On August 11, 2011, the Third Department decided People v. Devivo,
NY Slip Op 06195. The case involves a defendant convicted of Criminal Sale of a Controlled Substance in the 3rd Degree who received a sentence of 3 to 9 years in prison. While on parole for this drug conviction, the defendant was convicted of Burglary in the 2nd Degree (a violent felony), in addition to two non-violent felonies, and was sent back to prison. Burglary in the 2nd Degree is considered an “exclusion offense” for purposes of resentencing under the Drug Law Reform Act. The issue here is whether an “exclusion offense” committed after release from prison renders a defendant ineligible for resentencing.
All four Departments have now ruled that the look-back period for an “exclusion offense” is measured from the date of the defendant’s motion for resentencing. In the instant case, the County Court Judge denied the defendant’s motion finding him ineligible for resentencing due to the subsequent “exclusion offense” within the 10 years preceding his motion for resentencing. The Third Department rejected this conclusion, essentially ruling that the 10 year look-back period didn’t even apply to this offense pointing out that the statute refers to a “previous felony” and a “present felony”, but not to a felony committed following the defendant’s release. As such, the defendant was found legally eligible for resentencing. Unfortunately, upon making this finding, the Third Department deferred to the County Court’s conclusion that given the defendant’s post-release conviction and conduct while incarcerated, substantial justice dictated that the application be denied.
In summary, defendants with a conviction for an “exclusion offense” following their release from prison on a class B drug offense conviction may be legally eligible for resentencing. In such cases however, counsel should be prepared to face strong opposition from the prosecution who will argue that “substantial justice” dictates a denial of the resentencing application. For more information on the issue of “substantial justice”, please see our previous blog dated 8/12/11.