Appellate Term

Supreme Court of the State of New York

9th and 10th Judicial Districts

THOMAS M. STARK

ASSOCIATE JUSTICE SUPREME COURT CHAMBERS CRIMINAL COURTS BUILDING RIVERHEAD, N.Y, 11901-9007

(516) 852-2157

August l0, 1993

The New York Times

Executive and Editorial Offices

229 West 43rd Street

New York, N.Y.

Re: Criminal Justice System reforms

Gentlemen:

From time to time you have published articles concerning the Criminal Justice System of New York State, and have commented on various proposals to reform the system. In this regard, the Correctional Association of New York is probably the most knowledgeable state-wide group which studies the problems and recommends legislation to amend various sections of the New York State Penal Law and Criminal Procedure Law.

Over the past several years, I have studied and suggested various reforms, which, if enacted, would reduce the number of inmates serving indeterminate sentences of imprisonment in the State prison system.

The second felony offender law (Penal Law§70.06) mandates prison sentences of defendants convicted of any felony (whether violent or not) during the ten years period following the first felony offense (again whether violent or not). Because of this law, there are thousands of prisoners serving time in correctional facilities for low grade non-violent felony convictions, and who must serve one-half of their maximum sentences before parole consideration (as compared to first felony offenders which must serve only one-third of their maximum sentences). Judges have no discretion in sentencing second felony offenders.

The Correctional Association, Governor Cuomo, and many others, have annually urged the Legislature to repeal the second felony offender law and authorize judges to impose prison sentences, or alternative non-prison sentences, depending on mitigating or aggravating factors in each case. I believe this has never come about because the legislators fear being perceived as "soft on crime."

Other reforms are badly needed. Under the Rockefeller drug laws (Penal Law Article 220-Controlled Substance Offenses), offenders must be sentenced to prison regardless of whether the offender is a "street seller" (probably an addict selling to support his own addiction), or a higher level seller. Most offenders convicted of these crimes receive no treatment for their addiction. The Penal Law should be amended to authorize judges to impose alternate sentences coupled with drug treatment in the community. Here again, legislators fear being labeled "soft on crime".

The third area where reform is badly needed is the granting of good behavior time to imprisoned convicts to reduce their sentences. When the new Penal Law was enacted in the mid-sixties, it provided that an inmates' good behavior time could only be applied to one-third of the maximum sentence (Penal Law §70.30 (4) Corrections Law §703-b) . The former Penal Law-applied the good time to the minimum sentence. Under that earlier law, Inmates had an incentive to reduce their minimum sentence by complying with all the rules and regulations governing good behavior. There is no longer such incentive available to today's convict.

The Correctional Association has championed the repeal of the mandatory second felony offender law, and giving discretion to judges to impose an alternate sentence. The Association also recommends legislation to apply good behavior time to the minimum sentence. In this regard, I am enclosing a copy of the Correctional Association Newsletter published this past March, which sets forth the position of the Association and its reasons. I am also enclosing a copy of a pessimistic Correctional Association letter to me dated June 8, 1993.

These reforms have been included in the Governor's criminal justice proposals for several years. I am enclosing a copy of a letter to me dated June 17, 1993, from Counsel to the New York State Director of Criminal Justice, with a frank conclusion that the Governor's proposals are not likely to be enacted.

In addition to the Correctional Association position, the New York State Commissioner of Correctional Services, Thomas A. Coughlin III, has spoken out strongly in favor of the proposed reforms. I am enclosing a copy of his testimony given at a meeting of the Assembly Codes Committee on June 8, 1993. He comments as to several reforms in the system, and the reasons why the law should be modified or changed, including the harsh Rockefeller drug laws, and the rigidity of the second felony offender law. Mr. Coughlin's views are shared by Governor Cuomo, but no action has been taken by the Legislature because of the fear of being labeled "soft on crime." I believe that if the members of the Legislature would consider these reforms on the merits, and explain the reasons to their constituents, this would eliminate the "soft on crime" aspect of the reforms.

On March 23, 1993, you published an extensive article written by Francis X. Clines, beginning on page B-1, concerning the harshness of the drug laws, and told the story of inmate Lawrence V. Cipollone, who is serving a lengthy drug sentence and is seeking executive clemency from the Governor later this year. I, and many others, are actively supporting Mr. Cipollone's request. On July 27, 1993, you published an article concerning the Governor's December 29, 113,12, grant of executive clemency to Lawrence Snider, an inmate serving time for drug offenses. The article was written by Peter Marks, and started on page A-1. It reviews the harshness of the Rockefeller drug laws as they punish a low-level street drug seller.

While on the subject of executive clemency, there is a remarkable story concerning Mr. Thomas E. Ventura of 278 North Country Road, Miller Place, Long Island, which might be of interest to you in subsequent articles on this subject. In the fall of 1974, Mr. Ventura, age 23 at that time, was charged in Suffolk County with sale and possession of more than one ounce of marijuana on November 4, 1974. He was also charged with sale and possession of more than one ounce of cocaine on December 4, 1974. He was convicted as charged, after a jury trial on October 5,1978. On November 2, 1978, he was sentenced to life imprisonment, with a minimum of fifteen years. His conviction was affirmed by the Appellate Division on November 10, 1980, and Leave to Appeal to the Court of Appeals was denied on December 15, 1980.

While in prison, Mr. Ventura began an extensive educational effort.

It included: (1) 1980-Osborn School, Auburn Correctional Facility-Mechanical Drafting. (2) 1983-Ulster County Community College- an Associate Degree in Liberal Arts, maintaining a grade point average of 4.0. (3) 1985-State University of New York at New Paltz, a Bachelor of Arts Degree, majoring in psychology and sociology. His grade point average was 3.96, and he graduated summa cum laude, and was Valedictorian of his class. Mr. Ventura applied for Executive Clemency in 1986, after serving seven and one-half years, (one-half of his minimum sentence). I had extensive correspondence with Mr. Ventura in the fall of 1986 concerning his application. After reviewing the situation on November 13, 1986, I recommended that Governor Cuomo grant clemency to Mr. Ventura. There were compelling reasons for the Governor's action. Mr. Ventura's application was also supported by the then District Attorney of Suffolk County, Patrick Henry, and many other persons within the correctional system, who were familiar with Mr. Ventura's accomplishments while in prison.

On Christmas Eve, December 24, 1986, Governor Cuomo granted clemency, and Mr. Ventura was conditionally released on parole several days later. After his release, Mr. Ventura began the study of law at Touro Law School in Huntington. He received his Juris Doctor Degree on May 30, 1993. Mr. Ventura received the American Jurisprudence Award For Excellence. He also served as Editor-in-Chief of the Law Journal. While attending law school, Mr. Ventura served as: (1) student library assistant; (2) an intern with the Touro Criminal Law Clinic; and (3) law intern judicial clerk with Hon. Alfred E. Lama of the New York State Supreme Court. He is presently serving as a law intern in the office of Scott Zamek, Esq., of Melville.

I believe that Mr. Ventura's outstanding rehabilitation while in prison and his activities after release could be the subject of a New York Times article at an appropriate time. His story demonstrates the harshness of the Rockefeller drug laws. After being found guilty of sale and possession of a small amount of narcotic drugs, Mr. Ventura's life sentence was mandated.

In an interesting recent development, a Long Termers (those serving sentences of more than ten years) Committee at Woodbourne Prison has begun publication of a Newsletter containing their hopes for criminal justice reforms, including the proposal to change the application of good behavior time to the minimum sentence. These Newsletters are excellently written, and the Committee is attempting to promulgate the Newsletter to a wide spectrum of individuals and organizations concerned with reforms of the Criminal Justice System. I am enclosing copies of the March, April-May, June and July Newsletters, and a copy of the inmates' letter to me. The work of this Committee should be publicized as much as possible, especially to legislators and appropriate state officials.

One might ask why I am so concerned with Criminal Justice System reform. I have acquired knowledge and experience during my many years service in the State judiciary. I have been a trial judge in the County Court of Suffolk County and subsequently in the Criminal Term of the New York State Supreme Court for over thirty years. I have presided over hundreds of criminal trials, pre-trial and post-trial hearings, sentencing proceedings and miscellaneous criminal court matters. Since 1985, In addition to my other duties, I serve as an Associate Justice of the Appellate Term of the Supreme Court in the Ninth and Tenth Judicial Districts. Over one-half of the appeals are from convictions in the local criminal courts (District Courts of Nassau and Suffolk, City Courts in the Ninth Judicial District, and Town and Village Courts in both judicial districts).

When I first came on the bench, I had wide discretion to impose sentences, both of imprisonment, and alternate sentences within the community, mainly sentences of probation. Over the ensuing years, the Penal Law has been amended so as to mandate sentences of imprisonment for a large number of crimes. No longer have judges authority to choose an appropriate sentence based upon the facts of the crime, the criminals background and other factors. In recent years, judges have become "rubber stamps", imposing bargained-for sentences between the District Attorney and the offender. A judge generally takes no part in the sentence bargaining, which is first presented to him at the guilty plea proceeding. The only right reserved by the judge is to permit a defendant to withdraw his guilty plea if the judge has decided, after reviewing the written presentence investigation, to impose a stiffer sentence than the one bargained-for. A defendant in this situation may either accept the judge's intended sentence, or withdraw his guilty plea, and either be tried or to attempt to negotiate another sentence.

There is little chance of the present Legislature amending the Penal Law to give judges discretion in determining appropriate sentences. Here again, the legislators perception of the voters being against them as being "soft on crime", prevents serious legislative consideration of these needed reforms in the Criminal Justice System.

In this letter, I have attempted to set forth what many of us believe should be done to reform the New York State's Criminal Justice System. In an effort to obtain greater coverage of this subject, I have written several times to the Long Island newspaper Newsday, and I am enclosing copies of my letters of March 25, 1993, and April 12, 1993, and a copy of my April 12, 1993 letter to the New York State Director of Criminal Justice.

My present effort is to obtain wide promulgation of these important issues. I am confident that The New York Times, as the quintessential leader of newspapers published in New York State, will, at an appropriate time, add its voice to these efforts.

Very truly yours,

THOMAS M. STARK

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Encs.

Appellate Term

Supreme Court of the State of New York

9th and 10th Judicial Districts

THOMAS M. STARK SUPREME COURT CHAMBERS

ASSOCIATE JUSTICE CRIMINAL. COURTS BUILDING

RIVERHEAD, N.Y. 11901-9007

(516) 8S2-2157

August 11, 1993

Hon. Ralph J. Marino

Majority Leader

New York State Senate

68 West Main Street

Oyster Bay, New York 11771

Re: Criminal Justice System reforms

Dear Senator Marino:

For the past several years, I have become quite concerned over problems in the State Criminal Justice System, and believe that certain legislative reforms are necessary to modify or amend the Penal Law and Criminal Procedure Law to accomplish these reforms.

The Correctional Association of New York is probably the most knowledgeable state-wide group which studies these problems, and recommends appropriate legislation.

I have summarized my views of the entire situation, and I am enclosing a copy of my recent letter to the New York Times on these subjects, together with various appendices.

I have long supported the Governor's Criminal Justice proposals and have been disappointed each year when the Legislature, for various reasons, fails to act.

I believe that this inaction is predicated on their belief that supporting these reforms would lead to a perception by the voters that they were "soft on crime". This is most unfortunate. I am attempting to promulgate my views and those of others to as many persons, organizations, and news media as is possible.

I sincerely hope that the Governor's proposals receive a better reception in the 1994 session.

Very truly yours,

THOMAS M. STARK

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Enc.

Appellate Term

Supreme Court of the State of New York

9th and 10th Judicial Districts

THOMAS M. STARK SUPREME COURT CHAMBERS

ASSOCIATE JUSTICE CRIMINAL COURTS BUILDING

RIVERHEAD. N.Y. 11901-9007

(516) 852-2157

August 11, 1993

Hon. Saul Weprin

Speaker, New York State Assembly

61-08A- 224th Street

Bayside, New York 11346

Re: Criminal Justice System reforms

Dear Speaker Weprin:

For the past several years, I have become quite concerned over problems in the State Criminal Justice System, and believe that certain legislative reforms are necessary to modify or amend the Penal Law and Criminal Procedure Law, to accomplish these reforms.

The Correctional Association of New York is probably the most knowledgeable state-wide group which studies these problems, and recommends appropriate legislation.

I have summarized my views of the entire situation, and I am enclosing a copy of my recent letter to the New York Times on these subjects, together with various appendices.

I have long supported the Governor's Criminal Justice proposals and have been disappointed each year when the Legislature, for various reasons, fails to act.

I believe that this inaction is predicated on their belief that supporting these reforms would lead to a perception by the voters that they were "soft an crime." This is most unfortunate. I am attempting to promulgate my views and those of others to as many persons, organizations, and news media as is possible.

I believe your view of the Governor's annual crime proposals are similar to mine, and I sincerely hope that the Governor's proposals receive a better reception in the 1994 session.

Very truly yours,

TMS/ml THOMAS M. STARK

Enc.