People v Nieves

[*1] People v Nieves 2009 NY Slip Op 52703(U) [26 Misc 3d 1210(A)] Decided on December 8, 2009 Supreme Court, Westchester County Molea, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2009
Supreme Court, Westchester County

The People of the State of New York

against

Michael Nieves, Defendant.



00-826S



Honorable Janet DiFiore

Westchester County District Attorney

County Courthouse

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Attn: A.D.A. Mark A. Garretto

Michael Nieves

Pro Se Defendant

Richard Molea, J.

Upon consideration of the defendant's pro se motion brought pursuant to Criminal Procedure Law § 440.46 seeking to set aside the indeterminate sentence of imprisonment imposed under the instant superior court information and to be resentenced to a determinate term of imprisonment, the Court has considered the notice of motion and affidavit in support, and the affirmation in opposition and memorandum of law of Assistant District Attorney Mark A. Garretto.

On August 4, 2000, the defendant entered a guilty plea before the Westchester County Court (Naclerio, J.) under the instant superior court information to a single count of Attempted Criminal Sale of a Controlled Substance in the third degree, a class C drug-related felony offense, following the reduction of the class B drug-related felony offense Criminal Sale of a Controlled Substance in the third degree originally charged under the superseded felony complaint. This conviction stemmed from the defendant's admitted sale of a quantity of cocaine to an undercover police officer in exchange for $20.00 US currency on September 18, 1999 in the City of Peekskill of Westchester County, New York. Following the issuance of a bench warrant for the defendant's arrest by this Court on February 28, 2001, the defendant was apprehended in the State of Pennsylvania on November 21, 2002, was extradited to the State of New York and was produced before this Court on May 2, 2003. The defendant was sentenced by this Court as a second felony offender to an indeterminate term of imprisonment of between three and one-half (3½) and seven (7) years on June 12, 2003. The defendant was subsequently released to parole supervision on April 8, 2005, yet was readmitted to state prison on November 28, 2006 following a founded violation of the terms of his parole release. The defendant was subsequently released to parole supervision on February 15, 2007, yet was readmitted to state prison on May 25, 2007 following a founded violation of the terms of his parole release. The defendant was subsequently released to parole supervision on September 4, 2007, yet was readmitted to state prison on [*2]November 2, 2007 following a founded violation of the terms of his parole release. The defendant was subsequently released to parole supervision on May 20, 2008, yet was readmitted to state prison on August 11, 2008 following a founded violation of the terms of his parole release. Finally, the defendant was again released to parole supervision on February 13, 2009, yet was arrested in the City of Newburgh of Orange County, New York on May 21, 2009 for the crime of False Personation which resulted in his incarceration in the Orange County Jail when the instant application was filed with this Court by the defendant.

By pro se notice of motion, the defendant now moves the Court to set aside the sentence imposed upon him under the instant judgment of conviction pursuant to CPL 440.46. In support of the instant application, the defendant alleges that the recent enactment of the so-called Drug Law Reform Act of 2009 (hereinafter, DLRA-3)[FN1], codified in Section 9, Chapter 56 of the Laws of 2009, entitles him to have his previously imposed sentence of an indeterminate term of imprisonment set aside and further entitles him to be re-sentenced to a determinate term of imprisonment. The People oppose the defendant's application to set aside his previouslyimposed sentence upon serval grounds, initially asserting that the ameliorative sentencing provisions of the DLRA-3 which provide for sentences of determinate terms of imprisonment do not apply to the defendant or other similarly situated inmates who were sentenced to an indeterminate term of imprisonment upon the sole conviction of a class C drug-related felony offense. Secondarily, the People assert that the ameliorative sentencing provisions of DLRA-3 do not apply to those defendants who are no longer in the custody of the New York State Department of Correctional Services (hereinafter, DOCS). Finally, the People assert that were the defendant to be eligible for the relief sought herein pursuant to the DLRA-3, the defendant's extensive criminal history and the facts of the underlying crime of conviction establish that substantial justice dictates that the defendant's instant application be denied.

Insofar as significant here, CPL 440.46 which was established by the DLRA-3 specifically affords those defendants who have been convicted of class B drug-related felony offenses with an unqualified right to bring a motion before the sentencing court seeking to be re-sentenced to one of the established determinate terms of imprisonment provided under Penal Law §§ 60.04 and 70.70. However, the explicit terms of the DLRA-3 limit the applicability of these resentencing provisions solely to those defendants who have been convicted of class B drug-related felony offenses, while the DLRA of 2004 provides those defendants who have been convicted of either class A-II, B, C, D or E drug-related felony offenses with the right to apply for an additional merit time allowance of up to one-sixth of the minimum term of their indeterminate sentence of imprisonment (see, L. 2004, Ch. 738, § 30; Correction Law § 803[1][d][ii]).

Here, although the defendant was originally charged with the class B drug-related felony offense of Criminal Sale of a Controlled Substance in the third degree, he was convicted of the lesser class C drug-related felony offense of Attempted Criminal Sale of a Controlled Substance in the third degree. As a result of the defendant's conviction of a drug-related felony offense other than a class B offense, the explicit terms of the DLRA-3 do not afford him the opportunity [*3]to be resentenced to one of the determinate terms of imprisonment provided under Penal Law §§ 60.04 and 70.70 (see, L. 2009, Ch. 56, § 9; see also, CPL 440.46), however, the DLRA of 2004 does afford the defendant the opportunity to seek an additional merit time allowance from DOCS of up to one-sixth of the minimum term of the indeterminate sentence of imprisonment imposed upon him at the time of his sentencing (see, L. 2004, Ch. 738, § 30; Correction Law § 803[1][d][ii]).

The denial of the defendant's instant application is also compelled by the explicit terms of DLRA-3 which specifically limit the applicability of the DLRA-3's ameliorative sentencing provisions to those inmates who are presently in the custody of the DOCS (see, CPL 440.46[1]).

This conclusion is drawn from the application of CPL 440.46(3) which provides that "the provisions of section twenty-three of chapter seven hundred thirty-eight of the laws of two thousand four shall govern the proceedings and determination of a motion brought pursuant to this section". Consistent with the analysis applied by the Court of Appeals in People v. Mills (11 NY3d 527) upon consideration of the question of a defendant's eligibility for resentencing under the DLRA-2, it follows that a defendant who has already been released to parole supervision following his or her incarceration for a qualifying drug-related felony conviction no longer qualifies for resentencing under either DLRA-2 or DLRA-3 (see, People v. Bustamonte, 62 AD3d 1209; People v. Rodriguez, 61 AD3d 1004; People v. Hernandez, 46 AD3d 1425, lv. dismissed 9 NY3d 1034). As the defendant was previously released from DOCS custody to parole supervision and subsequently violated the conditions of his parole release on four occasions, and is presently incarcerated in a State Prison on another alleged violation of the conditions of his parole release from the underlying conviction [FN2], the defendant cannot be considered eligible for resentencing under DLRA-3 as the scope of the ameliorative provisions of the statute do not extend to those defendants who have already been released to parole supervision on one or more occasions irrespective of the fact that they may have been returned to DOCS custody upon a founded violation of the conditions of their parole release (see, People v. Mills, supra, at 537; see also, People v. Hardy, 49 AD3d 779; People v. McCloud, 38 AD3d 1056, lv. dismissed 8 NY3d 947).

Finally, the Court need not reach the People's argument that "substantial justice" within the meaning of the DLRA of 2004 dictates the denial of the defendant's instant application, as the defendant's ineligibility for resentencing under DLRA-3 renders such an exercise academic.

Based upon the foregoing, inasmuch as the defendant is clearly ineligible to receive the benefit of the ameliorative sentencing provisions of DLRA-3 as a matter of law, which would otherwise entitle him to have his previously imposed sentence of an indeterminate term of imprisonment set aside and replaced by a determinate term of imprisonment, the Court need not conduct a hearing to resolve the instant application (see, People v. Salvatierra, 51 AD3d 1218, lv. dismissed 10 NY3d 964).

Accordingly, the defendant's instant application brought pursuant to Criminal Procedure [*4]Law § 440.46, seeking to have the sentence previously imposed under the instant superior court information of an indeterminate term of imprisonment set aside and replaced by a determinate term of imprisonment, is summarily denied.

The foregoing shall constitute the Decision and Order of the Court.

Dated: White Plains, New York

December 8, 2009

Honorable Richard A. Molea

Acting Justice of the Supreme Court

TO: Footnotes

Footnote 1: DLRA-2 is the 2005 extension of the Drug Law Reform Act of 2004, codified in Section 1, Chapter 643 of the Laws of 2005.

Footnote 2:As set forth herein, although the defendant was incarcerated in the Orange County Jail at the time of the filing of the instant application in connection with his prosecution for the crime of False Personation in the Newburgh City Court, he is now incarcerated in the Downstate Correctional Facility upon his latest alleged violation of the conditions of his parole release.