AD2 order dated January 29, 2014, affirming DLRA

resentencing. Decision below: 115 AD3d 155, 979 NYS2d

367. Graffeo, J., granted leave to People May 9, 2014.

ISSUE PRESENTED: Whether defendant was eligible for

DLRA-3 resentencing because, since he was on parole, he was

in the “custody” of DOCCS. (Assigned counsel: Legal Aid

Society, Criminal Appeals Bureau, 199 Water Street, NYC

10038.)

Issue before the Court: Whether the 2011 amendments to CPL 440.46 expanded the definition of  “in custody” to include those offenders on parole, and therefore made parolees eligible apply for resentencing on their class-B drug offenses.

 

Held: Not only did parolees fit withing the plain language of those in the custody of the New York State Department of Corrections and Community Supervision and therefore eligible to apply for resentencing, but extending eligibility to parolees was consistent with the “evolution” of the Penal Law’s sentencing structure for drug offenders, what was to reform unduly harsh sentences imposed under pre-2005 law.  

 

CAL Observes: The Court was called upon to determine whether the 2011 amendments to CPL 440.46, which reflected the reorganization of the Department of Correctional Services and the New York State Division of Parole into a single agency – the New York State Department of Corrections and Community Supervision – caused a substantive change in the provisions defining those class-B offenders eligible for resentencing under the Drug Law Reform Act. Prior to the 2011 amendments, only those “in the custody of the department of correctional services” were eligible to apply for resentencing. After the amendments, those “in the custody” of the reorganized “department of corrections and community supervision,” which included the Division of Parole, were eligible. In holding that those on parole were eligible to be resentenced, the Court’s thinking on eligibility seems to have come full circle from it’s first eligibility decision in People v. Mills, 11 N.Y.3d 527 (2008), where the Court rejected defense arguments that the provisions of the 2005 DLRA should be interpreted to afford broad relief to those sentenced under pre-2005 law. In Mills, Judge Read had written for that Court that it would be “illogical, if not perverse” to extend eligibility to class A-II offenders that had violated parole and were reincarcerated. Seven years later in Brown, continuing the shift in DLRA-eligibility jurisprudence, which had been extended in Santiago, Pratts and Paulin, Judge Lippman signaled that, wherever possible, eligibility for resentencing should be construed broadly, so as to at least offer those sentenced under pre-2005 laws the possibility of an ameliorated sentence, including those paroled, and/or reincarcerated for parole violations following their release (Judge Read dissented in Brown).