| People v Cole |
| 2014 NY Slip Op 01182 [114 AD3d 869] |
| February 19, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Roger Cole, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. Ross, and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County(Marrus, J.), imposed January 20, 2012, pursuant to the Drug Law Reform Act of 2004(L 2004, ch 738), the resentence being five determinate terms of imprisonment of 20years to be followed by a five-year period of postrelease supervision on each of thoseterms, upon his convictions, after a jury trial, of criminal sale of a controlled substance inthe first degree (five counts), with those terms of imprisonment to run consecutively toeach other and concurrently with an indeterminate term of imprisonment of1
Ordered that the resentence is modified, as a matter of discretion in the interest ofjustice, by reducing the resentence imposed from five determinate terms of imprisonmentof 20 years followed by a five-year period of postrelease supervision on each of thoseterms to five determinate terms of imprisonment of 15 years followed by a five-yearperiod of postrelease supervision on each of those terms.
In 1992, the defendant was convicted, after a jury trial, of five counts of criminal saleof a controlled substance in the first degree (see Penal Law § 220.21), andone count of criminal sale of a firearm in the second degree (see Penal Law§ 265.11). The defendant was sentenced to five indeterminate terms ofimprisonment of 25 years to life for the convictions of criminal sale of a controlledsubstance in the first degree and one indeterminate term of imprisonment of1
In 2011, the defendant moved to be resentenced pursuant to the Drug Law ReformAct of 2004 (L 2004, ch 738, § 23; hereinafter the DLRA). The Supreme Courtgranted the [*2]defendant's motion to the extent ofresentencing him, for the five convictions of criminal sale of a controlled substance in thefirst degree, to five determinate terms of imprisonment of 20 years, to run consecutivelyto each other and concurrently with the sentence originally imposed on the conviction ofcriminal sale of a firearm in the second degree, for a total aggregate determinate term ofimprisonment of 100 years. The defendant appeals, contending that the resentence isexcessive and that the Supreme Court should have resentenced him, for the convictionsof criminal sale of a controlled substance in the first degree, to five determinate terms ofimprisonment of 15 years. The defendant also contends, in his pro se supplemental brief,that the Supreme Court should have directed that the resentences should run concurrentlywith each other.
The general purpose of the DLRA was to provide ameliorative relief by reducing thesentences of eligible individuals who were sentenced under the relatively highermandatory minimum terms of imprisonment dictated by the indeterminate sentencingscheme of the Rockefeller Drug Laws (see People v Yusuf, 19 NY3d 314, 320 [2012]; People v Sosa, 18 NY3d436, 438 [2012]; People vUtsey, 7 NY3d 398, 401 [2006]; People v Lashley, 83 AD3d 868, 869 [2011]). Accordingly,when the Legislature enacted the DLRA in 2004, it "eliminated the mandatory minimum15-year to life sentences for class A-I drug offenders (see Penal Law former§ 70.00 [2] [a]; [3] [a] [i]), . . . and replaced the indeterminatesentencing structure with determinate sentences" (People v Duke, 40 AD3d 872, 873 [2007]; seePenal Law §§ 70.00 [1]; 70.71; People v Utsey, 7 NY3d at401). The DLRA also contained a provision which allowed individuals convicted of aclass A-I felony committed before the effective date of the new law to move forresentencing in accordance with the new determinate sentencing scheme (see L2004, ch 738, § 23 [eff Dec. 27, 2004]).
Here, the defendant sought to be resentenced for the convictions of criminal sale of acontrolled substance in the first degree, for which he had originally received consecutivesentences amounting to a total aggregate term of imprisonment of 125 years to life.Although the Supreme Court correctly observed that it was powerless, under the DLRA,to alter the defendant's sentence so that the five terms of imprisonment imposed for theconvictions of criminal sale of a controlled substance in the first degree run concurrentlywith each other (see People vNorris, 20 NY3d 1068, 1072 [2013]; People v Acevedo, 14 NY3d 828, 830-831 [2010]; People v Rodriguez, 96 AD3d1079, 1080 [2012], affd 20 NY3d 1073 [2013]; People v Vaughan, 62 AD3d122 [2009]), it was nevertheless permitted to "consider any facts or circumstancesrelevant to the imposition of a new sentence" (L 2004, ch 738, § 23; see People v Karim, 85 AD3d943, 943-944 [2011]). Accordingly, under the circumstances, in evaluating theappropriate terms of imprisonment to impose upon resentencing, the Supreme Courtshould have considered the fact that the sentences that were originally imposed for theconvictions of criminal sale of a controlled substance in the first degree were directed torun consecutively to each other (accord People v Nelson, 112 AD3d 744 [2013]; People v Jaquez, 34 AD3d598 [2006]). Here, since the resentences imposed by the Supreme Court wererequired to run consecutively with each other, the total aggregate term of imprisonmentfor the convictions of criminal sale of a controlled substance in the first degree stillamounted to 100 years in prison.
"An intermediate appellate court has broad, plenary power to modify a sentence thatis unduly harsh or severe under the circumstances" (People v Delgado, 80 NY2d780, 783 [1992], citing CPL 470.15 [6] [b]; People v Thompson, 60 NY2d 513,519 [1983]). This authority to substitute its discretion for that of the sentencing court isnecessary "to rectify sentencing disparities [and] reach extraordinary situations"(People v Suitte, 90 AD2d 80, 86 [1982]).
Under the circumstances of this case, including the fact that the courts areconstrained from giving effect to the ameliorative purpose of the DLRA by directingresentences to run concurrently with each other when they were originally directed to runconsecutively (see People v Norris, 20 NY3d at 1072; People v Acevedo,14 NY3d at 830-831; People vVaughan, 62 AD3d 122 [2009]), we conclude that the resentence imposed wasexcessive to the extent indicated (see generally People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Austin, Sgroi and Miller, JJ., concur.