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People v. Vaughan

March 24, 2009

THE PEOPLE, ETC., RESPONDENT,
v.
MICHAEL VAUGHAN, APPELLANT.



APPEAL by the defendant from an order of the Supreme Court (Vincent M. Del Giudice, J.), entered October 17, 2006, in Kings County, which denied his motion pursuant to the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23) to (a) vacate a sentence of the same court (Sheldon Greenberg, J.), imposed May 22, 1990, upon his conviction of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree under Indictment No. 4290/89, upon a jury verdict, and assault in the second degree under Indictment No. 3023/90, upon his plea of guilty, sentencing him to indeterminate terms of imprisonment of 15 years to life on the count of criminal possession of a controlled substance in the first degree, sentencing him, as a persistent violent felony offender, to 9 years to life on the count of criminal possession of a weapon in the second degree, and sentencing him, as a persistent violent felony offender, to 6 years to life on the count of assault in the second degree, all terms to run consecutively, and (b) resentence him to a determinate term of imprisonment of 15 years on the count of criminal possession of a controlled substance in the first degree, indeterminate terms of imprisonment of 9 years to life and 6 years to life on the counts of criminal possession of a weapon in the second degree and assault in the second degree, respectively, and a 5-year period of postrelease supervision, with a direction that the determinate term of imprisonment run concurrently with the indeterminate terms of imprisonment.

The opinion of the court was delivered by: Prudenti, P.J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, MARK C. DILLON and RUTH C. BALKIN, JJ.

(Ind. Nos. 4290/89, 3023/90)

OPINION & ORDER

The Drug Law Reform Act of 2004 (L 2004, ch 738; hereinafter the 2004 DLRA) contains provisions substituting determinate sentences for the lengthy indeterminate sentences previously required for drug-related offenses (see L 2004, ch 738, §§ 20, 36), and authorizing individuals serving sentences for class A-I felony drug offenses committed prior to the statute's effective date to apply for resentencing under the newly-enacted sentencing structure (see L 2004, ch 738, § 23). The principal question presented on this appeal is whether the ameliorative provisions of the 2004 DLRA are broad enough to vest a resentencing court with the power to direct that a sentence for a felony drug offense run concurrently with a sentence for a non-drug-related felony, where the sentences were originally ordered to run consecutively.

In 1988 the defendant, Michael Vaughan, was arrested after police officers stopped a livery cab in which he was a passenger and found him to be in possession of 6 ounces of crack cocaine, an automatic handgun loaded with 25 rounds of ammunition, and a clip containing another 26 rounds of ammunition. During his arrest, the defendant struggled with the police officers, attempted to draw the handgun from his waistband, and repeatedly threatened to kill the officers.

After a jury trial, the defendant was convicted of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree. During his trial, the defendant attempted to escape from custody, and in the process slashed the face of a corrections officer with a razor blade. In connection with this incident, the defendant pleaded guilty to assault in the second degree.

The Supreme Court sentenced the defendant to an indeterminate prison term of 15 years to life on the drug possession count and, as a persistent violent felony offender, to 9 years to life on the weapon possession count and 6 years to life on the assault count. The court directed that the three prison terms run consecutively, resulting in an aggregate prison term of 30 years to life.

In 2006 the defendant moved for resentencing pursuant to the 2004 DLRA. The defendant requested a sentence on the drug possession count consisting of a determinate prison term of 15 years plus a 5-year period of postrelease supervision. The defendant asserted, in his motion papers, that if the three prison terms were still required to run consecutively, the substitution of a determinate prison term of 15 years for the original indeterminate prison term of 15 years to life would not alter his aggregate prison term, which would still be 30 years to life. He thus contended that resentencing would be ineffectual if the sentence were not also altered to direct that the determinate term run concurrently with the indeterminate terms. Accordingly, the defendant moved to vacate the original sentence and resentence him to a determinate prison term of 15 years, indeterminate prison terms of 9 years to life and 6 years to life, and a 5-year period of postrelease supervision, with a direction that the determinate term of imprisonment run concurrently with the indeterminate terms of imprisonment. The People opposed the motion, contending, among other things, that the court lacked the authority to modify the defendant's sentence by directing that the prison terms run concurrently. The Supreme Court denied the defendant's motion without a hearing, and the defendant appeals.

The Criminal Procedure Law provides that: "Except as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended, or interrupted once the term or period of the sentence has commenced" (CPL 430.10). While the 2004 DLRA does, in fact, specifically authorize the court to change a sentence, the scope of that authorization is limited. The statute only permits a person convicted of a Class A-I drug felony who is serving an indeterminate prison term with a minimum period of at least 15 years to be resentenced "in accordance with section 70.71 of the penal law," which provides for the imposition of determinate sentences for Class A-I drug felonies (L 2004, ch 738, § 23).

The 2004 DLRA is not designed to grant the resentencing court plenary power over the defendant's sentence, including the determination as to how the sentence should be served in relation to sentences imposed for other, violent, non-drug-related felonies. There is no indication that the Legislature intended that the issue of concurrent versus consecutive sentences should be reopened when a defendant is resentenced in conformance with the new sentencing structure adopted in the 2004 DLRA. The purpose of the resentencing provision of the 2004 DLRA is simply to retroactively reduce the level of punishment for certain drug offenses. A decision that a sentence for such an offense should run consecutively or concurrently in relation to sentences for other offenses is unrelated to the ameliorative purposes of the 2004 DLRA. Thus, the legislative shift from indeterminate sentences to less harsh determinate sentences for drug offenses does not provide an occasion to revisit a determination as to whether such a sentence should run consecutively or concurrently with respect to other sentences.

This reasoning is supported by our decision in People v Romain (288 AD2d 242). In that case, the defendant was convicted of two counts of murder in the first degree and one count of murder in the second degree, and was sentenced to consecutive prison terms of 25 years to life on the counts of murder in the first degree, which were to run concurrently with another term of 25 years to life, imposed on the count of murder in the second degree. The defendant moved, pursuant to CPL 440.20, to vacate the consecutive sentences imposed on the counts of murder in the first degree. The Supreme Court granted the motion, and modified those two sentences to run concurrently with each other, but also directed that those two sentences run consecutively to the sentence imposed on the count of murder in the second degree. Citing CPL 430.10, this Court ...


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