People v Santos

[*1] People v Santos 2006 NY Slip Op 52063(U) [13 Misc 3d 1230(A)] Decided on October 30, 2006 Supreme Court, Kings County Sullivan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2006
Supreme Court, Kings County

The People of the State of New York

against

Ruben Santos, Defendant.



1320/02

James P. Sullivan, J.

The defendant moved pro se for an order pursuant to Chapter 643 of the Laws of 2005 for re-sentencing on his Class A-II narcotics felony conviction. This court subsequently appointed counsel for the defendant. Defendant was sentenced on September 8, 2003 to a term of imprisonment of 6 years to life after pleading guilty to the Class A-II felony of Criminal Sale of a Controlled Substance in the Second Degree (P.L. § 220.41(1)). The People argue that the defendant is ineligible for re-sentencing because his motion was submitted less than three years before his parole eligibility date.

Effective October 29, 2005, Chapter 643 promulgated a revised sentencing scheme for those convicted of class A-II narcotics offenses, and also provided for possible re-sentence for those inmates then serving A-II sentences. The Legislature imposed a threshold requirement, that an inmate could be re-sentenced only if the inmate was "more than twelve months from being an eligible inmate as that term is defined" in Correction Law § 851 (2). According to Correction Law § 851(2), an "eligible inmate" is one who is "eligible for release on parole" or who "will become eligible for release on parole or conditional release" within two years. The First Department, noting that these statutes, when read together, are "not a model of clarity," nonetheless held 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, 230 (1st Dep't 2006), app. dism., __N.Y.2d__, 2006 WL 2689700 (September 21, 2006).

The defendant filed his motion on December 21, 2005, and he is "eligible for parole" on February 25, 2008, a period of less than three years. This court is constrained to follow Bautista, and therefore holds that the defendant is ineligible to be re-sentenced. See People v. Turner, 5 NY3d 476, 482 (2005); Mountain View Coach Lines v. Storms, 102 AD2d 663, 664-65 (2d Dep't 1984). In the absence of Court of Appeals precedent, Bautista is binding on all trial-level courts. Turner, 5 NY3d at 482. The Court of Appeals recently determined that chapter 643 did not provide for appeal by permission to the Court of Appeals, and therefore dismissed the appeal in Bautista. 2006 WL 2689700. While the First Department decision in Bautista is entitled to respect from other appellate courts, Turner, 5 NY3d at 482, the Second Department is of course free to reach another [*2]conclusion. See Mountain View Coach Lines, 102 AD2d at 665. There is a legal argument that can be advanced to the contrary, that an inmate would be eligible for re-sentence if the inmate is more than one year from parole eligibility, rather than three years. See People's letter to court, February 10, 2006; People v. Modesto Perez, N.Y.L.J., February 6, 2006 (NY Sup. Ct. Soloff, J.); see also People v. Mills, 2006 WL 2128159 (NY Co. Ct. June 22, 2006); cf. People v. McCurdy, 11 Misc 3d 757 (Sup. Ct. 2006 Hall, J.).

The motion for re-sentence is denied.

This constitutes the decision and order of the court.

The defendant is advised of his right to appeal to the Appellate Division, Second Department.

Dated: October 30, 2006

___________________

James P. Sullivan, J.S.C.