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The Supreme Court is often faced with evaluating the requests of offenders who are attempting to reduce their sentences in prison. This is especially true as it relates to indeterminate sentences. Indeterminate sentences are those sentences that have no definite length or end date. The offender is given certain criteria that he or she must meet before being considered for parole. Until they meet the criteria, they stay in prison no matter how long it takes. Many of these offenders spend this time applying to the court to reevaluate their sentence and give them a determinate sentence instead.
The criteria for resentencing on a class A-II drug felony can be more restrictive than the criteria for resentencing under CPL §440.46(1). To be eligible for resentencing under this category, the offender must still have a minimum of three years left to serve on that sentence. The legislature apparently was attempting to prevent resentencing the inmate who was already on parole at the time that they make the request by applying this three-year limitation.
The criteria for resentencing on a class B drug felony according to § 440.46 (1) is much less restrictive. Under these criteria, the inmate is only required to still be subject to the sentence. The sentence calculation that is used by the New York Department of Corrections has been in effect for more than forty years. The calculation provisions are provided in Penal Law §70.30. The court tends to feel that since the legislature was familiar with §70.30 at the time that it enacted §440.46, they must have intended that for the purpose of resentencing eligibility §70.30 must be used.
It is important to note that there are some instances when these resentencing guidelines do not apply. When the legislature does not intend them to apply, they generally list specific limitations and sometimes include its own calculation provisions. When they intend that Article 70 is to be used for the resentencing guidelines the resentencing provision is silent.
In one case, an inmate who was convicted of a class B drug felony and then committed a class C drug felony, applied to the court for resentencing. After reviewing the situation, the court found that to resentence him on his class B drug felony would be giving him a benefit that would compare with being resentenced on his class C drug felony conviction. Because he would not be eligible for resentencing under his class C drug felony, the court ruled that he would not be able to be resentenced.
The defendant in that case contended that he was not requesting resentencing on the class C felony at all. He stated that the sentence that he had received of three and a half years to seven years was to remain unaltered. That being the case, he felt that recalculation of his sentence would apply only to the class B drug felony sentence under CP: §440.46(1).
The court ruled that in this man’s case, the court had sentenced him first in 1997 and the second sentence was imposed more than six years later. Just because the first sentence was for an eligible crime under the statute, the second clearly was not. The second sentence was issued to run consecutively to the first. The court contends that if the sentences had been issued at the same time, then the inmate would have been entitled to resentencing. Since they were in fact six years apart from each other, he is not entitled to resentencing. After reviewing all of the inmates arguments and in considering the remaining arguments that he set forth in a letter to the court, the court finds no basis to revise the previous ruling. This defendant was not granted a resentencing hearing.
At Stephen Bilkis & Associates with its Criminal law Lawyers has convenient offices located throughout New York and the Metropolitan area. Our Drug Crime Attorneys can provide you with advice to guide you through difficult situations. Without a Drug Crime Lawyer, you could lose precious compensation to pay for your defense.