People v Reyes-Acevedo

[*1] People v Reyes-Acevedo 2006 NY Slip Op 51584(U) [12 Misc 3d 1195(A)] Decided on May 5, 2006 Supreme Court, New York County Kahn, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2006
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Cecilio Reyes-Acevedo, Defendant.



10159/95

Marcy L. Kahn, J.

On October 31, 1996, defendant Cecilio Reyes-Acevedo pleaded guilty before another justice of this court to criminal possession of a controlled substance in the second degree (PL §220.18[1]), an A-II felony offense.[FN1] On November 20, 1996, pursuant to his plea agreement, defendant was sentenced to a term of three years-to-life.

By notice of application dated March 24, 2006, defendant has now moved pro se for re-sentencing on his class A-II drug felony conviction pursuant to Section 1 of the DLRA-2 [FN2], which is the 2005 extension of the 2004 Drug Law Reform Act (DLRA)[FN3], and PL §70.71.[FN4] The People have opposed the motion. (Peo. Memo. in Opp. to Def. Re-sent. Motion, dated April 17, 2006). For the reasons stated below, defendant's application is denied.

The DLRA-2 was part of an effort by the New York State Legislature to alleviate some of the more Draconian aspects of the so-called "Rockefeller drug laws" first promulgated in 1974 at the urging of the then Governor. The Act mirrored the terms of a reform effort in 2004 which, among its other ameliorative provisions, permitted those convicted of class A-I drug felonies to apply for elimination of the life sentences to which they had been subjected, and to be re-sentenced to determinate sentences. (DLRA §23). The DLRA's re-sentencing opportunities were limited to those serving life sentences for class A-I drug felonies, and defendants serving life sentences for class A-II drug felonies were not eligible. The enactment of the DLRA-2 was a [*2]further effort by the Legislature to extend its ameliorative policies to defendants serving harsh sentences for conviction of A-II felony drug offenses.

The DLRA-2 permits a person who was convicted of an A-II drug felony and was sentenced under PL §70.00 to an indeterminate life-term prison sentence having a minimum term of three years or more to apply to be re-sentenced to a determinate term in accordance with PL §70.71. It provides: Notwithstanding any contrary provision of law, any person in the custody of the department of correctional services convicted of a class A-II felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and who was sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than three years pursuant to provisions of the law in effect prior to the effective date of this section, and who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law, and who meets the eligibility requirements of paragraph (d) of subdivision (1) of section 803 of the correction law may, upon notice to the appropriate district attorney, apply to be re-sentenced in accordance with section 70.71 of the penal law in the court which imposed the original sentence.

(DLRA-2, §1)(emphasis added).

The defendant's application fails for two reasons. First, in addressing the threshold issue of defendant Reyes-Acevedo's eligibility for re-sentencing, it is clear that he fails to satisfy all of the statutory criteria of the DLRA-2 for re-sentencing. Although defendant is presently in the custody of the Department of Correctional Services, stands convicted of a class A-II felony offense defined in Penal Law Article 220 which was committed prior the effective date of the DLRA-2, and received a sentence having a minimum period of imprisonment of three years, he clearly fails to meet the further requirement for re-sentencing eligibility. In language dispositive for defendant Reyes-Acevedo's application, DLRA-2 provides for relief only where the individual "is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of Section 851 of the Correction Law." Correction Law §851(2) defines "eligible inmate" as "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 . . . ."

The Appellate Division, First Department, in analyzing this provision of Section 1 of the DLRA-2 in conjunction with the provisions of Correction Law §851, has held that "when read together, the above-referenced statutes require that in order to be eligible for re-sentencing, an A-II offender may not be eligible for parole within three years." (People v. Bautista, 26 AD3d 230, [1st Dept. 2006], lv. to app. granted, Mar. 2, 2006 [Graffeo, J.]).

Here, it is uncontested that defendant was released to parole on his A-II felony conviction on April 20, 1999. (Affirm. of Defendant in support of Def. Re-sent. Motion, dated March 24, 2006, ["Def. Re-sent. Mot."], at 2). His parole eligibility date has come and gone. Indeed, he is [*3]not presently incarcerated on his A-II conviction.[FN5] Thus, defendant is not "more than twelve months from being an eligible inmate" (DLRA-2 §1), nor is it the case that he would not "be eligible for parole within three years." (People v. Bautista, supra). Accordingly, defendant fails to satisfy the eligibility requirements standard of the DLRA-2 and may not avail himself of its terms.

Second, the DLRA-2 would not afford any relief to defendant, even were he now three years distant from his parole eligibility date. Defendant was re-incarcerated on this matter because he was found to have violated his parole as the result of a subsequent re-arrest. In January 1999, he was accused of criminal sale of a controlled substance in the third degree. He was subsequently indicted (Ind. No. 347/99) and granted bail. Thereafter, he absconded. Upon his re-arrest, defendant pleaded guilty before this court to the reduced charge of criminal sale of a controlled substance in the fifth degree in full satisfaction of that indictment and to bail jumping in the first degree (Ind. No. 5228/99), and was sentenced to concurrent terms of two and one-half-to-five years.

Defendant states that on July 13, 2004 he was sentenced on his parole violation in the instant case to a 90-day period, which he had already served. (Def. Re-sent. Mot., at 3). Thus, he remains incarcerated presently solely as the result of sentences imposed upon his convictions for criminal sale of a controlled substance in the fifth degree and bail jumping in the first degree. Re-sentencing relief is not available for convictions for either of these crimes under the DLRA or DLRA-2. Accordingly, for this additional reason, defendant's motion for re-sentencing must be denied.

For the foregoing reasons, defendant's motion is denied in its entirety, without a hearing. This opinion constitutes the decision and order of the court.

Marcy L. Kahn, J.S.C.

Dated:New York, New York

May 5, 2006 Footnotes

Footnote 1:The motion is apparently before this court because the sentencing justice is currently assigned to a different court, and because defendant was subsequently twice re-arrested, and this court presided in those cases (Ind. Nos. 347/99 and 5228/99).

Footnote 2:L. 2005, Ch. 643, §1

Footnote 3:L. 2004, Ch. 738, §§1-41.

Footnote 4:Prior to filing the instant application, defendant sought re-sentencing by this court pursuant to §23 of DLRA to a determinate term, contending that he was denied the equal protection of the law by the DLRA's limitation of re-sentencing eligibility to those convicted of class A-I felony drug offenses. That application was denied by this court on May 13, 2005, in a separate opinion.

Footnote 5: This fact would also likely doom his application, were it necessary for this court to construe the terms of the statute requiring the applicant to be "in . . . custody . . . [and] convicted of a class A-II felony . . . ." (DLRA-2 §1).