Opinion
3633-2002
11-17-2011
The People of the State of New York, Plaintiff, v. Omar Rivera, Defendant.
For the People:Robert T. Johnson Bronx County District Attorney by: Nikki Harding, Esq. Assistant District Attorney For Defendant: Steven Banks, Esq. David Crow, Esq.
For the People:Robert T. Johnson Bronx County District Attorney by: Nikki Harding, Esq. Assistant District Attorney
For Defendant: Steven Banks, Esq. David Crow, Esq.
Dominic R. Massaro, J.
The Court previously found Defendant Omar Rivers was eligible to apply for resentencing under the Drug Law Reform Act of 2009 (DLRA) (see, People v. Rivera, 32 Misc 3d 1225A [Sup. Ct. Bronx 2011]) (see also generally, People v. Overton, 86 AD3d 4[2nd Dept. 2011]). However, meeting the criteria for applying for resentencing does not, by itself, entitle Defendant to resentencing. In this regard, discretion in resentencing hinges upon determination of whether substantial justice dictates that Defendant's application should be granted or denied under CPL §440.46(3) (see generally, People v. Avila, 27 Misc 3d 974 [Sup. Ct. Kings 2010], aff'd, 923 NYS2d 674 [2nd Dept. 2011]).Defendant was incarcerated in 2004 after a guilty plea to Criminal Possession of a Controlled Substance in the Third Degree (Penal Law §220.16[1]). The Court sentenced Defendant to an indeterminate term of four and one half to nine years incarceration. He is now at Southport Correctional Facility, Chemung County, pursuant to that judgment and a subsequent, consecutive, indeterminate incarceration term of two to four years for Possession of Prison Contraband in the First Degree (see, Penal Law 205.25[2]).The Court conducted a hearing on September 12, 2011, for the purpose of permitting the parties to submit additional evidence for the Court's consideration in deciding whether to exercise its discretion to resentence. Neither party submitted new evidence. Thus, the Court must base its decision upon the parties' original submissions. While the opportunity to supplement the record is all that is statutorily required for the Court to decide the substantial justice issue, the Court is otherwise disappointed that the parties failed to produce any additional evidence for consideration (see generally, People v. Soler, 45 AD3d 499 [1st Dept. 2007]). Notwithstanding, the Court must decide this motion upon the parties' arguments as set forth in the original moving papers and summarized as follows:
Movant's Position
Rivera justifies resentencing upon his allegedly severe addiction problems. While claiming he was addicted to heroin at birth because his AIDS stricken mother was an addict, addiction became more severe while in prison in the Commonwealth of Puerto Rico's correctional facilities because other inmates forced him to use heroin. Defendant claims that resentencing to a determinate sentence now, with an appropriate period of post release supervision and potential employment, will provide structure for him and permit an orderly transition to society. Further, he says the current sentence is both harsh and counterproductive, being characterized by long periods of solitary confinement, to be followed by an expected unsupervised release at termination of his sentence. Therefore, Defendant argues, it is in society's interest for him to be resentenced. Prosecutor's Response
The prosecutor argues that "substantial justice" directs that Defendant not be re-sentenced under the DLRA. In essence, Defendant's conduct does not justify resentencing especially in light of his involvement in nineteen disciplinary infractions during his current incarceration. Equally significant, he was, while imprisoned, convicted for Promoting Prison Contraband in the First Degree (see, Penal Law §205.25[2]) and sentenced to a consecutive term of two years to four years. Rivera's criminal convictions and his substantial disciplinary history, including felony conviction for possessing prison contraband, requires denial upon "substantial justice" grounds. The prosecutor disregards Rivera's participation in alcohol and substance abuse programs, especially in light of his numerous drug related infractions in prison. Clearly, the District Attorney argues, such a defendant is not an intended beneficiary of DLRA's resentencing relief.
Legal Discussion
Our Courts consider the following factors in determining resentence application vis-a-vis the rendering of "substantial justice": (1) institutional disciplinary confinement records, (2) defendant's prior criminal history, (3) the quantity of drugs underlying the current offense, (4) whether the current offense was committed while defendant was on parole or probation, (5) whether defendant has shown remorse, and (6) whether defendant has a history of parole violations (see, People v. Overton, supra. ; People v. Miller, 2011 NY Slip Op 7658 [2nd Dept. 2011]).
Most disturbing here is the volume and severity of the institutional disciplinary infractions committed by Defendant (see generally, People v. Karim, 85 AD3d 943 [2nd Dept. 2011]). Defendant was involved in nineteen disciplinary infractions during his current incarceration. Equally significant, he was convicted for Promoting Prison Contraband in the First Degree (see, Penal §205.25[2]) and sentenced to a consecutive term of two years to four years (see generally, People v. Hickman, 85 AD3d 1057 [2nd Dept. 2011]).
Under the circumstances, it would be improvident for the Court to conclude that "substantial justice" does not require denial of Defendant's resentencing pursuant to CPL §440.46 (see generally, People v. Miller, 2011 NY Slip Op 7658 [2nd Dept. 2011]). Likewise, Defendant fails to convince that he meets resentencing standards upon any other ground. The Court cannot overlook Defendant's prison disciplinary record and subsequent conviction upon grounds that he is ill or that the sentence imposed is unduly punitive, costly, and counterproductive. Defendant's conduct is too sever to justify a finding that "substantial justice" justifies resentencing. Additionally, the Court is not convinced that Defendant has shown adequate, if any, remorse.While it is true that a defendant, who is eligible for resentencing, enjoys "a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof'" (see generally. People v. Beasley, 47 AD3d 639 [2nd Dept. 2008]), that presumption has evaporated here. Upon review of the record, and taking into account that neither party submitted evidence at the hearing, the Court finds that "substantial justice" does not support resentencing (see generally, People v. Anderson, 85 AD3d 1043 [2nd Dept. 2011])
Defendant's evidence concerning his alleged addiction and related medical problems created by his imprisonment appears at footnote 2 of the Court's August 2, 2011 decision.
Based upon the foregoing, it is
ORDERED that the branch of Defendant Omar Rivera's motion. requesting that the Court resentence Defendant pursuant to CPL §440.46, is DENIED.
The foregoing constitutes the Decision and Order of this Court.
The Court considered the following papers in deciding this motion: (1) Notice of Motion for DLRA Resentencing; Affirmation in Support of Resentencing; exhibits; (2) Supplemental Affirmation in Support of Resentencing with exhibits; (3) People's response to Petitioner's Motion for Resentencing; (4) Reply Affirmation in Support of Resentencing and (5) hearing transcript.
--------
Dated: Bronx, New York
November 17, 2011
___________________________
Dominic R. Massaro, JSC