| People v Carter |
| 2011 NY Slip Op 05821 [86 AD3d 653] |
| July 7, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jerry Carter,Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Mercure, J.P. Appeal from an order of the County Court of Columbia County (Nichols, J.),entered August 25, 2010, which denied defendant's application for resentencing pursuant to CPL440.46.
On October 31, 1997, defendant was convicted upon his plea of guilty of three counts ofcriminal sale of a controlled substance in the third degree, and sentenced to an aggregate prisonterm of 9 to 18 years. On July 23, 2010, defendant applied for resentencing pursuant to CPL440.46. County Court denied defendant's application, finding that he was ineligible forresentencing based upon a prior violent felony conviction on October 7, 1987. County Courtreasoned that, excluding the period of incarceration on the 1987 offense, defendant's convictionsoccurred within a 10-year period. Defendant appeals.
The resentencing provisions of CPL 440.46 do "not apply to any person who is serving asentence on a conviction for or has a predicate felony conviction for an exclusion offense" (CPL440.46 [5]). An "exclusion offense" is "a crime for which the person was previously convictedwithin the preceding [10] years, excluding any time during which the offender was incarceratedfor any reason between the time of commission of the previous felony and the time ofcommission of the present felony, which was . . . a violent felony offense as definedin section [*2]70.02 of the penal law" (CPL 440.46 [5] [a] [i]).The sole issue before us is whether the 10-year look-back period is to be measured from the dateof the commission of the offense for which defendant seeks resentencing or from the date of themotion for resentencing.
In their brief before us, the People now agree with defendant that the look-back period runsfrom the date of the application for resentencing. Moreover, we are in agreement with thereasoning of the other Departments of the Appellate Division and join in their conclusion thatboth the plain language and the ameliorative purpose of the statute dictate that the look-backperiod be measured from the date of the motion for resentencing (see People v Hill, 82 AD3d 77,79-80 [4th Dept 2011]; People vSosa, 81 AD3d 464, 465 [1st Dept 2011], lv granted 16 NY3d 863 [2011]; see also People v Williams, 82 AD3d796, 797 [2d Dept 2011]). In contrast, County Court's determination that defendant is noteligible for resentencing was improperly based upon a calculation of the 10-year look-backperiod from the date of the commission of the present offense rather than the date of theapplication for resentencing. As the People concede, the order must accordingly be reversed andthe matter remitted for further proceedings.
Peters, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the order is reversed, on thelaw, and matter remitted to the County Court of Columbia County for further proceedings notinconsistent with this Court's decision.