People v Johnson

[*1] People v Johnson 2012 NY Slip Op 51742(U) Decided on August 3, 2012 Supreme Court, Kings County Dwyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 3, 2012
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Willie Johnson, Defendant.



1155/98



For Defendant Willie Johnson

Sonia Mikolic-Torreira, Esq.

Appellate Advocates

2 Rector Street10th Floor

New York, NY 10006

For the People

Caroline R. Donhauser, Esq.

Kings County District Attorney's Office

350 Jay Street

Brooklyn, NY 11201

Mark R. Dwyer, J.

Defendant moves pursuant to CPL 440.46 for resentencing on his conviction, following a jury trial, of sale of a controlled substance in or near school grounds, a class B felony (PL § 220.44[2]).

Defendant was sentenced on April 13, 1999, as a second felony offender, to an indeterminate term of imprisonment of 4 ½ to 9 years. Defendant was subsequently convicted of two new felonies. On September 12, 2000, defendant pleaded guilty to attempted assault in the second degree, a class E felony, arising from an assault on another inmate on Rikers Island. On June 6, 2006, defendant pleaded guilty to attempted promoting prison contraband in the first degree, a class E felony, for possessing a piece of glass rigged as a weapon. He was released to parole on February 24, 2011, and is currently under parole supervision. Defendant filed the instant motion on March 28, 2012.

Defendant seeks to be resentenced to a determinate sentence toward the low end of the range now applicable under PL §§60.04 and 70.70 and CPL 440.46. Since defendant is not incarcerated, the only effect of the resentencing would be to end his parole supervision. The People oppose defendant's application for resentence on the ground that he is ineligible because he was not incarcerated when he filed the motion, and argue that even if he were eligible, [*2]substantial justice would dictate that the motion be denied. See L 2004, ch 738, § 23.

I

Section 440.46 of the Criminal Procedure Law was added by the Drug Law Reform Act of 2009 (DLRA). When it was enacted, the law provided that any person in the custody of the department of correctional services convicted of certain drug felonies committed prior to January 13, 2005, serving an indeterminate sentence with a maximum term of more than three years, might apply to be resentenced in accordance with sections 60.04 and 70.70 of the penal law.[FN1]

In 2011 a New York State budget enactment consolidated and modernized several state agencies and created new departments. (Laws of 2011, Chapter 62). The act provided for the merger of the Department of Correctional Services and the Division of Parole into a single agency, the new Department of Corrections and Community Supervision (DOCCS). Defendant contends that this merger expanded the definition of custody with respect to eligibility for DLRA resentencing. Prior to the merger of the two agencies, eligibility was clearly understood to mean that an applicant had to be in prison in order to be eligible to apply for resentencing. The Court of Appeals underscored that requirement in People v. Paulin, 17 NY3d 238 (2011). In Paulin, the Court held that prisoners who have been reincarcerated on a parole violation are eligible to apply for resentencing, stressing that the plain text of the DLRA statute limited its benefits to persons in prison. "[T]he Legislature recognized that the burden of inordinately harsh punishment' falls most heavily on those who are in prison." In People v. Santiago, 17 NY3d 246 (2011), the Court of Appeals held that a prisoner who files an application for resentencing, and is released on parole before the application is decided, is not rendered ineligible by reason of the release. "[T]he 2009 DLRA . . . does not require that custody continue until the application is decided." Santiago at 248. Still, a defendant was eligible only if he was in custody when the application was filed.

The 2011 amendment to CPL 440.46 substituted the words "corrections and community supervision" for "correctional services" to reflect the merger of the two agencies. CPL 440.46 (1) now provides "Any person in the custody of the department of corrections and community supervision . . . . " may apply to be resentenced. Defendant contends that this amendment rendered unincarcerated parolees eligible to apply for resentencing. Defendant does not argue that the Legislature expressed an intent to expand eligibility for applicants for DLRA resentencing, but simply argues that had the Legislature intended to limit eligibility to imprisoned offenders in DOCCS custody, it would have so provided.

The People argue that the term "custody" in CPL 440.46 (1) retains its ordinary meaning of confinement, pointing to several other amendments in chapter 62 of the Laws of 2011, concerning the merger of the two agencies, which support that argument. Among them are PL §§ 70.45(5)(a), (d) and (f), as well as the entire section 71 of the Correction Law.

Defendant provided the court with several Supreme Court decisions in Queens and Bronx Counties which agree with defendant's interpretation of the legislative intent. See People v. [*3]Soltero, Sup Ct, Bronx County, June 29, 2012, Adler, J., Indictment No.02340C/05; People v. Hernandez, Sup Ct, Queens County, May 16, 2012, Camacho, J., Indictment No. 10634/97; People v. Montalvo, Sup Ct, Bronx County, May 4, 2012, Cirigliano, J., Indictment No. 4044/02; People v. Perez, Sup Ct, Bronx County, April 25, 2012, Yearwood J., Indictment No. 4268/02; People v. Pomales, 35 Misc 3d 444 (Sup Ct, Bronx Co., 2/17/12). See also, People v. Danton, 2012 NY Slip Op. 22198 (Sup Ct, NY County, 7/18/12), in which the court in a footnote agreed with the court in Pomales that a defendant under parole supervision in the legal custody of DOCCS, not just one in physical custody, is eligible for DLRA resentencing.

The court in People v. Lankford, 35 Misc 3d 418 (Supreme Court, Bronx Co., 2/9/12), considering the same issue, rejected the defendant's argument that the 2011 legislation changed the DLRA resentence eligibility requirements.

II

Neither defendant's arguments, nor the case authority he provides, persuades this court that the 2011 amendment to CPL 440.46 in Chapter 62 expanded the meaning of "custody" as it relates to DLRA resentencing eligibility. That provision and other Criminal Procedure Law, Penal Law, Correction Law, and Executive Law amendments in Chapter 62 were enacted solely to reflect the departmental name changes brought about by the merger of the Department of Corrections and the Division of Parole. Nothing in the act's statement of Legislative Intent indicates that any other consequences were intended:

Legislative Intent. As a result of the evolution of the sentencing structure and focus on reentry the historical separation of the department of correctional services and the division of parole is no longer warranted. In view of the commonality of purpose governing the fundamental missions of both agencies, a single new state agency should be created to oversee the combined responsibilities of both and, in effect, provide for a seamless network for the care, custody, treatment and supervision of a person, from the day a sentence of state imprisonment commences, until the day such person is discharged from supervision in the community. This not only will enhance public safety by achieving better outcomes for the greatest number of individuals being released from prison, but also will allow for greater efficiencies and the elimination of duplicative responsibilities, thus resulting in significant savings for the state.

However, it is not the intent of the legislature in enacting this merger, to diminish in any way the significant roles corrections officers and parole officers serve in the criminal justice system, and it is not to imply that they are interchangeable. The purpose of this legislation is to recognize where the mission of both entities is similar and that by combining the administrations of each, not only can fiscal efficiencies be achieved but also that services can be provided on a continuum rather than an abrupt transfer of responsibility.

It is fundamental that the board of parole retain its authority to make release decisions based on the board members' independent judgment and application of statutory criteria as well as decisions regarding revocations of release. To this end, the legislation makes clear that the board shall continue to exercise its independence when making such decisions. The new agency's provision of administrative support will not undermine the board's independent decision-making [*4]authority.(L 2011, ch 62, Part C, Subpart A)

Without some indication of legislative desire to do so, the court declines to adopt the interpretation that the words used in amending CPL 440.46 overruled well-established precedent with respect to DLRA resentencing eligibility. The language of the legislation evinces no legislative intent, express or implied, to broaden the pool of eligible applicants. The new law was simply intended to achieve fiscal efficiencies through administrative restructuring.

It is the obligation of the courts to give statutory language its most obvious and natural meaning without resorting to an artificial or forced construction. Schenectady Police Benev. Ass'n v. New York State Public Employment Relations Bd., 85 NY2d 480 (1995); McKinney's Cons.Laws of NY, Book 1, Statutes § 94. Importantly, the court's objective is "to discern and apply the will of the Legislature, not the court's own perception of what might be equitable." Matter of Sutka v. Conners, 73 NY2d 395, 403 (1989); New York State Psychiatric Ass'n, Inc. v. New York State Dept. of Health, 19 NY3d 17 (2012); McKinney's Cons.Laws of NY, Book 1, Statutes § 94.

In this case, the express legislative intent is to consolidate two agencies whose functions overlap in numerous areas, to achieve "fiscal efficiencies" and to provide a "seamless network of services." The desire to have one department administer supervision of offenders, whether in prison or in the community, has no impact on which aspect of the supervision is going to make an individual eligible or ineligible for DLRA resentencing. When the amendments to the various affected statutes are considered with reference to one another, it is clear that, in construing the legislation as a whole, the focus was on making the appropriate name changes necessitated by the creation of the new department. The court agrees with the People's position that the word "custody" retains its ordinary meaning of confinement.

For example, Penal Law section 70.45(5)(a), relating to calculation of periods of post-release supervision, reads, "A period of post-release supervision shall commence upon the person's release from imprisonment to supervision by the department of corrections and community supervision . . . until the successful completion of the period of post-release supervision or the person's return to the custody of the department of corrections and community supervision, whichever occurs first." Custody clearly means confinement in that section and likewise in Section 71 of the Correction Law, which is entitled, "Persons received into the custody of the department."[FN2] That section relates to certain intake procedures for persons being received at correctional facilities. Moreover, Executive Law § 259-i(2)(b)[FN3] makes a distinction [*5]between persons in "legal custody" of DOCCS, that is, parolees and other releasees under community supervision, and persons imprisoned in the custody of DOCCS, that is, inmates in correctional facilities. Defendant cites this section in support of his argument, contending that the words "imprisonment in" could have been added to CPL 440.46 when it was amended had it been the intent of the Legislature to restrict eligibility for DLRA resentencing to persons in prison. The People counter that the Legislature could have added the term "legal custody" to CPL 440.46, had it intended to broaden eligibility for resentencing to parolees.

The court perceives no intent by the Legislature in the enactment of chapter 62 of the Laws of 2011 to effect any change in the law with respect to DLRA resentencing eligibility. To accept defendant's interpretation would be to extend to the legislation a policy not included in the act.

III

It may be argued that adopting defendant's argument would achieve an equitable result. As a matter of policy, it may make perfect sense to make parolees eligible to apply for resentencing. Notably, although the Court of Appeals emphasized that the law requires an applicant for DLRA resentencing to be incarcerated at the time he or she files the application, the Court broadened previously-understood eligibility requirements in some respects by finding eligible a reincarcerated parolee (People v. Paulin, 17 NY3d 238) and an unincarcerated parolee who had filed the application just prior to release (People v. Santiago, 17 NY3d 246). Moreover, there is a presumption in favor of resentencing if the applicant meets the CPL 440.26 eligibility requirements. See People v. Gonzalez, 96 AD3d 875 (2d Dep't, 2012); People v. Berry, 89 AD3d 954 (2011). However, it is the function of the Legislature, not this court, to work any statutory changes relating to eligibility.

* * *

Defendant, having been at liberty on parole supervision for over a year prior to filing his application for DLRA resentencing, is ineligible under existing law to apply for resentencing and his motion is denied on that ground. Accordingly, the court need not address the arguments advanced by both sides concerning the court's exercise of discretion in assessing the facts and circumstances relevant to the imposition of a new sentence.

This constitutes the decision and order of the court.

E N T E R: [*6]

MARK DWYER

Justice of the Supreme Court

Dated: August 3, 2012 Footnotes

Footnote 1:Anyone serving a sentence on a conviction for, or having a predicate felony conviction for, an excluded offense is excepted from eligibility. See CPL 440.46(5); People v Overton, 86 AD3d 4 (2d Dept 2011). Defendant has no exclusion offenses.

Footnote 2: "The department" means the Department of Corrections and Community Supervision. (Corr Law § 2(1).

Footnote 3: "Persons presumptively released, paroled, conditionally released or released to post-release supervision from an institution under the jurisdiction of the department, the department of mental hygiene or the office of children and family services shall, while on presumptive release, parole, conditional release or post-release supervision, be in the legal custody of the department until expiration of the maximum term or period of sentence, or expiration of the period of supervision, including any period of post-release supervision, or return to imprisonment in the custody of the department, as the case may be."