People v. Mills

• Decision Date: 17 December 2008
• Docket Number: No. 207.,207.
• Citation: 11 N.Y.3d 527,901 N.E.2d 196
• Parties: The PEOPLE of the State of New York, Respondent, v. Donald MILLS, Appellant. The People of the State of New York, Respondent, v. Jose Then, Appellant.
• Court: New York Court of Appeals Court of Appeals

901 N.E.2d 196

11 N.Y.3d 527

The PEOPLE of the State of New York, Respondent, v. Donald MILLS, Appellant.

The People of the State of New York, Respondent, v. Jose Then, Appellant.

No. 207.

Court of Appeals of New York.

December 17, 2008.

Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for appellant in the first above-entitled action.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell and Victoria M. White of counsel), for respondent in the first above-entitled action.

Center for Appellate Litigation, New York City (Claudia S. Trupp and Robert S. Dean of counsel), for appellant in the second above-entitled action.

Robert M. Morgenthau, District Attorney, New York City (Grace Vee and Christopher P Marinelli of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

READ, J.

These appeals call upon us to interpret the Drug Law Reform Act of 2005 (see L. 2005, ch. 643 [the 2005 DLRA]), which allows certain nonviolent A-II felons sentenced to indeterminate terms under the old Rockefeller Drug Laws to seek resentencing to determinate terms under the provisions of the Rockefeller Drug Law Reform Act of 2004 (see L. 2004, ch. 738). For the reasons that follow, we conclude that the 2005 DLRA does not apply to defendants Donald Mills and Jose Then. We therefore affirm the orders of the Appellate Division in both cases.

I.

A. Mills

On April 20, 1995, Mills pleaded guilty in County Court to criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1]), a class A-II felony, in exchange for the promised sentence of an indeterminate term of three years to life in prison. This sentence was imposed on July 26, 1995, to run concurrently with a 2 to 6 years' sentence resulting from Mills' conviction, in a separate proceeding, of criminal possession of a weapon in the third degree (Penal Law § 265.02), a class D felony.

Citing the 2005 DLRA, Mills moved in County Court on October 15, 2005 for resentencing on his 1995 drug conviction. By then, he had been denied parole by the Parole Board four times—in 1998, 2000, 2002, and 2004.¹ The judge initially denied Mills' motion, but later granted him leave to renew. After he was denied parole in April 2006, Mills again applied for resentencing in May 2006. In a decision and order dated June 22, 2006, County Court granted Mills' request for relief by resentencing him to an eight-year determinate sentence and a five-year period of postrelease supervision.

The People moved pursuant to CPL 440.40(1) to set aside Mills' resentencing in light of the Appellate Division's decision in People v. Bautista, 26 A.D.3d 230, 809 N.Y.S.2d 62 [1st Dept.2006], appeal dismissed 7 N.Y.3d 838, 823 N.Y.S.2d 754, 857 N.E.2d 49 [2006] [dismissing appeal on jurisdictional grounds after leave had been granted]. In a decision and order dated January 16, 2007, County Court granted the People's motion and vacated Mills' determinate sentence, ordering him to appear for resentencing to his original sentence (14 Misc.3d 1220[A], 2007 N.Y. Slip Op. 50100(U), 2007 WL 173840).

County Court considered Mills' case to be "factually distinguishable" (14 Misc.3d 1220(A), 2007 N.Y. Slip Op. 50100[U] at *3, 2007 WL 173840) from Appellate Division precedents holding that the 2005 DLRA did not cover A-II felony drug offenders who were parole-eligible within three years of their resentencing applications (see Bautista, 26 A.D.3d 230, 809 N.Y.S.2d 62 [2006]; People v. Parris, 35 A.D.3d 891, 828 N.Y.S.2d 429 [2d Dept 2006], lv. denied 6 N.Y.3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980 [2006]; People v. Thomas, 35 A.D.3d 895, 826 N.Y.S.2d 456 [3d Dept. 2006]) because—unlike the defendants in those cases—Mills had served his minimum sentence. County Court nonetheless concluded that, by virtue of the language of the 2005 DLRA and Correction Law § 851(2), "the benefits of [2005 DLRA] relief" were unavailable to "inmates who [had] been denied parole and [were] within two years of their next scheduled appearance before the Parole Board" because the 2005 DLRA "[did] not apply to inmates who [were] three or fewer years from eligibility for parole or appearance before the Parole Board" (14 Misc.3d 1220(A), 2007 N.Y. Slip Op. 50100[U] at *4, 2007 WL 173840).

The Appellate Division unanimously affirmed in a memorandum, stating that

"County Court properly vacated the new sentence and reimposed the original sentence because defendant was eligible for parole within three years of the time of his application and thus was not eligible to be resentenced. At the time of his application in May 2006, defendant had been denied parole release and was scheduled to appear before the parole board again in April 2008" (People v. Mills, 48 A.D.3d 1108, 849 N.Y.S.2d 855 [4th Dept.2008] [internal quotation marks and citations omitted]).

A Judge of this Court subsequently granted Mills leave to appeal (10 N.Y.3d 867, 860 N.Y.S.2d 493, 890 N.E.2d 256 [2008]).

B. Then

On June 16, 1999, Then pleaded guilty in Supreme Court to criminal sale of a controlled substance in the second degree (Penal Law § 220.41[1]), a class A-II felony. On June 30, 1999, Supreme Court sentenced Then to an indeterminate prison term of five years to life; on October 8, 2002, he was released to parole supervision.

In December 2002—barely two months later—Then was again arrested and indicted on drug charges. On July 8, 2003, he pleaded guilty in Supreme Court to criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1]), another class A-II felony, in full satisfaction of the indictment; on July 29, 2003, Supreme Court sentenced him as a second felony offender to an indeterminate prison term of six years to life. On August 8, 2003, Then's parole on the 1999 conviction was revoked based on the July conviction, and a time assessment of five months and 26 days was imposed.²

Citing the 2005 DLRA, on December 12, 2005 Then moved in Supreme Court for resentencing on his 1999 conviction; he requested a determinate term of three years. He subsequently also applied for resentencing on his 2003 conviction, this time asking Supreme Court to resentence him to a determinate term of six years.

Then argued that he was entitled to consideration for resentencing on the 1999 and 2003 convictions because he was in the Department of Correctional Services' (DOCS) custody, had been convicted of two class A-II drug felonies, and was more than three years away from his parole eligibility date. The People did not contest Then's eligibility for resentencing for the 2003 conviction; however, they argued that he did not qualify for resentencing for the 1999 conviction because he had already been released on parole in 2002 for that conviction.

In a decision and order dated April 10, 2006, Supreme Court ruled in Then's favor. Supreme Court concluded that while various "lower court decisions ... have concerned issues similar to that currently before this court" (citations omitted), Then's case was "[u]nique" because he was "currently in the custody of the Department of Corrections on two separate A-II felony convictions, albeit, his incarceration on the [1999 conviction was the] result of a parole violation resulting from his second A-II conviction"; and that "the purposes underlying the drug reform act call[ed] for eligibility in [Then's] case." On April 24, 2006, Supreme Court resentenced Then to a determinate term of five years' imprisonment and a five-year period of postrelease supervision for the 1999 conviction, to run concurrently with a determinate term of six years' imprisonment and a five-year period of postrelease supervision for the 2003 conviction.

The People appealed, and the Appellate Division unanimously reversed and reinstated Then's original sentence for the 1999 conviction. The court reasoned that Then's

"release to parole in 2002 precluded resentencing on his 1999 conviction. Under the 2005 DLRA, a defendant applying for resentencing must be more than three years away from parole eligibility. When defendant applied for resentencing in 2005, he did not qualify, because he had already been paroled" (People v. Then, 47 A.D.3d 404, 405, 849 N.Y.S.2d 234 [1st Dept.2008] [citations omitted]).

A Judge of this Court subsequently granted Then leave to appeal (10 N.Y.3d 845, 859 N.Y.S.2d 403, 889 N.E.2d 90 [2008]).

II.

The 2005 DLRA provides that

"any person in the custody of the department of correctional services convicted of a class A-II felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and who was sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than three years pursuant to provisions of the law in effect prior to the effective date of this section, and who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law, and who meets the eligibility requirements of paragraph (d) of subdivision 1 of section 803 of the correction law[³] ... [may apply for resentencing to a determinate term]" (L. 2005, ch. 643, § 1 [emphasis added]).

Correction Law § 851(2), in turn, defines an "eligible inmate" as

"a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within two years .... In the case of a person serving an indeterminate sentence of imprisonment imposed pursuant to the penal law in effect after September one, nineteen hundred sixty-seven, for the purposes of this article parole eligibility shall be upon the expiration of the minimum period of imprisonment fixed by the court or where the court has not fixed any period, after service of the minimum period fixed by the state board of parole. If an inmate is denied release on parole, such inmate shall not be deemed an eligible inmate until...