First Department Weighs in on the “Substantial Justice” Issue and Grants Resentencing

With its decision in People v. Paulin, NY Slip Op 05544, the Court of Appeals rejected attempts to limit eligibility for resentencing on class B drug offenses.  The focus of resentencing applications now turns to a new issue.  The primary goal is now to ward off the prosecution’s attempt to convince the Court that “substantial justice” demands a denial of resentencing.  The Appellate Division weighed in on this issue in People v. Milton, 2011 NY Slip Op 05981 (1^st Dept.).  The case involved a defendant convicted of two counts of Criminal Sale of a Controlled Substance in the 3^rd Degree.  The Bronx County Supreme Court cited his failure to complete a drug treatment program as their reason for denying his application for resentencing.  Despite this, the Appellate Division overturned the lower court decision citing to the 2009 DLRA’s purpose of ameliorating harsh sentences.  Attorney David Crow at the Legal Aid Society in New York City has prepared a Motion to Reargue/Renew based on the decision in Milton.  Please contact CCA for a copy of this motion.  

In addition to Milton, there have been several positive lower court decisions addressing this issue.  People v. Jones, (New York County Court), provides a detailed analysis of the “substantial justice” issue, and is a must read for any attorney filing a resentencing application.   In Jones, the defendant was similarly convicted of a sale offense.  His parole was revoked twice, and his record in prison included three disciplinary infractions.  He was also subsequently convicted of a misdemeanor resulting in local jail time.  In granting his request for resentencing, the Court cited the 2004 Drug Law Reform Act which indicates that a defendant shall be resentenced pursuant to §§ 60.04 & 70.70 unless substantial justice dictates that resentencing be denied.  “Simply put, there is a strong presumption in favor of granting a resentencing application for all eligible defendants.” People v. Lopez 10 Misc.3d 1056(A). 

Prosecutors have attempted to argue that only “users” and the lowest level drug sellers should be resentenced, and that others with higher level offenses should be denied resentencing citing “substantial justice” but as Lopez points out,

“…the Act is not limited to the lowest level participants.  To the contrary, the Act introduces a new sentencing scheme which covers all levels of participants.  The new scheme is consistent, moreover, with the legislature’s general preference for determinate sentences and post-release supervision rather than indeterminate sentences and parole.” 

In other cases, it is the defendant’s prison record that is the determining factor, but, “there is nothing in case law or DLRA-III (or its predecessors) that establishes that an inmate’s disciplinary history is the dispositive factor in deciding whether to offer re-sentence.” People v. Robert Hairston, (Bronx County, J.Alvarado, February 10, 2010).  In fact, in People v. Walltower, (Queens County, J.Kohm, April 6, 2010), the Court granted the defendant’s request for resentencing despite accruing 32 infractions while in prison, 21 of which were 3^rd tier. 

Since the purpose of resentencing under the DLRA is to correct overly harsh sentences, resentencing is not something that must be earned by a defendant.  Each of the cases cited above point to the conclusion that resentencing should only be denied in the rarest of cases.    “Put another way, in order for a court to completely deny resentencing, the facts and circumstances of an offender’s instant crime, criminal history, institutional record and other relevant facts must point so strongly against resentencing, when considering notions of fairness, reasonableness and due process, as to authoritatively command that an application be completely denied.” Jones.