In two concise but strongly worded decisions issued yesterday, the Court of Appeals effectively put an end to attempts by district attorneys and courts across the state to limit the reach of resentencing eligibility for those still serving indeterminate sentences for a class B drug offense. Specifically, in People v. Paulin, Pratts, and Phillips, the Court of Appeals held that “prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief under” CPL § 440.46, the resentencing statute for class B drug offenders currently serving indeterminate sentences. In a companion case, People v. Santiago, the Court of Appeals held that those who apply for resentencing while in prison, but are released prior to the application being decided, are eligible for resentencing despite their release.
As discussed below, these two decisions have potentially broad implications for anyone who is still in prison or under parole supervision after having received an indeterminate sentence for a class B drug offense. It also has clear implications for those individuals who are in prison on a parole violation after having received an indeterminate sentence for a class A-I drug offense.
First: An Overview of the Decisions
An Overview of People v. Paulin, Pratts and Phillips:
David Lance Paulin, Jesus Pratts and James Phillips were all convicted of class B drug offenses prior to 2005, and were therefore sentenced to indeterminate sentences under the harsh Rockefeller Drug Law sentencing scheme. All three had previously been released from prison to parole supervision, but were reincarcerated after parole violations. After the 2009 Drug Law Reform Act (2009 DLRA), which enacted CPL § 440.46, all three individuals, who were still in the custody of Department of Correctional Services (DOCS) on parole violations, applied to their respective sentencing courts to be re-sentenced to less harsh determinate sentences. In all three cases, the sentencing courts denied the applications on the grounds that parole violators were not eligible to be re-sentenced. Each appealed this decision. Mr. Paulin’s and Mr. Pratts’ appeals went to the Appellate Division, First Department, which agreed with the lower courts and denied their appeals. Mr. Phillips, whose appeal went to the Appellate Division, Second Department, fared much better. In People v. Phillips, 82 A.D.3d 1011 (2nd Dept. 2011
In a unanimous decision, the Court of Appeals held that there is nothing in CPL § 440.46 that renders parole violators ineligible for resentencing. The Court began by reviewing the statute itself, concluding that under the plain language of CPL § 440.46, Mr. Paulin and Mr. Pratts[1] were eligible for resentencing because they were both in DOCS’ custody after having been convicted of class B drug felonies that were committed prior to 2005, they were both serving indeterminate sentences with a maximum exceeding three years, and none of the exceptions listed in CPL § 440.46(5) applied to them. Having concisely stated that the plain language of CPL § 440.46 supported Mr. Paulin’s and Mr. Pratts’ eligibility for resentencing, the Court next addressed the prosecution’s argument that the defendants were ineligible because permitting them to be resentenced would “have the absurd result of rewarding them for their parole violations.” The Court swiftly rejected this argument, stating:
“We see no absurdity. The purposes of the 2009 DLRA ... was to grant relief from what the Legislature perceived as the ‘inordinately harsh punishment for low-level non-violent drug offenders’ that the Rockefeller Drug laws required.”
The Legislature enacted CPL § 440.46 with a focus on those who were in prison; it makes no difference whether they were in prison having never been paroled or in on a parole violation. In either case, they are in prison, and thus, directly enduring the harsh impact of the Rockefeller Drug Laws. The Court went on to address its prior decision in People v. Mills and Then, 11 N.Y.3d 527 (2008), which disallowed resentencing for class A-II drug offenders who were in prison on a parole violation, and which prosecutors and other courts had relied upon in limiting class B resentencing eligibility. The Court of Appeals clearly and unequivocally held that the Mills and Then decision applies only in an A-II resentencing context, and is a function of the nuances of the A-II resentencing statute, which limits eligibility to those who are “more than twelve months from being an eligible inmate as that term is defined in” Correction Law § 851(2). Said the Court:
“Reading the 2005 [DLRA] with the Correction Law definition, we held in Mills ‘that in order to qualify for rentencing under the 2005 DLRA, class A-II felony drug offenders must not be eligible for parole within 3 years of their resentecing applications’. This holding is irrelevant to the present case.”
People v. Paulin, Pratts, and Phillips at 6 (emphasis added).
An Overview of People v. Santiago
Having decided that parole violators are eligible for resentencing, the Court of Appeals in People v. Santiago addressed the issue of whether a person who was in DOCS’ custody at the time she submitted an application for resentencing, but released to parole prior to the application being decided, is still eligible for resentencing. In Ms. Santiago’s case, both the original sentencing court and the First Department held that her post-application release to parole rendered her ineligible for re-sentencing. The Court of Appeals disagreed, noting that while CPL § 440.46 is targeted to those in prison, the statute only says that the defendant “must be in custody when he or she applies for re-sentencing; it does not require that custody continue until the application is denied.” The Court went further, and in a refreshingly candid acknowledgment of the disingenuous strategizing which district attorneys and courts have used to limit the reach of the 2009 DLRA, stated that: “to read that requirement into the statute would have significant disadvantages: it could produce gamesmanship, and unnecessary arbitrary result, by leading the parties, and perhaps some judges, to try and accelerate or slow progress toward a decision in the expectation that parole release will cause the application to fail.”
What are the implications of these two decisions? How can advocates obtain relief for their clients who are still enduring the overly punitive nature of the Rockefeller Drug Laws?
Second: The Potentially Broad Implications for People Who Are Still in Prison or Under Parole Supervision After Receiving an Indeterminate Sentence for a Class B Drug Offense.
The Court of Appeals decision in People v. Paulin, Paulin and Phillips has clear implications for class B drug offenders serving an indeterminate sentence who are still in prison. Even those who are in prison on a parole violation are clearly eligible for resentencing under CPL § 440.46. Similarly, People v. Santiago could not be more clear in stating that a person is eligible for resentencing under CPL § 440.46, even is she is released from prison before her resentencing application is decided.
Both cases, of course, have significant implications for people who were previously erroneously denied resentencing because of their status as a parole violator or because they were released from prison before their resentencing application was decided. Defense attorneys and defender offices now have the obligation of reaching out to these individuals to ensure that they are able to successfully re-apply for resentencing.
Is there any potential relief for those who have been released to parole supervision? The answer is: Maybe. As discussed in our April 22, 2011 blog post, the New York State Budget Bill passed in March, 2011 effectively merged the Department of Correctional Services (DOCS) and the Division of Parole into one agency called the Department of Corrections and Community Supervision (DOCCS). The merger resulted in amendments to several statutes, including CPL § 440.46 to provide class B resentencing eligibility to those “in the custody of the Department of Corrections and Community Supervision.” As set forth in our previous blog, this change seems to mean that those class B drug offenders who committed their crimes prior to 2005 and are still serving an indeterminate sentence are eligible for resentencing even if out of prison and on parole supervision.
This argument was presented to the Court of Appeals in supplemental briefings in both Paulin, Pratts and Phillips and Santiago Santiago
This means that this issue remains unresolved. It is therefore incumbent upon defense lawyers and defender offices to develop a strategy for best capitalizing on the potential for broader resentencing eligibility of people serving an indeterminate sentence for a class B drug offense, even if serving it while under parole supervision.
Third: The Broad Implications for People Who Are Still in Prison After Being Sentenced to an Indeterminate Sentence for a Class A Drug Offense
Since the Court of Appeals decision in People v. Mills and Then, 11 N.Y.3d 527 (2008), there has been debate as to whether class A-I parole violators are eligible for resentencing. In 2006, in a decision often mis-read as applying to class A-I drug offenders, a Westchester Supreme Court held that a defendant in prison on a parole violation was not eligible for resentencing. See People v. Bagby, 11 Misc.3d 882 (Sup. Ct.
By making it abundantly clear that limitations to resentencing eligibility because of a defendant’s status as a parole violator are confined solely to the unique A-II resentencing legislation, the Court of Appeals in People v. Paulin, Pratts, and Phillips essentially re-affirms the Second Department decision in People v. Caban. At this juncture, and given these two decisions, it is hard to imagine how any intellectually honest court could deny resentencing eligibility to a defendant serving an indeterminate sentence for a class A-I drug offense who is in prison on a parole violation.
Finally: Beyond Resentencing - Implications for Other 2009 DLRA Issues
The 2009 DLRA reforms included not only resentencing provisions, but also:
• enactment of CPL Article 216, which establishes a state-wide mechanism for Judicial Diversion for felony drug offenders;
• CPL § 160.58, which allows for the conditional sealing of drug convictions where a person completed a judicially sanctioned treatment program; and
• a host of amendments to DOCS programs, which allow for more judicial discretion and a more therapeutic response to drug-related crimes.
As we have previously discussed in this blog, district attorneys across the State have worked hard at limiting the reach of the 2009 DLRA, most often by asking courts to limit eligibility, and often ignoring the plain language of the 2009 DLRA. Because the 2009 DLRA was passed as part of the New York State Budget Bill, there was no accompanying bill jacket, and thus, no legislative memoranda to which to turn for a clear statement of legislative intent.
The Court of Appeals decisions in People v. Paulin, Pratts and Phillips and People v. Santigao provide ample ammunition for defense lawyers to fend off arguments by district attorneys who seek to limit the reach of the 2009 DLRA. In these companion decisions, the Court relied upon the statute’s plain language and refused to read into it non-existing limiting language. But just as importantly, the Court of Appeals told litigants where to turn for a clear statement of legislative intent. Specifically, in People v. Paulin, Pratts and Phillips, the Court relied upon press releases by Governor Paterson and the Assembly as the best indication of legislative intent. Both press releases are available on CCA’s website, and both include language of legislative intent that supports a broad interpretation of the various provisions included in the 2009 DLRA. The two quotes below are just examples of how effective use of these press statements can help attorneys in advocating for their clients to obtain the therapeutic rather than punitive results promised in the 2009 DLRA:
• The [2009 DLRA] reforms … eliminate the harsh sentences that the Rockefeller Drug Laws mandated by giving judges total authority to divert non-violent drug addicts to treatment and greatly expanding drug treatment programs.
• The reform legislation enacted as part of the 2009 budget is based on the more enlightened and effective policy that drug addiction is a public health crisis and that drug treatment works. The historic reform enacts a sensible, comprehensive and cost-effective approach for dealing with non-violent drug offenders and will ensure that drug abusers are able to access effective substance abuse treatment and counseling.
It is hoped that the Court of Appeals companion decisions will go far in making the 2009 DLRA a reality.
[1] The Court of Appeals held that Mr. Phillip’s appeal was moot because he had reached his maximum expiration date.
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