This is a motion by the People pursuant to CPL Section 440.40(1) seeking to set aside the defendant's re-sentencing. On June 22, 2006 the defendant was re-sentenced to an eight year determinate sentence with a five year post-release supervision period, pursuant to the 2005 Drug Law Reform Act (DLRA) (L 2005 Chapter 643).

The People are now requesting that this Court set aside the defendant's re-sentencing upon the grounds that it was invalid as a matter of law, based upon the ruling in People v. Bautista, 26 AD2d 230 (First Dept., 2006), appeal dismissed, 7 NY3d 838 (2006).

The Court in Bautista held that while Chapter 643 and Corrections Law 851(2), when read together, are not models of clarity, that the 2005 Drug Law Reform Act provides that a defendant who was convicted of a Class A-II felony drug offense and sentenced to an indeterminate sentence under prior law to an indeterminate term of imprisonment with a minimum of not less than three years, and who is more than 12 months from being an "eligible inmate", as that term is defined in Corrections Law Section 850(2), may apply to be re-sentenced

in accordance with Penal Law Section 70.71.The Court held in Bautista that an "eligible inmate" is "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" (Corrections Law Section 851(2)). When read together, these provisions mandate that, in order to qualify for [*2]re-sentencing under the 2005 DLRA, a Class A-II drug offender must not be eligible for parole within three years.

The People further contend that the Court in People v. Modesto Perez, NYLJ, February 3, 2006 (New York County), a trial level case, has reversed itself in an unpublished decision on March 10, 2006. The Court in People v. Perez, in its March 10, 2006 decision, stated that on May 26, 2005 the Court sentenced the defendant to a prison term of three years to life as a result of the defendant's guilty plea to Criminal Possession of a Controlled Substance in the Second Degree, and that the defendant on November 22, 2005 moved pro se for re-sentencing pursuant to Chapter 643 of the laws of 2005. On January 24, 2006 that Court rejected the People's argument that defendant was outside the scope of that law because he belonged to that class of inmates who become parole eligible in more than one but less than three years, and assigned counsel on defendant's behalf.

However, the Perez Court, in citing People v. Bautista (March 2, 2006) has subsequently stated that:

"The First Department subsequently held that Chapter 643 relief is limited to those inmates who become parole eligible more than three years from the date of their re-sentencing applications. Because defendant becomes parole eligible only slightly more than two years from the date of his application, I am constrained by Bautista to deny the application. Accordingly, defendant's motion for re-sentencing is denied."

Clearly the Court in Perez reversed itself because a trial-level judge in the First Department was required to follow the Appellate Division, First Department's decision in Bautista.

In another First Department trial-level case not cited by the People, People v. Santos, 2006 NY Slip Ops 206 3V; 13 Misc 3d 1230A; 2006 NY Misc. Lexis 3112, that Court also stated that:

"This Court is constrained to follow Bautista, and therefore holds that the defendant is

ineligible to be re-sentenced (See People v. Turner, 5 NY3d 476, 482 (2005);

Mountain View Coach Lines v. Storms, 102 AD2d 663, 664-65 — (2d Dept. 1984). In

the absence of Court of Appeals precedent, Bautista is binding on all trial-level courts. (Turner, 5 NY3d at 482). The Court of Appeals recently determined that Chap. 643 did not provide for appeal by permission to the Court of Appeals, and therefore

dismissed the appeal in Bautista 2006 NY Lexis; 2006 NY Slip Op 6508; 2006 WL 2689700. While the First Department decision in Bautista is entitled to respect from

other appellate courts, Turner, 5 NY3d at 482, the Second Department is of course free to

reach another conclusion."

The People contend, therefore, that as a result of the Court in Perez having reversed itself, and since this Court cited Perez in support of this Court's decision to re-sentence the defendant, Donald Mills, that this Court is required to set aside the defendant's re-sentencing based on the First Department's holding in Bautista. The Court in Perez, as a trial-level court within the First Department, must follow the determination of the Appellate Division, and once the Perez Court became aware of the Appellate Division, First Department's decision in Bautista, the Perez Court was required to vacate and set aside its decision. [*3]

While the First Department decision in Bautista is entitled to great respect from other courts, absent Court of Appeals precedent, this Court and the Appellate Division, Fourth Department are free to reach the same or another conclusion.

The Court would note, however, that in a decision published subsequent to the oral arguments of this motion, the Appellate Division, Third Department, on December 7, 2006, in

People v. Thomas, 2006 NY Slip Op 9060; 2006 NY App. Div. Lexis 14461, reversed a trial-level re-sentence pursuant to the 2005 Drug Law Reform Act (L 2005, Chapter 643), and in so doing cited the holding in People v. Bautista, 26 AD3d 230, finding that when the Drug Law Reform Act and Correction Law 851(2) are read together, these provisions mandate that in order to qualify for re-sentencing under the 2005 DLRA a Class A-II felony drug offender must not be eligible for parole within three years. The defendant in Thomas was sentenced to an indeterminate term of imprisonment of eight years to life on September 13, 1999 as a result of his plea of guilty to the A-II drug felony of Criminal Possession of a Controlled Substance in the Second Degree, and he applied to be re-sentenced in September of 2005. The Thomas Court held, since the record revealed that at the time of his application to be re-sentenced defendant was eligible for parole in February 2007, "well within the three year period," the Appellate Division, Third Department stated "Accordingly, County Court erred in re-sentencing him under the 2005 DLRA and the judgment must be reversed."

Additionally the Appellate Division, Second Department, in a decision dated December 26, 2006, in People v. Parris, 2006 NY Slip Op 10110; 6 NY3d 851 (lv. denied) has now also followed the holding in People v. Bautista. The Appellate Division, Second Department, in affirming the denial of the defendant's application to be re-sentenced under DLRA II stated:

"Chapter 643 of the Laws of 2005 (hereinafter Chapter 643) grants to certain inmates convicted of class A-II drug felonies the right to move for resentencing. Although, as the Appellate Division, First Department, observed, Chapter 643 is "not a model of clarify" (People v. Bautista, 26 AD3d 2320, 809 NYS2d 62), it affords possible relief to certain inmates who are "more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law" (L 2005 ch 643 Section 1). The import of this language is that it does not apply to an inmate who is already an "eligible inmate", namely "a person confined to an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within two years (Correction Law Section 851[2]), or to any inmate who would fit within that class of persons in a year or less. In short, Chapter 643 does not apply to inmates who are three or fewer years from eligibility for parole (see People v. Bautista, supra ; see also People v. Cuebas, 12 Misc 3d 987, 989, 820 NYS2d 688; People v. McCurdy, 11 Misc 3d 757, 763, 813 NYS2d 860). Here, although the defendant and the People disagree on the specific date that the defendant will be eligible for parole, both dates were less than three years from the date the defendant filed his motion for resentencing. Consequently, the County Court properly found that the defendant was not entitled to seek relief under Chapter 643."

The instant case is factually distinguishable from Bautista, Thomas and Parris in that the defendants in those cases had not served the minimum sentence imposed by the Court. [*4]Therefore, the issue still remains, is the defendant, Donald Mills, and similarly-situated defendants who have served their court-imposed minimum sentences and have appeared before the Parole Board and have been denied parole, eligible to be re-sentenced under this poorly-written Drug Law Reform Act, and is the Bautista holding applicable under such circumstances?

When the holdings of the foregoing Appellate Division cases are considered, it is clear that "Chapter 643" affords possible relief to certain inmates who are more than twelve months from being an "eligible inmate" as that term is defined in Correction Law 851(2). The courts, in following the holding in Bautista, have cited Correction Law 851(2) and have quoted the definition of "eligible inmate" as follows:

"Eligible inmate" means: A person confined in an institution who is eligible for release on parole on who will become eligible for release on parole or conditional release within two years."

The courts that have dealt with this issue have not had occasion to quote the additional definition of "eligible inmate" in Correction Law 851(2), since those cases have not involved a re-sentencing application by an inmate who had served his court-imposed minimum and had been subsequently denied parole.

Correction Law 851(2) further defines the term "eligible inmate" in relevant part as that term relates to an inmate's eligibility for temporary release, subsequent to having been denied parole as follows:

"If an inmate is denied release on parole, such inmate shall not be deemed an eligible inmate until he or she is within two years of his or her next scheduled appearance before the State Parole Board."

The defendant, on July 26, 1995, was sentenced to an indeterminate sentence of three years to life, and on June 9, 1998 was issued an inmate-earned eligibility certificate. The defendant was therefore eligible for parole. However, the decision as to whether the defendant would be granted parole release is still left to the discretion of the Parole Board. Subsequently the defendant has been denied parole in 1998, 2000, 2004 and April of 2006, each Parole Board hearing, consistent with the Board policy, having been set at twenty-four-month intervals. The defendant's next parole hearing has been scheduled for April 28, 2008. Based upon the definition of "eligible inmate" as set forth in Correction Law 851(2) as that definition relates to this defendant, Donald Mills is again "eligible for parole" on April 28, 2008. Therefore, in accordance with the foregoing definition of "eligible inmate", a defendant is deemed an "eligible inmate" when he or she is "within two years of his or her next scheduled appearance before the State Parole Board". In accordance with this definition, the defendant, Donald Mills, is an "eligible inmate" within the definition of 851(2), in that he is within two years of his next scheduled appearance before the Parole Board. Consequently, by virtue of Chapter 643's requirement that possible re-sentence relief be afforded to certain inmates who are "more than twelve months from being an eligible inmate", as that term is defined in Corrections Law 851(2), the benefits of Chapter 643 relief do not apply to inmates who have been denied parole and are within two years of their next scheduled appearance before the Parole Board. In short, Chapter 643 does not apply to inmates who are three or fewer years from eligibility for parole or appearance before the Parole Board, and the holdings of Bautista, Thomas and Parris and the three-year "cut out" period are also applicable to inmates who have been denied parole.

Since Executive Law 259(i) requires that the Parole Board specify a date not more than twenty-four months from an inmate's denial of parole for reconsideration thereof, and the setting of the parole hearing date within that two-year period, in accordance with 851(2) that inmate becomes an "eligible inmate". Therefore, by virtue of Chapter 643 requirements that an inmate be more than twelve months from being an "eligible inmate" as that term is defined in Correction Law 851(2), an inmate who has been denied parole would never be eligible to be re-sentenced under Chapter 643, no matter how long he or she has served under the present language of Chapter 643.

In conclusion, since the defendant, Donald Mills, is an "eligible inmate" under Correction Law 851(2) and is eligible for parole on April 28, 2008, which is less than three years from the date the defendant filed his motion to be re-sentenced, this Court is constrained to find that the defendant's re-sentencing must be vacated as a matter of law.

This Court is of the opinion that while it is the responsibility of a judge to interpret the law as written and not to rewrite the law, it is clear that the State Legislature, by this confusing legislation, has not only failed in their sworn duties in that respect but has more fundamentally failed to implement the Legislature's express intent of ameliorating long A-II drug sentences by providing more humane and realistic sentences for A-II drug felons. The defendant, Donald [*6]Mills, has already served more than the maximum sentence of ten years that can be imposed pursuant to the terms of the Drug Law Reform Act. Mr. Mills will have been incarcerated 13 years before his next scheduled appearance before the Parole Board.Certainly if the Legislature's intent was to ameliorate long A-II drug sentences it would seem that Mr. Mills and defendants similarly situated should have been included within the re-sentencing provision of the Drug Law Reform Act.

Clearly, to exclude from that consideration the prospect of a re-sentencing for a defendant who has served over 11 years in state prison, has earned his parole eligibility certificate in 1998, and who has continued to make positive accomplishments while incarcerated, and has maintained a positive disciplinary record and has expressed remorse for his past conduct and who is prepared to live within the law and has lived within the law since his release, appears to be in direct conflict with the stated intent of the Legislature in enacting DLRA II . The legislation, as written, takes from the courts the ability to exercise the discretion to re-sentence on a case-by-case basis each A-II drug felon serving a 3 to life sentence, and delegates that authority to the Parole Board, who is not bound to implement the alleged express intent of the Legislature. The Parole Board's denial of parole, when predicated upon their subjective view of the severity of the underlying offense to deny parole, not only contravenes the discretionary scheme mandated by the Executive Law, but more fundamentally and effectively constitutes an unauthorized re-sentencing of the defendant. The Court is hopeful that this case will prompt the State Legislature to rewrite this legislation to address the inequities raised by this and similar cases.

Therefore, the defendant's eight-year determinate sentence with five-year post release supervision period, is hereby vacated and the defendant is to appear before this Court to be sentenced to the original sentence of three years to life.

The Decision herein constitutes the Order of the Court.

________________________________________

Hon. Anthony F. Aloi

County Court Judge

Dated:Syracuse, New York

January 16th, 2007