People v Anonymous

People v Anonymous 2007 NY Slip Op 07069 [43 AD3d 806] September 27, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

The People of the State of New York, Respondent,
v
Anonymous, Appellant.

—[*1] Fried, Frank, Harris, Shriver & Jacobson LLP, New York (Matthew M. Roose of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Dennis Rambaud of counsel), for respondent.

Order, Supreme Court, New York County (Robert H. Straus, J.), entered on or about September 16, 2005, which denied defendant's motion to be resentenced, unanimously affirmed.

In 1997, defendant was convicted of conspiracy in the first degree (Penal Law § 105.17). Although the conspiracy related to class A drug felonies, the court properly denied his motion because resentencing under the Drug Law Reform Act is only available to those persons who were convicted of offenses defined in article 220 of the Penal Law (see L 2004, ch 738, § 23).

While Penal Law § 5.00 provides that Penal Law provisions "must be construed according to the fair import of their terms to promote justice and effect the objects of the law," a court has no power to rewrite a statute, or ignore an essential part of it to meet the circumstances of a particular case (see People v Herskowitz, 80 Misc 2d 693, 695 [1975], affd 51 AD2d 1047 [1976], affd 41 NY2d 1094 [1977]). "[C]ourts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words used." (People v Finnegan, 85 NY2d 53, 58 [1995], cert denied 516 US 919 [1995] [internal quotation marks and citations omitted].)

"The failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended" (People v Tychanski, 78 NY2d 909, 911 [1991] [citations omitted]). If the Legislature had intended to include conspiracy to commit drug offenses, it could have inserted the necessary language, and its failure to do so is presumed to be [*2]intentional (see People v Pinkoski, 300 AD2d 834, 836-837 [2002], lv denied 99 NY2d 631 [2003]). Concur—Mazzarelli, J.P., Saxe, Friedman, Marlow and Williams, JJ.