PEOPLE v. ACEVEDO (1999)

On December 23, 1996, the Dutchess County Drug Task Force executed a search warrant at an apartment in Poughkeepsie, New York. The defendant and two other individuals who were in the apartment were arrested and a quantity of crack cocaine and two firearms were seized.   The defendant was ultimately convicted, after a jury trial, of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree, and two counts of criminal possession of a weapon in the third degree.   He was sentenced as a second felony offender to an indeterminate term of 15 years to life imprisonment on his conviction of criminal possession of a controlled substance in the first degree, and to two indeterminate terms of 12 1/212 to 25 years imprisonment on the convictions of criminal sale and criminal possession in the third degree.   Those sentences were imposed to run concurrently with each other, but consecutively to two concurrent determinate terms of five years imprisonment on each of the two convictions of possession of a weapon in the third degree.

 The defendant claims, inter alia, that the determinate sentences imposed on the two weapon possession convictions should run concurrently with, and not consecutively to, the sentences imposed on the drug

convictions. His contention is without merit but arises, we believe, from a widespread misunderstanding of the three sentencing options currently available under the Penal Law. We thus take this opportunity to address this issue.

A definite term of imprisonment is a fixed term for a specific amount of days or months, not in excess of one year (see, Penal Law § 70.15).   It is usually referred to as a “misdemeanor sentence”, available only for misdemeanors and lesser offenses.   However, definite sentence options are also generally available for Class D and E Felonies, and specifically for Class C controlled substance felonies (see, Penal Law § 70.00[4] ).   A definite sentence ends at the expiration the specified time period imposed.

A determinate term of imprisonment, created by the Sentencing Reform Act of 1995 (L.1995, ch. 3, 4), also imposes a fixed term of imprisonment, but one in excess of one year and usually for a long period of time.   Determinate terms are imposed upon convictions of violent felony offenses and do not permit parole except under certain conditions (see, Penal Law §§ 70.40[1][a][ii], [v] ).

An indeterminate term of imprisonment is restricted to felonies.   In this type of sentence, minimum and maximum periods are fixed and the term is completed at the expiration of the maximum period, although parole eligibility arises after the completion of the minimum period (see, Penal Law § 70.30 [4] [a] ).

Penal Law § 70.35, the section relied upon by the defendant on this appeal, provides that “service of an indeterminate or determinate sentence of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate or determinate sentence was imposed” (emphasis supplied).

In the case at bar, the weapons-related offenses did occur before the imposition of the indeterminate terms of imprisonment on the convictions for criminal sale and criminal possession of a controlled substance offenses.   However, the defendant (who, as noted, was a second felony offender) did not receive definite sentences for the gun possession crimes, but rather two, concurrent, five-year determinate terms.   Therefore, the court was within its power and discretion to impose indeterminate sentences on the drug-related convictions which were to run consecutively to the determinate concurrent sentences imposed on the convictions for the weapons possession crimes (see, Penal Law § 70.04[1], [3];  § 70.25[1];  cf., People v. Leabo, 84 N.Y.2d 952, 620 N.Y.S.2d 820, 644 N.E.2d 1376;  People v. Dottin, 238 A.D.2d 604, 657 N.Y.S.2d 76).

This appeal also brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statement that he sometimes stayed at the apartment which was the subject of the search warrant, and the subsequent statements made after being advised of his Miranda rights (see, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).   In addition, the defendant challenges the legal sufficiency of the evidence presented against him.

 Viewing the evidence adduced at the trial in a light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).

 Contrary to the defendant's contention, his statement that he sometimes resided in the apartment where drugs were recovered was pedigree information obtained in response to routine questioning.   Thus this response is not subject to suppression because it was obtained before the defendant was advised of his Miranda rights (see, People v. Rodney, 85 N.Y.2d 289, 624 N.Y.S.2d 95, 648 N.E.2d 471;  People v. Burks, 227 A.D.2d 905, 643 N.Y.S.2d 796;  People v. Morene, 221 A.D.2d 376, 633 N.Y.S.2d 202).

The defendant's remaining contention is without merit.

ORDERED that the judgment is affirmed.

SANTUCCI, J.P.

SULLIVAN, FLORIO, and McGINITY, JJ., concur.