People v. Golo

• Decision Date: 23 November 2015
• Docket Number: No. 175,175
• Citation: 26 N.Y.3d 358,2015 N.Y. Slip Op. 08611,44 N.E.3d 185,23 N.Y.S.3d 110
• Parties: The PEOPLE of the State of New York, Respondent, v. Ally GOLO, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 358

44 N.E.3d 185

23 N.Y.S.3d 110

2015 N.Y. Slip Op. 08611

The PEOPLE of the State of New York, Respondent

v.Ally GOLO, Appellant.

No. 175

Court of Appeals of New York.

Nov. 23, 2015.

Lynn W.L. Fahey, Appellate Advocates, New York City (David P. Greenberg of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Danielle S. Fenn and John M. Castellano of counsel), for respondent.

OPINION OF THE COURT

ABDUS–SALAAM, J.

In April 2004, defendant pleaded guilty to criminal sale of a controlled substance in the third degree, a class B felony, and he was sentenced in June 2004 to an indeterminate prison term of from 3 ? to 10 years. Defendant had committed that crime in April 2003. Days after he was sentenced on this drug charge, defendant was sentenced, upon his guilty plea to two counts each of robbery in the first degree and of endangering the welfare of a child, in connection with robberies that had occurred in May and June 2003. For these crimes, he was sentenced to two determinate seven-year prison terms for the robbery counts to be served concurrently with each other and two one-year terms for the endangering counts.

Defendant was initially released to parole supervision in September 2009. However, his parole was revoked following his May 2010 arrest for possessing a gravity knife, and he was referred to a drug treatment program. After completing the drug treatment program, he was restored to parole supervision in November 2010. But less than three months later defendant was arrested for possessing cocaine and resisting arrest, and his parole was again revoked in September 2011. He pleaded guilty to a parole violation for resisting arrest and was sentenced to an 18–month parole hold.

In March 2012, defendant moved, pursuant to the Drug Law Reform Act of 2009 (L. 2009, ch. 56 [codified in relevant part at CPL 440.46 ] [hereinafter DLRA–3] ), to be resentenced on his 2004 conviction for criminal sale of a controlled substance in the third degree. Supreme Court denied the motion for resentencing, holding that defendant was ineligible because he had been convicted of an “exclusion offense” (CPL 440.46[5][a] ) within the 10–year period between his sentencing on his 2004 conviction for criminal sale of a controlled substance in the third degree and his application for resentencing. The court issued its decision without the parties being present, and

without offering defendant an opportunity to appear. The court found that it need not consider defendant's interest of justice arguments for resentencing, but that even if defendant were eligible for resentencing, the court would still deny his motion in the exercise of its discretion.

The Appellate Division affirmed (109 A.D.3d 623, 970 N.Y.S.2d 604 [2d Dept.2013] ). It disagreed with Supreme Court about defendant's eligibility to be resentenced, reasoning that defendant's robbery convictions did not constitute “exclusion offense[s]” within the meaning of CPL 440.46(5)(a) because they were committed after the drug offense for which he sought resentencing. However, it held that Supreme Court providently exercised its discretion in concluding that considerations of substantial justice dictated the denial of the motion. A Judge of this Court granted leave to appeal (23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ), and we now reverse and remit.

As an initial matter, the People argue that Supreme Court properly found that defendant was ineligible for resentencing. We are able to review that argument notwithstanding defendant's assertion to the contrary (see CPL 470.35[1] ), and agree with the Appellate Division that the 2004 robbery convictions are not “exclusion offense[s]” under CPL 440.46(5)(a) because defendant's convictions on the robbery charges occurred after, not prior to, the drug offense for which he seeks resentencing. 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 ; or (ii) any other offense for which a merit time allowance is not available pursuant to [Correction Law § 803(1)(d)(ii) ]” (CPL 440.46[5][a] [emphasis added] ).

“As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] ). Given the provision's references to a “previous” felony and the “present” felony, the wording of the

statute indicates that exclusion offenses must have been committed before the drug offense for which resentencing is sought (see People v. Myles, 90 A.D.3d 952, 953, 935 N.Y.S.2d 99 [2d Dept.2011] [“The statutory language was not written in anticipation of a situation where the potential exclusion offense was committed after the drug conviction for which the defendant seeks resentencing”] ). Our decision in People v. Sosa, 18 N.Y.3d 436, 940 N.Y.S.2d 534, 963 N.E.2d 1235 (2012) is not to the contrary, as it concerned the interpretation of the phrase “within the preceding ten years,” not the meaning of the term “previously convicted.”

Although we recognize the seeming anomaly that a violent felony committed days after the drug offense cannot count as an exclusion offense, while the same...