People v. Brown

• Decision Date: 29 January 2014
• Citation: 979 N.Y.S.2d 367,115 A.D.3d 155,2014 N.Y. Slip Op. 00524
• Parties: The PEOPLE, etc., appellant, v. Jarrod BROWN, respondent.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 155

979 N.Y.S.2d 367

2014 N.Y. Slip Op. 00524

The PEOPLE, etc., appellant,

v.Jarrod BROWN, respondent.

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

Jan. 29, 2014.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnette Traill, and Jessica L. Zellner of counsel), for appellant.

Steven Banks, New York, N.Y. (David Crow of counsel), for respondent.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, PLUMMER E. LOTT and JEFFREY A. COHEN, JJ.

COHEN, J.

On this appeal, we are asked to consider whether a parolee is in the “custody” of the New York State Department of Corrections and Community Supervision (hereinafter DOCCS) within the meaning of CPL 440.46(1), which allows a person serving a sentence for a class B drug felony committed prior to 2005 to apply for resentencing. For the reasons stated below, we agree with the Supreme Court's determination that the statute, as amended in 2011, does not distinguish between defendants who are incarcerated and those who are on parole for purposes of determining custodial eligibility. Accordingly, a parolee is in the custody of DOCCS within the meaning of CPL 440.46(1), and the resentence appealed from should be affirmed.

Drug Law Reform Act

In 1973 the New York State Legislature passed a series of bills that came to be known as the Rockefeller Drug Laws ( see L. 1973, chs. 276, 277, 278, 676, and 1051). In 2004 the Legislature began to reform the Rockefeller Drug Laws, which had generated controversy for many years. In doing so, the Legislature recognized that the Rockefeller Drug Laws “provide inordinately harsh punishment for low level non-violent drug offenders, warehouse drug offenders in state prison who could more productively be placed into effective drug treatment programs, and waste valuable state tax dollars which could be used more effectively to provide drug treatment to addicts” (Assembly Mem in Support, Bill Jacket, L. 2004, ch. 738 at 3).

The most recent drug reform legislation, the Drug Law Reform Act of 2009 (hereinafter the 2009 DLRA), codified in part at CPL 440.46, allows certain persons sentenced under the Rockefeller Drug Laws to apply to be resentenced under the current, less severe, sentencing regime. As originally enacted, the statute, in relevant part, qualified an individual eligible to be resentenced as, “[a]ny person in the custody of the department of correctional services” who had been convicted of a designated class B felony offense prior to January 13, 2005, who was serving an indeterminate sentence with a maximum term of more than three years, and who had not been convicted of an “exclusion offense” as defined by that statute (L. 2009, ch. 56, part AAA, § 9 [enacting CPL 440.46(1) ] ). At that time, parolees were in the “legal custody” of the division of parole (Executive Law § 259–i [former (2)(b) ] ) and thus were not in the custody of the department of correctional services. Accordingly, only incarcerated offenders, and not offenders released on parole, were eligible to apply for resentencing ( see People v. Santiago, 17 N.Y.3d 246, 247, 928 N.Y.S.2d 665, 952 N.E.2d 481; People v. Paulin, 17 N.Y.3d 238, 243, 929 N.Y.S.2d 36, 952 N.E.2d 1028).

In 2011, a New York State budget enactment consolidated and modernized several state agencies and created new departments ( see L. 2011, ch. 62). This legislation merged the New York State Department of Correctional Services and the New York State Division of Parole into a single agency, the New York State Department of Corrections and Community Supervision ( see id.). At that time, CPL 440.46(1) was amended by changing “department of correctional services” to “department of corrections and community supervision,” so that now “[a]ny person in the custody of the department of corrections and community supervision,” otherwise qualified, could apply to be resentenced (CPL 440.46 [1] ).

Factual and Procedural History

In the instant case, the defendant was convicted in 2002 of criminal sale of a controlled substance in the third degree, and was sentenced to an indeterminate term of imprisonment of six to twelve years. After nearly eight years of incarceration, the defendant was conditionally released on parole on April 15, 2011, with a maximum expiration date of July 16, 2017. Following the 2011 amendments to CPL 440.46(1), which became effective on March 31, 2011, the defendant moved to be resentenced pursuant to that statute. The People opposed the motion, inter alia, on the ground that because the defendant was not incarcerated at the time he filed his motion, he was not in the custody of DOCCS within the meaning of the statute. By order dated July 31, 2012, the Supreme Court found that the language of the statute, as amended, did not distinguish between offenders who were incarcerated and those who were on parole, and therefore the defendant was eligible to apply for resentencing. The court further found that substantial justice did not dictate denial of the motion because the defendant's criminal history showed him to be a low-level drug offender whose crimes stemmed from a strong drug addiction rather than from a violent propensity. Accordingly, the court granted the defendant's motion and resentenced him to a determinate term of imprisonment of seven years, and three years of postrelease supervision. As a result, the maximum expiration date of the defendant's sentence became July 16, 2012. The People appeal.

The sole issue raised by the People on appeal is whether the defendant was excluded from applying for resentencing relief because he was on parole, and not incarcerated, at the time he made his motion. We hold that he was not, and the Supreme Court was not precluded, on that ground, from considering his motion.

Analysis

Non-incarcerated parolees satisfy the “in custody” eligibility requirement of CPL 440.46(1), as amended, based on the plain language of the statute.

In statutory construction, courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used ( see People v. Williams, 19 N.Y.3d 100, 103, 945 N.Y.S.2d 629, 968 N.E.2d 983; People v. Kisina, 14 N.Y.3d 153, 158, 897 N.Y.S.2d 684, 924 N.E.2d 792; Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d 328, 335, 756 N.Y.S.2d 115, 786 N.E.2d 14; Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98; Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978; Doctors Council v. New York City Employees' Retirement Sys., 71 N.Y.2d 669, 675, 529 N.Y.S.2d 732, 525 N.E.2d 454). The plain language of CPL 440.46(1) encompasses “[a]ny person in the custody of [DOCCS].” According to Executive Law § 259–i(2)(b), a non-incarcerated parolee is within the legal custody of DOCCS. Thus, a plain reading of the statute leads to the conclusion that a non-incarcerated parolee is eligible to apply for resentencing under the statute. Had the Legislature intended to limit custodial eligibility to the subset of incarcerated offenders in DOCCS custody, it would have so provided.

Yet, the People contend that the Legislature limits its use of the term “custody” to refer to persons actually incarcerated, and employs terms such as “supervision” when referring to the department's relationship to parolees. This contention is belied by the language of Executive Law § 259–i(2)(b), which states that a parolee, among others, shall be in the “legal custody” of DOCCS until, among other possibilities, “return to imprisonment in the custody of the department,” and by other statutes in which the use of the term “custody” plainly refers to something other than incarceration ( see e.g.Correction Law § 275 [using both “legal custody” and “custody” in reference to a person who has been granted conditional release]; CPL 410.50).

Moreover, neither the legislative history of the subject statute nor the People's reliance on the Court of Appeals opinion in Matter of Hawkins v. Coughlin, 72 N.Y.2d 158, 531 N.Y.S.2d 881, 527 N.E.2d 759 compel a different conclusion. In Matter of Hawkins v. Coughlin, the petitioner was on parole for a robbery conviction when he was arrested for a second offense. The petitioner's robbery conviction was subsequently reversed on the ground that it had been unconstitutionally obtained. Following the reversal of his robbery conviction, the petitioner sought credit for the time he served on that conviction toward satisfaction of the sentence imposed upon his conviction for the second offense. He maintained that he was entitled to a credit pursuant to Penal Law § 70.30(3) because he was still in “custody” within the meaning of that statute when he committed the second offense. In determining that the petitioner was not entitled to a credit pursuant to Penal Law § 70.30(3), the Court of Appeals held that the term “custody,” as used in that statute, meant “ ‘confinement’ or ‘detention’ under guard and not ‘constructive custody’ such as release on parole or bail” (72 N.Y.2d 158, 162, 531 N.Y.S.2d 881, 527 N.E.2d 759). The Court rejected the petitioner's claim that “custody” as used in Penal Law § 70.30(3) included the “legal or constructive custody of the Divisionof Parole” (id. at 162, 531 N.Y.S.2d 881, 527 N.E.2d 759). In concluding that “custody” was limited to actual confinement or detention, the Court referred to the legislative history of the statute, which showed that the former statute...