Opinion
No. 4776–2003.
2010-06-25
The PEOPLE of the State of New York, v. Javier ARROYO, Defendant.
Richard Greenberg, Esq., Office of the Appellate Defender, for the Defendant. Nikki Harding, Assistant District Attorney, Office of the Bronx District Attorney.
Richard Greenberg, Esq., Office of the Appellate Defender, for the Defendant. Nikki Harding, Assistant District Attorney, Office of the Bronx District Attorney.
RICHARD LEE PRICE, J.
Defendant moves this court, pursuant to CPL 440.46, to resentence him on his conviction for criminal sale, and possession, of controlled substance in the third degree. The People contend that defendant is not eligible for resentencing because of his 1993 conviction for criminal possession of a weapon in the third degree, arguing that it constitutes an “exclusion offense” as that term is defined in section 440.46(5)(a) of the Criminal Procedure Law. Defendant claims, conversely, that such conviction is not an “exclusion offense” under CPL 440.46(5)(a) since it was committed more than ten years before the instant conviction, excluding any time for which defendant was incarcerated. For the reasons stated below, the defendant's motion is granted.
Background
On September 3, 2003, arresting officers observed the defendant sell one bag of heroin to another individual. After being placed under arrest, officers discovered an additional eighteen bags of heroin inside the defendant's jacket pocket. He was subsequently charged by indictment with criminal sale of a controlled substance in the third degree (PL 220.16[1] ) and criminal possession of a controlled substance in the third degree and (PL 220.39[1] ). On December 9, 2004, defendant was convicted after a jury trial of both charges. Judgement was entered in the Supreme Court, Bronx County, (Farber, J) on February 10, 2005, to two consecutive terms of twenty years imprisonment with a mandatory minimum period of ten years. The Appellate Division, First Department, affirmed defendant's conviction on October 26, 2006 (People v. Arroyo, 33 A.D.3d 547, 823 N.Y.S.2d 61 [1st Dept 2006] ). On February 6, 2007, the Court of Appeals denied defendant leave to appeal ( People v. Arroyo, 8 N.Y.3d 878 [2007] [Table] ). Having served more than six years of his indeterminate sentence, defendant now moves for resentencing pursuant to CPL 440.46.
Drug Law Reform Act
The Drug Law Reform Act (“DLRA”) (2004 N.Y. Laws Ch 738 [effective January 13, 2005] ), was enacted in response to the sentencing policies under New York's “Rockefeller Drug Laws.” Such reform was intended to ameliorate the sentences imposed on individuals who had committed Class A–I and Class A–II drug offenses (“DLRA 1” and “DLRA 2,” respectively). Subsequently, in 2009, the Legislature enacted the DLRA 3, which extended sentencing relief to those convicted of Class B, C, and D drug offenses. Under the DLRA 3, qualified applicants convicted of a Class B drug offense are entitled to a reduced determinate sentence in accordance with section 60.04 and 70.70 of New York's Penal Law (see CPL 440.46[1] [McKinney 2009] ).
CPL 440.46(1) entitles a defendant to petition for resentencing if that defendant: 1) is in the custody of the Department of Correctional Services; 2) has been convicted of a Class B felony offense committed prior to January 13, 2005; and 3) is serving an indeterminate sentence with a maximum term of imprisonment exceeding three years ( id.). Resentencing is prohibited, however, for inmates who have been convicted of an “exclusion offense.” CPL 440.46(5)(a) defines “exclusion offense” as
a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was: (i) a violent felony offense as defined in section 70.02 of the penal law.
( CPL 440.46[5][a] ).
Defendant's 1993 conviction for criminal possession of a weapon in the third degree (PL 265.02[4] ) is a violent felony offense under PL 70.02(1)(c).
It is undisputed that defendant satisfies each element under CPL 440.46(1); he is currently in the custody of the New York State Department of Correctional Services, he was convicted of criminal sale and criminal possession of a controlled substance, both of which are Class B felonies, before January 13, 2005, and his maximum term of imprisonment is twenty years. Thus, the sole issue for this court to decide is whether defendant's previous conviction for criminal possession of weapon is an “exclusion offense” as that term is defined in CPL 440.46(5)(a).
Relative to this issue, the parties take opposing views on whether defendant's prior violent felony conviction is an “exclusion offense.” Their dispute hinges on the meaning this court should place on the look-back language of CPL 440.46(5)(a), specifically whether defendant “was previously convicted [of his violent felony offense] within the preceding ten years” ( id.)
Defendant contends the look-back period is measured from the date that the resentencing application is filed, excluding any time during which defendant was incarcerated between the date on which the previous (violent) felony was committed and that of the present felony. The People, conversely, view the look-back period as commencing on the date on which the instant felony was committed, not the date on which the resentencing application was filed (similarly excluding any incarceration time between the commission of the previous violent felony offense and the commission of the instant offense). Thus, whether the look-back period is measured from the filing of the resentencing motion or the commission of the instant offense requires a careful reading of CPL 440.46, along with an inquiry into the legislative history of the statute, its purpose, and the manner in which other courts and agencies have interpreted.
Discussion
It is axiomatic that a court, when engaging in statutory analysis, must attempt to give effect to the intent of the Legislature. In so doing, “[t]he starting point is always to look to the language itself and where the language of a statue is clear and unambiguous, courts must give effect to its plain meaning” (People v. Danton, 27 Misc.3d 638, 641, 895 N.Y.S.2d 669 [Sup Ct, N.Y. County, 2010, J Kahn] citing Pultz v. Economakis, 10 N.Y.3d 542, 547 [2008] [internal quotation marks, brackets and citations omitted]; see also People v. Finnegan, 85 N.Y.2d 53, 58 [1995] ). Here, the “exclusion offense” in CPL 440.46(5)(a) is defined as “a crime for which the person was previously convicted within the preceding ten years” (CPL 440.46[5][a] ). To be sure, the look-back period language, “within the preceding ten years,” is far from clear and unambiguous. Nevertheless, while the people contend that it can arguably be interpreted as meaning from the commission of the instance offense, the more natural reading suggests that inherently, “within the preceding ten years” refers to the day on which the resentencing application was filed.
Initially, when considering the meaning of a statute that is less than clear and unambiguous, a court would ordinarily examine its legislative history. In this case, however, CPL 440.46 was enacted without any such historical record (see People v. Brown, 26 Misc.3d 1204(A), 2010 WL 9928 [Sup Ct, N.Y. County, 2010, J Conviser] [observing bill jacket for the DLRA 3 contained only the bill itself, due to its enactment as part of budget bill, and lacked the typical submissions from advocacy groups, government agencies and legislators] ). As such, the legislative history offers no insight as to when the look-back period should begin, and this court must look elsewhere to decipher the Legislature's intent. Additional insight into the intentions of the Legislature can be ascertained, however, by examining the context in which CPL 440.46 was drafted.
As part of a series of statutory reforms designed to ameliorate the overly harsh punishments handed out to low-level drug offenders under New York's “Rockefeller Drug Laws,” the New York Legislature enacted the DLRA 3. The Legislature enacted these reforms because of the belief that low-level drug offender's punishments outweighed their crimes and that research suggested better, more humane, less costly alternatives to incarceration existed. Considering the DLRA in its entirety, it is clear that its very spirit of the DLRA 3 is to reduce the sentences of low level, non-violent felony drug offenders. Therefore, “it is appropriate to resolve any ambiguity [in the language CPL 440.46(5)(a) ] in favor of the more ameliorative, rather than the more punitive, construction” (People v. Danton, 27 Misc.3d at 644, 895 N.Y.S.2d 669).
The People urge this court, however, to apply the same standard used in recidivist laws codified in PL 70.06. Specifically, they argue that because defendant was already adjudicated as a second felony offender when he was sentenced in 2005, the same standard used to measure the look-back period under PL 70.06 should be applied. Such reasoning is flawed because the purpose of the recidivist laws is entirely in conflict with the ameliorative purpose of CPL 440.46. The DLRA statutes were enacted to reduce, rather than to extend, the eligible defendant's sentence.
To illustrate, an individual convicted of a Class B felony drug charge nine years and 364 days after having been convicted of a violent felony offense would be precluded from applying for a reduced sentence under the DLRA 3, whereas the same defendant convicted of that crime two days earlier would be entitled to do so. While this result makes sense in the context of the recidivist statutory scheme, since the purpose of those statutes is to impose more severe punishment on persons who continue to commit felonies relatively soon after having been subjected to punishment for similar felonious conduct, the same cannot be said of the DLRA statutory scheme. In the DLRA 3 context, “[a]dopting an interpretation of the statute which permits defendants to age into eligibility for resentencing is more in keeping with the overall purposes of the DLRA 3 (as well as with those of the DLRA and DLRA 2), allowing prisoners to distance themselves from their past misbehaviors and demonstrate progress in rehabilitation” (>I at 644).
Additionally, CPL 70.06 defines a predicate felon as one convicted of a felony within the previous ten years of “ the date of commission of the instant felony ” (PL 70.06[b][iv] [McKinney 2007] [emphasis added] ). Presumably, the legislature was aware of the language in PL 70.06, and considered such language when drafting CPL 440.46(5). The absence of such language in CPL 440.46(5)(a), compared to the express language in PL 70.06, further strengthens the conclusion that the look-back period should commence from the day the resentencing application is filed, not the date on which the instant felony was committed.
While this court need not seek additional support for its conclusion, several lower courts have indeed interpreted CPL 440.46(5)(a) as such. The court in People v. Brown, (26 Misc.3d at 1204, 896 N.Y.S.2d 805[A] ), rejected the very claim the People advance here, stating that “[t]here are valid linguistic arguments for why the reference point for the ten year look-back provision might be read as the People contend.... But no amount of verbal parsing can overcome the plain fact that the most natural construction of the law is to read its reference point as the date of a resentencing application” Brown at 1208[A] ).
The same conclusion was reached in People v. Roman (26 Misc.3d 784, 889 N.Y.S.2d 922 [Sup Ct, Bronx County, 2009, J Mogulescu] ) and People v. Jerry Williams (Ind. Nos. 9280–1999, 5364–2004, unreported [Sup Ct, N.Y. County, December 23, 2009, J Pickholz] ). In so doing, Justice Pickholz stated “[a]lthough it is far from impossible to read the statute in the manner [the People] argue, it requires willful effort to do so. The more natural reading of [CPL 440.46(5)(a) ] is that the ten-year period looks back from the present, i.e., the date of the filing of the application” ( id. at 11). On construing CPL 440.46(5)(a), the court in Danton followed the reasoning set forth in both Brown and Williams (Danton, 27 Misc.3d 638, 895 N.Y.S.2d 669). That court, after a lengthy and well-reasoned analysis, stated “the natural and ovious meaning of within the preceding ten years' is the ten year-period immediately preceding the date of filing of the re-sentencing application” ( id at 642, 895 N.Y.S.2d 669).
In fact, no court thus far has accepted the interpretation of the CPL 440.46(5)(a) look-back provision that the People urge this court to adopt. As such, this court finds no basis to depart from the reasoning articulated in Brown, Williams and Dalton and agrees that the natural reading of CPL 440.46(5)(a) requires courts to measure the look-back period from the date on which filing the resentencing application is filed.
Finally, while certainly not determinative, it is noteworthy that the Department of Correctional Services (“DOCS”) has also taken the position that the look-back period be measured from the date on which the resentencing application is filed, obviously excluding any time a defendant may have been incarcerated between the dates on which is prior and present offenses were committed ( see Def.'s Mot. Ex. F [Dec. 21, 2009] ). Although not controlling, DOCS interpretation does indeed aid in clarifying which Class B felony drug offenders are eligible to apply for resentencing.
Accordingly, this court finds the look-back statutory language of CPL 440.46(5)(a), “within the preceding ten years,” should be measured from the ten years preceding the date on which defendant's application for resentencing is filed.
Application
Defendant is eligible to apply for resentencing because his 1993 conviction is not an “exclusion offense.” Measuring the look-back period from June 28, 1993, the date of commission of the weapon possession charge, and December 21, 2009, the date on which defendant filed his application for resentencing, sixteen years, five months, and twenty-four days elapsed. As noted above, however, any time that the defendant was incarcerated between the commission of the previous felony and the commission of the instant felony tolls the look-back period and must be subtracted from such calculation.
On June 28, 1993, defendant was convicted of criminal possession of a weapon in the third degree and sentenced to one year in jail, of which he served three months and three days. In 1995, defendant pled guilty to federal racketeering and conspiracy charges and in 1998 was sentenced in to a term of eighty-four months, of which he served six years, two months, and four days. Thus, between the commission of the previous felony and that of the instant offense, defendant was incarcerated for a total of six years, five months, and seven days. This tolling period then, when subtracted from the sixteen years, five months, and twenty-four days between the prior felony and the date of filing of the resentencing application, reduces it to ten years and seventeen days. Defendant's 1993 conviction is not, therefore, within the previous ten years and presents no statutory bar to defendant's eligibility to apply for resentencing.
The People also argue that the time defendant spent incarcerated after the commission of the instant felony should be included in the tolling period. This argument is completely without merit. The language concerning the tolling period in CPL 440.46(5)(a) is unequivocally clear. The statute explicitly states that the tolling period is “ between the time of commission of the previous felony and the time of commission of the present felony.” (CPL 440.46[5][a] [emphasis added] ).
Having determined defendant's eligibility to seek sentencing relief pursuant CPL 440.46, this court must decide whether substantial justice dictates a denial of defendant's motion. Applying the DLRA 1 and DLRA 2 standard for granting sentencing relief to the DLRA 3 via incorporation by reference ( see CPL 440 .46[3] [referring to procedures outlined in L.2004, Ch. 738, § 23] ), the court “may consider any facts or circumstances relevant to the imposition of a new sentence,” including the “institutional record of confinement” (L.2004, Ch. 738 § 23). The DLRA 3 further provides that “the Court's consideration of the institutional record of confinement ... shall include but not be limited to such person's participation in or willingness to participate in treatment or other programming while incarcerated and such person's disciplinary history” (CPL 440.46[3] ).
Although not expressly defined, courts have understood “substantial justice” relative to denying a resentencing application as being a very high bar to overcome (People v. Jones, 25 Misc.3d 1238(A), 2009 WL 4724244 [Sup Ct, N.Y. County, December 10, 2009, J Conviser] [“In order for a court to completely deny resentencing, the facts and circumstances of an offender's instant crime, criminal history, institutional record and other relevant facts must point so strongly against resentencing, when considering notions of fairness, reasonableness and due process, as to authoritatively command that an application be completely denied”]. To this end, CPL 440.36 imposes a presumptive applicability, providing that once a defendant is otherwise eligible for resentencing, a court shall not deny the application unless “substantial justice dictates that the application be denied” (L.2004, Ch. 738, § 23 [emphasis added] ).
Here, the record is entirely devoid of anything to justify such a finding. In fact, quite the opposite is true. Defendant is serving time for a low-level drug offense. He has neither been charged with nor convicted of any violent conduct since 1995. His institutional record over the last six years has yielded only three violations, two of which this court finds to be benign. The third, a positive drug test, is more troubling. But taken together with the positive aspects of defendant's institutional record, summary denial of defendant's application for resentencing under the DLRA 3 is not warranted. Indeed, given that “[t]he purpose of the resentencing provision ... is simply to retroactively reduce the level of punishment for certain drug offenses,” this court can find no basis upon which to deny defendant such an opportunity (People v. Vaughan, 62 A.D.3d 122, 125–26, 876 N.Y.S.2d 82 [2d Dept 2009] ).
Accordingly, after reviewing the parties' respective papers submitted in support thereof, prior court proceedings and documents on file, this court grants defendant's motion pursuant to CPL 440.46 for resentencing on his conviction for criminal sale, and possession, of controlled substance in the third degree orders that a resentencing hearing be conducted.
This constitutes the decision and order of the court.
The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.