People v. Baghai-Kermani

• Decision Date: 16 November 1995
• Docket Number: D,BAGHAI-KERMAN
• Citation: 634 N.Y.S.2d 58,221 A.D.2d 219
• Parties: The PEOPLE of the State of New York, Appellant, v. Abdolhoseinefendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 58

634 N.Y.S.2d 58

221 A.D.2d 219

The PEOPLE of the State of New York, Appellant, v. Abdolhosein BAGHAI-KERMANI, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 16, 1995.

B.H. Stein, for Appellant.

R.G. Russo, for Defendant-Respondent.

Before ROSENBERGER, J.P., and RUBIN, ASCH, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Bruce Allen, J.), entered January 20, 1995, which vacated that portion of the June 10, 1992 judgment of conviction (Stephen Crane, J.) that imposed eight concurrent terms of imprisonment of one to five years and which resentenced defendant to eight concurrent conditional discharges, unanimously reversed, on the law, the prior sentences reinstated and the matter remitted to the Supreme Court, New York County pursuant to CPL 460.50(5) for defendant to surrender himself to commence execution of his sentence.

On May 24, 1994, we affirmed defendant's judgment of conviction (People v. Baghai-Kermani, 204 A.D.2d 216, 612 N.Y.S.2d 38, affd. 84 N.Y.2d 525, 620 N.Y.S.2d 313, 644 N.E.2d 1004) as modified by our December 7, 1993 decision and order (People v. Baghai-Kermani, 199 A.D.2d 36, 605 N.Y.S.2d 19, appeal denied 82 N.Y.2d 921, 610 N.Y.S.2d 173, 632 N.E.2d 483), and remitted the case to the trial court for further proceedings in accordance with CPL 460.50(5). When defendant was brought before the Supreme Court, the Trial Justice who had conducted the bench trial in this matter was no longer sitting in the Criminal Term and a different Justice was presiding in the court part. Rather than execute the sentences that the Trial Justice had previously imposed, the newly assigned Justice adjourned the matter and then ultimately granted defendant's application for resentencing by vacating the eight concurrent prison terms and imposing conditional discharges in their stead.

We agree with the resentencing court to the extent that it concluded that, given the particular facts of this case, it had the power to modify defendant's previously imposed sentences because the defendant's sentences had not yet "commenced" within the meaning of the law. Following the original June 10, 1992 sentencing, defendant spent fourteen days in Bellevue Hospital under local supervision as he went about complying with the conditions of the trial court's order for bail pending appeal. During this time defendant's sentences did not "commence" because he was not incarcerated under the jurisdiction of the State Department of Correctional Services (CPL 430.10; PL 70.30[1].

The People, relying on People v. Ladone, 147 Misc.2d 269, 556 N.Y.S.2d 215, argue that defendant's hospital stay constituted commitment to the State Department of Correctional Services under an agency analysis. However, we do not read this record as the People do. The trial court, in granting defendant's motion for a stay of execution pending appeal, specifically directed "that the defendant not be placed in the course of transference to State prison and be kept in ... medical isolation [at Bellevue Hospital] pending the posting" of bail. In short, the facts here are unlike those in Ladone.

However, our determination that the resentencing court had the power to modify the defendant's sentences does not answer the ultimate question of whether it was appropriate in this case for the court to exercise such authority. In our view, the resentencing court abused its discretion in vacating the prison terms because this is not the "rare case" with "exceptional circumstances" (Hennessy v. Cunningham, 57 A.D.2d 298, 301, 395 N.Y.S.2d 320) justifying the drastic change in sentence that occurred. The original sentences were imposed, as explained by the court that heard all the evidence, with a view, inter alia, towards having a deterrent effect on other physicians who, like defendant, might be tempted to abuse their medical licenses by improperly prescribing drugs to drug-dependent individuals and then bilking the Medicaid system in the process. On defendant's direct appeal we rejected defendant's excessive...