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
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.