Opinion
May 2, 1985
Appeal from the Supreme Court, New York County (Martin B. Stecher, J.).
On April 22, 1983, the defendant was convicted, following a jury trial, of two counts of criminal sale of a controlled substance in the first degree arising out of two separate, slightly less than two-ounce, sales of cocaine to an undercover officer. After two earlier trials held in connection with this matter had resulted in mistrials, the People had offered the defendant a sentence of 1 year to life imprisonment, with an agreed-upon resentencing of 1 to 3 years, in exchange for his plea of guilty to the class A-III felony of criminal sale of a controlled substance in the third degree. The defendant refused the plea bargain, and the third trial ensued. At the sentencing on July 5, 1983, the prosecution requested that the court impose a sentence within the range of from 15 years to life up to 25 years to life, as authorized by Penal Law § 70.00 (3) (a) (i) for the class A-I felonies of which the defendant had been convicted. The defendant maintained that in view of his minor criminal record, the nature of the offense and the great disparity between the plea offer and the mandatory sentence, the statutory sentence would be unconstitutional as applied to him. The trial court agreed with this contention and sentenced the defendant to concurrent prison terms of from 3 years to life. The instant appeal was brought by the People to challenge the legality of the sentence.
The crimes at issue herein were committed prior to September 1, 1979, the effective date of the amendment which increased from 1 to 2 ounces the amount of drugs necessary for the class A-I felony of criminal sale of a controlled substance in the first degree. The court recognized that the defendant was subject to the old sentencing scheme and also acknowledged that its sentencing decision was not supportable by retroactive application of the narcotics laws revisions redefining class A-I felonies. ( People v. Festo, 96 A.D.2d 765, affd 60 N.Y.2d 809.) Instead, the court concluded that the present situation constituted one of those "rare cases" referred to by the Court of Appeals in People v. Broadie ( 37 N.Y.2d 100, cert denied 423 U.S. 950), in which the narcotics sentencing statutes, while otherwise constitutionally valid, might be found to have been unconstitutionally applied. However, since the Broadie opinion was issued, it has become evident that in order to avoid inclusion within the old sentencing provisions for offenses committed before September 1, 1979, the circumstances must be extremely compelling. ( Hutto v. Davis, 454 U.S. 370; Rummel v Estelle, 445 U.S. 263; People v. Donovan, 59 N.Y.2d 834.)
Certainly, the prior sentencing scheme has never been held unconstitutionally severe in a situation, as in the matter before us, where the defendant appears to have been the principal actor in an ongoing cocaine business. Indeed, the defendant's drug dealing was at least as substantial as that of the individuals in other cases in which courts have rejected the "rare case" exception. ( See, People v. Donovan, 89 A.D.2d 968, affd 59 N.Y.2d 834, supra; People v. Garcia, 99 A.D.2d 738; People v. Mansell, 79 A.D.2d 582.) Both sales herein took place in the defendant's apartment following extensive negotiations between himself and a police undercover agent. The first transaction involved a payment of $3,200 for what subsequently was determined to be 1 7/8 ounces plus 53 grains of cocaine, and on the second occasion the defendant received $3,000 for 1 7/8 ounces plus 54 grains of cocaine. This is scarcely the sort of peripheral association with narcotics activity which occurred in People v. Robinson ( 68 A.D.2d 413), wherein the defendant, who was the mother of two small children and had no prior criminal record, was merely used by the man with whom she resided as a messenger to convey narcotics to him. Moreover, there is no constitutional violation when a person refuses to plead guilty and then receives a significantly higher sentence upon conviction after trial. ( People v. Jones, 39 N.Y.2d 694; see also, Bordenkircher v. Hayes, 434 U.S. 357.) Since defendant's sentence was contrary to the permissible range specified in the Penal Law, resentence is mandated.
Concur — Murphy, P.J., Ross, Lynch and Milonas, JJ.