People v. Junco

• Decision Date: 08 January 1974
• Citation: 351 N.Y.S.2d 1,43 A.D.2d 266
• Parties: The PEOPLE of the State of New York, Respondent, v. Gilbert Miguel JUNCO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1

351 N.Y.S.2d 1

43 A.D.2d 266

The PEOPLE of the State of New York, Respondent, v. Gilbert Miguel JUNCO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Jan. 8, 1974.

Horace P. Rowley, III, New York City, for defendant-appellant.

T. James Bryan, New York City, of counsel (Michael R. Juviler, New York City, with him on the brief; Frank S. Hogan, Dist. Atty.), for respondent.

Before McGIVERN, P.J., and NUNEZ, MURPHY, STEUER and TILZER, JJ.

PER CURIAM.

James Walls and Gilbert Miguel Junco were convicted after trial, of Criminally Selling a Dangerous Drug in the First Degree (Penal Law § 220.44, repealed by L.1973, ch. 276, § 18), a Class A Felony, and related lesser crimes. The conviction grew out of the sale of 2 kilos of opium base, 1/8 of a kilo of heroin and 1/2 of a kilo of cocaine to undercover agents of the Narcotics Division of the New York City Police Department and the Federal Bureau of Narcotics and Dangerous Drugs, for the purchase price of $54,000.

While Walls was immediately apprehended on the street where the sale took place, Junco and the third defendant, Anthony Ruggiero, attempted to escape in an automobile, which resulted in a pursuit through the Lincoln Tunnel, during which a shotgun was apparently fired by Ruggiero. It is to be noted that Ruggiero did not proceed to trial, having entered a plea of guilty to Criminally Selling a Dangerous Drug in the Second Degree (Penal Law § 220.40, repealed by L.1973, ch. 276, § 18), a Class B Felony. Ruggiero, who was subject to a prison term not to exceed 25 years (Penal Law § 70.00(2)(b)), was in fact sentenced to a term of imprisonment of not less than one (Penal Law § 70.00(3)), nor more than 15 years. The Class A Felony for which Junco and Walls were convicted after trial, however, carried a minimum term of not less than 15 nor more than 25 years (Penal Law § 70.00(3)(a)), with a maximum of life imprisonment (Penal Law § 70.00(2)(a)), Walls was sentenced for that crime to a term of 15 years to life, while Junco was sentenced to a term of 20 years to life.

The entire Court is in agreement that the proof of guilt was established beyond any reasonable doubt and that the conviction should be sustained. Nor is there disagreement that the crimes charged were of the most serious nature and required severe punishment. The dissent's characterization of the crimes as involving 'heinous and substantial illicit drug trafficking,' accords with the sentiments expressed by the trial court upon sentencing, as follows:

'Nothing is more destructive to a community's well being than widespread drug abuse. More young people in our city die from drug abuse than from any other single cause. Hard drugs are indeed a cancer to our community. Society has mounted a massive effort to blot out this destructive evil.' (Sentencing Minutes, p. 38.)

Yet, the dissent is of the view that defendant Junco was treated unfairly, not because the sentence imposed upon him was in and of itself excessive, but because the codefendants received lesser terms of imprisonment. Accordingly, the dissent concludes that 'simple justice cries out as a bare minimum that Junco's sentence be no greater than Walls'.'

Generally, a determination as to what constitutes an appropriate sentence is a matter resting within the sound discretion of the trial court and the sentence imposed by that Court should not be reduced on appeal unless there was a clear abuse of discretion (see People v. Dittmar, 41 A.D.2d 788, 341 N.Y.S.2d 50; People v. Caputo, 13 A.D.2d 861, 214 N.Y.S.2d 803). And within its discretion the trial court may 'vary the sentences of (a) defendant and his codefendant depending upon the differing circumstances involved . ...' (People v. Turley, 38 A.D.2d 769, 327 N.Y.S.2d 957). Such rules are a recognition of the fact that a trial court is in the most advantageous position to determine the proper sentence, having observed the defendant and being intimately familiar with the facts and circumstances underlying the conviction (see Appellate Review of Sentences, Hon. Leo Brewster, 40 F.R.D. 79). It is apparent that the trial court herein acted well within the bounds of discretion, and imposed varying sentences on each of the defendants only after full consideration of the facts as proven at the trial and of other relevant circumstances properly to be taken into account in arriving at a fair sentence. Indeed, the dissent does not dispute any of the reasons stated by the trial court for the sentences imposed.

With respect to Ruggiero, who is not a party to the present appeal, it is to be noted that on a prior appeal this Court rejected the contention that the judgment imposed upon that defendant was excessive. It does not necessarily follow, however, from that affirmance that any different result would have been reached had Ruggiero's sentence involved the imposition of a greater minimum sentence. This Court's jurisdiction to review a sentence does not include the power to increase. Nevertheless, the sentence which was imposed upon Ruggiero was not only based upon a plea to a lesser crime, carrying different penalties, but was predicated upon the fact that it appeared that Ruggiero suffered from glaucoma causing severely impaired vision. Hence, the Court attempted to fix a flexible term of imprisonment to meet that unique problem.

It also appears that there was ample basis upon which to differentiate between Junco and Walls. Apart from the proof that Junco participated in the...