Eligibility for 2009 DLRA Resentencing Expanded and Clarified by Amendment to CPL § 440.46

The most recent New York State Budget Bill was signed into law on March 31, 2011.  This law effectively merges the Department of Correctional Services (DOCS) and the Department of Parole into one agency called the Department of Corrections and Community Supervision (also referred to as the “Department”).  In addition to the merger, the bill amended CPL § 440.46 and in doing so expanded and clarified the scope of those eligible for resentencing.  The amendment became effective immediately, and can be found at L 2011, Ch. 62, Part C, Subpart B, § 79.  The law now reads as follows: 

“Any person in the custody of the department of [correctional services] CORRECTIONS AND COMMUNITY SUPERVISION 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, may, except as provided in subdivision five of this section, upon notice to the appropriate district attorney, apply to be resentenced to a determinate sentence in accordance with sections 60.04 and 70.70 of the penal law in the court which imposed the sentence.”

When the amendment to CPL § 440.60 is read in conjunction with the amendment to Executive Law § 259-i(2)(b), it is clear that the amendments intend for those under community supervision to be considered in the custody of this new Department and eligible for resentencing.  Executive Law § 259-i(2)(b) reads as follows:

“Persons presumptively released, paroled, conditionally released or released to post-release supervision from an institution under the jurisdiction of the department [of correctional services or], the department of mental hygiene or THE OFFICE OF CHILDREN AND FAMILY SERVICES shall, while on presumptive release, parole, conditional release or post-release supervision be in the legal custody of the DEPARTMENT until expiration of the maximum term or period of sentence, or expiration of the period of supervision, including any period of post release supervision, or return to imprisonment in the custody of the department, as the case may be.

The amendment is meaningful and the broader impact of CPL 440.46 is consistent with the overall theme of this section of the legislation.  Any argument that this merger was only for financial reasons is quelled by the legislative intent portion of the bill.  The legislative intent focuses on promoting successful and productive reentry and reintegration for both incarcerated individuals and individuals under community supervision. 

“In view of the commonality of purpose governing the fundamental missions of both agencies, a single new state agency should be created to oversee the combined responsibilities of both and, in effect, provide for a seamless network for the care, custody, treatment and supervision of a person from the day of sentence of state imprisonment commences, until the day such person is discharged from supervision in the community.” 

The amendment of CPL 440.64 impacts the eligibility of two categories of defendants.  The first group is those who filed for resentencing while still incarcerated, but were released to parole before resentencing occurred.  The amendment clarifies and confirms that these individuals are covered by the statute since they are now clearly in the custody of the newly created Department of Corrections and Community Supervision, even after their release onto parole (now “community supervision”).  The same is true for defendants who file for resentencing after being released from prison and placed on parole.

Furthermore, the amendment to Executive Law § 259-i(2)(b) clarifies the custodial status of those defendants who have been reincarcerated following a parole violation.  Some courts have reasoned that parole violators returned to prison were not in the custody of DOCS, and therefore not eligible for resentencing under 440.46.  That argument now falls by the wayside as this amendment rejects such reasoning.  Parole violators who are reincarcerated are now clearly in the custody of the new joint Department. 

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5/4/11 UPDATE:   Although Westlaw has not yet updated CPL 440.46, there is a red flag that directs you to budget bill where the changes can be seen.  The statute has however been updated on the New York Assembly's website and can be found at the following link: New York CPL 440.46.