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DLP and JEP fit exactly within the text of the 2009 DLRA.


After committing class B felonies involving narcotics, DLP, JEP and JAP were sentenced to indeterminate prison terms under the Rockefeller Drug Laws. This law governed the sentencing of drug offenders until 2005. DLP and JEP received sentences of 2 to 6 years while JAP received a sentence of 5 to 10 years. Thereafter, they all got paroled. However, all of them also subsequently violated their parole. Thus, they were all sent back to prison.

In 2009, after the enactment of DLRA, DLP, JEP and JAP applied for a resentencing. The Supreme Court denied the applications and held that relief under the statute was not available to reincarcerated parole violators.

DLP, JEP and JAP appealed.

In the case of DLP and JEP, the Appellate Division agreed with the Supreme Court’s conclusion and affirmed it. In the case of JAP, the Appellate Division reversed the Supreme Court’s conclusion and held that the 2009 DLRA did not render parole violators “ineligible to apply for resentencing.”

In the three cases, the Court at bar granted their leave to appeal. However, the JAP case became moot because the maximum term of JAP’s sentence has expired. Thus, the People’s appeal in that case was dismissed.

First Issue:

According to the People, the DLP and JEP cases were also moot.

The Court at bar disagreed.

While DLP’s maximum sentence for his original drug conviction, like JAP’s, has expired, DLP was sentenced in another case involving a later crime while he was still imprisoned on the earlier charge. If he is to be resentenced on the earlier charge, that resentencing could affect the time credited toward his later sentence.

As for JEP, the expiration date of his maximum sentence has not yet been reached. Indeed, he has been released on parole again. Nevertheless, pursuant to the Court’s ruling in People v. Santiago, 2011, JEP’s release did not defeat his application for resentencing, which he made when he was still in prison.

Hence, with criminal jurisdiction retained in the cases of DLP and JEP, both were reversed.

Second Issue:

At CPL 440.46, the 2009 DLRA is codified in part. Under the statute, people imprisoned for class B drug felonies committed while the Rockefeller Drug Laws were in force are permitted to apply to be resentenced under the current, less severe, sentencing regime.

Here, at the time of the applications of DLP and JEP, CPL 440.46(1) stated:

“Any person in the custody of the department of correctional services convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to January thirteenth, two thousand five, who is serving an indeterminate sentence with a maximum term of more than three years, may, except as provided in subdivision five of this section, upon notice to the appropriate district attorney, apply to be resentenced to a determinate sentence in accordance with sections 60.04 and 70.70 of the penal law in the court which imposed the sentence.”

DLP and JEP fit exactly within the text of the 2009 DLRA.

At the time of the applications for resentencing of DLP and JEP, they were both in the custody of the Department of Correctional Services, they were both convicted of class B felonies defined in Penal Law article 220 (Controlled Substances Offenses) that were committed before 13 January 2005; they were both serving indeterminate sentences with a maximum exceeding three years; and the exceptions in CPL 440.46(5) do not apply to them. Section 440.46(5) excludes from the coverage of the 2009 DLRA anyone serving a sentence, or having a predicate felony conviction, for a crime designated an “exclusion offense”; nothing in subdivision (5) refers to the parole status of an offender.

Nonetheless, according to the People, the 2009 DLRA must be read as inapplicable to parole violators like DLP and JEP based on the rule that a statute’s language need not be “literally or mechanically applied” when to do so “would cause an anachronistic or absurd result”; DLP and JEP could not have applied for relief under the 2009 DLRA while they remained free on parole; to permit them to apply after they were reincarcerated would have the absurd result of rewarding them for their parole violations.

The Court at bar again disagreed.

According to the Court, the purpose of the 2009 DLRA, like that of its predecessors, the 2004 and 2005 DLRAs, was to grant relief from what the Legislature perceived as the “inordinately harsh punishment for low level non-violent drug offenders” that the Rockefeller Drug Laws required. By the plain text of the statute, its benefits were limited to those “in the custody of the department of correctional services”; those who had been released on parole could not apply. The Legislature, in making this distinction, obviously did not mean to reward those who had been found not to merit parole. Rather, the Legislature recognized that the burden of “inordinately harsh punishment” falls most heavily on those who are in prison. That rationale is applicable to parole violators, as it is to other imprisoned offenders. It is not inherently absurd to grant relief from a harsh sentence to someone who has violated parole.

Indeed, it is possible that many parole violators have, by their conduct, shown that they do not deserve relief from their sentences. If this is the case, courts can absolutely deny their resentencing applications. As provided for in the 2004 DLRA, incorporated by reference into the 2009 DLRA (CPL 440.46[3]), a resentencing application need not be granted if “substantial justice dictates that the application should be denied.”

Third Issue:

The People cited the case of People v. Mills, 2008.

The Court held that the People read the Mills case too broadly.

In the case of Mills, the Court interpreted a provision of the 2005 DLRA that has no counterpart in the 2009 act. The 2005 DLRA, applicable to drug offenders in prison for class A–II felonies, provides that such an offender “who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law” may apply for resentencing. Reading the 2005 statute with the Correction Law definition, the Court at bar held in Mills “that in order to qualify for resentencing under the 2005 DLRA, class A–II felony drug offenders must not be eligible for parole within three years of their resentencing applications”. This ruling was immaterial to the instant case.

In another case decided in 2008, the language in Mills, which the People relied upon, was part of the Court’s discussion and was decided with Mills. In that case, defendant had been convicted of a class A–II drug felony, had been released on parole, had committed a new crime and had been convicted of that crime. At the time of defendant’s resentencing application, he was back in prison and was more than three years away from parole eligibility on his later conviction. Thereafter, the Court held that the later conviction should be ignored for purposes of deciding whether defendant was entitled to the benefit of the 2005 DLRA: “in order to be eligible for resentencing, an inmate must be more than three years from parole eligibility for the same class A–II drug felony for which resentencing is sought.” According to the Assault Court, it is true that it would be “illogical, if not perverse” to put defendant in a better position because of his new crime than inmates who had not broken the law. However, no argument can justify what the People were asking the Court to do, that is, to write into a statute an exception that was simply inexistent.

In sum, under the 2009 Drug Law Reform Act or DLRA, certain prisoners sentenced under the so-called Rockefeller Drug Laws are allowed to be resentenced. Criminal Prisoners who have been paroled and then reincarcerated for violating their parole are not barred from seeking relief under the statute. Hence, the orders of the Appellate Division in the cases of DLP and JEP were reversed and the cases were remitted to Supreme Court for further proceedings; and, in the case of JAP, it was dismissed.

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