| People v Devivo |
| 2011 NY Slip Op 06195 [87 AD3d 794] |
| August 11, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony A.Devivo, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Spain, J.P. Appeal from an order of the County Court of Broome County (Smith, J.), enteredMarch 26, 2010, which denied defendant's motion for resentencing pursuant to CPL 440.46.
In 1993, defendant was convicted of criminal sale of a controlled substance in the thirddegree and was sentenced to a prison term of 3 to 9 years. In 1999, while on parole for thatconviction, defendant was convicted of burglary in the second degree, criminal mischief in thethird degree and perjury in the first degree. He was sentenced to prison terms of 10 years on theburglary conviction and 2 to 4 years on the criminal mischief conviction, with those sentences torun concurrently. Defendant was also sentenced to 3 to 6 years on the perjury conviction, withthat sentence to run consecutively to the other sentences. The 1999 sentences were also directedto run consecutively to the undischarged term of imprisonment on the 1993 drug felonyconviction. In November 2009, defendant moved to be resentenced pursuant to CPL 440.46.County Court denied the motion and defendant now appeals.
We affirm. Pursuant to CPL 440.46 (1), in order to be eligible for resentencing, a defendantmust have been convicted of a class B drug felony that was committed prior to January 13, 2005and must be serving an indeterminate sentence with a maximum term of more than three years(see CPL 440.46 [1]). The resentencing provisions do not apply, however, to "any personwho is serving a sentence on a conviction for or has a predicate felony conviction for an [*2]exclusion offense" (CPL 440.46 [5]). As relevant here, an"exclusion offense" is defined as "a crime for which the person was previously convicted withinthe preceding [10] years, excluding any time during which the offender was incarcerated for anyreason between the time of commission of the previous felony and the time of commission of thepresent felony, which was . . . a violent felony offense as defined in [Penal Law§ 70.02]" (CPL 440.46 [5] [a]). Inasmuch as burglary in the second degree is a violentfelony offense pursuant to Penal Law § 70.02 (b), the first issue before us is whetherdefendant's commission of the burglary in 1998 was within the look-back period of 10 years.
Initially, as we have recently held, the look-back period is measured from defendant's motionfor resentencing, as opposed to the commission of the drug felony offense (see People v Carter, 86 AD3d 653,654 [2011]; People v Lashley, 83AD3d 868, 868-869 [2011]; Peoplev Hill, 82 AD3d 77, 79-80 [2011]; People v Sosa, 81 AD3d 464, 465 [2011], lv granted 16NY3d 863 [2011]). We now must determine whether defendant's 1998 burglary was committedwithin 10 years of his application for resentencing, after omitting time mandated for exclusion bythe statute. Upon reading the statutory language, we conclude that it was written in anticipationof a situation where the possible exclusion offense was committed prior to the drug offense forwhich the resentencing is sought. Hence, the statute excludes time spent in prison between thecommission of the "previous" felony (i.e., the alleged exclusion offense) and commission of the"present" felony (i.e., the drug offense) when calculating the 10-year look-back provision.Unfortunately, the statutory language was not written to anticipate the situation at hand, i.e.,where the possible exclusion offense was committed after the drug conviction becausethe defendant was out on parole. Given the use of the terms "previous felony" and "presentfelony" in the statute, it does not readily lend itself to application here. Accordingly, we cannotfind that defendant was convicted of an exclusion offense during the statutory look-back period,which would render him per se ineligible for resentencing.
The Court of Appeals has recently stated, however, that in the case of parole violatorsseeking resentencing, "[i]t may be, of course, that [they] have shown by their conduct that theydo not deserve relief from their sentences[, and] if that is the case, courts can deny theirresentencing applications" (People vPaulin, 17 NY3d 238, 244 [2011]). Here, after considering defendant's criminalbehavior while on parole as well as his conduct while incarcerated, County Court stated that,even if defendant were eligible for resentencing, it would deny his application. Deferring toCounty Court's decision in this regard, especially given that defendant was convicted of a violentfelony offense after committing the crime for which he seeks resentencing, we agree thatsubstantial justice dictates that the application be denied (see L 2004, ch 738, § 23;CPL 440.46 [3]; People v La Porte,53 AD3d 984, 985 [2008]).
Kavanagh, Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed.