The opinion of the court was delivered by: Read, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
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.
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 ), 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 two- to six-year 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*fn1. 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 AD3d 230 [1st Dept], appeal dismissed 7 NY3d 838  [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.
County Court considered Mills' case to be "factually distinguishable" 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 AD2d 230; People v Parris, 35 AD3d 891 [2d Dept 2006], lv denied 6 NY3d 851 ; People v Thomas, 35 AD3d 895 [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."
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 AD3d 1108, 1108 [4th Dept 2008] [quotation marks and citations omitted]).
A. Judge of this Court subsequently granted Mills leave to appeal.
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 ), a class A-II felony. On June 30, 1999, Supreme Court sentenced Then to an indeterminate prison term of five years ...