| People v Smith |
| 2007 NY Slip Op 09294 [45 AD3d 1478] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Norma Smith,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from an order of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),entered April 7, 2006 pursuant to the 2005 Drug Law Reform Act. The order denied defendant'sapplication to be resentenced upon defendant's 1991 conviction of criminal sale of a controlledsubstance in the second degree.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed.
Memorandum: Defendant appeals from an order pursuant to the 2005 Drug Law Reform Act([DLRA-2] L 2005, ch 643, § 1) denying her application for resentencing upon her 1991conviction of criminal sale of a controlled substance in the second degree (Penal Law §220.41 [1]). Supreme Court properly denied defendant's application. DLRA-2 provides inrelevant part that a defendant convicted of a class A-II felony offense defined in Penal Lawarticle 220 and sentenced to an indeterminate term of imprisonment with a minimum period ofnot less than three years, "and who is more than twelve months from being an eligible inmate asthat term is defined in subdivision 2 of section 851 of the correction law," may apply to beresentenced in accordance with Penal Law § 70.71. Pursuant to Correction Law §851 (2), an eligible inmate is "a person confined in an institution who is eligible for release onparole or who will become eligible for release on parole or conditional release within two years. . . If an inmate is denied release on parole, such inmate shall not be deemed aneligible inmate until he or she is within two years of his or her next scheduled appearance beforethe state parole board." Thus, in order to be eligible for resentencing pursuant to DLRA-2, a classA-II felony offender cannot be eligible for parole within three years (see People v Parris, 35 AD3d 891[2006]; People v Thomas, 35 AD3d895 [2006]; People v Bautista,26 AD3d 230 [2006], appeal dismissed 7 NY3d 838 [2006]). Here, there is nodispute that, at the time of her application for resentencing in October 2005, defendant waseligible for parole in May 2006, seven months later.
Defendant contends that DLRA-2 and Correction Law § 851 (2) arbitrarily create acategory of defendants who are ineligible for resentencing because they previously appearedbefore the parole board and were denied parole. We reject that contention. Pursuant to ExecutiveLaw § 259-i (2) (a) (i), when an inmate is denied parole the parole board "shall specify adate not more than twenty-four months from such determination for reconsideration." Thus,[*2]defendant is correct that an inmate who has been deniedparole is never more than two years away from parole eligibility, and thus he or she is nevereligible for resentencing pursuant to DLRA-2. Nevertheless, "[a]lthough the statute treatsdifferent groups of convicted A-II felons differently on the basis of their parole eligibility dates,. . . the distinction is rationally related to the achievement of the valid stateobjective of ameliorating the conditions of those A-II offenders facing the longest prison time"(Bautista, 26 AD3d at 230). The Legislature's determination that defendants who haveappeared before the parole board and have been denied parole are ineligible for resentencing isrational because those defendants have served the minimum terms of their sentences and are lesslikely to face long periods of continued incarceration (see generally People v Bagby, 11 Misc 3d 882, 891 [2006]).Moreover, we conclude that DLRA-2 was never intended to apply to class A-II felony offenders"who have served their term of imprisonment, have been released from prison to parolesupervision, and whose parole is then violated, with a resulting period of incarceration"(id. at 887). Here, defendant was released to parole supervision in January 2000, butreoffended and was again incarcerated. Thus, because defendant was previously parole eligible,was released to parole supervision, and then violated parole, she will never be more than threeyears from becoming parole eligible as contemplated by DLRA-2 (see People v Roman, 12 Misc 3d1197[A], 2006 NY Slip Op 51607[U], *2). Present—Hurlbutt, J.P., Gorski, Martoche,Lunn and Peradotto, JJ.