People v. Terrell

• Decision Date: 02 May 1985
• Parties: The PEOPLE of the State of New York, Appellant, v. Anthony TERRELL, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 660

488 N.Y.S.2d 660

111 A.D.2d 1

The PEOPLE of the State of New York, Appellant, v. Anthony TERRELL, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

May 2, 1985.

V. Kemanis, New York City, for appellant.

D.P. Greenberg, New York City, for defendant-respondent.

Before MURPHY, P.J., and ROSS, LYNCH and MILONAS, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County, rendered on July 5, 1983, convicting defendant, following a jury trial, of two counts of criminal sale of a controlled substance in the first degree and sentencing him to concurrent prison terms of from three years to life, is modified on the law to the extent of reversing the sentence and remanding the matter for re-sentence, and otherwise affirmed.

On April 22, 1983, the defendant was convicted, following a jury trial, of two counts of criminal sale of a controlled substance in the first degree arising out of two separate slightly less than two ounce sales of cocaine to an undercover officer. After two earlier trials held in connection with this matter had resulted in mistrials, the People had offered the defendant a sentence of one year to life imprisonment, with an agreed-upon re-sentencing of one to three years, in exchange for his plea of guilty to the Class A-III felony of criminal sale of a controlled substance in the third degree. The defendant refused the plea bargain, and the third trial ensued. At the sentencing on July 5, 1983, the prosecution requested that the court impose a sentence within the range of from fifteen years to life up to twenty-five years to life, as authorized by Penal Law 70.00(3)(a)(i) for the Class A-I felonies of which the defendant had been convicted. The defendant maintained that in view of his minor criminal record, the nature of the offense and the great disparity between the plea offer and the mandatory sentence, the statutory sentence would be unconstitutional as applied to him. The trial court agreed with this contention and sentenced the defendant to concurrent prison terms of from three years to life. The instant appeal was brought by the People to challenge the legality of the sentence.

The crimes at issue herein were committed prior to September 1, 1979, the effective date of the amendment which increased from one to two ounces the amount of drugs necessary for the Class A-I felony of criminal sale of a controlled substance in the first degree. The court recognized that the defendant was subject to the old sentencing scheme and also acknowledged that its sentencing decision was not supportable by retroactive application of the narcotics laws revisions redefining Class A-I felonies. (People v. Festo, 96 A.D.2d 765, 463 N.Y.S.2d 444, aff'd 60 N.Y.2d 809, 469 N.Y.S.2d 699, 457 N.E.2d 806). Instead, the court concluded that the present situation constituted one of those "rare cases" referred to by the Court of Appeals in People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. den. 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287, in which the narcotics sentencing statutes, while otherwise constitutionally valid, might be found to have been unconstitutionally applied. However, since the Broadie opinion was issued, it has become evident that in order to avoid inclusion within the old sentencing provisions for offenses committed before ...