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Defendant Requests Re-sentencing

A woman was convicted after a jury trial of murder. Upon the conviction, the woman was sentenced to a term of life imprisonment with a mandatory minimum period of seventeen years. She was also convicted of attempted robbery and sentenced to an indeterminate term five years imprisonment with a mandatory minimum period of two and one-half years to run concurrent with the life sentence.

The woman moves personally without a notice of motion or sworn affidavit, for re-sentencing to a determinate term of imprisonment. She did, however, verify that she served the District Attorney. Notwithstanding such service, the District Attorney failed to file any opposition. Consequently, on February 4, 2010, the court deemed the woman’s motion submitted on default.

A New York Criminal Lawyer said irrespective of the District Attorney’s default, the woman fails to provide any legal basis upon which the court may grant the relief requested. While she refers to the recently passed laws that may allow people who are serving life sentences to be considered to be re-sentenced to an alternate determinate sentence, she fails to identify any legal basis in support of her application. Indeed, it appears to the court that her claim is predicated on having been denied parole, stating that he has been denied parole release based solely for her crime, which will never change. It is served above and beyond the minimum term on both indictments and the maximum on one that she is not asking for a reduction that will minimize the responsibility to accept the punishment of her crime, however, the past cannot be change and to be denied release solely for her offense, which will not change is illogical and excessive. The woman believes that she is eligible to file an application under the standards of law and respectfully that she be re-sentenced to a determinate term of imprisonment.

Although not specifically stated, it appears the legal authority upon which the accused relies is the Drug Law Reform Act (DLRA). The DLRA was enacted in response to the sentencing policies under New York’s Rockefeller Drug Laws. Such reform was intended to ameliorate the sentences imposed on individuals who had committed drug crime offenses. Subsequently, in 2009, the Legislature enacted the DLRA 3, which extended sentencing relief to those convicted of Class B, C, and D drug crime offenses. Under the DLRA 3, qualified applicants convicted of a Class B drug offense are entitled to a reduced determinate sentence in accordance with New York’s Penal Law. A Bronx Criminal Lawyer said the criminal law entitles an accused to petition for re-sentencing if that accused is in the custody of the Department of Correctional Services; if the accused has been convicted of a Class B felony offense committed prior to January 13, 2005; and if the accused is serving an indeterminate sentence with a maximum term of imprisonment exceeding three years.

Accordingly, the DLRA reduced mandatory minimum prison sentences for first-time non-violent felony drug crime offenders, and reduced the mandatory minimum prison sentence (fifteen years to life) for offenses to eight years imprisonment (first-time offenders). Thus, the act permitted only the accused serving life sentences for non-violent drug crime offenses to apply for re-sentencing. Nothing contained in either the DLRA or CPL permits an accused convicted of a violent felony to be re-sentenced to a determinate term of imprisonment. Consequently, having been convicted of murder, a violent felony offense, the accused is ineligible as a matter of law to be re-sentenced to a determinate term of imprisonment.

Clearly, the accused woman’s frustration over having been denied parole has prompted her to plead with the court to simply re-sentence her to an indeterminate sentence. A New York Sex Crimes Lawyer said that even if such a remedy existed, which it does not, it would nevertheless be inappropriate to re-sentence since it was a lawful sentence when imposed and remains so. It would further be inappropriate since doing so would effectively permit the accused to circumvent the authority and discretion of the Division of Parole.

Finally, the woman seeks the appointment of counsel as being indigent. Having advanced no issue before the court, however, the court has no statutory authority to grant the woman’s request. The woman’s motion is denied in all respects.

When drug related offenders are placed in isolation either in jail or in rehabilitation centers, they usually have the time to ponder on their wrong doings. Some eventually change for the better and aims to live an ordinary life outside of their isolation. If you believe that someone deserves to be given another chance, call the office of Stephen Bilkis and Associates and speak with the Bronx Criminal Lawyers together with the Bronx Drug Attorneys.

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