County Court, Jefferson County, August 13, 2020

Adam R. Matteson for defendant.

Kristyna S. Mills, District Attorney, for plaintiff.

Based upon his alleged status as a victim of domestic violence, the defendant, Shawn G. Granger, has filed an application pursuant to Criminal Procedure Law § 440.47 seeking to be resentenced on prior convictions.^[FN1] He also requested this court to assign an attorney to assist him. Although CPL 440.47 requires the court to make a preliminary assessment of whether an applicant is eligible for resentence before assigning an attorney to represent him or her, it has assigned attorney Adam R. Matteson to assist the defendant, because the statute, enacted in 2019 and effective August 12 of that year, has a number of complexities which are exacerbated by the procedural context of this case.

CPL 440.47 (1) (a) permits a "person confined in an institution . . . serving a sentence with a minimum or determinate term of eight years or more" (emphasis added) to apply to the judge or justice who [*2]imposed the sentence^[FN2] for a resentence on the basis that he or she was "a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of [his or her] family." (Penal Law § 60.12 [1] [a].) In support of that application, the defendant filed a copy of his Department of Corrections and Community Supervision (DOCCS) inmate information sheet showing him to have an "aggregate maximum" period owed of eight years, one month and 23 days. However, a second document submitted with the information sheet showed that his sentence on Jefferson County indictment No. 17-197-17 was for a determinate period of only seven years. The balance of the aggregate maximum{**69 Misc 3d at 659} was based upon time owed on his earlier sentences under indictment Nos. 461-09, 265-09 and 781-09.^[FN3]

On May 26, 2010, the defendant was sentenced on the three 2009 indictments. He was sentenced to three concurrent eight year determinate periods of incarceration in DOCCS, followed by a three year period of postrelease supervision (hereinafter PRS) for indictment No. 461-09. That indictment was prosecuted by the New York State Attorney General's Office.

The two remaining indictments were prosecuted by the Jefferson County District Attorney's Office. Judge Martusewicz sentenced the defendant to three years' determinate on a conviction for assault in the second degree (with three years' PRS) followed by concurrent five year determinate sentences for convictions of criminal possession of a controlled substance in the third and fourth degrees.^[FN4] For indictment No. 265-09, the defendant was sentenced to a five year determinate sentence for the crime of criminal possession of a controlled substance in the third degree, followed by three years of PRS and a concurrent period of 11/2 years' determinate followed by two years of PRS for a conviction of criminal possession of marijuana in the second degree.^[FN5]

The final result of the sentences imposed was that the defendant was effectively sentenced to eight years in DOCCS, followed by the various periods of postrelease supervision.^[FN6] The defendant began serving that sentence and in 2016, he was released to parole, owing one year, one month and 23 days on the original eight year sentence.

After the defendant was sentenced for the 2017 indictment, he was returned to state prison. Upon his return, DOCCS merely added the time owed on the prior convictions to the [*3]seven years imposed upon the 2017 conviction, thereby arriving at an "aggregate maximum" remaining period of state prison incarceration. DOCCS does not otherwise establish an order of priority for its records.{**69 Misc 3d at 660}

As a result, the court must, as a matter of apparent first impression, determine whether the DOCCS computation of "aggregate maximum" time owed makes him eligible for resentencing on the 2017 indictment. If not, is he eligible for resentencing on the original 2009 indictments for which he received concurrent eight year sentences?^[FN7]

The People assert that the defendant is not eligible for resentence because the sentence imposed was less than eight years. The defendant argues that because the "aggregate maximum" is greater than eight years, the defendant is eligible. Neither truly address the alternative question of whether the defendant could be eligible for resentence for the 2009 indictments, even if not eligible for the 2017 conviction. This court determines that under either scenario, the defendant is not eligible for resentence.

As previously noted, CPL 440.47 permits a defendant serving a sentence of eight years or more to apply for resentence. It does not provide that a defendant serving "a sentence or sentences" or serving "a combined sentence" of eight years or more is eligible. Had the legislature so intended, it could have easily crafted the statute to so provide. As a result, this court determines that the DOCCS calculation of an "aggregate maximum" does not somehow convert a seven year sentence into something more.^[FN8]

The question then becomes whether the failure of DOCCS to specify the order in which the "aggregate maximum" was to be served then permits this court to resentence the defendant on the 2009 indictments. Once again, this court concludes that it does not.

Penal Law § 70.25 (2-a) provides that

"[w]hen an indeterminate or determinate sentence of imprisonment is imposed pursuant to [§] . . . 70.06^[FN9] . . . and such person is subject to an undischarged indeterminate or determinate sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence."

Even where, as here, the court fails to state its sentence is to run [*4]consecutively, the court "is deemed to have imposed the consecutive sentence the law requires." (People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009].) Thus, pursuant to the plain language of the statute, and as noted in numerous appellate cases, the 2017 conviction sentence was to begin only once the defendant had completed serving his sentence on the 2009 indictments. (See e.g. People ex rel. Washington v Burge, 30 AD3d 1066 [4th Dept 2006], lv denied 7 NY3d 711 [2006]; People ex rel. Smith v Burge, 27 AD3d 1156 [4th Dept 2006]; Matter of Colon v Fischer, 74 AD3d 1670 [3d Dept 2010], lv denied 15 NY3d 710 [2010].)

As shown in the defendant's exhibit J, he was returned to DOCCS custody on March 15, 2018. At that time he owed one year, one month and 23 days on his 2009 convictions. Thus, on May 8, 2019, he completed serving his sentence on the 2009 indictments. Since he has completed serving that sentence, the court is without power to modify it and, as noted, he is similarly ineligible on indictment No. 17-197-17.

For the reasons set forth herein, the defendant's application for resentence is denied in its entirety.