People v Williams

[*1] People v Williams 2006 NY Slip Op 50890(U) [12 Misc 3d 1154(A)] Decided on April 20, 2006 Supreme Court, Albany County Lamont, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 20, 2006
Supreme Court, Albany County

The People of the State of New York

against

Anthony Williams, Defendant



10-3127



APPEARANCES:HON. P. DAVID SOARES

Albany County District Attorney

By: ERIC M. GALARNEAU, ESQ.

Assistant District Attorney

for the People

GEORGE F. MEHM, ESQ.

Assistant Public Defender

for Defendant

Dan Lamont, J.

Pursuant to Chapter 643 of the Laws of 2005, defendant Anthony Williams has filed a pro se application for re-sentencing, and his assigned assistant public defender, George F. Mehm, Esq., has also filed an application for re-sentencing, upon defendant's Class A-II felony drug conviction for Criminal Possession of a Controlled Substance in the Second Degree upon which he was sentenced on February 9, 1992 in Supreme Court, Albany County (Keegan, J.), to an indeterminate sentence of imprisonment of twelve and one-half (12½) years to life. Such indeterminate sentence is consecutive to an indeterminate sentence of imprisonment of twelve and one-half (12½) to twenty-five (25) years also imposed by Supreme Court, Albany County (Keegan, J.) on February 9, 1992 upon defendant's conviction for Criminal Sale of a Controlled Substance in the Third Degree, a class B felony. Therefore, the defendant is presently serving an aggregate indeterminate sentence of twenty-five (25) years to life. The People have filed a written Affirmation in Opposition dated November 28, 2005.

Chapter 643 of the Laws of 2005 has authorized a re-sentencing procedure for certain Class A-II felony drug offenders whose offenses were committed prior to October 29, 2005 the effective date of said law and who were sentenced to indeterminate sentences of imprisonment of not less than three (3) years to life.

Defendant Anthony Williams stands convicted of a Class A-II felony drug offense defined in Article 220 of the Penal Law which was committed on or about January 24, 1991 prior to the effective date of Chapter 643 of the Laws of 2005. Defendant Anthony [*2]Williams was sentenced to an indeterminate sentence of imprisonment "with a minimum period of not less than three (3) years", to wit: an indeterminate sentence of imprisonment with a minimum term of twelve and one-half (12½) years and a maximum term of life.

Although defendant is serving a qualified sentence for re-sentencing purposes, the defendant must also be merit time eligible to be considered for re-sentencing (see, Laws of 2005: Chapter 643: Section 1 which provides in part: "and who meets the eligibility requirements of paragraph (b) of subdivision 1 of section 803 of the correction law may * * * apply to be resentenced . . ."). Correction Law § 803(1)(d)(iv) withholds from inmates an award of a merit time allowance for "any serious disciplinary infraction." 7 NYCRR § 280.2(b)(3) defines "a serious disciplinary infraction" as behavior which results in the "receipt of disciplinary sanctions under Part 253 or 254 of this Title which total 60 or more days of SHU and/or keeplock time."

According to the Department of Corrections records, the defendant as a result of conduct on December 23, 1999, was found guilty on January 6, 2000, of a Tier III disciplinary infraction for which he received a disciplinary sanction of 60 days of SHU. This disciplinary infraction and sanction is only one of many of defendant's disciplinary infractions (approximately 16) committed during his term of incarceration for which he has received disciplinary sanctions which total over two hundred (200) days of SHU and/or keeplock time (see, defendant's affidavit sworn to September 8, 2005: EXHIBIT B (Disciplinary Summary)). This Court holds and determines that the defendant is not eligible to be re-sentenced pursuant to Chapter 643 of the Laws of 2005.

ADDENDUM

Although the defendant is serving an aggregate indeterminate sentence of imprisonment of twenty-five (25) years to life upon his convictions for class A-II and class B felony drug offenses, the defendant is not eligible for any consideration for re-sentencing notwithstanding the apparent determination by the Legislature that the previous sentencing scheme for A-II felony drug offenses and B felony drug offenses needed to be replaced by a fairer determinate sentencing scheme. The defendant has already served approximately fifteen (15) years of incarceration. Arguably, every felony drug offender serving indeterminate sentences of imprisonment with a maximum term of life and a minimum period of at least fifteen (15) years should be eligible to apply to the Court for re-sentencing but any such determination can only be made by the Legislature.

This Court does not possess the power of dispensation, nor does this Court possess the power to grant clemency. Defendant's only possible remedy lies with the Legislature, or possibly with the Governor but not with the Court.

CONCLUSION

This Court holds and determines that the application of defendant Anthony Williams to be re-sentenced upon his Class A-II felony drug conviction pursuant to the provisions of Chapter 643 of the Laws of 2005 must be and the same is hereby denied upon the ground that he is ineligible to be re-sentenced in that he is not merit time eligible pursuant to the provisions of Correction Law § 803(1)(d)(iv). Beyond those powers conferred by the Legislature under the Rockefeller Drug Reform Act, this Court is not empowered to modify defendant's consecutive sentences of imprisonment.

The foregoing constitutes the Opinion, Decision and Order of the Court. The original of [*3]this Decision/Order, together with all original papers, will be filed by my chambers in the office of the County Clerk of the County of Albany.

Dated: Albany, New York

April 20, 2006

________________________________

DAN LAMONT, Acting J.S.C.

cc: Eric M. Galarneau, Esq., Asst. Dist. Atty.

George F. Mehm, Esq., Asst. Public Defender

Anthony Williams, pro se defendant

PAPERS CONSIDERED:

1) Defendant's pro se Notice of Motion dated September 8, 2005.

2) Defendant's pro se affidavit sworn to September 8, 2005, together with supporting

papers and exhibits.

3) Defendant's pro se Supplement dated September 20, 2005.

4) Affirmation of ADA Eric M. Galarneau, Esq. dated November 28, 2005.

5) Defendant's Notice of Motion dated March 3, 2006 (filed by ADA George F. Mehm, Esq.)

6) Affidavit of APD George F. Mehm, Esq. sworn to March 3, 2006, together with

exhibits 1-4.