On October 15, 2002, the defendant pleaded guilty to the class A-II drug felony offense of criminal possession of a controlled substance in the second degree, in violation of Penal Law § 220.18. The defendant was sentenced on December 3, 2002, as a second felony offender, to a term of imprisonment of six years to life. In 2006, following a parole hearing, the defendant was denied parole. The defendant is scheduled for a second parole hearing in October of 2008.

In August, 2005, the legislature enacted the Drug Law Reform Act (L 2005, ch 643, § 1) that authorized re-sentencing for certain class A-II drug offenders. The defendant moved for re-sentencing pursuant to that statute. The People oppose the defendant's application on the ground that the defendant is ineligible for resentencing.

The Drug Law Reform Act (L 2005, ch 643, § 1) states

that a defendant convicted of a class A-II felony drug offense, who was sentenced under prior law to an indeterminate term of imprisonment with a minimum period of not less than three years, 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'. . . may apply to be resentenced. . . Correction Law § 851(2) defines eligible inmate' as a person confined in an institution who is eligible for release on paroleor who will become eligible for release on parole or conditional release within two years.'

People v. Bautista, 26 AD3d 230, appeal dismissed, 7 NY3d 838 (2006). The court in Bautista held that reading Drug Law Reform Act (L 2005, ch 643, § 1) and Correction Law § 851(2) together, "require[s] that, in order to be eligible for resentencing, an A-II offender may not be [*2]eligible for parole within three years.".

The People argue that the defendant fails to meet the criteria that must be met for an inmate to be eligible for re-sentencing. Relying on People v. Bautista, supra, the People assert that under the statute "a defendant applying for re-sentencing must be more than three years away from parole eligibility" and that the "[d]efendant's parole eligibility date was December 10, 2006 [and that] [d]efendant has in fact passed his parole eligibility by approximately one year and one month and is therefore not more than three years away from eligibility." People's Memorandum in Opposition to Defendant's Application for Re-sentencing, at p. 4.

Unlike the defendant in People v. Bautista, supra, the defendant here has already appeared before the parole board and been denied parole. Therefore, the defendant does not fall within the category of persons "confined in an institution who is eligible for release on paroleor who will become eligible for release on parole or conditional release within two years," but rather is considered an "eligible inmate" because, having been denied 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."Correction Law § 851(2). Here, the defendant is eligible for parole within nine months. While logic would dictate that since he "is within two years of his. . . next scheduled appearance before the state parole board"he is an inmate eligible to apply for resentencing, that is apparently not correct. The Appellate Divisions, in the Second and Fourth Departments have applied the holding in People v. Bautista, supra, to inmates who have been denied parole and are scheduled to to appear before the parole board within two years. People v. Corley, 45 AD3d 857 (2nd Dept., 2007); People v. Smith, 45 AD3d 1478 (4th Dept., 2007). In People v. Corley, supra, the court, citing the holding in People v. Bautista, supra, stated that

[t]his holding applies with no less force to the defendant, who became eligible for parole in 2003 and has already been denied parole several times. Since, by statute, the defendant's next parole hearing will always be less than three years away from any date he moves for resentencing in the future, Chapter 643 does not and will not afford him the right to move for resentencing.

(Citations omitted).

Although neither the First Department, nor the Court of Appeals, hasconsidered the effect of the above quoted language from the Drug Law Reform Act (L2005, ch 643, § 1) on inmates who have been denied parole, this court is bound by theholdings of the Second and Fourth Departments. People v. Shakur, 215 AD2d 184, 185(1st Dept., 1995); Mountain View Coach Lines v. Storms,102 AD2d 663, (2nd Dept.,1984] ). Therefore, the defendant, less than three years away from parole reconsideration, is not entitled to resentence.

The defendant's argument that the statutory scheme dealing with the resentencing is unconstitutional is without merit. This argument was raised on appeal in People v. Bautista, [*3]supra and was rejected by the court.

The defendant's final argument that he "no longer has the benefit he bargained for" (Defendant's Memorandum of Law, Point 3) is also without merit. The defendant pleaded guilty knowing that he would be sentenced to a period of incarceration of six years to life. The fact that other defendants, who pleaded guilty to class A-I drug felonies are eligible for resentencing to less than a life sentence, does not affect the validity of the defendant's plea.

The defendant's motion to be resentenced is denied.

The foregoing is the decision and order of the court.

Dated: New York, New York

January 15, 2008

Laura A. Ward

Acting Justice Supreme Court