People v. Arroyo

• Decision Date: 11 October 2012
• Citation: 952 N.Y.S.2d 42,2012 N.Y. Slip Op. 06835,99 A.D.3d 515
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Ramon ARROYO, etc., Defendant–Appellant.

99 A.D.3d 515

952 N.Y.S.2d 42

2012 N.Y. Slip Op. 06835

The PEOPLE of the State of New York, Respondent,

v.Ramon ARROYO, etc., Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Oct. 11, 2012.

Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Cynthia A. Carlson of counsel), for respondent.

GONZALEZ, P.J., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ.

Order, Supreme Court, Bronx County (John P. Collins, J.), entered on or about September 8, 2011, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.

Because this State's Legislature wanted to grant relief from the harsh punishment imposed upon nonviolent drug offenders under the Rockefeller Drug Laws, the Drug Law Reform Act (DLRA) of 2009 (L.2009, Ch. 56, § 9), codified in part at CPL 440.46, permits a criminal defendant imprisoned for class B drug felonies committed while the Rockefeller Drug Laws were in force to apply for resentencing under the current, less severe sentencing regime ( People v. Paulin, 17 N.Y.3d 238, 243–244, 929 N.Y.S.2d 36, 952 N.E.2d 1028 [2011] ). Specifically CPL 440.46(1) states that

“[a]ny person in the custody of the department of corrections and community supervision convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to January thirteenth, two thousand five, who is serving an indeterminate sentence with a maximum term of more than three years, may, except as provided in subdivision five of this section, upon notice to the appropriate district attorney, apply to be resentenced to a determinate sentence in accordance with sections 60.04 and 70.70 of the penal law in the court which imposed the sentence.”

While resentencing under the 2009 DLRA is not mandatory, and is instead left to the Supreme Court's discretion ( People v. Myles, 90 A.D.3d 952, 953, 935 N.Y.S.2d 99 [2d Dept. 2011];People v. Gonzalez, 29 A.D.3d 400, 400, 815 N.Y.S.2d 75 [1st Dept. 2006],lv. denied7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143 [2006] ), the statute creates a presumption in favor of resentencing, and absent an exclusion expressly listed in the statute ( seeCPL 440.46[5] ), denial of an application for resentencing is warranted only upon a showing that substantial justice dictates it ( Myles, 90 A.D.3d at 953, 935 N.Y.S.2d 99;Berry, 89 A.D.3d 954, 955, 933 N.Y.S.2d 94 [2d Dept. 2011];People v. Beasley, 47 A.D.3d 639, 641, 850 N.Y.S.2d 140 [1st Dept. 2008];Gonzalez, 29 A.D.3d at 400, 815 N.Y.S.2d 75). When determining whether to grant resentencing, the court can consider any and all facts relevant to the imposition of a new sentence, including the defendant's willingness to participate in drug treatment while incarcerated( People v. Avila, 84 A.D.3d 1259, 1259, 923 N.Y.S.2d 674 [2d Dept. 2011],lv. denied17 N.Y.3d 804, 929 N.Y.S.2d 564, 953 N.E.2d 802 [2011] ), defendant's institutional record of confinement, the defendant's prior criminal history, the severity of the conviction for which resentencing is sought, whether the defendanthas shown remorse, and the defendant's history of parole or probation violations ( Myles, 90 A.D.3d at 953–954, 935 N.Y.S.2d 99).

Here, in 2003 defendant pleaded guilty to two counts of criminal sale of a controlled substance in the third degree. Provided he completed a drug treatment program, defendant would be allowed to withdraw his plea, replead to a class C felony, and be sentenced to probation. In 2004, however, while in the drug treatment program, defendant was once again arrested and convicted of attempted robbery in the second degree. The robbery arrest constituted a violation of his plea agreement on the previous drug convictions and accordingly, defendant was sentenced to two concurrent indeterminate prison terms of 2 to 6 years on the drug convictions and to a determinate one-year prison term on the robbery conviction.

In 2007, while defendant was on parole for his drug convictions, he was once again arrested and convicted of attempted conspiracy in the second degree, for which he received an indeterminate prison term of 3 to 6 years. While in prison, defendant successfully completed a comprehensive drug treatment program and took educational...