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When originally enacted, CPL §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.
[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
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