Opinion
6395/99.
Decided January 19, 2010.
Defendant Les Matthews participated in the sale of crack cocaine to an undercover police officer. On February 28, 2000, he was found guilty, after a jury trial, of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39). On March 13, 2000, defendant was sentenced, as a second felony offender, to an indeterminate term of from seven (7) to 14 years incarceration. The Appellate Division, First Department, reduced defendant's sentence in the interest of justice to an indeterminate term of from six (6) to 12 years imprisonment. On July 27, 2006, defendant moved to vacate his sentence pursuant to CPL 440.20, a motion that this Court denied on November 30, 2006. Defendant now moves to be resentenced pursuant to Section 9 of Chapter 56 of the Laws of New York for 2009, which went into effect on October 7, 2009 and has been codified CPL 440.46 ("DRLA3"). The People oppose defendant's application, noting that he violated his parole in 2006 and is currently incarcerated pursuant to his 2000 conviction.
The facts underlying his conviction are as follows:
On August 13, 1999, at approximately 2:55 p.m., in the vicinity of 314 West 39th Street, New York County, defendant approached an undercover police officer ("UC") and asked the UC what he needed. The UC replied that he needed dimes, or $10 dollar bags of crack. Defendant asked the UC and the UC said two. Defendant then instructed the UC to follow him over to defendant's co-defendant, Bernard Mitchell. Defendant informed Mitchell that the UC needed two. Mitchell then instructed defendant to take the $20 of prerecorded buy money from the UC and make change in a nearby store, which defendant did. Defendant returned with change and handed it to Mitchell, who in turn, handed defendant two bags of crack cocaine. Defendant then handed the two bags of cocaine to the UC. Shortly before the UC departed the area, defendant stated that his name was "Les" and that the UC should look for him next time.
Approximately 10 minutes after the sale was consummated, both defendant and Mitchell were arrested by the UC's field team after the UC confirmed their identities as participants in the drug transaction. Both bags defendant handed to the UC field tested positive for cocaine. Additionally, a member of the field team entered the deli and recovered the pre-recorded buy money.
With respect to defendant's criminal history which spans over the last 30 years, he has three prior felonies in addition to the instant offense. In 1991, defendant was convicted of Attempted Criminal Sale of a Controlled Substance in the Third Degree and sentenced to an indeterminate term of from three(3) to six(6) years incarceration. In 1989, defendant was convicted of Attempted Criminal Sale of a Controlled Substance in the Fourth Degree and sentenced to an indeterminate term of from two(2) to four(4) years incarceration. In 1987, defendant was convicted of Attempted Burglary in the Third Degree and sentenced to one year incarceration.
In addition to having three prior felony convictions besides the instant one, defendant has fifteen misdemeanor convictions. He also violated the terms of his parole, absconded and violated the terms of his conditional release, resulting in his being returned to custody on at least three occasions. Defendant's latest parole revocation is with respect to the instant case.
With respect to defendant's institutional record, he has a total of 65 infractions during various periods of incarceration dating back to 1990. With respect to the instant sentence, defendant has received four Tier III infractions and 10 Tier II infractions during his incarceration for the instant offense. Specifically, with respect to the Tier III infractions, which are the most serious, on March 25, 2007, defendant possessed a weapon/dangerous instrument, namely a 1 1/4 inch by 1 1/4 inch piece of sharpened glass that was found in his sneaker during a random search and 3 months in disciplinary confinement; on April 29, 2007, he refused double celling and received 45 days in disciplinary confinement; on February 9, 2001, defendant twice disobeyed direct orders of DOCS personnel, twice made threats, twice physically/verbally harassed DOCS personnel and created a disturbance within the facility and received 120 days in disciplinary confinement; and on a February 8, 2001, defendant created a disturbance in the facility and physically/verbally harassed DOCS personnel.
Among defendant's Tier II infractions is an April 3, 2007 one, wherein defendant engaged in violent behavior, engaged in fighting and disobeyed a direct order. During this incident defendant repeatedly struck another inmate with his closed fists.
The Court notes that defendant completed the ASAT (Alcohol and Substance Abuse Treatment) program in 2005 and is again attending it in 2009. Defendant has also completed Phase III of the Transitional Services program in 2008 and the Aggression replacement Training Program in 2005.
The Court notes that if defendant's behavior in Court on the date of his hearing on the instant application for resentencing is any indication, defendant has not learned to fully identify or control his aggressive behavior.
The Drug Law Reform Act of 2009 ("2009 DRLA"), inter alia, allows certain convicted Class B felony drug offenders serving indeterminate sentences imposed prior to January 13, 2005 to be resentenced to new determinate terms under the new determinate sentencing parameters of the 2009 DLRA. The statute first requires a court to determine whether a defendant is eligible for resentencing.
It appears to this Court that defendant is not eligible for resentencing under the 2009 DRLA. As several other courts have recently recognized, the act "was not intended to apply to those offenders who have served their term of imprisonment, have been released from prison to parole supervision, and whose parole is then violated, with a resulting period of incarceration" (see People v. Rodriguez, AD3d, 2009 NY App. Div. LEXIS 9511 [1st Dept. December 29, 2009], quoting People v. Bagby , 11 Misc 3d 882 , 887 [Sup. Ct. NY Co. 2009]; see also People v. Mills , 11 NY3d 527 , 537; People v. Nieves, Misc 3d, NYLJ 28 [col.3][Sup. Ct. Westchester Co. December 22, 2009]). "If defendant had not violated his parole conditions, he would not have been in the custody of the Department of Correctional Services when he moved to be resentenced, and he would therefore have been ineligible for resentencing" ( People v. Rodriguez, 2009 NY App. Div. LEXIS 9511; see People v. Mills, 11 NY3d, at 537). "Surely the Legislature did not intend fresh crimes to trigger resentencing opportunities" ( People v. Mills, 11 NY3d, at 537). Thus, as defendant was previously released from DOCS custody to parole supervision and subsequently violated the conditions of parole release on this case, and is currently incarcerated on an alleged violation of the conditions of his parole release from the underlying conviction, the defendant cannot be considered eligible for resentencing under the 2009 DRLA as the scope of the ameliorative provisions of the statute do not extend to those defendants who have already been released to parole supervision on one or more occasions irrespective of the fact that they may have been returned to DOCS custody upon a founded violation of the conditions of their parole release (see People v. Nieves, NYLJ 28 [col.3]).
The Court notes that defendant has never been convicted of any violent felony or felony which would make him ineligible for merit time and the Court is not finding him ineligible on this ground.
Even assuming arguendo that defendant is eligible, the Court finds that "substantial justice" dictates that resentencing be denied. CPL 440.46 provides that defendants shall be resentenced pursuant to Penal Law §§ 60.04 70.70 unless "substantial justice dictates" that resentencing be denied (see CPL 440.46), referencing § 23 of chapter 738 of the laws of 2004 (the "Drug Law Reform Act of 2004"). In making a determination concerning resentencing, the Court may consider "any facts or circumstances" relevant to the imposition of a new sentence which are submitted by the defendant or the People and in addition shall consider a defendant's institutional confinement record. Such a review shall include a petitioner's disciplinary history and participation or willingness to participate in correctional treatment or programming (see Id.).
The DLRA's standard for determining whether an eligible offender should be resentenced-that such re-sentencing should be imposed unless "substantial justice dictates" otherwise-is the same standard which was used in the first Drug Law Reform Act of 2004, which, inter alia, authorized re-sentencing for eligible Class A-1 felony drug offenders. The 2004 standard is incorporated by reference in the 2009 DLRA. The legislative history and case law interpreting the 2004 law are thus obviously relevant in interpreting the 2009 statute.
"Substantial justice" is a synonym for notions of fairness, reasonableness, and due process ( People v. Jones, 2009 NY Misc. LEXIS 3324 [Sup. Ct. N.Y.Co. 2009]). Put another way, in order for a court to completely deny re-sentencing, the facts and circumstances of an offender's instant crime, criminal history, institutional record and other relevant facts must point so strongly against resentencing, when considering notions of fairness, reasonableness and due process, as to authoritatively command that an application be completely denied. Whether that standard is reached in any particular case requires a discretionary determination. However, case law makes clear that based on an assessment of a defendant's prior criminal history, prison record and role in the offense, substantial justice may dictate denial of the motion to resentence ( People v. Sanders , 36 AD3d 944; People v. Vega , 40 AD3d 1020 ; People v. Gonzalez , 29 AD3d 400 lv den. 7 NY3d 867).
The Court must also be mindful of the ameliorative purposes of the 2009 DRLA's re-sentencing provisions. Those provisions were obviously intended to bring the sentences of appropriate eligible offenders sentenced prior to 2005 in line with the lower sentencing parameters in existence for the same crimes today. This goal is also obviously consistent with the aims the legislature had when it authorized re-sentencing applications under the 2004 DLRA and a 2005 statute which authorized re-sentencing for Class A-II felony drug offenders (see People v. Cintron, 10 Misc 3d 1066(A) [Sup. Ct. Bx. Co. 2005]; People v. Greene, 8 Misc 3d 1029(A) (Sup. Ct. Queens Co. 2005]; Chapter 643 of the laws of 2005 [authorizing re-sentencing for certain Class A-II felony offenders]).
The People make a number of arguments here for why "substantial justice dictates" the complete denial of defendant's motion. They note that the defendant's extensive criminal history, which spans three decades and includes several felonies, several parole violations and absconding from custody are indicative of his inability to maintain a lawful and productive lifestyle. They point out that defendant has 2 Tier III violations and 1 Tier II violations since 2007 and a total of 65 infractions compiled through various periods of incarceration since 1990. Although defendant has completed an ASAT program, his infractions for which he has been disciplined, include secreting a sharpened piece of glass in his shoe and assaulting another inmate with his fists. The Court notes that defendant was also terminated as a maintenance worker for disciplinary reasons, he was removed from a pre-GED class for disciplinary reasons and also requested removal from a cell study program prior to its completion. The People note that defendant has spent a significant portion of his incarceration in either disciplinary confinement or was unemployed, thus evidencing his "distinct inability to maintain a lawful and productive lifestyle." His demonstrated inability to consistently conform to Department of Correctional Services rules clearly argues against re-sentencing.
All of the People's arguments, in the Court's view, are relevant considerations here. By directing courts to consider a defendant's institutional history and programmatic achievements, the legislature apparently recognized that taking steps like completing a drug treatment program or earning a GED may do far more to reduce the likelihood of recidivism among low level non-violent drug offenders and thus far more to enhance public safety than long prison terms. However, any disciplinary infraction while incarcerated, in the Court's view, is potentially serious and must be considered in determining a resentencing motion. Here, despite the defendant's minimal positive achievements while incarcerated, he also has an extremely poor prison disciplinary record (see People v. Rivers , 43 AD3d 1247 , 1248; People v. Vega , 40 AD3d 1020 , 1020-1021). Here, during approximately 7 years of incarceration, defendant received four Tier III and 10 Tier III infractions. Additionally, defendant is a second felony offender with a prior criminal history dating back to 1986, including three prior felony conviction (see People v. Alvarado , 48 AD3d 329 ; People v. Sanders , 36 AD3d 944, 946-947), and it becomes clear that "substantial justice" dictates that the motion be denied.
Additionally, the Court notes defendant's outburst at his resentencing hearing, where he indicated as he was leaving the courtroom, saying that he "spits" on the Court. Defendant's utter contempt for this Court is further evidence that defendant should not be resentenced.
Accordingly, the application to be resentenced pursuant to CPL 440.46 is denied in its entirety.
This constitutes the Decision and Order of this Court.