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Court Determines Technical Violations of Parole

Defendant sold crack cocaine to an undercover police officer, a drug crime. On the day after the sale, defendant was arrested.

A New York DWI Lawyer said the defendant was charged with the crime of Criminal Sale of a Controlled Substance in the Third Degree.

Defendant pled guilty to the sole count of the indictment and in exchange was promised an indeterminate sentence of five to ten years of incarceration.

Defendant was sentenced as promised at the time of the plea.

On 7 May 2001, defendant was granted parole and was released from the Department of Correctional Services (“DOCS”).

On 11 October 2006, the defendant’s parole was revoked based upon a 2 August 2005 conviction for the crime of Criminal Possession of a Controlled Substance in the Seventh Degree or cocaine possession or crack possession, as well as several technical violations including: failure to report to his parole officer, failure to enter and complete a required outpatient treatment program, and his absconding from parole for a period of approximately three months. As a consequence thereof, a New York DWI Lawyer said the defendant was returned to custody at the Ulster Correctional Facility.

On 14 March 2007, the defendant was released on parole for the second time.

On 13 June 2007, just three months after he was released on parole, it was again revoked, this time because of his conviction on 22 May 2007 for the crime of Criminal Possession of a Controlled Substance in the Seventh Degree, together with additional technical violations including: failure to report to his parole officer and testing positive for cocaine & heroin. The defendant was returned to custody, this time to the Downstate Correctional Facility.

On 17 January 2008, defendant was granted parole for the third time.

On 19 August 2008, due to another drug related conviction on 6 August 2008 of Criminal Possession of a Controlled Substance in the Seventh Degree in addition to a technical violation regarding his failure to abide by his curfew, the defendant’s parole was again revoked and he was returned to custody at the Downstate Correctional Facility.

On 30 December 2008, the defendant was paroled for the fourth time.

On 27 February 2009, defendant was again arrested for the crime of Criminal Possession of a Controlled Substance in the Third Degree. He pled guilty on 15 May 2009 to Criminal Possession of a Controlled Substance in the Seventh Degree.

Thus, on 4 June 2009, based upon the aforesaid most recent conviction and in conjunction with further technical violations including: failure to make scheduled office visits to his parole officer, failure to enter and complete a drug detoxification program, and his changing of his residence without permission, the defendant’s parole was revoked for the fourth time on, and he was returned to custody.

While still in custody at the Bare Hill Correctional Facility based upon defendant’s fourth and most current parole violation, he moved for an order resentencing him to a determinate sentence in accordance with Penal Law, pursuant to the 2009 Drug Law Reform Legislation (“DLRA 3”) as codified in Criminal Procedure Law. During a conference, the Court was informed that the defendant was, in fact, released from custody on or about 13 February 2010.

Should the defendant be granted an order resentencing him to a determinate sentence?

A Nassau County DWI Lawyer said that the 2009 Drug Law Reform Act provides that “any person in the custody of the department of correctional services convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to 13 January 2005, who is serving an indeterminate sentence with a maximum term of more than three years, may, apply to be resentenced to a determinate sentence in accordance with sections 60.04 and 70.70 of the penal law in the court which imposed sentence.”

From the above, it would appear that the defendant is within the class of persons eligible to move for resentencing under “DLRA 3.” At the time that he moved for resentencing he was back in the actual custody of “DOCS”, based upon his latest parole violation; the crime for which he had originally been convicted (Criminal Sale of a Controlled Substance in the Third Degree) and was committed prior to 13 January 2005; he had been sentenced to an indeterminate sentence (5-10 years) with a maximum term of more than three years; and, he was not disqualified by virtue of any “exclusion offense” (Criminal Procedure Law).

However, the defendant was not “in the custody” of “DOCS” within the meaning of “DLRA 3” when the instant motion was filed and was, therefore, ineligible to move for resentencing pursuant to Criminal Procedure Law. The Court’s basis is upon the fact that the defendant had already served his term of imprisonment, having been released to parole on 7 May 2001, and was only then incarcerated by virtue of a fourth parole violation. This very issue concerning the proper interpretation of the term “in custody” has been addressed by appellate courts, including the Court of Appeals, in cases emanating from the Drug Law Reform Act of 2004 (providing an opportunity for resentencing of defendants convicted of A-I drug felonies) and the Drug Law Reform Act of 2005 (providing an opportunity for resentencing of defendants convicted of A-II drug felonies).

Courts have held that based upon the common sense view, the Legislature did not intend “fresh crimes” to trigger resentencing opportunities.

The Court is not aware of any appellate authority on the resentencing/custody issue at bar with respect to “DLRA 3.” There have been several trial level courts which have rendered decisions, both reported and unreported, analyzing the rights of incarcerated parole violators to apply for resentencing.

In one case, the Court wrote that “in the 2009 DLRA the Legislature created a long list of offenders who were statutorily ineligible for resentencing because of their previous criminal histories.” The Court further opined that “this detailed listing creates a strong inference that the Legislature intended those offenders and not others to be barred from the statute.”

The Court does not share a similar opinion regarding the Legislature’s intentions.

It is true that the Legislature specifically highlighted those classes of persons who were barred or ineligible for applying for resentencing under “DLRA 3” including certain violent felony offenders, those offenders convicted of merit time ineligible offenses and all second and persistent violent felony offenders. However, the hierarchal placement of the subject language, as contained in the statute, compels the conclusion that, before any consideration to disqualification can be entertained by the court, the potential applicant for resentencing has to first establish strict compliance with the four condition precedents set forth in Criminal Procedure Law, namely: custody; conviction of an Art. 220 Class B felony offense; commission of the offense prior to 13 January 2005; and, an indeterminate sentence with a maximum term of more than three years.

The first so-called condition precedent; namely custody by “DOCS” was present under both “DLRA 1” and “DLRA 2” and has been consistently held by the appellate courts not to be compatible with situations wherein the defendant’s “subsequent” custody was the product of a parole violation of the underlying conviction.

Accordingly, the Court finds that defendant is ineligible for resentencing under Criminal Procedure Law. The motion is denied.

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