Opinion
0877/02.
Decided July 20, 2006.
On April 5, 2002, the Defendant pleaded guilty to one count of Criminal Possession of a Controlled Substance in the Second Degree, a class A-II felony. He was sentenced to an indeterminate term of eight years to life as a second felony drug offender. Mr. Covel has moved under the Drug Law Reform Act of 2005 (ch 643, § 1, as amended) (DLRA-2) for an order vacating his sentence, and for re-sentencing to a determinate term of imprisonment of six years pursuant to Penal Law § 70.71.Because the Defendant is within one year of his temporary release date, he does not meet the qualifications for re-sentencing under the Drug Law Reform Act.
Facts
The Defendant came to the United States in 1973 from Colombia. He was first convicted in Kings County in 1977 of Criminal Sale of a Controlled Substance in the First Degree, a class A-I felony. He was sentenced to a term of fifteen years to life imprisonment. Mr. Covel has a pending application for re-sentencing in Kings County Supreme Court for this prior conviction.
When the defendant was released in 1992, he was immediately deported to Colombia. That same year, defendant illegally returned to the United States — remaining in New York for the next ten years. On February 12, 2002, the Defendant was arrested for cocaine possession in New York County and charged with Criminal Possession of a Controlled Substance in the First Degree. In April, 2002, he pleaded guilty to one count of Criminal Possession of a Controlled Substance in the Second Degree, a class A-II felony. On November 8, 2002, he was sentenced to an indeterminate term of eight years to life as a second felony drug offender to run consecutive to his earlier life sentence in Kings County.
In addition to this case and his pending application in Kings County, the Defendant faces a federal sentence of sixty-four months for illegal re-entry into the United States ( 8 USC § 1326), and eventual re-deportation.
Drug Law Reform Act
Under the DLRA-2, a defendant is eligible for re-sentencing if he is "more than twelve months away from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law." The term "eligible inmate" is defined in Subdivision (2) for purposes of determining an inmate's eligibility to participate in a temporary release program. In essence, then, DLRA-2 denies re-sentencing to inmates who are within one year of eligibility for temporary release. The critical question becomes, therefore, "When is an inmate eligible for temporary release?" An inmate is eligible for temporary release when he "will become eligible for release on parole or conditional release within two years." Taken together, this means that a defendant is not qualified to apply for re-sentencing if he is eligible for parole within three years. ( People v. Bautista, 26 AD3d 230 [1st Dept], lv granted 6 NY3d 831).
In this case, at the very least, the Defendant is eligible for parole on February 12, 2010. However, if he earns merit time(Correction Law § 803[d][iii]), the Defendant will be eligible for parole release on October 13, 2008. The Defendant filed the re-sentencing motion on November 14, 2005. Under Bautista, he would be ineligible for re-sentencing if the court takes merit time into account because he was less than three years away from being eligible for parole at the time that he filed his re-sentencing motion. Put another way, he is an "eligible inmate" for temporary release on October 13, 2006 and the motion was made just eleven months before that date, rendering him not qualified for re-sentencing under DLRA-2.
On the other hand, if the Court finds that an inmate is not an "eligible inmate" for temporary release until he is within two years of the minimum set by the Court, without regard to merit time reductions, then the Defendant is not eligible for temporary release until February 12, 2008. Since his application was made more than one year before that date, he would qualify for DLRA-2 relief.
The question remains, then, "When is an inmate eligible to participate in a temporary release program under Correction Law § 851?" By Executive Directive of Glenn Goord, Commissioner of the Department of Correctional Services (DOCS), dated April 15, 2003, inmates have been "allowed to apply for temporary release when they are within two years of their merit time date." It has been the policy of the DOCS for more than three years to interpret the definition of "eligible inmate" under Correction Law § 851 to take merit time reductions into account. The Department's reading of the statute has opened the door to an early eligibility date for temporary release for thousands of inmates. A different reading of "eligible inmate", one which would postpone eligibility for temporary release until an inmate was within two years of his court-set minimum, would deny temporary release to a vast number of inmates. In fact, such an interpretation would make little sense since it would delay temporary release eligibility to a point where many of those same inmates had already reached parole eligibility — rendering the prospect of temporary release before eventual parole moot.
Take, for example, a typical case where a person has a six year minimum set by the court. With merit time and supplemental merit time deductions, the inmate is eligible for parole after four years of credited time. If the agency were to read "eligible inmate" to include only those inmates who are within two years of their court-set minimum, the same inmate would not be eligible for temporary release until he had served four years as well. In sum, his parole eligibility date and his temporary release dates would be the same. This narrow reading of "eligible inmate" would strip inmates of the existing opportunity to participate in temporary release programs prior to their parole eligibility date. Thus, the Department's reading of Correction Law § 851 is more logical and consistent with the history of temporary release than a reading which fails to include merit time deductions.
The agency's interpretation of Section 851 of the Correction Law, presumably, was known to the Legislature when it cross-referenced the section in DLRA-2. In fact, the Legislature specifically ratified the Commissioner's executive directive in 2004 by adding Correction Law § 851-2b. (L 2004, ch 738, § 3). That subdivision directs DOCS to consider merit time deductions in calculating eligibility for temporary release. An agency's interpretation of a statute is entitled to consideration if not deference ( compare Chevron USA, Inc. v. NRDC, 467 US 837 and Sash v. Zenk, 428 F3d 132 [2d Cir 2005] with Belmonte v. Snashall, 2 NY3d 560). As explained in Belmonte "[d]eference is generally accorded to an administrative agency's interpretation of statutes it enforces when the interpretation involves some type of specialized knowledge. By contrast, where the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency." id., at 565-566 (citations and internal quotation marks omitted). Here, however, the statute in question, DLRA-2, was enacted after the agency had already established a practice by an interpretation of "eligible inmate", which interpretation was subsequently codified in Section 851-2b. By the time DLRA-2 was enacted, the definition of "eligible inmate" was well-settled. Thus, as a matter of statutory interpretation, it seems clear that the Legislature intended to incorporate the existing practice when it cross-referenced Section 851[2] in DLRA-2.
Accordingly, this Court feels bound to accept the plain reading of DLRA-2 and to deny the Defendant's application as untimely since he is within one year of being an "eligible inmate" as defined by statute, implemented by the agency and subsequently endorsed by the Legislature with the enactment of section 851-2b.
In this case, Mr. Covel will not actually be able to participate in a temporary release program because he owes time to the federal authorities. 7 NYCRR 1900.4 [c][7][ii][b]. However, DLRA-2 excludes applicants who meet the statutory definition of "eligible inmate" without regard to their inability to meet program requirements established by the agency. To hold otherwise would be to reward inmates who are ineligible for temporary release because of a violent history, a history of absconding, multiple convictions or similar misconduct with the prospect of re-sentencing while denying the same opportunity to model inmates.
To hold otherwise would be to advance persistently inconsistent readings of the definition of "eligible inmate" in Subdivision (2) of Section 851. Inmates would be eligible for temporary release when they are within two years of their minimum by a definition of "eligible inmate" which includes merit time deductions, but, at the same time be eligible for re-sentencing by a definition of "eligible inmate" which excludes merit time deductions.
The Defendant argues that this interpretation will have the effect of denying re-sentencing to many deserving inmates. This may be, since a consequence of the interpretation will be to deny re-sentencing to offenders who received shorter sentences while permitting re-sentencing applications for those who received lengthier sentences and were, presumably, more serious offenders. It is not clear, however, that this is an unintended consequence. It would not be irrational for the Legislature to have determined that persons who were approaching temporary release did not require reconsideration of their sentences since they would be released soon in any event if they were also qualified for merit time deductions — as DLRA-2 requires. On the other hand, if the potential applicant is not qualified for merit time deductions, but is near the end of his term, the Legislature may well have determined that re-sentencing is not appropriate. Although the Court is sympathetic to those who, for policy reasons, advocate an expansive view of eligibility for re-sentencing, the Court is, nonetheless, bound by the language of DLRA-2.
The finding in this case is not inconsistent with Bautista. That case held that the Reform Act "require[s] that, in order to be eligible for re-sentencing, an A-II offender may not be eligible for parole within three years." id., at 230. Bautista, however, did not reach the question presented here; whether "eligible for parole" means that the applicant has reached a court-set minimum or a merit-time release date. Since the defendant in that case was within three years of his parole eligibility date under any reading of the statute, his application was denied.
For the reasons stated, the Defendant's application for re-sentencing is denied.