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.