Defendant was convicted after a jury trial of murder in the second degree (PL 125.25). Upon that conviction, defendant was sentenced to a term of life imprisonment with a mandatory minimum period of seventeen years. Defendant was also convicted of attempted robbery in the second degree (PL 110/160.10), under Indictment 4991-90, and sentenced to an indeterminate term five years imprisonment with a mandatory minimum period of two and one-half years to run concurrent with the life sentence.

Defendant now moves pro se, albeit absent a notice of motion or sworn affidavit, for re-sentencing to a determinate term of imprisonment. Defendant did, however, verify that she served the District Attorney. Notwithstanding such service, the District Attorney failed to file any opposition. Consequently, on February 4, 2010, this court deemed defendant's motion submitted on default.

Irrespective of the District Attorney's default, defendant fails to provide any legal basis upon which this court may grant the relief requested. While defendant refers to

"recently passed laws that may allow people who are serving life sentences to be considered to be re-sentenced to an alternate determinate sentence," she fails to identify any legal basis in support of her application. Indeed, it appears to this court that her claim is predicated on having been denied parole, stating that she has

been denied parole release based solely for my crime, which will never change. I have served above and beyond the minimum term on both indictments and the maximum on one. . . . I am not asking for a reduction that will minimize my responsibility to accept the punishment of my crime, however, the past cannot be change and to be denied release solely for my offense, which will not change is illogical and excessive. I believe that I am eligible to file an application under the standards of law and respectfully that I be re-sentenced to a determinate term of imprisonment.

Although not specifically stated, it appears the legal authority upon which defendant [*2]relies is the Drug Law Reform Act ("DLRA") (2004 NY Laws Ch 738 [effective January 13, 2005]). The DLRA was enacted in response to the sentencing policies under New York's "Rockefeller Drug Laws." Such reform was intended to ameliorate the sentences imposed on individuals who had committed Class A-I and Class A-II drug offenses ("DLRA 1" and "DLRA 2," respectively). Subsequently, in 2009, the Legislature enacted the DLRA 3, which extended sentencing relief to those convicted of Class B, C, and D drug offenses. Under the DLRA 3, qualified applicants convicted of a Class B drug offense are entitled to a reduced determinate sentence in accordance with section 60.04 and 70.70 of New York's Penal Law (see CPL 440.46 [1] [McKinney 2009]). CPL 440.46 (1) entitles a defendant to petition for re-sentencing if that defendant: 1) is in the custody of the Department of Correctional Services; 2) has been convicted of a Class B felony offense committed prior to January 13, 2005; and 3) is serving an indeterminate sentence with a maximum term of imprisonment exceeding three years (id.).

Accordingly, the DLRA reduced mandatory minimum prison sentences for first-time non-violent felony drug offenders, and reduced the mandatory minimum prison sentence (fifteen years to life) for class "A-I" drug offenses to eight years imprisonment (first-time offenders). Thus, this act permitted only defendants serving life sentences for non-violent drug offenses to apply for re-sentencing. Nothing contained in either the DLRA or CPL permits a defendant convicted of a violent "A" felony to be re-sentenced to a determinate term of imprisonment. Consequently, having been convicted of murder in the second degree, a violent "A" felony offense, defendant is ineligible as a matter of law to be re-sentenced to a determinate term of imprisonment.

Clearly, defendant's frustration over having been denied parole has prompted her to now plead with this court to simply re-sentence her to an indeterminate sentence. Even if such a remedy existed, which it does not, it would nevertheless be inappropriate to re-sentence here since it was a lawful sentence when imposed and remains so. It would further be inappropriate since doing so would effectively permit the defendant to circumvent the authority and discretion of the Division of Parole.

Finally, defendant seeks the appointment of counsel as being indigent. Having advanced no issue before this court, however, the court has no statutory authority to grant defendant's request (CPLR 1101). Regarding this request, defendant must renew it, with specificity, to the Appellate Division. Defendant's motion is therefore denied in all respects.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at her place of incarceration.

Dated:June 23, 2010

________________________________

Richard Lee Price