Defendant moves for resentence under the Drug Law Reform Act of 2005.

The court has considered defendant's motion including the supplemental papers, the District Attorney's reply, the attachments submitted by both parties including plea and sentence minutes, the court file and arguments of counsel.

Defendant, along with co-defendants, was indicted for twelve counts of Criminal Possession of a Weapon in the Third Degree, twenty four counts of Criminal Sale of a Firearm in the Third Degree, two counts of Criminal Sale of a Controlled Substance in the Second Degree, two counts of Criminal Sale of a Controlled Substance in the Third Degree, six counts of Criminal Possession of a Controlled Substance in the Third Degree and two counts of Criminal Possession of a Controlled Substance in the Fourth Degree.The indictment resulted from a joint investigation between the Kings County District Attorney's Office and the New York Police Department's Firearms Investigation Unit into the sale of guns and drugs in the Bushwick neighborhood of Brooklyn, by a Latin Kings gang known as the "Gangsta Killer Kings." During the course of the months long investigation, an undercover police officer purchased twelve guns on eight separate occasions, along with heroin and cocaine purchases. The undercover was able to audiotape a number of the weapons transactions.

Defendant, known as "King C-Low," was the focus of the investigation; he was involved in every gun sale, sold heroin and cocaine directly to the undercover and introduced the undercover to other gang members to facilitate more drug sales.

Defendant was charged along with Orlando Rodriguez, Pedro Mendez, Robert Fuentes, Bienvenido Perez and Diana Corchado. At the time Ms. Corchado was defendant's girlfriend [*2]and is now his wife.

On April 19, 2001, with the matter on for trial, defendant pleaded guilty to one count of Criminal Sale of a Controlled Substance in the Second Degree, a class A-II non-violent felony in full satisfaction of the indictment, in exchange for an indeterminate sentence of a minimum of ten years to a maximum of life imprisonment.

A pre-sentence report was prepared. Defendant's prior record includes three felony convictions and six misdemeanor convictions in both New York and Florida. In Florida, starting in 1987, defendant was convicted of trafficking in hallucinogens and resisting arrest with violence, both felonies, and four misdemeanors. In New York, in 1994 defendant was convicted of Criminal Sale of a Controlled Substance in the Fifth Degree (a Class D felony) and also convicted of two misdemeanors. Defendant was arrested on the instant charges in 2000.

On May 7, 2001 Defendant moved to withdraw his plea of guilty on the ground of ineffective assistance of counsel. A hearing was held and the motion was denied. On May 15, 2001 sentence was imposed. On May 16, 2001, the sentence was voided, defendant was adjudicated a second felony offender and then sentenced to the agreed upon term.

With the exception of Ms. Corchado, eight months pregnant at the time of her arrest, who pleaded guilty to Attempted Criminal Sale of a Weapon in the Third Degree and received a five year probationary term, the co-defendants received prison sentences. Orlando Rodriguez pleaded guilty to Criminal Possession of a Controlled Substance in the Third Degree and was sentenced to a minimum of three years to a maximum of nine years. Bienvenido Perez pleaded guilty to Criminal Possession of a Controlled Substance in the Third Degree and was sentenced to a minimum of four years to a maximum of twelve years. Pedro Mendez pleaded guilty to Attempted Criminal Possession of a Controlled Substance in the Third Degree and was sentenced to a minimum of three years to a maximum of six years. Robert Fuentes pleaded guilty to Criminal Sale of a Controlled Substance in the Third Degree and was sentenced to a minimum of five years to a maximum of fifteen years.

Defendant has been incarcerated since September 9, 2000 on this case, and entered state prison on June 4, 2001. He has been in a number of different prisons and has a long disciplinary history.

The New York State Department of Corrections has a tiered system of punishment for infractions. Tier 1is the lightest form of discipline. Tier 2 infractions are punished by up to 30 days of keeplock, which means an inmate is confined to his/her cell for up to 23 hours a day and loses many privileges. Tier 3 is the highest level of discipline, for which keeplock can exceed 30 days and an inmate can be placed in isolation in the Special Housing Unit (SHU), in addition to the loss of other privileges.

Since 2001 defendant has had six Tier 3 violations and ten Tier 2 violations. These violations have involved violent conduct, gang behavior and drugs.

On July 9, 2001 defendant lied and told a corrections officer that his yellow metal teeth were cemented. A later visit to the facility dentist found that the metal teeth had been removed. The metal teeth, one bearing the letters "LKN," were found during a search of his cell. A penalty of fifteen days loss of package, commissary and phone privileges was imposed.

On July 24, 2002, gang-related items were confiscated from defendant's cell. The items included a drawing of a five-point crown (a known Latin Kings reference) with the name [*3]"Diana," lettered in and a writing with numerous references to the Latin Kings. A penalty of three months in SHU and the loss of recreation, package, commissary and phone privileges was imposed. Defendant lost three months of good time credit for this incident.

On May 22, 2003 defendant ignored an order from a corrections officer; he received a penalty of keeplock and loss of privileges.

On September 2 and September 8, 2003, defendant had a positive urine test which showed the presence of cocaine. A penalty of 90 days keeplock, loss of packages and commissary and phone privileges was imposed.

On December 19, 2003, a sharpened metal rod was found in defendant's cell. A penalty of one hundred days in SHU and loss of package, commissary and phone privileges was imposed.

On July 31, 2004 disobeyed a direct order from a corrections officer; he received a penalty of keeplock and loss of privileges.

On August 16, 2004 defendant received a new tattoo from another inmate. A penalty of keeplock and loss of privileges was imposed.

On October 7, 2004 defendant argued with a teacher and received a keeplock penalty and loss of privileges.

On January 19, 2005 defendant was involved in a fight with another inmate. Both defendant and the other inmate were injured. A penalty of six months twenty nine days in keeplock and loss of package, phone and commissary privileges was imposed. Six months of good time credit was lost because of this incident.

On November 1, 2005, defendant refused a direct order by a teacher to take a state-mandated test to required to qualify for the GED. Keeplock was imposed and privileges were lost.

On February 14, 2006 defendant was found to be in possession of herion. The penalty for this offense was, after appeal, four months twenty two days in keeplock and ten months twenty two days loss of privileges.

On October 8, 2006, defendant refused to give a urine sample. The penalty for this offense was, after appeal, six months and three weeks in SHU, the loss of package and commissary privileges for 690 days, the loss of phone privileges for thirty four months and twenty one days, and the loss of television, special event and clothing privileges for thirty six months.

During his period of incarceration, defendant has completed an Adult Basic Education program (2003) and the Custodial Maintenance Vocational Education program (2005).

Defendant is requesting resentence to a determinate term of eight years under the 2005 DLRA. The District Attorney opposes resentence; basing such opposition on defendant's record while incarcerated and the extent of his participation in the crimes charged.

The 2004 Drug Law Reform Act established a new sentencing structure for drug-related crimes. The original sentence structure, imposed by the so-called Rockefeller Drug Laws, was modified to permit eligible inmates convicted of class A-I felonies to apply for re-sentence under the DLRA. In 2005, the DLRA was amended to permit

resentence for inmates convicted of class A-II felony offenses (hereinafter 2005 DLRA) [see 2005 Session Laws of NY ch. 643]. [*4]

The 2005 DLRA provides that

1. Notwithstanding any contrary provision of law, any person in the custody of the department of correctional services convicted of a class A-II felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and who was sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than three years pursuant to provisions of the law in effect prior to the effective date of this section, and who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law, and who meets the eligibility requirements of paragraph (d) of subdivision 1 of section 803 of the correction law may, upon notice to the appropriate district attorney, apply to be resentenced in accordance with section 70.71 of the penal law in the court which imposed the original sentence.

The District Attorney concedes that defendant meets the above criteria and is eligible to apply for resentence.

According to the statute, the court must then "consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by such person or the people" and may, in addition, consider the institutional record of confinement of such person." Id. The court is explicitly prohibited from ordering a new presentence report or entertaining any matter challenging the basis of the conviction. Id. The statute further states that the

"court shall, unless substantial justice dictates that the application should be denied, in which event the court shall issue an order denying the application, specify and inform such person of the term of a determinate sentence of imprisonment it would impose upon such conviction..."

Based on an assessment of a defendant's prior criminal history, prison record and role in the offense, substantial justice may dictate denial of the motion to resentence (People v. Sanders, 36 AD3d 944 [2007]; People v. Vega, 40 AD3d 1020 [2007]; People v. Gonzalez, 29 AD3d 400 [2006] lv den. 7 NY3d 867 [2006]).

In the instant case, defendant was the primary target of a lengthy police investigation into the sale of illegal weapons and drugs in Kings County. Defendant was personally involved in the sale of twelve guns on eight separate dates and a review of the transcript of the audio taped transactions shows that defendant was the major participant in the sales; he was no mere functionary. Furthermore, he was also actively involved in selling hundreds of glassines of heroin and quantities of crack cocaine to the undercover on multiple occasions. He also referred the undercover to his co-defendants for further drug sales. Defendant was clearly the point person for the "Gangsta Killer Kings," in running this enterprise of illegal activity in Bushwick. He cannot, in anyway, be characterized as having a minor or minimal role in these activities. Indeed, the sentence imposed on defendant, after pleading guilty, reflected the significance of his role in the sales of illegal weapons and drugs; his sentence was far greater than those of his co-defendants.

Turning to his record of institutional confinement, it can only be described as abysmal. During his period of incarceration, defendant has compiled a lengthy list of infractions, including [*5]six Tier 3 infractions and ten Tier 2 infractions. Defendant has spent years of his incarceration in either keeplock or SHU, and has repeatedly lost other privileges.The court is unpersuaded by counsels' argument that defendant was trying to adjust to prison life. Defendant has engaged in a continuous pattern of violence, drug use and gang activity both before and during his term of incarceration.

The court finds that, notwithstanding defendant's eligibility under the statute, substantial justice warrants denial of the instant application.

This constitutes the decision and order of the court.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal from this determination. This application must be made within 30 days of service of this decision. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted ( 22 NYCRR § 671.5).

E N T E R ,

J. S. C.