People v. Carter

• Decision Date: 07 July 2011
• Citation: 2011 N.Y. Slip Op. 05821,86 A.D.3d 653,926 N.Y.S.2d 328
• Parties: The PEOPLE of the State of New York, Respondent,v.Jerry CARTER, Appellant.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 653

926 N.Y.S.2d 328

2011 N.Y. Slip Op. 05821

The PEOPLE of the State of New York, Respondent,

v.Jerry CARTER, Appellant.

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

July 7, 2011.

OPINION TEXT STARTS HEREArlene Levinson, Public Defender, Hudson (Jessica D. Howser of counsel), for appellant.Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.Before: MERCURE, J.P., PETERS, MALONE JR., KAVANAGH and STEIN, JJ.MERCURE, J.P.

Appeal from an order of the County Court of Columbia County(Nichols, J.), entered August 25, 2010, which denied defendant's application for resentencing pursuant to CPL 440.46.

On October 31, 1997, defendant was convicted upon his plea of guilty of three counts of criminal sale of a controlled substance in the third degree, and sentenced to an aggregate prison term of 9 to 18 years.On July 23, 2010, defendant applied for resentencing pursuant to CPL 440.46.County Court denied defendant's application, finding that he was ineligible for resentencing based upon a prior violent felony conviction on October 7, 1987.County Court reasoned that, excluding the period of incarceration on the 1987 offense, defendant's convictions occurred within a 10–year period.Defendant appeals.

The resentencing provisions of CPL 440.46 do “not apply to any person who is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense”(CPL 440.46[5] ).An “exclusion offense” is “a crime for which the person was previously convicted within the preceding [10] 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 ... a violent felony offense as defined in section 70.02 of the penal law”(CPL 440.46[5][a][i] ).The sole issue before us is whether the 10–year look-back period is to be measured from the date of the commission of the offense for which defendant seeks resentencing or from the date of the motion for resentencing.

In their brief before us, the People now agree with defendant that the look-back period runs from the date of the application for resentencing.Moreover, we are in agreement with the reasoning of the other Departments of the Appellate Division and join in their conclusion that both the plain language and the ameliorative purpose of the statute dictate that the look-back period be measured from the...