| People v Kordish |
| 2016 NY Slip Op 04733 [140 AD3d 981] |
| June 15, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Kordish, Appellant. |
Lynn W. L. Fahey, New York, NY (De Nice Powell of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Merri Lasky, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Rotker, J.), rendered June 17, 1992, convicting him of criminal sale of a controlledsubstance in the third degree, after a nonjury trial, and sentencing him to anindeterminate term of imprisonment of 8 to 16 years.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the indeterminate term of imprisonment from 8 to 16 years to anindeterminate term of imprisonment of 5 to 10 years; as so modified, the judgment isaffirmed.
In 1992, the defendant, then 22 years old, was charged with criminal sale of acontrolled substance in the third degree after selling 21 grains of cocaine, weighing 12.68milligrams, to an undercover officer for $60 in a street transaction. At that time, thedefendant was on probation for a prior conviction of the same offense.
The defendant failed to appear in court on the scheduled trial date. As a result, hewas tried and convicted, in absentia, after a nonjury trial. In June 1992, the defendantwas sentenced, in absentia, as a second felony offender, to an indeterminate term ofimprisonment of 8 to 16 years.
In 2009, the defendant was arrested in Florida on unrelated charges, and wasincarcerated there until 2012. The defendant was returned to New York, and on May 21,2012, the defendant appeared before the Supreme Court, Queens County, and the courtexecuted the sentence imposed in 1992.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to disprove thedefendant's claim that he was acting as an agent of the undercover officer in the narcoticstransaction (see People v Herring, 83 NY2d 780, 783 [1994]; People vGreene, 303 AD2d 521 [2003]; People v Clifford, 288 AD2d 391 [2001];People v Leybovich, 201 AD2d 670, 670-671 [1994]). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004];People v [*2]Bleakley, 69 NY2d 490 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that he was denied his right to a public trial (seeUS Const 6th Amend; Civil Rights Law § 12; Judiciary Law§ 4; People v Martinez, 82 NY2d 436, 441 [1993]) when the trialcourt closed the courtroom during the testimony of two undercover officers (seePeople v Hinton, 31 NY2d 71 [1972]), is unpreserved for appellate review (CPL470.05 [2]) and, in any event, without merit (see People v Echevarria, 21 NY3d 1, 13-14 [2013]; People v Nazario, 4 NY3d70, 74 [2005]; People v Ramos, 90 NY2d 490, 498-499 [1997]; People vMartinez, 82 NY2d 436, 442 [1993]; People v Thomas, 52 AD3d 626 [2008]; People vJacobs, 251 AD2d 427 [1998]; People v Martinez, 248 AD2d 730 [1998];cf. People v Parrish, 224 AD2d 553 [1996]).
"An intermediate appellate court has broad, plenary power to modify a sentence thatis unduly harsh or severe under the circumstances, even though the sentence may bewithin the permissible statutory range" (People v Delgado, 80 NY2d 780, 783[1992]; see CPL 470.15 [6] [b]; People v Thompson, 60 NY2d 513, 519[1983]). Our sentencing review power "may be exercised, if the interest of justicewarrants, without deference to the sentencing court" (People v Delgado,80 NY2d at 783 [emphasis added]). In considering whether a sentence is unduly harsh orsevere under the circumstances, we exercise our discretion giving consideration to,"among other things, the crime charged, the particular circumstances of the individualbefore the court and the purpose of a penal sanction, i.e., societal protection,rehabilitation, and deterrence" (People v Farrar, 52 NY2d 302, 305 [1981];see People v Suitte, 90 AD2d 80, 83-84 [1982]).
Here, taking into account the circumstances of the defendant's nonviolent felonydrug conviction, which involved the sale of a relatively small amount of cocaine for thesum of $60, the defendant's prior nonviolent felony drug offense, the probationdepartment's finding that the then 22-year-old defendant had a $100 per day drugaddiction at the time, and that the People recommended a lower sentence than what wasimposed, we find that, even considering that the defendant absconded, the sentence of 8to 16 years imprisonment was unduly harsh and severe.
Accordingly, under these circumstances, we modify the judgment by reducing thesentence imposed to the extent indicated.
We note that our dissenting colleague points out that in one of the three casesreviewed by the Court of Appeals in People v Delgado (80 NY2d 780 [1992]),the Court of Appeals upheld a judgment sentencing the defendant to a term of 8 to 16years of imprisonment for criminal possession of a controlled substance in the thirddegree. However, in Delgado the Court of Appeals did not consider the questionof whether any particular sentence was unduly harsh or severe. Indeed, "[i]t is wellsettled that any question as to whether an otherwise lawful sentence is harsh or severe ina particular case involves a type of discretion not reviewable by the Court of Appeals"(People v Thompson, 60 NY2d 513, 521 [1983]). Rather, the Court of Appealsclarified that we, as an intermediate appellate court, have the authority to modifysentences in the interest of justice, without deference to the sentencing court (seePeople v Delgado, 80 NY2d at 783). As noted in People v Suitte, this powerallows the Appellate Division "to rectify sentencing disparities, reach extraordinarysituations, and effectively set sentencing policy through the development of sentencingcriteria" (People v Suitte, 90 AD2d at 86). Hall, Cohen and Barros, JJ.,concur.
Dillon, J.P., concurs in part and dissents in part, and votes to affirm the judgmentappealed from, with the following memorandum: I respectfully dissent from so much ofthe majority's determination as reduced the defendant's sentence as excessive, and vote toaffirm the judgment of conviction.
In my view, the sentence imposed by the Supreme Court was not harsh or excessive(see People v Farrar, 52 NY2d 302 [1981]; People v Suitte, 90 AD2d 80,85 [1982]), as it was in the middle of the permissible statutory range (see PenalLaw § 70.06 [3] [b]), and was a provident exercise of the Supreme Court'sdiscretion under the circumstances of this case. The defendant was a second felonyoffender, arrested while on probation for an identical prior conviction, from which hehad learned no lessons, and demonstrated disdain for the criminal justice system byabsconding from the jurisdiction prior to his trial and sentence. This appeal isprecipitated by the defendant having been arrested on a newer, unrelated charge inFlorida, which resulted in his return to New York custody after seventeen years as afugitive.
The Appellate Division and the Court of Appeals reviewed and upheld an identicalresult in a similar matter, People v Diaz (177 AD2d 406 [1991], affd subnom. People v Delgado, 80 NY2d 780 [1992]). In Delgado, the Courtof Appeals, and the Appellate Division before it, affirmed three separate judgmentswhere each defendant was sentenced, as here, as a second felony offender upon beingconvicted of criminal possession of a controlled substance in the third degree. In thesecond of the Delgado appeals, the defendant, Julio Diaz, was sentenced, as here,to an indeterminate term of imprisonment of 8 to 16 years (see People v Delgado,80 NY2d at 781). While every sentence represents a balancing of factors that are uniqueto each case, here, the defendant proffers little argument that persuasively militates infavor of our Court's leniency. Interestingly, in Delgado, the defendant, Diaz, didnot abscond from the jurisdiction, and he was nonetheless sentenced to the identicalindeterminate term of imprisonment as was the defendant in this matter.
Indeed, a defendant's decision to abscond from the jurisdiction before or during trialis an important and appropriate consideration to take into account at the time ofsentencing (see People v Herrera, 219 AD2d 511, 512 [1995]). Absconding fromthe jurisdiction evinces a lack of character, which was appropriately considered by thesentencing court at the time the discretionary sentence was imposed (see People vLatham, 35 AD2d 759, 760 [1970]). While arguments can be made that a sentence ofan indeterminate term of imprisonment of 8 to 16 years would be excessive under moretypical or milder circumstances, it is the act of the defendant's absconding, known to thecourt at the time of sentencing, that appropriately elevates the sentence to the levelimposed. The fact that the People had recommended an indeterminate term ofimprisonment of 6 to 12 years requires no different result, as a sentencing court mayimpose discretionary penalties that exceed the People's recommendation (see People vMcCann, 303 AD2d 780, 781 [2003]; see also People v McKenzie, 28 AD3d 942, 943 [2006];People v Moore, 270 AD2d 715, 716 [2000]; People v Anonymous, 130AD2d 497 [1987]).
Finally, since the defendant is potentially eligible for a sentence reduction under theDrug Law Reform Act of 2009 (see CPL 440.46), there is even less of a basis forthis Court to modify the sentence on appeal, as the defendant is vested with a proceduralmechanism for a review of his sentence that is more current, appropriate, and specific tothe circumstances.
For the foregoing reasons, I vote to affirm the defendant's judgment ofconviction.