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Court Listens to Motion for Resentencing, Affirms NY Supreme Court Decision


A New York Criminal Lawyer said in this criminal case, the underlying drug crime involved a large quantity of cocaine possession. A Bronx Drug Crime Lawyer said that, defendant was indicted for first-degree criminal possession of a controlled substance, but was permitted to plead guilty to third-degree possession and released on bail pending sentencing. Defendant absconded, remained outside this jurisdiction for many years, and was convicted of a new drug felony, all of which was in violation of his plea agreement. In addition, a Bronx Criminal Lawyer said that, defendant had absconded while awaiting sentencing on his conviction in Bronx County of criminal possession of a weapon in the third degree. Bronx Drug Crime Lawyer said that defendant filed a motion for re-sentencing.

A New York Criminal Lawyer said the issue in this case is whether defendant is entitled to his motion for re-sentencing.

A Queens Criminal lawyer said the Court in deciding the case said that the 2009 DLRA requires that the Defendant be in the custody of the department of correctional services” to be eligible for resentencing. The People argue that because the Defendant is in custody solely by virtue of his own actions in violating parole, he should not benefit by receiving a resentence. In support of this argument, the People rely on 2008 Supreme Court decision to allow resentencing, the Court held, would create “illogical, if not perverse results”. They noted that if defendant had not committed a new crime he would be ineligible to have his lifetime maximum sentence modified on resentencing, since he would not have been in correctional custody. The Court reasoned that “surely, the Legislature did not intend fresh crimes to trigger resentencing opportunities”. The Court therefore held that “once a defendant has been released to parole supervision for a Class A-II drug crime conviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction”. Further, the 2009 DLRA allows certain convicted Class B felony drug crime offenders serving indeterminate sentences imposed prior to January 13, 2005 to be resentenced to new determinate terms under the new determinate sentencing ranges created by the statute. The statute first requires a court to determine whether a defendant is eligible for resentencing. In this case, the parties disagree about whether the Defendant is statutorily eligible for resentencing in one respect.

The court considered the appropriate factors and properly exercised its discretion in concluding that substantial justice dictated a denial of resentencing. Under the circumstances, evidence of defendant’s rehabilitation while incarcerated was outweighed by the factors militating against resentencing. The court properly exercised its discretion in determining that substantial justice dictated denial of defendant’s motion, given defendant’s criminal history, disciplinary record while incarcerated and failure to successfully complete drug crime treatment for drug abuse.

The Court said that, defendant also claims, and the People agree, that a DNA databank fee should not have been imposed at the time of the underlying conviction because the drug crime was committed prior to the effective date of the legislation providing for the imposition of the fee. However, defendant neither appealed from the underlying judgment nor moved to set aside the sentence under CPL 440.20. Defendant has only appealed from an order denying resentencing under the Drug Law Reform Act (L 2009, ch 56). Defendant’s resentencing motion raised the fee issue, but nothing in the Act provides for relief relating to an underlying judgment, except with respect to the prison term. Accordingly, the fee issue is not properly before us.

Accordingly, in view of the foregoing, the Court held that the order of the Supreme Court, Bronx County, entered on or about March 22, 2010, which denied defendant’s CPL 440.46 motion for resentencing, unanimously affirmed.

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