People v Hart

[*1] People v Hart 2010 NY Slip Op 51629(U) [28 Misc 3d 1237(A)] Decided on July 22, 2010 Supreme Court, Queens County Gavrin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2010
Supreme Court, Queens County

The People of the State of New York

against

Daryl Hart, Defendant



12220/98



Daryl Hart, pro se

Legal Aid Society

David Crow, Esq.

For the Motion

Davis Polk & Wardwell LLP

Gur Bligh, Esq.

For the Motion

Hon. RICHARD A. BROWN, D.A.

BY:Brooke E. Barnes, A.D.A.

Opposed

Darrell L. Gavrin, J.

Pursuant to the Drug Law Reform Act (DLRA), which enacted § 440.16 of the Criminal Procedure Law, defendant has moved this court for an order vacating his sentence of seven and one half (7 ½) to fifteen (15) years incarceration, resentencing him to a determinate sentence in accordance with Penal Law §§ 60.04 and 70.70, and for the assignment of counsel to represent him.

This court reviewed the original moving papers of defendant, pro se, dated December 29, 2009 and the People's affirmation in opposition, dated March 4, 2010. On March 22, 2010, Steven Banks, Esq., counsel of record for the Legal Aid Society, and Gur Bligh, Esq., of Davis, Polk & Wardwell LLP, pro bono, notified this court that they would be representing defendant and requested two adjournments until June 18, 2010, to submit a supplemental memorandum of law. This court received the moving papers of Gur Bligh, Esq., on June 18, 2010, and reviewed them in conjunction with the People's sur-reply, dated July 2, 2010, defendant's reply memorandum, dated July 9, 2010, and the [*2]court records.

Background

On January 11, 1999, defendant was indicted for Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16 [1]), a class B felony, and Criminal Possession of a Controlled Substance in the Fourth Degree (PL § 220.09 [1]), a class C felony. The Indictment alleges that on December 14, 1998, defendant was in possession of ninety bags of crack cocaine.

In 2000, a jury trial was held before the Honorable Mark H. Spires. On April 13, 2000, the jury found defendant guilty of the charged crimes. On June 28, 2000, the court sentenced defendant as a second felony offender to concurrent indeterminate terms of imprisonment of seven and one half (7 ½) to fifteen (15) years.

On or about May 22, 2001, defendant appealed his conviction and sentence to the Appellate Division, Second Department. On December 3, 2001, the Appellate Division unanimously affirmed defendant's judgment of conviction. (People v Hart, 289 AD2d 257 [2d Dept 2001].) Thereafter, defendant's application for leave to appeal to the Court of Appeals was denied. (People v Hart, 97 NY2d 729 [2002].) Pursuant to the 2004 DLRA and CPL § 440.20, on October 19, 2005, defendant filed a pro se motion in the Supreme Court, Queens County, Part K-21, to reduce his sentence. On November 28, 2005, Justice Spires denied the motion.[FN1]

Defendant contends that he is eligible to be resentenced in accordance with CPL § 440.46, which authorizes resentencing for eligible defendants convicted of class B drug felony offenses if certain criteria are met.

In opposition, the People argue that defendant should not be resentenced because: (1) he is incarcerated solely because of his parole violation; (2) substantial justice dictates that his application should be denied in light of his criminal history, including his parole violations; and (3) based upon his record, public safety concerns would not be served by removing defendant from parole supervision.

Defendant was in the custody of the Department of Corrections from his arrest on December 14, 1998, until his initial release to the Division of Parole on August 7, 2007. [*3]Since his initial release to the Division of Parole, the records indicate that defendant's parole has been revoked four times.

On August 31, 2007, defendant was arrested in Queens County and charged with Criminal Possession of Marijuana in the Third Degree and Criminal Possession of a Weapon in the Fourth Degree. On September 14, 2007, defendant pleaded guilty to Criminal Possession of Marijuana in the Fourth Degree and was sentenced to ninety days incarceration. Thereafter, on November 1, 2007, defendant's parole was revoked and he was incarcerated as a parole violator. On January 11, 2008, defendant was granted a conditional release to the

Division of Parole. As a condition of defendant's release, he was to participate in the 820 River Street Drug Treatment Program. On April 21, 2008, defendant's parole was revoked due to his lack of attendance in this drug program. As a result of his parole revocation, defendant was re-incarcerated as a conditional release parole violator.

On July 11, 2008, defendant was released to the Division of Parole for the third time. On December 12, 2008, defendant was arrested in Nassau County and charged with Identity Theft in the Third Degree. On February 19, 2009, defendant was arrested in Queens County for Possession of a Forged Instrument in the Third Degree and on March 23, 2009, defendant pleaded guilty to that charge. Defendant was sentenced on July 9, 2009, to a determinate term of six (6) months incarceration. As a result of this conviction, defendant's parole was revoked once again on July 20, 2009.

On August 20, 2009, defendant was released to the Division of Parole for the fourth time. On August 24, 2009, defendant received an Adjournment in Contemplation of Dismissal in satisfaction of his Nassau County case. On January 15, 2010, defendant's parole was revoked for the fourth time because defendant ceased reporting to parole.

Currently, defendant is incarcerated in the Clinton Correctional Facility as a parole violator. His earliest release date is August 10, 2010.

Conclusions of Law

CPL § 440.46, as created by the 2009 DLRA, provides that a person is eligible for resentencing when: (1) such individual is in the custody of the New York State Department of Corrections; (2) has been convicted of a class B felony offense committed prior to January 13, 2005; and (3) when such person was sentenced to an indeterminate prison term with a maximum term of more than three (3) years. An eligible defendant may seek resentencing to a determinate sentence with a minimum term of two (2) years [*4]and a maximum term of twelve (12) years incarceration plus a period of post-release supervision between one and one half (1 ½) and three (3) years.

When an eligible defendant applies to the court for resentencing, the court is to apply the procedures as were done when class A-1 drug offenders were allowed to apply for resentencing (see L.2004, ch 738). The 2004 DLRA provides that upon "its review of the submissions and findings of fact made in connection with the application" the court may refuse to resentence such person where "substantial justice dictates that the application should be denied" (see 1-3 [b] [2] § 23). The court "may consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by such person or People and may, in addition, consider the institutional record of confinement of such person" (id.). Additionally, the court may consider the defendant's willingness, or lack thereof, to participate in eligible treatment or other programs while incarcerated. The court may also consider the defendant's disciplinary history (Chapter 56 of the laws of 2009).

In the case at bar, even though defendant was convicted of a class B felony offense and received a sentence that carried a maximum term in excess of three years incarceration, this court finds that defendant does not meet the criteria entitling him to be resentenced.

Defendant was initially released to the Division of Parole in this case on August 7, 2007. Although he is in the "physical custody" of the Department of Corrections on a parole violation, he is not eligible for resentencing under the 2009 DLRA. He is ineligible for resentencing because once a defendant is released to parole supervision, he can never again be considered "in custody" and eligible for resentencing within the meaning of the 2009 DLRA. The 2009 DLRA, like its predecessors, "was not intended to apply to those offenders who have served their term of imprisonment, been released from prison to parole supervision, and whose parole is then violated with a resulting period of incarceration." (People v Pratts, ___ AD3d ___, 2010 NY Slip Op 04928 [1st Dept 2010].)

Despite the Appellate Division, First Department's decision in People v Pratts, defendant avers that he is eligible for resentencing because leave to appeal this issue is pending in the Court of Appeals in People v Orta (73 AD3d 452 [1st Dept 2010]) and there is no decision on this issue from the Second Department. On June 21, 2010, an application for leave to appeal to the Court of Appeals was requested in People v Pratts. However, leave to appeal to the Court of Appeals in People v Orta has subsequently been denied by Senior Associate Judge of the Court of Appeals Carmen Beauchamp Ciparick on June 29, 2010.

Regardless, this court finds that the 2009 DRLA is similar to its predecessors and the Court of Appeals has ruled 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. [*5](People v Mills, 11 NY3d 527 [2008].) Moreover, the purpose of the DRLA resentencing provisions is to relieve prison inmates of their onerous sentences. (Pratts at 1.) Defendant was relieved of his sentence of incarceration when he was paroled; defendant, on his own accord, could have remained at liberty by adhering to his parole conditions. Thus, this court finds that defendant is not eligible to be resentenced under the 2009 DRLA. Defendant's motion is denied without prejudice to renew pending the Court of Appeals' decision in People v Pratt.

Order entered accordingly.

The Clerk is directed to forward copies of this Memorandum Decision and Order to the attorney for the defendant and to the District Attorney.

__________________________

Darrell L. Gavrin, J.S.C. Footnotes

Footnote 1:This court notes that Justice Spires is retired and this motion was reassigned to this court.