People v. Kordish

140 A.D.3d 981, 33 N.Y.S.3d 434

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 2016
• Docket: 1992-04914
• Status: Published

Opinions

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.

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 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 NY2d 620 [1983]), 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 NY2d 780, 783 [1994]; People v Greene, 303 AD2d 521 [2003]; People v Clifford, 288 AD2d 391 [2001]; People v Leybovich, 201 AD2d 670, 670-671 [1994]). 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 NY3d 342 [2007]), 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 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490 [1987]). 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 NY3d 633 [2006]).

The defendant’s contention that he was denied his right to a public trial (see US Const 6th Amend; Civil Rights Law § 12; Judiciary Law § 4; People v Martinez, 82 NY2d 436, 441 [1993]) when the trial court closed the courtroom during the testimony of two undercover officers (see People v Hinton, 31 NY2d 71 [1972]), is unpreserved for appellate review (CPL 470.05 [2]) and, in any event, without merit (see People v Echevarria, 21 NY3d 1, 13-14 [2013]; People v Nazario, 4 NY3d 70, 74 [2005]; People v Ramos, 90 NY2d 490, 498-499 [1997]; People v Martinez, 82 NY2d 436, 442 [1993]; People v Thomas, 52 AD3d 626 [2008]; People v Jacobs, 251 AD2d 427 [1998]; People v Martinez, 248 AD2d 730 [1998]; cf. People v Parrish, 224 AD2d 553 [1996]).

“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 NY2d 780, 783 [1992]; see CPL 470.15 [6] [b]; People v Thompson, 60 NY2d 513, 519 [1983]). Our sentencing review power “may be exercised, if the interest of justice warrants, without deference to the sentencing court” (People v Delgado, 80 NY2d at 783 [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 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 NY2d 302, 305 [1981]; see People v Suitte, 90 AD2d 80, 83-84 [1982]).

Here, taking into account the circumstances of the defendant’s nonviolent felony drug conviction, which involved the sale of a relatively small amount of cocaine for the sum of $60, the defendant’s prior nonviolent felony drug offense, the probation department’s finding that the then 22-year-old defendant had a $100 per day drug addiction at the time, and that the People recommended a lower sentence than what was imposed, we find that, even considering that the defendant absconded, the sentence of 8 to 16 years imprisonment was unduly harsh and severe.

Accordingly, under these circumstances, we modify the judgment by reducing the sentence imposed to the extent indicated.

We note that our dissenting colleague points out that in one of the three cases reviewed by the Court of Appeals in People v Delgado (80 NY2d 780 [1992]), the Court of Appeals upheld a judgment sentencing the defendant to a term of 8 to 16 years of imprisonment for criminal possession of a controlled substance in the third degree. However, in Delgado the Court of Appeals did not consider the question of whether any particular sentence was unduly harsh or severe. Indeed, “[i]t is well settled that any question as to whether an otherwise lawful sentence is harsh or severe in a particular case involves a type of discretion not reviewable by the Court of Appeals” (People v Thompson, 60 NY2d 513, 521 [1983]). Rather, the Court of Appeals clarified that we, as an intermediate appellate court, have the authority to modify sentences in the interest of justice, without deference to the sentencing court (see People v Delgado, 80 NY2d at 783). As noted in People v Suitte, this power allows the Appellate Division “to rectify sentencing disparities, reach extraordinary situations, and effectively set sentencing policy through the development of sentencing criteria” (People v Suitte, 90 AD2d at 86).

Hall, Cohen and Bar-ros, JJ., concur.