People v Lankford

[*1] People v Lankford 2012 NY Slip Op 22030 Decided on February 9, 2012 Supreme Court, Bronx County Massaro, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 9, 2012
Supreme Court, Bronx County

The People of the State of New York, Respondent,

against

Ramell Lankford, Defendant.



929-2001



For The People:

Robert T. Johnson

Bronx County District Attorney

by: Nikki Harding, Esq.

Assistant District Attorney

For Defendant:

Robert S. Dean, Esq.

Elizabeth Moser, Esq.

Center for Appellate Litigation

74 Trinity Place - 11th Floor

New York, New York 10006

Dominic R. Massaro, J.

Defendant Ramell Lankford moves for resentencing pursuant to the Drug Law Reform Act of 2009 [FN1] (see, CPL §440.46). Defendant seeks the Court's discretion to resentence him under Penal Law §60.04 and Penal Law §70.70 and reduce his sentence for a Class B felony narcotics conviction under the Rockefeller Drug Laws because the sentence received was excessive and he is eligible for resentencing under the Drug Law Reform Act of 2009 (hereinafter DLRA). Defendant claims eligibility for resentencing even though he was not incarcerated at the time of the within filing.

Mr. Lankford plead guilty to one count of Criminal Possession of a Controlled Substance in the Third Degree (see, Penal Law §220.39[1]) for which he was sentenced to an indeterminate term of fifty four months to nine years incarceration. Subsequently, he was released from prison on April 19, 2011, [*2]after serving additional time for violating his conditions of release and parole supervision.[FN2]

Defendant's Application

While conceding prior case law permitted only a then incarcerated person to be eligible for resentencing under the DLRA, Defendant maintains that the Legislature ended that requirement by its March 31, 2011 budgetary merger of the Division of Parole with the Department of Correctional Services to form the "Department of Correction and Community Services" (DOCCS) (see, Laws of 2011, Ch. 62). Defendant claims the budgetary merger causes unincarcerated parolees to qualify for resentencing the same as imprisoned offenders since the unincarcerated were in custody of the newly merged DOCCS for resentencing purposes.

Stated another way, Defendant argues he is resentencing eligible because CPL §440.46 now provides that he is in "the custody of the department of corrections and community supervision" for resentencing purposes (see also, Executive Law §259-i[2][b], as amended). Chapter 62 of the Laws of 2011 negates any requirement a movant be incarcerated when seeking DLRA resentencing because of the statutory merger of the two agencies. Further, Defendant claims that People v. Paulin, 17 NY3d 238 (2011) and People v. Santiago, 17 NY3d 246 (2011), support, in dicta, his eligibility for resentencing even though he was not incarcerated at the time of this filing.

Because he is an unincarcerated person now qualifying for resentencing, Defendant maintains that he meets the other qualifications needed to apply for relief. Under prior case law, in order to apply for resentencing under CPLR §440.46, a person must (1) be in the custody of (former) Department of Correctional Services; (2) have been convicted of certain classes of felony offense defined in article 220 of the Penal Law; (3) have committed the offense prior to January 13, 2005; (4) be serving an indeterminate sentence with the maximum term of more than three years; and (5) not be serving a sentence on a conviction for or have a predicate felony conviction for an excluded offense (see generally, People v. Overton, 86 AD3d 4 [2nd Dept. 2011]). Because Defendant feels he meets these standards, he says substantial justice dictates that his applications be granted (see, CPL §440.46[3]) (see generally, People v. Avila, 27 Misc 3d 974 [Sup. Ct. Kings 2010], aff'd, 84 AD3d 1259 [2nd Dept. 2011]). See also, People v. Milton, 86 AD3d 478 [1st Dept. 2011]).

Concerning substantial justice, Defendant stresses that he should be forgiven his failure to comply with prior drug rehabilitation since those failure(s) occurred when he was a youth. Defendant claims a stellar prison record although he has more than thirteen Tier II and Tier III citations during 2002 to 2006 alone. In summary, Defendant asserts that his history, including his good prison record and post-release progress, support resentencing under the DLRA.

District Attorney's Opposition

In opposition, the prosecutor claims that "substantial justice" requires denial of re-sentencing. In this regard, the prosecutor points out that Defendant's conduct does not justify resentencing, either in or out of prison. Significantly, the District Attorney stresses Defendant was involved in numerous Tier II and Tier III disciplinary infractions during his prison time, including charges he possessed a weapon in prison, namely thirteen Tier II and three Tier III violations. [*3]

More fundamentally, the People say Defendant is ineligible for DLRA resentencing because he was not incarcerated when the resentencing motion was filed. The prosecutor rejects any inference that People v. Paulin, supra., and People v. Santiago, supra., support Defendant's resentencing. In this regard, the DOCS merger with the Division of Parole is essentially fiscal in nature. Nothing in the 2011 budget bill indicates an intent to alter case law under the DLRA or otherwise affect the requirement that a defendant be incarcerated for relief. In fact, the prosecutor says, the budget bill keeps the Division of Parole as an independent agency. Likewise, the District Attorney rejects Petitioner's distinction between "custody" and "legal custody" (see generally, Hawkins v. Coughlin, 72 NY2d 158 [1988]) and further rejects Petitioner's claim that he remains in custody for resentencing purposes because of the "merger" imposed by the reforms of Chapter 62.

Petitioner's Reply

In reply, Mr. Lankford argues that he is eligible for resentencing because the DOCS - Parole merger was in fact a real merger, with consequences. The merger means he was in DOCCS custody when resentencing was moved. Likewise, Defendant cites plain statutory language as supporting an interpretation resulting in his eligibility and which does not cause an absurd statutory result. Clearly, the only interpretation possible is that Defendant is in DOCCS' custody for resentencing purposes (see generally, Doctors Council v. New York City Employees' Retirement Sys., 71 NY2d 669 [1988]).

In support of substantial justice, Defendant reminds the Court that the bar for complete denial of a resentencing application under the DLRA is a high one (see generally, People v. Jones, 25 Misc. 3rd 1238(A) [Sup. Ct. New York 1999]). Clearly, circumstances here do not justify denial of resentencing under substantial justice scrutiny (see generally, People v. Milton, 86 AD3d 478 [1st Dept. 2011]).

Legal Discussion

The impetus for drug law reform, including DLRA, was the legislative wisdom that the Rockefeller Drug Laws' mandated sentences were excessively harsh when applied to street-level offenders who possessed or sold only small quantities of illegal drugs in order to feed their own addiction. The legislators determined that mandated sentences had proven counterproductive in that incarcerating low level offenders was hugely expensive and such lengthy periods of imprisonment were more likely to foil any sincere desire on the offender's part to overcome his addiction and become a law-abiding member of society. Because the drug law reform acts, including DLRA, embody a legislative effort to reverse the Rockefeller Drug Laws' effects, the Legislature incorporated a presumption in favor of granting motions for resentencing "unless substantial justice dictates that the application should be denied [FN3] " (see, People v. Flores, 27 Misc 3d 1204A [Sup Ct. Bronx 2010]).

Notwithstanding, the Legislature determined that in order to apply for resentencing under the present version of CPLR §440.46, a person must prove his eligibility, i.e., that he is in DOCCS custody at the time of filing the resentencing motion (see generally, People v. Overton, 923 NYS2d 619 [2nd Dept. 2011]). In this case, the Court concludes that Defendant fails to convince of his eligibility for resentencing relief because he was not incarcerated at the time the motion was filed. Therefore, Movant was not in custody when he prayed for relief in this case.

Case Law

The Court finds no case law supporting Defendant's view that he is eligible for resentencing under the DLRA while paroled. To the contrary, case law stresses relief is available only where a [*4]petitioner was incarcerated at the time a motion is filed and no change occurred after Chapter 62's enactment (see generally, People v. Paulin, supra.] [prisoners paroled then reincarcerated for parole violation eligible for resentencing]) (see also, People v. Baity, 2011 NY Slip Op 9186 [1st Dept. 2011]; People v. Taylor, 933 NYS2d 610 [2nd Dept. 2011]; People v. Rodriguez, 89 AD3d 1042[2nd Dept. 2011]; People v. Martin, 89 AD3d 1039 [2nd Dept. 2011]). The only other post merger situations where resentencing is available is where a movant has been released following the filing of a resentencing petition (see generally, People v. Santiago, 17 NY3d 246 [2011]; People v. Harvey, 2011 NY Slip Op 9547 [3rd Dept. 2011]; People v. Chaires, 89 AD3d 1282 [3rd Dept. 201 1]).

The Court rejects any argument that there is no distinction between incarcerated custody and custody where Defendant is on parole. The Court notes that Defendant bases his argument upon the Legislature's merger of the Division of Parole with the Department of Corrections when enacting Chapter 62 of the Laws of 2011. The Court finds to the contrary that the Legislature, in fact, made clear in that legislation that the merger was not intended to end the Parole Board's traditional independence. Specifically, Chapter 62 states: (I)t is not the intent of the legislature in enacting this merger, to diminish in any way the significant roles corrections officers and parole officers serve in the criminal justice system, and it is not to imply that they are interchangeable. The purpose of this legislation is to recognize where the mission of both entities is similar and that by combining the administrations of each, not only can fiscal efficiencies be achieved but also that services can be provided on a continuum rather than an abrupt transfer of responsibility (see, Laws of 2011, Part C, Subpart A, §1).

Most significantly, the Legislature stressed that (i)t is fundamental that the board of parole retain its authority to make release decisions based on the board members' independent judgment and application of statutory criteria as well as decisions regarding revocations of release. To this end, the legislation makes clear that the board shall continue to exercise its independence when making such decisions. The new agency's provision of administrative support will not undermine the board's independent decision-making authority (see, Laws of 2011, Part C, Sub. A, §1)[FN4]

Based upon the legislative intent expressed in Chapter 62, the Court finds that Defendant is not eligible for resentencing for his Rockefeller Drug Law conviction. After considering the arguments presented, the Court agrees with the prosecutor that Defendent is ineligible for resentencing and requires that Defendant's application be denied. The Court finds that Defendant does not satisfy the statutory criteria with regard to eligibility for resentencing. Because of the Court's finding concerning eligibility, the substantial justice issue need not be addressed.

The Court notes Defendant attempted to excuse leaving the drug program upon a claim that his girl friend gave birth to his child while he was in the program and he chose to leave for this reason. The Court rejects that excuse as well as the excuse of youth upon the same grounds the Court (Bernstein, J.) [*5]rejected Defedant's option to withdraw his guilty plea in 2002.

Based upon the foregoing, it is

ORDERED that Defendant Ramell Lankford's motion requesting that the Court resentence him, pursuant to CPL §440.46 and the recent amendments to Penal Law §70.70, to a determinate term of imprisonment pursuant to the DLRA because his present sentence is excessive is DENIED.

The foregoing [FN5] constitutes the Decision and Order of this Court.

Dated: Bronx, New York

February 9, 2012

___________________________Dominic R. Massaro, JSC Footnotes

Footnote 1: Drug Law Reform Act of 2009, L. 2009, Ch. 56, Part AAA, §9 (eff. Oct. 7, 2009). See, Mancuso, Comment: Resentencing after the "Fall" of Rockefeller: the Failure of the Drug Law Reform Acts of 2004 and 2005 to Remedy the Injustices of New York's Rockefeller Drug Laws and the Compromise of 2009, 73 Albany L. Rev. 1535 (2010).

Footnote 2: As part of the original agreed sentence, Defendant was placed under supervision of Treatment Accountability for Safer Communities (TASC) for an 18 month to 24 month residential drug treatment program. On August 17, 2001, TASC advised the Court that Defendant was not in compliance with the program and was involuntary returned to Court on January 15, 2002, after his rearrest and plea to Resisting Arrest (Penal Law 205.30) in Syracuse City Court. Because of failure to complete treatment, Petitioner was incarcerated until October 15, 2007.

Footnote 3: See, L. 2004, ch 738, § 23.

Footnote 4: See generally, Matter of Thwaites v. New York State Bd. of Parole, 2011 NY Slip Op 21453 [Sup. Ct Orange 2011]) (discussion of various procedural changes to Division of Parole arising from Law of 2011, Chapter 62]). See also, Genty, Changes to Parole Laws Signal Potentially Sweeping Policy Shift, 246 NY L. J, No. 44,. Sept. 1, 2011, P. 4, col.1

Footnote 5: The Court considered the following papers in deciding this motion: (1) Notice of Motion for DLRA Resentencing; Affirmation in Support of DLRA Resentencing; exhibits; (2) People's Response to Petitioner's Motion for Resentencing with exhibits; and (3) Reply Affirmation in Support of DLRA 3 Resentencing. Defendant also submitted a letter to supplement his application, together with April 9, 2002, sentencing transcript..