THE PEOPLE OF THE STATE OF NEW YORK v. JUAN MOLINA (2010)

MEMORANDUM AND ORDER

Calendar Date:  March 25, 2010

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered March 25, 2009, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the first degree, criminal sale of a controlled substance in the first degree, conspiracy in the second degree and criminal possession of a controlled substance in the third degree.

On April 11, 2008, defendant obtained over four kilograms of cocaine in New York City, transported it to Albany County with the aid of a codefendant and sold it to a third codefendant, a local drug dealer who planned to resell the cocaine in the Albany area.   Through a wiretap on the Albany dealer's mobile phone, the police became aware of the sale and promptly arrested all three defendants.   For his role, defendant was charged by indictment with conspiracy in the second degree (count 1), criminal possession of a controlled substance in the first degree (count 2), criminal possession of a controlled substance in the third degree (count 3) and criminal sale of a controlled substance in the first degree (count 4).   Following a jury trial, defendant was convicted of all four counts.   County Court then imposed concurrent prison sentences on counts 1, 2 and 3, the longest of which is a prison term of 19 years with five years of postrelease supervision on count 2. The court also imposed a consecutive sentence of 20 years with five years of postrelease supervision on count 4. As a result, his sentences aggregated 39 years in prison.

On appeal, defendant asserts, and the People concede, that the sentences imposed on counts 2, 3 and 4 must run concurrently because those charges arose out of a single possession and sale of cocaine on April 11, 2008 (see Penal Law § 70.25[2];  People v. Smith, 209 A.D.2d 996, 996 [1994], lv denied 85 N.Y.2d 914 [1995];  People v. Saa, 199 A.D.2d 346, 346-347 [1993];  see generally People v. Eddie, 87 N.Y.2d 640, 643-644 [1996] ).   We will modify defendant's sentence on count 4 accordingly (see People v. LaSalle, 95 N.Y.2d 827, 829 [2000];  People v. Rollins, 51 AD3d 1279, 1282 [2008], lvs denied 11 NY3d 922, 930 [2009] ).

We are not persuaded, however, that defendant's lawful sentences were either excessive or imposed as punishment for exercising his right to go to trial.   We note that the volume and degree of sophistication of drug trafficking as well as a defendant's role in facilitating drug offenses all have a bearing on what sentence is appropriate and proportionate to the crimes committed (see People v. Thompson, 83 N.Y.2d 477, 482-484 [1994] ).   Inasmuch as the record here shows that defendant was a major narcotics trafficker whose activities enabled others to engage in substantial drug sales, County Court could consider that evidence as well as defendant's failure to accept responsibility for his actions.   Although the aggregate 20-year sentence as modified is more severe than the 12-year term offered to defendant in the proposed plea agreement, “ ‘[t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial’ ” (People v. Chilson, 285 A.D.2d 733, 735 [2001], lvs denied 97 N.Y.2d 640 [2001], 97 N.Y.2d 752 [2002], quoting People v. Simon, 180 A.D.2d 866, 867 [1992], lv denied 80 N.Y.2d 838 [1992];  see People v. Saunders, 309 A.D.2d 1063, 1065 [2003] ).   The record here provides no support for defendant's claim that the individual sentences imposed were in retaliation rather than warranted by the seriousness of his crimes (see People v. Morgan, 253 A.D.2d 946 [1998], lv denied 92 N.Y.2d 950 [1998];  People v. Simon, 180 A.D.2d at 867;  compare People v. Morton, 288 A.D.2d 557, 559 [2001], lv denied 97 N.Y.2d 758 [2002], cert denied 537 U.S. 860 [2002] ).   Nor do we find any other abuse of discretion or extraordinary circumstances that would warrant modification of defendant's sentences (see People v. Burroughs, 64 AD3d 894, 898-899 [2009], lv denied 13 NY3d 794 [2009];  People v. Richardson, 28 AD3d 1002, 1005 [2006], lv denied 7 NY3d 817 [2006] ).

Mercure, J.P., Peters, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is modified, on the law, by directing that the sentence imposed on count 4 of the indictment charging criminal sale of a controlled substance in the first degree shall run concurrently with the sentences imposed on the other charges, and, as so modified, affirmed.

ENTER:

Michael J. Novack

Clerk of the Court