People v. Ally Golo


AD2 order dated February 7, 2014, affirming denial of DLRA-3 resentencing without first holding a hearing. Decision below: 109 AD3d 623, 970 NYS2d 604. Read J., granted leave July 8, 2014. Argued October 22, 2015.
ISSUE PRESENTED: Whether it is improper to deny DLRA-3 resentencing based upon “substantial justice” without first holding a hearing on the motion. (Assigned counsel: David P. Greenberg and Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)


Defendant sought resentencing pursuant to the 2009 Drug Law Reform Act.  The prosecution argued that the defendant was ineligible because he had sustained a conviction for a violent offense subsequent to the drug case upon which he sought resentencing and thus, supposedly, had an “exclusion” offense that would render him ineligible for resentencing.  Without defendant or his counsel being present, the court denied the resentencing motion finding the defendant ineligible and, alternatively, finding, as a matter of discretion, that he was not entitled to resentencing.  The Appellate Division affirmed; although it disagreed with the resentencing court’s eligibility determination (finding that only prior, but not subsequent, violent felonies could be exclusion offenses), it agreed that the interest of justice dictated that the application for resentencing be denied.


Is a defendant entitled to be personally present and to have assistance of counsel before a resentencing court exercises its discretion in denying resentencing under the DLRA?


Yes, but before reaching that issues, the Court also decided that it could consider the eligibility issue despite having been decided in defendant’s favor by the Appellate Division.  Agreeing with the Appellate Division that the defendant was eligible, the Court then found that the defendant was entitled to a hearing at which he was present before being denied relief.  The statute required that “the court shall offer an opportunity for a hearing and bring the applicant before it.”  Because that had not occurred, defendant was entitled to a new resentencing hearing.

CAL Observes:

Though we welcome the Court’s conclusion on the eligibility question (particularly when the Court even acknowledges the “seeming anomaly” that permits a defendant with a more recent violent felony to apply for resentencing, but not a defendant with an older violent felony committed within the ten years preceding the drug conviction), the Court’s belief that it had jurisdiction to consider that question is a bit baffling.  On a defendant’s appeal, the Court should not have reviewed a separate claim decided in the appellant’s favor by the Appellate Division.  Regardless, this case resolves the last significant eligibility question from the Drug Law Reform Acts and could well be the Court’s last case dealing with those acts.  The defense bar basically enjoyed a clean sweep on all the major eligibility issues, showing the importance of the concept that ameliorative acts are interpreted to assist the presumed beneficiaries.