NEW DECISION ALERT!! First Department Decides CPL §440.46 Ten-Year Lookback Case!

Drug Law Reform advocates have been awaiting a definitive ruling regarding the 10-year lookback provision of CPL §440.46(5)(a) which serves to exclude from resentencing people “previously convicted within the preceding ten years” of certain felony offenses. 

The issue has been: to what time frame does that language refer?  Is it the time between the previous potential exclusion conviction and the commission of the drug offense for which resentencing is sought, or the longer and more inclusive time period from the previous potential exclusion conviction to the filing of the motion for resentence?  After tremendous work by Barbara Zolot and the Center for Appellate Litigation, the First Department has decided it is the latter.

In People v. Sosa, Judge Marcy J. Kahn held in strong and sweeping language that the 10 year lookback period “runs back from the date of the resentencing application, and not from the date of the drug offense upon which the defendant seeks resentencing.”

The Court held that the plain language of the statute supports such interpretation.

“While the People seek to interpret that provision to mean the 10 years preceding the commission of the present felony, that interpretation strains the plain meaning of the statute.  The provision uses the simple phrase ‘preceding 10 years’, without reference to the date of commission of the present felony.  By its plain meaning, it would mean the 10 years preceding the resentencing application, since no other time period is set forth.”

The Court also considered the ameliorative purpose of the statute, as well as the protection of the public from violent drug offenders.

“Measuring the lookback period from the date of the application would permit drug offenders with violent pasts to eventually become eligible as those pasts fade into history, rather than making them permanently ineligible.  This interpretation would also be consistent with the statute’s public safety concerns, since it would still exclude persons with recent violent backgrounds.”

For good measure the Court threw in that “…the maxim expressio unius est exclusion alterius also supports the court’s determination.” 

Take that.

This decision will allow many people who might have been precluded from arguing for resentencing to at least get their day in court.  Hopefully the other Departments of the Appellate Division will eventually follow suit.  But for now, People v. Sosa stands as the law of the land in New York on the CPL §440.46(5)(a) 10 year lookback provision. [See Mountain View Coach Lines, Inc. v. Storms 102 A.D.2d 663, 476 N.Y.S.2d 918(2nd Dept. 1984)]