating factors he cited to” (see People v. Mitchell, 116 AD3d 415 [1st Dept 2014] ). Thus, 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 the Court.