Wednesday, January 18, 2012

The First Department Strengthens the Presumption in Favor of Resentencing in Class B Felony Drug Cases

A motion for resentencing made pursuant to CPL § 440.46 shall be granted unless “substantial justice” dictates otherwise (see Section 23 of Chapter 738 of the Laws of 2004).  As such, there is a strong presumption in favor of resentencing.  With their recent decision in People v. Cephas, 90 AD3d 557, the First Department built upon their decision in People v. Milton and reinforced this presumption.  In Milton, the court ruled that failure to complete a drug treatment program was not a sufficient reason to deny a resentencing motion, citing to the 2009 DLRA’s purpose of ameliorating harsh sentences.  The court’s decision in Cephas supports the notion that a motion for resentencing should not be denied based only on the defendant’s failures or bad acts which occurred before the offense for which resentencing is sought was ever committed. 

The county court judge denied the defendant’s motion for resentencing citing his long criminal history and the fact that he had relapsed into drugs and crime despite completing substance abuse programs during prior incarcerations.  In a unanimous reversal of the lower court’s decision, the First Department pointed to the defendant’s achievements following his B felony drug conviction including the completion of substance abuse programs, favorable evaluations from corrections officials, and his acceptance into a two-year residential treatment program indicating that these factors outweighed the defendant’s criminal history.  This decision reinforces the argument that the granting of resentencing for B felony offenders serving indeterminate sentences should be the norm, not the exception.  It should prove helpful to attorneys filing § 440.46 motions for clients with extensive criminal histories. 

Additional court decisions on the issue of “substantial justice” in CPL § 440.46 resentencing cases can be found on our website at:

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