| People v Williams |
| 2011 NY Slip Op 04506 [84 AD3d 1279] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BruceWilliams, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Caroline R.Donhauser, and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.),dated January 21, 2010, which denied that branch of his motion which was for resentencingpursuant to CPL 440.46 on his conviction of conspiracy in the second degree, and specified andinformed him that the court would impose a determinate term of imprisonment of seven years,with two years of postrelease supervision, in the event of a resentence pursuant to CPL 440.46 onhis conviction of criminal possession of a controlled substance in the third degree.
Ordered that the order is affirmed, and the matter is remitted to the Supreme Court, KingsCounty, for further proceedings in accordance herewith.
In 2005 the defendant pleaded guilty to conspiracy in the second degree (Penal Law §105.15) and criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]), and was sentenced to concurrent indeterminate terms of imprisonment. In 2009 thedefendant moved for resentencing on both convictions pursuant to CPL 440.46. The SupremeCourt specified and informed the defendant of a proposed resentence on his conviction forcriminal possession of a controlled substance in the third degree, but concluded that it wasunauthorized, under CPL 440.46, to resentence the defendant on his conviction of conspiracy inthe second degree. We affirm.
Contrary to the People's contention, the defendant's release to parole during the pendency ofthis appeal does not render the appeal academic (see People v Overton, 86 AD3d4 [2011]).
The Supreme Court correctly determined that its authority to resentence eligible inmatesconvicted of a class B drug felony is limited to that felony, and any class C, D, or E felonyoffense defined in articles 220 and 221 of the Penal Law on which a sentence was imposed at thesame time as the challenged sentence, or were included in the same commitment sheet as thechallenged sentence (see CPL 440.46 [2]), and does not extend to convictions of othercrimes, such as conspiracy in the second degree (see People v Murray, 82 AD3d 794[2011]).
Moreover, as the Supreme Court correctly concluded, the unavailability of resentencing upona conviction of conspiracy in the second degree does not violate the defendant's federal and state[*2]constitutional rights to equal protection of the laws. Indetermining whether a legislative classification not involving a suspect class or fundamental rightcomports with the equal protection requirement, we ask only whether it is rationally related to alegitimate state purpose (see People v Walker, 81 NY2d 661, 668 [1993]). In doing so,"we defer to the Legislature, which is presumed to know all facts that would support a statute'sconstitutionality—a presumption which must be rebutted beyond a reasonable doubt"(id. at 668). "The Legislature's actual purpose need not be apparent, for a statute isconstitutional if rationally related to any conceivable legitimate State purpose" (id.).Here, the Legislature's determination that the reforms codified in CPL 440.46 should only applyto defendants convicted of certain felony offenses, enumerated in articles 220 and 221 of thePenal Law, is rationally related to the legitimate state purpose of providing sentencing relief to"low level" drug offenders (Assembly Mem in Support, 2004 McKinney's Session Laws of NY,at 2179) and not to those who, having conspired with others, potentially as part of a large-scaledrug operation, pose a greater societal harm (see generally People v Walker, 81 NY2d at668).
The proposed resentence imposed on the conviction of criminal possession of a controlledsubstance in the third degree was not excessive (see People v Sevencan, 58 AD3d 761[2009]; People v Gonzalez, 53 AD3d 507 [2008]; People v Suitte, 90 AD2d 80[1982]).
Pursuant to the Drug Law Reform Act of 2009 (CPL 440.46), we remit this matter to theSupreme Court, Kings County, to afford the defendant an opportunity to withdraw that branch ofhis motion which was for resentencing on his conviction of criminal possession of a controlledsubstance in the third degree, before any resentence is imposed (see CPL 440.46 [3]; L2004, ch 738, § 23). Skelos, J.P., Leventhal, Sgroi and Miller, JJ., concur. [Prior CaseHistory: 27 Misc 3d 226.]