Bridget B. Brennan, Special Narcotics Prosecutor for the City of New York (Atalanta C. Mihas, of counsel) for the People;
Office of the Appellate Defender (Avi Springer, of counsel) for the Respondent.
Daniel P. Conviser, J.
The Defendant moves to be resentenced pursuant to the Drug Law Reform Act of 2009 (the "2009 DLRA", Chapter 56 of the laws of 2009, codified at CPL 440.46). That motion is opposed by the People. For the reasons stated below, although the Defendant is eligible for resentencing, the Court holds that substantial justice dictates the denial of Defendant's motion.
STATEMENT OF FACTS
The Defendant was arrested for the instant offense on October 16, 1994. He was convicted after a jury trial in that case of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree and on January 27, 1997 sentenced as a Second Felony Offender to concurrent indeterminate prison sentences of 5 ½ to 11 years. He was convicted in that case of selling $20 of cocaine to an undercover police officer.
On May 19, 1999, the Defendant was released on parole. Approximately 6 months later he was arrested for another drug sale charge. He pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree, a class C felony, on August 4th, 2000. He then failed to appear in court for sentencing and a bench warrant for his appearance was issued on February 28, 2001. He was returned on that warrant a little more than two years later on May 2, 2003. He was sentenced upon that conviction on June 12, 2003 to an indeterminate sentence of imprisonment with a term of 3 ½ to 7 years.
The Defendant subsequently moved pro se under the 2009 DLRA to be resentenced for this Class C felony conviction. That motion was denied in Westchester County Supreme Court, inter alia, because the 2009 DLRA did not authorize the resentencing of Class C felony drug offenders. People v. Nieves (Unreported Decision 00-826S, Westchester County Supreme Court, December 8, 2000, Molea, J.). The Defendant then moved before this Court for resentencing under the same statute. In that application, rather than moving to be resentenced for the Class C felony sentence he was serving, the Defendant moved for resentencing with respect to the 5 ½ to 11 year indeterminate sentence which was imposed on him for his 1997 Class B felony drug conviction.
This Court held that the Defendant was ineligible for resentencing on that crime. The Court noted that this sentence had expired in 2008, prior to the enactment of the 2009 DLRA and that the Defendant was effectively moving, again, to reform the Class C felony sentence he was currently serving, rather than his formerly imposed Class B felony sentence. People v. Nieves, 27 Misc.3d 585');">27 Misc.3d 585 (New York County Supreme Court 2010). This Court also denied Defendant's motion to re-argue that decision. People v. Nieves, 27 Misc.3d 1202');">27 Misc.3d 1202(A) (New York County Supreme Court 2010). This Court's original decision, however, was then reversed in a brief decision by the First Department. People v. Nieves, 94 A.D.3d 671');">94 A.D.3d 671 (1st Dept 2012) (the "First Department's Decision"). The substantive portion of that Decision reads as follows:
As the People concede, defendant is eligible to be considered for resentencing because he is deemed to still be serving a sentence for a class B drug felony. Defendant was convicted in 1996 of class B drug felonies and sentenced to concurrent terms of 5 ½ to 11 years. After being released on parole, he was convicted of another felony in 2003 and received a consecutive term of 3 ½ to 7 years. Consecutive terms are treated a single, aggregate term (see Penal Law § 70.30  [b]; People v. Buss, 11 N.Y.3d 553 [parallel citations omitted]. Therefore, defendant is deemed to be serving a sentence of 9 to 18 years, for a conviction that qualifies for possible resentencing. 94 A.D.3d at 671-672. 
In its decisions denying the Defendant's resentencing motions, this Court held that the Defendant was ineligible for resentencing but did not reach the question of whether, assuming the Defendant was so eligible, that motion should be granted. The Defendant thus moves now for resentencing pursuant to the First Department's Decision. The instant motion is the fifth one which has been initiated in an attempt to reduce Mr. Nieves's sentence. According to the First Department's Decision, the sentence at issue now is not only the Class B felony sentence imposed in 1997. It is the aggregate 9 to 18 year sentence for both the 1997 crime and the 2000 Class C ineligible crime. That issue is addressed in more detail infra.
In addition to the charges outlined supra, the Defendant was convicted of Criminal Possession of Controlled Substance in the Fifth Degree in 1990 and Attempted Criminal Sale of a Controlled Substance in Third Degree in 1991. Mr. Nieves also has seven misdemeanor convictions and an outstanding misdemeanor warrant. His misdemeanor convictions include several for Criminal Possession of a Controlled Substance as well as Possession of Burglar's Tools and Criminal Possession of Stolen Property.
In the instant motion, Defendant's counsel details the Defendant's significant positive achievements while incarcerated:
He [Mr. Nieves] has participated in numerous programs in an attempt to address his substance abuse problem, including Residential Substance Abuse Treatment ("RSAT"), ASAT, the Willard Drug Treatment Program, and the Relapse Prevention Program. (citations omitted). He has also participated in vocational training programs and compiled an impressive work history, during which he has attained the title of group leader in numerous shops and repeatedly earned clearance to work outside of his facility. Moreover, his institutional file indicates that during the many ...