| People v Myles |
| 2011 NY Slip Op 09350 [90 AD3d 952] |
| December 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Clarence Myles, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Lewis, J.),dated September 23, 2010, which denied, without a hearing, his motion to be resentencedpursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the thirddegree, which sentence was originally imposed, upon his plea of guilty, on November 29, 1994.
Ordered that the order is affirmed.
At the time of the defendant's motion for resentencing, the 2009 Drug Law Reform Act,codified in CPL 440.46, provided that "[a]ny person in the custody of the department ofcorrectional services convicted of a class B felony offense defined in article two hundred twentyof the penal law which was committed prior to [January 13, 2005], who is serving anindeterminate sentence with a maximum term of more than three years, may . . .apply to be resentenced" (CPL former 440.46 [1]). However, the resentencing provisions of CPL440.46 do not apply "to any person who is serving a sentence on a conviction for or has apredicate felony conviction for an exclusion offense" (CPL 440.46 [5]). CPL 440.46 (5) (a)defines an "exclusion offense" as "a crime for which the person was previously convicted withinthe preceding ten 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: (i) a violent felony offense as defined in section 70.02 of the penallaw; or (ii) any other offense for which a merit time allowance is not available pursuant tosubparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of thecorrection law." The 10-year "look-back" period of CPL 440.46 (5) (a) is properly measured fromthe date of the defendant's resentencing motion (see People v Brown, 85 AD3d 940, 941 [2011]; People v Lashley, 83 AD3d 868[2011]).
The Supreme Court denied the defendant's motion for resentencing pursuant to CPL 440.46on the ground, among others, that he was ineligible for resentencing. The Supreme Court alsofound that considerations of substantial justice did not warrant the granting of the motion. Weconclude that the defendant is eligible for resentencing, but affirm the order denying thedefendant's motion on substantial justice grounds.[*2]
The defendant contends that his 2006 conviction ofcriminal sexual act in the third degree does not constitute an "exclusion offense" within themeaning of CPL 440.46 (5) (a) because it occurred after the drug conviction for which he seeksresentencing. Based on our reading of CPL 440.46 (5) (a), we agree with the defendant that thestatute was written in contemplation of a situation where the potential exclusion offense wascommitted prior to the drug offense for which resentencing is sought (see People v Devivo, 87 AD3d794 [2011]). The Legislature used the phrase "previous felony" when referring to thepotential exclusion offense, and the tolling provision of the statute uses the phrase "previousfelony," which we interpret to mean the potential exclusion offense, and "present felony," whichwe interpret to mean the drug offense for which the defendant seeks resentencing (CPL 440.46[5] [a]). The statutory language was not written in anticipation of a situation where the potentialexclusion offense was committed after the drug conviction for which the defendant seeksresentencing. Thus, we conclude that the defendant's 2006 conviction of criminal sexual act inthe third degree does not constitute an exclusion offense because that offense occurred after thepresent drug conviction for which the defendant seeks resentencing. As the defendant meets allother requirements for eligibility pursuant to CPL 440.46 (1), he is eligible for resentencing.
However, we conclude that substantial justice dictates the denial of the defendant's motion. Adefendant who is eligible for resentencing pursuant to CPL 440.46 enjoys "a presumption infavor of granting a motion for resentencing relief absent a showing that substantial justicedictates the denial thereof" (People vBeasley, 47 AD3d 639, 641 [2008]; see CPL 440.46 [3]; L 2004, ch 738,§ 23). Resentencing is not automatic, and the determination is left to the discretion of theSupreme Court (see People v Beasley, 47 AD3d at 641). In exercising its discretion, theSupreme Court may "consider any facts or circumstances relevant to the imposition of a newsentence which are submitted by [the defendant] or the people" (L 2004, ch 738, § 23),including the defendant's institutional record of confinement, the defendant's prior criminalhistory, the severity of the current offense, whether the defendant has shown remorse, andwhether the defendant has a history of parole or probation violations (see People v Overton, 86 AD3d 4,12 [2011]).
Here, in light of the defendant's criminal history and his institutional record of confinement,which included 12 tier III and 21 tier II disciplinary infractions for, among other things, fighting,violent conduct, drug use, and sexual offenses, and considering that the defendant was convictedof criminal sexual act in the third degree after his conviction of the drug offense for which heseeks resentencing, the Supreme Court providently exercised its discretion in concluding thatsubstantial justice dictated the denial of the defendant's motion to be resentenced pursuant toCPL 440.46 (see People v Devivo, 87 AD3d at 796; People v Wilson, 85 AD3d 1069 [2011], lv denied 17NY3d 863 [2011]; People v Avila,84 AD3d 1259 [2011]; People vColon, 77 AD3d 849 [2010]; People v Pipkin, 77 AD3d 770 [2010]). Skelos, J.P., Hall, Lott andCohen, JJ., concur.