People v. Santiago

• Decision Date: 28 June 2011
• Citation: 17 N.Y.3d 246,2011 N.Y. Slip Op. 05545,928 N.Y.S.2d 665,952 N.E.2d 481
• Parties: The PEOPLE of the State of New York, Respondent,v.Nydia SANTIAGO, Appellant.
• Court: New York Court of Appeals Court of Appeals

17 N.Y.3d 246

952 N.E.2d 481

928 N.Y.S.2d 665

2011 N.Y. Slip Op. 05545

The PEOPLE of the State of New York, Respondent,

v.Nydia SANTIAGO, Appellant.

Court of Appeals of New York.

June 28, 2011.

Center for Appellate Litigation, New York City (Barbara Zolot and Robert S. Dean, of counsel), for appellant.Robert T. Johnson, District Attorney, Bronx (Marc A. Sherman, Joseph N. Ferdenzi and Rafael Curbelo, of counsel), for respondent.

OPINION OF THE COURT

SMITH, J.

At least until a recent amendment, the 2009 Drug Law Reform Act (DLRA) allowed only incarcerated offenders, not offenders free on parole, to apply for resentencing ( see People v. Paulin, 17 N.Y.3d 238 [2011] [decided today] ). We hold in this case that a prisoner who applied before being paroled is not barred from obtaining resentencing after her release.

Defendant was sentenced to 4 1/2 to 9 years in prison for a 2003 drug transaction. On November 25, 2009, she filed an application for resentencing under the 2009 DLRA. On December 3, 2009, before the application had been ruled on, she was released on parole. Supreme Court later denied her application, and the Appellate Division affirmed, saying that because defendant “is not in custody, she is not presently eligible for resentencing” ( People v. Santiago, 77 A.D.3d 407, 907 N.Y.S.2d 867 [1st Dept.2010] ). A Judge of this Court granted leave to appeal, and we now reverse.

This case, like Paulin, is controlled by CPL 440.46(1) (codifying, in part, the 2009 DLRA), which as originally enacted said, in relevant part:

“Any 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 thirteenth, two thousand five, who is serving an in-determinate sentence with a maximum term of more than three years, may ... apply to be resentenced....” ^*

It is undisputed that defendant was entitled to “apply” for resentencing when she filed her application, because at that time she was still in custody. The People argue, however, that the statute was not intended to benefit those who have already been released when their applications are decided. The argument is not an unreasonable one. As we point out in Paulin, the apparent reason why the Legislature limited the statute's benefit to incarcerated offenders is that they suffer the greatest hardship from severe sentences ( see 17 N.Y.3d at 244). It is also true, as the People point out, that another avenue of relief is open to parolees. Executive Law § 259–j authorizes the Division of Parole to grant termination of sentence under certain circumstances; subdivisions (3) and (3–a) of that section specifically permit, and in some cases require, the termination of sentences of paroled felony drug offenders.

On the other hand, the 2009 DLRA says only that an offender must be in custody when he or she applies for resentencing; it does not require that custody continue until the application is decided. And to read that requirement into the statute would have significant disadvantages: it could produce gamesmanship, and unnecessarily arbitrary results, by leading the parties, and perhaps some judges, to try to accelerate or slow progress toward a decision in the expectation that parole release will cause the application to fail. We conclude that it is...