Sometime between the days of 6 November 2002 to 6 March 2003, defendant allegedly sold, on nine separate occasions, quantities of cocaine and marijuana to an undercover police officer at various locations in Kings County, New York. On 29 May 2003, the police arrested defendant in Kings County, and recovered a quantity of cocaine weighing in excess of one-eighth of an ounce from a bag which the police observed defendant throw into his car. At 6:10 a.m. on the same day, the police executed a search warrant at defendant’s apartment in Kings County and recovered a quantity of cocaine weighing in excess of one-eighth of an ounce and numerous empty ziplock bags. Consequently, defendant was charged in Kings County with one count of criminal sale of a controlled substance in the second degree (PL §220.41 ); nine counts of criminal sale of a controlled substance in the third degree (PL §220.39 ); one count of criminal possession of a controlled substance in the third degree (PL §220.16 ); one count of criminal possession of a controlled substance in the fourth degree (PL §220.09 ); eleven counts of criminal possession of a controlled substance in the seventh degree and three counts of criminal possession of a controlled substance in the seventh degree (PL §220.03); and two counts of criminal sale of marihuana in the fourth degree (PL §221.40). On 18 November 2003, defendant pleaded guilty to criminal sale of a controlled substance in the third degree, a class B felony. Under the plea agreement, defendant was promised an indeterminate prison term of 7 ½ to 15 years’ imprisonment. The court allowed defendant to remain at liberty while his sentence was pending. Defendant was required to abide by certain conditions, including that he would appear on all his court dates and that he would not get arrested on any new charges. Based on these conditions the People consented to defendant’s release.
Meanwhile, sometime between the days of 1 September 2003 to 30 November 2003, defendant, who was thirty years old at that time, allegedly had sexual intercourse with a thirteen-year old girl on five separate occasions. These incidents apparently occurred inside defendant’s apartment in Kings County. After the girl, who also lived in the building, informed defendant that she was pregnant, defendant moved out of the building. Consequently, on 3 March 2004, defendant was arrested and charged in Kings County with five counts each of rape in the second degree (PL §130.30 ), sexual misconduct (PL §130.20 ), and one count of endangering the welfare of a child (PL §260.10 ). He admitted to the police that he had sexual relations with the child, but stated that she told him that she was eighteen years old.
On 24 January 2004, before defendant was charged with rape in the second degree, he got arrested in New York County, and was charged with assault in the second degree and drug related charges. However, that case was later dismissed.
On 30 March 2004, the defendant, who was not incarcerated, failed to appear in court on his drug related case, and a bench warrant was issued for his arrest.
On 27 April 2004, defendant was apprehended for violating the conditions of his probation for his 1997 conviction for robbery in the third degree. On the following day, defendant was sentenced to an indeterminate prison term of two to six years. On 21 May 2004, defendant entered state prison for violating probation.
On 24 August 2004, defendant was involuntarily returned to the court. On 5 November 2004, the court denied defendant’s motion of 6 October 2004 to withdraw his guilty plea. On 5 November 2004, defendant was sentenced in the drug related matter, to the agreed-upon indeterminate sentence of 7 ½ to 15 years imprisonment. On 2 December 2004, defendant pleaded guilty to rape in the second degree (PL §130.30 ). On 20 December 2004, defendant was sentenced to an indeterminate term of imprisonment of 3 ½ to 7 years, to be served concurrently with the sentence in the drug related case.
On 21 December 2004, by pro se motion, defendant moved to set aside his drug felony sentence, pursuant to CPL §440.20, claiming that his sentence should be vacated because it was harsh and excessive, and because he was eligible to be resentenced under the revised sentence guidelines in accordance with the Drug Law Reform Act of 2004. On 5 February 2005, defendant moved for a reduction of his drug sentence pursuant to CPL§440.30. On 14 April 2005, the court denied both motions. The defendant appealed the instant judgment of conviction to the Appellate Division, Second Department. On 24 October 2006, the Appellate Division unanimously affirmed the sentence without opinion. On 5 December 2006, the Court of Appeals denied defendant’s application for leave to appeal.
Sometime in October 2007, defendant filed a brief in the Appellate Division, appealing from the court’s denial of his motion to be resentenced. On 9 September 2008, the Appellate Division unanimously affirmed the denial of defendant’s motions. According to the court, defendant had failed to preserve his argument that the Drug Law Reform Act of2004 violated his constitutional rights, and that defendant’s contention pertaining to the Drug Law Reform Act of 2005 was not properly before the Appellate Division. On 23 October 2008, defendant’s application for leave to appeal was likewise dismissed.
On 16 October 2009, defendant moved for resentencing on his drug felony conviction, pursuant to CPL §440.46. In opposition, the People argued that defendant was not eligible because he was serving a sentence for an exclusion offense. That motion was later withdrawn on 24 November 2009.
On 16 February 2011, defendant petitioned the court, pro se, pursuant to the Drug Law Reform Act of 2009, for an order in accordance with CPL §440.46, vacating his indeterminate sentence of 7 ½ to 15 years’ imprisonment on account of his 5 November 2004 conviction for criminal sale of a controlled substance in the third degree, a class B drug felony. Defendant asked to be resentenced to a determinate sentence in accordance with CPL § 70.70. The People filed papers in opposition to defendant’s motion. The court appointed a counsel for defendant in order to research the issues on the case. Defense counsel then filed papers dated 19 May 2011 in support of defendant’s pro se motion. The People filed an answer in opposition dated 11 July 2011.
According to the People, the defendant is not eligible for resentencing as he is was convicted of an exclusion offense within the last ten years, and is presently serving time for that offense; the defendant’s conviction for rape in the second degree (PL §130.30) is not only a violent felony offense (PL §70.02  [c]), it is also a crime for which merit time allowance is not available under Correction Law; and if the defendant were eligible, substantial justice dictates that he not be resentenced.
According to the defendant, he is not serving a sentence on an exclusion offense as he is not serving a sentence on a violent or merit ineligible offense for which he was previously convicted within the preceding ten years; the language of the statute requires that an exclusion offense must fall within ten years of the motion’s filing date, and that it must precede defendant’s conviction on the instant case, the drug related case; and substantial justice dictates that the defendant be resentenced.
As provided for under Criminal Procedure Law §440.46, the codification of the Drug Law Reform Act of 2009, it allows defendants convicted of a class B, C, or D drug felony to apply to the court for resentence pursuant to Penal Law §§60.04 and 70.70. The statute explicitly limits the applicability of the sentencing provisions to those defendants who are presently in the custody of the Department of Corrections (DOCS). This statute is similar in nature to the 2004 and 2005 Drug Reform Act which permitted defendants convicted of a class A-I or A-II drug felony offense to apply to the sentencing court to be resentenced pursuant PL §70.71. Notably, CPL §440.46(3) specifically states that the provisions of section 23 of chapter seven hundred thirty eight of the laws of 2004 (DLRA) shall govern the proceedings on and determination of a motion brought pursuant to this section. Pursuant to CPL. §440.46 (3), a movant shall be resentenced pursuant to Penal Law §§60.04 and 70.70 unless substantial justice dictates that resentencing be denied, referencing §23 of chapter 738 of the laws of 2004 (the Drug law Reform Act of 2004). In determining whether to grant or deny an eligible defendant resentencing, CPL §440.46 (3) directs that the court may consider defendant’s participation in treatment or other programming while incarcerated and such person’s disciplinary history.
First, while the charge of rape in the second degree (PL §130.30) is now classified as a Class D Violent Offense pursuant to PL §70.02  [c], at the time of defendant’s conviction for rape in the second degree, this charge was not classified as a violent offense. Thus, defendant’s conviction for rape in the second degree cannot be considered as an exclusion offense based on the mere allegation that it was a violent felony offense as defined in section 70.02 of the penal law. However, defendant’s conviction is still an offense for which merit time allowance is not available, and may constitute an exclusion offense if all other requirements of the statute are satisfied.
Second, on the argument that defendant’s conviction for rape in the second degree cannot be considered to be an exclusion offense as it did not precede defendant’s conviction on the present matter, courts have held that the look-back period is measured from defendant’s motion for resentencing, as opposed to the commission of the drug felony offense. Here, the 2004 conviction was obtained within the ten year look-back period from the filing of defendant’ motion for resentencing. Further, after considering the terms “previous felony” and “present felony” contained in the statute, the Appellate Division, Third Department, in the case of People v. Devivo in 2011, a case very similar to the matter, determined that it could not find that defendant was convicted of an exclusion offense during the statutory look-back period. The Court held that because the possible exclusion offense was committed after the drug conviction, it could not find that defendant was per se ineligible for resentencing. There is yet no Appellate Division, Second Department, or Court of Appeals decision specifically on this issue. Thus, the court found that the facts in the case of Devivo were sufficiently similar to the instant matter and that it should be controlling on the defendant’s case. In light of the case of Devivo, the defendant is indeed eligible for resentencing pursuant to CPL §440.46.
Third, however, even if the court held that defendant is not per se ineligible for resentencing pursuant to CPL §440.46, the court still denied the application in the interests of substantial justice. While consistent with the statutory language, case law indicates a presumption in favor of granting a motion for resentencing, nonetheless the court must take into account the seriousness of the charges, defendant’s history of absconding, his failure to live a law-abiding life upon his release, his re-arrest while on probation, and his subsequent violation of probation, as well as his institutional record. It must be noted that defendant has committed nine Tier II disciplinary violations during his period of incarceration. Although many of the violations were not really of a serious nature, the court was disturbed that his most severe violation for fighting occurred less than four months before the instant matter. While the court does in fact recognize that defendant has completed programs such as the Residential Substance Abuse Treatment program, the Aggression Replacement Training Program, as well as a Basic Course in Nonviolent Conflict Resolution, the court was more concerned by the fact that defendant still received a Tier II violation for fighting after completing the said programs. It is true that defendant was also in a sex offender counseling and treatment program. However, he was also removed from the program for several months due to disciplinary reasons. In other words, considering the seriousness of the underlying crime, defendant’s criminal history, defendant’s failure to comply with the terms of his probation, his re-arrest while on probation, his repeated absconding, and his arrest for rape in the second degree upon his release on the instant case, all of which cumulatively outweigh defendant’s efforts at rehabilitation and other mitigating factors defendant cited.
Accordingly, the defendant’s motion for resentencing was denied based on substantial justice. Defendant’s original sentence remained in effect.
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