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Defendant Should Have Been Advised of His Right to Be Heard in Resentencing Proceeding Pursuant to CPL 440.46

The Second Department determined the failure to inform defendant of his right to be heard in a resentencing proceeding pursuant to CPL 440.46 required a remittance:

The statutory procedures governing the determination of a motion for resentencing pursuant to CPL 440.46 provide, in pertinent part, that “[t]he court shall offer an opportunity for a hearing and bring the applicant before it” (L 2004, ch 738, § 23; see CPL 440.46[3]…). The defendant’s presence is not required for the court’s threshold determination of the purely legal issue of whether the defendant meets the statutory eligibility requirements for relief pursuant to CPL 440.46 …, but the defendant is entitled to appear before the court and to be given an opportunity to be heard with respect to the merits of the resentencing motion … .

Here, the defendant was not brought before the Supreme Court prior to the court’s determination that, although he met the statutory eligibility requirements, substantial justice dictated that his motion for resentencing should be denied. There is nothing in the record to indicate that the defendant was ever advised of his statutory right to be brought before the court, or that he knowingly, intentionally, and voluntarily chose to relinquish that right … .The Supreme Court therefore failed to comply with the statutory mandate… .  People v Duke, 2013 NY Slip Op 07983, 2nd Dept 11-27-13

 

Defendant’s 440.46 Motion for Resentencing Should Not Have Been Denied

In finding defendant’s motion for resentencing pursuant to CPL 440.46 should have been granted, the Second Department explained the relevant criteria:

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 and parole violations–are insufficient to overcome the statutory presumption. The instant offense and many of the defendant’s prior offenses consisted of low-level drug crimes, and none of the defendant’s recent convictions involved violence or weapons …. The defendant had no disciplinary infractions in prison, and had several positive accomplishments … . While the defendant’s parole violations were a relevant consideration …, they were only one factor to consider, and did not mandate denial of the defendant’s motion …. 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 Green, 2013 NY Slip Op 06588, 2nd Dept 10-9-13

 

Sentence for Which Merit Time Allowance Is Not Available Did Not Preclude Application for Resentencing Under Drug Law Reform Act

The Third Department, over a dissent, declined to follow the 2nd Department in its application of CPL 440.46 (Drug Law Reform Act).   The defendant was eligible to apply for resentencing based upon his offense, but, under the sentence defendant was serving at the time of his application for resentencing, he was not entitled to a merit time allowance pursuant to the Correction Law.  The Third Department determined defendant was eligible to apply for resentencing:

Although defendant, having been sentenced pursuant to his drug offense convictions as a persistent felony offender, is serving a sentence that would preclude him from earning merit time pursuant to Correction Law § 803 (see Correction Law § 803 [1] [d] [ii]; Penal Law § 70.10 [2]), he was not convicted of an “offense for which a merit time allowance is not available” (CPL 440.46 [5] [a] [ii] [emphasis added]; see Penal Law §§ 10.00 [1]; 220.39).  This distinction is significant.  The Penal Law states:

“‘Offense’ means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same” (Penal Law § 10.00 [1]).

Defendant’s offense and his sentence are thus two separate components that we decline to conflate for purposes of depriving an otherwise eligible person of the benefits of the remedial legislation that we are tasked with interpreting here.  To the extent that the [2nd] Department held to the contrary in People v Gregory (80 AD3d 624 [2011], lv denied 17 NY3d 806 [2011]), we decline to follow that case.  Accordingly, we find that defendant is eligible to apply for resentencing pursuant to the Drug Law Reform Act of 2009, and County Court erred in denying defendant’s motion.  People v Coleman, 104851, 3rd Dept 8-1-13

 

Motion for Resentencing Under CPL 440.46 (Drug Reform Law) Properly Denied

The Second Department affirmed Supreme Court’s denial of defendant’s motion for resentencing pursuant to CPL 440.46:

When a defendant is eligible for resentencing pursuant to CPL 440.46, there is ” a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof'”…. “However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court”…. In exercising its discretion, a court may “consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by [the defendant] or the people” (L 2004, ch 738, § 23), including the defendant’s institutional record of confinement, the defendant’s prior criminal history, the severity of the current offense, whether the defendant has shown remorse, and whether the defendant has a history of parole or probation violations…. Relevant considerations include the defendant’s status as a probation or parole violator as a consequence of the conviction for which resentencing is sought…, and the defendant’s conviction of a violent felony subsequent to the commission of the narcotics felony for which resentencing is sought…. People v Parker, 2013 NY Slip Op 04831, 2nd Dept 6-26-13

 

Parole Violation Did Not Preclude Application for Resentencing Under the Drug Law Reform Act

The Fourth Department determined County Court erred when it denied defendant’s application for resentencing under the Drug Law Reform Act on the ground defendant was a reincarcerated parole violator.  Nor did it matter that defendant was released from parole supervision after he made the application.  People v Saffold, 666, 4th Dept, 6-7-13

 

Matter Remitted; County Court Did Not Follow Procedure Mandated by Drug Law Reform Act

In remitting the matter, the Third Department explained County Court failed to follow the procedure mandated by the Drug Law Reform Act:

The record contains no written order denying defendant’s application for resentencing and setting forth County  Court’s “findings of fact and the reasons for such order” as is required under the Drug Law Reform Act (L 2004, ch 738, § 23). Absent the necessary written order, we are without jurisdiction to consider defendant’s appeal … .  People v Allen, 104967, 3rd Dept, 5-23-13​

 

Proper Procedure for Resentencing Under Drug Law Reform Act Explained

The Third Department explained the proper procedure for resentencing under the Drug Law Reform Act as follows:

The Drug Law Reform Act establishes a specific procedural course that was not followed here. Upon  finding a  defendant eligible for resentencing, the court must  issue a  written interlocutory order informing the defendant of the term of imprisonment  it intends to impose, setting forth findings of fact and the reasons underlying the proposed resentence, and advising the defendant  that, unless he or she withdraws  the application or appeals from the interlocutory order, the court will vacate the original sentence and impose the proposed resentence (see L 2004, ch 738, § 23).County  Court’s failure to proceed  in this manner deprived defendant of the opportunity to carefully consider his options, including the taking of an  appeal  from  the interlocutory order.  People v Minor, 104880, 3rd Dept, 5-16-13

 

 

Procedure for Resentencing Under Drug Law Reform Act Not Followed

County Court failed to comply with the statutory procedure for resentencing pursuant to the Drug Law Reform Act of 2004 (Criminal Procedure Law 440.46).  County Court did not issue a written order re: the new sentence, did not issue written findings of fact and reasons for the sentence, and did not inform the defendant of his right to appeal the resentence or his right to withdraw his motion for resentencing.  The Third Department wrote:

Resentencing under CPL 440.46 incorporates the detailed procedures of the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23…). Those procedures require, as relevant here, that an order issued by  the court informing a defendant of the sentence it will impose in the event of resentencing “must include written findings of fact and reasons for such order” (L 2004, ch 738, § 23 …). Defendant must also be notified that he  or she has a right to appeal that written order of proposed resentencing as well as a right – which can be exercised after the appeal and upon remand – to be  given an  opportunity to withdraw  the application for resentencing before any resentence is imposed…. People v Delayo, 104402, 3rd Dept, 3-2-13

 

Hearing Required for Motion for Resentencing

The Second Department explained the hearing requirement of Criminal Procedure Law 440.46 (re: a motion for resentencing) as follows:

CPL 440.46(3), provides, in pertinent part, that “[t]he provisions of section twenty three of chapter seven hundred thirty eight of the laws of two thousand four shall govern the proceedings on and determination of a motion brought pursuant to this section.” Section 23 of chapter 738 of the Laws of 2004 states, in pertinent part: “The court shall offer an opportunity for a hearing and bring the applicant before it. The court may also conduct a hearing, if necessary, to determine . . . any controverted issue of fact relevant to the issue of sentencing.” The defendant’s presence is not required where the court determines as a matter of law that a defendant is not entitled to relief pursuant to CPL 440.46 …. However, here, the People conceded that the defendant met the statutory requirements for relief pursuant to CPL 440.46, and the question before the court was whether substantial justice dictated that the motion should be denied. Thus, the defendant is entitled to appear before the court and to be given an opportunity to be heard .. . Since the defendant was not brought before the court, and there is no indication that he knowingly, intentionally, and voluntarily relinquished that right …, the order appealed from must be reversed, and the matter remitted to the County Court, Suffolk County, for a new determination of the defendant’s motion, to be made after affording him an opportunity to appear before the court, and, if necessary, conducting a hearing … . People v Allen, 2013 NY slip Op 02586, 2011-11680, Ind No 1087/98, 2nd Dept 4-17-13

 

Re-Sentencing Under Drug Law Reform Act—Court Does Not Have Authority to Make Sentences Concurrent if Original Sentences Consecutive

The Court of Appeals ruled that when re-sentencing under the Drug Law Reform Act of 2009 (DLRA–Criminal Procedure Law 440.46), the sentencing court can not alter multiple drug felony convictions originally imposed consecutively so that they run concurrently.  When the court imposes a determinate sentence under the DLRA “[s]uch resentencing constitutes ‘alteration of the existing sentence as authorized by law’ …, rather than imposition of a new sentence or of an additional term of imprisonment” [see Criminal Procedure Law 70.25].  Therefore the re-sentencing court does not have the power to issue concurrent sentences when the original sentences were consecutive.  People v Norris, No. 39, CtApp 3-21-13

 

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