People v. Lashley

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: JOSEPH COVELLO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and SANDRA L. SGROI, JJ.
• Citation: People v. Lashley, 83 A.D.3d 868, 920 N.Y.S.2d 421, 2011 N.Y. Slip Op. 3088 (N.Y. App. Div. 2011)
• Decision Date: 12 April 2011
• Parties: The PEOPLE, etc., appellant,v.Sharon LASHLEY, respondent.

83 A.D.3d 868

920 N.Y.S.2d 421

2011 N.Y. Slip Op. 03088

The PEOPLE, etc., appellant,

v.Sharon LASHLEY, respondent.

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

April 12, 2011.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle Fenn of counsel), for appellant.Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for respondent.JOSEPH COVELLO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and SANDRA L. SGROI, JJ.

Appeal by the People from a resentence of the Supreme Court, Queens County (Braun, J.), imposed April 28, 2010, pursuant to CPL 440.46, upon the defendant's conviction of criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree, upon her plea of guilty.

ORDERED that the resentence is affirmed.

The Supreme Court properly concluded that the defendant was eligible for resentencing pursuant to the Drug Law Reform Act of 2009, codified in CPL 440.46. CPL 440.46 expands the class of offenders who are eligible to seek resentencing to those convicted of class B felonies under the indeterminate sentencing scheme which existed before the first Drug Law Reform Act (L. 2004, ch. 738) became effective on January 13, 2005. In order to be eligible for resentencing under CPL 440.46, a defendant must have been convicted of a class B felony drug offense prior to January 13, 2005, and must be serving an indeterminate sentence with a maximum term of more than three years (CPL 440.46[1] ). However, 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 defined, inter alia, 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” (CPL 440.46[5][a] [emphasis added] ).

Contrary to the People's contention, the Supreme Court correctly measured the 10 year “look-back” period of CPL 440.46(5)(a) from the date of the defendant's resentencing motion, rather than from the date that she committed the present drug felonies ( see People v. Williams, 82 A.D.3d 796, 917 N.Y.S.2d 915 [2011];

[920 N.Y.S.2d 423 , 83 A.D.3d 869]

People v. Hill, 82 A.D.3d 77, 916 N.Y.S.2d 710 [2011]; People v. Sosa, 81 A.D.3d 464, 916 N.Y.S.2d 72). Since the phrase “preceding ten years,” as used in the statute, is not qualified by reference to the date of the commission of the present felony, its plain meaning is that the 10–year look-back period should be measured from the date of the resentencing application ( see People v. Hill, 82 A.D.3d 77, 916 N.Y.S.2d 710 [2011]; People v. Sosa, 81 A.D.3d 464, 916 N.Y.S.2d 72). “In contrast, where the Legislature has intended for a...