People v. Garcia

• Decision Date: 13 March 2019
• Docket Number: Ind. Nos. 04–536, 04–594,2017–09535,2017–09537
• Citation: 96 N.Y.S.3d 106,170 A.D.3d 883
• Parties: The PEOPLE, etc., Respondent, v. Jose GARCIA, Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 883
96 N.Y.S.3d 106

The PEOPLE, etc., Respondent,
v.
Jose GARCIA, Appellant.

2017–09535
2017–09537
Ind. Nos. 04–536, 04–594

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 28, 2018
March 13, 2019

96 N.Y.S.3d 107

Thomas R. Villecco, Jericho, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, N.Y. (William C. Ghee of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, BETSY BARROS, JJ.

DECISION & ORDER

170 A.D.3d 883

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 informed him that, in the event of a resentence pursuant to the Drug Law Reform Act of 2004 (L 2004, ch 738), the court would impose a determinate term of imprisonment of 17½ years plus 5 years of postrelease supervision on his conviction of criminal possession of a controlled substance in the first degree under Indictment No. 04–536, and (2) an order of

96 N.Y.S.3d 108

the same court, also dated June 20, 2017, which, upon remittitur from this Court, specified and informed him that, in the event of a resentence pursuant to the Drug Law Reform Act of 2004 (L 2004, ch 738), the Drug Law Reform Act of 2005 (L 2005, ch 643), and CPL 440.46, the court would impose determinate terms of imprisonment of 17½ years plus 5 years of postrelease supervision on his conviction of criminal sale of a controlled substance in the first degree, 5 years plus 5 years of postrelease supervision on his conviction of criminal sale of a controlled substance in the second degree, 5 years plus 5 years of postrelease supervision on his conviction of criminal possession of a controlled substance in the second degree, and 3 years plus 5 years of postrelease supervision on each conviction of criminal possession of a controlled substance in the third degree (two counts) under Indictment No. 04–594, with these proposed resentences to run concurrently with each other and consecutively to the proposed resentence under Indictment No. 04–536.

ORDERED that the first 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 controlled substance in the first degree under Indictment No. 04–536 from a determinate term of imprisonment of 17½ years to a determinate term of imprisonment of 10 years; and it is further,

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 controlled substance in the first degree under Indictment No. 04–594 from a determinate term of imprisonment of 17½ years to a determinate term of imprisonment of 10 years.

170 A.D.3d 884

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) and sentenced to an indeterminate term of imprisonment of 17½ years to life. This Court affirmed the judgment of conviction (see People v. Garcia, 57 A.D.3d 918, 869 N.Y.S.2d 618 ). Under Orange County Indictment No. 04–594, the defendant was convicted of criminal sale of a controlled substance in the first degree (a class A–I felony), criminal sale of a controlled substance in the second degree (a class A–II felony), criminal possession of a controlled substance in the second degree (a class A–II felony), and two counts of criminal sale of a controlled substance in the third degree (a class B felony). The defendant was sentenced to indeterminate terms of imprisonment of 17½ years to life on the conviction of criminal sale of a controlled substance in the first degree, 8 years to life on the conviction of criminal sale of a controlled substance in the second degree, 8 years to life on the conviction of criminal possession of a controlled substance in the second degree, and 5 to 15 years on each conviction of criminal sale of a controlled substance in the third degree. The sentence on the conviction of criminal sale of a controlled substance in the first degree was to run concurrently with the sentences on the remaining convictions under Indictment No. 04–594, and consecutively to the sentence under Indictment No. 04–536. This Court...