Defendant-Petitioner Rohan Bennett ("Defendant" or "Bennett") commenced this proceeding seeking to be resentenced under the Drug Law Reform Act of 2009 ("DLRA"). Defendant is currently serving an indeterminate sentence of 8 to 16 years in the Greenhaven Correctional Facility.

PROCEDURAL HISTORY

Defendant was convicted after a jury trial and sentenced on December 17, 2001, under indictment 01-0059, to eight concurrent terms of imprisonment of 8 to 16 years upon his conviction for four counts each to the class B felonies of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Also on December 17, 2001, under SCI 01-1577, Defendant received a 3 to 6 year indeterminate sentence upon pleading guilty to attempted criminal possession of a controlled substance in the third degree, a class C felony. All of the sentences were to run concurrently. Presently, Mr. Bennett has served approximately 8 ½ years of his 8 to 16 year indeterminate sentence.

Prior to this proceeding, Defendant filed a motion for re-sentencing dated May 18, 2009, pertaining to the convictions at issue. However, defendant filed the motion prior to the October [*2]7, 2009 effective date of the DLRA. As a result, the motion was denied as premature by an order of the Hon. Susan B. Cacace, dated August 11, 2009 (the "August 11 Order"). In that order, the court noted that "[e]ven if the legislation were in effect at this time, the court would be hesitant to grant the relief sought."Defendant then moved to vacate the August 11 Order. Defendant also moved for a hearing, a de novo review of his re-sentencing application, and asked Judge Cacace to recuse herself. By order dated August 15, 2010, Judge Cacace recused herself and the instant motion was assigned to this court on April 16, 2010. With the People's consent, the court will consider Defendant's application for re-sentencing under the DLRA de novo.

STATEMENT OF FACTS

Defendant's conviction under indictment 01-0059 pertained to drug transactions by which Defendant sold $8.00 bags of cocaine to an undercover police officer on four separate occasions - - on August 9, 2000, September 7, 2000, October 19, 2000. These incidents resulted in convictions to four counts each of criminal sale of a controlled substance (class B felony) and criminal possession of a controlled substance (class B felony). On February 5, 2001, defendant was charged and a warrant was issued for his arrest. On February 7, 2001, the police arrested defendant, and incident to that arrest, discovered a rock of cocaine weighing .953 ounces in his pants pocket. For the February 7 incident, Defendant plead guilty under SCI 01-1577 for attempted criminal possession of a controlled substance (class C felony).

Defendant's criminal history includes two prior felony convictions: a class B felony conviction for the attempted criminal sale of a controlled substance on May 16, 1991, for which he received an indeterminate sentence of 1 ½ to 4 ½ years, and a conviction for criminal possession of a controlled substance in the fifth degree in September 1996 for which he was sentenced to an indeterminate state prison term of 2 ½ to 5 years. Defendant's record also includes three misdemeanor convictions and a youthful offender adjudication in 1988 for attempted robbery in the third degree.

By his motion for re-sentencing dated May 18, 2009, Defendant maintains that while incarcerated for the past 8 ½ years, he has had no disciplinary infractions. In addition, Defendant states that while incarcerated he has made numerous positive advancements, including earning his G.E.D.; completing phase 2 of Transitional Services Center; earning a certificate of earned eligibility under Correctional Law Section 805 based on his program participation; participating in various custodial and maintenance programs; and completing ASAT (the Alcohol and Substance Treatment Program). The People do not dispute these contentions.

CONCLUSIONS OF LAW

Under the DLRA (CPL 440.46), a person convicted of a class B felony drug offense is eligible for re-sentencing. Prerequisites to eligibility include that (1) the offense for which re-sentencing is sought was committed prior to January 13, 2005; (2) the defendant is currently serving an indeterminate sentence of more than three years; and (3) the defendant has no prior violent felony convictions within the previous ten years. Since Bennett has no prior violent felony convictions, committed the instant offenses prior to 2005, and is currently serving an indeterminate sentence of 8 to 16 years, he is eligible for re-sentencing.

Even if a defendant is eligible for re-sentencing, re-sentencing is not automatic. However, the statute, by its terms reflects a predisposition for re-sentencing. The Laws of 2004, Chapter 738, Section 23, direct that "{u}pon its review of the submissions and the findings of [*3]fact made in connection with the application, the court shall [resentence], unless substantial justice dictates that the application should be denied." (Emphasis added). Accordingly, the Second Department has held that "consistent with the statutory language, case law indicates a presumption in favor of granting a motion for re-sentencing relief absent a showing that substantial justice dictates the denial thereof." People v. Beasley 47 AD3d 639 [2008]. In deciding whether to grant or deny an eligible defendant re-sentencing, CPL 440.46(3) directs that the court may consider the defendant's participation in "treatment or other programing while incarcerated and such person's disciplinary history." The court may also consider any other relevant circumstances, including the defendant's criminal history. Beasely at 641.

In its Affirmation in Opposition, the People assert that "substantial justice" dictates that the court deny defendant's re-sentencing motion. The People principally contend that Defendant's multiple prior drug felony convictions effectively mandate a denial of re-sentencing. The statute itself however, indicates to the contrary. The DLRA, in accordance with sections 60.04 and 70.00 of the Penal Law, allows re-sentencing for second, non-violent felony offenders, thus signaling that the legislature intended to benefit with re-sentencing even those defendants with multiple prior non-violent felony convictions who demonstrate other positive factors. Moreover, had the legislature intended to exclude multiple drug felony offenders from the statutory ambit, it could have easily done so by adding such individuals to the list of those convicted of prior "exclusion offenses." (CPL 440.46(5).

Indeed, several courts have not hesitated to resentence defendants who had records that included multiple prior felony convictions. For example, in People v. Jones, 2009 NY Slip Op. 52483U (Sup. Ct. N.Y.Co. 2009), the court resentenced a second-felony offender who had multiple prior drug-related convictions, including two felonies, a misdemeanor and a youthful offender adjudication. In People v. Alverez, 12 Misc 3d 1159(a), 819 NYS2d 211, (2006), re-sentencing was granted for a second felony offender incarcerated for a class A-II felony, despite the fact that he had "numerous prior felony convictions for the sale of narcotics." And in People v. Singleton, 8 Misc 3d 1026(A), 806 NYS2d 447, (2005), the court resentenced a second felony offender, convicted of a class A-I drug felony, for which this original sentence was an indeterminate term of 18 years to life. Despite numerous prior drug and weapons-related felony convictions, defendant received an 18 year determinate sentence, of which he had already served approximately 15 years. Id.

Moreover, in many cases in which re-sentencing of a prior felony drug offender was denied, the court noted defendant's failure to seek out or achieve rehabilative treatment while incarcerated - - a situation that is clearly not present here. For example, in People v. Avila, 27 Misc 3d 974, 897 NYS2d 871, (2010), the court denied re-sentencing based on defendant's numerous violations of parole, multiple bench warrants, his unwillingness to participate in mandated drug treatment, and a criminal record that included four drug felonies and 25 misdemeanors. Similarly, in People v. Matthews, 26 Misc 3d 1217 (A), Slip Copy, 2010 WL 363449, NY Sup., 2010, the court denied the re-sentencing of a second felony offender with three prior felonies, which included two relating to drug sales and an attempted robbery, 15 misdemeanors convictions and multiple parole violations. While the court found that Matthew's did make some positive programmatic achievements while incarcerated, he had an "extremely poor" disciplinary record, including 14 infractions, including one that involved the possession of [*4]a weapon, during seven years of incarceration.

The People also assert that Bennett's four distinct sales of cocaine on four separate occasions indicate that he was more than a "mere street level dealer" which, the People contend, mandates that re-sentencing be denied. However, as the court held in Jones, supra , even though the defendant was not at the lowest point in the drug trade, re-sentencing was granted since he was not a "kingpin or major narcotics trafficker." In Jones, the defendant sold drugs through an intermediary, was apprehended with $1,000.00 cash, and distributed drugs in his car. The court finds Jones applicable to the instant case. Here, the evidence shows that Defendant regularly sold $8 dollar bags of cocaine directly to a narcotics officer. While the court recognizes the seriousness of those crimes, they hardly indicate that he was a "kingpin or major narcotics trafficker," the threshold articulated by the court in Jones. Moreover, even setting aside the framework of Jones, Defendant's instant crimes actually do tend to show that he was a "mere street level dealer," albeit one who engaged in small drug sales frequently.

Pursuant to CPL 440.46(3), the court has considered Defendant's record during his incarceration and finds that it weighs heavily in favor of re-sentencing. As the People concede, he has had no disciplinary infractions during his approximately 8 ½ years of incarceration. He has also attained several positive program achievements relating to his education and substance abuse. Case law shows that such positive factors carry significant weight. Indeed, some defendants who only had "mostly" positive institutional records were resentenced. See, e.g., People v. Carson, 8 Misc 3d 1003 (A), 801 NYS2d 779 (Sup. Ct. Queens County 2005); People v. Walltower, 27 Misc 3d 1205(A), 2010 WL 1371963 (NY Sup., 2010); People v. Quinones, 11 Misc 3d 582, 2005 NY Slip Op. 25559 (Sup. Ct. NY County 2005).

Under the DLRA, and in accordance PL 60.04 and 70.00, Bennett as a second felony offender, is eligible to be resentenced to a determinate term of incarceration of 2 to 12 years in state prison followed by 1 ½ to 3 years of post-release supervision. Given the facts underlying Defendant's instant crimes, his history of drug offenses, and his record while incarcerated, the Court finds that "substantial justice" does not dictate that defendant's re-sentencing application be denied. The court hereby grants Mr. Bennett's motion for re-sentencing and specifies that it would impose a determinate sentence of imprisonment of 9 years, followed by 3 years of post release supervision. (PL 60.04 and 70.00). Defendant's time in prison that he has served will be credited towards his new sentence. People v. Figueroa, 27 Misc 3d 751, 894 NYS2d 724. Under the Laws of 2004, Chapter 738, Section 23, at this time, Bennett may now withdraw his application or appeal the court's re-sentencing order as of right. If Defendant does neither, the court will enter an order vacating the original sentence and impose the terms of the new sentence specified above.

The court considered the following papers on his application: 1) the defendant's pro se re-sentencing motion under Indictment 01-00059 and SCI 01-0157 dated May 18, 2009; 2) the defendant's letter dated June 7, 2009; 3) the decision and order of the Hon. Susan B. Cacace dated August 12, 2009; 4) the defendant's notice of motion for resentence dated March 9, 2010, and exhibits attached thereto; 5) the decision and order of the Hon. Susan B. Cacace dated March 15, 2010; 6) the People's affirmation in opposition dated April 5, 2010, and exhibits thereto; 7) Notice of Transmittal of the proceedings to this court dated April 16, 2010.

The foregoing constitutes the Decision and Order of this Court.

DATED: White Plains, New York

July 15, 2010

Hon. John P. Colangelo

County Court Judge