Court of Appeals Rules that the "10 Year Look Back" is Measured from the Date the Motion for Resentencing is Filed

This week, the Court of Appeals released its decision in People v. Sosa, 2012 NY Slip Op 01101.  The Court agreed with the conclusion previously reached by all four Appellate Departments ruling that when determining whether a defendant has a prior felony that would be an “exclusion offense” as to preclude a motion for resentencing under CPL § 440.46, the “look back” period is measured from when the defendant filed the motion for resentencing.  The majority rejected the contention argued by prosecutors across the state that the look back is measured from the date that the felony for which resentencing is sought was committed. 

Defense attorneys handling resentencing cases should be alert to the fact that over the course of the next few years, as time accrues on the 10 year look back, some defendants will “age in” to eligibility, and be able to proceed on resentencing motions that are premature at this point.