The People, Appellant,v.Jarrod Brown, Respondent.

Brief

N.Y.March 24, 2015

To be argued by DANIELLE S. FENN (TIME REQUESTED: 15 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, against JARROD BROWN, Defendant-Respondent. W4444444444444444444444444444444444444444444444444444 BRIEF FOR APPELLANT W4444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Appellant JOHN M. CASTELLANO DANIELLE S. FENN Assistant District Attorneys Of Counsel 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-5838 DAVID CROW, ESQ. The Legal Aid Society 199 Water Street New York, NY 10038 July 29, 2014 Queens County Indictment Number QN11196/2001 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Defendant’s Re-sentencing Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Appeal to the Appellate Division. . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT THE 2011 CONFORMING AMENDMENT TO C.P.L. §440.46 TO REFLECT THE NEW NAME OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION DID NOT EXPAND THE ELIGIBILITY REQUIREMENTS OF THAT SECTION TO INCLUDE NON- INCARCERATED, PAROLED DEFENDANTS. . . . . . . . . . 17 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 TABLE OF AUTHORITIES Page No. Cases Hawkins v. Coughlin, 72 N.Y.2d 158 (1988). . . . . . . . . . . . . . . . . . 6, 23, 24 In Matter of Birch v. Henderson, 38 N.Y.2d 1025 (1976). . . . . . . . . . 34n.12 In the Matter of Murray v. Bartlett, 89 N.Y.2d 1002 (1997). . . . . . . . 34n.12 People ex rel. Westchester Fire Insurance Co. v. Davenport, 91 N.Y. 574 (1883). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Acevedo, 14 N.Y.3d 828 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Brown, 115 A.D.2d 155 (2014. . . . . . . . . . . . . . . . . . . . . . . passim People v. Elmer, 19 N.Y.3d 501 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Garson, 6 N.Y.3d 604 (2006). . . . . . . . . . . . . . . . . . . . . . . . . 29-30 People v. Hale, 93 N.Y.2d 454 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Kisina, 14 N.Y.3d 153 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Paulin, 17 N.Y. 3d 238 (2011). . . . . . . . . . . . . . . . . . . . . . . passim People v. Santiago, 17 N.Y.3d 246 (2011). . . . . . . . . . . . . . . . . . . . . . . 19, 34 People v. Sosa, 18 N.Y.3d 436 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . 35-36 People v. Utsey, 7 N.Y.3d 398 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Watson, 20 N.Y.3d 182 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Williams, 19 N.Y.3d 100 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . 22 ii Statutes L. 2004, Ch. 738. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 L. 2005, Ch. 634. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 L. 2009, Ch. 56, Part AAA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 L. 2011, Ch. 62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Corr. Law § 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 25n.4 Corr. Law § 70. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Corr. Law § 72. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25n.6 Corr. Law § 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25n.6, 26 Corr. Law § 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26n.6 Corr. Law § 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26n.6 Corr. Law § 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26n.6 Corr. Law § 205.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Corr. Law § 272.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Corr. Law § 274. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25n.5 Corr. Law § 601.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 C.P.L. § 440.46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim C.P.L. § 450.90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Exec. Law § 257. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26n.7 Exec. Law § 259. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Penal Law § 70.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29n.8 Penal Law § 70.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 iii Penal Law § 70.40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26n.7 Penal Law § 70.45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29n.8 Penal Law § 220.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law § 220.16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law § 220.39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law § 220.44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Other Authorities April 24, 2009 Press Release, “Governor Paterson Signs Rockefeller Drug Reforms into Law.. . . . . . . . . . . . . . . . . . . . . . . . . 19 Bonacquist, Practice Commentaries, McKinney’s Cons. Law of N.Y., Book 10B, Correction Law section 5, Supplementary Commentary p. 18-19 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Correction and Penal Law to the Civil Rights and Alcoholic Beverage Control Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Chapter 62 of the Laws of 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim McKinney’s Cons. Law of N.Y., Book 1, Statutes section 193 p. 358 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 27, 30, 37 Memorandum of Law in Support 2011-2012, New York State Executive Budget. . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Merger of Department of Correctional Services and Division of Parole Fact Sheet.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Preiser, Practice Commentaries, McKinney’s Cons. Law of N.Y., Book 11A, Criminal Procedure Law section 440.46, Supplementary Commentary p. 47-48 (2011). . . . . . . . . . . . . . . . . . 19 iv COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : JARROD BROWN, : Defendant-Respondent. : ------------------------------------------------------------------ x BRIEF FOR APPELLANT PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, the People appeal from a January 29, 2014 decision and order of the Appellate Division, Second Department. By that order, the Appellate Division affirmed the Supreme Court’s determination that defendant, who had been on parole at the time of the filing of his motion, was eligible for re-sentencing pursuant to Criminal Procedure Law section 440.46. At the time of the Appellate Division’s order, defendant was at liberty. QUESTION PRESENTED Did the 2011 amendment to Criminal Procedure Law section 440.46, which reflected the name change of the Department of Correctional Services (DOCS) to the Department of Corrections and Community Supervision (DOCCS) and which the Legislature expressly denominated a “technical conforming change,” provide new benefits to B-felony drug offenders by expanding the class of defendants eligible for re-sentencing to include defendants on parole? JURISDICTION Upon the issuance of an order granting leave to appeal by Judge Victoria A. Graffeo, dated May 9, 2014, this Court has jurisdiction under section 450.90(1) of the Criminal Procedure Law to hear this appeal from the order of the Appellate Division insofar as it affirmed the Supreme Court’s determination in a People’s appeal to the Appellate Division. FACTUAL AND LEGAL BACKGROUND On June 28, 2001, and August 24, 2001, defendant sold cocaine to an undercover police officer, near school grounds, while out on bail for a second-degree robbery case and on parole for a 1999 conviction for attempted third-degree criminal sale of a controlled substance. Defendant was arrested and charged with two counts of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]); two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]); Criminal Sale of a Controlled Substance In or Near School Grounds (Penal Law § 220.44[2]); and two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03) (Queens County Indictment Number QN11196/2001). On May 30, 2002, defendant pled guilty to one count of Criminal Sale of a Controlled Substance in the Third Degree in full satisfaction of all the 2 charges. On June 26, 2002, the court sentenced defendant, as a second felony1 offender, to an indeterminate prison term of from six to twelve years. 2 In a motion dated May 16, 2012, defendant, while on parole for the instant offense, moved for re-sentencing pursuant to section 440.46 of the Criminal Procedure Law. Although the statute requires that the applicant be in “custody”, and this Court had previously interpreted this term to mean incarceration, see People v. Paulin, 17 N.Y. 3d 238 (2011), defendant contended that he was eligible for relief due to the 2011 amendment to section 440.46. That amendment changed the name “Department of Correctional Services” to the “Department of Corrections and Community Supervision,” the newly created agency that combined the Department of Correctional Services and the Division of Parole. In a response dated July 12, 2012, the People opposed defendant’s motion, arguing that defendant did not qualify as an eligible offender under On May 30, 2002, defendant also pleaded guilty to Robbery in the Second Degree in1 another pending case (Queens County Indictment Number 3286/2000), and was sentenced to a six-year determinate prison term, to be served concurrently with his sentence in the instant case. Defendant did not file a Notice of Appeal or perfect an appeal in the Appellate Division. 2 On July 23, 1998, defendant had previously pleaded guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree in three separate additional drug sale cases (Queens County Indictment Numbers QN10842/1998, QN10841/1998, and QN10840/1998). Defendant was sentenced the same day to time served and a five-year term of probation on each case, to be served concurrently. On August 16, 1999, defendant pleaded guilty to another indictment charging Attempted Criminal Sale of a Controlled Substance in the Third Degree (Queens County Indictment Number QN11561/1998). Defendant was sentenced as a second felony offender to an indeterminate prison term of from three to six years. He was also re-sentenced to concurrent indeterminate prison terms of from two to six years for violating the conditions of his probationary sentences under Indictment Numbers QN10842/1998, QN10841/1998, and QN10840/1998. 3 section 440.46 of the Criminal Procedure Law because he was not currently incarcerated. In a decision dated July 31, 2012, the Supreme Court granted defendant’s motion for re-sentencing. The court concluded that the revised section 440.46 did “not distinguish between defendants who are incarcerated and those who are on parole but are not incarcerated.” Thus, under that interpretation, the court found that defendant, who was still in the care or keeping of DOCCS, was eligible for re-sentencing. The court next determined that substantial justice did not dictate the denial of defendant’s motion, noting that he was convicted in the instant case of a low level drug sale, and that, while incarcerated, had participated in various programs and obtained his GED. The court re-sentenced defendant to a seven-year determinate prison term to be followed by three years’ post-release supervision. In a brief dated November 16, 2012, the People appealed the Supreme Court’s decision, arguing that defendant was not eligible to apply for re-sentencing under section 440.46 of the Criminal Procedure Law because he was not incarcerated at the time that he filed his re-sentencing motion. In a brief dated January 15, 2013, defendant argued that the Court should hold that both incarcerated and paroled defendants should be eligible for re-sentencing because of the merger of the Department of Correctional Services and the Division of Parole. Defendant argued that this position 4 comported with the simplest reading of the statute and the ameliorative intent of section 440.46. In a decision dated January 29, 2014, the Appellate Division affirmed the Supreme Court’s determination that defendant was eligible for re- sentencing, holding that the “plain language” of section 440.46, when read together with Executive Law section 259-i(2)(b), showed that non-incarcerated defendants on parole were eligible for re-sentencing. People v. Brown, 115 A.D.2d 155 (2014). SUMMARY OF ARGUMENT The Appellate Division incorrectly expanded the eligibility for re- sentencing under CPL section 440.46, based on the 2011 amendments to that section, to include not only incarcerated defendants but also all defendants on parole. Under the statute as originally passed, only those in custody, i.e., incarcerated, were eligible to be re-sentenced, see People v. Paulin, 17 N.Y.3d 238 (2011), and the 2011 amendments were technical in nature, doing nothing more than conforming section 440.46 to reflect the new name of the Department of Correctional Services after it was merged with the Division of Parole. Because the operative language of the statute was not changed and because nothing in the legislative history evinces any intent to change the eligibility requirements of the statute, the amendment should have had no effect on the pool of eligible defendants. 5 Nevertheless, the Appellate Division held that the 2011 amendments expanded the eligibility pool for re-sentencing due to the “plain language” of the statute, as now written. Although the Appellate Division did not dispute that the word “custody” in 440.46 previously meant confinement, that court read an unrelated change in the definition of the term “legal custody” in an entirely different chapter of the consolidated laws to alter the scope of section 440.46. See Exec. Law 259-i(2)(b). The cited section from the Executive Law provides that defendants on parole or post-release supervision are in the “legal custody” of the new Department of Corrections and Community Supervision. But that amendment too was conforming in nature: parolees have always been in the “legal custody” of the supervising agency, without being in actual custody or under confinement and without being eligible for re-sentencing under section 440.46. There is no reason to believe that that amendment to the Executive Law was meant to alter the scope of 440.46. Moreover, “custody” and “legal custody” are distinct: the former denotes confinement or detention, and the latter constitutes “constructive custody,” i.e., supervision of, and responsibility for, particular individuals. See Hawkins v. Couglin, 72 N.Y.2d 158 (1988)(“custody” in P.L. § 70.30[3] means “confinement” or “detention,” i.e., “actual custody,” not “legal or constructive custody”). Section 440.46 requires actual “custody,” not “legal custody,” and, just as before the amendments, the term employed by the Legislature in 440.46 refers to confinement. 6 At the very least, there is a question over the meaning of the term “custody” sufficient to warrant a further inquiry into the Legislature’s intent. The results of that inquiry do not support the Appellate Division’s conclusion. The 2011 act merging the two agencies was primarily fiscal in nature, Ch. 62, L. 2011, Part C, Section 1, and the 2011 amendments to 440.46 were contained in a subpart that the Legislature expressly denominated “technical and conforming.” Ch. 62, L. 2011, Title. And, contrary to the Appellate Division’s conclusion, to the extent the new statute is designed to promote a defendant’s seamless transition back into society, the Appellate Division’s interpretation, which would necessarily shorten or eliminate post-release supervision, would not advance that goal. It would indeed severely reduce exposure to important programs and mandatory transition plans that the Legislature expressly sought to promote though this legislation. Ch. 62, L. 2011, Part C, Subpart A, Section 1. Moreover, contrary to the Appellate Division’s conclusion, the original intent behind the enactment of section 440.46 in the 2009 Drug Law Reform Act (DLRA) was to shorten the harsh sentences of imprisonment under the Rockefeller drug laws, as this Court has held, not to truncate defendants’ supervised transition back into society through parole. See Paulin, 17 N.Y. 3d 238 at 244. In the end, the Appellate Division’s expansion in eligibility requirements attributed far too much to what was nothing more than a conforming or technical amendment to change the name of the relevant agency 7 in the statute. Indeed, the 2011 act made similar conforming name-changes in 36 different statutes. It would simply be wrong to presume that the Legislature intended a substantive change in each. Because, as the legislative history shows, the Legislature never intended its merger legislation to alter the scope of those eligible for 440.46 relief and provide new benefits to B felony defendants, the Appellate Division’s decision so interpreting it should be reversed. STATEMENT OF FACTS Defendant’s Re-sentencing Motion In a motion dated May 16, 2012, defendant, by counsel, moved for re-sentencing pursuant to section 440.46 of the Criminal Procedure Law. Defendant argued that, although he was on parole, he was eligible for relief due to the 2011 amendment to section 440.46 of the Criminal Procedure Law that allowed for the re-sentencing of persons in the custody of the Department of Corrections and Community Supervision (DOCCS), the new agency that combined the Department of Correctional Services and the Division of Parole (A 11-12). Specifically, defendant argued that, because Chapter 62 of the Laws of 2011, merging the two agencies, intended to create a single state agency and provide a “seamless network of care,” the conforming amendments to Criminal Procedure Law section 440.46 expanded the eligibility section to include defendants under the custody of the Department of Corrections and Community Supervision (A 14-16). According to defendant, Executive Law 8 section 259-i(2)(b), which concerned the jurisdictions of the Division of Parole and the Department of Corrections, was amended to use more restrictive terms, such as “imprisonment in the custody of the department” and “institution” to refer to inmates, and defined supervisees as in the “legal custody of the department.” Thus, defendant argued that, because he was being supervised by DOCCS, he was in the legal custody of DOCCS, and, therefore, eligible for re-sentencing (A 16). Defendant also argued that a broader reading of the eligibility provision was consistent with the underlying amelorative intent of the statute and the gradual broadening of the Drug Law Reform Act’s re-sentencing provisions over the years (A 16-17). Finally, defendant argued that he should be re-sentenced because he earned his GED in prison, completed various prison programs, and maintained a good disciplinary history with only one Tier III violation (A 21- 24). In an affirmation dated July 12, 2012, the People opposed defendant’s motion, arguing that he was not eligible for re-sentencing because he had been paroled and, thus, was not in custody. Specifically, the People argued that the statutory language requiring a defendant to be in the custody of the Department of Correctional Services showed that a defendant must be incarcerated to be eligible (A 64, 66-69). 9 Moreover, the People argued that even if Criminal Procedure Law section 440.46 was rendered ambiguous by the 2011 amendment, the legislative history made clear that the Legislature never intended to create an entirely new class of eligible drug offenders by its substitution of terms in the statute. Instead, the People argued, and as explicitly stated in the legislation, the Legislature only intended the amendment to be a “conforming technical change” to reflect the newly constituted DOCCS and disbandment of the former Department of Correctional Services (“DOCS”). Indeed, the amendment to Criminal Procedure Law section 440.46 made no changes to the term custody, and there was no indication that the Legislature intended in any way to substantively amend the statute. As a result, and because there was no dispute that defendant was on parole at the time of his application and not incarcerated, the People argued that the court should deny defendant’s application for re-sentencing (A 70-73). Moreover, the People argued that the DLRA was designed to ameliorate the plight of those class “B” felony drug offenders who were in prison serving lengthy indeterminate sentences – those who were experiencing the harshest effects of Rockefeller era drug sentencing. See People v. Paulin, 17 N.Y.3d 238, 244 (2011). Thus, the People argued that the Legislature intended to limit the benefits of re-sentencing to incarcerated defendants and not extend them to paroled individuals, such as defendant (A 70-71). 10 Furthermore, the People challenged defendant’s reading of the statute. For example, the People argued that defendant claimed that the Legislature’s conforming amendments to section 259-i(2)(b) of the Executive Law demonstrated that it intended to include persons either in custody or on parole. According to defendant, this section, when “read together with the amendment to C.P.L. §440.46 . . . [makes] it . . . plain that both inmates and supervisees are now eligible to apply for resentencing” (A 16). But the People argued that the court should not read section 440.46 together with section 259- i(2)(b), as amended: section 440.46’s limited, name-substituting amendment did not alter the term custody – for instance, to state “legal custody,” the term used in section 259-i(2)(b) – and it must therefore be interpreted by its meaning at the time of the DLRA’s original enactment in 2009. And, the People argued, as it existed in 2009, section 259-i(2)(b)’s use of the term “legal custody” to include those individuals on parole was insufficient to render parolees eligible for relief under section 440.46 (A 75-76). The People also argued that viewing the New York Code as a whole at the time the DLRA was originally enacted supported a restrictive definition of the term custody because most – if not all – other references to parolees used the terms “supervise” or “supervision” to denote their legal status in relationship to the Division of Parole; the term custody was limited to those incarcerated by the Department of Correctional Services or otherwise held by local law enforcement agencies. Thus, the People argued, the 11 technical, conforming changes made by the March 31, 2011, enabling act, which were likely computer-driven word substitutions, may have been imperfect, and should not cause the court to interpret section 440.46 in a manner at odds with its legislative history (A 76). Finally, the People argued that, even if defendant were determined to be eligible for re-sentencing, substantial justice dictated that he not be re- sentenced because he had six felony drug convictions, many of which were committed while he had been released on bail, parole, or probation, and had violated parole and had violated three concurrent terms of probation. Moreover, the People argued that defendant should not be re-sentenced because he continued his drug activity in prison and received a Tier III infraction for arranging for a friend to bring a quantity of drugs to his grandfather’s funeral, which he had been approved to attend, so he could smuggle the drugs into prison (A 86-88). Thus, the People argued that defendant’s re-sentencing motion should be denied on the merits. In a decision dated July 31, 2012, the Supreme Court granted defendant’s motion for re-sentencing. The court concluded that the revised section 440.46 did “not distinguish between defendants who are incarcerated and those who are on parole but are not incarcerated.” (A 203). Thus, under that interpretation, the court found that defendant, who was still in the care or keeping of DOCCS, was eligible for re-sentencing (A 203). The court next determined that substantial justice did not dictate the denial of defendant’s 12 motion, noting that he was convicted in the instant case of a low level drug sale, and that, while incarcerated, had participated in various programs and obtained his GED. The court also noted that defendant’s criminal history consisted primarily of drug-related offenses, except for his robbery conviction, which had occurred more than ten years earlier and stated that defendant’s criminal history and failure to obey court orders stemmed from an addiction to drugs, not from a violent propensity (A 206-07). In addition, the court acknowledged that, while incarcerated, defendant received only two Tier Two violations and one Tier Three violation during his years in prison (A 206-07). After consideration of these facts, the court concluded that they did not warrant the denial of re-sentencing on substantial justice grounds and re- sentenced defendant to a determinate period of incarceration of seven years, along with a three-year period of post-release supervision (A 207-08). The Appeal to the Appellate Division In a brief dated November 16, 2012, the People appealed the Supreme Court’s decision, arguing that defendant was not eligible to apply for re-sentencing under section 440.46 of the Criminal Procedure Law because he was not incarcerated at the time that he filed his re-sentencing motion. The People argued that, under both established case law and statute, the term “custody” referred to actual incarceration, and the legislative history of the March 31, 2011 amendment made clear that the Legislature never intended to 13 create an entirely new class of eligible drug offenders by its substitution of terms. First, the People argued the term “custody” in section 440.46(1) retained its ordinary meaning of confinement or actual incarceration. Moreover, the People argued that chapter 62 of the Laws of 2011 explicitly stated that the Legislature only intended the amendment to be a “conforming technical change,” to reflect the newly constituted DOCCS and disbandment of the former Department of Correctional Services. Next, the People argued that restricting eligibility to actually incarcerated individuals comported with the legislative history of section 440.46, which sought to benefit defendants who were in prison serving lengthy indeterminate sentences. Thus, the People argued that in the 2009 DLRA, the Legislature chose to offer relief to those who remained incarcerated, but not those who had been released on parole. Moreover, the People argued that the amendment to section 440.46, substituting DOCCS for DOCS, made no changes to the term “custody,” and there was no indication that the Legislature intended in any way to substantively amend the DLRA. To the contrary, the amendment had an explicit and limited purpose: as stated in the bill’s title, the amendments were to make a “conforming technical change,” so as to effectuate the Legislature’s merging of the DOCS with the Division of Parole. L.2011, ch. 62, Title. Thus, the People argued that the amendments to section 440.46 were solely to 14 conform the language of the statute to the name of the newly formed agency and did not evince an intent to broaden the pool of defendants eligible for re- sentencing. Furthermore, the People argued that, viewing the New York Code as a whole at the time the 2009 DLRA was originally enacted supported a restrictive definition of the term “custody” because most – if not all – other references to parolees used the terms “supervise” or “supervision” to denote their legal status in relationship to the Division of Parole; the term “custody” was limited to those incarcerated by the Department of Correctional Services or otherwise held by local law enforcement agencies. Thus, the People argued that this too showed that custody should be interpreted as incarceration. Finally, the People argued that, should the court find that the substitution of the term DOCCS for DOCS effected a substantive change to the DLRA when viewed literally – or at least rendered the statute ambiguous, for its failure to include any additional delimiting language – the court should find that the bare substitution of terms constituted an inadvertent error by the Legislature. In a Respondent’s Brief dated January 15, 2013, defendant argued that the Court should hold that both incarcerated and paroled defendants should be eligible for re-sentencing because of the merger of DOCS and the Division of Parole. Defendant argued that this position comported with the simplest reading of the statute and the ameliorative intent of section 440.46. 15 In a decision dated January 29, 2014, the Appellate Division affirmed the Supreme Court’s determination that defendant was eligible for re- sentencing, holding that the “plain language” of section 440.46, when read together with Executive Law section 259-i(2)(b), showed that non-incarcerated defendants on parole were in the custody of DOCCS and, thus, were eligible for re-sentencing. People v. Brown, 115 A.D.2d 155 (2014). The Court also rejected the People’s argument that the 2011 amendments to section 440.46 were purely budgetary or technical changes, but, instead reflected the evolution of the sentencing structure toward a focus on re-entry. And, since section 440.46 was a remedial statute, the Court held that it should be liberally construed and holding that parolees were ineligible for re-sentencing would be inconsistent with that remedial goal. Id. at 160-61. On May 9, 2014, the Honorable Victoria A. Graffeo granted the People leave to appeal to this Court from the decision of the Appellate Division. 16 ARGUMENT THE 2011 CONFORMING AMENDMENT TO C.P.L. §440.46 TO REFLECT THE NEW NAME OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION DID NOT E X P A N D T H E E L I G I B I L I T Y REQUIREMENTS OF THAT SECTION TO INCLUDE NON-INCARCERATED, PAROLED DEFENDANTS. The Appellate Division erred in holding that a technical, conforming amendment to section 440.46 to reflect the name of the newly- merged Department of Corrections and Community Supervision altered the eligibility requirements under that section. The operative language in the statute – “custody” – did not change and should be interpreted as this Court has previously interpreted it – to mean confinement or detention. Moreover, nothing in the legislative history suggests an intent to alter the eligibility requirements, and the Appellate Division should not have afforded greater meaning to the changes than did the Legislature itself. Nevertheless, the Appellate Division held that the “plain language” of the statute compelled the conclusion that the Legislature intended a change. The court relied on a change in the Executive Law reflecting that defendants on parole would now be in the “legal custody” of the newly merged agency as opposed to the defunct Division of Parole. See Brown, 115 A.D.3d at 158-59. But that change too was nothing more than a conforming amendment, and does not evince, through this change in language, an intent to change the eligibility requirements of section 440.46. Moreover, in established 17 usage, “custody” is not the same as “legal custody,” as the former has been used to describe actual confinement and the latter to mean constructive custody or supervisory power. This usage is reflected both in this Court’s cases, see Paulin, 17 N.Y.3d at 244, and in the Criminal Procedure Law and Correction Law themselves. Thus, the change in the “legal custody” of a parolee did not effect a change in the eligibility requirement requiring “custody” in section 440.46. At the very least, there is ambiguity in the “plain language” of the statute, warranting an inquiry into the Legislature’s intent behind the 2011 amendment. That inquiry establishes that the amendment to 440.46 was a “technical conforming” change, as the Legislature itself put it, and there is simply no reason to believe any change in the section – or in the 36 other statutes subject to name-changing conforming amendments as a result of the merger – were meant to have a substantive effect. The 2009 Drug Law Reform Act, codified in part at Criminal Procedure Law section 440.46, was designed to overhaul the 1973 Rockefeller Drug Laws and provided for a change in the sentencing structure for drug offenses. L.2009, ch. 56, § 9 [Part AAA]. Section 440.46, entitled, “Motion for resentence; certain controlled substance offenders,” provided for re- sentencing of certain defendants convicted of class “B” drug felonies. As explained by then-Governor Paterson upon signing the bill into law, one of the purposes of the 2009 DLRA was to provide “opportunities for additional relief to some offenders who remain incarcerated under the old laws” (emphasis 18 added). See April 24, 2009 Press Release, “Governor Paterson Signs Rockefeller Drug Reforms into Law.” Thus, at the time of its enactment,3 section 440.46(1) allowed “[a]ny person,” with certain exceptions, “in the custody of the department of correctional services” (emphasis added) who was serving an indeterminate sentence for a Class “B” felony drug offense, to apply for re-sentencing to a determinate sentence. As originally enacted, section 440.46 only applied to incarcerated defendants. Indeed, in People v. Paulin, 17 N.Y.3d 238 (2011), this Court specifically wrote, “By the plain text of the statute, its benefits were limited to those ‘in the custody of the department of correctional services’; those who had been released on parole could not apply.” Id. at 244. And in People v. Santiago, 17 N.Y.3d 246 (2011), this Court held that a parole violator who was incarcerated at the time she filed her re-sentencing motion, but was released before her motion was decided, was eligible for re-sentencing because she was in “custody,” that is, she was incarcerated, when she filed her motion. Id. at 248-49. See also Preiser, Practice Commentaries, McKinney’s Cons. Law of N.Y., Book 11A, Criminal Procedure Law section 440.46, Supplementary Commentary p. 47-48 (2011). Chapter 62 of the Laws of 2011 “enact[ed] into law major components of legislation which [we]re necessary to implement the state fiscal plan for the 2011-2012 state fiscal year,” as stated in the first sentence of The press release is available at: http://www.governor.ny.gov/archive/paterson/press/3 press_0424091.html (accessed July 10, 2014). 19 section one of the act. To this end, Subpart A of Part C of that law merged the Department of Correctional Services and the Division of Parole into a single state agency, the Department of Corrections and Community Supervision. As stated in section one of that subpart, entitled “legislative intent,” the purpose of the merger was to provide “fiscal efficiencies” by combining the administration of the two agencies, which would “allow for greater efficiencies and the elimination of duplicative responsibilities, thus resulting in significant savings for the state.” Indeed, the New York Division of the Budget estimated that the merger would provide savings of 17 million dollars in the 2011-2012 fiscal year. Bonacquist, Practice Commentaries, McKinney’s Cons. Law of N.Y., Book 10B, Correction Law section 5, Supplementary Commentary p. 18- 19 (2011); see also Merger of Department of Correctional Services and Division of Parole Fact Sheet, available at http://www.doccs.ny.gov /FactSheets/ DOCS- Parole- Merger.html (accessed on July 11, 2014); Memorandum in Support 2011-2012 New York State Executive Budget, Merge State Entities Article VII Legislation, p. 17, available at http://www.budget.ny.gov/pubs/archive/fy1112archive/eBudget1112/ fy1112artVIIbills/StateEntitiesMerger_ArticleVII_MS.pdf (accessed July 29, 2014) (enactment of this bill necessary to implement 2011-2012 Executive Budget as it is expected to produce savings through the elimination of duplicative functions). The Legislature also hoped that, under the newly- merged agency, “services [could] be provided on a continuum rather than an 20 abrupt transfer of responsibility” and that the merger would “provide for a seamless network for the care, custody, treatment and supervision of a person.” Id. Under Subpart B of Part C, a number of provisions within the New York code, including, inter alia, the Correction Law, the Penal Law, and the Criminal Procedure Law were changed to reflect the name of the newly minted Department of Corrections and Community Supervision. Section 440.46 was amended under this Subpart, the stated purpose of which was to “amend the correction law, . . . the criminal procedure law, . . . [and] the executive law . . . in relation to making conforming technical changes.” See Ch. 62, L. 2011, Title; Part C, Subpart B, Section 79. This technical, conforming amendment, in the words of the act itself, did not change the eligibility requirements of section 440.46. None of the provisions specifying eligibility were changed, nor was the word “custody” omitted, altered, or even modified by any new adjective, like for example, rephrasing the requirement to read “legal custody.” Because the Legislature did not change the eligibility section of the statute or the custody requirement, then, the 2011 amendments should not be read to change the scope of the statute. This comports fully with the legislation itself, which describes the amendment as a technical or conforming one, like the numerous other name- substitution changes in the statute under Subpart B. 21 Nevertheless, the Appellate Division held that the budgetary legislation that effected the merger also changed the scope of eligibility of section 440.46. It did so by looking at a provision in a different chapter of the law, the Executive Law, and specifically to a provision governing the scope of parole board procedures. Brown, 115 A.D.3d at 158-59. According to the Appellate Division, reading section 440.46 together with the otherwise unrelated and disparate provision of the Executive Law, the “plain meaning” of section 440.46 was transformed so that the eligibility requirements were different. Brown, 115 A.D.3d at 158-59. The cited section, section 259-i(2)(b) of the Executive Law, provides, in part, that persons presumptively released, paroled, conditionally released or released to post-release supervision from an institution under the jurisdiction of the department. . . shall, while on presumptive release, parole, conditional release or post-release supervision, be in the legal custody of the department until the expiration of the maximum term or period of sentence, or expiration of the period of supervision, including any period of post-release supervision, or return to imprisonment in the custody of the department. . . As for the legislative provision indicating that the amendment to section 440.46 was merely a technical or conforming one, the Appellate Division held that resorting to legislative history was inappropriate. This was purportedly because the two statutes, C.P.L. § 440.46 and Executive Law 259- i(2)(b), read together establish the eligibility change by their “plain meaning,” and resort to legislative history is inappropriate where the plain meaning of the statutory language is clear. See People v. Williams, 19 N.Y.3d 100, 103-04 (2012); People v. Kisina, 14 N.Y.3d 153, 158 (2010). 22 The Appellate Division’s reasoning is erroneous for several reasons. First, the amendment to the Executive Law was, itself, nothing more than a conforming amendment. Prior to the 2011amendments, the section read that parolees were in the “legal custody” of the Division of Parole, and the amendment changed the name of the defunct Division of Parole to the newly merged agency. Nothing in the statutory change suggests that it afforded substantive changes or new benefits in otherwise unrelated statutes as a result of the change to the new name of the supervising agency. See McKinney’s Cons. Law of N.Y., Book 1, Statutes section 193 p. 358 (1971)(mere change in phraseology does not indicate change in construction of statute). Second, and perhaps most importantly, “legal custody” is, and always has been, distinct from actual “custody.” Indeed, this Court has long interpreted the two sections differently: “custody” as referring to confinement or detention and “legal custody” as constructive custody or supervisory authority. Perhaps the best example of this is Hawkins v. Coughlin, 72 N.Y.2d 158 (1988). In that case, this Court held that the use of the term “custody” in section 70.30(3) meant actual confinement or detention, and did not apply to parolees. It specifically distinguished this use of “custody” from the “legal or constructive custody” referenced in Executive Law § 259-i(2)(b), which did include parolees. Id. at 162-63. Moreover, in rendering its decision, the Court resorted to the use of section 70.30’s legislative history, finding that the Legislature intended no change from the predecessor statute. Id. 23 Similarly, in Paulin and Santiago, both of which specifically interpreted the custody language of section 440.46, this Court interpreted the term custody to refer to confinement. Indeed, in both cases, the Court hinged its decision on the fact that the defendants were confined at the time the application for re-sentencing was made, instead of merely being on parole during that period. By contrast, this Court has ordinarily used “legal custody” in a broader sense, as “constructive custody.” See e.g., Hawkins, 72 N.Y.2d at 162; People v. Hale, 93 N.Y.2d 454, 461 (1999)(probationer in legal custody of court). Statutory uses of the two terms further make the point. Both the former and the current version of Executive Law section 259-i(2)(b) refer to the “legal custody” of parolees, using that term in the broader sense of “constructive custody” or having supervisory authority over the parolee. Later in Executive Law section 259-i, the statute discusses parole revocation and states that a parole violation is sufficient for a parole officer to return the defendant to imprisonment in the custody of the department. Exec. Law § 259- i(3)(a), (3)(b). Again, custody refers to confinement. In the Correction Law, the use of the term custody generally refers to actual incarceration or physical restraint. For example, in Correction Law section 2, which provides definitions of terms used in the statute, the term “detention center” is defined as a correctional facility for the temporary detention of persons taken into custody upon violation of parole or conditional 24 release or transferred from another correctional facility. Corr. Law § 2(7)(emphasis added). Similarly, section 70 provides that the purpose of a correctional facility is providing a place of confinement and programs for treatment “for persons in the custody of the department.” Corr. Law § 70(2)(emphasis added). Thus, in these sections of the Correction Law, custody clearly refers to physical custody or incarceration. And, the entire section 71 of the Correction Law, “Persons received into the custody of the department” (emphasis added), deals with offenders who enter confinement at correctional facilities. The contrast4 between those under supervision and those in custody is sharply drawn in paragraph 2 of section 71 of the Correction Law: “Persons returned to the custody of the department as parole or conditional release violators shall be delivered to institutions designated in the rules and regulations of the department” (emphasis added). Thus, a parolee or conditional releasee is not5 in the “custody” of the department, unless his supervision has been revoked and he is being re-incarcerated.6 The term “department” means the “state department of corrections and community4 supervision.” Corr. Law. § 2(1). In regard to conditional release, Correction Law section 274 provides that when the5 commission revokes a person’s conditional release, he shall be committed to the custody of the chief administrative officer of the local correctional facility to serve the remainder of his sentence. Corr. Law § 274(9). Other provisions of the Correction Law use the term custody to refer to incarceration or6 physical restraint. See, e.g., Corr. Law § 72(1)(providing that persons committed, transferred, certified to or placed in the care or custody of the department shall be confined to institutions until they are paroled); Corr. Law § 91 (agreements for custody of definite sentence inmate); Corr. Law § 93 (temporary custody of sentenced inmates in emergencies); 25 Likewise, in Correction Law section 601-d, concerning post- release supervision, the statute differentiates between inmates in the custody of the department and releasees under its supervision. See Corr. Law § 601- d(2). And Correction Law section 272, which deals with conditional release, states that a local conditional release commission has legal custody of a person for one year or until he is returned to the custody of the local correctional facility. Corr. Law § 272(3)(emphasis added). Thus, this section as well differentiates between those who are released – and, thus, in the legal custody of the commission or department – and those who are in custody, meaning physical incarceration. See also Corr. Law § 91 (referring to agreements for7 transfer of custody of inmates). Corr. Law § 95 (use of local government institutions for confinement of persons under custody of department); Corr. Law § 120 (custody and supervision of persons in correctional facilities); Corr. Law § 143 (custody of persons convicted of crimes against the United States). Some sections are, admittedly, less clear. For example, some of the language of section7 450.10 of the Criminal Procedure Law appears to reflect the distinction between legal custody and custody: it refers to probationers as being in the “legal custody” of the Department of Probation – thus referring to constructive custody or supervision – and to probationers who violate probation being taken into “custody” and searched – referring to the traditional sense of confinement or detention. But the heading of subsection one refers to “custody” and the text of the subsection then refers to legal custody. The Executive Law also refers to defendants who have been conditionally released from confinement pursuant to Penal Law section 70.40 as being in the “custody” of the local conditional release commission. Exec. Law § 257-b(2), (3). Here, custody is being used to refer to jurisdiction or supervision since, again, a person on conditional release is not incarcerated. Executive Law section 257-b(2), (3), states that conditionally released defendants are in the custody of the local conditional release commission. At worst, these inconsistent uses show a loose or ambiguous use of the terms, justifying resort to legislative history. As observed elsewhere, here, that legislative history evinces no intent to change eligibility under section 440.46 for re-sentencing. 26 Given the different meanings ascribed to “custody” and “legal custody,” both by this Court and by statute, it cannot be presumed, as the court below did, that the two are one and the same and that therefore the change in the Executive Law effected a change in the substantive provisions of section 440.46. To the contrary, because the Legislature used the distinct term “custody” and did not modify it by using “legal custody,” the opposite should be presumed – that the term custody carries its pre-existing meaning and that any change to the term “legal custody” in an unrelated provision of the law should have no effect on section 440.46. See McKinney’s Cons. Law of N.Y., Book 1, Statutes section 193 p. 359 (1971)(where an amendment leaves portions of the original act unchanged, such portions are continued in effect, with the same meaning and effect as they had before the amendment). Moreover, even assuming that these standard usages were not adopted, they, at the very least, create some ambiguity in the use of the term “custody.” That ambiguity would warrant, as in Hawkins, resort to legislative history or other principles of interpretation (assuming some ambiguity were even needed to examine the title of the bill itself). That further inquiry leads to the inevitable conclusion that no change was intended. Both the expressed intent of the 2011 amendments – the amendments allegedly effecting the change – and even the legislative history of the 2009 DLRA, erroneously relied on by the court below, suggest that a restrictive view of custody is appropriate. 27 Here, the search for the Legislature’s intent in enacting the 2011 amendments begins and ends quickly. Chapter 62 of the Laws of 2011 was a budgetary act: it expressly “enact[ed] into law major components of legislation which [we]re necessary to implement the state fiscal plan for the 2011-2012 state fiscal year,” See Ch. 62, L. 2011, Part C, Section 1. The merger was to provide “fiscal efficiencies” by combining the administration of the two agencies and to “allow for greater efficiencies and the elimination of duplicative responsibilities, thus resulting in significant savings for the state.” Subpart A of part C effected the merger and Subpart C, under which section 440.46 was amended, had an expressly stated, and quite limited, purpose, to amend the correction law, the criminal procedure law, and the executive law “in relation to making conforming technical changes.” See Ch. 62, L. 2011, Title; Part C, Subpart B, Section 79. Because the only change effected in section 440.46 was to change the name of the Department of Correctional Services to the Department of Corrections and Community Supervision, and because that change was expressly, by the terms of the statute, no more than a “technical conforming” change, there is absolutely no reason to believe that the Legislature intended to change the eligibility requirements of the section. Indeed, the contrary conclusion – that the mere substitution of the new name of the relevant agency was intended to create a substantive change – is wholly inconsistent with the statutory scheme enacted under Subpart B. Under that section, in addition to changing the language of section 440.46 of 28 the Criminal Procedure Law, the amendment changed the language in thirty-six different statutes – from the Correction and Penal Law to the Civil Rights and Alcoholic Beverage Control Law. See L.2011, ch. 62, Bill Tracking Summary. It is unlikely that the Legislature intended each substitution of the words “Department of Correctional Services” for “the Department of Corrections and Community Supervision” to change the meaning of each of these statutes. Indeed, these changes were likely computer-generated word substitutions and not any attempt to change the substantive meaning of thirty-six statutes. This too shows that the amendment was only a conforming technical change to reflect the new name of the newly created government agency and did not expand the definition of the term “custody.” 8 Moreover, contrary to the Appellate Division’s decision, the title of the bill, describing the changes in Subpart B, including the change to section 440.46, as a “technical conforming” change, does not constitute legislative history, but, instead is strong evidence of legislative intent. Indeed, in contrast to other forms of legislative intent, such as introducer’s memoranda, the title is a declaration with which every legislator voting on a bill agrees. Thus, it can be considered in resolving ambiguity and should not have been dismissed by Indeed, there are other examples where the bare substitution of the term DOCCS for8 DOCS – read literally – would lead to an unintended result, create ambiguity, and/or alter the meaning of the provision. For example, the substitution of the term DOCCS in section 70.20(2-a) of the Penal Law, by its plain language, without accounting for the surrounding language (or the section’s legislative history) would permit an individual sentenced to life without the possibility of parole to be placed in the custody of the DOCCS, which now includes parole. Penal Law § 70.20(2-a); see also Penal Law §§ 70.45(5)(d) (“if the person is restored to post-release supervision without being returned to the department of corrections and community supervision . . .”); Penal Law § 70.45(5)(f). 29 the Appellate Division. See People v. Garson, 6 N.Y.3d 604, 617 (2006)(preambles are not controlling, but can be useful tools in interpreting ambiguities); People ex rel. Westchester Fire Insurance Co. v. Davenport, 91 N.Y. 574, 585 (1883)(titles can be considered in resolving ambiguities); see also McKinney’s Cons. Law of N.Y., Book 1, Statutes section 122 p. 244 (1971)(a preamble can “be the key which opens the mind of the lawmakers as to the mischiefs. . . to be remedied”). The Appellate Division, however, ignoring the clear language of the statute pertaining to section 440.46, looked to the broader goals of the legislation in an effort to support its position. This effort also fails, as the broader purpose of the statute fails to suggest any reason to believe that the Legislature intended to change the eligibility requirements of section 440.46. As noted, the purpose of the act as a whole was to address serious budgetary concerns, with an apparent savings to the state of over 17 million dollars. The legislative intent provision attached to Subpart A, the operative, non-technical provisions of the act effectuating the merger repeatedly cites “fiscal efficiencies” and the “elimination of duplicative responsibilities, thus resulting in significant savings for the state” as the primary reason for passage of the act. This in no way suggests an intent to create new benefits for paroled defendants. To the extent that another purpose is stated, that purpose neither applies to section 440.46’s amendment nor does is support the Appellate Division’s decision. First, the provision cited by the Appellate Division 30 suggesting a need for a seamless transition into society for defendants is specifically contained in Subpart A – not Subpart B which contains the amendment to section 440.46 and the stated purpose of which is to effectuate technical, conforming changes. Second, the need to create a seamless transition and reintegration into society does not favor the creation of new benefits to defendants that would end parole early. Indeed, quite the opposite is true. Reintegration into society requires supervision and specialized programs that are created and administered by the parole board and its employees. The legislative intent provision of Subpart A, referenced by the Appellate Division, specifically cites the transitional programs and responsibilities of both corrections and parole as critical pieces of the transitional scheme. That section notes that “transitional services programs9 have now become mandatory for all inmates” and that “[t]ransition accountability plans will be developed for each inmate, starting with their time in general confinement and culminating with the inmate’s successful reintegration into the community.” Ch. 62, L. 2011, Part C, Subpart A, Section 1. The section also notes that “direct linkages with local agencies have been That provision recites: “In 1996, the legislature changed the penal law to include as an9 express purpose of imprisonment, the promotion of inmates’ successful and productive reentry into society. Toward this end, many new responsibilities have been placed on both corrections officials and parole officials to ready inmates for their release into the community such as: obtaining their birth certificates and social security cards prior to release, preparing Medicaid applications as warranted, securing identification cards from the department of motor vehicles, and providing them with voter registration forms.” Ch. 62, L. 2011, Part C, Subpart A, Section 1. 31 greatly enhanced with the creation of Re-entry Task Forces throughout the state.” Id. The early termination of parole does nothing to advance this reintegration. Defendants terminated early from parole because their sentences are reduced lose the benefit of these critical programs, ones specifically mentioned in the very section cited by the Appellate Division. If anything, this legislative intent section suggests a greater need for critical transitional services attendant to reintegration rather than a lesser one. Similarly, the Appellate Division’s resort to the legislative history of the 2009 DLRA to support its interpretation of the 2011 amendments is flawed in multiple ways. As an initial matter, the legislative history of the creation of section 440.46 does nothing to inform the Legislature’s intent two years later in 2011. Whatever the scope and purpose of the original legislation, the Appellate Division held that it had changed, and relied on the 2011 amendments for that purpose. It was, thus, the intent of the Legislature in enacting those amendments that is in issue, and that intent is clear as it relates to section 440.46 – to make a “conforming technical change” to reflect the name of the new state agency. But even if this Court were to examine the purposes of the 2009 legislation, it would support a narrow interpretation of the word “custody” rather than a broad one, consistent with this Court’s decisions in both Paulin and Santiago. The 2009 Drug Law Reform Act, like its predecessors, sought 32 to reduce the harsh effects of lengthy prison sentences, not to preclude supervision upon reintegration into society. Continuing along the same lines as earlier reform legislation, see L. 2004, Ch. 738 (“DLRA 2004”); L. 2005, Ch. 634 (“DLRA 2005”), the purpose of the 2009 DLRA was to overhaul the Rockefeller Drug Laws and ameliorate the plight of those Class “B” drug felony offenders who were languishing in prison, serving lengthy indeterminate sentences. See Paulin, 17 N.Y.3d at 244 (DLRA’s purpose was to “grant relief from what the Legislature perceived as the ‘inordinately harsh punishment for low-level non-violent drug offenders’ that the Rockefeller Drug Laws required”); see generally People v. Watson, 20 N.Y.3d 182, 184-10 85 (2012)(explaining the history of Rockefeller-era drug sentencing); People v. Acevedo, 14 N.Y.3d 828 (2010)(explaining that purpose of 2004 DLRA was to ameliorate harsh mandatory prison sentences required by Rockefeller drug laws). In crafting the appropriate relief, the Legislature “recognized that the burden of ‘inordinately harsh punishment’ falls most heavily on those who are in prison.” Paulin, 17 N.Y.3d at 244. Accordingly, the Legislature chose to offer relief to those who remained incarcerated, but not those who had been For this conclusion, the Court cited the following sources: Assembly Sponsor’s Mem.,10 Bill Jacket, L. 2004, ch. 738, at 6; Press Release, Governor Paterson and Legislative Leaders Announce Three-Way Agreement to Reform New York State’s Rockefeller Drug Laws; Press Release, available at http://www.governor.ny.gov/archive/paterson/ press/press_0327091.html (accessed June 30, 2014); Senate, Governor and Assembly Announce Three-Way Agreement to Reform Rockefeller Drug Laws, available at http://www.nysenate.gov/print/17136 (accessed June 30, 2014). 33 released on parole. Id. (citing Press Release, Senate, Governor and Assembly11 Announce Three-Way Agreement to Reform Rockefeller Drug Laws [“the bill . . . provides additional relief to offenders who remain incarcerated under the old laws”] [emphasis added]). Thus, reading the custody requirement to refer to actual incarceration is consistent with the Legislature’s stated goal of providing ameliorative relief to incarcerated defendants serving lengthy prison sentences and the Appellate Division incorrectly ruled that a paroled defendant satisfied the custody requirement. And this is precisely the way that this Court read the statute, and the Legislature’s intent, in Paulin and Santiago. The Court interpreted the operative language of section 440.46 to require actual confinement at the time that the application is made. Paulin, 17 N.Y.3d at 244; Santiago, 17 N.Y.3d at 248-49. These cases establish that section 440.46 did not extend to parolees under the 2009 legislation, and that the Legislature’s intent at that time did not include relief for that class of defendants. 12 The former section 259-j of the Executive Law contained a separate provision11 specifically aimed at providing felony offenders relief from parole. In relevant part, section 259-j(3-a) provided that “the division of parole . . . must grant termination of sentence after two years of unrevoked parole to a person serving an indeterminate sentence for [any felony offense other than a class A felony] defined in article two hundred twenty or two hundred twenty-one of the penal law.” Prior to the 2004 DLRA, the decision to terminate parole was discretionary; the early termination provision is now mandatory. This section was moved and is now codified as Correction Law § 205(4). For these same reasons, it would be inappropriate to adopt the definition of custody from12 federal habeas corpus proceedings, as defendant has previously suggested. While defendants on parole satisfy the federal “in custody” requirement, Paulin and Santiago establish that eligibility under section 440.46 is not coextensive with federal habeas corpus eligibility. Moreover, there is nothing in the language or legislative history of section 440.46 that shows that the Legislature intended to adopt the same definition of custody as courts deciding federal habeas petitions, especially since New York does not provide habeas relief to paroled 34 Nevertheless, the Appellate Division held that the 2009 Drug Law Reform Act’s purpose of granting relief from “inordinately harsh punishment for low level non-violent drug offenders,” shows that a more restrictive reading of section 440.46 would contravene the intent of the Legislature and deprive paroled defendants of the ameliorative nature of the statute. Brown, 115 A.D.3d at 160-61. The Appellate Division also noted that there is a presumption in favor of re-sentencing in holding that custody included defendants on parole. Id. at 161. First, the Appellate Division incorrectly applied the presumption in favor of re-sentencing to the eligibility requirements, not the substantial justice prong of the inquiry. It is only after a court determines that a defendant is eligible that the presumption in favor of granting a re-sentencing motion applies. C.P.L. § 440.46(3)(incorporating by reference L. 2004, Ch. 738 § 23). Thus, this presumption does not support the expansion of the eligibility requirements to include non-incarcerated defendants. Moreover, there is nothing in the statute or legislative history to show that the terms or purpose of the 2009 DLRA would warrant an expansion of eligibility to all parolees. Indeed, under that act, the Legislature never intended to make every defendant convicted of a class “B” drug felony eligible defendants. As this Court has repeatedly held, a paroled defendant’s “liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus.” In the Matter of Murray v. Bartlett, 89 N.Y.2d 1002 (1997); see also In Matter of Birch v. Henderson, 38 N.Y.2d 1025 (1976). Thus, both the 2009 DLRA and state habeas law adopt a narrower construction of custody than do the federal courts in habeas proceedings. 35 for re-sentencing. Instead, it limited the class of eligible defendants by imposing restrictions on eligibility, such as those for prior convictions for an exclusion offense. See C.P.L. § 440.46(5); see generally People v. Sosa, 18 N.Y.3d 436 (2012). Simply noting that the statute has an ameliorative purpose does not allow these restrictions to be ignored. And, even if a statute has an ameliorative purpose, that does not mean that it can be read more expansively that the Legislature intended. For instance, in People v. Utsey, 7 N.Y.3d 398 (2006), the defendants sought to be re-sentenced pursuant to the 2004 DLRA even though they committed their crimes before the effective date of the statute and relied on the “amelioration doctrine.” After holding that the plain language showed that the statute was intended to apply prospectively only, this Court addressed the defendants’ contention that the Legislature should have made the DLRA retroactive and that they should have received more lenient sentences. Id. at 402-04. In addressing these claims, this Court stated that whether the Legislature might have or could have enacted broader reforms was irrelevant to the question before the Court, namely whether the defendants were meant to be covered by the more limited reforms encompassed in the 2004 DLRA. Id. at 404. While Utsey concerned retroactivity, the principle – that even a statute with an ameliorative purpose can have limitations on its application imposed by the Legislature – applies here. Although the 2009 DLRA is 36 ameliorative in nature, this does not broaden the application of the statute beyond the restrictions enacted by the Legislature. And, if the Legislature wanted to expand eligibility requirements to include paroled defendants, it could have done so. Indeed, the Legislature could have specified that defendants in the “legal custody” of DOCCS were eligible to apply for relief if it wished to expand the pool of eligible defendants. Indeed, the Legislature is presumed to be aware of the distinction between legal custody, as used in Executive Law § 259-i(2)(b), and custody referring to incarceration. See People v. Elmer, 19 N.Y.3d 501, 507 (2012)(Legislature presumed to be aware of distinction between terms “order” and “written order” in regard to appealability of oral orders). But the Legislature did not change “custody”to “legal custody” and there is nothing in the legislative history to show that the Legislature intended the conforming, technical changes to Criminal Procedure Law section 440.46 to expand the pool of eligible defendants from only incarcerated defendants to include paroled defendants. See McKinney’s Cons. Law of N.Y., Book 1, Statutes section 191 p. 353 (1971)(Legislature will be assumed to have known of existing statutes and judicial decisions in enacting amendatory legislation). Moreover, the 2009 DLRA had many purposes, including cost savings to the state; it was not solely intended to provide ameliorative relief to incarcerated defendants, but also to save the state of New York a significant amount of money by releasing incarcerated defendants and diverting 37 defendants to drug treatment programs. See Press Release, Governor Paterson and Legislative Leaders Announce Three-Way Agreement to Reform New York State’s Rockefeller Drug Laws (then-Senate Majority Leader Malcolm Smith stating that drug reform would “reverse years of ineffective criminal laws, protect communities and save taxpayers millions of dollars that were wasted on the current policy.”). Thus, while the 2009 DLRA had an ameliorative purpose, it was not the only purpose, and the ameliorative purpose does not trump other purposes of the legislation or the Legislature’s intent to restrict the scope of re-sentencing to certain eligible defendants. Furthermore, strong policy reasons show that only incarcerated defendants should be eligible for re-sentencing. As the Legislature itself noted in the very provisions cited by the Appellate Division, transitional programs and continued supervision are essential for an inmate’s successful reintegration into society. This reflects an important policy choice in favor of supervision and transitional aid for defendants who must step down from a prison environment to full liberty and integration into society. Allowing defendants, in this case, Class “B” felons, to essentially max out of their supervision and abruptly ending critical transitional aid does nothing to advance the policy goal of a seamless transition or successful reintegration. Similarly, the goal of “enhanc[ing] public safety by achieving better outcomes for the greatest number of individuals being released from prison” – also specifically identified in the provision cited by the Appellate Division – will similarly not be 38 advanced by abruptly ending periods of supervision before the parole board determines that defendants are ready to take the next step. Indeed, the decision regarding a defendant’s preparedness to reintegrate into society should be left to parole, whose detailed knowledge of the defendant and the reintegration process is best suited to make that type of decision. 13 In sum, the Appellate Division incorrectly decided that defendant, who had been paroled, was eligible to be re-sentenced pursuant to Criminal Procedure Law section 440.46. The word “custody” as used in section 440.46 should retain its original meaning of incarceration. Nothing in the 2011 amendment of Criminal Procedure Law section 440.46 indicated an intent on the part of the Legislature to broaden the class of eligible defendants to include those on parole. And, while the 2009 DLRA was an ameliorative statute, the Legislature did not indicate an intent to grant further ameliorative relief to defendants beyond that which it had already extended when it enacted the 2009 DLRA – that is re-sentencing of certain eligible incarcerated defendants. Thus, The 2009 DLRA did provide alternative remedies for paroled defendants, including13 termination of parole for successful completion of extended periods of supervision. See L. 2009, Ch. 56, Part AAA, §13, amending Exec. Law § 259-j(4) to allow felony drug offenders to apply for discharge from parole or post-release supervision. This alternative remedy suggests that the Legislature sought to address the needs of parolees in a different manner than that provided in 440.46, one that involves the parole board and mandatory periods of supervision. See generally Press Release, Governor Paterson and Legislative Leaders Announce Three-Way Agreement to Reform New York State’s Rockefeller Drug Laws; P r e s s R e l e a s e , a v a i l a b l e a t h t t p : / / w w w . g o v e r n o r . n y . g o v / archive/paterson/press/press_0327091.html (accessed June 30, 2014)(describing provisions that permit the then-Division of Parole to grant early discharge to drug offenders who have demonstrated rehabilitation while serving post-release supervision). 39 the Appellate Division incorrectly decided that defendant was eligible for re- sentencing, and its order should be reversed. CONCLUSION For the reasons set forth above, the order of the Appellate Division should be reversed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: ________________________ Danielle S. Fenn Assistant District Attorney JOHN M. CASTELLANO DANIELLE S. FENN Assistant District Attorneys of Counsel July 29, 2014 40 41