| People v Lashley |
| 2011 NY Slip Op 03088 [83 AD3d 868] |
| April 12, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v SharonLashley, Respondent. |
—[*1] Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for respondent.
Appeal by the People from a resentence of the Supreme Court, Queens County (Braun, J.),imposed April 28, 2010, pursuant to CPL 440.46, upon the defendant's conviction of criminalsale of a controlled substance in the third degree, and criminal possession of a controlledsubstance in the third degree, upon her plea of guilty.
Ordered that the resentence is affirmed.
The Supreme Court properly concluded that the defendant was eligible for resentencingpursuant to the Drug Law Reform Act of 2009, codified in CPL 440.46. CPL 440.46 expands theclass of offenders who are eligible to seek resentencing to those convicted of class B feloniesunder the indeterminate sentencing scheme which existed before the first Drug Law Reform Act(L 2004, ch 738) became effective on January 13, 2005. In order to be eligible for resentencingunder CPL 440.46, a defendant must have been convicted of a class B felony drug offense priorto January 13, 2005, and must be serving an indeterminate sentence with a maximum term ofmore than three years (CPL 440.46 [1]). However, the resentencing provisions of CPL 440.46 donot apply "to any person who is serving a sentence on a conviction for or has a predicate felonyconviction for an exclusion offense" (CPL 440.46 [5]). An "exclusion offense" is defined, interalia, as "a crime for which the person was previously convicted within the preceding tenyears, excluding any time during which the offender was incarcerated for any reason betweenthe time of commission of the previous felony and the time of commission of the present felony"(CPL 440.46 [5] [a] [emphasis added]).
Contrary to the People's contention, the Supreme Court correctly measured the 10 year"look-back" period of CPL 440.46 (5) (a) from the date of the defendant's resentencing motion,rather than from the date that she committed the present drug felonies (see People v Williams, 82 AD3d796 [2011]; People v Hill, 82AD3d 77 [2011]; People vSosa, 81 AD3d 464 [2011]). Since the phrase "preceding ten years," as used in thestatute, is not qualified by reference to the date of the commission of the present felony, its plainmeaning is that the 10-year look-back period should be measured from the date of theresentencing application (see People vHill, 82 AD3d 77; People vSosa, 81 AD3d 464 [2011]). "In contrast, where the Legislature has intended for aperiod [*2]to run from the date of [the] commission of an offenseback to the date of sentence of an earlier crime, it has expressly said so, or incorporated suchlookback provisions by reference" (People v Sosa, 81 AD3d at 465). Furthermore, thePeople's position that the 10-year look-back period should be construed as running from the dateof the commission of the present drug felony is inconsistent with the ameliorative purpose of thestatute (see People v Sosa, 81 AD3d at 465). When measured from the date of thedefendant's October 2009 motion for resentencing, her October 1991 conviction of attemptedrobbery in the second degree, a class D violent felony, was outside the 10-year look-back periodand, thus, did not disqualify her from eligibility for resentencing under the Drug Law Reform Actof 2009. Covello, J.P., Dickerson, Eng and Sgroi, JJ., concur.