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Defendant Petitions Review of Case Under DLRA

New York provides that criminal offenders who have been convicted of certain drug possession crimes and related offenses have the ability to petition the court to vacate their indeterminate sentences and impose a determinate sentence. Prior to 2009, indeterminate sentences for drug crimes and other offenses were common. The concept behind the indeterminate sentence was that it allowed the court and correctional system to work together to customize a fair sentence for each offender. However, it did not take long to realize that customization could also be a synonym for prejudicial sentencing. The Drug Law Reform Act of 2009 was placed into effect to eliminate the subjective atmosphere created by the process of indeterminate sentences. Indeterminate sentences often meant that the time that one offender served was completely different from the sentence that was served by a person who committed the same crime, often a co-defendant of the same crime. The unjust diversity that befell the victims of indeterminate sentencing was the target of the Drug Law Reform Act of 2009.

Under the DLRA a person who was assigned an indeterminate sentence prior to 2009 could appeal to have their sentence vacated and a new one imposed. In order to qualify for the resentencing, an offender must meet certain requirements. They must not have been convicted of certain violent felonies within ten years of the time that they file their requests. There are also other requirements that are necessary for a person to meet before they can be resentenced.

One inmate who petitioned for a review of his sentencing under the DLRA of 2009, was incarcerated based on his conviction on November 5, 2004 for the criminal sale of a controlled substance in the third degree. The criminal sale of a controlled substance in the third degree is a class B drug felony in the state of New York. One of the requirements for resentencing under the DLRA is that the offender is an addict and needs treatment for a drug addiction rather than incarceration. This offender contended that he was not a drug dealer at all, but that he was actually an addict who was dealing to support his own habit. He requested resentencing under the DLRA.

The court began a review of his record. What they found was that the offender was convicted of selling cocaine and marijuana on nine separate occasions within the year that he was incarcerated in 2003. On May 29, 2003, the offender was arrested with more than one-eighth ounce of cocaine (cocaine possession). When the police officers executed a search warrant of the offender’s home, they recovered more narcotics and small glassine baggies that are commonly used by drug dealers to repackage their product for resale. The offender was charged with a class B felony and sentenced to an indeterminate prison sentence of 7 ½ to 15 years incarceration. He was allowed to remain free on bond while his sentence was being processed. During that time, between September 1, 2003 and November 30, 2003, the offender was charged with having sexual intercourse with a thirteen-year old girl at least five times that resulted in her becoming pregnant with his child. The offender was thirty years of age at the time.

When the girl told him of her pregnancy, he moved out of the apartment building where he was living since she and her family also resided in the same building. On January 24, 2004, he was arrested in New York County for assault in the second degree relative to a drug transaction in which the case was dismissed. On March 3, 2004 he was arrested for the rape in the second degree of the thirteen year-old girl in his apartment building. He was later arrested for violating probation and robbery. Based on his history, the court determined that he would not be a good candidate for re-sentencing. His request was refused.

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