The admitted abuser of Xctasy Garcia will not receive a reduction in his sentence, a state appeals court ruled today.
Jose Munoz, 27, had asked the Appellate Division of state Supreme Court to reduce his 17-year sentence to 10, arguing that his sentence wasn’t entirely legal.
He argued that two sentences were applied consecutively but should run at the same time because they could be interpreted as resulting from the same act. But the court was not moved.
“The record sufficiently establishes that the crimes to which he pleaded were ‘separate and distinct offenses committed by separate and distinct acts,’” the court wrote.
In his appeal, Munoz argued consecutive 7-year terms on two counts of assault should have been concurrent. Both involved injuries inflicted on Xctasy, burns to her eyes and a fracture to her arm. A third assault plea drew three years.
Wording in the plea hearing could be read as indicating the injuries resulted from the same act, requiring the sentences to be served at the same time, his attorney, Susan Lyn Preston, argued.
But Alfred Chapleau, chief assistant Schenectady County district attorney, argued that it was understood throughout the legal process that the counts resulted from two separate acts, right up to Munoz‘s sentencing by Schenectady County Court Judge Karen Drago. Drago gave Munoz the maximum sentence allowed in the plea bargain.
Munoz admitted in court to breaking Xctasy’s arm, nearly blinding her with a mixture of soap and bleach and using a cigarette to burn the arm of her half-brother, Hennessey Velazquez. It was a highly publicized case that led to changes in local and state law and policies.
Munoz‘s one-time girlfriend, Delia Hernandez, mother of Xctasy, now 6, Hennessey, 10, and Damien Munoz, 9, was sentenced to seven years for her role in the abuse.
Xctasy’s recovery was nothing short of remarkable, officials have said. She recovered her eyesight, and she and her brothers thrived in foster care with people who cared about them, before being placed with family.
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