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Defendant Moves to be Resentenced Pursuant to Drug Law Reform Act of 2009


Defendant was convicted of Criminal Sale of a Controlled Substance in the Third Degree and on November 19, 2002 given an indeterminate sentence of imprisonment with a term of 2-6 years.

The People assert that the Defendant engaged in the sale of $350 of cocaine to an undercover police officer on two occasions and that on later date cocaine and drug paraphernalia were recovered from the apartment where the sales took place. In addition to the instant offense, Defendant was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree (drug possession) and sentenced to time served in 2002, convicted of Invalid Use of a Credit Card with Intent to Defraud and sentenced to time served in 1999 and convicted of Criminal Trespass in the Second Degree and sentenced to four days in jail in 1998.

The Defendant was initially released to parole supervision on the instant offense on July 17, 2003. Parole violation warrants were issued for the Defendant. In these warrants, it was alleged that the Defendant had used cocaine and marijuana, failed to report to his parole officer on multiple occasions, left his approved residence and failed to attend two programs required by the Division of Parole. A Bronx Drug Crime Lawyer said that, the Defendant was re-incarcerated for a parole violation and continued to be in prison at the time the instant motion was filed. Defendant has been punished for one disciplinary infraction while in prison. That was a Tier 3 infraction on December 26, 2008 for violent conduct; fighting and disorderly conduct for which he received 30 days of keep lock time.

A Bronx Drug Crime Lawyer said that, while incarcerated, Defendant successfully completed the Willard drug crime treatment program and the Shock Incarceration program. He entered the Alcohol and Substance Abuse Treatment Program (“ASAT”) in March of 2009 and continues to participate in the program, where he has received a number of positive reviews. He has received training or done work in a number of vocational areas and increased his grade levels in math and reading. Prior to prison, defendant served for eight years in the National Guard. Defendant asserts that he would be able to count on the support of his wife if he were released. His wife, has also written a letter supporting Defendant’s release. Defendant’s counsel, the Office of the Appellate Defender, asserts that it would assist in Defendant’s reintegration through its social work unit if he were released.

The defendant moves to be resentenced pursuant to the Drug Law Reform Act of 2009. That motion is opposed by the People. A New York Criminal Lawyer said the People argue that the Defendant is ineligible for resentencing because he is currently incarcerated only by virtue of a parole violation. The Defendant contends that this fact does not bar resentencing.

The issue in this case is whether defendant is entitled to his motion for resentencing.

The 2009 DLRA, allows certain convicted Class B felony drug crime offenders serving indeterminate sentences imposed prior to January 13, 2005 to be resentenced to new determinate terms under the new determinate sentencing ranges created by the statute. The statute first requires a court to determine whether a defendant is eligible for resentencing. In this case, the parties disagree about whether the Defendant is statutorily eligible for resentencing in one respect.

The 2009 DLRA requires that the Defendant be in the custody of the department of correctional services” to be eligible for resentencing. The People argue that because the Defendant is in custody solely by virtue of his own actions in violating parole, he should not benefit by receiving a resentence. In support of this argument, the People rely on People v. Mills, 11 NY3d 527 (2008) and People v. Rodriquez, 68 AD3d 676 (1st Dept 2009).

Mills involved an application for resentencing by two offenders (Mills and Then) under the 2005 DLRA. In Mills the Court held that the plain meaning of the 2005 DLRA required that in order to be eligible for resentencing, a defendant could not be eligible for parole within three years of a resentencing application. The People’s argument in the instant matter concerns the Court’s holding with respect to the second named Defendant, Jose Then. Then was originally convicted of a Class A-II felony in 1999, given a 5 year to life indeterminate sentence and subsequently released on parole. Two months after release, in 2002, he again committed a Class A-II felony for which he was sentenced to a 6 year to life term. Then moved for resentencing under the 2005 DLRA for his 1999 conviction, since, given the revocation of his parole, he was now more than three years away from parole eligibility. The Court of Appeals acknowledged that Then was eligible for resentencing under the literal terms of the statute. They held, however, that he was nevertheless barred from resentencing.

To allow resentencing, the Court held, would create “illogical, if not perverse results”. They noted that if Then had not committed a new crime, he would be ineligible to have his lifetime maximum sentence modified on resentencing, since he would not have been in correctional custody. The Court reasoned that “surely, the Legislature did not intend fresh crimes to trigger resentencing opportunities”. The Court therefore held that “once a defendant has been released to parole supervision for a Class A-II drug crime conviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction”.

This Court said that, Mills did not base its holding on any statutory language or legislative history relevant to the 2005 DLRA. Rather, the Court held that its construction of the statute was the most sensible one because it concluded that the Legislature could not possibly have intended a different result. The holding in Mills applied the well-settled rule that a statutory interpretation which is “contrary to the dictates of reason or leads to unreasonable results is presumed to be against the legislative intent” regardless of the language of a statute or any evidence that the legislature actually intended the result reached by a court.

Mills, in the Court’s view, announced a much broader exclusion rule than the Court might have chosen to adopt based on the rationales for the decision and the position of the Defendant Jose Then. The essential rationale for the rule articulated by the Court was that the Legislature could not possibly have intended “fresh crimes” to trigger resentencing opportunities. The holding of the decision, however, could be much more broadly construed. The literal language of the holding would appear to encompass not only new crimes but also technical parole violations.

An offender who is denied parole and remains incarcerated is automatically eligible for parole within two years. Thus, an offender denied parole that remains incarcerated can never be eligible for resentencing under the 2005 DLRA because only offenders who are more than three years away from parole eligibility qualify for resentencing. As the Mills court explained, an offender who is re-incarcerated for a parole violation, as then was, is given a “time assessment”, which is a period of time after which the offender will again be eligible for parole. In Then’s case, this time assessment was 5 months and 26 days. Then was not eligible for resentencing with respect to his initial conviction when he was initially re-incarcerated because his time assessment meant he was not more than three years away from parole eligibility when he returned to prison. He could also never again be eligible for resentencing under the 2005 DLRA with respect to his first conviction because, with respect to that initial conviction, he would be eligible for parole at least every two years.

The Mills Court could have chosen to construe the 2005 DLRA as mandating that a defendant’s parole eligibility date would always be calculated only with respect to the conviction for which he was applying to be resentenced. That would mean that they or any other offender who was given a time assessment of three years or less upon a parole violation would be permanently barred from resentencing under the 2005 DLRA. Indeed, at one point in its decision the Court seemed to adopt that rationale for its holding asserting that “[a] valid and more sensible reading of the statutory text is that 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 crime for which resentencing is sought”.

If the Mills Court had chosen to adopt a rule based only on that concern, the resulting rule would likely have had little or no effect on resentencing eligibility under the 2004 and 2009 DLRA. Neither of those statutes requires that an offender be more than three years away from parole eligibility to be resentenced. A Brooklyn Criminal Lawyer said they simply require that an offender be in DOCS custody. Were the rule created by the Mills Court simply that an offender’s eligibility for resentencing would have to be judged solely with respect to their original sentence, then any offender returned to prison for the commission of a new crime or a technical parole violation who was given a time assessment would continue to be eligible for resentencing pursuant to that time assessment under the 2004 and 2009 DLRA.

It is not clear what practical impact the Mills rule has had on the resentencing of Class A-II felony drug crime offenders. That is because of the three year parole eligibility rule. Mills, when contrasted with a rule which would consider resentencing eligibility only with respect to a Defendant’s initial conviction, would only affect a Class A-II felony drug offender who violated their parole, was given a time assessment of more than three years and then applied for resentencing. If resentencing eligibility under the 2005 DLRA was judged only with respect to the conviction a defendant applied to be resentenced for, offenders who received time assessments of less than three years would never be eligible for resentencing regardless of the “fresh crimes” rule.

In sum, the Mills Court announced a rule which was broader than it might have chosen to adopt given the “fresh crimes” rationale for its decision. The Court also announced a rule which was broader than necessary to deny resentencing to Jose Then. But the decision also to a large extent covered offenders who were ineligible for resentencing in any event. The more significant practical effect of Mills would occur if its underlying rationales were applied to drug law resentencing enactments which do not include the three year eligibility bar. That was the issue before the First Department in Rodriquez and which is before this and numerous other trial courts now under the 2009 DLRA.

The Court said that, there are a number of reasons why the Mills and Rodriquez rules, in the view of this Court, should not be applied to resentencing motions under the 2009 DLRA. A number of these rationales are based on differences between the 2004, 2005 and 2009 statutes. First, any such rule would be plainly inconsistent with the language of the statute (although this is not an argument that the Rodriquez Court found persuasive in construing the 2004 DLRA). The 2009 DLRA provides that “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” is eligible for resentencing if they are not subject to a statutory resentencing exclusion. There is no dispute that the Defendant here meets all of these criteria and is not subject to any of the statute’s exclusions.

A New York Sex Crimes Lawyer said second, after reviewing the available legislative history for the 2009 DLRA, the Court is not aware of any evidence that the Legislature consciously intended to exclude offenders who had previously violated their parole from the statute. Thus, even assuming the Court in Bagby correctly concluded that the Legislature intended to exclude parole violators from the 2004 DLRA, there is no evidence that the Legislature had any such intent when it enacted the 2009 law.

Third, in the 2009 DLRA the Legislature created a long list of offenders who were statutorily ineligible for resentencing because of current sentences they were serving or their previous criminal histories. This detailed listing creates a strong inference that the Legislature intended those offenders and not others to be barred from the statute:

It is a universal principle in the interpretation of statutes that expressio unius est exclusio alterius. That is, to say, the specific mention of one person or thing implies the exclusion of other persons or thing. As otherwise expressed, where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded. Thus, where a statute creates provisos or exceptions as to certain matters the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned”.

The exclusions the Legislature created in the 2009 DLRA distinguish it from the 2004 and 2005 Acts. In the 2004 Act’s resentencing provision, applicable to Class A-I felony drug offenders, all offenders were eligible for resentencing, although resentencing ranges varied depending upon an offender’s criminal history. The 2005 Act barred offenders currently serving sentences which made them not eligible for “Merit Time” from the law. This broad, general exclusion, however, only dealt with offenders who had concurrent sentences for violent, sexual and similar crimes. The 2009 Act’s exclusions are more broadly and specifically drawn. The statute excludes not only offenders serving certain current sentences but a range of offenders with objectionable prior criminal histories including those previously convicted of a violent or non Merit-Time eligible offense. The Legislature understood the 2009 Act’s exclusions to be of a different kind and character than had been enacted before.

The inference that the Legislature meant its exclusions under the 2009 DLRA to be exclusive is also more persuasive, in the Court’s view, because the exclusions would actually bar many parole violators from the statute. That is, the Act includes a bar which is a subset of those who would be barred from resentencing eligibility were the Mills and Rodriquez rules applied. An offender who violates their parole by committing a violent or non Merit-Time eligible offense within ten years of a resentencing application or who is still serving a sentence for such a crime at the time resentencing is sought, for example, is excluded from the statute not by virtue of the Mills and Rodriquez rules but because the law provides for such exclusions. But the fact that the statute bars offenders who have violated their parole by committing a sexual offense, for example, but would provide a court with the discretion to determine whether or not to grant a resentencing application for an offender who violated their parole by missing a parole appointment, in the Court’s view, is not illogical or perverse. Legislatively created distinctions like this are surely not so irrational as to justify rewriting the unambiguous language of the statute.

Fourth, the unique eligibility timing requirements of the 2009 DLRA, as contrasted with the earlier Acts, mean that, by definition, many offenders who are eligible for resentencing under the statute will be offenders returned to prison after parole violations. This is true for two reasons. First, the 2009 DLRA requires that offenders have committed their crimes prior to January 13, 2005 (and have received an indeterminate sentence with a maximum term of more than three years). Second, the Class B felony drug offenders impacted by the 2009 DLRA are, in the aggregate, serving significantly shorter terms than the Class A felony offenders covered by the 2004 and 2005 statutes. The fact that offenders can only become eligible for resentencing more than four years after their crimes were committed, and that many of these offenders will, in addition, be serving comparatively shorter sentences means that many offenders may become technically eligible for resentencing only after a parole violation. Such an outcome was a foreseeable result of the sentence lengths and timing requirements of the statute. The Court is not aware of any legislative history which indicates that the Legislature consciously intended such a result. But, as a matter of statutory construction, the Legislature is presumed to intend the natural and foreseeable results of its enactments.

Fifth, it is obvious that the 2009 DLRA is a “remedial statute” which was created to remedy perceived defects and injustices which were inherent in the sentencing system previously applied to low-level drug crime offenders. “Generally speaking, remedial statutes are liberally construed, to spread their beneficial result as widely as possible”.

The plain language of the 2009 DLRA resentencing statute thus does not exclude parole violators. There is no legislative history which suggests that the Legislature intended such a result. The Legislature’s itemization of specific exclusions in the Act creates a strong inference that no further exclusions were intended. Moreover the 2009 Act differs in this respect from both the 2004 DLRA (which had no exclusions) and the 2005 DLRA (which contained only one general exclusion for offenders serving certain concurrent sentences). The natural consequence of the 2009 DLRA’s unique sentence lengths and timing requirements is that the statute predictably will include parole violators within its eligibility rules. The 2009 DLRA is a remedial statute which must be liberally construed. In light of all of these factors and the significant differences between the 2004, 2005 and 2009 DLRA’s, the question is whether the considerations which led the Court of Appeals and the First Department to reach their conclusions in Mills and Rodriquez are so persuasive when applied to the 2009 DLRA that they should be held to bar resentencing under the 2009 statute just as such resentencings were barred under the earlier laws. In the Court’s view, the rationales behind the Mills and Rodriquez rules, when applied to the 2009 DLRA, do not support a construction which would bar parole violators from resentencing eligibility.

A second possible rationale for barring such offenders from resentencing consideration might be that parole violators are simply more blameworthy, more dangerous or less deserving of the ameliorative benefits of resentencing than other offenders. Even assuming that such a value judgment was one which the courts, rather than the Legislature was entitled to make, however, the argument would simply be incorrect in numerous cases.

An offender who is never released from prison may have engaged in much more egregious, dangerous and blameworthy conduct before and after being convicted of a drug crime than one who is granted parole release and then returned to prison after a violation. For example, an offender with an extensive violent history who was repeatedly denied parole release because of multiple violent disciplinary infractions while in prison would not, by virtue of those infractions, be statutorily ineligible for resentencing, although a court reviewing the case of an offender with significant indicia of violence would very likely deny a resentencing application in the exercise of its discretion. However, were the Mills and Rodriquez rules applied to the 2009 DLRA, a first felony offender who had a perfect prison disciplinary record, completed drug treatment, earned a GED, was granted early parole release and then returned to prison for violating his curfew would be permanently barred from resentencing. Results like these would be arrived at moreover, not by applying the provisions of the statute. They would be reached by obviating the statute’s plain meaning.

Defendant’s circumstances in the instant matter provide another good example of the incongruous results which would arise from applying a statutory resentencing bar under the 2009 DLRA to all offenders in prison for a parole violation. Unlike many defendants applying for resentencing under the 2009 DLRA who have significant felony histories, the defendant is a first felony offender. He served in the National Guard for eight years. He has successfully completed numerous prison programs. He has no violent felony history. He has an almost perfect prison disciplinary record (having committed one serious disciplinary infraction). At the time his motion was granted he was enrolled in the Alcohol and Substance Abuse Treatment program where he was receiving favorable reviews. But he has also committed multiple parole violations.

“Substantial justice” does not dictate the denial of Defendant’s resentencing motion. But neither should a judicially created categorical resentencing eligibility bar.

Thus, in view of the foregoing, the Court holds that a defendant who is returned to prison after violating the provisions of his parole is not, by virtue of that fact, barred from resentencing eligibility under the 2009 DLRA. Defendant’s motion is granted and the Defendant is offered a new determinate sentence of 3 years in prison followed by 2 years of post-release supervision.

If you have been convicted and sentenced for a crime, you need to seek the advice of Bronx Criminal Attorney and/or Bronx Drug Crime Attorney, in order to know whether you are eligible for resentencing in criminal law. Call Stephen Bilkis and Associates for free consultation.

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