A divided state appeals panel has upheld a sentence of 27 1/3 years to life for a man convicted of drug possession and reckless endangerment after fleeing from police in a car, finding that the severe sentence was warranted by his five previous felony convictions.
The 2002 car chase shut down Manhattan’s West Side Highway and injured multiple people, most seriously the defendant, Cleveland Lovett, himself. In a final attempt to evade police, he jumped off the side of the highway, falling 60 feet. He is now confined to a wheelchair, with severely limited upper body movement.
The Appellate Division, First Department panel’s 3-2 majority in People v. Lovett, 6013/02, found that Acting Supreme Court Justice Edward McLaughlin’s (See Profile) sentence was reasonable in light of Lovett’s extensive criminal record and apparent lack of remorse. Justices Angela Mazzarelli (See Profile), David Friedman (See Profile) and Paul Feinman (See Profile) joined in the unsigned majority opinion.
Police initially tried to pull Lovett over for running a red light. Lovett, then 29, drove away at high speed. While fleeing the police, he hit multiple other cars, injuring their passengers. When he finally wrecked his own car, he jumped off the side of the highway.
Police found 8 3/8 ounces of cocaine in the trunk of the car. Lovett was hospitalized for four months, and underwent multiple surgeries.
Lovett was charged with first- and third-degree substance possession and first-degree reckless endangerment, all felonies. He refused to accept a plea offer with a 12-year sentence and was convicted on all charges at trial.
All of Lovett’s five prior felony convictions were between 1991 and 1997. Four were in New Jersey, and three were drug related. None of them was a predicate violent felony under New York Law; predicate violent felony convictions allow harsher sentences for repeat felonies.
Lovett was sentenced to 25 years to life for the first-degree possession count and 12 1/2 to 25 years for the third-degree possession count, to run concurrently. He was sentenced to 2 1/3 to 7 years for the reckless endangerment count, to run consecutively, for a total sentence of 27 1/3 years to life.
The prosecuting attorney noted at the sentencing that the state could have asked for Lovett to be sentenced as a persistent felony offender, which would have allowed a life sentence for the reckless endangerment. However, it chose to ask only that he be sentenced as a second felony offender.
McLaughlin had harsh words for Lovett at the sentencing, which Freeman quoted in her dissent.
“If there is a parole officer, if there is a parole board, who ever thinks there is a reason to release you from jail, they should be fired,” the judge said. “You are sentenced as best as possible to die in jail.”
In 2005, Lovett applied for resentencing with respect to the first degree possession sentence under the Drug Law Reform Act of 2004, but McLaughlin denied that motion, calling Lovett “a totally amoral individual,” according to the dissent.
Lack of Remorse
The majority found that, “notwithstanding any injudicious remarks the court may have made,” Lovett’s sentence was fair.
“The record demonstrates that the court considered the totality of the circumstances and found that defendant did not deserve relief from his original sentence, only after the court balanced defendant’s extensive criminal history, defendant’s denial of any responsibility at trial and sentencing, and the circumstances of the underlying offenses, against the evidence of defendant’s post-incarceration rehabilitation,” the majority wrote.
Although Lovett’s previous felony convictions were not predicate violent felonies under New York law, the majority said they were “crimes of violence that were very serious,” including gun possession, assault with a deadly weapon and a burglary where a 12-year-old’s head was covered with a pillowcase.
The majority also noted that Lovett said at his sentencing, “I don’t think I deserve any sentence. I think I deserve my freedom,” showing a lack of remorse.
“Defendant’s insistence on his innocence notwithstanding the overwhelming evidence underscores his complete lack of insight into the wrongful nature of his conduct and a lack of acceptance of responsibility for the harm he caused himself and others,” the majority said.
The majority remitted the case to fix an apparent error: while the trial court transcript showed that McLaughlin meant to impose a sentence of 3 1/2 years to 7 years for reckless endangerment, the documents sent to the Department of Corrections said 2 1/3 to 7, impermissibly short for a second felony offender, according to the majority.
The corrected sentence will therefore be 28 1/2 years to life.
Tom, in his dissent, said the sentence was “excessive to the extent that it subjects defendant to a harsher penalty than that prescribed for murder.”
He cited People v. Notey, 72 AD2d 279, 283 (2d Dept., 1980), in which the driver of a getaway car who struck and killed a pedestrian was sentenced to 25 years to life for felony murder.
“Because public confidence in the fairness of the criminal justice system is promoted by consistency between the severity of the penalty imposed and the seriousness of the offense, I would modify the judgment to provide that the sentences run concurrently,” Tom wrote.
Tom also said that Lovett’s disability made him less of a threat to public safety. He said he would have ordered all the sentences served concurrently.
Freedman went further, saying that Lovett should have been granted resentencing on the drug charge in 2005. She said she would have replaced the sentence of 25 years to life with a determinate sentence of 20 years, plus 5 years post-release supervision.
Freedman wrote that she found McLaughlin’s “manifestation of utter contempt for defendant at the time of sentencing, both the initial sentencing and in response to the resentencing application, both injudicious and violative of the strong presumption favoring resentencing.”
She pointed to Lovett’s “near perfect prison record” in his 11 years of incarceration so far, supportive letters from family, friends and community members, and history of substance abuse.
Freedman also said that the facts about Lovett’s previous convictions recounted by the majority were based on hearsay in an affirmation submitted by the prosecution in opposition to Lovett’s resentencing motion, and were not properly part of the appellate record.
Lovett is represented by Margaret Knight, a supervising attorney at the Office of the Appellate Defender, who could not be reached for comment.
The prosecution was represented by former Manhattan Assistant District Attorney Caleb Kruckenberg. A spokeswoman for the office declined to comment.