Defendant Omar Rivera moves for resentencing pursuant to the Drug Law Reform Act of 2009 ^[FN1] (hereinafter "DLRA") (see, CPL §440.46). Defendant asks the Court to exercise its discretion to resentence him to a determinate term pursuant to Penal Law §70.70 because his present sentence is excessive.

Rivera was incarcerated in 2004 after a guilty plea to Criminal Possession of a Controlled Substance in the Third Degree (see, Penal Law §220.16[1]). The Court sentenced Defendant to an indeterminate term of four and one half to nine years incarceration. He is now at Southport Correctional Facility, Chemung County, pursuant to that judgment and a subsequent, consecutive, indeterminate incarceration term of two to four years for Possession of Prison Contraband in the First Degree (see, Penal Law 205.25[2]). .

In April 2011, after filing the instant motion, Defendant was denied parole release. According to Defendant, the Time Allowance Committee will meet before November 27, 2011, the present conditional release date, to determine whether to recommend loss of good time for him. According to Defendant, a [*2]loss of good time may extend his conditional release date years into the future.

Defendant's Application

Rivera justifies resentencing upon his allegedly severe addiction problems. While claiming he was addicted to heroin at birth because his AIDS stricken mother was an addict, that addiction became more severe while in prison in the Commonwealth of Puerto Rico's correctional facilities because other inmates forced him to use heroin. Resentencing to a determinate sentence now, with an appropriate period of post release supervision and potential employment, will provide structure for Defendant and permit him an orderly transition to society. Further, the current sentence is both harsh and counterproductive being characterized by long periods of solitary confinement, to be followed by an expected unsupervised release at termination of his sentence. Therefore, Defendant argues, it is in society's interest for him to be resentenced.^[FN2]

District Attorney's Opposition

In opposition, the prosecutor argues that "substantial justice" dictates that Defendant not be re-sentenced under the DLRA. In this regard, the prosecutor indicates in essence that Defendant's conduct does not justify resentencing. Significantly, the District Attorney notes Defendant was involved in nineteen disciplinary infractions during his current incarceration. Equally significant, he was while imprisoned convicted for Promoting Prison Contraband in the First Degree (see, Penal §205.25[2]) and sentenced to a consecutive term of two years to four years.

In summary, Mr. Rivera's previous criminal convictions and his substantial incarceration and disciplinary history, including felony conviction for possessing prison contraband, requires denial of Defendant's application upon "substantial justice" grounds. The prosecutor disregards Rivera's participation in alcohol and substance abuse programs at Attica Correctional Facility in 2007, especially in light of his numerous drug related infractions. Clearly, such a defendant is not an intended beneficiary of the DLRA's resentencing relief that the state legislature envisioned when it enacted the law.

Reply

Defendant claims the prosecutor agrees that he is eligible for resentencing, but mistakenly opposes resentencing upon only "substantial justice" considerations. Defendant excuses his prison disciplinary conduct upon grounds that he is ill and the sentence imposed is unduly punitive, costly and counterproductive, particularly as applied to a nonviolent, low level drug seller such as himself.

Defendant says he has been in custody for more than eight years. In seeking resentencing, he does not excuse his original offense. He simply wishes to conform his sentence to the new law and get well. Further, he disputes the prosecutor's claim that he was not an addict when originally convicted. He points to the social worker's conclusion that he exhibited addiction from birth and suffers from post traumatic stress disorder and depression as a result of his confinement. Further, he says the advocacy agency Human Rights Watch claims his solitary confinement punishment for prison conduct is cruel because he has untreated psychological issues for which he cannot recover in the harsh prison setting. [*3]

Legal Discussion

In order to apply (emphasis added) for resentencing under CPLR §440.46, a person must (1) be in the custody of Department of Correctional Services; (2) have been convicted of certain classes of felony offense defined in article 220 of the Penal Law; (3) have committed the offense prior to January 13, 2005; (4) be serving an indeterminate sentence with the maximum term of more than three years; and (5) not be serving a sentence on a conviction for or have a predicate felony conviction for an exclusion offense (see generally, People v. Overton, 923 NYS2d 619 [2nd Dept. 2011]).

However, meeting the above criteria does not mean a person is entitled to resentencing pursuant to the DLRA. It simply means that such person is eligible to apply for relief. Whether he will be so resentenced hinges upon the Court's further determination as to whether substantial justice dictates that the application be granted or denied under CPL §440.46(3) (see generally, People v. Avila, 27 Misc 3d 974 [Sup. Ct. Kings 2010], aff'd, 923 NYS2d 674 [2nd Dept. 2011]).

Preliminarily, concerning substantial justice and the relevant proof required to support resentencing, the parties are directed to submit facts and circumstances relevant to the issue of imposition of a new sentence. Upon review of the submission(s) of either or both parties, the Court will treat with substantial justice dictates (see generally, People v. Anderson, 2011 NY Slip Op 5513 [2nd Dept. 2011] [substantial justice under the 2005 DLRA resentencing provisions]).

In addition to institutional disciplinary confinement records, courts have considered the following factors in determining resentence application vis-a-vis the rendering of substantial justice:

(1) defendant's prior criminal history, (2) the quantity of drugs underlying the current offense, (3) whether the current offense was committed while defendant was on parole or probation, (4) whether defendant has shown remorse, and (5) whether defendant has a history of parole violations (see, People v. Overton, 923 NYS2d 619 [ 2nd Dept. 2011]).

As Defendant argues, there can be no dispute that the impetus for the DLRA was the legislature's wisdom that the then drug laws' mandated sentences were excessively harsh when applied to street-level offenders who possessed or sold only small quantities of illegal drugs in order to feed their own addiction.^[FN3] The legislators determined that mandated sentences had proven counterproductive in that incarcerating low level offenders was hugely expensive and such lengthy periods of imprisonment were more likely to foil any sincere desire on the offender's part to overcome his addiction and become a law-abiding member of society. Because the DLRA embodies a legislative effort to reverse these so called Rockefeller Drug Laws' effects, the legislature incorporated a presumption in favor of granting motions for resentencing "unless substantial justice dictates that the application should be denied ^[FN4] " (see, People v. Flores, 27 Misc 3d 1204A [Sup Ct. Bronx 2010]).

The Court finds that Defendant satisfies the statutory criteria with regard to eligibility for resentencing. Notwithstanding, the Court must now address the ultimate question of whether, after [*4]assessing his background, circumstances and prison record, Defendant should, in fact, be granted a resentence.

Hearing

Defendant's counsel steadfastly maintains that the Court must hold a hearing upon Defendant's instant application. On this record, the Court agrees that it has a statutory obligation to offer an opportunity for a hearing and bring the applicant before it, especially where facts are contested (see generally, People v. Anonymous, 924 NYS.2d 365 [1st Dept. 2011]). In this regard, the Court notes that CPL §440.46 (3) provides that the procedural provisions of §23 of chapter 738 of the laws of 2004 (see, 2004 Rockefeller Drug Law) govern proceedings on and determination of a motion brought pursuant to CPL §440.46 (see, People v. Flores, 27 Misc 3d 1204A [Sup Ct. Bronx 2010]). After considering the procedural provisions of the 2004 Rockefeller Drug Law, the Court finds factual issues yet remain in dispute.

Based upon the foregoing, it is

ORDERED that, pursuant to CPL §440.46 (3), the branch of Defendant Omar Rivera's motion seeking a hearing upon his motion requesting that the Court resentence him to a determinate term of imprisonment pursuant to the DLRA because his present sentence is excessive, is GRANTED; and it is further

ORDERED that the branch of Defendant Omar Rivera's motion requesting that the Court resentence Defendant pursuant to CPL §440.46 is STAYED pending the hearing ordered; and it isORDERED that the parties are to contact the Part Clerk to schedule a hearing in this matter no later than fifteen following entry of this decision and order.

The foregoing ^[FN5] constitutes the Decision and Order of this Court.

Dated: Bronx, New York

August 2, 2011

___________________________DOMINIC R. MASSARO, JSC