AD2 order dated December 13, 2011, affirming DLRA-III specify-and-inform resentence order. Decision below: 90 A.D.3d 788, 934 N.Y.S.2d 326. Graffeo, J., granted leave February 29, 2012.

ISSUE PRESENTED: Whether, upon a DLRA-III resentencing, the court has the power to not only change the indeterminate sentences to determinate ones, but also to alter the sentences for multiple felony drug convictions, originally imposed to run consecutively, to run concurrently. The Second Department said no. (Assigned counsel: Skip Laisure & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10^th Floor, NYC 10006.) (Leave was also granted in the case of People v. Elbert Norris, with a similar issue.)

Issue before the Court:  Whether at a DLRA-3 resentencing, a court had the power to run new drug sentences concurrently to each other when the original sentence had them running consecutively.

Held:  No, the resentencing court lacks the authority to change consecutive sentences to concurrent sentences.

CAL Observes:  While the Court has been open to broad interpretations of who is eligible for resentencing under the Drug Law Reform Acts (e.g., Paulin and Sosa), the Court has repeatedly affirmed that the scope of a DLRA resentencing is narrow because it constitutes “an alteration of the existing sentence” and not the “imposition of a new sentence.”  A similar hostility to the scope of PRS resentencings is evident in the Court’s cases as well.

One of the remaining open questions is whether a DLRA resentencing can alter the sequentiality of the conviction for predicate sentencing purposes.  The Court of Appeals currently has pending before it two cases examining that issue in the PRS resentencing context.