[*1]
| People v Schulze |
| 2006 NY Slip Op 50386(U) [11 Misc 3d 1064(A)] |
| Decided on March 16, 2006 |
| Nassau County Ct |
| Calabrese, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Nassau County Ct
PEOPLE OF THE STATE OF NEW YORK
against
ROBERT SCHULZE, Defendant.
|
947N/00
Hon. Kathleen M. Rice
District Attorney Nassau County
Mineola, New York
By: Kylie Higgins, Esq.
Louis J. Milone, Esq.
Attorney for Defendant
119 N. Park Avenue, Suite 300
Rockville Centre, New York 11570
Joseph C. Calabrese, J.
Defendant was variously charged in Indictment No. 947N/00 with nineteen counts of criminal sale of a controlled substance in the first degree; criminal sale of a controlled substance in the second degree; criminal sale of a controlled substance in the third degree; criminal possession of a controlled substance in the first degree; criminal possession of a controlled substance in the third degree; criminal possession of a controlled substance in the seventh degree; criminal possession of a weapon in the third degree; criminal possession of a weapon in the fourth degree and criminally using drug paraphernalia in the second degree.
On December 5, 2000, Defendant pleaded guilty, as a second felony offender, to one count of criminal sale of a controlled substance in the second degree, a class A-II felony, in full satisfaction of all charges. On January 23, 2001, he was sentenced to an indeterminate term of imprisonment of 10 years to life (Cotter, J.)
He now moves for resentencing under the 2005 extension of the Drug Law Reform Act (L. 2005, c. 643, eff. 10/29/05) ("DLRA-2") to a determinate term of imprisonment. The statute would mandate, in the case herein, if resentence were to be granted, a determinate sentence of [*2]between 6 and 14 years and 5 years post-release supervision.
DLRA-2 provides:
Notwithstanding any contrary provision of law, any person in the custody of the department of correctional services convicted of a class A-II felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and who was sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than three years pursuant to provisions of the law in effect prior to the effective date of this section, and who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law, and who meets the eligibility requirements of paragraph (d) of subdivision 1 of section 803 of the correction law may, upon notice to the appropriate district attorney, apply to be resentenced in accordance with section 70.71 of the penal law in the court which imposed the original sentence.
In relevant part, Correction Law § 851(2) defines "eligible inmate" as a "person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within two years...."
Thus, when DLRA-2 and Correction Law § 851(2) are read in pari materia, it is clear that the first test for an inmate's eligibility for re-sentencing is that he must be more than three years away from being eligible to release on parole (People v. Bautista, __AD3d __, 809 NYS2d 62.)
The People concede that Defendant meets this criteria.
The second test is whether the inmate is eligible to earn a merit time allowance pursuant to Correction Law § 803(1)(d.) The section comprises several separate parts.
First, except for individuals convicted of certain enumerated crimes not applicable herein (Correction Law § 803(1)(d)(ii,) every person under the custody of the department of correctional services serving an indeterminate sentence having a minimum period of one year or more "may earn a merit time allowance" (Correction Law § 803(1)(d)(i).)
Second, such merit time may be granted when the inmate successfully participates in and completes the work and treatment program pursuant to Correction Law § 805 and obtains (1) a general equivalency diploma, (2) an alcohol and substance abuse treatment certificate, (3) a vocational trade certificate or (4) performs at least 400 hours of service as a part of a community work crew (Correction Law § 803(1)(d)(iv).)
Third, such allowance shall be withheld for any serious disciplinary infraction (Correction Law § 803(1)(d)(iv).) As relevant herein, a serious disciplinary infraction is one which results in "disciplinary sanctions which total 60 or more days of keeplock time" (7 NYCRR § 208.2(b)(3).)
[*3]The People contend that Defendant does not meet this second test because merit time earned by him must be withheld as the result of a Tier 2 disciplinary infraction for which he received a total of 30 days keeplock time (i.e., the denial of certain inmate privileges) and a separate Tier 3 infraction for which he received 60 days of keeplock time - a cumulative total of disciplinary time in excess of 60 days, i.e., a "serious disciplinary infraction."
Defendant contends that even if a merit time allowance will be withheld it does not preclude his eligibility to earn such, seeking to distinguish between the eligibility to earn and the ultimate grant thereof.
Insightful on this issue is the New York State Senate "Introducer's Memorandum in Support" of DLRA-2.
The law is intended to apply to those class A-II felony controlled substance offenders who are eligible to earn merit time, but is not intended to require that they have earned the merit time allowance before they may apply for resentencing pursuant to the provisions of this bill. Thus, anyone who is statutorily eligible to earn merit time and who is more than 12 months from being eligible pursuant to statutory eligibility criteria for temporary release may apply for resentencing of their class A-II felony controlled substance offense. (Emphasis added.)
Likewise is the New York State Assembly "Memorandum in Support" of DLRA-2.
In 2004, New York enacted the most profound changes to its drug laws in over thirty years. The Legislature recognizes that reform is an ongoing process that only began with those sentencing reforms. The so-called "Rockefeller Drug Laws" were noted for their inordinately harsh punishment of non-violent drug offenders which included mandatory indeterminate terms of imprisonment with life maximum terms for first time drug offenders. Many of those so sentenced under that harsh regimen, those convicted of class A-I felonies, were given an opportunity to take advantage of the new, more humane and realistic sentences provided by the sentencing reform bill enacted in 2004. This bill provides that same opportunity to those who are serving sentences for convictions of class A-II article 220 felonies.
(Accord, 10/27/05 Memorandum of Michael Colodner, Esq. Counsel to the Unified Court System, p. 4)
In People v. Quinones, __M3d __, 2005 Slip Op 25559, the Court held that the clear intent of the Legislature is that an inmate's eligibility for merit time is separate and apart from its actually being granted or withheld (see, Correction Law § 803(4) vesting discretion in the Commissioner of DOCS to grant, withhold, forfeit, concede or restore merit time for eligible inmates) and that the only test Defendant must meet is eligibility pursuant to Correction Law § [*4]803(1)(d)(i)(ii).)
This Court likewise holds that an inmate meets the second eligibility requirement of DLRA-2 if he is serving an indeterminate sentence of one year or more (Correction Law § 803(1)(d)(i)) and it is not a sentence for an excluded crime (Id. § 803(1)(d)(ii).) I find that Defendant is an inmate that may earn merit time. To hold otherwise would result in judicial legislation ignoring the Legislature's clear intent in enacting and the Governor's intent in singing DLRA-2 into law, thereby extending resentencing to class A-II drug offenders.
Accordingly, Defendant is determined to be found an inmate eligible for resentencing pursuant to DLRA-2.
A hearing shall be held on April 6, 2006 as a condition precedent to any possible resentence. At that time the Court will consider any facts or circumstances relevant to the imposition of a new sentence as submitted by Defendant or the People and may, in addition, consider the institutional record of confinement of such person if such is made part of the hearing. The Court will not order a new pre-sentence investigation and report or entertain any matter challenging the underlying basis of the subject conviction.
Upon completion of the hearing and a review of the submissions, findings of fact will be made and the Court will either: (1) "specify and inform" Defendant of the determinate sentence it intends to impose in accordance with PL § 70.71 and enter an order to that effect or (2) enter an order denying resentence if the Court finds that substantial justice dictates such denial. (Ch. 643 § 1, Laws of 2005.)
If the Court enters a "specify and inform" order it will vacate the originally imposed sentence and impose the specified determinate sentence unless Defendant withdraws his application or appeals from the "specify and inform" order (Id.)
SO ORDERED.
E N T E R
Dated: March 16, 2006
JOSEPH C. CALABRESE, JCC