Thursday, March 10, 2011

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.

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