People v. Arroyo
| Decision Date | 25 June 2010 |
| Docket Number | No. 4776–2003.,4776–2003. |
| Citation | 28 Misc.3d 1205,2010 N.Y. Slip Op. 51151,957 N.Y.S.2d 637 |
| Parties | The PEOPLE of the State of New York, v. Javier ARROYO, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Richard Greenberg, Esq., Office of the Appellate Defender, for the Defendant.
Nikki Harding, Assistant District Attorney, Office of the Bronx District Attorney.
Defendant moves this court, pursuant to CPL 440.46, to resentence him on his conviction for criminal sale, and possession, of controlled substance in the third degree. The People contend that defendant is not eligible for resentencing because of his 1993 conviction for criminal possession of a weapon in the third degree, arguing that it constitutes an “exclusion offense” as that term is defined in section 440.46(5)(a) of the Criminal Procedure Law. Defendant claims, conversely, that such conviction is not an “exclusion offense” under CPL 440.46(5)(a) since it was committed more than ten years before the instant conviction, excluding any time for which defendant was incarcerated. For the reasons stated below, the defendant's motion is granted.
On September 3, 2003, arresting officers observed the defendant sell one bag of heroin to another individual. After being placed under arrest, officers discovered an additional eighteen bags of heroin inside the defendant's jacket pocket. He was subsequently charged by indictment with criminal sale of a controlled substance in the third degree (PL 220.16[1] ) and criminal possession of a controlled substance in the third degree and (PL 220.39[1] ). On December 9, 2004, defendant was convicted after a jury trial of both charges. Judgement was entered in the Supreme Court, Bronx County, (Farber, J) on February 10, 2005, to two consecutive terms of twenty years imprisonment with a mandatory minimum period of ten years. The Appellate Division, First Department, affirmed defendant's conviction on October 26, 2006 (People v. Arroyo, 33 A.D.3d 547, 823 N.Y.S.2d 61 [1st Dept 2006] ). On February 6, 2007, the Court of Appeals denied defendant leave to appeal ( People v. Arroyo, 8 N.Y.3d 878 [2007] [Table] ). Having served more than six years of his indeterminate sentence, defendant now moves for resentencing pursuant to CPL 440.46.
The Drug Law Reform Act (“DLRA”) (2004 N.Y. Laws Ch 738 [effective January 13, 2005] ), was enacted in response to the sentencing policies under New York's “Rockefeller Drug Laws.” Such reform was intended to ameliorate the sentences imposed on individuals who had committed Class A–I and Class A–II drug offenses (“DLRA 1” and “DLRA 2,” respectively). Subsequently, in 2009, the Legislature enacted the DLRA 3, which extended sentencing relief to those convicted of Class B, C, and D drug offenses. Under the DLRA 3, qualified applicants convicted of a Class B drug offense are entitled to a reduced determinate sentence in accordance with section 60.04 and 70.70 of New York's Penal Law (see CPL 440.46[1] [McKinney 2009] ).
CPL 440.46(1) entitles a defendant to petition for resentencing if that defendant: 1) is in the custody of the Department of Correctional Services; 2) has been convicted of a Class B felony offense committed prior to January 13, 2005; and 3) is serving an indeterminate sentence with a maximum term of imprisonment exceeding three years ( id.). Resentencing is prohibited, however, for inmates who have been convicted of an “exclusion offense.” CPL 440.46(5)(a) defines “exclusion offense” as
a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was: (i) a violent felony offense as defined in section 70.02 of the penal law. 1 ( CPL 440.46[5][a] ).
It is undisputed that defendant satisfies each element under CPL 440.46(1); he is currently in the custody of the New York State Department of Correctional Services, he was convicted of criminal sale and criminal possession of a controlled substance, both of which are Class B felonies, before January 13, 2005, and his maximum term of imprisonment is twenty years. Thus, the sole issue for this court to decide is whether defendant's previous conviction for criminal possession of weapon is an “exclusion offense” as that term is defined in CPL 440.46(5)(a).
Relative to this issue, the parties take opposing views on whether defendant's prior violent felony conviction is an “exclusion offense.” Their dispute hinges on the meaning this court should place on the look-back language of CPL 440.46(5)(a), specifically whether defendant “was previously convicted [of his violent felony offense] within the preceding ten years” ( id.)
Defendant contends the look-back period is measured from the date that the resentencing application is filed, excluding any time during which defendant was incarcerated between the date on which the previous (violent) felony was committed and that of the present felony. The People, conversely, view the look-back period as commencing on the date on which the instant felony was committed, not the date on which the resentencing application was filed (similarly excluding any incarceration time between the commission of the previous violent felony offense and the commission of the instant offense). Thus, whether the look-back period is measured from the filing of the resentencing motion or the commission of the instant offense requires a careful reading of CPL 440.46, along with an inquiry into the legislative history of the statute, its purpose, and the manner in which other courts and agencies have interpreted.
It is axiomatic that a court, when engaging in statutory analysis, must attempt to give effect to the intent of the Legislature. In so doing, “[t]he starting point is always to look to the language itself and where the language of a statue is clear and unambiguous, courts must give effect to its plain meaning” (People v. Danton, 27 Misc.3d 638, 641, 895 N.Y.S.2d 669 [Sup Ct, N.Y. County, 2010, J Kahn] citing Pultz v. Economakis, 10 N.Y.3d 542, 547 [2008] [internal quotation marks, brackets and citations omitted]; see also People v. Finnegan, 85 N.Y.2d 53, 58 [1995] ). Here, the “exclusion offense” in CPL 440.46(5)(a) is defined as “a crime for which the person was previously convicted within the preceding ten years” (CPL 440.46[5][a] ). To be sure, the look-back period language, “within the preceding ten years,” is far from clear and unambiguous. Nevertheless, while the people contend that it can arguably be interpreted as meaning from the commission of the instance offense, the more natural reading suggests that inherently, “within the preceding ten years” refers to the day on which the resentencing application was filed.
Initially, when considering the meaning of a statute that is less than clear and unambiguous, a court would ordinarily examine its legislative history. In this case, however, CPL 440.46 was enacted without any such historical record (see People v. Brown, 26 Misc.3d 1204(A), 2010 WL 9928 [Sup Ct, N.Y. County, 2010, J Conviser] [ bill jacket for the DLRA 3 contained only the bill itself, due to its enactment as part of budget bill, and lacked the typical submissions from advocacy groups, government agencies and legislators] ). As such, the legislative history offers no insight as to when the look-back period should begin, and this court must look elsewhere to decipher the Legislature's intent. Additional insight into the intentions of the Legislature can be ascertained, however, by examining the context in which CPL 440.46 was drafted.
As part of a series of statutory reforms designed to ameliorate the overly harsh punishments handed out to low-level drug offenders under New York's “Rockefeller Drug Laws,” the New York Legislature enacted the DLRA 3. The Legislature enacted these reforms because of the belief that low-level drug offender's punishments outweighed their crimes and that research suggested better, more humane, less costly alternatives to incarceration existed. Considering the DLRA in its entirety, it is clear that its very spirit of the DLRA 3 is to reduce the sentences of low level, non-violent felony drug offenders. Therefore, “it is appropriate to resolve any ambiguity [in the language CPL 440.46(5)(a) ] in favor of the more ameliorative, rather than the more punitive, construction” (People v. Danton, 27 Misc.3d at 644, 895 N.Y.S.2d 669).
The People urge this court, however, to apply the same standard used in recidivist laws codified in PL 70.06. Specifically, they argue that because defendant was already adjudicated as a second felony offender when he was sentenced in 2005, the same standard used to measure the look-back period under PL 70.06 should be applied. Such reasoning is flawed because the purpose of the recidivist laws is entirely in conflict with the ameliorative purpose of CPL 440.46. The DLRA statutes were enacted to reduce, rather than to extend, the eligible defendant's sentence.
To illustrate, an individual convicted of a Class B felony drug charge nine years and 364 days after having been convicted of a violent felony offense would be precluded from applying for a reduced sentence under the DLRA 3, whereas the same defendant convicted of that crime two days earlier would be entitled to do so. While this result makes sense in the context of the recidivist statutory scheme, since the purpose of those statutes is to impose more severe punishment on persons who continue to commit felonies relatively soon after having been subjected to punishment for similar felonious conduct, the same cannot be said of the DLRA statutory scheme. In the DLRA 3 context, “[a]dopting an interpretation of the statute which permits defendants to age into eligibility for resentencing is more in keeping with the...
To continue reading
Request your trial
-
People v. Santana
...to resolve any ambiguity in favor of the more ameliorative, rather than the more punitive, construction.” ( People v. Arroyo, 28 Misc.3d 1205(A), 2010 WL 2651649 [Sup. Ct. Bronx Co.2010] [Price, J.] [ quoting Danton, 27 Misc.3d at 644, 895 N.Y.S.2d 669] ). Based on the foregoing, the court ......