People v. Lopez

Court Discusses Whether a Sentence was Excessive for a Second time Offender

The defendant was charged with criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree. He was arrested after possessing over twenty four thousand dollars of heroin for the purposes of selling the controlled substance. The defendant was 27 years of age at the time he was arrested and had one other conviction of possession of a weapon for which he received a conditional discharge and paid a two hundred dollars fine. The defendant was convicted of both a controlled substance in the first degree and criminal possession of a controlled substance in the first degree and sentenced to a concurrent term of twenty years to life imprisonment on each count. The defendant appealed his conviction and sentence.

The majority in the Appellate Division of the Supreme Court modified the sentences in the interest of justice as the minimum period served was reduced to a term of fifteen years and the maximum was imprisonment for life. The defendant charged with an extremely serious crime which was evident with the minimum punishment permitted by law. It was unlikely that it was the defendant’s first drug transaction given the quantity of drugs he possessed and the fact that he had knowledge about the quality of heroin he was selling. However, the sentence was still seen more severe than other A-I narcotics felonies for which there was mandatory severe punishment to justify a minimum 20 years rather than 15 years. The majority applied the Criminal Procedure Law (section 470.15) to modify the sentence as it gave the court the power to modify a sentence where the conviction was valid but the sentence was unduly harsh or severe.

The Appellate Division unanimously affirmed the conviction because there was overwhelming evidence of the defendant’s guilt. Any error that might have occurred, in narcotics prosecution, when some portions of a cross–examination of defendant at his prior trial were read, was harmless where the evidence of guilt was overwhelming. The defendant asserted that the charge of possession should have been dismissed as he was convicted of and both offenses were A-I felonies. However, neither offense was a “lesser” offense or “inclusory” offense as each offense contained separate element and the both sentences were to run concurrently as it would be impractical to dismiss one.

The minority opinion affirmed the conviction in its entirety after analyzing the circumstances of the arrest. The defendant was able to procure one pound of heroin with a street value of over twenty four dollars within less than an hour of the buyer calling him who should that he was an experienced dealer. Additionally, the fact that the defendant had his own instrument to weight heroin and knew that the drug was of an inferior quantity showed his experience in the field. There was also a testimony that the defendant had supplied a police officer’s contact on at least four prior occasions. He was no ordinary supplier as he was able to procure a large quantity of heroin within such a short notice. Therefore, even though it was only was only his second conviction the sentence was neither harsh nor excessive when the circumstances were assessed.

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