Opinion
151/2004.
Decided October 19, 2011.
Daniel M. Donovan, Jr., District Attorney, Richmond County, By: Michael Shollar, Esq., Karen Varriale, Esq., Assistant District Attorneys, for the People.
Lynn W.L. Fahey, Esq., By: David P. Greenberg, Esq., for the Defendant.
Upon due consideration of defendant's motion, dated April 15, 2011, for resentencing pursuant to Penal Law § 70.70 and Criminal Procedure Law § 440.46, and a hearing having been conducted on this motion, it is decided as follows:
The Court has considered all submissions filed by the parties, including: People's response affirmation, dated April 28, 2011; defendant's reply memorandum, filed on June 1, 2011; the People's letter, dated August 25, 2011, and all attachments thereto; and the record of the proceedings on October 5, 2011.
Conducted on July 14, 2011.
TRIAL
Defendant was convicted, after a jury trial, of four counts of Criminal Sale of a Controlled Substance in the Third Degree (PL 220.39) and five counts of Criminal Sale of Marihuana in the Fourth Degree (PL 221.40).
The evidence showed a long-term buy operation named "Operation Good Neighbor" was conducted by the New York City Police Department at the Stapleton Houses in Staten Island. This was not a typical long-term narcotics operation.
Here, undercover detectives literally moved into an apartment within the Stapleton Houses to conduct this investigation. The detectives developed ties to the community in order to stem the tide of narcotics transactions occurring within this public housing development.
Defendant sold marihuana to one of the undercover detectives the first day they met, and over the course of a few months, he sold marihuana and crack cocaine to the undercover detectives on numerous occasions in the stairwells of the Stapleton Houses, by personal delivery to their apartment, and once when they met by happenstance at a local store. Defendant would occasionally knock on the apartment door unannounced to ask whether the undercover detectives "wanted anything."
SENTENCE AND APPEAL
On February 25, 2005, defendant was sentenced, as a second felony offender, to consecutive indeterminate terms of four-and-one-half years to nine years imprisonment on each of the class B felony counts, and concurrent definite terms of one-year imprisonment on each misdemeanor, for an aggregate sentence of eighteen to thirty-six years imprisonment.
By decision and order, dated July 1, 2008, the Second Department affirmed defendant's conviction; however, in an exercise of discretion, the Court modified defendant's sentence by ordering that two of his indeterminate terms of imprisonment run concurrently with one another and the remaining terms. People v. Hodge ,53 AD3d 507, 508 (2d Dept 2008), lv. denied, 11 NY3d 926 (2009). Thus, defendant's resulting aggregate sentence is nine to eighteen years.
DEFENDANT'S PRIOR CRIMINAL HISTORY
While on probation for a youthful offender adjudication on August 31, 1995, defendant committed a gunpoint robbery of a cab driver. On December 19, 1995 he pled guilty to the violent felony offense of Attempted Robbery in the Second Degree (PL 110/160.10 [2]).
The probation report reflects that the 1995 robbery conviction represented the then nineteen-year-old defendant's fifth arrest, including a juvenile delinquency history.
On December 20, 1995 defendant pled guilty to Petit Larceny (PL 155.25) in an unrelated case.
On October 12, 1997, police responded to a report of shots fired at defendant's home, whereupon defendant was found bleeding from a gunshot wound along with a submachine gun (which was in plain view), and nineteen ziplock bags of crack cocaine. Having obtained a search warrant, police conducted a subsequent search and recovered drug paraphernalia and another weapon, i.e., a nine-millimeter pistol. Defendant was arrested for drug and weapon charges.
On February 8, 1998, defendant pled guilty to one count of Attempted Criminal Possession of a Controlled Substance in the Third Degree (PL 110/220.16[1]) and was sentenced to an indeterminate term of three to six years imprisonment.
The probation report reflects not merely a denial of guilt by defendant, but assertions that defendant "believe[s] [the submachine gun, nine-millimeter pistol and narcotics] belong to a woman who had been staying with him" . . . and that he only admitted guilt because police told him "he would be beaten and his brother arrested and charged if he did not."
Within one year of his release from prison, defendant was again arrested for narcotics possession.
On July 28, 2003, after a bench trial, defendant was convicted of one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03) and sentenced to a definite term of one-year imprisonment.
On March 4, 2004, defendant was arrested again for possessing drugs and pled guilty to one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03) and sentenced to time served.
PRISON DISCIPLINARY RECORD
Prior to the filing of defendant's instant motion, he was found to have committed two Tier III and two Tier II disciplinary infractions.
During the pendency of this motion, defendant committed another Tier II and another Tier III infraction.
Thus, the total number of defendant's disciplinary infractions is six.
HEARING UPON D.L.R.A. MOTION
On July 14, 2011 a hearing was conducted upon defendant's instant motion. At that time, defendant was asked by the Court if he admitted his guilt to the charges upon which he was convicted by the jury. Until that day, defendant had consistently denied his guilt as reflected in the probation report. He admitted his guilt only when asked by the Court, not on his own volition.
Defendant has an extensive record of filing frivolous applications and documents allegedly pursuant to the Uniform Commercial Code (UCC), demanding "performance bonds" from various officials, denying he is the person in the underlying indictment, related lawsuits and other claims. The sentencing minutes also reflect defendant having articulated these claims throughout that proceeding. A more extensive analysis of defendant's UCC and similar claims are detailed below.
At this hearing defendant was questioned under oath "whether or not there's an actual basis for [any of these UCC filings]?" (Hearing: 10). Defendant answered, "No." Id.
Despite the fact that the Court and District Attorney received after the hearing a letter, dated July 7, 2011, from defendant in which he made UCC claims, the Court would have been willing to discount the letter based on his sworn disavowal of those claims at the July 14, 2011 hearing if such disavowal were sincere. This is reflected in the record at the brief conference held on July 21, 2011.
See also, letter from defense counsel, dated July 19, 2011.
At the July 21, 2011 proceeding, the Court indicated it would adjourn its decision on this matter to September 14, 2011 in order to gauge defendant's sincerity in his on-record disavowal of his UCC filings and newfound acceptance of guilt relative to his convictions in this case. Both parties agreed to the adjournment.
The matter was adjourned from September 14, 2011 to October 5, 2011 as defendant was not produced before the Court on the former date.
In a letter filing, dated August 25, 2011, the People submitted an audio recording of telephone conversations made between defendant in jail and an unidentified male. It is alleged that defendant continues to subscribe to what is known as "redemption theory."
"Redemption theory" is described as "pseudo-legal gibberish" by the Southern Poverty Law Center, which, in a Spring 2009 article, describes the genesis of this theory:
The roots of ["redemption theory"] stretch back to the Posse Comitatus of the 1970s, an ultra-right, anti-Semitic vigilante movement whose members denied the legitimacy of taxes and of the U.S. government, often filing millions of dollars in fake liens against perceived enemies. (In many states, citizens can file liens against property, often people's homes, that prevent that property from being sold until an outstanding debt is satisfied, even without proof of that debt.) After a Posse adherent killed two U.S. marshals in 1983, the movement largely faded. By that time, however, its core beliefs about sovereign citizenship had taken on a life of their own.
Casey Sanchez, Southern Poverty Law Center, Return of the Sovereigns, Intelligence Report, Spring 2009, Issue Number 133, http://www.splcenter.org/get-informed/intelligence-report/ browse-all-issues/2009/spring/return-of-the-sovereigns.
It is the People's contention that these conversations evince "not an acceptance of responsibility [and disavowal of redemption theory] but rather a tactic to secure his release." See, People's submission, dated August 25, 2011.
On October 5, 2011, defense counsel orally responded to the People's August 25, 2011 filing. Both sides reargued defendant's "redemption theory" (UCC) issues.
Other argument was made regarding defendant's potential sentence exposure should his motion have been granted. Based on this Court's ultimate determination, it is not relevant.
During the October 5, 2011 appearance, the Court orally denied defendant's motion on substantial justice grounds and indicated a written decision would follow shortly thereafter.
At that time defendant insisted on addressing the Court. The Court explicitly cautioned defendant that anything he wishes to state should be made through his counsel since whatever he may state would be on-the-record. After conferring with his counsel, defendant addressed the Court. Defendant continued to espouse, sua sponte, his various mantras based on "redemption theory," which included repeated questions directed at the Assistant District Attorney about whether they [i.e., the People] "have a [UCC] claim against" him.
The People expressly refused to respond to defendant's "questions" and the Court recessed the proceedings, having no further business on the instant case.
It must be emphasized that the Court has been clear that the UCC matters comprise merely a single factor, albeit far from insignificant, in its consideration of defendant's motion.
UCC FILINGS AND RELATED ACTIVITIES
"Defendant's interest in commercial law" ( see, defense counsel's letter, dated July 19, 2011) began on February 25, 2005 at his sentencing. The minutes reflect defendant's accusation that his name had been copyrighted and that the Court must pay a fee in the amount of $500,000 each time his name was used (Sentence: 23, 26). These "objections" by defendant were made throughout the sentence proceeding.
Defendant also alleged he is not the person in the indictment (Sentence: 11, 16, 27). "I'm not the defendant, Reginald Hodge." (Sentence: 16).
Further, defendant at sentencing not only denied guilt in this case, but he denied guilt in his prior felony conviction as well, claiming, inter alia, both cases involve "mistaken identity" (Sentence: 11). This issue is discussed in detail below.
Throughout sentencing, and in numerous post-sentence filings, defendant denied the authority or existence of the Court ( see, e.g., defendant's affidavit, filed on April 6, 2006).
See, e.g., UCC and related filings dated: October 9, 2009; September 25, 2009; February 11, 2009; May 12, 2008; and April 10, 2008.
He has inundated the Court, its staff, the County Clerk, the District Attorney and other government officials with demands for, inter alia, "bid bonds," "penal bonds," "performance bonds" and what the Southern Poverty Law Center refers to as pseudo-legal gibberish. Supra.
Defendant continues to promote his affinity with "commercial law" ( see, record of October 5, 2011 hearing).
DEFENDANT'S PARTICIPATION IN INSTITUTIONAL PROGRAMS
Defendant completed the Residential Substance Abuse Treatment (RSAT) within approximately five months of enrollment. He also completed phases I and II of the New York State Department of Correctional Services's (DOCS) transitional services program.
His evaluations in these programs have been primarily "satisfactory."
Nevertheless, under Defense Exhibit D (RSAT Evaluation Form, month/year Nov. 08) is another example of defendant's subscription to "redemption theory." Above the line reading "inmate signature" is defendant's purported signature. Above the signature, in the same handwriting, it reads, "Without prejudice all rights reserved." The foregoing phrase is found on numerous pro se filings by defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court has discretion to consider a broad range of information in determining whether an eligible inmate should be granted resentencing. People v. Beasley , 47 AD3d 639, 641 (2d Dept 2008) (sentencing court is "required to make a determination based upon a review of all relevant circumstances").
Both parties acknowledge through their submissions that the governing statute expressly authorizes this Court to evaluate defendant's institutional record. The Court may also consider: (1) defendant's prior criminal history, People v. Winfield ,59 AD3d 747, 747-748 (2d Dept 2009); (2) defendant's prior use of violence, People v. Vega ,40 AD3d 1020, 1020-1021 (2d Dept 2007), lv. denied, 9 NY3d 852 (2007); People v. Stamps ,50 AD3d 827 (2d Dept 2008), lv. denied, 10 NY3d 939 (2008); (3) defendant's acceptance of guilt for the current offense, People v. Sanders ,36 AD3d 944, 947 (2d Dept 2007), lv. denied, 8 NY3d 927 (2007); (4) defendant's conduct under the supervision of the Department of Probation or Division of Parole, People v. Curry ,52 AD3d 732 (2d Dept 2008), lv. denied, 11 NY3d 831 (2008); People v. Quintero , 86 AD3d 582 (2d Dept 2011); and (5) the quantity of drugs underlying the current conviction, People v. Morales , 46 AD3d 1395, 1396 (4th Dept 2007), lv. denied, 10 NY3d 768 (2008). See also, People v. Hickman ,85 AD3d 1057 (2d Dept 2011) (substantial justice denial based on prior convictions for Attempted Robbery in the Second Degree and Robbery in the Third Degree, history of violating probation, possession of significant quantity of cocaine in underlying case, absconding during trial and prison disciplinary violations); People v. Alea ,46 AD3d 398 (1st Dept 2007), lv. denied, 9 NY3d 1030 (2008) (substantial justice denial where "defendant was a member of a large-scale narcotics and firearms selling organization, who was personally involved in a number of sales to undercover officers . . .").
Having considered all the relevant circumstances and defendant's testimony, the Court finds that substantial justice dictates that defendant's motion should be denied in all respects.
At the outset, it must be noted that there is not a single factor which is controlling or dispositive of the Court's decision. Rather, there are multiple factors that the Court has considered.
DEFENDANT'S ESCALATION OF CRIMINAL ACTIVITY AND HIS FAILURE TO ACCEPT RESPONSIBILITY FOR HIS OWN ACTIONS
Since defendant was on probation supervision for a youthful offender adjudication in 1995, he continued to engage in criminal activity, and even graduated to more serious offenses.
While on probation, defendant committed a gunpoint robbery of a cab driver. The probation report notes that the victim "continues to have nightmares at home as well as each time a customer climbs into his cab."
It is significant that although he pleaded guilty to this crime, the report reflects defendant's denial that he was armed with a handgun. Moreover, the report reads:
It appears that defendant's lawless behavior is escalating into more violent acts and is part of an already established pattern which involves taking money and material possessions without working for them.
The pattern of defendant's denial of guilt or mitigation of his actions, his refusal to accept responsibility and his attempts to thrust blame to others for his own conduct is firmly established by his 1998 guilty plea to Attempted Criminal Possession of a Controlled Substance in the Third Degree (PL 110/220.16[1]). It was this case where he was found in possession of a submachine gun and a nine-millimeter pistol, as well as significant amounts of narcotics. Nevertheless, he tried to blame the possession of these weapons and narcotics on a woman, whom he alleges was staying in his home. He also claimed he admitted guilt before the Court because he was threatened by police.
Placing aside defendant's denial of guilt and implication of others for his own conduct in that case, what no one can deny is the extreme violence involved. Defendant was clearly a party to a violent drug-related shootout in a populated area.
"It is well established that in reaching a sentencing determination, the court may consider not only prior offenses for which defendant was convicted, but even offenses for which he had not been convicted." People v. Whitehead , 46 AD3d 715, 716 (2d Dept 2007), lv. denied, 10 NY3d 772 (2008). See also, People v. Marshall , 68 AD3d 1014, 1015 (2d Dept 2009), lv. denied, 14 NY3d 803 (2010).
Two additional drug crimes were committed by defendant after his release from prison in the 1998 felony conviction, but before the instant case.
Defendant failed to accept responsibility when afforded the opportunity for his convictions in both the instant case and his 1998 felony. Specifically, at sentencing in the underlying case when his predicate felony status for the 1998 felony conviction was being adjudicated, defendant professed his innocence in both cases (despite the fact the 1998 felony conviction was a result of his own guilty plea) and, more troubling, he claimed both cases were based upon "mistaken identity" (Sentence: 11).
Finally, defendant continued espousing his absurd claim that he is "not a party indicted in your indictment," that his name is copyrighted and stated, "What I'm saying is I'm not the defendant" (Sentence: 11-12).
DEFENDANT'S CRIMES IN THE INSTANT CASE
As described above, the evidence adduced at trial demonstrates that defendant was not guilty of some isolated, single narcotics sale to an undercover detective. In fact, defendant's drug activity was considerably substantial.
The undercover operation conducted was extraordinary by any measure with undercover detectives literally residing in the public housing complex to ferret out rampant narcotics activity.
The evidence showed defendant was a rather prolific drug seller. He was quite active and enthusiastic in selling narcotics to the undercover detectives, even knocking on the undercover detectives' apartment door unannounced on multiple occasions in a clear attempt to make further narcotics sales, not unlike the now somewhat anachronistic door-to-door salesman selling legitimate wares. Moreover, defendant's criminal conduct occurred not over mere days or even a few weeks, but rather over the course of several months and extended outside the housing complex as well.
The jury convicted defendant on four (4) counts of Criminal Sale of a Controlled Substance in the Third Degree (PL 220.39) and five (5) counts of Criminal Sale of Marihuana in the Fourth Degree (PL 221.40).
Defendant's lack of remorse and denial of guilt at sentencing are significant factors, as well as the fact that he attempted to make a farce of that proceeding by alleging copyright infringement for the Court having spake his name and other ludicrous allegations.
DEFENDANT'S OVERALL CONDUCT SINCE SENTENCING AND THE COURT'S CREDIBILITY DETERMINATION
Having had the opportunity to hear defendant's testimony and to observe his demeanor at the hearing on July 14, 2011, the Court finds his disavowal of "redemption theory" and his newfound acceptance of responsibility in this case as insincere, self-serving and designed merely to secure his release from prison.
A salient portion of the jailhouse telephone recording of defendant is when he states he and the Court had an "agreement" on the UCC matters. The record of the hearing is self-explanatory: no agreement or quid pro quo was made. (Defense counsel acknowledged, on-the-record at the October 5, 2011 hearing, this was not a quid pro quo, as well as the fact that there exists no legal impediment to the audio recording of the jailhouse telephone calls.) Instead, defendant was asked if he does or does not disavow his behavior in this regard. The difference between the two is plain and requires no further elaboration.
This determination is further confirmed by defendant's continued espousal of "redemption theory" tenets (made on-the-record) at the October 5, 2011 hearing and the other evidence previously cited.
Instead of finding success by adhering to the tenets taught in prison programs, defendant committed multiple and recent Tier II and Tier III disciplinary infractions.
He also increased his practice in "pseudo commercial law" and "redemption theory" by making innumerable filings in which, inter alia, he makes a mockery of the justice system and denies the jurisdiction of the very courts to which he now petitions for resentencing.
More concerning, however, is the fact that in lieu of the time defendant used to practice "redemption theory," he could have partaken in many constructive endeavors, not the least of which would have been to: (1) draft a business plan for the document business he allegedly wishes to open upon his release (as he indicated at the July 14, 2011 hearing); (2) donate more time to assist disabled inmates; or (3) use his free time and interpersonal skills to inspire other inmates toward true redemption and a productive life.
A November 22, 2006 disciplinary report (Defendant's Exhibit H) specifies defendant as " lying"; specifically, defendant was suppose to be a in a "general business class" but was elsewhere in violation of prison regulations.
Thus, it is not defendant's UCC practice alone that is significant, but rather a lack of credibility, the absence of a genuine attitude of reform and consistent examples of defendant placing his interests above those of society.
OTHER RELEVANT CIRCUMSTANCES
The case law is clear that a motion for resentencing under the DLRA may be denied based solely on a defendant's prison disciplinary record, and even then, on a substantially lesser amount of infractions than those which were committed by this defendant.
First, People v. Flores ,50 AD3d 1156, 1156-1157 (2d Dept 2008), lv. denied, 10 NY3d 934 (2008) practically mirrors defendant in the instant case since defendant in Flores: (1) was a second felony offender; (2) had a prior violent felony offense; (3) had made positive achievements in prison; and (4) incurred six disciplinary infractions during an approximate five-year period of incarceration.
Second, denial of resentencing based on a lack of remorse combined with a single Tier III infraction was affirmed by the Second Department. People v. Sanders , 36 AD3d 944, 947 (2d Dept 2007), lv. denied, 8 NY3d 927 (2007).
Here, defendant's violations are not only numerous and comprise the more serious tiers, they are also recent, two of which having been committed while the instant motion for DLRA resentencing was pending. This last fact further corroborates this Court's credibility determination surrounding defendant's testimony at the hearing.
Even if the Court were to discount the disciplinary infractions, the innumerable frivolous UCC filings and manifest disregard for the judicial system, defendant's lengthy and violent criminal history alone would warrant the denial of his motion.
In sum, these crimes include defendant's: (1) commission of a gunpoint robbery while on probation; (2) serious drug felony conviction involving a shootout, while he was found in possession of a submachine gun in plain view, and a nine-millimeter pistol; and (3) long-term, multiple narcotics and marihuana sales in this case.
One could reasonably argue that even absent a prior criminal history, defendant is unworthy of resentencing based on the sheer magnitude of the facts in this case alone.
Further, defendant's sentence was already reduced, as a matter of discretion, on appeal. Instead of embracing that reduction as a new and positive opportunity to reform himself, defendant chose to escalate his misbehavior while incarcerated as evinced by his recent and serious disciplinary infractions and ever increasing practice of "redemption theory."
Finally, the probation report in this case reads:
The defendant, who reports that he has not worked since 1995, indicates that his girlfriend supports him. However, in light of the defendant's numerous arrests for drug related offenses, it is clear that he has been supporting himself [through] illegal means. The defendant, who has had numerous contacts with the Criminal Justice System and has served jail terms of short and long duration, has not been deterred from continuing to engage in criminal activities. The defendant remains a threat to the community [emphasis added].
Based upon a review of all relevant circumstances, it is as unfortunate as it is clear that the aforesaid evaluative summary in the 2005 probation report remains unchanged, including the fact that defendant remains a threat to the community.
Accordingly, for all of the foregoing reasons, the Court finds that substantial justice dictates that defendant's application for resentencing should be DENIED in all respects.
This constitutes the decision, opinion and order of the Court.