People v. Sosa

• Decision Date: 08 February 2011
• Citation: 81 A.D.3d 464,916 N.Y.S.2d 72
• Parties: The PEOPLE of the State of New York, Appellant, v. Gilberto SOSA, Defendant-Respondent. The People of the State of New York, Appellant, v. Keith Brock, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 72

81 A.D.3d 464

The PEOPLE of the State of New York, Appellant,

v.Gilberto SOSA, Defendant-Respondent.

The People of the State of New York, Appellant,

v.Keith Brock, Defendant-Respondent.

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

Feb. 8, 2011.

Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for respondents.

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, MANZANET-DANIELS, ROMÁN, JJ.

Judgment of resentence, Supreme Court, New York County (Marcy L. Kahn, J.), rendered January 22, 2010, resentencing defendant Sosa pursuant to CPL 440.46 to an aggregate term of 7 years, and judgment of resentence, same court and Justice, rendered February 3, 2010, resentencing defendant Brock pursuant to CPL 440.46 to a term of 7 1/2 years, unanimously affirmed.

The resentencing court properly determined that both defendants were eligible for resentencing under the 2009 Drug Law Reform Act.These consolidated appeals involve the interpretation of the 10-year lookback provision of CPL 440.46(5)(a), which affects the eligibility of drug offenders with prior violent felony convictions for resentencing under the 2009 DRLA.We conclude that the lookback period runsback from the date of a defendant's resentencing application, and not from the date of the drug offense upon which the defendant seeks resentencing.In doing so, we agree with the reasoning set forth in the resentencing court's opinion(27 Misc.3d 638, 895 N.Y.S.2d 669[Sup. Ct. N.Y. County2010] ), as well as with numerous other trial court decisions reaching the same conclusion ( see e.g.People v. Brown,26 Misc.3d 1204[A], 2010 N.Y. Slip Op. 50000[U], 2010 WL 9928[Sup. Ct., N.Y. County2010] ).

Initially, we reject defendants' arguments that these appeals should be dismissed.The People are entitled to appeal from an allegedly unlawful sentence (CPL 450.20[4]; 450.30[2] ), and an appeal from a sentence includes an appeal from a resentence (CPL 450.30[3] ).We find nothing in any of the three versions of the DRLA that limits the People's preexisting right to appeal from a resentence.

Turning to the merits, we begin by examining the statutory language.CPL 440.46(5) states that its resentencing provisions "shall not apply to any person who is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense."As applicable here, an "exclusion offense" is a violent felony offense "for which the person was previously convicted within the preceding ten years, excluding any timeduring 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] ).

While the People seek to interpret that provision to mean the 10 years preceding the commission of the present felony, that interpretation strains the plain meaning of the statute.The provision uses the simple phrase "preceding ten years," without reference to the date of commission of the present felony.By its plain meaning, it would mean the 10 years preceding the resentencing application, since no other time period is set...