| People v Phillips |
| 2011 NY Slip Op 02038 [82 AD3d 1011] |
| March 15, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesF. Phillips, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Orange County (Frehill, J.),dated December 4, 2009, which denied his motion to be resentenced pursuant to CPL 440.46 onhis conviction of criminal sale of a controlled substance in the third degree, which sentence wasoriginally imposed, upon his plea of guilty, on December 14, 2001.
Ordered that the order is reversed, on the law, and the matter is remitted to the County Court,Orange County, for further proceedings and a new determination of the defendant's motion.
In the Drug Law Reform Act of 2009 (hereinafter 2009 DLRA), the Legislature provided that"[a]ny person in the custody of the department of correctional services convicted of a class Bfelony offense defined in article two hundred twenty of the penal law which was committed priorto [January 13, 2005], who is serving an indeterminate sentence with a maximum term of morethan three years, may . . . apply to be resentenced" (CPL 440.46 [1]). Although the2009 DLRA does not reference a person's parole status in determining eligibility, the CountyCourt denied the defendant's motion to be resentenced solely on the basis that his status as areincarcerated parole violator made him ineligible for such relief. We reverse.
While a person's status as a parole violator may be relevant in determining whether"substantial justice dictates that the application should be denied" on the merits (L 2004, ch 738,§ 23; see CPL 440.46 [3]), nothing in CPL 440.46 supports a conclusion that suchstatus renders a person ineligible to apply for resentencing in the first instance. We do not agreewith the conclusion of the Appellate Division, First Department, that interpreting the statute topermit parole violators to apply for resentencing would be " 'contrary to the dictates of reason orleads to unreasonable results' " (People vPratts, 74 AD3d 536, 537 [2010], lv granted 15 NY3d 895 [2010], quotingMcKinney's Cons Laws of NY, Book 1, Statutes § 143, Comment, at 288). Although theCourt of Appeals has stated that "the Legislature did not intend fresh crimes to triggerresentencing opportunities" (People vMills, 11 NY3d 527, 537 [2008]), the Court in that case was not concerned with the2009 DLRA, but with the Drug Law Reform Act of 2005 (L 2005, ch 643, § 1 [hereinafterthe 2005 DLRA]), which permits resentencing only if the defendant is not within three years ofeligibility for release on parole. In [*2]Mills, thedefendant Jose Then argued that, after being reincarcerated following his parole violation, he wasmore than three years away from parole eligibility (People v Mills, 11 NY3d at 532). TheCourt rejected that argument, since the defendant was continuing to serve his sentence on theoriginal conviction, during which he had already become eligible for parole (and, in fact, hadbeen released on parole), and thus he could not be considered to be more than three years awayfrom parole eligibility with respect to that conviction. Accordingly, the Court held that "once adefendant has been released to parole supervision for a class A-II drug felony conviction, he orshe no longer qualifies for 2005 DLRA relief for that particular conviction" (id. at 537).That is to say, such a defendant is no longer more than three years away from parole eligibility.Inasmuch as the 2009 DLRA contains no requirement that a defendant be more than three yearsaway from parole eligibility, Mills does not apply to motions for resentencing under the2009 DLRA. We therefore decline to follow the decisions in Pratts and People v Paulin (74 AD3d 685[2010], lv granted 15 NY3d 854 [2010]).
Accordingly, we remit the matter to the County Court, Orange County, for furtherproceedings and a new determination of the defendant's motion. Mastro, J.P., Dillon, Eng andChambers, JJ., concur.