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Defendant Files Application for Resentencing

A man was convicted of having committed the crime of criminal possession of a weapon in 1993 and he was sentenced to serve one year in jail. In 1995, the same man pleaded guilty to a charge of federal racketeering and conspiracy. He served a prison term of six years.

In September 2003, the man was arrested by police officers who had been tailing and conducting surveillance on him. A New York Drug Crime Lawyer said he was seen selling one bag of heroin to another man. When he was arrested, the police officers frisked him and found eighteen other bags of heroin in the pocket of his jacket. He was charged with criminal heroin possession in the third degree. He was convicted by a jury and sentenced to a maximum prison term of twenty years and a minimum prison term of ten years.

He appealed but his appeal was denied after two years. In the meantime, the man had finished serving six years of his minimum prison term of ten years. While he was serving his prison term, the legislature of New York passed the Drug Reform Law. A New York Criminal Lawyer his new law aimed to reduce the prison sentences of low-level drug offenders by allowing them to apply for resentencing. If approved, they will be resentenced to a lower sentence provided that when the convicted felon applies for resentencing, he is currently in the custody of the Department of Corrections as he is serving a prison sentence; he was convicted of a Class B felony which was committed before the law was made effective; and the man was not convicted of another crime within the last ten years.

The man here applied for resentencing and the trial court that convicted him found that he met all the requirements of the law for resentencing. However, the district attorney opposed the motion for resentencing on the ground that the man had been convicted and sentenced for committing the crime of criminal possession of a weapon, a violent felony within ten years of committing the crime of criminal heroin possession. The issue before the trial court was when the ten year period should be counted from. The man’s motion for resentencing was denied by the trial court. He appealed the denial of his motion for resentencing.

A Nassau County Drug Possession Lawyer said the issue before the Supreme Court is whether or not the ten year period should be counted from the time of the commission of the offense or from the time of the filing of the motion for resentencing.

The Court held agreed that the man possessed all the requirements laid down in the Drug Reform Law. The only question is if his conviction for criminal possession of a weapon in 1993 bars his application for resentencing.

The Court held that the proper interpretation of the law must be in accordance with the purpose of the legislature in enacting the law. A Queens Drug Possession Lawyer said since the purpose of the law is to grant a lower sentence to those low-level drug felons who meet the requirements, then the interpretation must honor the legislative intent. The Court held that the ten-year period must be counted from the time of the filing of the application for resentencing. It cannot be reckoned from the date of the commission of the offense.

When a man is charged with commission of a criminal offense, he is presumed innocent until proven guilty. Thus, his guilt only becomes a fact upon his conviction, not upon the date of the commission of the crime.

Since the application for resentencing was filed in 2006, the commission of the crime of criminal possession of a weapon in 1993 is clearly beyond the ten-year period required by the law. Also, the Court noted that under the law, the man was also entitled to deduct the period of time he spent in jail to determine the ten year period. Thus, this holding is in accordance with the legislative intent.

Have you been convicted of two Class B drug felonies? Are you serving a sentence that is disproportionate to the crime you committed? Come and visit the offices of Stephen Bilkis and Associates and speak with any of their Bronx Drug Crime lawyers today.

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