The People, Respondent,v.Jose Rodriguez, Appellant.

Brief

N.Y.February 12, 2013

APPELLATE ADVOCATES 2 RECTOR STREET - 10TH FLOOR, NEW YORK, NEW YORJK: WOOf> PHONE, (212) f>93_ll085 FAX, 1212l 693,ll878 ATWRNIW --IN_CliARGE LYNN W. L FAHEY ASS1STANT A'rrt>RNEY-l:N_O~AAt.OE BARRY S. STENDIG .S'!.Jl'EKVi,SrNG AlIVTC)[{NfSYS WINSTON McINTOSH DAVIn P. GREENBERG ERICA HORWITZ PAUL SKIP LAISURE LISA NAPOLI .sEMOl{ ATTORNEY WlLLlAM G. KASTlN STUDENT INTERN COORDINATOR Hon, Andrew W. Klein Clerk of the Court Court of Appeals Court of Appeals Hall Eagle Street Albany, New York 12207 December 19, 2012 STEVEN R. BERNHARD ERIN R. COLLINS DENISE A. CORsi A. ALEXAI\'IlER DON:"l JONATHANGARVlN JOHN GEMMILL ALLEGRA GLASHAUSsER LRILA HULL KENDRA L HUTCHINSON .JONATHAN M. KRXI'TER WARREN S. LAKDAU JOSHUA M. LEVIN}: DA VlD G. LOWRV JESSICA M. McNAMARA ANNA PI':RV1JKlUN DENICE POWELL KATHLEEN E. WaOOlEY OF COUNSEL ANDREW E. ABRAHAM ALEXiS A, ASCHER JANET CLAmE U: ELLEN IIRIED MEl.lSSA S. HORLICK WILLIAM A. LOEB REYNA E. MARDER SONJA MIKOLIC Re: PeoDle v. Jose Rodriguez Submission Pursuant to Rule 500.11 Your Honor: The appellant submits this letter, pursuant to Section 500.11 of this Court's Rules of Practice, in support of reversal of the June 27, 2012 decision of the Appellate Division, Second Department. The Appellate Division decided, incorrectly, that pursuant to this Court's decision in PeoDle v. Acevedo, 14 N.Y.3d 828 (2010), the Drug Law Reform Acts of 2004, 2005, and 2009 do not authorize the Supreme Court to alter a sentence so that previously imposed consecutive terms on convictions to drug felonies may be ordered to run concurrently upon resentencing on those counts. That decision affirmed appellant's June II, 2010 resentencing, in which the trial court, having concluded that it lacked the authority to direct that all of appellant's prison terms run concurrently with each other, imposed a consecutive term as to one of them. Enclosed are copies resentencing transcript, of the motion pre-sentence for DLRA resentencing, report, trial court's Decisions and Orders, Appellate Division briefs, Appellate Division's order affirming appellant's resentencing, order granting leave to appeal to this Court, and companion submissions in digital format on CD-ROM. STATEMENT OF FACTS ApDellant's Backaround, Conviction and Sentence in this Case In December 1994, appellant was indicted, along with two co- defendants, for first-degree criminal sale of a controlled substance (five counts), first-degree criminal possession of a controlled substance (two counts), second-degree criminal possession of a controlled substance (three counts), third-degree criminal possession of a controlled substance (five counts) and seventh-degree criminal possession of a controlled substance, in connection with sales of cocaine to an undercover officer during October and November 1994 (PSR. 1). While appellant had a minimal role in the October sales and received no monetary gain from them, because of "difficult financial circumstances," he took a greater role in selling cocaine to the same officer on November 2 and 17, 1994, and received $50 and $75 from the sales, respectively (see Defendant's Affirmation, 'lI 6 10). On November 28, 1994, appellant had conversations with the undercover in an effort to set up a cocaine sale. He was arrested on that date near a car from which cocaine was recovered (see Defendant's Affirmation, 'lI 14). Appellant proceeded to a jury trial before the Honorable James Starkey. The jury acquitted him of the October sales, but found him guilty of criminal sale of a controlled substance in the first degree (three counts), and criminal possession of a controlled substance in the second (two counts) and third degrees (three counts), in connection with the November 1994 transactions (see Defendant's Affirmation, 'lI 16). P.L. §§ 220.43(1), 220.41(1), 220.16(1). On January 12, 1996, the trial court sentenced appellant as a second felony offender to two concurrent indeterminate prison terms of 15 years to life for the November 2, 1994 and November 28, 1994 incidents, and to a consecutive indeterminate prison term of 15 years to life for the November 17, 1994 sale. In addition, the lpage numbers preceded by "R." and "PSR." refer to the resentencing transcripts and the Probation Department's pre- sentence report. 2 court imposed two concurrent indeterminate terms of 8 years to life on the second-degree possession convictions, and three concurrent indeterminate terms of 12 ;Z to 25 years on the third-degree possession convictions (see Defendant's Affirmation, ~ 1). Appellant's aggregate prison sentence, therefore, was 30 years to life. The Appellate Division affirmed appellant's conviction. People v. Rodriauez, 258 A.D.2d 483 (2d Dept. 1999). The Resentencing Motion Appellant sought resentencing under the 2004, 2005 and 2009 Drug Law Reform Acts ("DLRA"). As to the A-I counts, he asked the trial court to vacate the sentences and impose the minimum permissible sentence as to each count, and to order that the terms all be served concurrently (Defendant's Affirmation, ~ 5). Appellant argued that he had an "exemplary" institutional record, having completed the Residential Substance Abuse Treatment Program ("RSAT"), and having received numerous commendations for his participation in many educational and vocational programs. His disciplinary record consisted of just three "Tier 2" infractions over thirteen years of incarceration. In addition, prior to his arrest, appellant had worked continually to support his wife and two children, had received very little financial gain from his involvement in the drug transactions and, despite his lengthy incarceration, had maintained close relationships with his family (see Defendant's Affirmation, ~ 28 - 30). The People consented to the court's resentencing appellant to the minimum determinate terms on his class A-I, A-2 and B drug convictions. However, they asserted that DLRA 1 did not authorize the court to change a legally-imposed consecutive term into a concurrent term. Thus, the A-I count that ran consecutively in the original sentence would have to continue to run consecutively upon resentence. The court issued a Decision and Order on June 11, 2010 in which it ruled that substantial justice did not prevent resentencing, noting appellant's "good institutional record," completion of drug treatment and vocational programs, and the praise appellant received from prison officials for his work performance and educational achievements. However, the court ruled that it was not authorized, in adjusting the term of imprisonment, to change a consecutive term into a concurrent term, relying on Acevedo and People v. Vaughan, 62 A.D.3d 122 (2d Dept. 2009). In a court proceeding on June 11, 2010, the court notified appellant of the proposed resentence: the court would vacate the original sentence and impose determinate terms of 15 years with 5 3 years of post-release supervision on the class A-I convictions, terms of 8 years with 5 years of post-release supervision on the class A-2 convictions, and terms of 6 years with 2 years of post- release supervision on the class B counts (R. 6-7). Appellant accepted the proposed resentence (R. 10). The trial court noted that appellant did not waive his right to appeal the court's decision with regard to its authority to change the consecutive term to a concurrent term (R. 11). THE RESENTENCING APPEAL Appellant appea1ed to the Appellate Division, Second Department, arguing that the resentencing court had the authority to impose concurrent sentences on the three A-I drug sale counts. On June 27, 2012, the Appellate Division, Second Department, affirmed appellant's re-sentencing offer, ruling that the DLRA did not authorize the Supreme Court to alter appellant's sentence so that all three terms of imprisonment would run concurrently, citing and People v. Norris, 90 A.D. 3d 788 (2d Dept. 2011), Iv granted 18 N.Y.3d 926 (2012). People v. Rodriguez, 96 A.D.3d 1079 (2d Dept. 2012). On October 4, 2012, the Court (Ciparick, J.), granted appellant leave to appea1. ARGUMENT UPON VACATING APPELLANT'S ORIGINAL SENTENCE, THE COURT HAD THE AUTHORITY TO ORDER THAT HIS NEW DETERMINATE PRISON TERMS BE SERVED CONCURRENTLY, EVEN THOUGH IT ORIGINALLY HAD ORDERED THAT ONE OF THE INDETERMINATE SENTENCES BE SERVED CONSECUTIVELY TO THE OTHERS, BECAUSE EACH COUNT WAS A DLRA-ELIGIBLE OFFENSE AND PRECLUDING CONCURRENT SENTENCING WOULD FRUSTRATE THE AMELIORATIVE PURPOSE OF THE DRUG LAW REFORM ACTS. Appellant was entit1ed to the full benefit of the ameliorative provisions of Drug Law Resentencing Acts when he applied to be resentenced. Those statutes provide for a complete recalculation of sentences for eligible drug offenders once the resentencing court determines that substantial justice does not dictate denial of resentencing. Nothing in DLRA 1 prohibited the resentencing court from ordering that all of the determinate sentences on the drug counts be served concurrently notwithstanding that the original 4 sentencing court had ini tially ordered that one of the indeterminate sentences that would be replaced be served consecutively to the others. In People v. Acevedo, 14 N.Y.3d 828 (2010), this Court held that a DLRA resentencing court was not permitted to change the relationship of resentenced counts to other counts not subject to resentencing from consecutive to concurrent. Even though DLRA 1 is an ameliorative statute which must be read broadly to permit wide application of its benefits, the resentencing court found that the Acevedo rule deprived it of authority to order that new sentences imposed on drug counts whose previous sentences were being vacated be served concurrently. Because of the Legislature's purpose in enacting DLRA 1, the Acevedo rule should be limited to its own terms and applied only to counts not subject to resentencing. Accordingly, this Court should reverse the Appellate Division's order affirming the resentencing offer and remand the case to Supreme Court for resentencing. (A) In 2004, the Legislature began to reform the Rockefeller drug laws that had generated controversy for many years. As this Court explained in People v. Paulin, 17 N.Y.3d 238, 244 (2011), the Legislature and Governor had concluded that the Rockefeller scheme provided inordinately harsh punishment in many cases. See also Acevedo, 14 N.Y.3d at 831. The 2004 reform act ("DLRA 1"), and a second one the next year ("DLRA 2"), permitted the resentencing of Class A-I and Class A-II drug offenders who were sentenced under the old indeterminate sentencing scheme. In DLRA 3, the Legislature extended the opportunity for resentencing relief to class B drug offenders, including a sentence reduction for associated lower-level drug crimes (C, D and E drug offenses). Taken in their entirety, the three Acts comprise a comprehensive overhaul of the State's response to drug crime. They restore discretion to the trial judges, enabling them to provide meaningful relief to defendants who are facing drug charges or who were convicted under the draconian Rockefeller drug laws. While DLRA 1 includes significant and far-reaching revisions to the penal, criminal procedure, correction and executive law, enacted for the purpose of "reform[ing] the sentencing structure of New York's drug laws," the Legislature wrote that DLRA 1 represented only an "initial step," and that other "major reforms," including "judicial discretion, expanded treatment options and additional sentencing 5 changes" were urgently needed (see Al1895 Memo at pp. 1, 4, available at htto://as"embly.state.ny.us.). Those next steps were taken with successive DLRA Leq i s La t i.on , s uch that the Acts as a whole fulfill the purpose of allowing judges to tailor penalties to individual facts and circumstances. That purpose is inconsi"tent with a reading of the statutory scheme that limits judicial discretion, as does the Appellate Division ruling in this case. Under DLRA 1, and all the subsequent DLRA acts, a court entertaining a resentencing motion is directed to consider "any facts or circumstances relevant to the imposition of a new sentence which are submitted by" the defendant and the People and the defendant's "institutional record of confinement." Upon receipt of the motion papers, the Court "shall offer an opportunity for a hearing," and bring the defendant before it. The Court may also hold a hearing to determine the defendant's eligibility for resentencing or any controverted issue of fact relevant to resentencing. After reviewing the papers, holding any necessary hearing and making findings of fact, the court, unless it denies the application, shall "specify and inform" the defendant of the term of the determinate sentence it would impose. 2004 N.Y. Laws, ch. 738, § 23. For defendants who were previously convicted of violent felony offenses, the new sentencing range for class A-I drug offenses is a range of 15 to 30 years, P. L. 70.71(4) (I); for class A-2 drug offenses, the range is 8 to 17 years, P. L. 70.71(4) (ii); for class B drug offenses, the range is 6 to 15 years. If the defendant accepts the proposed sentence, the court is specifically directed to issue: an order vacatina originally imposed and determinate sentence of authorized to be imposed the sentence imposing a imprisonment under the new law. 2004 N.Y. Laws, ch. 738, § 23 (emphasis added); C.P.L. § 440.46(3). The sentencing scheme created by the new law constituted a marked change in New York's approach to drug-crime sentencing. Under the old Rockefeller scheme, there were no special sentencing categories for drug crimes whereas there are now three. Compare P.L. §§ 70.00, 70.06, with P.L. §§ 70.70, 70.71. Under the old law, for example, a defendant's prior conviction of a violent felony had no bearing on his sentencing classification after a drug-crime conviction. McKinney, Practice Commentary, P.L. § 60.04, p. 109 (2009). In enacting the new law, however, the Legislature adopted 6 a comprehensive approach which addressed every aspect of sentencing in felony drug conviction cases, including second felony offender sentencing which had previously been governed by other sections of the Penal Law. By specifying that the court select an appropriate sentence within the ranges provided in P.L. § 70.70 and § 70.71, which were not in existence when the defendant was originally sentenced, the Legislature plainly intended that the resentencing court would be imposing a wholly new sentence to replace the previously imposed indeterminate sentence, which was inordinately harsh. This conclusion is borne out by the further directive that the resentencing court vacate the original sentence before imposing the new determinate sentence. And by enacting a comprehensive scheme that addressed all aspects of sentencing, the Legislature clearly intended to give the resentencing court the tools to craft an entirely new sentence from scratch. Everything about that scheme indicates that discredited indeterminate sentences be fully eliminated. Nothing in it indicates that the Legislature intended that any vestige of those inordinately harsh sentences survive the resentencing procedure. In short, the Appellate Division's holding that the court was constrained to impose consecutive sentences unnecessarily handcuffs the resentencing judge in a way the Legislature never intended. (B) In this case, the People did not oppose resentencing, and recommended that appellant receive the minimum term. The resentencing court agreed to grant appellant's motion and informed him that, upon vacating his sentence, it would impose on the A-I convictions three determinate terms of 15 years, but ruled that it was constrained to order that those terms be served consecutively, citing Acevedo, 14 N.Y.3d at 828 and v. Vaughan, 62 A.D.3d 122 (2d Dept. 2009). But nothing in the language or reasoning of Acevedo dictated this finding, and the resulting aggregate 30-year sentence was clearly antithetical to the purpose of resentencing. In Acevedo, this Court was presented with the question whether a resentencing court could alter the relationship between DLRA-eligible drug sentences running consecutively to non-drug sentences not subj ect to DLRA relief. Whether a court can order the very drug sentences that are being vacated to run concurrently with each other upon resentencing is an entirely different question, one that was not considered in Acevedo. To simply apply Acevedo to the 7 situation at hand would represent a major expansion of the Acevedo rule, and would create an unnecessary impediment to providing the ameliorative relief contemplated by the DLRA reforms. In 1997, defendant Acevedo was convicted of, among other drug offenses, criminal possession of a controlled substance in the first degree, an A-I drug felony, and two counts of criminal possession of a weapon in the third degree. Acevedo, 14 N. Y. 3d at 829-830. The sentences for the weapon possession convictions were ordered to run concurrently wi th each other, but consecutively to the sentences on the drug convictions. Id. at 830. In 2005, Acevedo sought resentencing under DLRA 1 on his A-I drug felony, arguing that (1) he was entitled to a reduction of his sentence for the A-I drug felony, and (2) the resentencing court should direct that the sentences imposed for the weapon possession convictions run concurrently with the A-I offense, rather than consecutively to it. Id. at 830. On appeal to this Court, Acevedo cited P. L. § 70.25 (1) and Matter of Murray v. Goord, 1 N.Y.3d 29 (2003), for the proposition that the resentencing court, as the last judge in the sentencing chain, had the unfettered authority to modify the conditions of a sentence by changing its terms from consecutive to concurrent. at 830-831. This Court rejected that argument, and held that DLRA 1 did not "authorizer]" a resentencing court to alter the consecutive relationship between Acevedo's A-I drug count and his weapon possession counts. Id. at 831. In appellant's case, however, the only sentences at issue are for felony drug offenses, all of which are encompassed by the DLRA reforms, and all of which would have been vacated at resentencing. Thus, unlike in Acevedo, appellant did not seek to modify any part of his sentence that was not "defect [ive] ." Since the resentencing court had the authority, pursuant to the DLRA , to alter all of the sentences that appellant sought to have run concurrently, Acevedo is inapposite. Respondent in this case argued in the Appellate Division that nothing in the language of Acevedo and Vaughan implied a distinction between cases that run consecutive to another drug sentence and consecutive to a non-drug sentence Brief for Respondent, p. 12), but the distinction is evident on its face. Non-drug sentences are not eligible for resentencing under the DLRA reforms, while drug sentences are eligible. Thus, non-drug sentences, and their relationships to other counts, must be allowed to stand, while drug sentences all of which suffer from the "defect" of being inordinately harsh - can be modified. Given the sweeping structural 8 and philosophical reforms enacted in the several Drug Law Reform Acts, the only sensible conclusion is that the resentencing can include a rearranging of the relationship between drug counts, from consecutive to concurrent, if a resentencing court sees fit to do so. (C) The remedial nature of DLRA 1 is still another reason not to limit a resentencing court's discretion in the way the People sought and the Appellate Division held. The underlying purpose of DLRA 1 was to ameliorate the harsh sentences required to be imposed under the former sentencing statute (PL § 70.00) and to replace them with more enlightened approaches to the problems created by the distribution and use of controlled substances in our society (see A11895 Memo, available at htto:llassemb1y.state.ny.us. ). "Remedial statutes are liberally construed to carry out the reforms intended and to promote justice." N.Y. Statutes § 321 (McKinney 2012). According to the Practice Commentaries, the intent of a liberal construction of remedial statutes is "to spread their beneficial result as widely as possible" Practice Commentaries, N.Y. Statutes § 321 (McKinney 2012) (quoting Mlodozeniec v. Worthington Corp., 9 A.D.2d 21 (3d Dept. 1959), aff'd, 8 N.Y.2d 918 (1960)); see People v. Lexington Sixty-First Assoc., 38 N.Y.2d 307,311 (1976) (remedial statute "should be liberally construed so that its beneficent purpose may, so far as possible, be attained"). The liberal construction accorded ameliorative statutes creates a presumption of broad application that governs in the absence of express legislative will to the contrary. Oliver, 1 N.Y. at 158. For example, when a statute enacts a reduction in punishment, it applies retroactively to any defendant not yet sentenced, whether or not his crime was commi tted prior to the enactment of that statute, so as to give the ameliorative statute its broadest effect. Id. at 161. Only when the ameliorative statute expressly prohibits retroactive application is the presumption rebutted. People v. Utsey, 7 N.Y.3d 398, 402 (2006) (Since Legislature specifically intended that DLRA 1 relief be prospective only, the presumption of liberal construction was rebutted with respect to retroactivity and retroactive application was prohibited); See Mills, 11 N.Y.3d at 535-36 (Legislature intended that defendants who were paroled, or were within three years of parole eligibility, are not eligible for resentencing under DLRA 2) . Nothing in DLRA 1 indicates that the Legislature intended to limit a resentencing judge's discretion with respect to concurrent 9 vs. consecutive sentencing. Moreover, the Legislature's handling of persistent felony drug offenders indicates that it did not consider conviction of multiple drug offenses cause for continued draconian sentences. In the past, drug offenders were subject to sentencing as discretionary persistent felony offenders under P.L. § 70.10. New Penal Law § 70.71, however, which regulates the imposition of sentences for Class A felony offenders, authorizes determinate sentences for "felony drug offenders," "second felony drug offenders" and "second felony drug offenders previously convicted of a violent felony offense." P.L. §§ 70.70(1) (a), (b), (c). It does not purport to create a separate sentencing scheme for persistent felony drug offenders. P.L. §70.10(2), which regulates the imposition of life sentences for discretionary persistent felony offenders, only permits a court to substitute a life sentence for such offenders "in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04, 70.06, or 70.80." Conspicuously absent from that list is section 70.71, the new drug law sentencing statute for offenders convicted of class A-I felonies. Thus, while a third-time felony drug offender may otherwise meet the definition of "persistent felony offender" set forth P.L. § 70.10 (1), the sentencing court is not authorized to impose a Class A-I life sentence under P.L. § 70.10(2). The Legislature's determination that life sentences are not appropriate for repeat drug felony offenders comports with its overall recognition that the former Rockefeller Drug Laws "provide inordinately harsh punishment for low level non-violent drug offenders. . and waste valuable state tax dollars which could be used more effectively to provide drug treatment to addicts and harsh punishment to violent criminals." Al1895 Memo at p. 4, available at http://as.sembly.state.ny.us. That determination does not square with the inference that the Legislature intended to require the resentencing court to order that a defendant who committed three felony drug offenses during the same course of conduct serve one of those sentences consecutively just because that is how the court originally ordered that the indeterminate sentences on those same counts be served. It also flies in the face of the whole purpose of the statute, which recognizes that the original sentences were "inordinately harsh." Nor can this consecutive/concurrent relationship be isolated from the court's determination of what would constitute a "proportionate and fair punishment." People v. Ramirez, 89 N. Y.2d 444, 450 (1996). "In choosing to exercise its discretion [to impose consecutive sentences], Supreme Court may properly consider a variety of factors including the number and seriousness of the 10 offenses involved." Id. (emphasis added). That a Rockefeller-era sentencing court might have considered drug crimes worthy of lengthy consecutive sentences is not surprising, given the then-pervasive attitude that drug abuse was a scourge upon society that required harsh punishment for maximum deterrent effect. But with the dramatic change in philosophy now adopted in New York, a resentencing court today would be required to reevaluate the "sericusness" of the drug crimes involved, as well as the other factors it must consider, under prevailing itudes and knowledge. It cannot adequately do so without also being permitted to reconsider imposing concurrent sentences; only then will the new sentence truly reflect a "proportionate and fair punishment" by today's standards. CONCLUSION FOR THE REASONS STATED ABOVE, THIS COURT MUST VACATE THE RESENTENCE AND REMAND THE CASE TO THE SUPREME COURT FOR RESENTENCING. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant- Appellant 2 Rector Street, 10th Floor New York, New York 10006 (212) 693-0085 £'~ ~.e --=cc"- By: Ellen Fried Of Counsel 11