| People v Garcia |
| 2019 NY Slip Op 01791 [170 AD3d 883] |
| March 13, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Garcia, Appellant. |
Thomas R. Villecco, Jericho, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (William C. Ghee of counsel), forrespondent.
Appeals by the defendant from (1) an order of the County Court, Orange County (Robert H.Freehill, J.), dated June 20, 2017, which, upon remittitur from this Court, specified and informedhim that, in the event of a resentence pursuant to the Drug Law Reform Act of 2004 (L 2004, ch738), the court would impose a determinate term of imprisonment of 17
Ordered that the first order is modified, as a matter of discretion in the interest of justice, byreducing the proposed resentence on the defendant's conviction of criminal sale of a controlledsubstance in the first degree under indictment No. 04-536 from a determinate term ofimprisonment of 17
Ordered that the second order is modified, as a matter of discretion in the interest of justice,by reducing the proposed resentence on the defendant's conviction of criminal sale of a controlledsubstance in the first degree under indictment No. 04-594 from a determinate term ofimprisonment of 17
Under Orange County indictment No. 04-536, the defendant was convicted, after a jury trial,of criminal possession of a controlled substance in the first degree (a class A-I felony) andsentenced to an indeterminate term of imprisonment of 17
In March 2010, the defendant moved for resentencing pursuant to the Drug Law Reform Actof 2004 (L 2004, ch 738), the Drug Law Reform Act of 2005 (L 2005, ch 643), and the Drug LawReform Act of 2009 (CPL 440.46) (hereinafter collectively DLRA). The County Courtresentenced the defendant, and the defendant appealed from the resentences. This Court reversedthe resentences and remitted the matters to the County Court, Orange County, for the entry ofproper initial DLRA orders (see Peoplev Garcia, 107 AD3d 738 [2013]). Thereafter, in September 2013, the County Courtissued an order specifying and informing the defendant that "it is the Court's sentencing positionthat the defendant, upon resentence, should receive a determinate term of 17
Upon remittitur, it is undisputed that the County Court entered proper initial DLRA orders.In the order appealed from under indictment No. 04-536, the court proposed a resentence of adeterminate term of imprisonment of 17
On these appeals, the defendant contends that the total aggregate proposed determinate termof imprisonment of 35 years is unduly harsh and severe given, among other things, his goodinstitutional record of confinement and accomplishments while he has been incarcerated. Insupport of his motion for resentencing, the defendant submitted documents, certificates, andletters showing that he completed vocational educational programs to become a residentialelectrician and to learn computer repair, that he earned a GED, that he successfully completeddrug and violence rehabilitation programs, that he had worked for over eight years as a janitor,and that he was well-regarded by his teachers, work supervisors, and correctional personnel.
"The general purpose of the DLRA was to provide ameliorative relief by reducing thesentences of eligible individuals who were sentenced under the relatively higher mandatoryminimum terms of imprisonment dictated by the indeterminate sentencing scheme of theRockefeller Drug Laws" (People vCole, 114 AD3d 869, 870-871 [2014]; see People v Yusuf, 19 NY3d 314, 320 [2012]; People v Sosa, 18 NY3d 436, 438[2012]; People v Utsey, 7 NY3d398, 401 [2006]). In evaluating the appropriate terms of imprisonment to impose uponresentencing, the court may "consider any facts or circumstances relevant to the imposition of anew sentence" (L 2004, ch 738, § 23; see People v Cole, 114 AD3d at 871;People v Karim, 85 AD3d 943,944 [2011]). Among these factors, the court may consider that sentences imposed for more thanone conviction were directed to run consecutively to each other, and that a court is powerless,under the DLRA, to alter those sentences so as to run them concurrently with each other (seePeople v Cole, 114 AD3d at 871; see also People v Norris, 20 NY3d 1068, 1072 [2013]; People v Acevedo, 14 NY3d 828,830-831 [2010]). Additionally, the court should consider the institutional record of confinementof a person seeking to be resentenced under the DLRA (see People v Flores, 50 AD3d 1156 [2008]; see also L 2005,ch 643, § 1).
"An intermediate appellate court has broad, plenary power to modify a sentence that isunduly harsh or severe under the circumstances, even though the sentence may be within thepermissible statutory range" (People v Delgado, 80 NY2d 780, 783 [1992]; seeCPL 470.15 [6] [b]; People v Thompson, 60 NY2d 513, 519 [1983]). Our sentencingreview power "may be exercised, if the interest of justice warrants, without deference to thesentencing court" (People v Delgado, 80 NY2d at 783). "In considering whether asentence is unduly harsh or severe under the circumstances, we exercise our discretion givingconsideration to, 'among other things, the crime charged, the particular circumstances of theindividual before the court and the purpose of a penal sanction, i.e., societal protection,rehabilitation, and deterrence' " (People v Kordish, 140 AD3d 981, 982-983 [2016], quotingPeople v Farrar, 52 NY2d 302, 305 [1981]).
Under the circumstances of this case, including the defendant's overall positive institutionalrecord during his now 13 years of confinement, and the fact that courts are constrained fromgiving effect to the ameliorative purpose of the DLRA by directing resentences to runconcurrently with each other when they were originally directed to run consecutively (see People v Cole, 114 AD3d 869[2014]), we conclude that the proposed resentences were excessive to the extent indicated(see generally id.; People v Suitte, 90 AD2d 80 [1982]). Balkin, J.P., Chambers,Cohen and Barros, JJ., concur.