The People, Respondent,v.Jose Rodriguez, Appellant.BriefN.Y.February 12, 2013OFFICE OF THE DISTRICT ATTORNEY, KIGS COUNTY RENAISSANCE PLAZA 81350 JAY STREET BROOKLYN, N.Y. 11201-2908 (718) 250-2000 CHARLES J. HYNES Distrld Attorney VlcrOR BARL Assisant District Attorney January 23, 2013 Hon. Jonathan Lippman Chief Judge of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Jose Rodriguez Kings County Indictment No. 14710/1994 Submission pursuant to Rule 500.11 Dear Chief Judge Lippman: The defendant, Jose Rodriguez, appeals from a June 27, 2012 order of the Appellate Division, Second Department, which affirmed a June 11, 2010 order of the Supreme Court, Kings County (Sullivan, J.), granting the defendant's motion for resentencing pursuant to the Drug Law Reform Acts of 2004, 2005, and 2009, but denying the defendant's request to run two of the new determinate terms concurrently 0ith each other. People v. Rodriguez, 96 A.D.3d 1079 (2d Dep't 2012). The sole issue on the instant appeal is whether a court, when resentencing a defendant on multiple convictions pursuant to the Drug Law Reform Acts, is authorized to change the relationship between originally-imposed sentences from consecuti ve to concurrent. 1 The Appellate Division correctly held that the resentencing court lacks such authority, and the defendant's attempt to distinguish People v. Acevedo, 14 N. Y. 3d 828 (2010), on which the Appellate Division relied, is unavailing. Accordingly, the order of the Appellate Division should be affirmed. lpeople v. Tyrell Norris, 90 A.D.3d 788 (2d Dep't 2011), Iv. granted, 18 N.Y.3d 926 (2012), and People v. Elbert Norris, 90 A.D.3d 955 (2d Dep't 2011), Iv. granted, 18 N.Y.3d 926 (2012), present the same issue as the instant case. The Norris cases have been fully briefed and are calendared for oral argument on February 7, 2013. People v. Jose Rodriguez January 23, 2013 I. STATEMENT OF FACTS A. The Defendant's Crimes, Conviction, and Original Sentence On October 12, 1994, the defendant, acting in concert with Gaspar Cuevas, sold more than two ounces of cocaine to an undercover police officer. On October 20, 1994, the defendant, again acting in concert with Cuevas, sold more than four ounces of cocaine to the same undercover officer. On November 2 and November 17, 1994, the defendant, acting alone, sold more than two ounces of cocaine to the same undercover officer. On November 28, 1994, the defendant agreed to sell more than eight ounces of cocaine to the same undercover officer. The defendant was arrested that day as he stood next to an automobile in which there was a bag containing more than eight ounces of cocaine. The defendant was charged by Kings County Indictment Number 14710/94 with five counts of Criminal Sale of a Controlled Substance in the First Degree (P.L. § 220.43(1)), two counts of Criminal Possession of a Controlled Substance in the First Degree (P.L. former § 220.21(1) (four ounces or more)), three counts of Criminal Possession of a Controlled Substance in the Second Degree (P.L. former § 220.18(1) (two ounces or moreJ)/ five counts of Criminal Possession of a Controlled Substance in the Third Degree (P.L. § 220.16 (1)), and one count of Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. § 220.03). The defendant was tried before a jury. He was found guilty of three counts of Criminal Sale of a Controlled Substance in the First Degree (P.L. § 220.43(1)), two counts of Criminal Possession of a Controlled Substance in the Second Degree (P. L. former § 220.18 (1)), and three counts of Criminal Possession of a Controlled Substance in the Third Degree (P. L. § 220.16 (1) ) . These counts related to the November 2, 17, and 28, 1994 transactions. The defendant was acquitted of the counts of the indictment relating to the October 12 and 20, 1994 transactions. 2Section 22 of the Drug Law Reform Act of 2004 (chapter 738, § 22 of the 2004 Laws of New York) raised the aggregate minimum weight for first-degree possession of a narcotic drug from four ounces to eight ounces. See P. L. § 220.21 (1) . Section 21 of the Drug Law Reform Act of 2004 (chapter 738, § 21 of the 2004 Laws of New York) raised the aggregate minimum weight for second-degree possession of a narcotic drug from two ounces to four ounces. See P.L. § 220.18 (1). 2 People v. Jose Rodriguez January 23, 2013 On January 12, 1996, the Supreme Court (Starkey, J.) sentenced the defendant to concurrent prison terms of 15 years to life on the first-degree sale counts relating to the transactions on November 2 and 28, 1994. The court imposed a consecutive sentence of 15 years to life on the first-degree sale count relating to the transaction on November 17, 1994. On the two second-degree possession counts, the court imposed sentences of eight years to life, and on the three third-degree possession counts, the court, having adjudicated the defendant a second felony offender, imposed sentences of l2l1 to 25 years, all of which sentences were ordered to run concurrently with the l5-to- life sentences. Thus, under the originally-imposed indeterminate sentences, the defendant's aggregate prison term was 30 years to life. B. The Defendant's Direct Appeal and His Habeas Petition The defendant appealed from his judgment of conviction, contending that his Sixth Amendment right to a public trial was violated by the exclusion of his mother and his brother from the courtroom during the testimony of an undercover officer, and that his sentence was harsh and excessive because of the imposition of consecuti ve sentences. On February 1, 1999, the Appellate Division, Second Department, affirmed the defendant's judgment of conviction in all respects, and on June 7, 1999, Judge Ciparick denied the defendant's application for leave to appeal to this Court. People v. Rodriguez, 258 A.D.2d 483 (2d Dep't), Iv. denied, 93 N.Y.2d 978 (1999). Thereafter, the defendant petitioned the United States District Court for the Eastern District of New York for a writ of habeas corpus, seeking a new trial on the ground that his conviction had been obtained in violation of his right to a public triaL. After a lengthy journey through the federal courts, the defendant's petition ultimately was denied. See Rodriguez v. Miller, No. 00-CV-3832 (FB), 2001 U.S. Dist. LEXIS 17659 (E.D.N.Y. Oct. 22, 2001) (denying habeas petition); Rodriguez v. Miller, 82 Fed. Appx. 715, 2003 U.S. App. LEXIS 23553 (2d Cir. Nov. 18, 2003) (vacating judgment of the district court and remanding the case to that court for reconsideration in light of a then-recently-issued Second Circuit decision on the right to a public trial); Rodriguez v. Miller, No. OO-CV- 3832 (FB), 2004 U.S. Dist. LEXIS 23741 (E.D.N.Y. Nov. 24, 2004) (again denying habeas petition); Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) (reversing judgment and granting habeas petition); Miller v. Rodriguez, 549 U.S. 1163 (2007) (granting 3 People v. Jose Rodriguez January 23, 2013 the People's petition for a writ of certiorari, vacating the judgment of the Second Circuit, and remanding the case to that court for further consideration in light of a then-recently- issued Supreme Court decision); Rodriguez v. Miller, 537 F. 3d 102 (2d Cir. 2007) (on remand, denying habeas petition), cert. denied, 552 u.s. 1262 (2008). C. The Motion for Resentencing By papers dated January 20, 2010, the defendant moved for an order, pursuant to the Drug Law Reform Act of 2004 (Chapter 738 of the 2004 Laws of New York), the Drug Law Reform Act of 2005 (Chapter 643 of the 2005 Laws of New York), and the Drug Law Reform Act of 2009 (C.P.L. § 440.46), vacating the indeterminate sentences imposed by Justice Starkey on January 12, 1996, and resentencing the defendant to an aggregate determinate term of imprisonment of 15 years a proposed resentence that would require that the consecutive term on one of the defendant's class A- I felonies be changed to a concurrent term. Because Justice Starkey had retired, the defendant's motion was assigned to another judge, Justice James P. Sullivan. The People argued in response to the motion that, although the Drug Law Reform Acts authorized the court to change the defendant's indeterminate sentences to determinate sentences, the DLRAs did not authorize the court to change the originally- imposed consecutive sentences to concurrent sentences. The People did not otherwise oppose the defendant's motion for resentencing, and stated in their papers that if the resentencing court were to agree with the People that the consecutive/concurrent structure of the defendant's sentences could not be altered, then the People would not oppose resentences of 15 years' imprisonment and five years' post- release supervision on the defendant's class A-I felony convictions, eight years' imprisonment and five years' post- release supervision on his class A-II felony convictions, and six years' imprisonment and three years' post-release supervision on his class B felony convictions. (Because the defendant was a second felony offender previously convicted of a violent felony offense -- Criminal Possession of a Weapon in the Third Degree, P. L. former § 265.02 (4) the proposed determinate prison terms of 15 years, eight years, and six years 4 People v. Jose Rodriguez January 23, 2013 were the minimum authorized §§ 70.70 (4) (b) (iJ, 70.71(4) (b) (iJ, resentences. (ii)).3 See P.L. By a four-page decision and order dated June 11, 2010, Justice Sullivan granted the defendant's motion for resentencing to the extent of proposing to resentence him to determinate prison terms of 15 years and five years of post-release supervision on his three class A-I felony controlled substance convictions; eight years and five years of post-release supervision on his two class A-II felony controlled substance convictions; and six years and three years of post-release supervision on his three class B felony controlled substance convictions. See Decision and Order at 3-4. However, the court, citing People v. Acevedo, 14 N.Y.3d 828 (2010), and People v. Vaughan, 62 A.D.3d 122 (2d Dep't 2009), ruled that it was not authorized to change the originally-imposed consecutive sentences to concurrent sentences. See Decision and Order at 3. Upon being informed that the defendant would waive his right to appeal from the proposed resentence, Justice Sullivan, by a second decision and order also dated June 11, 2010, vacated the original sentence imposed by Justice Starkey in 1996 and resentenced the defendant in accordance with the terms of the proposed resentence. D. The Appeal from the Resentence The defendant appealed from the resentence. His sole claim in the court below was that the resentencing court had erred in holding that it was without authority to run the sentences on all of the defendant's class A-I felony convictions concurrently. On June 27, 2012, the Appellate Division, Second Department, rej ected the defendant's claim. Ci ting People v. Acevedo, 14 N.Y.3d 828 (2010), and three Second Department cases two of which are pending before this Court (see note 1, supra) -- the court held that the 2004, 2005, and 2009 Drug Law Reform Acts did not authorize resentencing courts to alter the 3The People stated that if, however, the court were to conclude that it had the authority to substitute concurrent for consecutive sentences and if the court were inclined to exercise that authority, then the People would recommend that the court resentence the defendant to a prison term of 21 years on each of his class A-I felony convictions. 5 People v. Jose Rodriguez January 23, 2013 original relationship between sentences such originally ordered to run consecutively could be concurrently. People v. Rodriguez, 96 A.D.3d Dep't 2012). that sentences ordered to run 1079, 1080 (2d On October 4, 2012, Judge Ciparick granted the defendant's application for leave to appeal to the Court of Appeals. I I . ARGUMENT THE DRUG LAW RESENTENCING CONSECUTIVE SENTENCES. REFORM ACT OF 2004 DOES NOT GRANT A COURT THE AUTHORITY TO CHANGE THE OR CONCURRENT RELATIONSHIP BETWEEN The Appellate Division correctly ruled that when a court resentences a defendant under the 2004 Drug Law Reform Act ("2004 DLRA") on his class A-I felony drug convictions, the court may not change the original relationship between the sentences on those convictions from consecutive to concurrent. Section 23 of the 2004 DLRA (see L. 2004, ch. 738, § 23, 2004 N. Y. Laws 1462, 1474-75) grants a court the authority, in certain cases, to replace a class A-I felony drug offender's indeterminate sentences with determinate sentences of imprisonment. However, the statute does not also grant the court the power to run any new determinate terms concurrently, when the original indeterminate terms had been ordered to run consecutively. See People v. Acevedo, 14 N.Y.3d 828, 831 (2010) (" 'a court that resentences a defendant pursuant to the 2004 DLRA does not possess the authority, conferred by Penal Law § 70.25 (1 J, to determine whether the sentence is to be served concurrently or consecutively with respect to other sentences'" (quoting People v. Vaughan, 62 A.D.3d 122, 128 (2d Dep't 2009))). With the 2004 DLRA, the Legislature enacted a comprehensive and highly structured law that included both substantive changes to the prior sentencing scheme as well as detailed rules of procedure governing applications for resentencing. In enacting such a highly structured law, the Legislature quite obviously considered, and made its own determinations concerning, the parts of the previous sentencing scheme that needed to be ameliorated and the parts that should be left undisturbed. See People v. Laing, 79 N.Y.2d 166, 171 (1992). 6 People v. Jose Rodriguez January 23, 2013 Thus, the authority conferred upon a DLRA resentencing court by the Legislature is specific and precisely delineated; and, contrary to defendant's contention (see Defendant's Rule 500.11 submission at 6-7), the fact that the resentencing court, prior to imposing resentence, is directed to enter an order "vacating" the originally-imposed sentence (see 2004 DLRA, § 23, 2004 N.Y. Laws at 1474-75), does not mean that the court may change originally-imposed consecutive sentences to concurrent sentences. That authority was withheld by the Legislature, and only the Legislature, if it so chooses, may modify the clear resentencing scheme that it so carefully constructed. See Laing, 79 N.Y.2d at 170-71. Accordingly, the Appellate Division's order affirming the Supreme Court's order should be affirmed. A. Section 23 of the 2004 DLRA very specifically defines the scope of a court's resentencing authority, and such authority does not include al tering the consecuti ve or concurrent relationship between sentences. Accordingly, the valid and legally imposed consecuti ve relationship between defendant's sentences cannot now be changed. The evidence at the defendant's jury trial established that on November 2, 1994 and November 17, 1994, the defendant sold more than two ounces of cocaine to an undercover officer, and that on November 28, 1994, he sold more than eight ounces of cocaine to an undercover officer. The defendant was convicted, inter alia, of three counts of Criminal Sale of a Controlled Substance in the First Degree, a class A-I felony (P.L. § 220.43(1)). On January 12, 1996, the defendant was sentenced to concurrent prison terms of 15 years to life on the first-degree sale counts relating to the November 2 and 28, 1994 transactions and to a consecutive prison term of 15 years to life on the first- degree sale count relating to the November 17, 1994 transaction. The Supreme Court could have exercised its discretion to run all of these sentences concurrently with each other, but chose instead to run one of the sentences consecutively to the other two. Once the defendant began serving his sentence, the sentencing court was divested of the authority to change the sentence in any way, because the sentence was valid, legal, and lawfully imposed. See C. P. L. §§ 430.10 (prohibiting court from al tering a commenced incarceration sentence, except where 7 People v. Jose Rodriguez January 23, 2013 "specifically authorized by law"), 440.20 (permitting vacatur of a sentence, even when incarceration has begun, where the original sentence was illegal, unlawfully imposed, or otherwise invalid as a matter of law). The only way that the court could have been empowered to modify the sentence that it had imposed on defendant was if that authority were "specifically authorized by law." See C.P.L. § 430.10. Such authority was granted to the court to some degree by the 2004 DLRA, but that authority, as set out in section 23 of the 2004 DLRA, is quite specific and its extent is circumscribed. Contrary to defendant's present claim, the 2004 DLRA does not give a court plenary authority to impose a new sentence "from scratch" (see Defendant's Rule 500.11 submission at 7) , but rather permits a court only to replace an indeterminate sentence of imprisonment with a determinate sentence of imprisonment. See L. 2004, ch. 738, § 23, 2004 N. Y. Laws at 1474-75. The 2004 DLRA made certain significant changes to the drug laws that existed prior to December 14, 2004 (the day on which the governor signed the Act into law). The 2004 DLRA, inter alia, (1) created a new determinate sentencing structure for all drug felonies (see L. 2004, ch. 738, §§ 20, 36 (creating new Penal Law sections 70.70 and 70.71)); (2) allowed for defendants, sentenced and imprisoned under the old indeterminate terms for class A-I felony drug convictions, to apply for resentencing to a determinate sentence of imprisonment as authorized for a class A-I felony by and in accordance with the new P.L. § 70.71 (see L. 2004, ch. 738, § 23); and (3) doubled the weights of narcotic drugs that would have to be proved for conviction of Criminal Possession of a Controlled Substance in the First Degree ("A-I narcotic drug possession") and Criminal 8 People v. Jose Rodriguez January 23, 2013 Possession of a Controlled Substance in the Second Degree ("A-II narcotic drug possession"). See L. 2004, ch. 738, §§ 21 and 22.4 The defendant in this case was eligible, under the 2004 DLRA, to apply for resentencing on his class A-I drug felony convictions, pursuant to which he was incarcerated and serving three indeterminate sentences of 15 years to life. However, nothing in the 2004 DLRA granted the resentencing court the authority to change the relationship between lawfully-imposed sentences on class A-I drug felony convictions from consecutive to concurrent. 5 A court's authority to determine the concurrent relationship between sentences convictions resides in section 70.25(1) consecutive or for felony drug of the Penal Law 4The Drug Law Reform Act of 2005 (chapter 643 of the 2005 Laws of New York; hereinafter "2005 DLRA") allowed for certain defendants, sentenced and imprisoned under the old indeterminate terms for class A-II felony drug convictions, to apply for resentencing to a determinate sentence of imprisonment as authorized for a class A-II felony by and in accordance with the new P. L. § 70. 71 . See L. 2005, ch. 643, § 1. Section 440.46 of the Criminal Procedure Law, enacted in 2009 (see L. 2009, ch. 56, pt. AA, § 9), allowed for certain defendants, sentenced and imprisoned under the old indeterminate terms for class B felony drug convictions, to apply for resentencing to determinate sentences of imprisonment in accordance with the new P.L. § 70.70. 5Section 23 of the 2004 DLRA provides in pertinent part: "If the court determines that such person does stand convicted of such a class A-I felony offense, the court shall, unless substantial justice dictates that the application should be denied, . specify and inform such person of the term of a determinate sentence of imprisonment it would impose upon such conviction, as authorized for a class A-I felony by and in accordance with section 70.71 of the penal law, in the event of a resentence and shall enter an order to that effect. The court shall notify the person that, unless he or she withdraws the application or appeals from such order, the court will enter an order vacating the sentence originally imposed and imposing a determinate sentence of imprisonment authorized to be imposed upon such conviction by section 70.71 of the penal law; provided that the term thereof shall be the same as the court previously specified. " 9 People v. Jose Rodriguez January 23, 2013 (hereinafter "P.L. § 70.25"), and that authority is logically and legally distinct from a court's authority to determine the length of the terms of imprisonment of those sentences. Compare P.L. § 70.25 with P.L. §§ 70.70 and 70.7l. Thus, a court's resentencing authority with regard to the length of a prison term does not entail an equal authority with regard to the concurrent /consecutive relationship between sentences, or vice- à-versa. See People v. Kadry, 63 A.D.3d 856, 857 (2d Dep't 2009) (court, which had granted defendant's C.P.L. § 440.20 motion to set aside consecutive sentences as violative of P. L. § 70.25, could resentence defendant only to the extent of making sentences run concurrently, and could not also modify the already-commenced legal sentence by increasing the prison terms on each count), 1 v. granted, 13 N. Y. 3d 797, appeal dismissed, 13 N.Y.3d 903 (2009); People v. Davis, 12 A.D.3d 237, 238 (1st Dep't 2004) (defect was in consecutive relationship between sentences, and only that relationship could be changed; length of each sentence could not be changed). Indeed, it is a well-established rule that a court's discrete authority to change one aspect of a sentence, upon vacatur of the sentence, to remedy a defect that was rendering the sentence illegal does not give the court plenary authority to alter other aspects of the sentence. See People v. Lingle, 16 N.Y.3d 621, 635 (2011) (at a resentencing to correct a Sparber error by pronouncing a period of post-release supervision, the trial court lacks discretion to also reconsider the incarceratory component of the defendant's determinate sentence); People v. Yannicelli, 40 N.Y.2d 598, 601- 02 (1976) (where there was a defect in the original sentence regarding the fines to be imposed, resentencing court was not empowered also to change the terms of imprisonment originally imposed, as there was no defect in those terms). In a case, such as this one, in which no aspect of the sentence is, in fact, invalid or defective in any legal sense, the rule that a court may not alter any part of a sentence other than that aspect explicitly permitted by statute should be even more strictly construed. Because there is no language in the 2004 DLRA that either explicitly empowers a court to alter the consecutive/concurrent relationship between sentences when imposing new determinate terms, or even implicitly refers to P. L. § 70.25 -- the statute conferring on courts the authority to decide whether to impose consecuti ve or concurrent sentences -- the resentencing statute does not authorize a court to modify the original, lawfully imposed relationship. (Nor is there any language in the 2005 10 People v. Jose Rodriguez January 23, 2013 DLRA or in C. P. L. § 440.46 granting a court the authority to change lawfully-imposed sentences on drug felony convictions from consecutive sentences to concurrent sentences.) Indeed, in People v. Acevedo, 14 N.Y.3d 828 (2010), this Court explicitly rej ected the contention that a court resentencing a class A-I felony drug offender under the 2004 DLRA also has the authority conferred by P.L. § 70.25(1) to decide whether sentences should run consecuti vely or concurrently: Defendant's reliance on Penal Law § 70.25 (1) is misplaced. The purpose of the DLRA is to ameliorate the harsh sentences required by the original Rockefeller Drug Law. When a court imposes a reduced sentence under the amended statute it does not impose an "additional term of imprisonment" as contemplated by Penal Law § 70.25 (1). The DLRA proceeding is meant to effect an alteration of the existing sentence as authorized by law. As such, "a court that resentences a defendant pursuant to the 2004 DLRA does not possess the authori ty, conferred by Penal Law § 70.25 (1) , to determine whether the sentence is to be served concurrently or consecutively wi th respect to other sentences" (People v Vaughan, 62 AD3d 122, 128 (2d Dept 2009)). Id. at 831 (emphasis added) (holding, in a 2004 DLRA case, that the resentencing court, while having the authority to replace the indeterminate sentence with a determinate sentence on the class A-I felony drug conviction, did not also possess the authori ty to modify the originally imposed consecuti ve relationship between the sentences for the drug felony conviction and weapon possession convictions). The defendant contends that Acevedo is distinguishable from his case because, in Acevedo, the question was whether a resentencing court could alter the consecutive relationship between a sentence on a DLRA-eligible narcotics offense and a sentence on a DLRA-ineligible non-narcotics offense. Here, by contrast, all of the sentences were on DLRA-eligible narcotics offenses. See Defendant's Rule 500.11 submission at 7-9. But this is a distinction without a difference. In Acevedo, as the 11 People v. Jose Rodriguez January 23, 2013 above-quoted language shows, this Court held that a resentencing court's authority under the 2004 DLRA to replace an indeterminate sentence with a determinate sentence does not also encompass the authority conferred by P.L. § 70.25(1) to change the consecutive/concurrent relationship between sentences. That unambiguous holding applies equally to every DLRA resentencing, irrespecti ve of whether some of the defendant's original sentences are on DLRA-ineligible offenses. The defendant nonetheless claims that the 2004 DLRA resentencing scheme is "comprehensive," and he invites this Court, therefore, to read into the 2004 DLRA the authority for a resentencing court to redetermine the relationship between sentences (Defendant's Rule 500.11 submission at 5, 7) . However, as argued above, the 2004 DLRA does not confer sweeping resentencing powers on a court, and instead, as discussed below, is quite precise in delineating the scope of the court's resentencing jurisdiction: First, section 23 of the 2004 DLRA expressly requires that the person be "in the custody of the department of correctional services" when applying for relief. Addi tionally, section 23 of the 2004 DLRA specifically provides that, to be eligible for resentencing, a person must have been "convicted of a class A-I felony offense defined in article two hundred twenty of the penal law," and, therefore, it does not encompass those convicted of any non-Article 220 offense, such as Conspiracy in the First Degree (a class A-I felony), even if the non-Article 220 offense was drug-related. See People v. Diaz, 68 A.D.3d 497 (1st Dep't 2009) (defendant was entitled to 2004 DLRA resentencing hearing on class A-I felony drug conviction, but not on conspiracy conviction). Furthermore, section 23 of the 2004 DLRA clearly prohibits the resentencing court from considering any challenge "to the underlying basis of the subj ect conviction" and limits the resentencing court to imposing a new determinate prison sentence "as authorized for a class A-I felony by and in accordance with section 70.71." Cf. People v. Quinones, 22 A.D.3d 218 (1st Dep't 2005) (defendant convicted of first-degree criminal possession of a controlled substance may not be resentenced as class A-II felony drug offender under the 2004 DLRA, even though, in light of new weight requirements, his crime, if committed after the effective date of the 2004 DLRA, would no longer qualify as a class A-I felony) . Notably, neither section 23 of the 2004 DLRA, nor any other section of the Penal Law referenced in the 2004 DLRA (for example, P.L. § 70.71) makes any mention at all of P.L. § 70.25 (which is entitled, "Concurrent and consecuti ve terms of 12 People v. Jose Rodriguez January 23, 2013 imprisonment") . Therefore, there is simply no basis for imputing to the Legislature the intent to include in a court's otherwise carefully limited resentencing power the authority to al ter the concurrent/ consecuti ve relationship between sentences. Furthermore, neither the 2005 DLRA (authorizing resentencing on certain class A-II felony narcotics convictions) nor the 2009 DLRA (authorizing resentencing on certain class B, C, D, and E felony narcotics convictions (see C.P.L. § 440.46)) makes any mention at all of P. L. § 70.25. Had the Legislature not meant to exclude from a resentencing court's jurisdiction the authority to redetermine the relationship between sentences, the Legislature could have clarified its intent in 2005 or 2009, when it enacted those later statutes. And if not in 2005 or 2009, then the Legislature could certainly have clarified its intent in 2011, when it was amending C.P.L. § 440.46. In 2010, when confronted with the same issue as presented in this case, the Appellate Division, Fourth Department, relying on Acevedo, had ruled that even when resentencing a defendant solely on multiple drug convictions, the resentencing court still did not have authority to redetermine whether the new sentences should run consecutively to or concurrently with each other. People v. Highsmith, 79 A.D.3d 1741, 1742 (4th Dep't 2010), Iv. denied, 16 N.Y.3d 831 (Mar. 14, 2011). The Legislature was presumably aware of the Fourth Department's decision in that case when it amended C.P.L. § 440.46(1), in 2011, to substitute "department of corrections and community supervision" for "department of correctional services." See Act of Mar. 31, 2011, ch. 62, pt. C, subpt. B, § 79, 2011 N.Y. Laws 477, 590. The Legislature apparently approved of the Fourth Department's interpretation of the statute, because the Legislature did not in any way change or amend any of the DLRA statutes to contradict that interpretation. In sum, the extent of a court's authority to impose a new sentence pursuant to section 23 of the 2004 DLRA is quite clearly set out in the statute, and is strictly limited to replacing the original indeterminate sentence of imprisonment with a new determinate sentence of imprisonment selected from the appropriate range now applicable to eligible class A-I felony drug offenders. Al though defendant seeks to expand the resentencing authority of a court pursuant to section 23, to encompass the power to alter the legally imposed consecutive relationship of sentences, the unambiguous text of the statute simply does not contain any language that would support such an expansion, and the omission of such language from the otherwise 13 People v. Jose Rodriguez January 23, 2013 highly structured and particularized section 23 can only be viewed as deliberate. See People v. Bautista, 7 N.Y.3d 838, 839 (2006) (dismissing appeal to this Court in 2005 DLRA case, because although the 2005 DLRA did expressly permit a defendant to take an appeal from an order denying resentencing, the 2005 DLRA did not expressly mention C. P. L. § 450.90 and the Legislature did not otherwise amend the language of C. P. L. §§ 450.10 or 450.15, so as to permit an appeal to the Court of Appeals). See generally People v. Hernandez, 98 N.Y.2d 8, 10 (2002) (" (w) here a statute delineates the particular situations in which it is to apply, an 'irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded'" (quoting Laing, 79 N. Y. 2d at 171)); People v. Finnegan, 85 N. Y. 2d 53, 58 (Legislature's failure to include a substanti ve prescription in a statute is a strong indication that its exclusion was intended), cert. denied, 516 u.s. 919 (1995) . This Court is bound to read the Legislature's precisely crafted, unambiguous statute as written, and cannot on its own broaden the scope of a resentencing court's authority. See People v. Machado, 90 N.Y.2d 187, 192 (1997) ("(c)ourts, of course, cannot broaden the scope of the remedy afforded by CPL 440.10 beyond what the Legislature unambiguously specified" (ci ting, inter alia, McKinney's Cons. Laws of N. Y . , Book 1, Statutes § 73 (1971))); Laing, 79 N.Y.2d at 170-71 ("(c)ourts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes"). Accordingly, this Court should read section 23 of the 2004 DLRA as it is written, and leave it to the Legislature to amend the statute if the Legislature deems it advisable to do so. See generally People v. Boothe, 16 N.Y.3d 195, 198 (2011) ("It is well settled that courts are not to legislate under the guise of interpretation" (ci tation and internal quotation marks omi tted) ) . B. That the 2004 DLRA had does not mean that the authorize resentencing consecutive sentences to an ameliorative purpose Legislature intended to courts to change concurrent sentences. The defendant additionally claims that the underlying purpose of the 2004 DLRA, "to ameliorate the harsh sentences required to be imposed under the former sentencing statute . and to replace them with more enlightened approaches," cannot be 14 People v. Jose Rodriguez January 23, 2013 fully effectuated unless resentencing judges have the authority to change consecutive sentences to concurrent sentences, and "(n) othing" in the 2004 DLRA indicates that the Legislature intended to withhold that authority. See Defendant's Rule 500.11 submission at 9-10. The defendant's claim is without merit. The intent of the 2004 DLRA undoubtedly was ameliorative, but to say that a statute is ameliorative does not necessarily mean that the statute extends lenity to the greatest possible extent or in every possible respect. The fact that the Legislature no longer believed that drug offenders should receive life sentences simply does not support the conclusion that the Legislature intended to confer on courts wide-ranging resentencing authori ty, including the authori ty to change originally-imposed consecutive sentences to concurrent sentences. The Drug Law Reform Acts of 2004, 2005, and 2009, taken together, represent an extended legislative effort to reform the criminal justice system's response to drug-related crime in New York State. A particular goal of the DLRAs was to improve the lot of non-violent offenders, especially addicted offenders, who had been drawn into the use or sale of narcotic drugs. Collectively, the DLRAs drew a sharp distinction between, on the one hand, drug offenders with no felony criminal records or only non-violent criminal records, and, on the other hand, drug offenders with records of violent felony convictions. One consequence of this legislatively-drawn distinction is that a resentencing court, wi thout changing any originally-imposed consecuti ve sentences to concurrent sentences, may dramatically reduce the sentence of an offender with a non-violent criminal record, but may provide only more moderate relief to an eligible offender with a violent criminal record. This disparity in treatment is entirely in keeping with the purpose of the DLRAs, and thus, furnishes no basis for this Court to disturb the Legislature's carefully calibrated resentencing scheme. The 2004 DLRA and 2009 DLRA substantially reduced the minimum and maximum prison terms applicable to most (but not all) felony drug offenders, thereby broadening a court's discretion to show leniency when sentencing non-violent drug offenders. However, the 2004, 2005, and 2009 DLRAs all treated drug offenders with a prior history of violence, such as the defendant in this case, differently. 15 People v. Jose Rodriguez January 23, 2013 Although the 2004 DLRA's general purpose was to reduce sentences for drug offenders, the 2004 Act also modestly increased minimum sentences for some drug offenders with prior violent felony convictions (see L. 2004, ch. 738, §§ 20, 36, 2004 N.Y. Laws at 1473, 1479), and in this regard, '''the Act clearly distinguish (ed) "non-violent" drug offenders from offenders with a violent felony history.'" People v. Yusuf, 19 N.Y.3d 314, 320 (2012) (quoting People v. Yusuf, 2009 N.Y. Slip Op. 50311U (Sup. Ct. N.Y. Cty., Feb. 26, 2009), the Supreme Court's decision in that case). With the enactment of the 2004 DLRA, the Legislature for the first time made a distinction between second felony drug offenders whose prior felony conviction was for a non-violent felony and second felony drug offenders whose prior felony conviction was for a violent felony, plainly conveying the Legislature's intent that drug offenders with a non-violent history should be afforded greater leniency. People v. Dais, 19 N.Y.3d 335, 344 (2012); see P.L. former § 70.70 (3), (4) (2005); P.L. § 70.71 (3), (4). It is against this backdrop that one must consider the Legislature's decision not to permit a court to alter the consecutive relationship between sentences, which, as a matter of discretion, the original sentencing court had previously ordered. In a case where a court is resentencing a defendant, convicted of a class A-I felony narcotics offense, as a first felony drug offender under section 70.71 (2) of the Penal Law or as second felony drug offender under section 70.71 (3) of the Penal Law (i. e., as a drug offender with no prior violent felony conviction), that court may exercise its discretion to reduce significantly the defendant's aggregate prison term, even wi thout any change in the consecutive relationship between the sentences, by simply replacing each indeterminate prison sentence with the minimum possible determinate sentence. For example, a defendant with no prior felony convictions who was originally sentenced to two consecutive indeterminate prison terms of 15 years to life, for an aggregate sentence of 30 years to life, could now be resentenced, as a first felony drug offender, to two consecutive determinate prison terms of eight years (the minimum for a class A-I felony drug offender under the new scheme (P.L. § 70.7l(2)(b)(i)J), for an aggregate 16 People v. Jose Rodriguez January 23, 2013 sentence of 16 years' imprisonment. 6 Likewise, a defendant with a prior felony conviction who was originally sentenced to two consecutive indeterminate prison terms of 15 years to life, for an aggregate sentence of 30 years to life, could now be resentenced, as a second felony drug offender, to two consecutive determinate prison terms of 12 years (the minimum term for a class A-I second felony drug offender under the new scheme (P.L. § 70.71(3) (b) (i)J), for an aggregate sentence of 24 years' imprisonment. 7 Thus, the resentencing court has the ability considerable leniency to an eligible and deserving felony drug offender without a history of notwi thstanding the resentencing court's inability to the consecutive relationship of the sentences. to extend class A-I violence, also alter By contrast, in a case where the court is resentencing a defendant as a second felony drug offender with a prior violent felony conviction under section 70.71(4) of the Penal Law, the court's ability to reduce the defendant's aggregate sentence, without any change to the consecutive relationship between the individual prison terms, is not as great. For example, assume the original sentencing court had imposed on such a defendant two consecutive prison sentences of 15 years to life, for an aggregate sentence of 30 years to life. By imposing two consecutive determinate sentences of 15 years' imprisonment, which, under the new sentencing scheme, is the lowest permissible prison term for a second felony drug offender with a prior violent felony conviction (P.L. § 70.71(4) (b) (i)), the resentencing court would be able to reduce the maximum amount of time that the defendant could be held in prison from life to 30 years, but would not be able to reduce the minimum amount of time. However, if the defendant with a prior violent conviction 6 Under the old indeterminate pre-DLRAs sentencing scheme, the minimum indeterminate prison term that could be imposed on a first felony offender convicted of a class A-I drug felony was 15 years to life (P.L. § 70.00(2) (a), (3) (a) (i)). 7Non-violent second felony offenders who originally received consecutive sentences greater than the minimum indeterminate terms (~, two terms of 25 years to life, for an aggregate of 50 years to life), could upon resentencing, if deemed eligible and deserving , receive the minimum determinate terms, and thus, get an even more dramatic reduction in their aggregate sentence again, without the court ever having disturbed the consecuti ve relationship between the sentences. 17 People v. Jose Rodriguez January 23, 2013 had originally received a much harsher penalty than two consecutive terms of 15 years to life (~, two consecutive terms of 25 years to life), a court could even effectuate a reduction in the minimum, by resentencing the defendant to two consecuti ve terms of 15 years' imprisonment. In short, a resentencing court may still extend some benefit -- and sometimes a substantial benefit -- to a predicate felon with a violent history, but that benefit is less than that which a resentencing court may afford to a predicate felon wi thout a violent history. This disparate treatment between felony drug offenders with prior violent convictions and those wi thout such convictions comports completely with the purpose of the DLRAs, to ameliorate the harsh sentences being served by low-level drug offenders, while reasonably drawing a distinction between those with violent pasts and those without. While the defendant's aggregate resentence of 30 years is the same as the minimum term of the indeterminate sentence that he originally received, that result in this case does not compel the conclusion that the legislative goals of the 2004 DLRA have been frustrated. As explained above, the Legislature never intended that drug offenders with prior violent histories, like defendant, benefi t from the amelioration of the sentencing structure in the same way or to the same extent as drug offenders without such pasts. Indeed, the very fact that the resentencing provisions of the 2004 DLRA, 2005 DLRA, and 2009 DLRA (see L. 2004, ch. 738, § 23, 2004 N.Y. Laws at 1474-75; L. 2005, ch. 643, § 1, 2005 N.Y. Laws at 1581-82; C.P.L. § 440.46(3) (incorporating section 23 of chapter 738 of the Laws of 2004)) all allow a defendant both to take an appeal from a proposed resentence and to rej ect a proposed resentence before its final imposition establishes that the Legislature contemplated that there would be instances where a defendant would conclude that the proposed resentence was not beneficial and did not sufficiently ameliorate his current sentence such that he would want it to be imposed. * * * 18 People v. Jose Rodriguez January 23, 2013 For all of the reasons stated above, this Court should hold that the 2004 DLRA does not authorize a resentencing court to alter the consecutive/concurrent relationship between the originally-imposed sentences and should affirm the order of the Appellate Division. Respectfully submitted, VvCt~-lßu~ Victor Barall Assistant District Attorney (718) 250-2462 cc: Ellen Fried, Esq. Appellate Advocates 2 Rector Street - 10th Floor New York, NY 10006 (attorney for appellant) 19