People v. Brown, 2010 NY Slip Op 50000(U) (N.Y. Sup. Ct. 1/4/2010), 4097/02
| Decision Date | 04 January 2010 |
| Docket Number | 4097/02 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. KEVIN BROWN, Defendant. |
| Court | New York Supreme Court |
David J. Klem, Center for Appellate Litigation, for the Defendant.
The Defendant moves to be resentenced pursuant to the Drug Law Reform Act of 2009 (). That motion is opposed by the People. For the reasons stated below, the Court holds that the Defendant is statutorily eligible for resentencing but that substantial justice dictates the denial of Defendant's motion. Defendant's motion for resentencing is therefore denied.
Defendant was convicted after a jury trial in 2002 of the crime of Criminal Sale of a Controlled Substance in the Third Degree and sentenced, after being adjudicated as a predicate felony offender by Justice Edwin Torres on January 14, 2003, to an indeterminate sentence of imprisonment with a term of 8-16 years. In that case, the Defendant sold .8 grains of cocaine for $10 to an undercover police officer during a buy and bust operation. According to Defendant's counsel, his current earliest release date would be June 25, 2010, his Conditional Release Date is February 25, 2013 and his Maximum Expiration Date is June 25, 2018.
Defendant was convicted of Attempted Burglary in the Third Degree and sentenced to 1-3 years incarceration in 1986. He was convicted of Attempted Robbery in the Second Degree and sentenced to six years in prison plus five years of probation in 1991. In 1992, he was convicted on the same date of two counts of Criminal Possession of a Controlled Substance in the Third Degree and one count of Criminal Possession of a Controlled Substance in the Fifth Degree and given indeterminate terms of 2-6 years, 4½-9 years and 2-4 years incarceration respectively.
In addition to these felony convictions, Defendant has 11 misdemeanor convictions for assault, resisting arrest, narcotics possession and public health law violations. At sentencing, Justice Torres said he was "tilting towards" the maximum indeterminate sentence of 12½-25 years incarceration to "get him [the Defendant] off the street permanently" and indicated that he believed the Defendant perjured himself during his testimony. He then sentenced the Defendant however, to an indeterminate sentence of 8-16 years incarceration, explaining that he was "taken by" the recommendation of the People to impose that lower term. Defendant's counsel describes Mr. Brown as a "homeless drug addict" whose crimes were all related to his narcotics addiction. Defendant's counsel, in his motion, recounts the horrendous circumstances of Defendant's upbringing in a broken home, with a cocaine addicted mother, living in a series of condemned buildings and becoming addicted to crack shortly after he was ten years old.
Mr. Brown has been assessed with 21 disciplinary infractions while incarcerated. The People, in their response to Defendant's motion, assert the following facts (without contradiction from Defendant's counsel) regarding Defendant's disciplinary history:
[W]hile an inmate, petitioner, has been subjected to disciplinary action twenty-one times. This includes fifteen Tier 2 infractions and six Tier 3 infractions. Petitioner's Tier 3 infractions include those for possession of a weapon, possession of an altered item, violent conduct, and drug use. Petitioner's Tier 2 infractions include those for violent conduct, fighting and possession of prison contraband. Further, thirteen of these infractions resulted in petitioner receiving time in the correctional facility's Special Housing Unit (SHU) and/or keeplock time. Brief of Nicholas Tuffarelli, Office of Special Narcotics Prosecutor at 11 (footnotes omitted).
Petitioner first entered the Department of Correctional Services ASAT drug treatment program in May of 2009 after approximately six years of incarceration and only a few weeks after the enactment of the 2009 DLRA. He was initially seen as doing well in the program. However, he was then removed from the program four months later for disciplinary reasons. Defendant's counsel asserts that the Defendant is committed to reentering the program. There have also been some positive reports with respect to Defendant's recent time in prison. Defendant completed the transitional services program in 2003. He has worked in various capacities while incarcerated and has been trained or certified in a number of occupational skills. He has enrolled in GED classes but has not been able to complete them because of the time he has spent in disciplinary confinement. He enrolled in a pre-GED class in April of 2009. A July, 2009 report indicated that he was a "pleasure" to have in class and had earned excellent or above-average marks in all assessment categories. Defendant's counsel avers that if released, Defendant would be able to count on the support of his siblings and a close friend he has been corresponding with while in prison to assist in his reintegration. The Center for Appellate Litigation, which represents the Defendant, also asserts that it would assist Mr. Brown if released through its reintegration program.
Defendant's Eligibility for Resentencing:
Where a Defendant has moved to be resentenced pursuant to the 2009 DLRA, the Court must first determine whether the Defendant is eligible for resentencing. The parties in this case disagree about whether the Defendant is eligible for resentencing in one respect. The People argue that Defendant's conviction for Attempted Robbery in the Second Degree on October 9, 1991, a violent felony offense under the Penal Law, makes him ineligible for resentencing. The Defendant argues that this conviction does not bar resentencing. The disagreement between the parties on this point hinges on two related issues of statutory construction.
Meaning of the "Ten Year Look-Back" Provision:
The 2009 DLRA provides, inter alia, that a Defendant who "is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense" is not eligible to be resentenced. An exclusion offense is defined 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. . . . CPL 440.46 (5) (a).1
The People point out that Defendant's violent felony conviction in 1991 was within ten years of his 2002 conviction for the instant offense, if the time he was incarcerated between his 1991 and 2002 convictions is tolled. The People further argue that the 2009 DLRA excludes offenders who have been convicted of a violent felony offense from resentencing if they were convicted of that offense within ten years of their instant drug offense (tolling the running of that time for any period of a defendant's incarceration). Defendant argues that this ten year period is measured from the date of a violent felony conviction to the date of a resentencing application. Moreover, Defendant argues that in calculating this period, the period of Defendant's incarceration on the instant drug offense does not toll the running of this ten year period. Defendant points out that under his interpretation of the statute, more than 10 years elapsed between his 1991 violent felony conviction and his instant resentencing application, even when his period of incarceration between that 1991 conviction and the date of his instant drug offense is excluded from the ten year calculation. The Court in People v. Roman (Unreported Decision, Ind. No. 4391 & 6894 of 1996, Bronx County Supreme Court, December 2, 2009 [Mogulescu, J.]) recently adopted the interpretation of the statute urged by the Defendant here. That interpretation is also shared by the State Department of Correctional Services, which has notified inmates in writing of their construction of the statute.2 The People's interpretation of the statute is shared by the author of the McKinney's Practice Commentary on the 2009 DLRA, Peter Preiser. See McKinney's Consolidated Laws of 2009, Practice Commentary, CPL 440.46.3
The Court has reviewed the available legislative history of the 2009 DLRA by attempting to obtain any of the materials in the legislative bill jacket for the Act and reading the transcripts of the floor debates concerning the Act in the Senate and Assembly. With respect to the bill jacket, the Court has been informed by the Governor's office, and has informed the parties, that there is no material in the bill jacket other than the bill itself. This is because the 2009 DLRA was enacted as part of a larger budget bill and for this reason the normal submissions which might be made by interested groups and legislators on substantive legislation were not submitted to the Governor's office prior to the bill's signing. There is only one passage in the floor debates which addresses the resentencing issue. That occurred in the Senate, when Senator Carl Kruger, the Chairman of the Senate Finance Committee, was giving a summary of the legislation's provisions. Addressing the 2009 DLRA's resentencing provisions, Senator Kruger noted that "[a]nyone with a violent felony within 10 years, a myriad of ineligible offenses, including all sex offenses, you're not eligible to apply" [for resentencing]. Senate Debate Transcript of 2009 DLRA, April 2, 2009 ("Senate Floor Debate") at 2683-2684.4 The Court does not believe that this statement is particularly informative with respect to the eligibility question which is in dispute here. Senator Kruger's remarks, in context, were...
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