| People v Molina |
| 2010 NY Slip Op 04071 [73 AD3d 1292] |
| May 13, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Juan J.Molina, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Hannah Stith Long of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered March 25, 2009, upon a verdict convicting defendant of the crimes of criminalpossession of a controlled substance in the first degree, criminal sale of a controlled substance inthe first degree, conspiracy in the second degree and criminal possession of a controlledsubstance in the third degree.
On April 11, 2008, defendant obtained over four kilograms of cocaine in New York City,transported it to Albany County with the aid of a codefendant and sold it to a third codefendant,a local drug dealer who planned to resell the cocaine in the Albany area. Through a wiretap onthe Albany dealer's mobile phone, the police became aware of the sale and promptly arrested allthree defendants. For his role, defendant was charged by indictment with conspiracy in thesecond degree (count one), criminal possession of a controlled substance in the first degree(count two), criminal possession of a controlled substance in the third degree (count three) andcriminal sale of a controlled substance in the first degree (count four). Following a jury trial,defendant was convicted of all four counts. County Court then imposed concurrent prisonsentences on counts one, two and three, the longest of which is a prison term of 19 years withfive years of postrelease supervision on count two. The court also imposed a consecutivesentence of 20 years with five years of postrelease supervision on count four. As a result, hissentences aggregated 39 years in prison.[*2]
On appeal, defendant asserts, and the People concede,that the sentences imposed on counts two, three and four must run concurrently because thosecharges arose out of a single possession and sale of cocaine on April 11, 2008 (see PenalLaw § 70.25 [2]; People v Smith, 209 AD2d 996, 996 [1994], lv denied 85NY2d 914 [1995]; People v Saa, 199 AD2d 346, 346-347 [1993]; see generallyPeople v Eddie, 87 NY2d 640, 643-644 [1996]). We will modify defendant's sentence oncount four accordingly (see People v LaSalle, 95 NY2d 827, 829 [2000]; People v Rollins, 51 AD3d 1279,1282 [2008], lv denied 11 NY3d 922 [2009]).
We are not persuaded, however, that defendant's lawful sentences were either excessive orimposed as punishment for exercising his right to go to trial. We note that the volume and degreeof sophistication of drug trafficking as well as a defendant's role in facilitating drug offenses allhave a bearing on what sentence is appropriate and proportionate to the crimes committed(see People v Thompson, 83 NY2d 477, 482-484 [1994]). Inasmuch as the record hereshows that defendant was a major narcotics trafficker whose activities enabled others to engagein substantial drug sales, County Court could consider that evidence as well as defendant'sfailure to accept responsibility for his actions. Although the aggregate 20-year sentence asmodified is more severe than the 12-year term offered to defendant in the proposed pleaagreement, " '[t]he mere fact that a sentence imposed after trial is greater than that offered inconnection with plea negotiations is not proof that defendant was punished for asserting his rightto trial' " (People v Chilson, 285 AD2d 733, 735 [2001], lvs denied 97 NY2d 640[2001], 97 NY2d 752 [2002], quoting People v Simon, 180 AD2d 866, 867 [1992], lvdenied 80 NY2d 838 [1992]; see People v Saunders, 309 AD2d 1063, 1065 [2003]).The record here provides no support for defendant's claim that the individual sentences imposedwere in retaliation rather than warranted by the seriousness of his crimes (see People vMorgan, 253 AD2d 946 [1998], lv denied 92 NY2d 950 [1998]; People vSimon, 180 AD2d at 867; compare People v Morton, 288 AD2d 557, 559 [2001],lv denied 97 NY2d 758 [2002], cert denied 537 US 860 [2002]). Nor do we findany other abuse of discretion or extraordinary circumstances that would warrant modification ofdefendant's sentences (see People vBurroughs, 64 AD3d 894, 898-899 [2009], lv denied 13 NY3d 794 [2009]; People v Richardson, 28 AD3d1002, 1005 [2006], lv denied 7 NY3d 817 [2006]).
Mercure, J.P., Peters, Stein and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, by directing that the sentence imposed on count four of the indictmentcharging criminal sale of a controlled substance in the first degree shall run concurrently with thesentences imposed on the other charges, and, as so modified, affirmed.