DECISION and ORDER HISTORY: The Defendant was arrested on June 29, 2018 on a charge of Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law 220.06) and Tampering with Physical Evidence (Penal Law 215.40). The gravamen of the charges and subsequent indictment allege that the Defendant possessed three tinfoil packets of cocaine weighing approximately 846 milligrams. The Tampering charge stems from the allegation that the Defendant tried to dispose of narcotics by throwing them out of his moving vehicle. At the time of arraignment in this Court, bail was set1 and the Defendant was remanded to a Pre-Trial Release program with drug and alcohol conditions and a 6pm curfew. On December 19, 2018, the Defendant was indicted and pled guilty to Criminal Possession of a Controlled Substance in the Fifth Degree in satisfaction of the Tampering charge with a waiver of appeal. The parties entered into an open plea on December 19th, 2019 leaving it to the Court’s discretion to determine the appropriate sentence in this case. Sentencing was adjourned from time to time to monitor the Defendant’s progress on his Pre-Trial Release. This matter now comes before the Court for sentencing of this Defendant. The People are recommending the maximum sentence allowed by law on a Class D felony drug charge, which is two to four years in prison. The Defendant, by way of oral argument, asks the Court to sentence the Defendant to a term of probation rather than incarceration. The defense argues for a probationary sentence based on a multitude of mitigating factors under CPL §70.70(3)c. The Defense concedes that the Defendant must be sentenced as a second felony offender. Although his last conviction was in 2006, due to his incarceration for a period of time his release from prison is within ten years of the new arrest qualifying this Defendant for classification as a second felony offender. From the time line of 2006 and the Defendant’s subsequent release, he was arrest free until the instant case where he pled guilty to possessing three packets of cocaine with an aggregate weight of approximately 846 milligrams. The defense argues that there are significant mitigating factors in this case. For example, the Defendant’s past convictions, are between 1980 and 2006 and, since 2006, the Defendant has been arrest-free up until the present charge. Furthermore, the Defendant has no violent history, and has performed flawlessly over an approximate 18-month period on the Pre-Trial Release program. The pre-trial release notes that the Defendant is the full-time care-giver and home provider to his elderly mother who suffered from a stroke. The Defendant is also employed and supports himself by doing part-time construction jobs. He has also reported faithfully and has passed all of his toxicology screenings for the past 18 months. The People argue that a prison sentence is appropriate because of the Defendant’s prior lengthy criminal history before 2006. LEGAL ARGUMENT Section 70.70 of the Penal Law provides the mandatory sentencing parameters for a felony drug offender other than a Class A felony, while Section 70.70(3)(c) provides the new sentencing parameters for imprisonment for a second felony drug offender. Section 70.70(3)(c) provides: “Probation. Notwithstanding any other provision of law, the court may sentence a second felony drug offender convicted of a Class B felony to lifetime probation in accordance with the provisions of Section 65.00 of this chapter and may sentence a second felony drug offender convicted of a Class C, Class D, or Class E felony to probation in accordance with the provisions of Section 65.00 of this chapter.”2 This section clearly authorizes the Court to impose a maximum five-year probationary sentence notwithstanding that the Defendant is a second felony offender having been previously convicted of a drug offense within the last ten years. In determining appropriate sentencing, the Court must consider the overall legislative reforms with respect to drug cases. In 2009, in response to what was seen as Draconian legislation, also known as “Rockefeller Drug Laws,” the New York State Legislature revised provisions of the Penal Law and Criminal Procedure Law. For instance, the Legislature eliminated mandatory minimum prison sentences for first-time offenders and reduced mandatory minimums for second-time B felony drug convictions. This legislation also expanded opportunities for those drug offenders who were sentenced to prison to benefit from shock incarceration and Willard. Additionally, the 2009 legislation expanded Drug Court3 opportunities by enacting judicial diversion where the Prosecution is opposing admission into Drug Court. Furthermore, in 2017 new sealing requirements were enacted wherein, under certain circumstances, someone convicted of misdemeanor and felony drug offenses may have their record sealed. This is encompassed pursuant to 160.58 of the Criminal Procedure Law. It was the clear legislative intent that someone convicted of a drug charge should be afforded an opportunity to “start fresh” without a criminal record. This legislation has clearly expanded rehabilitative measures for those who were worthy and who may have suffered from addiction. The Legislature determined that mandatory prison sentences for even second-time drug offenders was not responsive to the needs of society. It is for this reason that they enacted Section 70.70(3)(c) which simply gives the court discretion to deviate from what might otherwise have been a mandatory prison sentence when circumstances merit the deviation. In the instant case, the Defendant was arrested for Criminal Possession of a Controlled Substance in the Fifth Degree as a top count. There was no indication that he was trafficking in drugs or, that it was his intent to sell. It is also noted that the weight of the drugs in this case is 846 milligrams when the legal threshold for a Class D felony is 500 milligrams. Essentially, if he was in possession of two bags rather than three, this would likely have been under 500 milligrams constituting a misdemeanor. This Court is mindful of and concerned with the Defendant’s criminal history, and recognizes that the Court must factor that into sentencing. A Felony probationary sentence, while a tremendous benefit to the accused, is still a significant sentence and allows the Court further input in this case should the Defendant fail on probation. A probationary sentence is not a “get out of jail free” card, since if the Defendant violates during the 5 year term of probation he could be sentenced to state prison and the maximum of 2 to 4 years as now requested by the People. The Court must also consider that under Section 70.70(3)(c) a second felony drug offender convicted of even a higher count would still be eligible for probation. For instance, a person with a prior drug offense within ten years who is thereafter convicted of a charge of possession of intent to sell or even of a charge of criminal sale of a controlled substance would not be required to receive a mandatory prison sentence under the new law. This reaffirms the clear legislative intent to alleviate mandatory drug sentencing, and allow the Court discretion to deviate where appropriate, so that the sentence serves well the needs of the individual defendant and the needs of the greater community and public safety4. The Defendant has performed flawlessly on pre-trial release since July 3rd, 2018 and has shown that he is attempting rehabilitation from his prior drug criminal conduct. The Defendant is gainfully employed, and is the primary care provider, both financially and physically, for his invalid mother. It is without caveat that sentencing this Defendant to a period of probation rather than incarceration would afford the Defendant freedom to care for his ailing mother while being watched and monitored throughout the probationary period. Therefore a sentence of probation under these circumstances does not ignore the Defendant’s prior criminal history but rather allows consideration for the Defendant’s rehabilitation efforts, his compliance with pre-trial release restrictions, the benefits of the drug sentencing reforms to this Defendant and society as a whole and takes into consideration the new laws and legislative efforts to allow for better rehabilitation of drug offenders when the facts warrant it. Based on the foregoing, it is ORDERED that this Defendant be sentenced to a probationary period of five (5) years with drug, alcohol and mental health conditions. This shall Constitute the Decision and Order of this Court. Dated: December 30, 2019 Monticello, New York
