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New York State Department of Corrections

In this case, defendant man was indicted for two counts of Criminal Sale of a Controlled Substance in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Fifth Degree, two counts of Criminal Use of Drug Paraphernalia in the Second Degree, and Unlawful Possession of Marijuana.

The defendant man pled guilty to Criminal Sale of a Controlled Substance in the Third Degree, a B felony. In exchange for his guilty plea, the defendant was to be sentenced to a term of incarceration of either two to six years, if a previous conviction was overturned by the Appellate Division, or a term of four and one-half to nine years, if the previous felony conviction was not reversed and he was considered a predicate felon. At the time of his plea, he was told by the Court that if he failed to return for sentencing he would face eight and one third to twenty-five years or twelve and one half to twenty-five years incarceration, depending on whether he was considered a predicate felon.

The defendant man failed to appear for sentencing and a bench warrant was issued for his arrest. On December 18, 2008, the defendant was returned involuntarily on the outstanding bench warrant after being arrested for burglary. At that time, the defendant also had a pending indictment for Bail Jumping in the First Degree, as a result of his failure to return for sentencing. The defendant man was finally sentenced in this matter to an indeterminate term of imprisonment of seven to twenty-one years. He is currently incarcerated pursuant to this sentence.

On April 3, 2009, he pled guilty to Bail Jumping and was sentenced to one year incarceration, to run concurrent with the drug crime sentence. On November 12, 2009, he pled guilty to Burglary in the Second Degree, a violent felony offense, and was sentenced on December 2, 2009, to a term of three and one half years incarceration and five years post-release supervision, to run concurrent with the drug crime sentence. The defendant is currently incarcerated pursuant to this sentence.

This motion was filed with the Court on March 26, 2010. The People allege that the underlying charges in the indictment stem from an incident on December 4, 1996, where the defendant, acting in concert with another, sold cocaine to an undercover police officer. Pre-recorded buy money was recovered from the defendant’s person and additional drugs and paraphernalia were recovered from the location of occurrence upon execution of a search warrant.

The defendant’s criminal history dates back to 1977. A full recitation of his criminal justice contacts is contained in the court file. The defendant man’s conditional release date is December 10, 2022 and his maximum expiration date is December 10, 2029.

In determining this motion, the Court has conducted a hearing, considered the moving papers of the defendant man, the response of the People, and the court records. The defendant argues that he should be resentenced in accordance with the 2009 Drug Law Reform Act (DLRA), which enacted the Criminal Procedure Law (CPL) authorizing resentencing for eligible defendants convicted of Class B drug felony offenses if certain criteria are met.

The People argue that the defendant man should not to be resentenced because he does not meet the eligibility criteria for resentencing. The People also argue that even if the defendant was eligible to be resentenced, substantial justice dictates that his application for resentencing be denied.

CPL, as created by the 2009 DLRA, provides that a person is eligible for resentencing when such individual is in the custody of the New York State Department of Corrections, has been convicted of a class B felony offense committed prior to January 13, 2005, and when such person was sentenced to an indeterminate term with a maximum term of more than three years, except as provided in CPL. At issue in this resentencing application is whether the defendant is eligible to be resentenced because of his violent felony conviction, which occurred after the class B drug offense upon which he now seeks resentencing.

Initially, the time of the filing of his resentencing application is controlling for purposes of reviewing the look-back period for exclusion offenses. As held by other courts of concurrent jurisdiction, the Court finds that the controlling time-period under CPL, which excludes resentencing eligibility for individuals serving a sentence for an exclusion offense, is to be measured from the time of the filing of the application.

The County Court rejects the defendant man’s argument that because his violent felony conviction for Burglary in the Second Degree occurred after the felony drug offense, upon which he now seeks resentencing, he is eligible for resentencing under the DLRA.

Consistent with the Court of Appeals rationale the resentencing opportunities should not be available where a strict statutory reading would be inconsistent with the legislative intent behind the statute. The defendant has participated in a welding and pre-GED program since December 21, 2009. His progress report indicates that he has successfully completed phase I of the welding program. As of March 2010 his progress report from welding class indicates that he does not cause any problems in class. His March 2010 progress report from his pre-GED program states that he is making good progress in math and reading.

The defendant has one Tier Two infraction, for violating a direct order on June 3, 2009. He received fifteen days of keep lock for this infraction. As previously stated, the defendant’s criminal history dates back to 1977. His past history, although somewhat distant for his violent felony convictions of Robbery in the First Degree, Robbery in the Second Degree, and Attempted Robbery, on three different occasions, is noteworthy. The defendant’s recent violent felony conviction in December 2009 was for Burglary in the Second Degree. The defendant has also been convicted of First Degree Bail Jumping for failing to return for sentencing in this matter. The defendant was involuntarily returned to Court in this matter as a result of his Burglary arrest. He absconded and was absent for approximately eleven years despite the Court’s admonition to return for sentencing.

The County Criminal Court has reviewed the letters seeking leniency written on the defendant’s behalf. It appears that the defendant established community ties during the period he absconded from the Court’s jurisdiction. Nevertheless, after reviewing the defendant’s contacts with the Criminal Justice System, as outlined herein, carefully reviewing the parties’ submissions, and conducting a hearing in this matter, it is the Court’s view that the defendant’s past and recent criminal history and his failure to obey Court directives warrant a finding that substantial justice dictates that the defendant’s application for resentencing be denied on the merits. In sum, had the defendant been eligible for resentencing, the County Court would have denied his application based on the Court’s consideration of all matters contained in the motion papers and the hearing conducted on this issue.

Under these circumstances, the Court finds that the defendant is not eligible for resentencing, and having considered the merits, had the defendant been eligible, he would not be resentenced pursuant to the DLRA because substantial justice dictates otherwise.

People who continue to commit crime despite of having been incarcerated insinuate disinterest for a reformed life. If you want to send someone in prison because that person victimized people over again, consult the Queens County Drug Crime Lawyer together with the Queens County Criminal Law Attorney from Stephen Bilkis and Associates.

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