People v Romero

[*1] People v Romero 2010 NY Slip Op 50170(U) [26 Misc 3d 1218(A)] Decided on February 4, 2010 Supreme Court, Bronx County Newman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 4, 2010
Supreme Court, Bronx County

The People of the State of New York, Respondent,

against

Russell Romero, Defendant.



794/01



OFFICE OF THE APPELLATE DEFENDER

Attorneys for defendant

11Park Place - Suite 1601

New York, New York 10007

Attention: Alexandra Keeling, Esq.

A.D.A. NIKKI R. HARDING

Office of the District Attorney, Bronx County

198 East 161st Street

Bronx, New York 10451

Barbara F. Newman, J.

On March 1, 2001, defendant entered a plea of guilty before this Court to one count of criminal sale of a controlled substance in the third degree (P.L. §220.39[1]) in satisfaction of Superior Court Information No. 794/01. Pursuant to the plea agreement, defendant was permitted to participate in a drug treatment program, upon his successful completion of which defendant would be permitted to withdraw his guilty plea to the class B felony and replead to a class A misdemeanor. He would then be sentenced to time served. Defendant failed to complete the drug program. Consequently, on July 10, 2003, judgment was entered by this Court sentencing defendant to an indeterminate term of imprisonment of four and one-half years to nine years. Defendant has now filed a motion for resentencing pursuant to section 440.46 of the Criminal Procedure Law. The People oppose on the ground that defendant is ineligible for resentencing under C.P.L.§440.46(1).

The Court has reviewed the applicable law and the following documents: (1) defendant's Notice Of Motion For Resentencing Pursuant To CPL § 440.46 dated September 29, 2009; (2) defendant's Affirmation (of Alexandra Keeling, Esq.) Dated September 29, 2009; (3) defendant's Exhibits A through G; (4) People's Response To Petitioner's Motion For Resentencing dated October 6, 2009; (5) People's Memorandum In Support Of People's Response To Petitioner's Motion For Resentencing dated October 6, 2009 (hereinafter, "Resp MOL"); (6) People's Exhibit 1; (7) defendant's Supplemental Affirmation dated October 26, 2009; (8) defendant's Exhibits A through G; (9) defendant's Reply Affirmation dated October 29, 2009 (hereinafter, "Reply Aff"); (10) People's Supplemental Response To Petitioner's Motion For Resentencing dated November 18, 2009; (11) People's Memorandum In Support Of People's Supplemental Response To Petitioner's Motion For Resentencing dated November 18, 2009; (12) People's Exhibit 2; (13) defendant's Reply Affirmation To Respondent's Supplemental Response dated November 30, 2009 (hereinafter, "Suppl Reply Aff")[FN1]; and, (14) defendant's Exhibit A.Upon consideration of the foregoing, and for the reasons that follow, defendant's motion [*2]is denied.

Findings of Fact

The following facts are undisputed. After sentencing, defendant was delivered to the custody of the New York State Department of Correctional Services (hereinafter, "DOCS") to serve the indeterminate term of imprisonment imposed by this Court upon his conviction of criminal sale of a controlled substance in the third degree. On January 27, 2006, while still incarcerated on that sentence, defendant was granted a Presumptive Merit Release and released from a DOCS facility to the New York State Division of Parole (hereinafter, "DOP"). On February 28, 2007, defendant's parole was revoked and he was returned to a DOCS facility. On May 2, 2007, defendant was granted parole a second time and released to DOP. On December 5, 2007, defendant's parole was revoked a second time and he was returned to a DOCS facility. On June 3 , 2008, defendant was granted parole a third time and released to DOP. On May 20, 2009, defendant's parole was revoked a third time and he was returned to a DOCS facility, where he remained confined when he made the instant motion on September 29, 2009, and where he was still incarcerated when C.P.L.§440.46 went into effect on October 9, 2009. Subsequently, on October 23, 2009, defendant was granted parole and released to DOP a fourth time. Defendant was still on parole as of November 30, 2009, the date of defendant's last submission in support of the instant motion.

Discussion

Section 440.46 of the Criminal Procedure Law is the codification of the Drug Law Reform Act of 2009 (L 2009, ch 56, pt AAA, §9), which extends to those convicted of a class B, C, or D drug felony and sentenced under the legislation commonly referred to collectively as the Rockefeller Drug Laws the opportunity to seek a less severe sentence; the Drug Law Reform Act of 2004(L 2004, ch 738, §23 [hereinafter, "DLRA/04"]) and the Drug Law Reform Act of 2005 (L 2005, ch 643, §1 [hereinafter, "DLRA/05"]) extended the same opportunities to those convicted of class A-I and A-II drug felonies, respectively. As with DLRA/04 and DLRA/05, the baseline eligibility requirement for resentencing under C.P.L.§440.46 is that the applicant be a "person in the custody of the department of correctional services." C.P.L.§440.46(1);L 2005, ch 643, §1; L 2004, ch 738, §23.

Defendant was not "in the custody" of DOCS within the meaning of the drug law reform legislation because the cause of his incarceration at the time he applied for resentencing was the revocation of the parole to which he had previously been released. There is no definition or explanation of the meaning of the phrase, "in the custody of the department of correctional services," in any of the drug law reform acts. Nor does either side cite, and the Court is unaware of, any reported decision of an appellate court construing the phrase under C.P.L.§440.46(1) specifically. However, our appellate courts have held that a defendant becomes ineligible for resentencing under DLRA/04 and DLRA/05 once (s)he is released to parole from incarceration on the underlying sentence of imprisonment, and remains ineligible even if (s)he is subsequently re-incarcerated in a DOCS facility for violating the conditions of that parole. See, e.g., People v Mills, 11 NY3d 527, 536-537 (2008) (holding "that once a defendant has been released to parole supervision for a class A-II drug felony conviction, he or she no longer qualifies for 2005 DLRA relief for that particular [*3]conviction"); People v Rodriguez, 68 AD3d 676 (1st Dep't 2009) (applying the Mills holding in affirming the denial of a motion for resentencing under DLRA/04 made by a defendant who had been paroled and then re-incarcerated for a parole violation); People v McCloud, 38 AD3d 1056(3rd Dep't 2007) (affirming the denial of a motion for resentencing under DLRA/05 made by a defendant who had been paroled and then re-incarcerated for a parole violation; cited with approval in Mills) lv dismissed 8 NY3d 947 (2007). Therefore, since January 27, 2006, the date on which he was first released from the custody of DOCS to parole, defendant would have been ineligible for resentencing under DLRA/04 and DLRA/05 and would have remained ineligible when he applied for resentencing on September 29, 2009, after having been returned to the custody of DOCS on a parole violation for the third time.

Nevertheless, despite that the identical "in the custody" requirement appears in all of the drug law reform acts, defendant now contends that neither his release to parole from incarceration nor his subsequent violation of that parole rendered him ineligible for resentencing under C.P.L.§440.46(1) specifically. Defendant argues that an inmate released to parole does not lose his or her eligibility for resentencing under C.P.L.§440.46 because (s)he is still "serving" the underlying sentence - that is to say, DOCS continues to grant credit for time-served against that sentence while (s)he is on parole - and if "declared delinquent . . . will be returned to the custody of NYS DOCS to continue to serve his or her sentence" (sse Reply Aff at 4-6), thereby implying that a parolee is still "in the custody" of DOCS within the meaning of C.P.L.§440.46(1) although (s)he is not incarcerated in a DOCS facility. To accept that argument would require a strained and bizarre construction of the language of C.P.L.§440.46(1) and would create a result at odds with justice and common sense.

To have custody of a person entails the exclusive authority of physical control over that person. (See, e.g., Ballentine's Law Dictionary 300 [3rd ed. 1969] ["As applied to a person, custody' means physical control of the person, sometimes by imprisonment."]) Thus, even assuming arguendo that imprisonment was not a necessary component of being in custody,[FN2] a parolee is not in the custody of DOCS because one simply can not be within the exclusive physical control of two different autonomous agencies at the same time. DOP is not the same as or a part of DOCS, and as defendant himself notes, "while on parole [a parolee] is in the legal custody of the Division of Parole.'" (Reply Aff at 5 [quoting Matter of Oriole v Saunders, 66 AD3d 280, 281 (1st Dep't 2009)]).[FN3] That DOP's sphere of authority routinely touches DOCS's - as when DOCS releases an inmate to parole or when DOP returns that inmate to a DOCS facility for violating the conditions of parole - does not alter the fact that the agencies are autonomous of each other. Therefore, since a parolee is within the exclusive physical control of DOP, (s)he is not in the custody of DOCS.Cf. People [*4]v Muniz, 61 AD3d 431 (1st Dep't 2009) lv dismissed 12 NY3d 918 (2009).[FN4]

Furthermore, the circumstance that a parolee continues to "serve" his or her underlying sentence (see Reply Aff at 4-5) does not transform being on parole into the equivalent of being "in the custody" of DOCS under the drug law reform legislation. The Appellate Division has held that this is not the case under DLRA/04 (see People v Rodriguez, supra) or DLRA/05 (see People v McCloud, supra), and there is no reason why the result should be different under C.P.L.§440.46(1). Indeed, although neither side brings it up, there is an inconsistency between language that appears after the "in the custody" requirement in C.P.L.§440.46(1) and language that appears after the identical requirement in the prior drug law reform legislation. Under C.P.L.§440.46 to be eligible for resentencing an applicant must also be a person "who is serving an indeterminate sentence" (C.P.L.§440.46[1] [emphasis supplied]), while under DLRA/04 and DLRA/05 an applicant for resentencing must also be a person who was "sentenced . . . to an indeterminate term of imprisonment" (L 2005, ch 643, §1 [emphasis supplied]; L 2004, ch 738, §23 [emphasis supplied]); the C.P.L.§440.46(1) phrase, "serving an indeterminate sentence," appears in neither of the earlier statutes. But these alternate word choices present a distinction without a difference. To be "serving" a sentence under C.P.L.§440.46(1), one has to have been sentenced. Likewise one who has been "sentenced" and thereupon committed to the custody of DOCS under the prior legislation is then serving that sentence. Whether the circumstances of an applicant's imprisonment is defined by the language of C.P.L.§440.46(1) or that of DLRA/04 and DLRA/05, while on parole the person described is still "serving" - i.e., receiving credit for time-served - the underlying sentence. Therefore, just as being on parole is not the equivalent of being "in the custody" of DOCS under DLRA/04 or DLRA/05, it is also not the equivalent of being "in the custody" of DOCS under C.P.L.§440.46(1) either.

Defendant's argument to the contrary notwithstanding, he is also ineligible for resentencing under C.P.L.§440.46 despite being confined in a DOCS facility at the time he made the instant motion. This is because he was confined for having violated the conditions of his parole. The underlying reasoning for the exclusion of parole violators from eligibility under the prior drug law reform acts is equally as sound for excluding them from eligibility under the most recent drug law reform act. As the Court of Appeals said in Mills, permitting a defendant to receive a more lenient [*5]sentence after he has violated the conditions of his parole "would create illogical, if not perverse results. For example, if [the defendant] had not broken the law while on parole, he would clearly be ineligible for resentencing . . . under the 2005 DLRA (he would not have been in DOCS's custody, for one thing)." People v Mills, 11 NY3d at 537. Here, if defendant had not violated the conditions of his parole, he would be ineligible for resentencing under C.P.L.§440.46 for the same reason.

Indeed, while defendant contends that a re-incarcerated parole violator is eligible for resentencing, he also contends that "those who have been released from the custody of NYS DOCS and are serving their . . . sentences under the supervision of the Division of Parole" can not be considered for resentencing under C.P.L.§440.46 while on parole. (Reply Aff at 10-11). The only conclusion to be drawn from the juxtaposition of those two contentions would be that upon release from DOCS custody a paroled inmate takes with him or her the resentencing eligibility (s)he had while incarcerated, which eligibility lies dormant while (s)he is unconfined, and is re-animated only if and when (s)he is re-incarcerated in a DOCS facility for a parole violation. In other words, the gravamen of defendant's argument is that he is eligible for resentencing because, not despite that, he violated parole. This proposition turns the purpose of the drug law reform legislation on its head by making the possibility of a more lenient sentence an incentive to violate parole. .

There is no reason to believe that in enacting C.P.L.§440.46 the legislature intended such "perverse results" (People v Mills, 11 NY3d at 537) any more than the legislature intended them in enacting DLRA/05 (see id.) or DLRA/04 (see People v Rodriguez, supra).[FN5] Rather, justice and common sense tell us that the intent of the legislature was the same in enacting all of the drug law reform acts: to provide respite from continued incarceration to those who deserve such consideration, not to those who have been released from custody in the past and proven, by violating parole - as defendant did three times over - their own inability to abide by the law while unconfined.

In sum, defendant was first released to parole by DOCS - in whose custody he had been serving the indeterminate term of imprisonment imposed by this Court - on January 27, 2006. From that date forward, defendant was never again "in the custody" of DOCS on that underlying sentence within the meaning of the drug law reform legislation. Therefore, defendant was not eligible for resentencing under C.P.L.§440.46 either when he made the instant motion on September 29, 2009, or when that statute went into effect on October 9, 2009, despite that he was confined in a DOCS facility on both dates.

Accordingly, for the foregoing reasons, defendant's motion pursuant to C.P.L.§440.46 for resentencing on his conviction of criminal sale of a controlled substance in the third degree is denied.

The foregoing constitutes the decision and order of the Court.

Dated: Bronx, New YorkE N T E R: [*6]

February, 2010

HON. BARBARA F. NEWMAN

Acting Justice of the Supreme Court

OFFICE OF THE APPELLATE DEFENDER

Attorneys for defendant

11Park Place - Suite 1601

New York, New York 10007

Attention: Alexandra Keeling, Esq.

A.D.A. NIKKI R. HARDING

Office of the District Attorney, Bronx County

198 East 161st Street

Bronx, New York 10451 Footnotes

Footnote 1:The Suppl Reply Aff was received in chambers, and defendant's motion was marked fully submitted, on January 5, 2010.

Footnote 2:The term "in custody" has been defined as, "[i]n jail or prison." (Ballentine's Law Dictionary 606 [3rd ed. 1969]).

Footnote 3:DOP is a division within the New York State Executive Department (see Exec. L.§259[1]), so in a sense a parolee is also in the custody of the Executive Department. But DOCS is itself a distinct department of the State of New York with its own divisions for administering its statutorily-endowed powers and responsibilities (see Corr. L.§5[1]).

Footnote 4:In order to be eligible for resentencing under DLRA/05, in addition to being in the custody of DOCS, the applicant "may not be eligible for parole within three years." People v Bautista, 26 AD3d 230 (1st Dep't 2006) appeal dismissed 7 NY3d 838 (2006). The defendant in Muniz was sentenced to six years to life imprisonment in 1984, and first became eligible for parole in 1989. "Rather than being paroled, he was transferred to a federal prison [in 1990] to serve a lengthy federal sentence." People v Muniz, 11 NY3d at 431. In 2006 he applied for resentencing under DLRA/05. Technically, Muniz met the three year requirement since he could not be reconsidered for parole on his underlying state sentence until he completed his federal sentence in 2020. Nevertheless, his application was denied because"without the federal incarceration defendant would have been ineligible because he would not have been more than three years from parole eligibility." Id. In affirming, the Appellate Division also said: "Defendant is also ineligible for resentencing for the separate reason that he is not in the custody of [DOCS]. Contrary to defendant's contention, jurisdiction and custody are not equivalent." Id.

Footnote 5:Defendant cites and provides a copy of a decision of the Supreme Court, New York County (see Exhibit A to the Suppl Reply Aff), finding that a re-incarcerated parole violator was not ineligible under C.P.L §440.46 because "a revoked parole release has not been held to preclude eligibility for resentencing of A1 [sic] drug felons under DLRA[/04]." People v Robert Haulsey (S Ct, NY Co, Ind No 5780/99, decided November 20, 2009). However, that decision pre-dated Rodriguez, in which the Appellate Division held that a revoked parole release does preclude eligibility under DLRA/04. See People v Rodriguez, supra (decided December 29, 2009).