People v. Luzcando

Appellate Division of the Supreme Court of New York

People v. Luzcando

201 A.D.2d 293, 607 N.Y.S.2d 287, 1994 N.Y. App. Div. LEXIS 864

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 3, 1994

StatusPublished

This text of 201 A.D.2d 293 (People v. Luzcando) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Luzcando, 201 A.D.2d 293, 607 N.Y.S.2d 287, 1994 N.Y. App. Div. LEXIS 864 (N.Y. Ct. App. 1994).

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Opinion

Judgment of the Supreme Court of the State of New York, Bronx County (William C. Donnino, J.), rendered on March 27, 1992, convicting defendant of criminal possession of a controlled substance in the second degree (Penal Law § 220.18) and sentencing her to an indeterminate term of imprisonment from five years to life, unanimously modified on the law and facts, and as a matter of discretion, in the interest of justice, pursuant to CPL 470.15 (6) (b) to an indeterminate term of imprisonment from three years to life.

Acting for drug traffickers, appellant swallowed numerous condoms of cocaine to transport back to the United States. On her return, appellant was cut open without anesthesia in an attempt to remove the drugs. Shortly thereafter, appellant was left at the entrance to Saint Barnabas Hospital in the Bronx where the condoms were removed by surgery. Appellant is 45 years old and has had no prior arrests. She is divorced and resides with her ex-husband and their two young children, who are approximately 11 and 12 years old.

A high school graduate, who emigrated from Puerto Rico, appellant has had a history of stable employment in the United States.

Appellant had been suffering from poor physical health as a result of the non-anesthesia "surgery” she endured at the hands of the drug traffickers. As of the time the pre-sentence report was made, appellant had undergone four operations and was still suffering from gastrointestinal problems.

In this case, the sentencing court had no discretion but to impose the original sentence required by the People as a [294]*294condition for their consent to the plea. However, under the circumstances here presented, we find that the sentence imposed should be modified in the interest of justice. Concur— Murphy, P. J., Kupferman, Asch and Nardelli, JJ.

[The unpublished decision and order of this Court entered herein on January 20, 1994, is hereby recalled and vacated.]

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Judgment of the Supreme Court of the State of New York, Bronx County (William C. Donnino, J.), rendered on March 27, 1992, convicting defendant of criminal possession of a controlled substance in the second degree (Penal Law § 220.18) and sentencing her to an indeterminate term of imprisonment from five years to life, unanimously modified on the law and facts, and as a matter of discretion, in the interest of justice, pursuant to CPL 470.15 (6) (b) to an indeterminate term of imprisonment from three years to life.

Acting for drug traffickers, appellant swallowed numerous condoms of cocaine to transport back to the United States. On her return, appellant was cut open without anesthesia in an attempt to remove the drugs. Shortly thereafter, appellant was left at the entrance to Saint Barnabas Hospital in the Bronx where the condoms were removed by surgery. Appellant is 45 years old and has had no prior arrests. She is divorced and resides with her ex-husband and their two young children, who are approximately 11 and 12 years old.

A high school graduate, who emigrated from Puerto Rico, appellant has had a history of stable employment in the United States.

Appellant had been suffering from poor physical health as a result of the non-anesthesia "surgery” she endured at the hands of the drug traffickers. As of the time the pre-sentence report was made, appellant had undergone four operations and was still suffering from gastrointestinal problems.

In this case, the sentencing court had no discretion but to impose the original sentence required by the People as a [294]*294condition for their consent to the plea. However, under the circumstances here presented, we find that the sentence imposed should be modified in the interest of justice. Concur— Murphy, P. J., Kupferman, Asch and Nardelli, JJ.

[The unpublished decision and order of this Court entered herein on January 20, 1994, is hereby recalled and vacated.]

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Bluebook (online)

201 A.D.2d 293, 607 N.Y.S.2d 287, 1994 N.Y. App. Div. LEXIS 864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-luzcando-nyappdiv-1994.

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