Opinion
3621/99.
Decided July 28, 2006.
Defendant applies, pursuant to the "Rockefeller Drug Law Reform Act" (L 2004, ch. 738, Sec. 23), to be resentenced to a determinate sentence for the class A-1 narcotics felony on which he was convicted at trial, as well as to be resentenced on third degree drug possession, a B felony.
The defendant was convicted following a jury trial of jointly possessing with a co-defendant 8½ ounces of cocaine, $14,000, and a scale recovered from a vehicle in which he was the passenger. He also had a 9 mm pistol in his waistband. On November 9, 2000, defendant was sentenced by me as a predicate felon to indeterminate terms of 18 years to life on the CPCS 1st degree count and 12½ to 25 years on the CPCS 3rd degree count, and determinate terms of 10 and 7 years on the weapons counts, all to run concurrently. The judgment was affirmed and leave to appeal denied. People v. Kimble, 302 AD2d 207 (1st Dept. 2003), lv. den., 100 NY2d 563.
Defendant made a written application to be resentenced dated November 7, 2005 and qualifies for re-sentencing under Penal Law 70.71(3).
Defense counsel reports that since beginning his sentence defendant has worked as a porter, a maintenance laborer and a program aide in the prison library and is participating in a drug and alcohol rehabilitation program. He also assists visually and hearing impaired inmates and his Inmate Progress Reports rate him excellent and a "great worker." The Affidavit of Carol Zeldin, dated November 7, 2005, at paragraphs 19, 20 and 21, documented by the exhibits thereto details work and educational history since sentence. Defendant's prison disciplinary record consists of one Tier III infraction in 2001 and two minor Tier II infractions since then. Zeldin Aff. at para. 22. At the time of sentence defendant had two prior violent felony conviction as well as two youthful offender adjudications.
I will resentence defendant to a determinate sentence of 15 years and five years post release supervision on the CPCS 1st count. I will also modify the sentence on the CPCS 3rd count which is based on possession of the same drugs. Under the revised penal law the determinate sentence range for a predicate violent offender on a B felony drug offense is now 6 to 15 years. Clearly, the legislative intent was to provide relief not only to A-1 (and now A-11) drug offenders but to restructure the high sentences for B felony offenders as well. Here, of course, my original sentence of 12½ to 25 years was to run concurrently with the 18 year minimum on the A-1 convictions. Accordingly, my intent was that the lesser concurrent sentences would in no way prolong defendant's sentence beyond the minimum on the A1. Resentence on the B is not precluded by People v. Pauly, 21 AD3d 595 (3rd Dept. 2005) or People v. Butts, 815 N.Y.S.2d 839 (4th Dept. 2006). In Pauly, there was no A-1 sentence but rather a plea to a B felony accompanied by a waiver of right to appeal. Thus, resentence on the B felony was not required to give effect to the intent of the original sentence. Similarly, in Butts, there was no indication by the sentencing court that it intended that the sentence on the lesser crime should not exceed that for the greater crime.
Defendant is informed that, in the event of a resentence, this Court would impose a determinate term of imprisonment of 15 years on the count of Criminal Possession of a Controlled Substance in the First Degree, 7½ to 15 years on the Criminal Possession of a Controlled Substance in the Third Degree count, to run concurrently with each other and with the 10 and seven year sentences previously imposed on the two weapons possession convictions, to be followed by five years post release supervision.