People v. Phillips

• Decision Date: 15 March 2011
• Citation: 82 A.D.3d 1011,919 N.Y.S.2d 88,2011 N.Y. Slip Op. 02038
• Parties: The PEOPLE, etc., respondent,v.James F. PHILLIPS, appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1011

919 N.Y.S.2d 88

2011 N.Y. Slip Op. 02038

The PEOPLE, etc., respondent,

v.James F. PHILLIPS, appellant.

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

March 15, 2011.

Mark Diamond, New York, N.Y., for appellant.Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R. Kass of counsel), for respondent.WILLIAM F. MASTRO, J.P., MARK C. DILLON, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.

Appeal by the defendant from an order of the County Court, Orange County (Frehill, J.), dated December 4, 2009, which denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on December 14, 2001.

ORDERED that the order is reversed, on the law, and the matter is remitted to the County Court, Orange County, for further proceedings and a new determination of the defendant's motion.

In the Drug Law Reform Act of 2009 (hereinafter 2009 DLRA), the Legislature provided that “[a]ny person in the custody of the department of correctional services convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to [January 13, 2005], who is serving an indeterminate sentence with a maximum term of more than three years, may ... apply to be resentenced” (CPL 440.46). Although the 2009 DLRA does not reference a person's parole status in determining eligibility, the County Court denied the defendant's motion to be resentenced solely on the basis that his status as a reincarcerated parole violator made him ineligible for such relief. We reverse.

While a person's status as a parole violator may be relevant in determining whether “substantial justice dictates that the application should be denied” on the merits (L. 2004, ch. 738, § 23; see CPL 440.46[3] ), nothing in CPL 440.46 supports a conclusion that such status renders a person ineligible to apply for resentencing in the first instance. We do not agree with the conclusion of the Appellate Division, First Department, that interpreting the statute to permit parole violators to apply for resentencing would be “ ‘contrary to the dictates of reason or leads to unreasonable results' ” ( People v. Pratts, 74 A.D.3d 536, 537, 904 N.Y.S.2d 380, lv granted 15 N.Y.3d 895, 912 N.Y.S.2d 583, 938 N.E.2d 1018, quoting McKinney's Cons. Laws of N.Y., Book 1, Statutes § 143, Comment, at 288). Although the Court of Appeals has stated that “the Legislature did not intend fresh crimes to trigger resentencing opportunities” ( People v. Mills, 11 N.Y.3d 527, 537, 872 N.Y.S.2d 705, 901 N.E.2d 196), the Court in that case was not concerned with the 2009 DLRA, but with the Drug Law Reform Act of 2005 (L. 2005, ch. 643, § 1; hereinafter the 2005 DLRA), which permits resentencing only if the defendant is not within three years of eligibility for release on parole. In Mills, the defendant Jose Then argued that, after being reincarcerated following his parole violation, he was more than three years away from parole eligibility ( People v. Mills, 11 N.Y.3d at 532, 872 N.Y.S.2d 705, 901 N.E.2d 196). The Court rejected that argument, since the defendant was continuing to serve his...