The pro-se Mr. Strunkey, having been sentenced on May 24, 1995 to three years to life on a plea of guilty to Criminal Possession of a Controlled Substance in the second degree, a class A-II felony, has motioned this court for re-sentencing under the Drug Reform Law Act (hereinafter DRLA) to a determinate sentence under Penal law §70.71. Implicit in Mr. Strunkey's application is a contention that he meets the criteria for re-sentencing to a non-life determinate sentence; that is, 1. he is in the custody of the New York State Department of Corrections; 2. he was convicted of a Class II drug felony committed prior to October 29, 2005; 3. he was sentenced to an indeterminate term of imprisonment of not less than three years and a maximum of life; 4. he is more than twelve months from being an "eligible inmate" for temporary release as defined in Corrections law §851 (2); and, 5. he is eligible to earn merit time pursuant to Corrections law §803 (1).

The prosecution contends that an inmate is eligible "to apply for temporary release" if he/she is within two years of parole eligibility, meaning that the defendant must have more than three years remaining on the minimum sentence (citing, Peo. v. Parris, 35 AD3d 891 [2d Dept., 2006] and Peo v. Bautista, 26 AD3d 230 [1st Dept., 2006]; Corrections law §851 [2] ). Corrections law §803 (1) provides that a defendant is eligible "to earn merit time" if s/he (i) is not also serving another sentence for which merit time is unavailable (to wit, arson in the first degree, conspiracy in the first degree, kidnaping in the first degree, murder in the first degree or the attempt, murder in the second degree, a violent felony offense, manslaughter in the first or second degree, criminally negligent homicide, an offense defined in article 130 of the penal law [sex offense], incest, an offense defined in article two hundred sixty-three of the penal law [use of child in a sex performance], or aggravated harassment of an employee, (ii) does not have a poor prison disciplinary record, or (iii) has not been found to have filed a frivolous lawsuit.

The prosecution opposes Mr. Strunkey's application on the ground that he is statutorily ineligible, as a matter of law, for re-sentencing under the DRLA since despite having been convicted of an A II drug felony and sentenced to three years to life imprisonment, he ". . .was released to parole many years ago from this sentence. . .was subsequently sentenced to 5 1/2 years to 11 years on an Albany County conviction for a class-B felony (CPCS 3rd degree), and he [*2]is now incarcerated again as a parole violator at the Cape Vincent, New York, Correctional Facility. . . . his last parole eligibility date was June 9, 2002, and he is up for parole again on March 5, 2009." More to the point, the prosecution argues that Mr. Strunkey is not only ". . .more than 12 months from being an eligible inmate. . .but is actually many years past his parole eligibility date on his Kings County A-II conviction." Hence, in addition to non-eligibility pursuant to the Parris, supra and Baustista, supra , cases, it is clear that Mr. Strunkey is not a candidate for DRLA re-sentencing since the Drug Law Reform Act has no applicability to returned parole violators as per the third Department holding in Peo. v. McCloud, 38 AD3d 1056 [2007].

This court finds no such provision explicitly spelled out in the subject statute, and is otherwise persuaded by the compelling analysis offered in the matter of Peo. v. Mills, 12 Misc 3d 1188, 824 NYS2d 765 (table), 2006 WL 2128159 (NY Co. Ct.), 2006 Slip Op. 51491 (U), which ruled that there is a distinction to be made between a defendant who has not reached his parole eligibility date (as in Bautista, supra ,) and one who is eligible for release on parole. ". . . the statute simply provides that to be eligible for temporary release, an inmate must either be eligible for parole or become so within two years and no more. . . .Additionally, and perhaps more fundamentally important. . .the People confuse the meaning of being "eligible for parole" and "being granted release on parole." The setting of a parole hearing does not alter the defendant's parole eligibility date. . . .While a defendant may be denied release on parole, he is still an "eligible inmate" because he has completed the service of his minimum term of incarceration and has been issued an "earned eligibility certificate.". . .a defendant who has completed the service of his minimum sentence. . .is parole eligible at the time of his application to be re-sentenced. The issue before the court, in that instance, should not be whether he is an eligible inmate to be re-sentenced, but rather does substantial justice dictate that he should be granted or denied such requested relief."

In Peo. v. Figueroa, 21 AD3d 337 [2005], the first Department held that a defendant must be brought to court and given an opportunity for a hearing, even if the court (in light of the defendant's jail record) decides, based upon the papers, that a re-sentencing is not warranted. In Peo. v. McCurdy, 11 Misc 3d 757, 813 NYS2d 860, it was determined, however, that since the defendant was not three years from his parole release date; i.e., was not qualified to be re-sentenced as a matter of law (as opposed to a discretionary determination as in Figueroa, supra ), the court was not required to hold a hearing on the issue. That distinction was said to be predicated on the discretionary language of the statute (chapter 643 of the laws of 2005) in the context of whether to conduct a hearing when the issue to be decided relates to an inmate's qualifications. The Appellate Divison, First Department, despite noting the aforementioned language nevertheless held that ". . .summary denial of the defendant's application was error and requires reversal. The statute expressly provides that once a court determines that a defendant has been convicted of a class A-I narcotics felony [A-II in this instance], the court shall offer an opportunity for a hearing and bring the applicant before it.' (L 2004, ch 738 § 23.) The plain language of the statute is clear and unambiguous and mandates that upon a defendant's motion to be resentenced the court shall offer him or her a hearing at which he or she shall be brought before the court." The First Department further took note of the fact that the prosecution's concern of being inundated by DLRA re-sentencing requests was unfounded based on the [*3]Assembly memorandum in support of the bill which on the available statistics indicated that the anticipated caseload would not be overwhelming.

Insofar as Mr. Strunkey's additional requests to proceed as a poor person and for the appointment of counsel is concerned, the fact that he is currently incarcerated would tend to substantiate his professed indigency and entitlement to counsel. However, the court notes that he had been represented by retained counsel at the time of his plea, and that part of the required documentation to establish indigence is a defendant's prison trust account statement, which Mr. Strunkey has neglected to include in his moving papers (see Gomez v. Evangelista, 185 Misc 2d 816; also Gomez v. Evangelista, 290 AD2d 351, 736 NYS2d 365 [rational basis exists for fifteen dollar filing fee]), or any other financial statement for that matter. Hence, he has not provided sufficient information whereby this court can decide his entitlement to said requests at this point.

Wherefore, on the bases of all of the foregoing, this court directs that the Kings County District Attorney's Office shall produce Mr. Strunkey for a hearing before it within 60 days of this decision to determine if he is entitled 1. to proceed as a poor person, 2. to the appointment of counsel, and/or 3. to be re-sentenced under the Drug Reform Law Act to a determinate sentence under Penal law §70.71. This constitutes the decision and order of this court.

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Hon. yvonne lewis, J.S.C.