People v Hill

[*1] People v Hill 2006 NY Slip Op 50197(U) [11 Misc 3d 1053(A)] Decided on February 9, 2006 Supreme Court, Kings County Collini, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2006
Supreme Court, Kings County

PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

against

JAMES HILL, Defendant.



11782-1998



Attorney for the People:

Charles J. Hynes

District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

by ADA Barry L Aaron

Attorney for the defendant James Hill:

Pro se

Robert J. Collini, J.

On January 24, 2000, the defendant pled guilty to Criminal possession of a controlled substance in the second degree (PL 220.18) and Criminal possession of a weapon in the second degree (PL 265.03). He was sentenced, on February 7, 2000, to seven and one-half years to life on the drug charge and a determinate term of three and one-half years on the gun charge.[FN1]

The defendant, who is currently serving this previously imposed sentence, now moves this court, by motion on notice, for an order vacating his sentence; and upon such vacatur, to be re-sentenced to a determinate period of imprisonment pursuant to Chapter 643 of the Laws of 2005, now better known as the "Drug Law Reform Act Part 2". [FN2]

The Drug Law Reform Act ("DLRA") amends the Correction Law, Criminal Procedure Law, Penal Law, and Executive Law in relation to controlled substance convictions and sentences, thereby ameliorating the impact of the severity of the so-called "Rockefeller Drug Laws". The Drug Law Reform Act's sentencing amendments currently apply to incarcerated persons convicted of class A-I and A-II felonies, as defined in Article 220 of the Penal Law, and sentenced thereon to an indeterminate period of [*2]imprisonment with a minimum of not less than 3 years and a maximum term of life. These reforms permit the court, upon consideration of any facts and circumstances relevant to the imposition of a new sentence, as well as the defendant's institutional record of confinement, to re-sentence a qualifying defendant to a "fair and just determinate sentence."

To be eligible for re-sentencing under this legislation a defendant must: (1) be in the custody of the Department of Corrections; (2) be convicted of a Class A-II drug felony committed prior to October 29, 2005; (3) have been sentenced thereon to an indeterminate term of imprisonment with a minimum of not less than three years and a maximum term of life; (4) be more than twelve months from being an "eligible inmate" for temporary release, as that term is defined in Correction Law § 851(2) (an inmate becomes eligible to apply for temporary release within two years of parole eligibility, meaning the defendant must have more than three years remaining on the minimum term of his sentence to apply for re-sentencing); and (5) meet the eligibility requirement of Correction Law §803(1) (which requires a defendant be eligible to earn "merit time," which means the defendant cannot also be serving another sentence for which merit time is not available, such as certain sex offenses, all violent felony offenses, any homicide, or if the defendant has a poor disciplinary record, or has been found to have filed a frivolous lawsuit). Pursuant to Correction Law § 851(2),"eligible inmate" means "a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within two years. " (emphasis added). Since a defendant must be more than twelve months from being an "eligible inmate", the A-II statute requires that an eligible inmate must be more than three years from being parole eligible. This provision indicates that the Legislature intended that relief is only to be available to those A-II convicts whose minimum terms are largely unexpired (People v Bagby, -Misc 3d, 2006 NY Slip Op 26031 [Sup Ct, Westchester County, Jan.31, 2006]).[FN3]

In this case, the defendant is ineligible to be re-sentenced pursuant to the DLRA-2 because he already has a scheduled parole hearing on November 30, 2006. Accordingly, he does not qualify as an eligible inmate, as that term is defined in Correction Law § 851(2). [*3]

In addition, under both the DLRA-2 and Correction Law 803(1)(d), defendant, who is concurrently serving time for a violent felony offense, is ineligible to earn merit time, and thus fails to qualify for re-sentencing under DLRA-2 (People v Quinones, Misc 3d, 2005 NY Slip Op 25559 [Sup Ct, New York County, Dec. 16, 2005]).[FN4] In summary, the defendant is not eligible to be re-sentenced under the DLRA-2 and his motion for re-sentencing is therefore summarily denied.[FN5]

This constitutes the decision, opinion and order of the court.

________________________

JSC

Dated: February 9, 2006

Brooklyn, New York Footnotes

Footnote 1:Both sentences were to run concurrently.

Footnote 2:Since the passage of the original DLRA (Chapter 738 of the Laws of 2004), which dealt primarily with class A-II, the Legislature has promulgated additional reformative drug offense legislation. Effective October 29, 2005, Chapter 643 of the Laws of 2005 provides for the re-sentencing (to a determinate sentence) of certain class A-II felony drug offenders currently serving indeterminate sentences.

Footnote 3:Also available at 2006 WL 267413.

Footnote 4:Also reported at 2005 WL 3607029.

Footnote 5:Although People v Figueroa (21 AD3d 337 [1st Dept 2005]) requires the court to conduct a hearing in the presence of the defendant, the requirement of a hearing is limited to individuals who are actually eligible for re-sentencing.