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Parties Disagree if Defendant is Eligible for Resentencing


The Facts:

On 16 October 1994, defendant was arrested for selling $20 of cocaine to an undercover police officer. On 27 January 1997, he was convicted of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree. He was sentenced as a Second Felony Offender to concurrent indeterminate prison sentences of 5 1/2 to 11 years. A New York Drug Crime Lawyer said he was convicted in that case of. On 19 May 1999, defendant was released on parole.

Approximately 6 months later, he was arrested for another drug sale charge. On 4 August 2000, he pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree, a class C felony. He then apparently failed to appear in court for sentencing and a bench warrant for his appearance was issued on 28 February 2001. He was returned on that warrant a little more than two years later on 2 May 2003. He was sentenced upon that conviction on 12 June 2003 to an indeterminate sentence of imprisonment with a term of 3 1/2 to 7 years.

Subsequently, defendant moved pro se under the 2009 DLRA (Drug Law Reform Act) to be resentenced for his Class C felony conviction. A New York Drug Possession Lawyer said that motion was denied in Westchester County Supreme Court, inter alia, because the Court held that the 2009 DLRA did not authorize the resentencing of Class C felony drug offenders.

In addition to the charges, the defendant was convicted of Criminal Possession of Controlled Substance in the Fifth Degree in 1990 and Attempted Criminal Sale of a Controlled Substance in Third Degree in 1991. He also has six misdemeanor convictions and would appear to have two pending misdemeanor cases. His misdemeanor convictions include several others for Criminal Possession of a Controlled Substance as well as Possession of Burglar’s Tools and Criminal Possession of Stolen Property.

The Ruling:

The 2009 DLRA, inter alia, allows certain convicted Class B felony offenders (of the drug crime of marijuana possession or crack possession, etc.; criminal law violations) serving indeterminate sentences imposed prior to 13 January 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.

Here, the parties disagree about whether the defendant is statutorily eligible for resentencing in one respect. A Nassau Drug Possession Lawyer said the People argue that the defendant is ineligible for resentencing because he is currently incarcerated only by virtue of a parole violation while the defendant contends that the fact that he was incarcerated at the time the instant motion was filed only by virtue of a parole violation does not make him ineligible for resentencing.

When the Legislature created a resentencing statute applicable to certain Class B felony offenders and certain Class C, D & E felony offenders sentenced at the same time, it intended to limit the statute to those offenses.

A Queens Drug Possession Lawyer said in the case at bar, the defendant is arguably eligible for resentencing only because of a Class C felony conviction which occurred 5 years after his conviction for the instant offense. Therefore, he is not eligible for resentencing. Allowing resentencing would not reform the defendant’s Class B felony sentence. That sentence is over. What Defendant is seeking here is a recalculation of the date on which his ineligible Class C felony sentence would be deemed to have commenced so that the maximum expiration date of that sentence would be diminished from 2015 to some earlier time. Were this Court to change defendant’s instant 5 1/2 to 11 year indeterminate sentence, for example, to a 6 year determinate term, such a reformation would have no impact on the defendant’s Class B felony sentence, which has already been served. It could also not have any effect on his Class C felony sentence unless the Court construed this reformation to push back the commencement of defendant’s second Class C felony offense to a date prior to the time that sentence actually started. In the Court’s view, there is no evidence that the Legislature intended to authorize a retroactive recalculation of the commencement date of a sentence (not covered by the statute which was for a crime committed years after an eligible sentence had been imposed). Indeed, defendant’s previous application to reform his Class C felony sentence was denied three months ago in the Westchester County Supreme Court.

In sum, defendant’s motion for resentencing is denied; defendant’s instant Class B felony sentence has already been completed and that his subsequent sentence for a Class C felony drug offense not covered by the 2009 DLRA did not serve to extend the period of his instant Class B felony sentence beyond its term.

If you are involved in a similar matter, contact a New York Criminal Attorney immediately. Time is of the essence when it comes to court procedures. Certain rights may be lost if not demanded immediately. Contact Stephen Bilkis & Associates and ask for a free consultation. You may speak to an NY Drug Lawyer from our firm, among others.

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