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Court Looks at Complex Resentencing Issue for Defendant


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. A Bronx Drug Crime Lawyer said that, 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 drugs 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 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.

A New York DWI Lawyer said that, the Defendant was initially released to parole supervision on the instant offense. 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. 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 New York DWI Lawyer said that, while incarcerated, Defendant successfully completed the drug crime treatment program and the Shock Incarceration program. He entered the Alcohol and Substance Abuse Treatment Program (“ASAT”) 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. A Bronx Criminal Lawyer said that, defendant moves to be resentenced pursuant to the Drugs Law Reform Act of 2009. That motion is opposed by the People. 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 Court said that 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 a 2008 case and 2009 case decided by the Supreme Court. In the 2008 case, it involved an application for resentencing by two offenders under the 2005 DLRA. In the said case, 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. A Nassau County DWI Lawyer said the People’s argument in the instant matter concerns the Court’s holding with respect to the second named Defendant. The defendant 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. He 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 he 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 defendant 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, the 2008 case 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 the 2008 case 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.

The Court said that, 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 2008 case 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 the said 2008 case, this time assessment was 5 months and 26 days. Defendant 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.

It is not clear what practical impact the 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 2008 case 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 the defendant. But the decision also to a large extent covered offenders who were ineligible for resentencing in any event. The more significant practical effect of the 2008 case would occur if its underlying rationales were applied to drug law resentencing enactments which do not include the three year eligibility bar.

The Court said that, there are a number of reasons why the 2008 and the 2009 case 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. 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 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 and the 2005 DLRA. 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. 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.

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, 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 are involved in a DWI and Drug Crime, you will need the assistance of a Bronx DWI Attorney and/or Bronx Drug Crime Attorney in order to defend your case. Stephen Bilkis and Associates can provide you with competent Bronx Defense Attorney to represent your day in Court. Call us for free consultation.

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