People v Sherman

[*1] People v Sherman 2006 NY Slip Op 51458(U) [12 Misc 3d 1185(A)] Decided on July 21, 2006 Supreme Court, New York County Yates, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2006
Supreme Court, New York County

The People of the State of New York

against

Kristopher Sherman, Defendant.



0905/04

James A. Yates, J.

The Defendant, Kristopher Sherman, was sentenced to a term of six years to life imprisonment upon his conviction of Criminal Possession of a Controlled Substance in the Second Degree, PL § 220.18 [b]. He seeks re-sentencing pursuant to the Drug Law Reform Act (DLRA-2)(L 2005, ch 643, § 1).

The People oppose the motion, contending that the Defendant is ineligible for re-sentencing because he is more than 12 months from becoming an "eligible inmate" pursuant to Correction Law § 851 [2] and is, therefore, outside the scope of the law. As well, the People claim that even if the Defendant is found eligible, "substantial justice" requires denial of the motion on its merits because of the amount of drugs possessed by the Defendant and his prior criminal history.

On February 22, 2004, the Defendant was found to be in possession of a white plastic bag containing approximately 800 Ecstasy pills and a small amount of marijuana, with a street value of approximately $20,000. On September 9, 2004, the Defendant pleaded guilty to Criminal Possession of a Controlled Substance in the Second Degree, a class A-II felony, in exchange for a promise of six years to life imprisonment.

In order to be considered for re-sentencing, the Defendant must be more than 12 months from becoming an "eligible inmate" pursuant to Correction Law section 851 [2]. That section defines "eligible inmate" as one who "is eligible for release on parole or who will be eligible for release on parole or conditional release [*2]within two years." This period is calculated by taking into account potential merit-time reductions from the court-imposed minimum. See People v Covel, Sup Ct, NY County, July 20, 2006, Yates, J., Indictment No. 0877/02, and Correction Law § 851 (2-b).

The Defendant's parole eligibility date is set for February 17, 2010. He is eligible to receive merit time which equates to a one-sixth reduction of the minimum sentence. The Defendant, therefore, has a merit eligibility date of February 17, 2009. The People argue that he is eligible to have another year removed from his minimum sentence for supplemental merit time, resulting in a supplemental eligibility date of February 17, 2008.

The Defendant's motion was filed with the Court on October 6, 2005. At the time of the filing of his motion, the Defendant was more than three years away from his regular merit time, although he was not more than three years away from his supplemental merit date.

As discussed in People v Covel, the Department of Correctional Services has, for more than three years, interpreted "eligible inmate" to include merit time deductions but not supplemental merit time. Apparently, the former is considered a presumptive basis for release on parole while the later is thought to be merely a potential basis for release. Additionally, since a companion provision, Correction Law § 851-(2b)specifically requires consideration of merit-time in evaluating eligibility for temporary release, but does not specifically reference supplemental merit time, the Department of Correctional Services does not give potential credit for supplemental merit time when deciding whether an inmate is an "eligible inmate" for temporary release.

The Court presumes that the Legislature was aware of the agency's interpretation of section 851 [2] when it enacted DLRA-2. The legislative reference to "eligible inmate" would make little sense if it were to assume that the Legislature wanted the provision to mean something other than the definition which was employed, at the time, by the agency. Here, unlike the situation in Covel, the Department has not considered supplemental merit time in determining whether an inmate is an "eligible inmate" for temporary release and the statute, Section 851(2-b), does not refer to it. Thus, as in Covel, the Court assumes that the Legislature intended to incorporate, the existing interpretation of "eligible inmate" when it enacted DLRA-2.

A hearing will be held to consider any facts or circumstances relevant to the imposition of a new sentence. The Defendant argues [*3]that converting his current six-year minimum term to a six-year determinate term would actually result in his serving a longer prison term before being eligible for release. For that reason, he argues that the new determinate sentence should be shorter than the original indeterminate minimum. After the hearing, the Court will either deny re-sentencing if it finds that "substantial justice" dictates denial or impose a determinate sentence.

This constitutes the Decision and Order of the Court.

Dated: July 21, 2006

New York, New York

_______________________________

JAMES A. YATES, J.S.C.