People v Merejildo

People v Merejildo 2007 NY Slip Op 09093 [45 AD3d 429] November 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

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

—[*1] Steven Banks, The Legal Aid Society, New York City (Karen M. Kalikow of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.

Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered February 3, 2006, which denied defendant's motion to be resentenced pursuant to the Drug Law Reform Act (DLRA) of 2005, unanimously affirmed.

One of the eligibility criteria for a defendant seeking resentencing on a class A-II felony conviction under the 2005 DLRA (L 2005, ch 643, § 1) is that he or she must meet the merit time eligibility requirements of Correction Law § 803 (1) (d). Correction Law § 803 (1) (d) (ii) provides that merit time is not available to any person serving an indeterminate sentence for, among other things, a violent felony.

In 2000, defendant was convicted of criminal possession of a controlled substance in the second degree and the violent felony offense of criminal possession of a weapon in the third degree. He was sentenced to consecutive terms of eight years to life and 2 to 4 years. The motion court correctly concluded that because defendant is incarcerated pursuant to a judgment that includes a sentence for a violent felony, he is ineligible for merit time under Correction Law § 803 (1) (d) (ii) and, thus, ineligible for resentencing.

While defendant presently argues that the two to four year term imposed on his weapons conviction expired, at the latest, in 2004, so that at the time of the resentencing motion he was no longer serving a sentence for a violent felony, he did not preserve that argument and we decline to review it in the interest of justice. Were we to review this claim, we would reject it. Pursuant to Penal Law § 70.30 (1) (b), defendant's consecutive sentences are merged into a single aggregate sentence (see People v Curley, 285 AD2d 274 [2001], lv denied 97 NY2d 607 [2001]), with a term of 10 years to life. The Penal Law provision contradicts defendant's argument that when a [*2]life sentence and a term other than life are served consecutively, the non-life term is necessarily served first. Concur—Tom, J.P., Mazzarelli, Saxe, Nardelli and Kavanagh, JJ.