For the People Nikki Harding, Supervising Assistant District Attorney Bronx District Attorney's Office
For Defendant Susan Epstein, Esq. The Legal Aid Society, Criminal Appeals Bureau
MARGARET L. CLANCY, JUDGE
On November 28, 2005, defendant was convicted following a jury trial of five counts of Criminal Sale of a Controlled Substance in or Near School Grounds (PL §220.44), a Class B felony. On February 23, 2006, this court sentenced defendant to an indeterminate term of 10 to 20 years imprisonment. Defendant's conviction and sentence were affirmed. (People v Santana, 48 A.D.3d 286 [1st Dept 2008], appeal denied, 10 N.Y.3d 844).
Defendant now moves this court, pursuant to Criminal Procedure Law §440.46, Penal Law §§ 60.04 and 70.70, to resentence him on these 2006 convictions pursuant to the revised drug sentencing guidelines set forth in the Drug Law Reform Act of 2009 (L 2009, Ch. 56, §9). The People oppose on the grounds that defendant is not eligible for resentencing, arguing that a First Degree Robbery conviction from January 23, 2001, constitutes an "exclusion offense" within the meaning of CPL §440.46(5)(a).  In the alternative, the People argue that even if the court deems defendant to be eligible for resentencing, substantial justice requires that the application be denied. After reviewing the parties' submissions, and after considering the arguments concerning defendant's eligibility and the facts and circumstances relevant to the imposition of a new sentence, defendant's application is granted.
Defendant's Eligibility for Resentencing
Criminal Procedure Law §440.46 prohibits the resentencing of anyone who has a predicate felony conviction for an exclusion offense. An exclusion offense includes any conviction for a violent felony offense within the preceding ten years, "excluding any time for which the offender was incarcerated for any reason between the... commission of the previous felony and the... commission of the present felony...." (CPL §440.46[a]). The parties agree that the potential exclusion offense at issue in this application, Robbery in the First Degree (PL §160.15), is a violent felony offense and that this "look back" period begins from the date of the resentencing application. (People v Sosa, 18 N.Y.3d 436 ). The issue before the court is whether the "look back" period under CPL §440.46(5)(a) is measured back to the date of defendant's conviction of the violent felony offense, or to the date of the commission of the violent felony offense.
This issue appears to be one of first impression that has yet to be directly addressed by any appellate court. In this case, if the controlling date is the date of conviction, as the People maintain, then defendant's application is 818 days premature and he would not be eligible until April 14, 2014. If the controlling date is the date the robbery was committed, as defendant argues, then defendant became eligible for resentencing on October 25, 2011, 84 days before he filed the instant application. For the following reasons, the court finds that the controlling date is the date of the commission of the violent felony offense.
The relevant dates, as conceded by the parties, are as follows: the instant application was filed on January 17, 2012. The potential exclusion offense of Robbery in the First Degree was committed on August 5, 1998. Defendant pleaded guilty to that offense on January 23, 2001. He was sentenced as a juvenile offender to one to three years incarceration on January 11, 2002, almost a year later. The first drug offense for which defendant seeks resentencing was committed on June 11, 2003. Defendant was incarcerated for a total of 1, 177 days between the commission of the robbery on August 5, 1998, and the commission of his first drug offense on June 11, 2003.
The People argue that the controlling date for defendant's eligibility must be the date of conviction based on a plain reading of CPL §440.46(5)(a), which excludes anyone who has a predicate felony conviction for an exclusion offense, defined as a "crime for which the person was previously convicted within the preceding ten years...." (Emphasis added). The People also argue that using the commission date as the controlling date would result in an unintended windfall to any offender who committed a crime but managed to avoid capture and prosecution. The People further argue that if the legislature had intended the result proposed by defendant, it could have specifically excluded a "crime for which the person previously committed and was subsequently convicted" within the preceding ten years. In support of their position, the People cite to the Second Department decisions in People v Jefferson (85 A.D.3d 1058 [2d Dept 2011] [using date sentence was imposed], appeal denied, 18 N.Y.3d 859), and People v Prince, 92 A.D.3d 700 [2d Dept 2012] [measuring from date of application to date of conviction]).
In contrast, defendant argues that CPL §440.46(5)(a) does not refer to either the sentencing date or conviction date for the potential exclusion offense as the relevant event. By using the phrase "a crime for which the person was previously convicted, " wherein the only noun is the word "crime, " defendant argues that the language is simply a restrictive clause used to distinguish crimes that resulted in conviction from those that did not. Therefore, defendant continues, a plain reading of the statute requires that the court use the date of the crime's commission when making its calculation, thereby giving defendant the benefit of the time he spent at liberty between the commission of the potential exclusion offense and his conviction for that offense. Finally, defendant argues that any ambiguity in the statute should inure to defendant's benefit, and the court should choose a broader reading of the statute in light of its ameliorative purpose. In support of this position, defendant cites to People v Bostic (89 A.D.3d 1409 [4th Dept 2011), a case in which the Fourth Department reversed and remanded a resentencing application and specifically directed the trial court to "ascertain the date on which defendant's prior violent felony offense occurred [and]... the time period that defendant was incarcerated for that prior violent felony offense, which the court must exclude when calculating whether the prior violent felony offense took place within the 10-year period preceding the date on which the application for resentencing was filed." (Bostic, 89 A.D.3d at 1410).
In determining defendant's eligibility for resentencing, the court first acknowledges the ameliorative purpose of the Drug Law Reform Act of 2009 (L 2009, Ch. 56, §9), which amended the Penal Law to provide remedial relief to low-level, non-violent, class B felony drug offenders who received inordinately harsh sentences under the Rockefeller drug laws. (Sosa, 18 N.Y.3d at 438). It is precisely for this reason that CPL §440.46(5)(a) differs significantly from the predicate felony sentencing scheme set forth in PL §70.04. Pursuant to PL §70.04, a prior conviction is a predicate violent felony conviction where the sentence for the prior felony was imposed "not more than ten years before commission of the [present felony]." (PL §70.04[b][iv]). Therefore, unlike CPL §440.46, PL §70.04 specifically requires the court to use the date that the present felony was committed as well as the date that the sentence for the prior felony was imposed, to determine whether the prior felony was within ten years of the commission of the present felony. In contrast, CPL §440.46(5)(a) requires the court to use the application date, but does not include any reference to the sentencing date in calculating the ten year period. Moreover, in calculating this ten year period under PL §70.04, "any period of time during which [defendant] was incarcerated for any reason between the [commission of the previous felony and the present felony] shall be excluded, " and the ten year period will be extended by the time equal to those periods of incarceration. (PL §70.04[b][v]). This portion of the statute tolls the ten year period and prevents any defendant from benefitting from the period in which he might have been crime free simply because he was incarcerated. CPL §440.46(5)(a) contains a similar tolling provision that excludes any time defendant was incarcerated between the commission of the offenses. But what is most important and highlights the inclusive and ameliorative nature of CPL §440.46, is that the entire period of incarceration following defendant's commission of the felony drug offense for which resentencing is sought is included in the ten year period that defendant must reach to become eligible. (Sosa, 18 N.Y.3d 436).
The court also notes that the appellate authority relied on by both the People and defendant fails to provide any meaningful guidance on this issue. The case law cited by the People is inconsistent in that the Second Department has used both the conviction and sentencing dates of a predicate felony to determine whether it constitutes an exclusion offense within the meaning of the statute. And People v Bostic, relied on by defendant, in no way stands for the proposition that the date of commission is the controlling date. In fact, the Bostic Court did not address the issue at hand and only referred to what the statute requires any court to do with respect to a resentencing application — to determine the dates of the commission of the predicate felony as well as the drug offense so that the court may calculate any period of incarceration between those two dates that is to be excluded from the ten year "look back" period. (89 A.D.3d at 1410).
Even People v Sosa (81 A.D.3d 464 [1st Dept 2011]), in which the First Department affirmed the lower court's eligibility determinations concerning two of three defendants, is by no means conclusive. The trial court in Sosa determined that two of three defendants were eligible for resentencing, and that the third defendant was not, based on the date of their applications and the date of their convictions for their respective potential exclusion offenses. (See People v Danton, 27 Misc.3d 638 [Sup Ct NY Co 2010]). Although the First Department subsequently held that the lower court "properly determined that both defendants  were eligible for resentencing under the 2009 Drug Law Reform Act" (81 A.D.3d at 464), the issue before the Court was whether the ten year "look back" period was to be measured from the date of the application as opposed to the date of the commission of the drug offense for which resentencing was sought. At no point did the First Department, or the Court of Appeals in affirming the courts below, decide that the controlling events were the application dates and the dates of conviction. This issue ...