People v Nieves

[*1] People v Nieves 2010 NY Slip Op 50522(U) [27 Misc 3d 1202(A)] Decided on March 31, 2010 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 2, 2010; it will not be published in the printed Official Reports.

Decided on March 31, 2010
Supreme Court, New York County

The People of the State of New York

against

Michael Nieves, Defendant.



2537/95



Bridget B. Brennan, Special Narcotics Prosecutor for the City of New York (Atalanta C. Mihas, of counsel) for the People.

Office of the Appellate Defender (Lily Goetz, of counsel) for the Respondent.

Daniel P. Conviser, J.

The Defendant moves to reargue this Court's decision and order dated March 2, 2010 which denied Defendant's motion to be resentenced under the Drug Law Reform Act of 2009 (the "2009 DLRA")[FN1]. In its March 2, 2010 Decision, this Court held that the Defendant was ineligible for resentencing under the 2009 DLRA because the sentence he was seeking resentencing for had already been completed. This Court held that the term of that sentence, for purposes of the 2009 DLRA, was not extended by virtue of Defendant's subsequent sentence for a Class C felony drug offense for which he was not eligible to be resentenced. For the reasons stated below, Defendant's motion is denied.

The text of this Court's previous Decision is hereby incorporated by reference and the findings of fact and conclusions of law of that Decision will not be repeated here. Defendant has moved for reconsideration by submitting arguments and citing case authorities he contends the Court did not consider in its prior ruling.

The most significant of these submissions is a 7 page letter dated March 17, 2010 from Richard de Simone, Associate Counsel in Charge, Office of Sentencing Review, New York State Department of Correctional Services ("DOCS")(the "Letter"). This Letter, which is addressed to Defendant's counsel, provides a more detailed recitation of the facts underlying Defendant's sentences than was submitted by the parties or provided by the Court in its Decision and makes legal arguments in opposition to the conclusions reached by the Court. This submission is certainly unusual. DOCS is not a party in this case and has not filed an amicus brief. The Court [*2]did not solicit the agency's views and Defendant's initial resentencing motion had already been denied when the Letter was drafted. However, in the Court's view, the Letter is also a scholarly and thoughtful analysis of the issues involved. The arguments contained in the Letter are addressed immediately infra. The Court has also annexed a copy of the Letter to this decision and order, since the Court's brief recounting of Mr. de Simone's arguments are no substitute for their full text and since the Letter would not otherwise be readily available for anyone wishing to review it.

Mr. de Simone first notes that the issue in this case is sentencing itself, rather than an attempt to apply the rules of sentencing to a non-sentencing statute such as the Sex Offender Registration Act ("SORA") (as the Court of Appeals did in Buss) or sex offender civil management proceedings (as this Court and the First Department did in their decisions in Rashid). Mr. de Simone notes that sentencing for the most part is governed by Article 70 of the Penal Law (which includes the provision at issue here, Penal Law § 70.30 [1] [b]). The Court has no disagreement with either of these points. The Court simply believes, for the reasons detailed in its Decision, that the Legislature in enacting the 2009 DLRA intended the statute to apply to Class B felony sentences rather than sentences imposed years later for ineligible crimes.

Mr. de Simone argues that the 1909 Penal Law provided a different method of sentence calculation than the current Penal Law which originally became effective in 1967. He asserts that the 1909 Penal Law provided that an offender would have to complete serving a sentence before a second sentence imposed at a later time would be deemed to have commenced. In contrast, the current Penal Law provides that an earlier and later sentence are aggregated for sentence calculation purposes. The Court was not aware of the difference between the 1909 and the 1967 Penal Law on this point. Indeed, prior to reading Mr. de Simone's Letter, the Court was not aware that there was a 1909 Penal Law. Nothing about this historical analysis, however, changes the Court's view of the proper outcome in this case. There is no doubt that sentences under Article 70 of the Penal Law are aggregated for many purposes. But again, for the reasons detailed in the Decision, the Court does not believe that the Legislature intended to apply Penal Law §70.30 (1) (b) to bring otherwise ineligible sentences under the resentencing provisions of the 2009 DLRA.

The Court argued in its Decision that its construction of the 2009 DLRA was consistent with one of the rationales the Court of Appeals in Mills used in denying resentencing to one of the Defendants in that case under the 2005 DLRA which authorized resentencing for Class A-II felony offenders. In Mills, the Court determined to deny resentencing to the second named Defendant, Jose Then, who was convicted of a Class A-II felony and then later convicted of a second felony for which a consecutive sentence was imposed because it would be "most sensible to consider whether the Defendant was eligible for resentencing only with respect to the crime he was applying to be resentenced for, rather than by also considering Defendant's second crime". Decision, Slip Op. at 8, citing Mills 11 NY3d at 537. In the Court's view, that rationale for the Mills decision is directly applicable to the issues here.

In opposition to applying that aspect of the Mills holding to the 2009 DLRA, Mr. de Simone argues first that the 2005 DLRA is an "unnecessarily complicated" statute. Letter at 5. The Court agrees with that assessment but does not see how it has any relevance to the issues here. He then argues that the 2005 DLRA's eligibility provisions are much more restrictive than [*3]the 2009 statute's provisions. Again, the Court has no disagreement with that assessment. Mr. de Simone then fails, however, to point out why either of these two facts negate the applicability of the aforementioned rationale of the Mills decision to the 2009 DLRA. The two statutes are obviously different and the Mills holding cannot be automatically applied in all respects to the 2009 DLRA. In the Court's view, however, as the Court held in its Decision, the aforementioned rationale behind the Mills decision seems directly applicable to the 2009 DLRA. That fact, combined with what this Court sees as the Legislature's clear intent to impose the same rule under the 2009 statute, make Mills fully applicable on this point.

Mr. de Simone notes that the sentencing calculation provisions of Article 70 have been in effect for 40 years and argues that the Legislature can be appropriately assumed to have been aware of these provisions when it enacted the 2009 DLRA. The Court again agrees with this proposition. But the fact that the Legislature was presumably aware of these provisions does not mean that it was bound to apply them to the 2009 DLRA when it enacted that statute. Mr. de Simone points out that language in the 2009 DLRA barring resentencing for certain offenders convicted of prior violent or non merit-time eligible felonies mirrors language contained in the Penal Law for making certain calculations about the sentences applicable to repeat felony offenders. He then uses that this fact (which again, the Court does not dispute) as a springboard to what is the heart of his argument: Thus, I believe the Legislature views the calculation provisions of Penal Law Article 70 as the default in determining whether an inmate is still serving a sentence for the purpose of resentencing. When the Legislature does not intend the calculation provisions of Article 70 to apply, the resentencing provision lists specific limitations and/or its own calculation provisions — when Article 70 is intended to apply, the resentencing provision is silent, as it is in §440.46(1). Letter at 6.

The Court disagrees with this argument and its applicability to the 2009 DLRA for a number of reasons. First, the fact that the calculation provisions of one of the clauses of the 2009 DLRA uses language from Penal Law sentence calculation provisions applicable to repeat felony offenders does not, in the Court's view, have any relevance to the question here. Neither the cited 2009 DLRA provisions nor the Penal Law provisions on which they are purportedly modeled address how sentence aggregation rules are applied. In fact none of these provisions are even contained in the general sentencing statute at issue here (Penal Law § 70.30, "Calculation of terms of imprisonment"). The fact that the Legislature used language from one provision of the Penal Law in writing the 2009 DLRA does not imply that they intended to use different concepts from other provisions of the Penal Law which they did not incorporate into the statute. In fact, to the extent the incorporation of these calculation provisions would indicate anything, in the Court's view, it would indicate that when the Legislature intended to use Penal Law concepts in the 2009 DLRA, they used language taken from that Chapter. The Legislature did not incorporate any of the consecutive sentencing provisions of the Penal Law at issue here into the 2009 DLRA.

Next, in the Court's view, Mr. de Simone's argument that a "default provision" exists under Article 70 of the Penal Law in construing resentencing statutes conflates circumstances [*4]where such a default rule could clearly be said to exist with circumstances where, as in the instant case, no such rule is evident. The Letter's argument first broadly addresses Article 70 of the Penal Law rather than the much more limited issue of how §70.30 (1) (b) of that Chapter applies to resentencing eligibility under the 2009 DLRA. Article 70 of the Penal Law contains a range of rules applicable to sentences of imprisonment, including the length of such sentences, how such sentence lengths apply to different offender categories, where sentences are served and how post-release supervision terms are calculated. When the Legislature enacts a statute, including a resentencing statute, it can be assumed that the provisions of Article 70 of the Penal Law apply. When the Legislature makes a crime a Class C felony, for example, they obviously don't also have to explicitly indicate that the sentence lengths for Class C felonies contained in Article 70 of the Penal Law apply to that new felony.

For the same reason, the sentence calculation rules of Penal Law §70.30 (1) (b) can be assumed to apply to the aggregate term of a reformed sentence under a resentencing statute without a specific direction that such rules are applicable. It is clear that Penal Law §70.30 (1) (b) addresses how sentence lengths are calculated for purposes of determining parole eligibility for offenders resentenced under the 2009 DLRA just as it does for offenders who are serving unreformed sentences. The question here is much more limited: did the Legislature in enacting the 2009 DLRA intend to use the aggregate sentencing calculation provisions of Penal Law §70.30 (1) (b) to make otherwise ineligible sentences eligible for reformation under the 2009 statute. As the Court detailed in its Decision, the Penal Law's aggregate sentencing calculation provisions were created to calculate parole eligibility dates, enacted decades before the 2009 DLRA and were obviously never intended to apply to drug law resentences either when they were originally enacted or at any time they were periodically amended over the past 40 years.

In the Court's view there is a clear distinction between, for example, the question of whether it can be assumed that a new Class C felony created by the Legislature is subject to the sentencing parameters of Article 70 of the Penal Law and the question here. In the first hypothetical scenario, Article 70 would presumptively apply because that Article was obviously intended to denominate sentence lengths for all Class C felonies. In the instant scenario, in contrast, there is no indication that the consecutive sentencing calculation provisions of the Penal Law were ever intended by any Legislature to bring sentences which were explicitly made ineligible for resentencing under the 2009 DLRA within the purview of that statute.

The Court of Appeals has never explicitly considered the argument that Penal Law §70.30 (1) (b) is a default provision which must be applied to all resentencing statute eligibility questions in the form that argument has been advanced by Mr. de Simone here. In the Court's view, however, the Court of Appeals' two most recent pronouncements on the issue clearly indicate that the Court does not believe any such default rule exists. In Buss, the Court of Appeals applied Penal Law §70.30 (1) (b) to the question of whether Defendant's non-sex offense sentence imposed consecutive to his sex offense sentence made him eligible under SORA. The Court noted that "the primary function of the statute [Penal Law §70.30(1)(b)] is to allow for the ready calculation of parole eligibility". It then went on to find that, notwithstanding this limitation, it was reasonable to apply the statute to the question of SORA eligibility in the Buss case based on a number of policy considerations. This Court, in analyzing the Buss decision in its decision in Rashid, also noted that the SORA statute itself contained no answer to the [*5]sentence calculation question the Court of Appeals considered in Buss. This Court opined that the Buss decision was reasonable, in part, because there was no clear indication in the SORA statute of how the Legislature viewed the issue. 25 Misc 3d at 331.

In Mills the Court of Appeals did not explicitly analyze Penal Law §70.30 (1) (b). But it addressed the same issue in the context of determining resentencing eligibility under the 2005 DLRA. There, as noted supra, the Court of Appeals reached a different conclusion than it had reached in Buss. The Court held that resentencing eligibility under the 2005 DLRA should be considered only with respect to the "same Class A-II felony for which resentencing is sought" rather than by also considering a sentence imposed for a second crime committed years later for which a consecutive sentence had been imposed. 11 NY3d at 537 (emphasis in original). In Rashid, as this Court and the First Department found, Penal Law §70.30 (1) (b) also could not be used to bring an ineligible sex offender under the provisions of the sex offender civil management statute because that statute contained its own rule for determining which sentences counted in determining eligibility under the statute.

The Court of Appeals in Buss and Mills reached its conclusions by applying well-established principles of statutory construction, considering the intent of the Legislature in enacting each respective statute and reviewing the policy outcomes which alternative constructions would create. Missing from both decisions, obviously, is the "default rule" posited in Mr. de Simone's letter. In the Court's view, there is no basis for concluding that Penal Law §70.30 (1) (b) must be presumptively applied to define the scope of a resentencing statute. It is the intent of the Legislature which controls the scope of resentencing statutes not a default rule whose existence is unsupported by the text or legislative history of either the Penal Law or the 2009 DLRA.

Even assuming such a default rule could be construed to exist, it was abrogated in this case by the 2009 DLRA. As this Court noted in its Decision, the plain language of the 2009 resentencing statute, while not free from ambiguity, does not appear to cover sentences imposed for ineligible narcotics offenses committed years after the commission of eligible Class B felony offenses covered by the law. The Legislature, in enacting the 2009 DLRA, was thus not "silent" on the issue, as Mr. de Simone asserts, supra. In the Court's view, it manifested an intention in the words of the statute to apply the resentencing provisions of the 2009 DLRA only to eligible Class B felony drug offenders and certain other sentences imposed at the same time.

Finally, Mr. de Simone argues that the fact that the Defendant would, were resentencing granted in this case, receive what he terms the "collateral" benefit of having the release date of his Class C felony sentence accelerated cannot be equated with resentencing him for this ineligible crime. Mr. de Simone argues that were Mr. Nieves to be resentenced, he would still be required to serve the entire length of the 3 ½ to 7 year indeterminate term which was imposed for his ineligible Class C felony. The Court understands how Mr. de Simone might view this question from a different perspective than the Court. A beneficial resentencing, however, would end Mr. Nieves' current ineligible Class C felony sentence months or years earlier than it otherwise would have terminated. To argue that Mr. Nieves' term upon resentencing would "remain unaltered" in such a scenario as the Letter asserts would assign more analytic significance to the mechanics of sentence calculation than the realities of confinement and supervision. See Letter p. 7. Obviously, from the perspective of the Defendant, the People, the [*6]Legislature and the public, having the Defendant's sentence end earlier would alter its terms, notwithstanding the fact that this sentence would continue be denominated as a 3 ½ to 7 year indeterminate sentence.[FN2]

The Court appreciates Mr. de Simone's analysis and recognizes that Mr. de Simone and the State Department of Correctional Services have a wealth of knowledge and experience on sentencing calculation issues. Where a motion for sentencing or resentencing is made, however, it is the responsibility of the courts to construe and interpret statutes. There is nothing in Mr. de Simone's letter which persuades the Court that its Decision should be modified in any respect.

Defendant next argues that the Decision should be modified because it conflicts with the decision of the First Department in People v. Merejildo, 45 AD3d 429 (1st Dept 2007). In Merejildo, the Defendant was convicted of Criminal Possession of a Controlled Substance in the Second Degree and sentenced to an indeterminate sentence with a term of 8 years to life imprisonment. He was also sentenced to a consecutive sentence, apparently at the same time, with an indeterminate term of 2 to 4 years for the crime of Criminal Possession of a Weapon in the Third Degree. He applied for a reformation of his Class A-II felony sentence under the 2005 DLRA.

Pursuant to that statute, a Defendant cannot receive a resentence for a Class A-II felony unless he is eligible for "Merit Time". In order to be eligible for Merit Time, inter alia, a Defendant cannot be serving a sentence for a violent felony offense. Defendant's sentence for his weapons conviction was such a violent felony offense. For that reason, the trial court denied Defendant's resentencing motion. He appealed that denial. The Defendant argued that he had already completed serving his 2 to 4 year weapons sentence and so was no longer ineligible for Merit Time under the Correction Law. For this reason, he argued, he was also no longer barred from resentencing eligibility.

The Court denied Defendant's motion, holding that he had not preserved the issue for appeal and declined to review the issue in the interests of justice. The Court then also opined in dicta, that if it had reached the merits of Defendant's claim, it would also be denied. The Court noted that when two consecutive sentences are imposed under Penal Law §70.30 (1) (b) the two [*7]sentences merge to form an aggregate term. The Court held that there was no basis to conclude that the Defendant's weapons sentence had necessarily been served before his narcotics sentence.

In the Court's view, the dicta contained in the Merejildo case is not applicable to the issue in the Nieves case for multiple reasons. First, the case concerned the 2005 DLRA, rather than the 2009 statute. This Court's Decision in Nieves was grounded in large part on the statutory language of the 2009 DLRA and the fact that this language indicated an intent that only Class B felony offenses and certain other sentences imposed at the same time were covered by the law. Obviously, the language and intent behind the 2005 DLRA and the "Merit Time" provisions of the Correction Law are not directly applicable to the 2009 DLRA.

Although the Court's brief decision did not make the issue explicit, the Merejildo case also apparently involved two sentences which were imposed at the same time. There was obviously no way in which the Defendant in Merejildo could plausibly argue that one of those two sentences (for the weapons charge) had been served initially and was no longer in effect and the second sentence (for the narcotics conviction) was served subsequently. The two contemporaneously imposed sentences obviously constituted one aggregate term. In contrast, in the instant case, one sentence was imposed in 1997 and the second sentence was imposed more than 6 years later. The first sentence was imposed for an eligible crime under the statute. The second sentence was imposed for a plainly ineligible crime. There is no dispute that the first sentence was served initially and the second sentence was later imposed to run consecutively. Indeed, had the sentences in the Nieves case been imposed at the same time, as the sentences in Merejildo apparently were, the Defendant here would clearly have been eligible for resentencing, not by virtue of Penal Law § 70.30 (1) (b), but because of the explicit language of the 2009 DLRA. See CPL 440.46 (2). For all of these reasons, nothing in the First Department's decision in Merejildo, in the Court's view, conflicts with this Court's Decision in Nieves.[FN3]

The Court has considered the remaining arguments made by the Defendant and in considering those remaining arguments likewise sees no basis to revise its previous ruling. For all of these reasons, Defendant's motion for reargument is denied.

March 31, 2010_____________________

Daniel Conviser, A.J.S.C.

[*8]ADDENDUM

STATE OF NEW YORK

DEPARTMENT OF CORRECTIONAL SERVICES

THE HARRIMAN STATE CAMPUS — BUILDING 2

1220 WASHINGTON AVENUE ALBANY. NY 12226-2050


BRIAN FISCHER
COMMISSIONERMAUREEN E. BOLL
DEPUTY COMMSSIONER AND COUNSEL

March 17, 2010

Lily Goetz, Esq.

Staff Attorney

Office of the Appellate Defender

11 Park Place, Suite 1601

New York NY 10007




Re: People v. Michael Nieves, NYCounty Indictment No. 2537-95
DIN 03-A-3470, NYSID 6142545-Q




Dear Ms. Goetz:

Thank you for sending me a copy of the Court's decision & order of March 2, 2010 in the above-captioned matter. Pursuant to your request, I will provide my perspective on Mr. Nieves' eligibility for relief under CPL §440.46. Before doing so, however, it may be helpful to begin with a review of the facts in Mr. Nieves' case as set forth in this Department's records:

01/24/91 Sentenced by the Supreme Court, New York County, as a second felony offender to three concurrent terms of 4 years to 8 years for three counts of Attempted Criminal Sale of a Controlled Substance 3rd degree. 02/21/91 Received by the New York State Department of Correctional Services (DOCS). The NYC Department of Correction initially credited Mr. Nieves with 159 days of jail time; said credit was increased subsequently to 212 days. 03/17/94 Arrested while participating in the Temporary Release Program. 04/01/94 Returned to DOCS. 07/21/94 Paroled. 10/05/94 Declared delinquent as of this date by the Division of Parole. 02/04/96 Restored to parole supervision as of this date. The Division of Parole initially credited Mr. Nieves with 458 days of parole jail time for the period between 11/3/94 and 2/3/96; said credit was reduced to 0 days after this period was credited as jail time to the sentences imposed on 1/27/97. 03/31/96 Declared delinquent as of this date by the Division of Parole. 01/27/97 Sentenced by the Supreme Court, New York County, as a second felony offender to two terms of 5½ years to 11 years for one count of Criminal Sale of a Controlled Substance 3rd degree and one count of Criminal Possession of a Controlled Substance 3rd degree on case no. 2537-95. The crimes resulting in these sentences were committed on 10/16/94. The Court imposed these sentences to run concurrently with each other; they ran consecutively to the prior sentences by operation of Penal Law §70.25(2-a). 02/18/97 Received by DOCS. The NYC Department of Correction initially credited Mr. Nieves with 325 days of jail time for 10/16/94 and 3/31/96 to 2/17/96.[FN1] On 6/10/97, an amended jail time certificate was issued that credited Mr. Nieves with 843 days of jail time for 10/16/94 to 3/18/96 and 3/13/96[FN2] to 2/17/97. On 3/15/10, an amended jail time certificate was issued that credited Mr. Nieves with 797 days of jail time for 10/19/94 to 2/3/96[FN3] and 3/31/96 to 2/17/97. 05/10/99 Paroled. 09/17/99 Declared delinquent as of this date by the Division of Parole. 06/29/00 Restored to parole supervision as of this date. The Division of Parole credited Mr. Nieves with 135 days of parole jail rime for the period between 2/15/00 and 6/28/00.[FN4] 06/12/03 Declared delinquent as of this date by the Division of Parole and sentenced by the Westchester County Court as a second felony offender to a term of 3½ years to 7 years for Attempted Criminal Sale of a Controlled Substance 3rd degree. The crime resulting in this sentence was committed on 9/18/99, so this sentence ran consecutively to the prior sentences by operation of Penal Law §70.25(2-a). [*10]

07/08/03 Received by DOCS. The Westchester County Sheriff's Department initially credited Mr. Nieves with 274 days of jail time. On 12/3/03, an amended jail time certificate was issued that credited Mr. Nieves with 420 days of jail time for 1/27/00 to 8/4/00 and 11/21/02 to 7/7/03. [FN5] 04/08/05 Presumptively released. 08/01/05 Declared delinquent as of this date by the Division of Parole. 04/28/06 Restored to parole supervision as of this date. The Division of Parole credited Mr. Nieves with 40 days of parole jail time for the period between 3/19/06 and 4/27/06. 09/22/06 Declared delinquent as of this date by the Division of Parole. 11/28/06 Returned to DOCS as a parole violator. The Division of Parole credited Mr. Nieves with 67 days of parole jail time for the period between 9/22/06 and 11/27/06. 02/15/07 Paroled. 02/24/07 Declared delinquent as of this date by the Division of Parole. 05/25/07 Returned to DOCS as a parole violator. The Division of Parole credited Mr. Nieves with 82 days of parole jail time for the period between 3/4/07 and 5/24/07. 09/04/07 Paroled. 09/19/07 Declared delinquent as of this date by the Division of Parole. 11/02/07 Returned to DOCS as a parole violator. The Division of Parole credited Mr. Nieves with 44 days of parole jail time for the period between 9/19/07 and 11/1/07. 05/20/08 Paroled. 06/02/08 Declared delinquent as of this date by the Division of Parole. 08/11/08 Returned to DOCS as a parole violator. The Division of Parole credited Mr. Nieves with 56 days of parole jail time for the period between 6/16/08 and 8/10/08. 02/13/09 Paroled. 05/21/09 Declared delinquent as of this date by the Division of Parole. 09/04/09 Returned to DOCS as a parole violator. The Division of Parole credited Mr. Nieves with 106 days of parole jail time for the period between 5/21/09 and 9/3/09. 12/21/09 Paroled.

In order to be eligible for resentencing from an indeterminate sentence to a determinate term on a class B drug felony conviction, CPL §440.46(1) requires the applicant to be presently serving said sentence. In the present case, the People and Mr. Nieves disagreed as to whether he was still serving the class B drug felony sentences he received in 1997 on New York County case no. 2537-95. The Court in its decision & order of March 2, 2010 ruled that Mr. Nieves had already completed his 1997 sentences, so he was not eligible for resentencing. Specifically, the Court determined that the imposition of Mr. Nieves' 2003 sentence did not extend his eligibility for resentencing on his 1997 convictions.

The decision in question is not a cursory ruling; it is a detailed and insightful review of the applicable statutes and case law. With due respect for the Court's ruling I would propose, however, that the Legislature may have had a different intent for the eligibility criteria in CPL §440.46(1). Simply stated, the Legislature enacted a statute that allows defendants to be resentenced if they meet the initial qualification of still serving the indeterminate sentences they received for class B drug felonies, and excludes them from such procedure if they have already completed said sentences. Unlike People v. Buss, 11 NY3d 553, 557 (2008) and State v. Rashid, 25 Misc3d 318 (New York County 2009), affd 68 AD3d 615 (lst Dept 2009), the issue here is sentencing, not the registration of sex offenders pursuant to the Correction Law or the civil confinement of sex offenders pursuant to the Mental Hygiene Law. For the most part, sentencing is governed by Penal Law Article 70,[FN6] [*12]which is also where the Legislature chose to centralize the statutes that govern the calculation of release dates. The connection between the two concepts flows naturally - Penal Law Article 70 governs the imposition of sentences, and upon such sentences being imposed, Article 70 also governs their calculation. This connection between sentencing and the calculation of release dates has existed since the present Penal Law went into effect in 1967.

Prior to 1967 when the Penal Law of 1909 was still in effect, sentences were calculated differently than now. Under the 1909 Penal Law, a person who committed felony #2 while under sentence for felony #1 had to finish serving the sentence imposed for felony #1 before the sentence for felony #2 would commence; see former Penal Law §2190(2). In 1965, the Legislature enacted the present Penal Law, which went into effect in 1967; see L. 1965, c. 1030. As the Court of Appeals explained in Buss, the present Penal Law treats multiple terms of imprisonment as a single aggregate sentence, regardless of whether said terms run concurrently or consecutively.

This Court views its decision herein as consistent with the Court of Appeals' ruling in People v. Mills, 11 NY3d 527 (2008), but Mills may be of limited relevance since the two concepts are quite distinguishable. Mills turns upon a statute that is unnecessarily complicated. The concept behind the legislation was simple—the drafters did not want inmates serving indeterminate sentences for class A-II drug felonies to be eligible for resentencing if they had less than three years to serve on such sentences' minimum periods. Instead of the session law[FN7] being worded in such simple terms, however, it requires the inmate to be more than 12 months from being an eligible inmate pursuant to Correction Law §851(2). Jose Then, one of the two defendants in Mills, came to DOCS on an indeterminate sentence for a class A-II drug felony, was paroled and then returned to DOCS with an additional indeterminate sentence for a class A-II drug felony committed while on parole. The Court of Appeals ruled that Mr. Then was not eligible for resentencing on the first class A-II drug felony sentence because he had already been paroled on it.

The criteria for resentencing on a class A-II drug felony are more restrictive than the criteria for resentencing pursuant to CPL §440.46(1). The inmate who seeks to be resentenced on a class A-II drug felony sentence must not only still be subject to that sentence's minimum period, he must be at least three years from completing such minimum. Having set that restrictive eligibility requirement, the Legislature clearly intended to bar from resentencing the inmate who has already been paroled on such class A-II drug felony sentence. The criterion in question for resentencing on a class B drug felony sentence pursuant to §440.46(1) is far less restrictive—it merely requires the [*13]inmate to still be subject to such sentence. When §440.46 was enacted, the sentence calculation provisions of Penal Law §70.30 had been in effect for more than 40 years. Although the Court viewed §440.46 being enacted after §70.30 as supportive of its ruling, I tend to view it from the opposite perspective. Presumably, the Legislature was aware of §70.30 when it enacted §440.46 and chose not to provide an alternate calculation for determining whether defendants were still subject to their class B drug felony sentences; that to me indicated the intent for that aspect of resentencing eligibility to be determined pursuant to §70.30.

It is interesting to note that both subdivisions 1 and 5 of CPL §440.46 refer to serving a sentence, yet one of them requires a specific calculation and the other does not. In §440.46(1), the onlyqualification is that the sentence being served has a maximum term of more than three years. In §440.46(5), however, the calculation specified therein is required for determining whether the defendant is subject to an exclusion offense that would render him ineligible for resentencing. Similarly, specific calculation provisions are found in Penal Law §§70.04(l)(b), 70.06(l)(b), 70.70(3) and 70.08(1)(b) for determining whether defendants qualify for sentencing as repeat offenders. Thus, I believe the Legislature views the calculation provisions of Penal Law Article 70 as the default in determining whether an inmate is still serving a sentence for the purpose of resentencing. When the Legislature does not intend the calculation provisions of Article 70 to apply, the resentencing provision lists specific limitations and/or its own calculation provisions— when Article 70 is intended to apply, the resentencing provision is silent, as it is in §440.46(1).

The Court's decision appeared to be based in part upon the fact that resentencing Mr. Nieves on his class B drug felony convictions will provide him with a benefit comparable to being resentenced on his class C drug felony conviction. The Court determined that Mr. Nieves is not eligible for resentencing on his 2003 class C drug felony conviction pursuant to CPL §440.46(2); thus, he could not receive a benefit pursuant to pursuant to §440.46(1) that is denied to him pursuant to §440.46(2). From my perspective, the fact that resentencing Mr. Nieves on his class B drug felony convictions will provide him with the collateral benefit of advancing his present release dates is quite distinguishable from being resentenced on his class C drug felony conviction. Mr. Nieves is not eligible for resentencing on his class C drug felony conviction and he is not being resentenced on said conviction—the actual sentence of 3½ years to 7 years will remain unaltered; accordingly, the recalculation of his release dates does not appear to be pertinent to §440.46(2).

For the reasons set forth above, I believe Mr. Nieves is still subject to his 1997 class B drug felony sentences within the meaning of CPL §440.46(1).

Very truly yours, [*14]

Richard de Simone

Associate Counsel in Charge

Office of Sentencing Review

RdS:id Footnotes

Footnote 1:People v. Nieves, 2010 Slip. Op. 20070, 2010 WL 716177, (the "Decision"). The Court also references the following holdings discussed in the Decision in the instant decision and order: People v. Mills, 11 NY3d 527 (2008); People v. Buss 11 NY3d 553 (2008); State v. Rashid 25 Misc 3d 318, aff'd 68 AD3d 615 (1st Dept 2009).

Footnote 2: To parse the issue in greater detail, Mr. de Simone's argument is that a resentencing would reform Defendant's eligible Class B felony sentence, even though that sentence had already been served and was over. As the Court understands the argument, a resentencing would reach back in time to a date when Mr. Nieves was still serving his sentence on the instant offense. Mr. Nieves would see that previously served sentence reduced. In reality, of course, Mr. Nieves would not receive any benefit under his completed Class B felony sentence. In reality, it would be the ineligible Class C felony sentence whose term was effectively reduced. However, for purposes of sentence calculation, Mr. Nieves' previously imposed Class B felony sentence (of 5 ½ to 11 years) would be reduced (to take just one possible example, to a 4 year determinate term). His 3 ½ to 7 year term for his Class C felony sentence, however, would remain intact. Of course, in this example, he would be released years earlier under his ineligible Class C felony sentence. But that would be a "collateral" benefit of his retroactive resentencing on his completed Class B felony. For sentence calculation purposes, his Class C felony sentence would "remain unaltered". It would still be 3 ½ to 7 years.

Footnote 3: Defendant also asserts that a sealed decision by a justice of this Court, denominated here as People v. Anonymous, argues that this Court should reconsider its Decision. The Anonymous decision was provided to this Court for its review and relevant portions of that decision were apparently read by the issuing court to counsels for the parties here. The Court has reviewed this decision. The Anonymous decision did not address the precise issue here and nothing in that decision has persuaded this Court that its Decision in this case should be revised. This Court will not address the facts in the Anonymous case here because doing so, in this Court's judgment, would violate the Anonymous Court's sealing order.

Footnote 1: February 17, 1996 was a typographical error; the correct date was February 17, 1997.

Footnote 2: March 13, 1996 was a typographical error; the correct date was March 31, 1996.

Footnote 3: Mr. Nieves'1991 sentences were running between February 4, 1996 and March 31, 1996. Penal Law §70.30(3) precludes a defendant from earning jail time towards a future sentence while a prior sentence is running.

Footnote 4: This credit should be reduced to 0 days because it was later included in the jail time certified to the sentence imposed on June 12, 2003; see Penal Law §70.40(3)(c)(iii).

Footnote 5: Mr. Nieves' 1991 and 1997 sentences were running between June 29, 2000 and June 11, 2003, so it would appear the 420-day certificate improperly credits him with jail time for June 29, 2000 to August 4, 2000 and November 21, 2002 to June 11, 2003.

Footnote 6: The resentencing procedures for drug felonies are among the few exceptions to this rule. The subject of the present inquiry, §440.46, is in the CPL. Resentencing provisions enacted in the 1970s pertaining to drug offenses were placed in Penal Law Article 60; see §§60.08, 60.09. Inexplicably, the Rockefeller Drug Law reforms enacted during the past decade can only be found in the session laws, as opposed to statutes that can be accessed conveniently by the bench, bar and public; see L. 2004, c. 738, §23 and L. 2005, c. 643, §1. In the absence of evidence to the contrary, I believe the placement of these provisions outside Penal Law Article 70 is more indicative of the random assignment of statutory sections than an intent to exclude their eligibility requirements from the scope of Penal Law §70.30.

Footnote 7: L. 2005, c. 643, §1.