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No Appeal to the Court of Appeals Lies from the Appellate Division’s Affirmance of the Denial of Resentencing Pursuant to the 2004 Drug Law Reform Act (DLRA)

The Court of Appeals determined no appeal lies from the Appellate Division’s affirmance of the denial of resentencing pursuant to the 2004 Drug Law Reform Act (DLRA). The fact that the order (denying resentencing) was consolidated with appealable orders did not confer jurisdiction to hear the appeal upon the Court of Appeals:

“It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute,” and courts “may not resort to interpretative contrivances to broaden the scope and application of statutes” governing the availability of an appeal … . [W]e have held that no statutory provision authorizes a defendant to appeal from an Appellate Division order affirming the denial of the defendant’s resentencing application pursuant to the 2005 Drug Law Reform Act … . The 2004 DLRA includes similar language relating to appeals; accordingly, no appeal lies from an order of the Appellate Division affirming the denial of a resentencing application under the 2004 DLRA … . Faced with this barrier to our review, defendant contends that the Appellate Division’s consolidation of the order denying resentencing with other, appealable orders, transformed the nonappealable order into one that we may consider. We disagree. The Appellate Division’s authority to consolidate appeals stems from its inherent authority to administer and manage its proceedings. The Appellate Division’s use of this inherent authority does not expand or modify the scope of our jurisdiction, which is established by statute. People v Lovett, 2015 NY Slip Op 05512, CtApp 6-25-15

 

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Reduced Sentences Pursuant to the Drug Law Reform Act Apply to Those on Parole As Well As Those Who Are Incarcerated

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a two-judge dissent, determined that the ability to apply for a reduced sentence for drug offenses pursuant to the Drug Law Reform Act applied to those on parole, as well as those who are incarcerated: “The issue presented by this appeal is whether the 2011 amendments to CPL 440.46 expanded the class of defendants eligible for resentencing under the Drug Law Reform Act to include those who are on parole at the time resentencing is sought. We left this question open in People v Paulin (17 NY3d 238, 243 [2011]) and People v Santiago (17 NY3d 246, 247 [2011]), and now hold that the amendments did expand eligibility to parolees …” . People v Brown, 2015 NY Slip Op 04163, CtApp 5-14-15

 

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DLRA Provision Terminating Sentences After Three Years of Unrevoked Parole Did Not Apply to Non-Drug Related Offense by “Merger”

The Second Department, in a full-fledged opinion by Justice Rivera, determined that the provision of the Drug Law Reform Act (DLRA) [Executive Law former 259-j (3-a)] which allowed the termination of sentences for enumerated drug crimes after three years of unrevoked parole did not apply (under a merger theory) to a non-drug conspiracy offense where the maximum sentence for the conspiracy had not expired at the time the three-year-unrevoked-parole mark for the drug offenses had been reached:

The application of Executive Law former § 259-j(3-a) to this petitioner did not squarely fit within the express purpose of the 2004 DLRA. The 2004 DLRA was intended to grant specific relief to a clearly identified and circumscribed class, namely, “low level non-violent drug offenders” … . A “manager of a drug ring” cannot be deemed to be the low level offender contemplated by the statute. Further, it is unreasonable to perceive someone convicted of conspiracy to murder as “nonviolent.”

Notwithstanding the foregoing, the petitioner seeks more than the benefit heretofore conferred upon him by the 2004 DLRA and Executive Law former § 259-j(3-a). He seeks, in effect, to bootstrap the sentence imposed on the conspiracy conviction to the sentences imposed on the drug-related convictions in an attempt to discharge the remaining term thereof. However, this attempt must fail for the following reasons.

First, Executive Law former § 259-j(3-a) applies only to the specific drug-related felony offenses set forth in articles 220 and 221 of the Penal Law (see Correction Law § 205[4]). That statute cannot be reasonably construed to terminate the petitioner’s sentence on the conspiracy conviction, a non-drug-related conviction. The outcome sought by the petitioner is contrary to established precedent. Courts applying the DLRA are “not given the discretion to fashion new sentences or add terms of imprisonment, but are constrained to make an existing sentence determinate in the manner dictated by the DLRA” … .

Second, we disagree with the petitioner’s reading of Penal Law § 70.30(1) … . * * * The express language of Penal Law § 70.30(1) states that the maximum terms shall “be satisfied by discharge of the term which has the longest unexpired time to run.” … [A]t the time that [petitioner] became eligible for relief under Executive Law former § 259-j(3-a), none of the terms had expired or been discharged. The application of Executive Law former § 259-j(3-a) operated to effectively shorten the maximum term of his drug-related sentences (i.e., life) to the approximately 16 years that the petitioner served. Thus, upon the application of the early-termination provision under Executive Law former § 259-j(3-a), the maximum term of his sentence on the conspiracy conviction, which was 25 years, had the longest unexpired time to run (see Penal Law § 70.30[1][a]). People ex rel. Baez v Superintendent, Queensboro Corr. Facility, 2015 NY Slip Op 01827, 2nd Dept 3-4-15

 

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Resentencing Under Drug Law Reform Act Is Available to a Persistent Felony Offender As Long As the Offender Has Not Been Convicted of Any of the Serious Offenses Enumerated in Correction Law 803

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, resolved a conflict among the appellate division departments about the applicability of the Drug Law Reform Act (DLRA) to persistent felony offenders.  The court determined that the resentencing allowed by the DLRA for certain drug-related offenses is available to persistent felony offenders who have not been convicted of any of the serious crimes enumerated in Correction Law 803:

The Drug Law Reform Act of 2009 (see L 2009, ch 56, § 1, hereinafter “2009 DLRA”) provides remedial resentencing to low-level non-violent felony drug offenders who meet various basic eligibility requirements (see CPL 440.46 [1]). The 2009 DLRA, however, denies resentencing to any offender who is serving a sentence for an “exclusion offense,” which is, among other things, an “offense for which a merit time allowance is not available pursuant to [Correction Law § 803 (1) (d) (ii)]” (CPL 440.46 [5]; CPL 440.46 [5] [a] [ii]). Correction Law § 803 (1) (d) (ii), in turn, makes a merit time allowance unavailable to an offender who is serving a sentence imposed for any of the violent or sexual crimes specifically enumerated in that statute, without regard to the offender's predicate sentencing status (see Correction Law § 803 [1] [d] [ii]). That statute also prevents any offender serving a sentence “authorized for an A-I felony offense” from receiving a merit time allowance (id.), thereby denying such an allowance to anyone who has been sentenced as a persistent felony offender (see Penal Law §§ 70.02 [2] [a]; 70.02 [3] [a] [i]; 70.10 [2]).

In interpreting the language of these interlocking statutes, the Departments of the Appellate Division are divided over the proper answer to the following question: does the DLRA resentencing exclusion apply to all offenders who are ineligible to receive a merit time allowance, including those who cannot receive those allowances solely by virtue of their recidivist sentencing adjudications; or, to the contrary, does it apply only to offenders who have been convicted of certain serious crimes that are specifically listed in Correction Law § 803 (1) (d) (ii) and eliminate the possibility of a merit time allowance regardless of an offender's recidivist sentencing adjudication? We hold that the exclusion applies only to offenders who have been convicted of one or more of the serious crimes that automatically render merit time allowances unavailable under Correction Law § 803 (1) (d) (ii), and that therefore an offender who has no such conviction may be resentenced, notwithstanding his or her adjudication as a persistent felony offender. People v Coleman, 2014 NY Slip Op 07010, CtApp 10-16-2014

 

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Parole Violators May Apply for Resentencing Under Drug Law Reform Act—County Court Properly Denied the Application Based Upon the Nature of Defendant’s Convictions and Serious Prison Infractions

In affirming County Court’s denial of defendant’s motion for resentencing under the Drug Law Reform Act, the Third Department noted that the fact that defendant violated parole did not prevent him from applying for resentencing:

While parole violators may indeed apply for resentencing, denial of such an application may be warranted if they “have shown by their conduct that they do not deserve relief from their sentences” … . Defendant has a violent criminal history and, indeed, his most recent criminal conviction and parole violation stem from his possession of a defaced and loaded handgun. The record further reveals that defendant has a lengthy record of serious prison disciplinary infractions, many of them involving violence. We thus find that, notwithstanding defendant’s positive programming achievements while incarcerated, “County Court properly exercised its discretion in finding that substantial justice would not be served by resentencing” him … . People v Allen, 2014 NY Slip Op 04087, 3rd Dept 6-5-14

 

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Applicant Eligible for Relief Under Drug Sentencing Reform Statute Must Be Afforded a Hearing

The Third Department noted that an applicant who is eligible of for a relief under the “drug sentencing reform” statute, CPL 440.46, must be afforded a hearing.  People v Cain, 2014 NY Slip Op 03711, 3rd Dept 5-22-14

 

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Two Dissenting Justices Found Defendant’s Sentence Excessive Under the Facts

The First Department, over a two-justice dissent, found that the defendant’s application for resentencing under the Drug Reform Act was properly denied.  The decision is notable for the dissents, which forcefully argued defendant’s sentence was harsh and excessive in light of all the facts. People v Lovett, 2014 NY Slip Op 02329, 1st Dept 4-3-14

 

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Handling Of Consecutive Sentences Under the Drug Law Reform Act Explained

Finding the resentence excessive, the Second Department reduced defendant’s resentence under the Drug Law Reform Act (DLRA) from five consecutive 20-year terms to five consecutive 15-year terms, noting that because the original sentence (five 25-to-life terms) was consecutive, the terms imposed under the Drug Law Reform Act must also be consecutive:

Here, the defendant sought to be resentenced for the convictions of criminal sale of a controlled substance in the first degree, for which he had originally received consecutive sentences amounting to a total aggregate term of imprisonment of 125 years to life. Although the Supreme Court correctly observed that it was powerless, under the DLRA, to alter the defendant’s sentence so that the five terms of imprisonment imposed for the convictions of criminal sale of a controlled substance in the first degree run concurrently with each other …, it was nevertheless permitted to “consider any facts or circumstances relevant to the imposition of a new sentence” (L 2004, ch 738, § 23…). Accordingly, under the circumstances, in evaluating the appropriate terms of imprisonment to impose upon resentencing, the Supreme Court should have considered the fact that the sentences that were originally imposed for the convictions of criminal sale of a controlled substance in the first degree were directed to run consecutively to each other … . Here, since the resentences imposed by the Supreme Court were required to run consecutively with each other, the total aggregate term of imprisonment for the convictions of criminal sale of a controlled substance in the first degree still amounted to 100 years in prison. * * *Under the circumstances of this case, including the fact that the courts are constrained from giving effect to the ameliorative purpose of the DLRA by directing resentences to run concurrently with each other when they were originally directed to run consecutively …, we conclude that the resentence imposed was excessive to the extent indicated… . People v Cole, 2014 NY Slip Op 01182, 2nd Dept 2-19-14

 

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Parolees May Move for Resentencing Under the Drug Law Reform Act

In a full-fledged opinion by Justice Cohen, the Second Department determined that parolees are “in custody” within the meaning of the 2011 amendments to the Drug Law Reform Act and, therefore, parolees may move for resentencing under the act:

In 2011, a New York State budget enactment consolidated and modernized several state agencies and created new departments (see L 2011, ch 62). This legislation merged the New York State Department of Correctional Services and the New York State Division of Parole into a single agency, the New York State Department of Corrections and Community Supervision (see id.). At that time, CPL 440.46(1) was amended by changing “department of correctional services” to “department of corrections and community supervision,” so that now “[a]ny person in the custody of the department of corrections and community supervision,” otherwise qualified, could apply to be resentenced (CPL 440.46[1]). People v Brown, 2014 NY Slip Op 00524, 2nd Dept 1-29-14

 

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Presumption in Favor of Resentencing (re: the New Scheme for Drug Offenses) Not Rebutted—Supreme Court Should Not Have Denied Motion for Resentencing

The Second Department determined the factors relied upon by the resentencing court were not sufficient to overcome the presumption in favor of resentencing under Criminal Procedure Law 440.46:

The Supreme Court improvidently exercised its discretion in denying the defendant’s motion to be resentenced pursuant to CPL 440.46. Although resentencing is not mandatory, there is a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23; CPL 440.46[3]…). Under the circumstances of this case, the factors relied upon by the Supreme Court in denying the motion–the defendant’s criminal history, disciplinary infractions, and parole violations–are insufficient to overcome the statutory presumption. The defendant served more than 14 years in prison for a low-level drug crime committed when he was 19 years old. The defendant’s criminal history included only larcenous and low-level drug crimes, all committed before he was 20 years old. While the defendant violated his parole by failing to abide by certain parole rules, including, inter alia, by breaking curfew and by traveling to Georgia to be reunited with his family, he has never committed another crime or had a positive drug test. Under all of the circumstances presented here, “the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted”… . People v Simmons, 2013 NY Slip Op 08103, 2nd Dept 12-4-13

 

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