Violent Felony or Merit Time Ineligible Offense Committed After B Felony Drug Conviction is not an “Exclusion Offense”: Resentencing Permissible

Last year in People v. Devivo, 87 AD3d 794, the Third Department ruled that a defendant who commits a violent felony offense after his conviction for the class B felony drug offense for which he seeks resentencing is eligible for such relief under CPL § 440.46. (See our blog post from August 19^th, 2011).  The First Department has now adopted this view in People v. Cristostomo, NY Slip Op 03364 (1^st Dept.).  Similarly, in People v. Myles, 90 AD3d 952 (2^nd Dept.) the Second Department concluded that a defendant who commits a merit time ineligible offense after the conviction for the B felony drug offense for which he seeks resentencing is also legally eligible for resentencing. 

The rationale for all three decisions is the same.  In order for a potential exclusion offense to preclude resentencing as being an “exclusion offense” it must have occurred prior to the conviction for the class B felony drug offense.  To support their opinions, the First and Second Departments both cited the language of CPL § 440.46(5) where the term “exclusion offense” is defined.  Both Courts pointed out that the legislature chose the words “previous felony” when referring to the potential “exclusion offense” and the words “present felony” when referring to the B felony drug offense. 

Parolees are Now Eligible to Apply for Resentencing

In People v. Pomales, 940 NYS2d 454 (Bronx Cty.), the Court, relying on the plain meaning of the amended statute, ruled that non-incarcerated parolees are eligible for resentencing under CPL § 440.46. [1] 

When originally enacted, CPL § 440.46, as part of the 2009 Drug Law Reform Act, permitted any defendant convicted of a class B felony drug offense serving an indeterminate sentence with a maximum term of more than three years to apply for resentencing to a lower determinate sentence, provided that they were in the custody of the Department of Correctional Services (DOCS).  This was understood to mean that a person on parole was not eligible to apply for resentencing, and only people in prison were so eligible. 

Eligibility seemed to change when CPL § 440.46 was amended in 2011 to reflect the merger of DOCS and the Division of Parole.  The merger created the Department of Corrections and Community Supervision (DOCCS).  As a result, CPL § 440.46(1) was amended to change the eligibility criteria to “[a]ny person in the custody of the department of corrections and community supervision…”  A parolee would thus seem to qualify since a parolee would be in the custody of this newly created agency as would a state prisoner. 

In Pomales, the Court examined whether non-incarcerated individuals on parole should be considered eligible for resentencing in light of the amendment to CPL § 440.46.  Mr. Pomales had been sentenced in 2005 to 2-6 years in prison for the crime of Criminal Sale of a Controlled Substance in the Third Degree.  After serving a portion of his sentence, Mr. Pomales was released to parole supervision.  While on parole, he filed a motion for resentencing.

The prosecution contended that there is a distinction between “custody” and “legal custody”, and argued that parolees are not in the custody of DOCCS.  The prosecution essentially equated an individual “in custody” with an inmate.  Rejecting the prosecution’s argument, the Court pointed out that CPL § 440.46 does not distinguish between defendants who are incarcerated and those who are on parole, and concluded that as a result of the merger of the Department of Corrections and the Division of Parole, and the amendment to the statute, eligibility for resentencing under CPL § 440.46 has been expanded to include non-incarcerated parolees. 

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[1] The Court of Appeals has already 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.  People v. Paulin, 17 NY3d 238.  In a companion case, the Court of Appeals also 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.  People v. Santiago, 17 NY3d 246.  The Court of Appeals did not address the effect of the amendment to CPL § 440.46.