[*1]
| People v Flores |
| 2010 NY Slip Op 50543(U) [27 Misc 3d 1204(A)] |
| Decided on April 5, 2010 |
| Supreme Court, Bronx County |
| Newman, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, Bronx County
The People of the State
of New York, Respondent,
against
Nelson Flores, Defendant.
|
1411/99
THE LEGAL AID SOCIETY CRIMINAL APPEALS BUREAU
Attorneys for defendant
199 Water Street — 5th Floor
New York, New York 10038
Attention: Jonathan Garelick, Esq.
A.D.A. NIKKI R. HARDING
Office of the District Attorney, Bronx County
198 East 161st Street
Bronx, New York 10451
Barbara F. Newman, J.
On August 20, 1999, defendant was convicted in absentia after a jury trial of
one count of criminal sale of a controlled substance in the third degree (P.L§220.39[1]),
and one count of criminal possession of a controlled substance in the third degree
(P.L.§220.16[1]). On October 29, 1999, defendant was sentenced in absentia by this court
(Davidowitz, J.) to an indeterminate term of imprisonment of seven years to fourteen years on
each count, said terms to be served concurrently with each other. On February 3, 2004,
defendant was returned to this court and the sentence of an indeterminate term of imprisonment
of seven years to fourteen years on his conviction of criminal sale of a controlled substance in
the third degree was executed in his presence. On March 16, 2004, the sentence of an
indeterminate term of imprisonment of seven years to fourteen years on his conviction of
criminal possession of a controlled substance in the third degree was executed in his presence.
On June 11, 2009, defendant made a pro se motion for resentencing pursuant to
section 440.46 of the Criminal Procedure Law, which motion was adopted and supplemented by
defendant's attorney in February 2010. The People opposed the motion. On March 2, 2010, [*2]pursuant to C.P.L.§440.46(3) (which incorporates by
reference L 2004, ch 738, §23), defendant, appearing with his attorney, was brought before
this Court and was offered an opportunity for a hearing. Defendant declined a hearing, relied
upon the facts as developed in the parties' written submissions, and asked to be heard in oral
argument on the motion. Following oral arguments by both sides, the parties requested and were
granted leave to make additional written submissions, the last of which additional submissions
was received by the Court on March 12, 2010.
The Court has reviewed the arguments of counsel, the applicable law and the
following documents: (1) defendant's Notice Of Application For Resentencing dated June 11,
2009; (2) defendant's Affidavit In Support Of Application For Resentencing dated June 11, 2009;
(3) DLRA Resentencing Supplemental Affirmation of Jonathan Garelick, Esq. (hereinafter,
"Garelick Aff"), dated January 14, 2010; (4) defendant's Exhibits A through D; (5) People's
Response To Petitioner's [sic] Motion For Resentencing dated January 19, 2010
(hereinafter, "People's Response"); (6) defendant's DLRA Resentencing Reply Memorandum
dated January 2010; (7) defendant's Exhibits to Reply Memorandum A and B; (8) People's
Supplemental Response To Petitioner's [sic] Motion For Re-sentencing dated March 3,
2010; (9) People's exhibit; (10) defendant's Reply To People's Supplemental Response To
Petitioner's Motion For Resentencing dated March 8, 2010 (hereinafter, "Suppl Reply").
Upon consideration of the foregoing, and for the reasons that follow, defendant's
motion is denied.
Findings of Fact
Unless otherwise indicated, the following facts are undisputed. Defendant is
thirty-nine years old, he first used cocaine at age sixteen, and he alleges that he has had a
substance abuse problem for most of his life. He has a lengthy criminal history involving the
sale, trafficking, and distribution of illegal drugs in five different jurisdictions. Defendant's first
arrest was in the State of New York in 1990; he was charged with criminal sale of a controlled
substance in the third degree. At some point during those proceedings a warrant was issued for
his failure to appear in court. In December 1993, after being returned on the warrant, defendant
pled guilty in that matter to attempted criminal sale of a controlled substance in the third degree
and was sentenced to a definite term of imprisonment of six months. In January 1994, in a New
York case unrelated to his first conviction, defendant pled guilty to another charge of attempted
criminal sale of a controlled substance in the third degree and was sentenced to a definite term of
imprisonment of one year. In the State of Pennsylvania in April 1995, defendant pled guilty to
violating that state's Controlled Substance, Drug, Device and Cosmetic Act and was sentenced to
one year probation. In July 1995, also in Pennsylvania but in a case unrelated to his first
Pennsylvania conviction, defendant pled guilty to violating the Controlled Substance, Drug,
Device and Cosmetic Act and was sentenced to an indeterminate term of imprisonment of eleven
months and fifteen days to twenty-three months.
In 1999 defendant was arrested in the Bronx and charged on the instant indictment
with criminal sale of a controlled substance in the third degree and related offenses; the
indictment alleged that on February 5, 1999, defendant, acting in concert with others, sold a
narcotic drug to an undercover police officer. Trial commenced on August 4, 1999. On August 5,
1999, defendant failed to appear in court and a warrant was issued. The court conducted a
Parker (People v Parker, [*3]57 NY2d 136
[1982]) hearing and determined that defendant had been given proper Parker warnings
and had voluntarily absented himself from the proceedings. The court held that the ongoing trial
would continue in his absence. Defendant did not return to court for the remainder of the
proceedings. Evidence was presented at the trial that defendant and three other persons sold
crack cocaine to an undercover police officer who paid with pre-recorded buy currency, and that
the defendants made additional sales before they were arrested for the sale to the undercover
officer; at the time of his arrest, defendant was in possession of seven slabs of crack cocaine and
twenty dollars of the pre-recorded buy currency. The jury found him guilty of one count of
criminal sale of a controlled substance in the third degree and one count of criminal possession
of a controlled substance in the third degree. On October 29, 1999, defendant was sentenced in
absentia to an indeterminate term of imprisonment of seven to fourteen years on each of the two
counts, the sentences to be served concurrently with each other.
In December 2000 defendant was arrested and entered a plea of guilty to trafficking
in illegal drugs in the State of Delaware; the Court has not been advised of the sentence that was
imposed. In March 2002 defendant was arrested and charged with drug trafficking near a
schoolyard in the State of Ohio. In July 2002, while his case was pending in the Ohio state court,
defendant was arrested by federal authorities in Ohio and charged with possession with intent to
distribute heroin, to which charge he pled guilty in July 2003; subsequently,[FN1] defendant was sentenced to a
term of imprisonment of seventy-eight months on the Ohio federal conviction. In August 2003,
defendant was arrested and charged with possession with intent to distribute heroin while he was
confined in a federal correctional facility in Michigan awaiting sentence on the Ohio federal
conviction and his state drug trafficking case was still pending before the Ohio state court.
On February 3, 2004, defendant was returned from federal custody to this court for
execution of the sentences which had been imposed in absentia on October 29, 1999;[FN2] execution of the sentences was
completed on March 16, 2004, after which defendant was returned to federal custody. In
September 2004 defendant entered a plea of guilty to the charge of drug trafficking near a
schoolyard in the Ohio state court, and was sentenced to a term of imprisonment of three years.
In October 2005 defendant was convicted of the Michigan federal heroin distribution charge and
sentenced to a term of imprisonment of seventy-eight months. On March 25, 2008, following
completion of his federal sentences,[FN3] defendant was returned to New York State
custody. On April 4, 2008, defendant began serving the sentences which this court had imposed
in absentia on October 29, 1999. As of March 8, 2010 — the date of the last document
submitted in support of the instant [*4]motion (see Suppl
Reply at 7) — defendant had served approximately twenty-three months of his sentences,
during which period he had no disciplinary violations, completed the Alcohol and Substance
Abuse Treatment Program administered by the New York State Department of Correctional
Services, and received training and experience as a barber.
Discussion
Section 440.46 of the Criminal Procedure Law is the codification of the Drug Law
Reform Act of 2009 (L 2009, ch 56, pt AAA, §9). It extends to those convicted of a class B,
C, or D drug felony and sentenced under the legislation commonly referred to collectively as the
Rockefeller Drug Laws the opportunity to seek by motion for resentencing a less severe
sentence. Pursuant to subsection (3), "[t]he provisions of section twenty-three of chapter seven
hundred thirty-eight of the laws of two thousand four [the Drug Law Reform Act of 2004
[FN4]] shall govern the
proceedings on and determination of a motion brought pursuant to this section."
C.P.L.§440.46(3). As defendant notes (see generally Garelick Aff at 4-5), the
impetus for the drug law reform acts was the legislature's determination that the Rockefeller
Drug Laws' mandated sentences were excessively harsh when applied to street-level offenders
who possessed or sold only small quantities of illegal drugs in order to feed their own addiction.
Further, legislators determined that the mandated sentences had proven to be counterproductive,
in that incarcerating those low level offenders was hugely expensive and because such lengthy
periods of imprisonment were more likely to foil than foster any sincere desire on the part of
such an offender to overcome his or her addiction and become a law-abiding member of society.
Because the drug law reform acts embody a concerted legislative effort to reverse the deleterious
effects of the Rockefeller Drug Laws, the legislature has incorporated into all of the drug law
reform acts a presumption in favor of granting motions for resentencing "unless substantial
justice dictates that the application should be denied." L 2004, ch 738, §23.
Defendant argues that he is entitled to the benefit of the statutory presumption in
favor of resentencing because the crimes of which he was convicted involved the sale of what he
characterizes as relatively small quantities of crack cocaine in which he engaged only to feed his
own addiction, in contrast to an ongoing enterprise the primary purpose of which is profit.
Indeed, defendant relies exclusively on the presumption, failing to provide any information
concerning his activities between August 5, 1999, the date he absconded, and April 4, 2008, the
date he began serving the sentences which had been imposed in his absence. However, the
presumption is not irrebutable; thus, it means neither that resentencing motions must be granted
automatically, nor as defendant implies, does it require "a finding of extraordinary circumstances
in order to deny resentencing." People v
Gonzalez, 29 AD3d 400 (1st Dep't 2006) lv denied 7 NY3d 867 (2006).
This Court finds that substantial justice dictates that defendant's application for
resentencing be denied. First, the Court disagrees with defendant's characterization of the
criminal conduct for which he was convicted. Defendant seeks to be seen as a needy drug addict.
But the evidence at trial [*5]established that defendant was a
member of an organized drug-selling team of four people, each having a specific predetermined
role, and that defendant's role as the holder of both product and profit was pivotal to their
operation. Thus, the conduct for which defendant was convicted was more consistent with a
person engaged in a business-like enterprise than an addict selling only so much as was needed
to secure drugs for his own habit. Therefore, it is not at all clear that defendant was even at the
time of his conviction the kind of low level offender for whose benefit the drug law reform acts
were intended.
Also, defendant's argument to the contrary notwithstanding, the fact that a defendant
absconded from the proceedings which culminated in the sentence he or she seeks to modify, is a
factor which a court may consider in the determination of a motion under C.P.L.§440.46.
See People v Aguirre, 47 AD3d
489 (1st Dep't 2008) lv dismissed 10 NY3d 761 (2008); People v Ciriaco, 46 AD3d 374
(1st Dep't 2007); People v Marte,
44 AD3d 442 (1st Dep't 2007) lv dismissed9 NY3d 991 (2007). But the act of
absconding itself is less relevant to the determination of the instant motion than are both the
practical consequence of that act and the defendant's conduct subsequent to absconding. Because
defendant fled, the sentences imposed for the crimes of which he was convicted could not be
executed. Thus, no overlong period of imprisonment impeded any sincere desire defendant may
have harbored to overcome his alleged addiction and become a law-abiding member of society.
There is no showing herein that while a fugitive defendant took steps to overcome
his purported addiction or lead a law-abiding life. For example, defendant does not allege that
during the nine years after he absconded from, until he began serving the sentences imposed by,
this court he tried to enter any hospital, rehabilitation facility or substance abuse program, or that
he ever sought, trained for, or held any form of honest employment. Rather, the record
establishes that during that period defendant engaged in drug-related criminal activity in at least
three other jurisdictions, including the trafficking of illegal drugs — both in Delaware and
near a schoolyard in Ohio — and the distribution of heroin on the streets of Ohio and
inside a correctional facility in Michigan. And none of those crimes can be fairly characterized
as merely doing what is needed to feed one's own addiction. Defendant does not even allege that
he sought help with his alleged addiction or participated in any educational or vocational training
programs while he was incarcerated in Delaware, Ohio or Michigan; he alleges that he did so
only after he was involuntarily returned to New York and compelled to begin serving the
sentences that should have commenced nine years earlier. Nor does defendant allege why he did
not return to New York voluntarily in one of the intermittent periods — for example,
between August 5, 1999, and his arrest in Delaware in December 2000 — during which he
was apparently not incarcerated. Defendant's behavior since absconding unambiguously
distinguishes him from the category of persons intended to be beneficiaries of the drug law
reform acts and provides further evidence that to grant his application for resentencing would be
unjust.
Nor does defendant's brief institutional record of confinement while serving the
sentences he seeks to modify alter that conclusion. Defendant trumpets as an exemplary
achievement that he has been a "model prisoner" during the two years since those sentences were
executed in April 2008. (See Garelick Aff at 12). However, considered as a whole,
defendant's institutional record of confinement since those sentences were imposed in October
1999 — albeit in his absence — is extremely poor. Defendant offers no information
concerning his institutional record while he was [*6]confined in
state correctional facilities in Delaware and Ohio, and a federal correctional facility in Michigan,
between July 2002 and April 2008, but the record establishes that he committed the crime of
possession with intent to distribute heroin while confined in the federal facility in August 2003.
Therefore, while considered by the Court, defendant's lack of any disciplinary history in the last
two years does not outweigh the other factors on which the Court has based its determination
that substantial justice dictates that defendant's application for resentencing should be denied.
See, e.g., People v
Curry, 52 AD3d 732 (2nd Dep't 2008) lv denied 11 NY3d 735 (2008); People v Soler, 45 AD3d 499 (1st
Dep't 2007) lv dismissed 9 NY3d 1009 (2007); People v Marte, 44 AD3d 442 (1st Dep't 2007) lv dismissed
9 NY3d 991 (2007).
Accordingly, for the foregoing reasons, defendant's motion pursuant to
C.P.L.§440.46 for resentencing on his convictions of criminal sale of a controlled substance
in the third degree and criminal possession of a controlled substance in the third degree is
denied.
The foregoing constitutes the decision and order of the Court.Dated: Bronx, New
YorkE N T E R:
April 5, 2010
HON. Barbara F. Newman
Acting Justice of the Supreme Court
Footnotes
Footnote 1:The People allege, and
defendant does not dispute, that this sentence was imposed on February 9, 2004 (see
People's Response at 9), but defendant was produced before this court on February 3, 2004, and
the People's allegation that he was not returned to federal custody until March 16, 2004 (see
id. at 4) is also undisputed.
Footnote 2:Neither party offers an
explanation as to why defendant was not returned to New York custody by state authorities
following his December 2000 arrest in Delaware or his March 2002 arrest in Ohio.
Footnote 3:Although the parties do not
elaborate, the Court infers that the six and one-half year sentence imposed on defendant's second
federal conviction was made to run concurrently to the six and one-half year sentence imposed
on his first federal conviction. Otherwise, defendant would not have begun serving the second
sentence until he had completed the first sentence — service of which could not have
begun earlier than July 2002 — in which event the second sentence would not have been
completed as of March 25, 2008.
Footnote 4:The Drug Law Reform Act of
2004 extended the same opportunities to those convicted of class A-I drug felonies, and the Drug
Law Reform Act of 2005 (L 2005, ch 643, §1) did so for those convicted of class A-II drug
felonies.