You are here: / RE-SENTENCING

Tag Archive for: RE-SENTENCING

In Deciding the Sequence of Convictions, the Original Sentence Date Controls, Not the Date of Resentencing to Cure a Post-Release-Supervision Flaw

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that, with respect to New York’s sentence enhancement statutes, “the controlling date of sentence for the defendant’s prior conviction is the original date of sentence for that conviction… [not] the date of a later resentencing which rectifies the flawed imposition of post-release supervision (PRS) in accordance with … People v Sparber (10 NY3d 457 [2008]). … Therefore, at sentencing for a more recent crime, the defendant’s prior conviction qualifies as a predicate felony conviction if the original date of sentence precedes the commission of the present offense.”  People v Boyer…, 205, 206, CtApp 11-14-13

 

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

 

,

Resentencing After Original Sentence Expired Violates Double Jeopardy Clause

The Fourth Department explained that a resentencing which takes place after the original sentence has been completed violates the double jeopardy clause.  People v Alvarado, 961, 4th Dept 9-27-13

 

Okay to Resentence to Determinate Sentence With No Postrelease Supervision Where Initial Sentence Omitted Reference to Postrelease Supervision

The Fourth Department determined defendant was properly resentenced to a determinate sentence without a period of post-release supervision as a remedy for the failure to inform the defendant of the post-release supervision the first time around:

…[T]he court properly resentenced defendant pursuant to Penal Law § 70.85 to the original sentence without imposing a period of PRS.  The statute permits the sentencing judge, with the consent of the People, to “re-impose the originally imposed determinate sentences of imprisonment without any term of post-release supervision.”  The statute was enacted to “avoid the need to vacate guilty pleas under … when defendants are not properly advised of mandatory terms of postrelease supervision” … .  Here, the People requested that the court resentence defendant pursuant to section 70.85, and the court granted that request.  The fact that defendant did not ask for resentencing is of no moment … People v Bennefield, 920, 4th Dept 9-27-13

 

Sentencing Court Can Correct Illegal Sentence If Within Initially-Stated Range

The Second Department explained that the trial court can properly resentence a defendant to correct an illegal sentence as long as the new sentence is within the initially-stated range.  Here, after sentencing defendant to an indeterminate term of imprisonment, the court realized it was required to sentence defendant to a determinate term and postrelease supervision:

Under the circumstances of this case, the County Court properly resentenced the defendant. A trial court has the inherent power to correct an illegal sentence, over a defendant’s objection, where the corrected sentence falls within the range initially stated by the court …. Here, after the County Court learned that the indeterminate sentence imposed on the defendant for the conviction of criminal sale of a firearm in the third degree was illegal, it exercised its inherent power to correct the sentence by imposing a determinate term of imprisonment of two years followed by two years of postrelease supervision. This sentence was within the range initially stated by the County Court … . People v Kaufman, 2013 NY slip Op 06020, 2nd Dept 9-25-13

 

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

 

Resentencing (Re: Postrelease Supervision) of Defendants Who Have Completed Determinate Sentence But Are Still Serving Aggregate Sentence Does Not Violate Double Jeopardy

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined defendants who have completed the determinate sentence for which mandatory postrelease supervision was not imposed but have not completed their aggregated sentences under Penal Law 70.30 can be resentenced to postrelease supervision without violating the Double Jeopardy Clause:

In these unrelated cases, each defendant claims that the imposition of mandatory postrelease supervision (PRS) to his determinate sentence at resentencing violates the Fifth Amendment Double Jeopardy Clause of the federal constitution. Defendants claim that they have completed their determinate sentences, therefore imposition of PRS violates the prohibition against multiple punishments. We conclude that the respective resentences do not constitute violations of the Double Jeopardy clause because defendants do not have a legitimate expectation of finality until they have completed their aggregated sentences under Penal Law § 70.30.  People v Brinson… Nos 135, 136, CtApp 6-26-13

 

, , ,

Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted

The Second Department explained the criteria for an Article 78 action (against a judge and district attorney) in the nature of prohibition.  In this case Supreme Court had ordered defendant to appear for resentencing after the Appellate Division had ruled without remitting the matter to Supreme Court for further proceedings.  The Second Department granted the petition and prohibited the resentencing:

The remedy of prohibition generally lies when a court or an officer acts or threatens to act without jurisdiction or exceeds its authorized powers in a proceeding over which it has jurisdiction (see CPLR 7803[2];…). To warrant the extraordinary remedy of prohibition, it is not enough that the court made a mere legal error. Rather, the court’s error must implicate its very powers and thereby be subject to correction by prohibition….  Matter of Dow v Tomei, 2013 NY Slip Op 04799, 2nd Dept 6-26-13

 

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

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy