Defendant Francis Manigault moves for resentencing pursuant to the Drug Law Reform Act of 2009 ^[FN1] (hereinafter, "DLRA") (see, Crim Proc. Law §440.46) imploring the Court to use its discretion to resentence him under Penal Law §70.70 to a determinate term because his present sentence is excessive.

In Indictment No. 3938-2003, Defendant seeks resentencing for his conviction, after a guilty plea, to one count of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §220.39[1]). In that case, the Court (Ingram, J.) sentenced Defendant to an indeterminate term of fifty-four months to nine years incarceration. Defendant is now incarcerated at Gowanda Correctional Facility in Erie County after being returned to custody for parole violations.

Identified as a person who could benefit from addiction treatment, Defendant, after his guilty plea, was referred to TASC and J-CAP, which found that Defendant was at that time drug and alcohol free, but would benefit from substance abuse therapy. While Defendant was given various opportunities to remain rehabilitated, Defendant chose rather to abscond from Court appointed rehabilitation programs, forcing the People to exercise their discretion to reinstate the minimum sentence. Defendant built a history of rehabilitation program failures, with, in its most recent manifestation, his being returned to custody in 2007 and absconding, yet again, within a month; this from a work release program with [*2]consequential warrant issuance.

Defendant's Application

Defendant justifies resentencing by citing his abuse problem s and pointing to a perception that he is not a violent offender. Defendant says that if released his immediate family will provide support for him in the community. He now recognizes need for rehabilitation as shown by a claimed positive recent prison disciplinary record with successful work assignments while incarcerated. Stated another way, Defendant says he is eligible for resentancing because he is a low level non-violent drug offender serving a sentence that is too harsh for the offense (see generally, People v. Paulin, 17 NY3d 238 [2011]).

In summary, Defendant says he deserves the opportunity to be heard at a hearing in order to justify resentencing (see generally, People v. Jenkins, 86 AD3d 522 [1st Dept. 2011]) and suggests that he be given a reduced sentence with present release and post release supervision of two to three years supervision substituted.

District Attorney's Opposition

In opposition, the prosecutor argues that "substantial justice" demands Defendant not be

re-sentenced under the Drug Law Reform Act of 2009 or any other statute. In this regard, the prosecutor in essence says that Defendant's repeated conduct bars resentencing. Significantly, Defendant has returned to prison multiple times and been subject to Tier III and Tier II prison discipline during the period. Likewise, Defendant has a criminal record which includes using aliases for commission of those crimes reaching back to 1989 and occurring in two states. Perhaps most startling is Defendant's abuse of the system when he sought emergency relief from incarceration and absconded when time to return to custody arrived.

Stated another way, Defendant's criminal convictions, disciplinary problems, and lack of cooperatation with rehabilitation programs require denial of resentencing. Because Defendant absconded from rehabilitation programs, the Court must decline a further opportunity to receive special treatment (see generally, People v. McNair, 22 AD3d 376 [1st Dept. 2005]). Clearly, Defendant does not qualify as a proper beneficiary of the Drug Law Reform Act of 2009.^[FN2]

Reply

Defendant says the prosecutor does not dispute that he is a non-violent person struggling with narcotics and alcohol abuse. Nevertheless, Defendant notes the prosecutor continues to oppose resentencing upon substantial justice considerations. In response, Defendant excuses his prison conduct and his abandoning rehabilitation upon grounds that the sentenced imposed was unduly punitive, costly, and counterproductive, especially as applied to a non-violent low level person such as himself.

Legal Discussion

In order to apply for resentencing under Crim. Proc. Law § 440.46, a person must (1) be in the custody of DOCCS; (2) have been convicted of a class B 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 for or have a predicate felony conviction involving an exclusion offense (see generally, People v. Overton, 86 AD3d 4 [2nd Dept. 2011]).

Meeting the above resentencing criteria does not mean a person is entitled to relief pursuant to CPL §70.70. It simply means such person is eligible to apply for relief. Whether he will be so resentenced hinges upon the Court's determination whether substantial justice dictates that the application be granted or denied under Crim. Proc. Law §440.46(3) (see generally, People v. Avila, 27 Misc 3d 974 [Sup. Ct. Kings 2010]).

Because the prosecutor does not articulate sufficient objection to either Defendant's resentencing [*3]eligibility or whether he is entitled to a hearing (see generally, People v. Jenkins, supra.), the Court finds Defendant satisfies the criteria with regard to resentencing eligibility. Further, the Court orders that Defendant be brought before it and allowed an opportunity to be heard upon the issue of substantial justice.

The Court must now address the ultimate question of whether, after assessing his background, circumstances and prison record, Defendant should, in fact, be granted a resentence. Preliminarily, concerning "substantial justice" and the proof required to support resentencing, the Court directs the parties 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 determine what substantial justice dictates (see generally, People v. Anderson, 85 AD3d 1043 [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 applications 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, 86 AD3d 4 [ 2nd Dept. 2011]).

As Defendant argues, there can be no dispute that the impetus for the DLRA was legislative 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. 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 ^[FN3] " (see, People v. Flores, 27 Misc 3d 1204A [Sup. Ct. Bronx 2010]).

Conclusion

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 an obligation to offer an opportunity for a hearing and bring the applicant before it, especially where facts are contested (see generally, People v. Anonymous, 85 AD3d 414 [1st Dept. 2011]). The Court notes that Crim. Proc. Law §440.46 (3) provides that procedural provisions of §23 of chapter 738 of the laws of 2004 (see, 2004 Rockefeller Drug Law) govern a motion brought pursuant to CPL §440.46 (see, People v. Flores, supra.). After considering the procedural provisions of the 2004 Rockefeller Drug Law, the Court finds factual issues remain in dispute.

BASED UPON the foregoing, it is

ORDERED that, pursuant to Crim. Proc. Law §440.46 (3), the branch of Defendant Francis Manigault's motion seeking a hearing in furtherance to justify the Court resentencing him to a determinate term of imprisonment pursuant to the DLRA because his present sentence is excessive, is GRANTED; and it is

ORDERED that the branch of Defendant s motion, requesting the Court resentence Defendant pursuant to Crim. Proc. Law §440.46, is STAYED pending the hearing ordered; and it is further

ORDERED that the parties are to contact the Part Clerk within fifteen days of entry of this [*4]decision and order to schedule a hearing in this matter.

The foregoing ^[FN4] constitutes the Decision and Order of this Court.

Dated: Bronx, New York

June 25, 2012

___________________________DOMINIC R. MASSARO, JSC