Opinion
2608/2000.
Decided February 1, 2010.
Office of the Bronx District Attorney by Nikki Harding, Esq., for the People.
Office of the Appellate Defender by Anastasia Heeger, Esq., for Defendant.
Defendant was convicted by plea of guilty to two counts of Criminal Sale of a Controlled Substance in the Third Degree, PL § 220.39, to cover two indictments. Defendant was thereafter sentenced to concurrent indeterminate terms of four and a half to nine years when he failed to complete a drug treatment program. Ultimately, defendant was released to parole supervision and has been violated on parole six times. Defendant is currently in the custody of the New York State Department of Correctional Services serving parole violation time on that previously imposed sentence. (See Exhibit E of defendant's motion). He is not serving any other sentence.
In December 2009 defendant moved to be resentenced on his previous convictions pursuant to the Drug Law Reform Act of 2009, L.2009, Ch. 56, Part AAA (eff. Oct. 7, 2009) (codified at NY Crim. Pro. Law § 440.46) (DLRA 3). The People oppose that motion for a variety of reasons.
DLRA 3, in pertinent part, provides:
Any person in the custody of the department of correctional services convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to January thirteenth, two thousand five, who is serving an indeterminate sentence with a maximum term of more than three years, may, except as provided in subdivision five of this section, upon notice to the appropriate district attorney, apply to be resentenced to a determinate sentence in accordance with section 60.04 and 70.70 of the penal law. . . .
The exceptions to eligibility for resentencing are for those persons having certain prior convictions and do not apply in this case.
The People contend that, as defendant is in the custody of the Department of Correctional Services on the parole violation, he is not "serving" the previously imposed indeterminate sentence. The People further argue that even if defendant is "serving" the previously imposed sentence while in custody on the parole violation he does not qualify under the statute for resentencing because they contend that the legislature did not intend that the resentencing law apply to inmates who have been paroled on the indeterminate sentence and returned as a parole violator.
This court concludes that defendant, in the custody of DOCS as a parole violator, is "serving" the previously imposed indeterminate sentence. See, People ex rel. Petite v. Follette, 24 NY2d 60 (1969). Furthermore, this court concludes that DLRA 3 does apply to those sentenced to indeterminate sentences who have been released to parole supervision and who are now re-incarcerated on that sentence based on a parole violation for the following reasons.
The New York State Legislature has three times enacted laws that permit persons convicted of certain drug felonies to apply to the courts for resentencing. In 2004, it enacted the Drug Law Reform Act of 2004 providing for the resentencing of certain of those convicted of A-1 drug felonies. (L. 2004, Ch. 738) (DLRA 1). In 2005 the legislature enacted the Drug Law Reform Act of 2005 providing for the re-sentencing of certain of those convicted of A-II drug felonies. (L.2005, Ch. 643) (DLRA 2). In 2009 the legislature enacted the DLRA 3 providing for the resentencing of certain of those convicted of class B drug felonies. Each enactment specified who was qualified to apply for resentencing.DLRA 1 provided that:
any person in the custody of the department of correctional services convicted of a class A-I felony offense defined in article 220 of the penal law which was committedprior to the effective date of this section, and sentenced thereon toan indeterminate term of imprisonment with a minimum period not less fifteen yearspursuant to the provisions of the law in effect prior to the effective date of this section may . . . apply to be resentenced. . . .
DLRA 2 provided that:
any person in the custody of the department of correctional services convicted of a class A-II felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and who was sentenced thereon to an indeterminate term of imprisonment with a minimumperiod not less than three years pursuant provisions of the law ineffect prior to the effective date of this section, and who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law, and who meets the eligibility requirements of paragraph [d] of subdivision 1 of section 803 of the correction law may . . . apply to be resentenced. . . .
DLRA 3, codified in C.P.L. § 440.46, provided that:
Any person in the custody of the department of correctional services convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to January thirteenth, two thousand five, who is serving an indeterminate sentence with a maximum term of more than three years, may, except as provided in subdivision five of this section, upon notice to the appropriate district attorney, apply to be resentenced to a determinate sentence in accordance with section 60.04 and 70.70 of the penal law in the court which imposed the sentence.
The provisions of each of these resentencing statutes has generated litigation as to whether persons who have not yet been released to parole supervision or who have been released to parole supervision and were returned to custody as parole violators are eligible to apply for resentencing. While the eligibility language of DLRA 1 and DLRA 2 have been addressed by appellate courts, the eligibility language of DLRA 3 has only been addressed by lower courts. Those lower courts have disagreed as to whether inmates returned on parole violations are eligible for resentencing under DLRA 3. Ultimately, this dispute will be resolved in the appellate courts.
The interpretation of the language of DLRA 2 was addressed in People v. Mills , 11 NY3d 527 (2008). The eligibility language DLRA 2, by referencing of two sections of the correction law, required that the defendant be more than three years from parole eligibility in order to be eligible to apply for resentencing. There the Court held that a not yet paroled inmate who had been denied parole at his first parole eligibility date was not eligible for resentencing because he was entitled by law to a new parole hearing every two years (Executive Law § 259i (2)(a) and Correction Law § 851 (2)) and, therefore, was within three years of parole eligibility.
In People v. Then, 11 NY3d 527 (2008), decided with People v. Mills, supra, the Court held that a paroled defendant returned to custody on a parole violation and on a new indeterminate sentence was not eligible for resentencing under DLRA 2 on the first sentence even though he could not be re-paroled on the first sentence within three years due to the new sentence which he was serving. Defendant had argued that although he was entitled to a re-parole hearing in two years, he was more than three years from re-parole eligibility on the first sentence because the new sentence prevented him from being paroled. The Court noted that Then had "broken the law" while on parole, was a "repeat offender, and stated, "[s]urely, the legislature did not intend fresh crimes to trigger resentencing opportunities." People v. Then, supra, at 537. Accordingly, the Court held "a valid and more sensible reading of the statutory text is that in order to be eligible for resentencing an inmate must be more than three years from parole eligibility for the same class A-II drug felony for which resentencing is sought." People v. Then, supra, at 537.
The Court of Appeal's language explaining why Then could not use his incarceration on the new offense to make him eligible for resentencing under DLRA 2 on the earlier sentence has been cited by other courts when holding that defendants who are not being held on new sentences but have been violated on parole because of new criminal conduct are not ineligible for resentencing under DLRA 1 and DLRA 3. This court concludes that People v. Then does not compel that result because the Court in that case was simply holding that defendant could not use his concurrent incarcerations under the previous A-II felony sentence and his new crime sentence to bring him within the parole eligibility requirements which determine his eligibility for resentencing on that previous A-II felony sentence.
Furthermore, the interpretation of the eligibility language of DLRA 2 has no relevance to the interpretation of the language of DLRA 3 because DLRA 2 contains specific language not contained in DLRA 3 limiting eligibility to those who are more than three years away from parole eligibility. Additionally, DLRA 3 has specific exclusions, certain prior felony convictions, and those exclusions do not deny eligibility for resentencing to those in custody on their original sentence because of a parole violation.
Appellate courts have also interpreted the eligibility language of DLRA 1 which does not have language limiting resentencing eligibility based on years from parole eligibility . In People v. Gonzalez , 29 AD3d 400 (1st Dept. 2006), the Court held that the lower court properly denied resentencing under a separate provision of DLRA 1 that permitted a court to deny resentencing of an otherwise eligible inmate for reasons of "substantial justice." Of note, the People's argument that, as that defendant had been returned as a parole violator, he was not eligible for resentencing was briefed before the court ( 2006 WL 5042652) and the Court acknowledged defendant's status as a parole violator. The Court, however, did not address that issue in its decision, implicitly believing that defendant was still eligible for resentencing. In People v. Rodriguez , 68 AD3d 676 (1st Dept. 2009), the Court, without distinguishing People v. Gonzalez, supra, and citing the language of People v. Then, supra, that new crimes could not be used to "trigger" resentencing opportunities under DLRA 2, held that DLRA 1 "was not intended to apply to those who have been released from prison to parole supervision, and whose parole is then violated, with a resulting period of incarceration."
The People urge this court to apply the holding of People v. Rodriguez, supra, to the interpretation of the eligibility requirements of DLRA 3. This court concludes that the holding of People v. Rodriguez, supra, while being unquestionably binding on this court as to DLRA 1, should not be applied to the interpretation of a different statute that was not the subject of that decision. Additionally, while the language used to define eligibility for resentencing in DLRA 1 is very similar to that used in DLRA 3, the statutes were enacted at different times and applicable to very different classes of convicted inmates. DLRA 1 was applicable to a small number of people serving life sentences with minimum terms of between fifteen and twenty-five years for significant quantity sale and possession of narcotics. DLRA 3, on the other hand, is applicable to many thousands of people serving what the legislature now views as unnecessarily lengthy sentences. One can not say that the legislature's intent with respect to DLRA 3 was the same as its intent with respect to DLRA 1 or DLRA 2.
Rather, the legislature's intent should be determined from the words of the statute, provided those words are clear and unambiguous. See, NY Statutes §§ 76 and 97. Legislative history should be examined when the language of the statute is subject to two rationale interpretations. Here, the language of DLRA 3 is clear and unambiguous. Moreover, the People have cited no legislative documents which reflect that the legislature did not intend DLRA 3 to apply to those who have been returned to custody on parole violations.
Wherefore, this court finds that defendant herein is eligible to apply for resentencing under DLRA 3 where he was paroled on his previously imposed sentence for a class B drug felony and is now in the custody of the Department of Correctional Services serving that previously imposed sentence as a parole violator.
This opinion constitutes the decision and order of the court.