CPL §440.46 Resentencings: Peter Preiser’s revised 10 year look back commentary

CPL §440.46(1) allows for the resentencing of “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” except as is provided in CPL §440.46(5).

CPL §440.46(5)(a) defines an “exclusion offense”, in part, as one of certain crimes for which the person was “previously convicted within the preceding ten years…”.

In an effort to limit the reach of CPL §440.46, some DAs have argued that the ten year look back should be measured from the date of commission of the drug offense rather than from the filing date of the resentencing application.  Most trial courts rejected this argument, holding that the ten year look back should be measured from the date of the resentencing application.  A limited number of trial courts, including one in the 4^th Department, held otherwise.  

Currently the issue is pending in the 1^st Department (on an appeal from the prosecution where the resentencing application was granted) and in the 4^th Department (on an appeal from the defendant where resentencing was denied)  Some judges and District Attorneys have cited to the McKinney’s CPL §440.46 commentary authored by Peter Preiser to support their more limited reading of the statute, even as defense advocates argued that the appropriate date for the look back is the date of the filing for resentence.

In the 2009 commentary Mr. Preiser took the more restrictive position that the 10 year look back should be measured from the time of the conviction for the potential exclusion offense to the date of the commission of the drug offense for which the defendant is seeking resentencing, as opposed to the date of the filing for resentence.

Upon further review, and to his credit, Mr. Preiser has recently amended his CPL §440.46 commentary:

“In reviewing my Practice Commentary of 2009 and some of the opinions that have struggled to interpret the time period for exclusion set forth in subdivision 5(a), it occurred to me that while the statement I made as to the calculation of the time between the crimes was not incorrect, it certainly was an inadequate interpretation of the time period intended for determining “exclusion” from eligibility, which is more properly related to the date of defendant’s application for resentence. Please accept this attempt to be more explicit, which is incorporated in a reproduction of the 2009 commentary, edited in that regard.”

The commentary is now edited to read in pertinent part:

“As I read the statute, the paragraph (a) exclusion for a previous conviction within the preceding ten years means from the date of the predicate sentence to the date of the present application for resentencing on the Class B felony, less time spent under incarceration between commission of the predicate and present crimes.”

Advocates should put Mr. Preiser’s candid “attempt to be more explicit” to good use.