For The People: Robert T. Johnson, Bronx County District Attorney by: Nikki Harding, Esq. Assistant District Attorney
For Defendant: Robert S. Dean, Esq., Elizabeth Moser, Esq. Center for Appellate Litigation
Dominic R. Massaro, JSC
Defendant Ramell Lankford moves for resentencing pursuant to the Drug Law Reform Act of 2009  (see, CPL §440.46). Defendant seeks the Court's discretion to resentence him under Penal Law §60.04 and Penal Law §70.70 and reduce his sentence for a Class B felony narcotics conviction under the Rockefeller Drug Laws because the sentence received was excessive and he is eligible for resentencing under the Drug Law Reform Act of 2009 (hereinafter DLRA). Defendant claims eligibility for resentencing even though he was not incarcerated at the time of the within filing.
Mr. Lankford plead guilty to one count of Criminal Possession of a Controlled Substance in the Third Degree (see, Penal Law §220.39) for which he was sentenced to an indeterminate term of fifty four months to nine years incarceration. Subsequently, he was released from prison on April 19, 2011, after serving additional time for violating his conditions of release and parole supervision. 
While conceding prior case law permitted only a then incarcerated person to be eligible for resentencing under the DLRA, Defendant maintains that the Legislature ended that requirement by its March 31, 2011 budgetary merger of the Division of Parole with the Department of Correctional Services to form the "Department of Correction and Community Services" (DOCCS) (see, Laws of 2011, Ch. 62). Defendant claims the budgetary merger causes unincarcerated parolees to qualify for resentencing the same as imprisoned offenders since the unincarcerated were in custody of the newly merged DOCCS for resentencing purposes.
Stated another way, Defendant argues he is resentencing eligible because CPL §440.46 now provides that he is in "the custody of the department of corrections and community supervision" for resentencing purposes (see also, Executive Law §259-i[b], as amended). Chapter 62 of the Laws of 2011 negates any requirement a movant be incarcerated when seeking DLRA resentencing because of the statutory merger of the two agencies. Further, Defendant claims that People v. Paulin, 17 N.Y.3d 238 (2011) and People v. Santiago, 17 N.Y.3d 246 (2011), support , in dicta, his eligibility for resentencing even though he was not incarcerated at the time of this filing.
Because he is an unincarcerated person now qualifying for resentencing, Defendant maintains that he meets the other qualifications needed to apply for relief. Under prior case law, in order to apply for resentencing under CPLR §440.46, a person must (1) be in the custody of (former) Department of Correctional Services; (2) have been convicted of certain classes of felony offense defined in article 220 of the Penal Law; (3) have committed the offense prior to January 13, 2005; (4) be serving an indeterminate sentence with the maximum term of more than three years; and (5) not be serving a sentence on a conviction for or have a predicate felony conviction for an excluded offense (see generally, People v. Overton, 86 A.D.3d 4 [2nd Dept. 2011]). Because Defendant feels he meets these standards, he says substantial justice dictates that his applications be granted (see, CPL §440.46) (see generally, People v. Avila, 27 Misc.3d 974 [Sup. Ct. Kings 2010], aff'd, 84 A.D.3d 1259 [2nd Dept. 2011]). See also, People v. Milton, 86 A.D.3d 478 [1st Dept. 2011]).
Concerning substantial justice, Defendant stresses that he should be forgiven his failure to comply with prior drug rehabilitation since those failure(s) occurred when he was a youth. Defendant claims a stellar prison record although he has more than thirteen Tier II and Tier III citations during 2002 to 2006 alone. In summary, Defendant asserts that his history, including his good prison record and post-release progress, support resentencing under the DLRA.
District Attorney's Opposition
In opposition, the prosecutor claims that "substantial justice" requires denial of re-sentencing. In this regard, the prosecutor points out that Defendant's conduct does not justify resentencing, either in or out of prison. Significantly, the District Attorney stresses Defendant was involved in numerous Tier II and Tier III disciplinary infractions during his prison time, including charges he possessed a weapon in prison, namely thirteen Tier II and three Tier III violations.
More fundamentally, the People say Defendant is ineligible for DLRA resentencing because he was not incarcerated when the resentencing motion was filed. The prosecutor rejects any inference that People v. Paulin, supra., and People v. Santiago, supra., support Defendant's resentencing. In this regard, the DOCS merger with the Division of Parole is essentially fiscal in nature. Nothing in the 2011 budget bill indicates an intent to alter case law under the DLRA or otherwise affect the requirement that a defendant be incarcerated for relief. In fact, the prosecutor says, the budget bill keeps the Division of Parole as an independent agency. Likewise, the District Attorney rejects Petitioner's distinction between "custody" and "legal custody" (see generally, H ...