People v Green

[*1] People v Green 2010 NY Slip Op 52261(U) [30 Misc 3d 1204(A)] Decided on December 15, 2010 Supreme Court, Richmond County Rienzi, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2010
Supreme Court, Richmond County

The People of the State of New York, Plaintiff,

against

Kelly Green, Defendant.



129/88

Leonard P. Rienzi, J.

Convicted, upon a jury verdict, of Criminal Sale of a Controlled Substance in the Third Degree (a class "B" felony), defendant was sentenced as a discretionary persistent felony offender to an indeterminate term of imprisonment of 15 years to life (see Penal Law §70.10[2]). To date, he has been imprisoned on this conviction for approximately 22 years [FN1]. As an incarcerated inmate serving a prison sentence for a class "B" drug felony committed prior to January 13, 2005, defendant now moves to be re-sentenced pursuant to CPL 440.46 to the present maximum for a second felony drug offender with a single prior violent felony conviction, i.e., a determinate sentence of 15 years, plus 3 years of post-release supervision (see Penal Law §70.70[4][b][I]. The People oppose the motion claiming that (1) defendant is ineligible for the relief requested, citing CPL 440.46(5), and (2) in any event, substantial justice dictates that the application be denied (see CPL 440.46[3], L 2004, ch 738, §23).

In arguing that defendant is ineligible for the relief requested, the People argue that defendant's 1979 conviction of Robbery in the Second Degree, a class "C" violent felony as defined in Penal Law §70.02 (1)(b), constitutes an "exclusion offense" under CPL 440.46(5)(a)(I). As enacted, the eligibility provisions of CPL 440.46 provide as follows:

5. The provisions of this section shall not apply to any person who is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense. For purposes of this subdivision, an "exclusion offense" is:

(a) a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was: (i) a violent felony offense as defined in section 70.02 of the penal law; or (ii) any other offense for which a merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law; or [*2]

(b) a second violent felony offense pursuant to section 70.04 of the penal law or a persistent violent felony offense pursuant to section 70.08 of the penal law for which the person has previously been adjudicated.

The Court disagrees.

In the opinion of this Court, the interpretation of CPL 440.46(5)(a)(I) advocated by the People effectively ignores the clear language of the foregoing subdivision, which limits the "look-back" period for an "exclusion offense" to, inter alia, a violent felony "for which the [movant] was previously convicted within the preceding ten years (emphasis supplied)". According to the People, the provision in question should be interpreted to conform with the similar but materially different language employed in, e.g., Penal Law §§70.04(1)(b), 70.06(1)(b), 70.08(1)(b), 70.10(1)(b), 70.70 (1)(b) and 70.71(1)(b)[FN2], in each of which the 10-year "look-back" provision is measured from the date of defendant's "commission" of the crime of which he presently stands convicted (see e.g. Penal Law §70.06[1][b][iv], [v]), rather than, as defendant argues, the date of the application. Admittedly, CPL 440.46 (5) (a) does not set forth a specific a starting date. Nevertheless, the People's interpretation, if adopted, would render this defendant and other similarly situated defendants permanently ineligible for re-sentencing under CPL 440.46 whenever the conviction of the violent felony offense occurred fewer than ten years prior to commission of the narcotics offense on which he or she is presently incarcerated. In this case, for example, under the People's reading of the statute, since defendant's conviction for the crime of Robbery in the Second Degree occurred in or about September, 1979, i.e., less than 10 years prior to the date on which he committed the crime underlying his present felony drug conviction (April 13, 1988), he would be forever precluded from seeking relief under CPL 440.46.

However, there are problems with this analysis.

Perhaps the clearest flaw in the People's interpretation of CPL 440.46(5) is that it is at variance with the statutory language of subdivision (5)(a)(i), which specifically limits the "look-back" period for an "exclusion offense" to a violent felony conviction occurring "within the preceding ten years", exclusive of "any time during which the offender was incarcerated...between the time of commission of the previous felony and the time of commission of the present felony"[FN3]. While the above language eliminating certain periods of incarceration from the computation in CPL 440.46(5)(a)(I) is nearly identical to that employed in the like sections of the Penal Law upon which the People purport to rely (see e.g. Penal Law §70.06 [1][b][v]), it is difficult to ascribe to "legislative oversight" the patent difference between wording of this clause eliminating certain periods of incarceration from the "look-back" period in CPL 440.46(5), and that comprising the core definition of the term "exclusion offense" as found in the first clause of CPL 440.46 (5)(a), which contains no reference to the date of commission of the predicate violent felony offense (cf. Penal Law §70.06[b]). Rather, these differences in [*3]language must be seen as indicative of a difference in intent, i.e., that the "look-back" period disqualifying a class "B" felony drug offender with a previous violent felony conviction "within the preceding ten years" was meant to be read in accordance with its natural meaning as commencing with the date of the application and not, as advocated by the People, the date on which the underlying drug offense was committed. Critical, here, is the People's attempt to incorporate into this definition a term not present therein and appearing solely in the clause eliminating certain periods of incarceration for eligibility purposes. Hence, the Penal Law sections cited by the People are not, in fact, supportive of their "strained" interpretation of CPL 440.46 (5)(a). Judged by the correct standard, defendant is eligible for relief under CPL 440.46(5).

In addition to this linguistic distinction, the People's interpretation ignores a basic difference in intent between the "look-back" provision in CPL 440.46(5) and those in article 70 of the Penal Law. The latter, it must be noted, were designed to augment the punishment of repeat offenders, while CPL 440.46 was intended to be remedial in nature, i.e., to lessen the period of incarceration to be served by qualified offenders originally sentenced under the so-called draconian "Rockefeller" drug laws. This difference in intent is alone sufficient to account for the differences in the choice of language, as those offenders barred under the People's interpretation of CPL 440.46 would never become eligible to receive a remediated sentence. Contrariwise, the plain language of the "look-back" period adopted by the Legislature would allow an offender ineligible for relief on the effective date of CPL 440.46 (October 7, 2009) to become eligible after serving a greater percentage of his or her original sentence. The People have failed to tender any persuasive argument for departing from a literal reading of the statute to incorporate an unstated qualification which would operate to vitiate its ameliorative intent.

Also noteworthy is the People's inability to cite any authority for their position, while all of the courts that have thus far considered the issue have adopted the construction advocated by the defendant [FN4].

For all these reasons, it is the opinion of this Court that defendant is eligible for re-sentencing under CPL 440.46. This being the case, it is necessary to decide whether defendant is entitled to the relief requested.

To the extent relevant, CPL 440.46 provides that "the proceedings on and determination of a motion "brought thereunder shall be governed by the provisions of §23 of chapter 738 of the Laws of 2004, which state:

"If the court [in which the application is made] determines that [the movant is eligible to be re-sentenced] it may consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by such person or the people and may, in addition, consider the institutional record of confinement of such person.... Upon its review of the submissions and the findings of fact made in connection with the application, the court shall, unless substantial justice dictates that the application should be denied ...specify and inform such person of the term of a determinate sentence of imprisonment it would impose upon such conviction", (emphasis supplied). [*4]

However, CPL 440.46(3) adds the following relevant caveat: "provided...that the court's consideration of the institutional record of confinement of such person shall include but not be limited to such person's participation in or willingness to participate in treatment or other programming while incarcerated and such person's disciplinary history".

Defendant at bar has been involved with the criminal justice system since 1976 at the age of fourteen, when he was found to have broken into and vandalized a public school building. A year later, he was the look-out during an armed robbery in which a woman was killed. Shortly after his release following two years of detention in a juvenile facility for his role in the above crime, defendant was again arrested, this time for a series of robberies in which many of his victims, all female, were physically injured. As a result, defendant was convicted of robbery in the second degree (a class "C" violent felony offense), assault in the second degree (a class "D" violent felony offense) and grand larceny in the third degree, for which he was sentenced on October 26, 1979 to concurrent terms of imprisonment of two to six years, one to three years and one year, respectively. Defendant was subsequently admitted to parole in December 1982.

In 1983, while still on parole, defendant was again arrested for a robbery involving the use of force against a woman. This time he was permitted to plead guilty to the nonviolent felony of attempted robbery in the third degree and sentenced, as a second felony offender, to an indeterminate term of imprisonment of 1 ½ to 3 years. Paroled in 1986, defendant was again drawn to the attention of law enforcement, culminating in his arrest in April, 1988 for selling six vials of crack cocaine to an undercover officer. Following his conviction in 1989 of criminal sale of a controlled substance in the third degree, defendant was adjudicated a persistent felony offender under Penal Law §70.10, and sentenced to an indeterminate term of imprisonment of 15 years to life. It is this persistent felony offender sentence that is at issue in this proceeding.

It is to defendant's credit that although developmentally disabled, he has successfully completed a number of programs of a vocational and educational nature during the 22 years he has spent in prison on his 1989 conviction. However, he has also committed some 45 Tier II and Tier III disciplinary infractions (an average of slightly more than two per year) for which he was committed to more than 400 days in Special Housing Units and at least 670 days of "Keeplock". A number of defendant's infractions involved defiant, threatening, abusive conduct, some of which was of a sexual nature. Although only seven of defendant's infractions were of the more serious (Tier III) nature, in gross, they demonstrate a pronounced inability on defendant's part to control his conduct even in a highly structured environment. Under all these circumstances, the Court is compelled to conclude that "substantial justice" in this case requires that defendant's motion for re-sentencing pursuant to CPL 440.46 be denied (see CPL 440.46 [3]; People v. Pipkin, 77 AD3d 770).

In this regard, the Court is constrained to note that the sentence imposed under Penal Law §70.10 was the statutory minimum based on his adjudication as a persistent felony offender (see Penal Law §§70.10; 70.00[2][a], [3][a][2]), and that nothing which has transpired since that time casts doubt upon the propriety of that adjudication. In fact, the contrary appears. Moreover, the circumstance that defendant's present sentence was imposed following conviction of a drug felony, as opposed to any other nonviolent felony, had no direct bearing on his eligibility for sentencing as a persistent felony offender. Instead, but for his persistent felony offender adjudication, the maximum sentence which defendant could have been received in 1989 upon his [*5]conviction of criminal sale of a controlled substance in the third degree was 12 ½ to 25 years (see Penal Law §70.06 [3][b],[4][b]).

This constitutes the Decision and Order of the Court.

ENTER,

____________________

DATED:J.S.C. Footnotes

Footnote 1:Defendant was denied parole in 2003, 2005, 2007 and, most recently, in 2008. His next scheduled appearance before the Parole Board is in December 2010.

Footnote 2:Penal Law §70.07(3) is worded identically, but extends the "look-back" period to 15 years.

Footnote 3:Both sides agree that these periods of exclusion for intervening periods of incarceration have no bearing on defendant's eligibility under CPL 440.46. The same is true of CPL 440.46(5)(a)(ii) and (5)(b).

Footnote 4:It appears that no appellate courts have yet addressed the issue.