| People v Cristostomo |
| 2012 NY Slip Op 03364 [95 AD3d 401] |
| May 1, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Fernando Cristostomo, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead of counsel), forrespondent.
Order, Supreme Court, Bronx County (Nicholas J. Iacovetta, J.), entered November 1, 2010,which denied defendant's CPL 440.46 motion for resentencing, unanimously reversed, on thelaw, and the matter remitted to the Supreme Court for further proceedings.
While on work release from the drug conviction, defendant committed, and was convicted of,the crime of attempted kidnapping in the first degree, a violent felony. Supreme Court erred infinding that defendant is ineligible for resentencing due to his commission of a violent felonysubsequent to the drug offense (seePeople v Allen, 92 AD3d 980 [2012]; People v Myles, 90 AD3d 952 [2011]; People v Devivo, 87 AD3d 794[2011], lv denied 18 NY3d 858 [2011]; see also People v Suya, 87 AD3d 921 [2011], lv denied 17NY3d 956 [2011] [People conceded that defendant's conviction for a class C violent felonyoffense subsequent to the drug offense did not constitute an "exclusion offense" that renderedhim ineligible for resentencing pursuant to CPL 440.46 (5)]).
The resentencing provisions do not apply to "any person who is serving a sentence on aconviction for or has a predicate felony conviction for an exclusion offense" (CPL 440.46 [5]).Under the relevant portion of CPL 440.46 (5) (a), an "exclusion offense" that disqualifies adefendant from resentencing is defined as a violent felony "for which the person was previouslyconvicted within the preceding ten years, excluding any time during which the offender wasincarcerated for any reason between the time of commission of the previous felony and the timeof commission of the present felony."
The statutory language "predicate felony," "previous felony," and "present felony" indicatesthat this portion of CPL 440.46 was not written to anticipate the situation where the offense wascommitted after the drug conviction, such as while the defendant was out on parole or workrelease (see People v Devivo, 87 AD3d at 795-796). " '[N]ew language cannot beimported into a statute to give it a meaning not otherwise found therein.'. . . Moreover, 'a court cannot amend a statute by inserting words that are not there,nor will a court read into a statute a provision which the Legislature did not see fit to enact' "(Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995],quoting McKinney's Cons [*2]Laws of NY, Book 1, Statutes§ 94, at 190; § 363, at 525; see also People v Hill, 82 AD3d 77, 80 [2011]).
The People argue here, as they did in People v Paulin (17 NY3d 238 [2011]), that a literal application ofthe statutory language would cause an absurd result, because the Legislature could not haveintended for a defendant who commits a violent felony while on work release from a drugsentence to be eligible for resentencing on that drug conviction. Paulin involved prisonerswho had been paroled and then reincarcerated for violating their parole, and there is no provisionin CPL 440.46 making reincarcerated parole violators ineligible for resentencing. The Courtrejected the People's argument that permitting these defendants to apply for resentencing wouldhave the absurd result of rewarding them for parole violations, and declined to read into thestatute a nontextual exception for parole violators, reasoning that if defendants did not deserverelief from their sentences, the court can deny their resentencing applications if "substantialjustice dictates that the application should be denied" (id. at 244). That same reasoningapplies here. We decline to graft onto the statute an exception not included by the Legislature,especially when defendant's resentencing application may be denied on the "substantial justice"ground included in the statute. Because Supreme Court found that defendant was ineligible forresentencing due to an exclusion offense, it did not reach the issue of whether the applicationshould be denied based on considerations of substantial justice. We accordingly remit to theSupreme Court for further proceedings. Concur—Tom, J.P., Moskowitz, Richter,Abdus-Salaam and Román, JJ.