Second Department Finds Parole Violators Are Eligible for Resentencing Under the 2009 DLRA

In People v. Phillips, __ A.D.3d __, 2011 NY Slip Op 02038, decided last week, the Second Department held that a parole violator who is reincarcerated on a parole violation for a class B drug offense, and who otherwise meets the eligibility criteria for resentencing set out in CPL § 440.46, is eligible to apply for resentencing.  The Second Department reasoned that:

                        “…[n]othing in CPL 440.46 supports a conclusion that such

                        status (as a parole violator) renders a person ineligible to

                        apply for resentencing in the first instance.”

In Phillips the Second Department soundly rejected the conclusion of the Appellate Division, First Department, in People v. Pratts, 74 A.D.3d 536, 537, lv granted 15 N.Y.3d 895, and in People v. Paulin, 74 A.D.3d 685, lv granted 15 N.Y.3d 854.  In Pratts and Paulin the First Department engrafted the specific eligibility requirement of the 2005 DLRA onto the 2009 DLRA, which had the effect of making parole violators ineligible for resentencing under the 2005 DLRA (which applies to A-II drug offenses) by limiting eligibility for resentencing to only those individuals who were more than three years from parole eligibility. (Obviously a parole violator could never be more than three years from his next parole board appearance because of the limit of a two year hit from board to board).   The Second Department made short work of this fiction, refusing to engage in a so-called interpretation of legislative intent of the plain meaning of CPL § 440.46.  Clearly this would be needlessly using “legislative intent” as an excuse to legislate.

                        “We do not agree with the conclusion of the Appellate

                        Division, First Department, that interpreting the statute

                        to permit parole violators to apply for resentencing would

                        be “contrary to the dictates of reason and leads to

unreasonable results.”

           

The key to the Phillips analysis is the Court’s ability to read and distinguish the language authorizing a motion for resentencing under the 2005 DLRA from the separate and distinct language of the 2009 DLRA.  It was this recognition that eligibility for resentencing for a class A-II drug offense is not the same as the eligibility criteria found in CPL 440.46 for a class B offense that formed the basis for the decision in Phillips.

One might say that the Second Department took the First Department to school on this one.

This issue is pending a decision in the Fourth Department in People v. Wallace.  The final word will come from the “headmaster” when the Court of Appeals hears Pratts and Paulin on appeal in late spring.  That decision will let us know if school is out.

Second and Fourth Departments Adopt the First Department’s Interpretation of the Ten Year “Look Back” in CPL § 440.046

On February 11, 2011 we posted a new decision alert for the First Department case of People v. Sosa,  ___ A.D.3d ___, 916 N.Y.S 72 which was the first Appellate Division to rule on the interpretation of CPL 440.46’s ten year “look back” to determine whether a prior felony would be an exclusion offense so as to preclude a motion for resentencing.  As you may recall, the First Department adopted the defendant’s interpretation, an interpretation that we had suggested was the proper one dating back to the enactment of this statute.

Now the Second Department in People v. Williams (2011 WL 747920) and the Fourth Department in People v. Hill (2011 WL 589646) have joined the First Department, concluding that the proper interpretation of the ten year “look back” requires that it be measured from the date of the motion for resentencing and not, as the prosecution has contended in cases around the state, from the date of the commission of the felony for which the defendant seeks resentencing.  In Hill the Fourth Department soundly rejected the prosecution’s proposed interpretation of the statute, concluding:

            “…the People’s suggested interpretation is wholly at odds

            with the wording of the statute and would require us to rewrite

            the statute.  This we cannot do.”

Although this issue would now seem to be settled, with even Peter Preiser abandoning the prosecutor’s suggested interpretation in his Practice Commentary, the prosecution continues to pursue its soundly rejected interpretation as it seeks leave to appeal to the Court of Appeals in Sosa.  In light of the fact that there is a consensus among the three Appellate Divisions that have considered this issue, we are hopeful that the Court of Appeals will deny leave.