People v. Pacheco

Mangano, J. P.,

concurs in part and dissents in part, and votes to affirm the defendant’s judgments of conviction, in accordance with the following memorandum: The majority is of the view that the imposition of the maximum allowable sentence upon the defendant as a persistent felony offender, i.e., 25 years to life imprisonment (Penal Law § 70.10 [2]; 70.00 [2] [a]; [3] [a] [i]), is excessive and should be reduced to 15 years to life.

I respectfully disagree.

*903The record indicates that, in addition to the defendant’s present conviction for the sale of heroin, the defendant has a criminal record going back to 1958 which involves numerous convictions for possession of heroin, stolen property and weapons. The Probation report states, inter alia, that (1) the defendant "has spent a good deal of his adult life avoiding the responsibilities of a mature adult and giving in to his antisocial tendencies when the going gets rough” and (2) the defendant’s "rehabilitative potential” is nil. In imposing the maximum allowable sentence, the sentencing court complied with the statutory requirement (Penal Law § 70.10 [2]) that its reasons "be set forth in the record”. Specifically, the sentencing court stated: "its a tough job imposing a sentence like I’m going to impose on you, but I have to do it. I’m going to do it for the sake of the community. You have shown and demonstrated to the community that you have forfeited your right to be out there. You have defiled ordinary decency of a community. You have engaged in illegal activity. You have been in prison. You have been given break after break”.

It is "scarcely worth repetition to observe that a sentencing determination is a matter committed to the exercise of the sentencing court’s discretion, for it is that court’s primary responsibility” (People v Suitte, 90 AD2d 80, 83; People v Notey, 72 AD2d 279, 282). Under the circumstances herein, I fail to see any abuse of discretion by the sentencing court in imposing the maximum sentence upon the defendant, or any reason why this court should substitute its discretion for that of the sentencing court (People v Suitte, supra).

Accordingly, I dissent and vote to affirm the judgment appealed from.