People v. Overton

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Decision Date: 17 May 2011
• Docket Number: 2009-11354,Ind. No. 10733/04
• Citation: People v. Overton, 2009-11354, Ind. No. 10733/04 (N.Y. App. Div. May 17, 2011)
• Parties: The People, etc., respondent, v. Sean Overton, appellant.

2011 NY Slip Op 04278

The People, etc., respondent,

v. Sean Overton, appellant.

2009-11354

Ind. No. 10733/04

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

Decided on May 17, 2011

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

PLUMMER E. LOTT

SHERI S. ROMAN, JJ.

APPEAL by the defendant from an order of Supreme Court (Stephen A. Knopf, J.), dated December 1, 2009, and entered in Queens County, which, after a hearing, specified and informed him that the court would impose concurrent determinate terms of imprisonment of seven years, to be followed by a three-year period of postrelease supervision in the event of a resentence pursuant to CPL 440.46. Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel), for respondent.

OPINION & ORDER

RIVERA, J.P. In this case, we consider whether the defendant's release from incarceration to parole supervision affects his eligibility for resentencing under the 2009 Drug Law Reform Act (L 2009, ch 56, pt AAA, § 9) (hereinafter the 2009 DLRA), as codified in CPL 440.46, and renders the instant appeal academic. For the reasons that follow, upon applying the criteria for eligibility under the 2009 DLRA, we determine that the instant appeal is not academic. On the merits, we conclude that a reduction of the resentence proposed by the Supreme Court is not warranted.

I. Factual and Procedural Background

On five separate occasions in March and April 2004, the defendant sold cocaine to undercover police officers. For these acts, the defendant was charged, under Queens County Indictment No. 10733/04, with five counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]), a class B felony.

On April 18, 2005, the defendant pleaded guilty to all five counts charged in the indictment. On May 11, 2005, the defendant was sentenced to concurrent determinate terms of imprisonment of 3½ years, to be followed by a 3-year period of postrelease supervision. In this regard, the Supreme Court found that the defendant should benefit from the provisions of the Drug Law Reform Act of 2004 (L 2004, ch 738) (hereinafter the 2004 DLRA). The People appealed from the sentence, contending that the sentence imposed was illegal. By decision and order dated May 16, 2006, this Court reversed the sentence (see People v Overton, 29 AD3d 826, 827). This Court determined that the 2004 DLRA became effective on January 13, 2005. We stated that "[s]ince the defendant's crimes were committed prior to the effective date of the... sentencing provisions, the sentence imposed upon the defendant pursuant to the 2004 DRLA was invalid as a matter of law, and the defendant must be resentenced under the law in effect at the time he committed the crimes" (id. at 827). Accordingly, this Court remitted thematter to the Supreme Court, Queens County, for resentencing.

On June 12, 2006, the Supreme Court resentenced the defendant to concurrent indeterminate terms of 4½ to 9 years imprisonment. On June 23, 2006, the sentence was apparently amended so as to impose certain mandatory monetary fines.

A. The Defendant's Motion for Resentencing Under the 2009 DLRA

By notice of motion dated October 13, 2009, the defendant moved to be resentenced pursuant to the 2009 DLRA. In support of his motion, the defendant's counsel contended that, based upon the defendant's great strides toward rehabilitating himself and his eligibility for resentencing under the 2009 DLRA, he should be resentenced "toward the low end of the available sentencing range." Counsel indicated that the applicable determinate sentencing range was between 2 and 12 years, with a mandatory postrelease supervision period ranging between 1½ and 3 years. He noted that the defendant's criminal history, which consisted "almost exclusively" of "lower level drug crimes" and his "quite positive" institutional record rendered the defendant "the kind of inmate the Legislature envisioned when it enacted" 2009 DLRA.

B. The People's Opposition to the Defendant's Motion

In opposition, the People asserted that the defendant's motion to be resentenced pursuant to the 2009 DLRA should be denied.

Relying upon the defendant's prior criminal and parole history, the defendant's prison infractions, and the fact that the defendant had been denied parole in 2008, the People asserted that the defendant had been unable to rehabilitate himself after receiving vocational and educational training during his past incarcerations. Thus, they claimed that "substantial justice" dictated that the defendant should serve his original sentence.

The People maintained that the defendant was not one of the individuals the Legislature would find to have been unfairly treated by "the old drug laws." According to the People, resentencing was inappropriate because selling drugs was "the defendant's only source of income for his entire adult life." The People referred to the defendant as "a career drug dealer [who] profits and preys on drug-addicted people." Moreover, the People insisted that the defendant had not rehabilitated himself since his initial incarceration in 1991. The People claimed that the defendant was "in need of close supervision" since he was a "persistent recidivist." The People concluded:

"[W]hen it enacted the revisions to the Rockefeller Laws, the legislature could not have intended to reduce the sentence of an inmate like [the] defendant, who is a career drug dealer with a history of probation and parole violations and who does not sell drugs to support a drug habit. In addition, [the] defendant is a poor candidate for re-sentencing since he has been given three prior opportunities to become a productive member of society and remain at liberty but he continued to repeat his prior illegal behavior and sell drugs to addicts, demonstrating that not only has he not benefitted from efforts to rehabilitate him while incarcerated, but that he is incapable of living a law-abiding life."

Alternatively, the People claimed that the court should resentence the defendant to a term of 9 years imprisonment, to be followed by 3 years postrelease supervision.

C. The Defendant's Reply

In a reply affirmation dated November 18, 2009, defense counsel argued that the People's claims were contrary to the Legislature's intent in enacting the 2009 DLRA and that the People had ignored the "extremely positive" changes that the defendant had made in his life. Counsel reiterated that the defendant's disciplinary prison record, when considered over the course of 4½ years incarceration, amounted to an average of "about a single ticket per year, far from a dismal overall record."

D. The 2009 DLRA Hearing

On December 1, 2009, the defendant appeared with counsel before the Supreme Court for the 2009 DLRA hearing. At the commencement thereof, the Supreme Court indicated that, pursuant to the DLRA 2009, the applicable sentencing range for a second felony offender, such as the defendant, was a determinate sentence of 2 and 12 years imprisonment and "anywhere between one and a half to three years" postrelease supervision. The Supreme Court stated that it had "come up with the offer to the defendant" whereby it proposed to resentence him to concurrent determinate terms of imprisonment ofseven years, to be followed by a three-year period of postrelease supervision.

Defense counsel asked the Supreme Court to "reconsider the sentence in light of a number of factors." He asserted that the defendant was initially sentenced to "the minimum applicable at the time," which was 3½ years incarceration. The defendant was then resentenced to 4½ to 9 years incarceration. Counsel claimed that the proposed sentence of 7 years imprisonment followed by 3 years of postrelease supervision "exceeds the nine years of the current sentence in supervision." Counsel further argued that the proposed sentence was "too extreme."

In contrast, the People requested that the Supreme Court impose 9 years incarceration to be followed by 3 years postrelease supervision. The People focused on the defendant's disciplinary history, including the fact that he had five disciplinary infractions. The People added that, although the defendant had been involved in programs and job training while incarcerated, "he also did that in his prior incarcerations, but he always ended up reoffending when he was out." The People argued that the fact that the defendant was in an alcohol and substance abuse program was not "terribly significant" because the defendant had "professed a number of times that he doesn't have a drug problem."

The People asserted that "this is [not] a type of defendant [who] the legislature envisioned releasing." The People described the defendant as someone who "doesn't abide by the rules in the prison facility that he is in and... keeps on repeat offending and... keeps on drug dealing." The People added that, while the defendant did not qualify as a "King Pin" in that he sold "small quantities and small amounts" of drugs, he repeatedly committed crimes and was "exactly the type of defendant that the legislature wants to protect drug abusers from." The People insisted that "if any defendant needs supervision when he gets out, it would be this defendant."

In response, defense counsel maintained that there was a "fundamental misunderstanding" in the People's assertion that the defendant had denied a drug addiction. He noted that such argument, "ignores reality that many addicts deny [having a drug addiction]. That's the nature of addiction." Further, counsel asserted that the infractions committed by the defendant were "not specifically violent or horrible." He added that the Supreme Court's proposed resentence did not benefit the defendant because his conditional release date was "currently May, 2010," but that the defendant was "willing to accept an offer for,...