People v. Kordish

• Decision Date: 15 June 2016
• Parties: The PEOPLE, etc., respondent, v. Robert KORDISH, appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 981
33 N.Y.S.3d 434
2016 N.Y. Slip Op. 04733

The PEOPLE, etc., respondent,
v.
Robert KORDISH, appellant.

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

June 15, 2016.

33 N.Y.S.3d 435

Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Merri Lasky, and John F. McGoldrick of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN and BETSY BARROS, JJ.

140 A.D.3d 981

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered June 17, 1992, convicting him of criminal sale of a controlled substance in the third degree, after a nonjury trial, and sentencing him to an indeterminate term of imprisonment of 8 to 16 years.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the indeterminate term of imprisonment from 8 to 16 years to an indeterminate term of imprisonment of 5 to 10 years; as so modified, the judgment is affirmed.

33 N.Y.S.3d 436

In 1992, the defendant, then 22 years old, was charged with criminal sale of a controlled substance in the third degree after selling 21 grains of cocaine, weighing 12.68 milligrams, to an undercover officer for $60 in a street transaction. At that time, the defendant was on probation for a prior conviction of the same offense.

The defendant failed to appear in court on the scheduled trial date. As a result, he was tried and convicted, in absentia, after a nonjury trial. In June 1992, the defendant was sentenced, in absentia, as a second felony offender, to an indeterminate term of imprisonment of 8 to 16 years.

In 2009, the defendant was arrested in Florida on unrelated

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charges, and was incarcerated there until 2012. The defendant was returned to New York, and on May 21, 2012, the defendant appeared before the Supreme Court, Queens County, and the court executed the sentence imposed in 1992.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to disprove the defendant's claim that he was acting as an agent of the undercover officer in the narcotics transaction (see People v. Herring, 83 N.Y.2d 780, 783, 610 N.Y.S.2d 949, 632 N.E.2d 1272 ; People v. Greene, 303 A.D.2d 521, 756 N.Y.S.2d 447 ; People v. Clifford, 288 A.D.2d 391, 733 N.Y.S.2d 625 ; People v. Leybovich, 201 A.D.2d 670, 670–671, 607 N.Y.S.2d 982 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5 ]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's contention that he was denied his right to a public trial (see U.S. Const. 6th Amend; Civil Rights Law § 12 ; Judiciary Law § 4 ; People v. Martinez, 82 N.Y.2d 436, 441, 604 N.Y.S.2d 932, 624 N.E.2d 1027 ) when the trial court closed the courtroom during the testimony of two undercover officers (see People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 ), is unpreserved for appellate review (CPL 470.05[2] ) and, in any event, without merit (see People v. Echevarria, 21 N.Y.3d 1, 13–14, 966 N.Y.S.2d 747, 989 N.E.2d 9 ; People v. Nazario, 4 N.Y.3d 70, 74, 790 N.Y.S.2d 628, 823 N.E.2d 1274 ; People v. Ramos, 90 N.Y.2d 490, 498–499, 662 N.Y.S.2d 739, 685 N.E.2d 492 ; People v. Martinez, 82 N.Y.2d 436, 442, 604 N.Y.S.2d 932, 624 N.E.2d 1027 ; People v. Thomas, 52 A.D.3d 626, 860 N.Y.S.2d 562 ; People v. Jacobs, 251 A.D.2d 427, 674 N.Y.S.2d 119 ; People v. Martinez, 248 A.D.2d 730, 670 N.Y.S.2d 340 ; cf. People v. Parrish, 224 A.D.2d 553, 637 N.Y.S.2d 802 ).

“An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range” (People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 ; see CPL 470.15[6][b] ; People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228 ). Our sentencing review power “may be exercised, if the interest of justice warrants, without deference to the sentencing court ” (People

33 N.Y.S.3d 437

v. Delgado, 80 N.Y.2d at 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 [emphasis added] ). In considering whether a sentence is unduly harsh or severe under the circumstances, we exercise our discretion giving consideration to, “among other things, the

140 A.D.3d 983

crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation, and deterrence” (people v. farrar, 52 N.y.2d 302, 305,...