Opinion
5891 Ind. 6998/01
03-06-2018
The PEOPLE of the State of New York, Respondent, v. James MOORE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for respondent.
Friedman, J.P., Tom, Webber, Kern, JJ.
Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered on or about September 16, 2014, which denied defendant's motion for resentencing pursuant to the Drug Law Reform Act of 2005, unanimously affirmed.
The court correctly denied resentencing on the ground that defendant was less than three years from his parole eligibility date when he filed the motion (see People v. Mills, 11 N.Y.3d 527, 536, 872 N.Y.S.2d 705, 901 N.E.2d 196 [2008] ), and it providently disregarded the People's erroneous concession to the contrary (see e. g. People v. Wells, 16 A.D.3d 174, 791 N.Y.S.2d 34 [1st Dept. 2005], lv denied 5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 [2005] ). Accordingly, the court was not required to assign counsel or conduct a hearing (see People v. Santana, 44 A.D.3d 340, 841 N.Y.S.2d 875 [1st Dept. 2007], lv dismissed 9 N.Y.3d 964, 848 N.Y.S.2d 33, 878 N.E.2d 617 [2007] ). A defendant is entitled to a hearing on the merits of a resentencing application, but not necessarily on the threshold issue of eligibility ( People v. Golo, 26 N.Y.3d 358, 362–363, 23 N.Y.S.3d 110, 44 N.E.3d 185 [2015] ). Here, defendant's ineligibility was clear, and there was nothing to litigate.
Defendant argues that the 2005 Act should be reinterpreted in light of recent developments, including those relating to the resentencing of persons convicted of other types of drug felonies. However, no decision finding eligibility with regard to any other Drug Law Reform Act has vitiated the 2005 Act's clear eligibility requirement that the applicant's parole eligibility date be at least three years in the future. To accept defendant's argument, we would have to rewrite the statute to treat persons convicted of class A–II felonies the same as persons convicted of other drug felonies (see People v. Horning, 143 A.D.3d 520, 39 N.Y.S.3d 423 [1st Dept. 2016],lv dismissed 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016] ). We have considered and rejected defendant's constitutional arguments (see People v. Paniagua, 45 A.D.3d 98, 109–110, 841 N.Y.S.2d 506 [1st Dept. 2007], lv denied 9 N.Y.3d 992, 848 N.Y.S.2d 610, 878 N.E.2d 1026 [2007] ).