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Court Decides if Defendant Should Receive an Enhanced Sentence


This involves a drug crime case where the Court denied the People’s appeal to consider a defendant’s perjury at trial in enhancing his service of sentence.

Defendant was convicted after a jury trial, at which he testified, of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Fourth Degree (drug possession). In response to the defendant’s pre-sentence memorandum requesting leniency in sentencing, the District Attorney’s Office, citing United States v. Dunnigan, 507 U.S. —-, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), contends that the defendant should receive an “enhanced sentence”, i.e., a higher sentence than the Court would otherwise impose based upon his alleged perjury at trial. The People claim this perjury is established by the contradictions between defendant’s trial testimony concerning his cocaine possession and his statements about his addictions to the social workers of the Legal Aid Society in the pre-sentence memorandum submitted to the Court on his behalf.

The People argue that this falsehood, coupled with defendant’s false testimony claiming innocence of the charges for which he stood trial and was convicted, constitute willful and materially false statements, i.e., perjury, that may be considered by this Court in assessing the defendant’s history and character to determine an appropriate sentence. A New York Criminal Lawyer said defense counsel contends that this Court should find such consideration irrelevant. Defense concedes that the majority of reported state jurisdictions permit consideration of a defendant’s trial perjury as a factor in enhancing sentence on the ground that it evidences lack of potential for rehabilitation.

The Court held that it is authorized to consider a defendant’s trial perjury in enhancing a defendant’s sentence under New York’s indeterminate sentencing laws and such enhancement does not impermissibly chill a defendant’s right to testify. Such enhancement does not deny a defendant due process of law if imposed in accordance with the safeguards mandated in Grayson, supra.

Applying these safeguards, however, the Court concludes that this case is not an appropriate one for sentence enhancement for the following reasons.

The Court heard the defendant’s testimony, which concerned adjudicative facts: the time frame and causation of defendant’s use of illegal drugs (“who did what and when”). The prosecutor persuasively asserts these are facts about which defendant is not likely to be mistaken.

Considering the evidence, the defendant appears to have lied about the genesis of his addiction to prey on the jury’s sympathies. A Suffolk County Criminal Lawyer said the defendant was convicted by a jury of the sale of drugs to an undercover officer, which defendant under oath denied. The question arises as to whether the proof of defendant’s apparent perjury is sufficiently strong and the perjury so material that enhancement is warranted.

Unlike the defendant in Dunnigan, 507 U.S. —-, 113 S.Ct. 1111, supra, defendant herein did not deny all involvement with illegal drugs. Specifically, he admitted to drug addiction and more importantly, testified that he was in the vicinity to [160 Misc.2d 224] buy drugs, not sell them. While the jury found the defendant guilty beyond a reasonable doubt, his explanation for his presence in the area at the time of his arrest did not rise to the level of flagrantly incredible testimony as did the testimony of the defendant in Dunnigan.

In Dunnigan, supra, defendant categorically denied any involvement with illegal drugs. On the Government’s case-in-chief, five witnesses testified to personal observations of defendant’s illegal drug trafficking, four of whom admitted complicity in these enterprises.

As the Court noted in Dunnigan, supra, even under mandated enhancement for willful obstruction of justice, not every accused who testifies and is convicted will be found to have perjured himself. A New York Sex Crimes Lawyer said the Court finds that under the totality of the circumstances herein, the proof of perjury is neither overwhelmingly strong nor material. The Court is mindful of the caveat of the United States Supreme Court to the effect that a sentencing court is not required to enhance “in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false.” Grayson, supra, 438 U.S. at 55, 98 S.Ct. at 2618. In light of defendant’s history and all of the surrounding facts and circumstances, enhancement is not warranted.

Accordingly, the People’s motion to enhance defendant’s sentence is denied.

Stephen Bilkis and Associates with its New York Drug Crime Lawyers can sustain your rights under the law.

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