People v Hall
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People v Hall 2012 NY Slip Op 32557(U) September 19, 2012 Supreme Court, Kings County Docket Number: 5614-02 Judge: Jo Ann Ferdinand Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUYKEME COUKI Of; STATE OF NEW YOfW THE COUNTY OF KINGS: CRIMINAL TERM: PART 45 _ _ ~ ~ T I E PEOPLE OF THE STATE OF NEW YOFX Decision and Otdcr - against rnd. No: 5614-02 CARLOS HALL, Dated: September 14,2012 The defendant moves to be resentenced in accordance with the Drug Law Reform Act of 2009 (DLRA) (I. 2009 Ch. 56, Part AAA, Section 9 [eff, Oct. 7,20091; CPL I j 440.46). He asks the Court to vacate the indeterminate sentence imposed for his Class B drug felony conviction and resentence him to a reduced determinate prison term. He claims that he is eligible for resentencing in that he was convicted of a qualified crime, received a prison sentence with a maximum of greater than three years and, although he was on parole and not incarccrated at the time ol the filing of this motion, lit: was in custody as specified in the anlended statute. Specifically, he contends that, as the result of a 201 1 amendment to the DLRA ,persons on parole are in the custody of the department of corrections and corninunity supervision and, thus, satisfy the custody condition required to make this application. He further contends that he is the sort of low-icvcl drug offender that the Legislature had in mind whcn cnacting the drug law reforms and should, therefore, bcnefit from the ameliorative purpose of the stalute: to rclicvc the severity of harsh drug sentences imposed under the old laws. E opposition, the Ps;;;\le contend that the defendant i s not eligible to apply for n rcsentcncing under CPL 9 440.46 because he was at liberty under parole supervision at the timc that he made the motion and up to the present time. They argue that thc 201 1 amendment was [* 2] macted to reflect a merger of two agencies and was not inlcnded lo extend rcscnteiicing eligibiiity. In the alternative, the People contend that the defendant s motion should be denied because substantial justice dictates against resentencing. On January 29,2003, thc dcfcndant cntcred a pIea of guilty to the class B felony of Criminal Sale of a Controlled Substance in the Third Degree, The plea agrecmcnt provided that sentence would be deferred while he participated in a residential drug treatment progmm. Tf he successfully completed the pmdated pragrain, his plea to the felony would bc vacated and the charge dismissed. Non-compliancc would result in the imposition of an hdeterinhite tern1 of iniprisonment of 5 to I O years (Gary, 1. at plea). At the time of his plea, he was adjudicated a second felony offender based upon three prior felony convictions, and he wsived his right to appeal. On August 17,2005, having fded to complete the mandated drug treatmetit program despite having several opportunities to do sa, this Court sentenced thc defendant to an indeterminate term of 4%to 9 years imprisonment (Ferdinand, J. at sentence). On September 17, 2007, the defendmt was released from prison to parole supervision. 0 1 1January 13,201I , his parole was revoked and he w . 3 ~ incarcerated until Februaiy 14, 201 1. He has been at liberty under parole supervision since that time, and was on parole at the time this motion was filed. Thc dcfcndant acknowledges that under prior case law only iiicarcerated individuals were perniitted to apply for resentencing under the DLRA. CPL 5 440.46 clearly required that a person be incarcerated to make such a motion. However, he maintains that the Legislature ended that requirement on March 3 1,201 1, when it merged the Division of Parole with the Department of Coi-rectional Services to form the Llepai-tment of Corrections and Community Services (DOCCS) (see Laws of 2011, Ch. 62). As a result of that merger, the language of CPL 6 2 [* 3] 440.46(1) now providcs that any person in the custody of the departmcnt of coixctions and community supet-tkion convicted of a class B felony offense . . . may . . , apply to be resentenced . . , H e claims that this merger permits parolees to qualify for a reduction in their sentence because parolees are in the custody ofthe newly merged DOCCS. This new provision, he conteiids, negates any requirement that a movant be incarcerated when seeking resentencing The People dispute tlie defendant s interpretation of the meaning of custody in CPL ยง 440.46 and contend that he is not eligible to apply for resentencing because hc was at liberty in the community when the mntim was filed. They contend that the term custody means confincmcnt and that the amendment was not intended to change that meaning to cxtend resentencing eligibility but, rather, was cnacted solely to reflect an administrative, organizational change. In support, the People point to the language of Penal Law fj 70.45, which deals with post-release supervision, and provides that the custody of the department of corrections and cornniunity supervision means that a person is incarcerated at a DOCCS ZBciIty rather than under DOCCS supervision in the community. SpccificalIy, PL tj 70.45(5)(a) reads, in pertinent part, upon the person s release froin imprisonment to supervision by the [DOCCS]. . until thc . successful completion of the period o f post-release supervision or the person s return to the custody of thc [DOCCS], whichever occurs first (emphasis added). Accordingly, the People contend t h a t citslody, as used throughout the statute, means confinement. the The impetus for drug law reforni wi~s legislative determination that the mandatory prison sentences being imposed were excessively harsh when applied to skeet-level offenders who possessed or sold only small quantities of illegal drugs in order to feed their own addictions. The legislative history demonstrates a belief that thcse mandated sentences had proven to bc 3 [* 4] counterproductive: incarceration of low level offenders was exorbitantly expensive, and lengthy periods of imprisonment were likely to discourage an offender s desire to overcome his addiction and become a law-abiding member of society. The DLRA contains a presumption in favor of granting motions for resentencing unless substantial justice dictates that the application should be denied. Notwithstanding this goal of reducing prison sentences, the Legislature required that in order to apply for resentencing a person must demonstrate his eligibility, i.e., that he is in the custody of DOCCS at the time ofthe filing the resentencing motion (see generally People v. Overton, 86 A.D.3d 4 [2nd ~6pt.20111). In the present case, this Court concludes that the defendant has failed to establish his eligibility for resentencing relief because he was not incarcerated at the time his motion was filed. There is a clear distinction between being incarcerated and in custody and being at liberty and under the charge and control of parole supervision (see People v. Willie Johnson, Case No. 1155-1998 [Sup. Ct., Kings Cty. August 3, 20121; People v. Lankford, 35 Misc.3d 418 [Sup. Ct., Bronx Cty. Feb. 9,20121; cJ: People v. Danton, 2012 WL 2942338, FN 3 [Sup. Ct., NY Cty. July 18, 2012][Court finds individual who files motion while on parole eligible for resentencing]; People v. Pomales, 940 NYS2d 454, 456-458 [Sup. Ct., Bronx Cty. Feb. l7,2012][same]>. The defendant bases his argument upon the language of CPL 0 440.46 reflecting the Legislature s merger of the Division of Parole with the Department of Corrections when it enacted Chapter 62 of the Laws of 201 1. However, the Legislature made it clear that the purpose of the legislation was to combine the administrations of each agency to achieve fiscal efficiencies and to allow services to be provided on a continuum. The merger was never intended to change the See L. 2004, ch. 738, 9 23. 4 [* 5] responsibilitiesof either agency or their personnel. To suggest that this organizational changc also impacts on eligibility for resentencing reads far too niuch into the purpose of the amendinent. Based upon the Iegislative intent expressed in Chaptcr 62 and considering the argumeiits presented, this Court finds that the defendant does not satisfy the stsltutory criteria in that he is not in custody and, therefore, is not eligible for resentencing for this conviction. Based on the foregoing, the dcfcndant s motion for resentencing pursuant to the DLRA is denied and the indeterniinatfi r,enteticeo f four arid one-half to nine year previously imposed hy this Court remains in effect. This constitutes the decision and order of the Court, ENTER: 5
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