People v. Vecchio

• Decision Date: 16 September 1987
• Citation: 139 Misc.2d 165,526 N.Y.S.2d 698
• Parties: The PEOPLE of the State of New York v. Eric VECCHIO, Defendant.
• Court: New York Supreme Court

Page 698

526 N.Y.S.2d 698

139 Misc.2d 165

The PEOPLE of the State of New York v. Eric VECCHIO, Defendant.

Supreme Court, Criminal Term,

Queens County, Part L5.

Sept. 16, 1987.

Gerald DiChiara, New York City, for defendant.

John J. Santucci, Dist. Atty. for Queens County by Donald Nowve, Kew Gardens, for the People.

OPINION OF THE COURT

WILLIAM D. FRIEDMANN, Judge.

Defendant Eric Vecchio's motion places in prospective whether his satisfactory "second chance" experience, as a full-time participant in a residential drug rehabilitation program, designed to return addicts (ex) or substance abusers to society, constitutes such a "compelling factor, consideration or circumstance", under CPL § 210.20 and § 210.40, as to warrant dismissal of the two top counts of the indictment (Criminal Sale Of A Controlled Substance In The Second Degree, (PL § 220.41, A-II Felony); Criminal Possession Of A Controlled Substance In The Third Degree (PL § 220.16, B Felony)), which counts require mandatory minimums of incarceration upon conviction.

RELEVANT FACTS

The People contend that the moving defendant, a 17-year old with no prior criminal record, assisted a co-defendant (Michael Ortiz) in the sale of 7/8ths of an ounce of cocaine to an undercover police purchaser. Defendant was then a drug user with a dependency problem.

THE PRESENTENCE EVALUATION

A presentence evaluation of this defendant by the Department of Probation indicates in part that he is "presently a resident of an upstate drug program ... apparently raised by interested and caring parents ... began abusing drugs at approximately the age of 13 ... apparently unable to come to terms with his abuse problems until his instant arrest ... voluntarily committed himself to the Renaissance Project on January 8, 1987 ... he no longer denies that he has a problem and is apparently taking some action to deal with his drug abuse problem".

PLEA NEGOTIATIONS

Faced with the spectre of a mandatory minimum sentence of three years to life for the top count of the indictment (Criminal Sale Of A Controlled Substance In The Second Degree--A-II Felony) with no leeway for the consideration of mitigating factors, which did not fit the characteristics of the crime involved or the defendant Eric Vecchio, this Court, defense counsel and the district attorney's office have conducted plea discussions over the past eight months. During this time, the defendant has been a full-time participant in a residential drug program--"The Renaissance Project"--supported by the New York State Division of Substance Abuse Services. These conferences sought to arrive at an agreement which would circumvent the harsh mandatory minimum sentence of three years to life. The district attorney's office initially offered to dismiss the top A-II felony count upon the defendant being willing to plead guilty to a B Felony, which required an indeterminant jail sentence of one to three years. Defense counsel and this Court urged the appropriateness of a probationary sentence conditioned upon the defendant's successful completi of the two year in-patient residential program with concurrent and supervisory follow-up by the Department of Probation. Subsequently, the district attorney's office tentatively agreed with this desired probationary disposition, conditioned, however, upon the acceptance by the co-defendant (Michael Ortiz) of a plea of guilty and the Court's imposition of a significant term of incarceration. It is to be noted that defendant Vecchio has no control over any disposition of charges relating to his co-defendant.

COMPETING SOCIAL VALUES

Any society's legal system has the ultimate responsibility of providing a code of activity for human interaction. Hopefully, the social values current in a particular democratic society will be reflected in its law through the involvement of societal representatives such as legislators, judges and others.

Sometimes a society's value trends appear to be in sharp collision, one with another. Such a confrontation can occur when a criminal court is required to implement mandatory sentencing schemes devised by a legislature in response to the concerns and passions of the day.

Traditionally, under our system of justice, a sentencing court, following any guilty plea or conviction, has a substantial degree of latitude in determining the severity or leniency of a sentence. This discretionary latitude, however, under mandatory sentencing scheme, limited or gravely restricted by legislation which imposes non-flexible minimums, as to a particular offense, does not enable a sentencing court to find "mitigating circumstances" based upon the characteristics of the crime and/or the criminal. This result, therefore, runs contrary to most concepts of judicial fair play, which rests upon the premise that the punishment for any offense should fit the nature of the crime and the individual criminal perpetrator involved.

The effect of the 1973 Rockefeller Drug Laws was largely directed at divesting the judiciary of discretion in the disposition of indictments and imposition of mandatory sentences in drug offenses (Signorelli, A Judicial Analysis And Critique Of The New Drug And Sentence Laws, 46 NYS Bar Journal 9 [1974]; 60 Cornell Law Review, 638, 639).

Despite widespread criticism, these mandatory drug sentencing laws have repeatedly been held constitutional ( People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287; People v. Arroyave, 63 A.D.2d 127, 407 N.Y.S.2d 15; People v. Jones, 39 N.Y.2d 694, 385 N.Y.S.2d 525, 350 N.E.2d 913; People v. Barton, 51 A.D.2d 1044, 381 N.Y.S.2d 329; People v. Johnson, 53 A.D.2d 777, 384 N.Y.S.2d 551; People v. Merriman, 53 A.D.2d 633, 384 N.Y.S.2d 477).

It has been recognized that these mandatory sentence provisions deprive judges and correctional authorities of the ability to base their judgments on the seriousness of Various courts both at the trial and appeals levels have echoed concern over the rigid approach concerning sentencing. Judge Ernest Signorelli of the Suffolk County Court likens the law to a strait jacket (Signorelli, supra, pg 18).

the violations and the particular characteristics and potential for rehabilitation of the offender (President's Commission On Law Enforcement And Administration Of Justice, The Challenge Of Crime In A Free Society, Task Force Report; Narcotics and Drug Abuse, 11 [1967] ).

The Appellate Division, Second Department, in People v. Castillo, 61 A.D.2d 1034, 403 N.Y.S.2d 107 has expressed the need for legislative reform with respect to mandatory sentences. The Appellate Division went so far as to indicate they would modify the sentence there in the interest of justice.

As a safeguard against this proscription for restriction of sentencing discretion and acting as a safety valve or net is a court's overriding discretionary power to prevent injustice by dismissing in a particular case an indictment or parts thereof "in furtherance of justice", when one or more compelling factors, considerations or circumstances are present (codified in CPL § 210.20[1][i] and § 210.40[1] ). ( People v. Mitchell, 99 A.D.2d 609, 472 N.Y.S.2d 166; People v. Kidd, 76 A.D.2d 665, 431 N.Y.S.2d 542; People v. Ramos, 33 A.D.2d 344, 308 N.Y.S.2d 195; People v. Weaver, 112 A.D.2d 782, 492 N.Y.S.2d 280.)

DISMISSAL IN THE INTEREST OF JUSTICE

As aforesaid, CPL § 210.20[1] and § 210.40[1] permit a court to dismiss an indictment where, in the opinion of the court, there exists "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution ... would constitute ... injustice". Dismissal of an indictment in the furtherance of justice is discretionary with the court and must rest upon a "sensitive balancing" of the interests of the individual and the state ( People v. Kwok Ming Chan, 45 A.D.2d 613, 360 N.Y.S.2d 425 [1st Dept.1974]; People v. Clayton, 41 A.D.2d 204, 208, 342 N.Y.S.2d 106 [2d Dept.1973] ).

The Court of Appeals observed in People v. Tyler, 46 N.Y.2d 264, 266-267, 413 N.Y.S.2d 302, 385 N.E.2d 1231 (1978) that "a motion for dismissal under CPL § 210.40 is not made in a vacuum, isolated from all else; rather, a ruling thereon is based upon the 'totality of all the circumstances in (the) particular case' " ( see, People v. Collier, 85 Misc.2d 529, 566, 376 N.Y.S.2d 954 [Sup.Ct. NY County, McQuillan, J., 1975] ).

Even though CPL § 210.40[1] sets forth ten separate criteria or determinants for consideration and CPL § 210.40[2] indicates that the court's dismissal reasoning must be set upon the court record, there is no requirement that all statutory criteria or determinants need not be covered in each and every instance. The Court of Appeals has stated that it is not mandatory that "each of the decalogue of possible determinants which make up paragraphs [a] through [j] of CPL § 210.40[1] be spelled out in so many words," so long as "the ultimate reasons given for the dismissal are both real and compelling" ( People v. Rickert, 58 N.Y.2d 122, 128, 459 N.Y.S.2d 734, 446 N.E.2d 419 [1983] ).

The legislature in codifying previous common law dismissal concepts and precedents into CPL § 210.40 did not carve out any exceptions to its applicability, i.e., such as, in the case where a legislatively mandated sentencing scheme would be affected, etc. The legislature did not create any exclusive restrictions when it adopted mandatory sentencing provisions with respect to a specific drug related crime as involved herein.

THE SENTENCING OBJECTIVE OF NON-INCARCERATION REHABILITATION

AS A COMPELLING FACTOR UNDER CPL 210.40[1]

Generally speaking, nearly every sentence passed on a criminal offender is directed towards achieving one or more of four basic ends (Deterrence, Separation, Rehabilitation and Retribution).

These sentencing purposes are intended to subject the offender to some form of suffering or penalty, depriving him of...