The People, Appellant,v.Jarrod Brown, Respondent.BriefN.Y.March 24, 2015 To be argued by DAVID CROW (15 minutes requested) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- JARROD BROWN, Defendant-Respondent. BRIEF FOR RESPONDENT SEYMOUR W. JAMES, JR. THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street - 5th Floor New York, N.Y. 10038 (212) 577-3282 By: David Crow Of Counsel October 14, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEMENT .....................................................................1 QUESTION PRESENTED ..............................................................................2 STATEMENT OF FACTS ..............................................................................3 ARGUMENT PAROLEES ARE ELIGIBLE FOR RESENTENCING UNDER CPL §440.46 BECAUSE THEY ARE “PERSONS IN THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION.” ........................................................................7 A. Prior to the Merger, CPL §440.46 Allowed Resentencing for State Inmates, Including Parole Violators and Those Released onto Parole While Their Motion was Pending. ...................................................... 11 B. Creation of the Department of Corrections and Community Supervision. ................................................... 12 C. The Interest of Parolees in Seeking Resentencing ............................................................................ 14 D. As a Remedial Statute, CPL §440.46 Should Be Given the Broadest Construction Consistent with Its Terms .......................................................................... 17 E. Parolees are in the Custody of DOCCS for Resentencing Purposes ............................................................. 20 F. The Merger Cures The Anomaly in Prior Law That Allowed Resentencing for Parole Violators but Not for Parolees ................................................................. 28 ii Conclusion ................................................................................ 30 CONCLUSION ............................................................................................. 31 iii TABLE OF AUTHORITIES FEDERAL CASES Jones v. Cunningham, 371 US 236 (1963) ................................................... 22 STATE CASES Bellamy v. NY State Div. of Parole, 274 AD2d 871 (3d Dept. 2000) .......... 15 Dickman v. Trietley, 268 AD2d 914 (3d Dept. 2000) .................................. 15 Hawkins v. Coughlin, 72 NY2d 158 (1988) .................................. 8, 20-21, 25 People ex rel. Korn v. NY State Div. of Parole, 274 AD2d 439 (2d Dept. 2000) .............................................................................................. 15 People ex rel. Romano v. Warden, 28 NY2d 928 (1971) ............................. 22 People v. Behlog, 74 NY2d 237 (1989) ........................................................ 20 People v. Danton, 36 Misc.3d 898 (Sup. Ct. NY County 2012) ....... 16-17, 19 People v. Lankford, 35 Misc.3d 418 (Sup. Ct. Bronx Co., Feb. 9, 2012) ........................................................................................................ 17 People v. Lexington Sixty-First Assoc., 38 NY2d 588 (1976) ...................... 17 People v. Oliver, 1 NY2d 804 (1956) ........................................................... 20 People v. Paulin, 17 NY3d 238 (2011) ................................................. Passim People v. Pomales, 35 Misc.3d 444 ............................................... 6, 16-17, 27 People v. Santana, 117 AD3d 758 (2d Dept. 2014) ..................................... 16 People v. Santiago, 17 NY3d 246 (2011) ................................................ 13-14 People v. Sosa, 18 NY3d 436 (2012) .................................................... Passim People v. Utsey, 7 NY3d 398 (2006) ....................................................... 19-20 iv STATUTES Correction Law § 71(1) ................................................................................. 24 Correction Law §71(2) .................................................................................. 25 Correction Law § 72(1) ................................................................................. 25 Corr. Law §5 ................................................................................................. 13 Corr. Law §205(4) .................................................................................. 15, 27 Correction Law § 275 ............................................................................... 5, 22 CPL § 410.50 ............................................................................................ 5, 22 CPL §440.46 .......................................................................................... Passim CPL §440.46(1)............................................................................................. 11 CPL §440.46(5)(a) ........................................................................................ 18 CPLR §7001.................................................................................................. 22 CPLR §7002.................................................................................................. 22 Exec. Law § 259-d ........................................................................................ 13 Exec. Law §259-i .......................................................................................... 24 Executive Law § 259-i(2)(b)................................................................. 5, 8, 23 Exec. Law §259-i(2)(c)(A)(iv) ..................................................................... 24 Exec. Law §259-i(3)c(iv) .............................................................................. 15 Exec. Law §259-i(3)(x)(A) ........................................................................... 15 Exec. Law §259-l .......................................................................................... 13 Exec. Law § 259-r(9) .................................................................................... 24 Penal Law § 2193(1) ..................................................................................... 21 v MISCELLANEOUS Jacobson, How New York City Reduced Mass Incarceration, Brennan Center for Justice, June 2013 ................................................................... 12 Justice Research and Performance, June 2013 Update on 2009 Drug Law Reform Act ....................................................................................... 12 White et al., Halfway Back: An Alternative to Revocation for Technical Parole Violators ...................................................................... 16 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : JARROD BROWN, : Defendant-Respondent. : ---------------------------------------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Judge of the Court of Appeals, dated May 9, 2014, the People are appealing from an Opinion and Order dated January 29, 2014, which affirmed a Memorandum Decision of Supreme Court, Queens County (Kron, J.), dated July 31, 2012, granting defendant-respondent Jarrod Brown’s motion pursuant to CPL §440.46, vacating his indeterminate sentence imposed under pre-2005 law and substituting therefor a determinate sentence of 7 years, with 3 years post-release supervision. The underlying judgment is based on a plea of guilty under Indictment N11196/2001 to criminal sale of a controlled substance in third degree [PL §220.16], and a sentence of 6 – 12 years imposed on June 26, 2002 (Kron, J.). 2 At the time he was resentenced, Mr. Brown owed approximately five years of sentence time to the state, with a maximum expiration date of July 16, 2017. When he was resentenced, he was credited with time served and discharged. On June 26, 2014, this Court assigned Steven Banks, since succeeded by Seymour W. James, Jr., as counsel for Mr. Brown. QUESTION PRESENTED Did the Appellate Division correctly conclude that parolees are eligible for resentencing under CPL §440.46 because they meet the statute’s amended definition of “persons in the custody of the department of corrections and community supervision.” 3 STATEMENT OF FACTS In 2001, Jarrod Brown, defendant-respondent, then 21 years of age, was charged with sale of a controlled substance in the borough of Queens. He subsequently pled guilty to sale of a controlled substance in the third degree, and on June 26, 2002, was sentenced to an indeterminate term of 6 – 12 years in prison. During his time in prison, he maintained a good disciplinary history, and completed numerous educational and therapeutic programs. He spent approximately eight and one-half years in prison and was released onto parole in February 2010. In April 2011, Governor Cuomo signed into law a major piece of legislation merging the Department of Correctional Services (“DOCS”), New York’s state prison agency, and the Division of Parole, into a new entity called the Department of Corrections and Community Supervision (“DOCCS”). As part of the law, CPL §440.46, the retroactive resentencing section of the Drug Law Reform Act of 2009 (DLRA-3), was amended. Previously, eligibility was limited to offenders serving a Class B indeterminate drug sentence “in the custody of the department of correctional services,” i.e. in state prison. This provision was amended to read “in the custody of the department of corrections and community supervision.” 4 In May 2012, while in good standing on parole, Brown sought resentencing. He argued that as a result of the 2011 merger, parolees were eligible for resentencing because they met the new definition of being in the custody of DOCCS. In addition to his favorable prison record, he cited the fact that he had regularly reported to parole, participated in substance abuse programming and drug testing, and received support services through VESID, a state rehabilitative services agency for individuals with disability. He had just one parole violation, for which he received a minimal sanction of one month in an intensive program at the Edgecombe Residential Treatment Facility in 2011. On July 31, 2012, Justice Kron issued an order and memorandum finding that Brown was eligible for resentencing, and that substantial justice did not dictate denial of resentencing. The court resentenced Brown to a determinate sentence of seven years, with 3 years post-release supervision. With credit for time served, Brown was deemed to have satisfied this sentence and he was accordingly discharged. On January 29, 2014, the Appellate Division, Second Department, affirmed the decision below. In a unanimous decision, authored by Justice Cohen, the Appellate Division found that the phrase “custody of the department” as used in CPL §440.46 should be read to include parolees as 5 well as incarcerated persons, both as a matter of plain language and to effect the remedial intent of the law. The Appellate Division rejected the People’s argument that New York law uses the term “custody” refers to persons actually incarcerated, while using other terms such as “supervision” when referring to the department’s relationship to parolees. This contention is belied by the language of Executive Law § 259-i(2)(b), which states that a parolee, among others, shall be in the “legal custody” of DOCCS until, among other possibilities, “return to imprisonment in the custody of the department,” and by other statutes in which the term “custody” plainly refers to something other than incarceration (see e.g. Correction Law § 275 [using both “legal custody” and “custody” in reference to a person who has been granted conditional release]; CPL § 410.50). The Appellate Division found that allowing parolees to apply for resentencing was consistent with, and would not frustrate, the statutory purposes of both the DLRA and the 2011 Law. Under prior law, parole violators, as well as offenders who have been released onto parole while a resentencing application is pending, were eligible for resentencing. There was “no policy reason why parolees should be denied such relief.” Finally, the Appellate Division disagreed with the People’s characterization of the 2011 law as purely budgetary or financially motivated, noting that the Legislature had cited “the evolution of the 6 sentencing structure” and thus the need to “provide for a seamless network for the care, custody, treatment and supervision of a person, from the day a sentence of state imprisonment commences, until the day such person is discharged from supervision in the community.” Reviewing the totality of the statutory scheme, the Appellate Division concluded that as a consequence of the merger, “‘an individual is within the custody of DOCCS, maintaining a single continuing, non-transferrable relationship with [that] agency’ until the termination of the sentence imposed [citing People v. Pomales, 35 Misc.3d 444, 448],” thus making him eligible for resentencing under CPL §440.46. To date, no other intermediate appellate court has issued a ruling on the issue of parolee eligibility. After the merger, numerous trial courts ruled in favor of resentencing for parolees, and many of those individuals, such as Mr. Brown, have now been resentenced and discharged from supervision. Notably, in New York County, the busiest county for drug prosecutions in the state, resentencing for parolees has been going forward without objection from the People. See People v. Pomales, 35 Misc.3d at 449, n. 3. On May 9, 2014, Judge Graffeo granted leave to the People. 7 ARGUMENT PAROLEES ARE ELIGIBLE FOR RESENTENCING UNDER CPL §440.46 AS AMENDED IN 2011 BECAUSE THEY ARE “PERSONS IN THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION.” Under the Drug Law Reform Act of 2009 as originally enacted, “any person in the custody of the department of correctional services” who was serving an indeterminate class B drug sentence and who met certain other eligibility restrictions was permitted to apply for resentencing. Persons in custody included those who had never been released on parole, and those who had been released on parole but subsequently returned to prison for violating parole or were committed to serve a new sentence without having completed the drug sentence. People v. Paulin, 17 NY3d 238 (2011). In 2011, the Legislature merged the Department of Correctional Services and the Division of Parole into a new entity, the Department of Corrections and Community Supervision. The stated aim of the merger is to provide a “seamless network” of authority over offenders from the day they begin serving their state sentence to the day they are discharged from their sentence. [Ch. 62, Part C, Subpart A, §1] As part of the 2011 changes, CPL §440.46 was amended to apply to “any person in the custody of the department of corrections and community supervision.” 8 As a remedial statute, the judicial resentencing law should be read as broadly as its language permits, so as to distribute its benefit as widely as possible. NY Statutes §321. This Court has observed that limits on eligibility under the DLRA-3 must be “clearly expressed” in the language of the statute itself. People v. Sosa, 18 NY3d 436, 441 (2012). Any ambiguity should be resolved in favor of the applicant because eligibility is simply the first step of the resentencing process. Judges retain discretion to deny resentencing on the facts of any particular case. Id at 443. On its face, CPL §440.46 as amended does not distinguish between incarcerated persons and those on community supervision.1 Nor is the phrase “custody of the department” specifically defined under New York law. The People’s more restrictive reading is based on other statutes in which the phrase “custody of the department” is limited to incarcerated persons, and statutes classifying parolees as in the “legal control” of the department. However, in Hawkins v. Coughlin, 72 NY2d 158 (1988), this Court rejected an argument that “custody” inherently or implicitly referred only to incarcerated persons. Instead, it looked to the legislative history of the 1 There are a variety of early release mechanisms for indeterminate sentences under New York law, including parole, presumptive release, and conditional release. See Executive Law §259-i(2)(b). Individuals who have been given some form of early release and are serving their sentences on community supervision will be referred to herein as “parolees.” 9 statute, its structure and purpose, in order to determine whether “custody” as used in a particular statute was limited to incarcerated persons or could be read more broadly to include all persons under some form of correctional control, such as parole. As the Appellate Division found, the term “custody” is not consistently used throughout New York law to denote only “actual custody.” In addition, in many sections of the law, including the 2011 merger law, where the Legislature wanted to maintain a clear division between incarcerated and non-incarcerated persons, it “clearly expressed” [Sosa] the distinction by using specific language such as “imprisonment in the custody of the department.” E.g., Exec. Law 259i(2)(b). Thus, use of the broader phrase “custody of the department” in CPL §440.46 creates at least an ambiguity as to its scope, which must be resolved by looking to the underlying intent of the relevant statutes. Unlike the examples relied on by the People, in which the structure and purpose of the statute make it clear that it is limited to incarceration, there is nothing in the language or history of the DLRA-3 and the 2011 law that suggest such a limit. Limiting applications to incarcerated persons is not required to make sense of the statute or achieve its underlying goals. To the contrary: the intent of the DLRA-3 is to extend a degree of leniency to 10 persons who have served long sentences under pre-2005 law, and to bring those sentences into proportion with the range of sentencing available under current law. The intent of the 2011 law is to provide more consistent and uniform treatment of incarcerated and non-incarcerated persons serving state sentences. Thus, the broader definition of custody fits naturally with both the structure and the intent of both statutes. Prior to the merger, parole violators who were sent back to state prison, even for a short period of time were eligible for resentencing; but parolees were not. This created a serious anomaly. Those who complied with parole had to keep serving their sentence indefinitely; those who violated parole could be discharged from their sentence. As the Appellate Division noted, the 2011 Law effectively addresses this anomaly by allowing parolees to apply for resentencing without having to violate their parole and be sent back to prison first. In the end, the People ask this Court to read into CPL §440.46 a limitation that is not part of the statute itself, and which is not required in order to carry out the goals of the statute or preserve its internal structure. As a remedial statute, CPL §440.46 should be given the broadest reading that is consistent with its language. Limiting resentencing would also come at the cost of preserving an anomaly that existed under the pre-merger law, in 11 which those who violated parole were discharged and those who complied with parole continued to serve their sentences. A natural reading of the statute, as well as a natural sense of fairness, will allow both groups to seek resentencing, subject, as this Court noted in Sosa, to the ultimate discretion of the resentencing judge. A. Prior to the Merger, CPL §440.46 Allowed Resentencing for State Inmates, Including Parole Violators and Those Released onto Parole While Their Motion was Pending As originally enacted, CPL §440.46(1) permitted defendants to seek resentencing under the DLRA-3 if they were: (1) in the custody of the Department of Correctional Services; and (2) their maximum term of imprisonment under the provisions in effect before January 13, 2005, exceeded three years. In 2011, this Court held that applicants who had been re-incarcerated to continue serving their sentence following a parole violation or the imposition of a new sentence are eligible for resentencing. People v. Paulin, 17 NY3d 238 (2011). In 2012, this Court held that parole violators who filed for resentencing while incarcerated could be resentenced even if they had been released back onto parole while their motions were pending. People v. Sosa, 18 NY3d 436 (2012). Taken together, these rulings allowed a parolee who was given even a brief time assessment to file for resentencing and then pursue resentencing 12 after being put back on parole.2 Before the 2011 merger, those who did not violate their parole, and those who violated parole but were not given a time assessment, did not become eligible for resentencing. They continued to serve their sentences in the community. To date, some 800 individuals have been resentenced, and most of them discharged from their sentence.3 These resentencings have played a key role in New York’s widely-hailed reduction in the number of non- violent offenders in prison and on parole.4 B. Creation of the Department of Corrections and Community Supervision On March 31, 2011, Governor Cuomo signed Chapter 62 of the Laws of 2011 into law (“2011 Law”). The law merged the Division of Parole 2 Several programs run by DOCCS emphasize short-term treatment and return to the community, notably the Willard Drug Treatment Campus [created by the Sentencing Reform Act of 1995, which offers a 90 day alternative treatment program to parole violators. See DOCCS Directive 27, available at http://www.doccs.ny.gov/Directives/0027.pdf. 3 The Division of Criminal Justice Services produces periodic updates on the number of resentencings, most recently from January 2014; available at http://www.criminaljustice.ny.gov/drug-law-reform/documents/monthly-resentencing- summary.pdf 4 See New York State Division of Criminal Justice Services, Office of Justice Research and Performance, June 2013 Update on 2009 Drug Law Reform Act, available at http://www.criminaljustice.ny.gov/drug-law-reform/documents/drug-law-reform- presentation-june2013.pdf.; Jacobson, How New York City Reduced Mass Incarceration, Brennan Center for Justice, June 2013, available at http://www.brennancenter.org/publication/how-new-york-city-reduced-mass- incarceration-model-change 13 ("Parole") and the Department of Correctional Services (“DOCS”) into a new department called the Department of Corrections and Community Supervision ("DOCCS"). The stated intent of the Legislature was to create a “single new state agency…to oversee the combined responsibilities of both and, in effect, provide for a seamless network for the care, custody, treatment and supervision of a person, from the day a sentence of state imprisonment commences, until the day such person is discharged from supervision in the community.” [Ch. 62, Part C, Subpart A, §1] (emphasis added). The merged agency’s organizational chart places the functions of community supervision directly under a Deputy Commissioner reporting to the Commissioner. Corr. Law §5.5 The Parole Board continues to function independently, Exec. Law § 259-d, supported by the Commissioner, Exec. Law §259-l, but the personnel at the sub-Board level are integrated and report to the commissioner. New Correction Law §71-A requires DOCCS to develop a transitional accountability plan (TAP) when an individual is first committed to custody, on which the formerly separate correctional services and parole personnel must collaborate. 5 http://www.doccs.ny.gov/FactSheets/DOCS-Parole-Merger.html 14 The 2011 Law amended CPL §440.46 to expand the eligibility section to include all persons in the “custody of the department of corrections and community supervision.” [Id., §79] In People v. Santiago, 17 NY3d 246 (2011), this Court noted the 2011 Law’s potential impact on the DLRA-3. Judge Smith began the opinion of the Court in the following fashion: “At least until a recent amendment, the 2009 Drug Law Reform Act (DLRA) allowed only incarcerated offenders, not offenders free on parole, to apply for resentencing.” (emphasis added) While the 2011 Law was not directly at issue in Santiago, Judge Smith’s language certainly suggests that the Court would view the amendments as opening the resentencing process to parolees. C. The Interest of Parolees in Seeking Resentencing The issue in this case requires technical analysis of the statutory language, but it also requires an understanding of the policies and values at stake. It is sometimes said, even among experienced judges, that offenders who have been released from prison onto parole have “completed” their sentence or have been “freed” on parole.6 It is more accurate to say that those who have been released from state prison before serving their 6 See People v. Sosa, supra, 18 NY3d at 436 (contrasting state inmates with those who are “free on parole”). 15 maximum sentence continue to serve their sentence in the community. Parolees are subject to significant infringements on their liberty; every aspect of their life is under the oversight of a parole officer, including home, work, travel and association.7 Failure to comply with a condition of parole can lead to summary arrest and a parole violation charge,8 which can result in a time assessment.9 Parolees thus have a compelling interest in being resentenced to reduce the overall length of their sentence and make it consistent with the reduced ranges available under current law. In addition, as the Legislature recognized in uniting the functions of corrections and parole, incarcerated parole violators and parolees are basically the same group of people. One day a drug offender is on parole; then, after failing a drug test or missing an appointment, she is charged with a parole violation and given a time assessment in a state correctional facility or drug campus. A month later, she is released back onto parole. The same conduct might result in parole being revoked but no time assessment, a so- 7 Release conditions are listed in NY Comp. Code R. & Regs. Tit. 9 §8003.2(a)-(k). 8 NY Exec. Law §259-i(3)c(iv) (violation of a “substantial condition” of parole is sufficient to have parole revoked). This provision may be strictly construed. For example, missing a curfew check, without an adequate explanation, has been upheld as a basis for a parole violation. People ex rel. Korn v. NY State Div. of Parole, 274 AD2d 439 (2d Dept. 2000); Bellamy v. NY State Div. of Parole, 274 AD2d 871 (3d Dept. 2000) (violation upheld where parolee was found on street he had been told not to enter). 16 called “revoke and restore.” Exec. Law §259-i(3)(x)(A). This finding interrupts the offender’s good standing on parole, thus restarting the two- year clock toward mandatory discharge under Corr. Law §205(4), but it does not lead back to prison. These variations and cycles may be repeated many times before the individual ultimately completes and is discharged from her sentence.10 The anomaly under pre-merger law of permitting resentencing for parole violators who were returned to state prison, but not for those who violated parole without being sent to prison, or those who complied with parole, was hardly satisfactory. It was especially unfair for those who were offered a choice between going into community treatment on a “revoke and restore,” which kept them serving their sentences, or taking a time assessment, which would allow them to be resentenced and discharged outright. Following the 2011 merger, many trial courts held that parolees were now eligible to seek resentencing, and went on to use their discretion to 9 NY Comp. Code R. & Regs. Tit. 9, §8002.6(a). 10 See White et al., Halfway Back: An Alternative to Revocation for Technical Parole Violators, describing the pattern of repeated incarceration and release for technical parole violations, that is, those not involving a new offense, in states including New York, available at http://www.cecintl.com/pdf/research/Halfway%20Back%20paper%20for%20CJPR.pdf 17 grant resentencing for appropriate applicants.11 Notably, in New York County, which has resentenced more persons than any other county in the state,12 resentencing for parolees has been going forward since 2011 without objection from the People.13 Mr. Brown, respondent here, was resentenced in 2012 and has been off parole for more than two years.14 D. As a Remedial Statute, CPL §440.46 Should Be Given the Broadest Construction Consistent with Its Terms Remedial statutes such as the DLRA-3 should be interpreted broadly to accomplish their goals, in this case the modification of unduly harsh sentences imposed under pre-2005 law. This is true as a general principle of statutory construction, see NY Statutes §321 (“Generally, remedial statutes are liberally construed to carry out the reforms intended and to promote 11 See, e.g., People v. Santana, 117 AD3d 758 (2d Dept. 2014); People v. Pomales, 35 Misc.3d 444 (Bronx Co. Sup. Ct. 2012) (Newman, J.); People v. Danton, 36 Misc.3d 898 (Sup. Ct. NY County 2012) (Kahn, J.). Some nisi prius courts have held parolees ineligible for resentencing. People v. Johnson, 36 Misc.3d 1239(A) (Kings Co. 2012) (Dwyer, J.); People v. Lankford, 35 Misc.3d 418 (Sup. Ct. Bronx Co., Feb. 9, 2012) (Massaro, J.). 12 As of January 2014, New York County was responsible for 178 resentencings. The next county in raw numbers was the Bronx at 165. http://www.criminaljustice.ny.gov/drug-law-reform/documents/monthly-resentencing- summary.pdf 13 See Danton, 36 Misc.3d at 903, n. 3; Pomales, 35 Misc.3d at 449, n. 3. 14 Since the merger, there have been approximately 350 resentencings. Source: comparison of April 2011 Resentencing Report from DCJS, on file with counsel, and January 2014 Resentencing Report, cited in footnote 3, supra. 18 justice”); People v. Lexington Sixty-First Assoc., 38 NY2d 588, 595 (1976). It also applies to the interpretation of the eligibility sections of the DLRA, which this Court has repeatedly emphasized should be read broadly, consistent with its ameliorative purpose. In People v. Sosa, the People argued for a narrow reading of CPL §440.46(5)(a)’s “look-back” provision involving whether commission of a prior violent felony operated as a permanent bar to resentencing. Acknowledging that the statute was at least potentially ambiguous, the Court made two statements that are significant to the current case. We would not hesitate to enforce an intention by the legislature severely to limit that purportedly benefitted class, even to the virtually plenary extent advocated by the People, if that limitation, although arguably at odds with the broad objectives of the remedial enactment of which it was part, were clearly expressed, but it is not. 18 NY3d at 440-441. In other words, given that the DLRA-3 is a remedial statute, it should be read broadly unless the limitation is “clearly expressed.” The Court also noted that any ambiguity in CPL §440.46’s eligibility section should be read in favor of the applicant because a finding of eligibility is simply the first step in the resentencing process. The ultimate decision lies in the discretion of the reviewing judge: To the extent that the Legislature’s definition of the eligible class in the individual case proves over-inclusive, the proper corrective is achieved by means of the statutorily 19 required exercise of judicial discretion to determine whether relief to an eligible applicant is in the end consistent with the dictates of substantial justice. 18 NY3d at 443. In other words, it is better to err on the side of being “over- inclusive” in defining eligibility because any concerns about the propriety of resentencing for any individual applicant can be dealt with as part of the court’s “substantial justice” determination. Lower courts that have considered the issue of parolee eligibility have been guided by these principles. See People v. Danton, 36 Misc.3d 898, 903 n.3 (parolee eligibility is consistent with ameliorative intent of DLRA-3). Contrary to the People’s argument [App Br. 36-37], People v. Utsey, 7 NY3d 398 (2006), provides no support for their proposed narrower reading of CPL §440.46. Under the DLRA of 2004, the Legislature set the new determinate sentencing range for drug offenses, and specified that it would apply to offenses committed after January 13, 2005. In Utsey, the defense argued that this Court should extend the new sentencing range to persons who had committed the offense prior to the effective date of the new legislation but had not yet been sentenced. This Court agreed that DLRA-1 is a remedial statute, and that there is a presumption in favor of applying reduced sentences to those who have not yet been sentenced under prior law, but that this presumption did not apply to drug sentences under DLRA-1 20 because the legislature had specifically expressed its intent to limit its application to offenses committed after the specified date. Cf. People v. Behlog, 74 NY2d 237 (1989); People v. Oliver, 1 NY2d 804 (1956) In contrast, the 2011 Law amendment to CPL §440.46 leaves the question of expanded eligibility open. Nothing in Utsey suggests that the DLRA judicial resentencing law is not remedial or should not be given as broad a reading as its language reasonably permits. E. Parolees are in the Custody of DOCCS for Resentencing Purposes The People’s main argument is that where the phrase “custody of the department” is used in the Penal Law and elsewhere, it has been held to apply to incarcerated persons rather than parolees. Parolees, it is said, are merely in the “legal custody” of the department [App. Br. 23-27]. Contrary to the People’s argument, however, there is no single meaning to the phrase “custody” under New York law. Each statute must be examined on its own terms in light of its structure and purpose. Ultimately, the People concede as much. See App. Br., p. 26, n. 7. (“Some sections are, admittedly, less clear;” conceding that the word “custody” is used in an “inconsistent,” “loose” or “ambiguous” manner in the Executive Law). Notably, the case the People place the most stock in, Matter of Hawkins v. Coughlin, 72 NY2d 158, belies their own argument. In Hawkins, 21 defendant sought credit under PL §70.30(3) for time spent on parole pursuant to a conviction that was later vacated. PL §70.30(3) provides that: “In any case where a person has been in custody due to a charge that culminated in a dismissal or an acquittal, the amount of time that would have been credited against a sentence for such charge, had one been imposed, shall be credited against any sentence that is based on a charge for which a warrant or commitment was lodged during the pendency of such custody.” This Court held that “custody” in that context referred to time incarcerated. However, the Court made clear that this conclusion could only be reached by examining the structure and purpose of the statute at question, not because the term “custody” has a single fixed meaning. The Court found it significant that the predecessor statute, Penal Law § 2193(1), “referred specifically to ‘confinement’ and ‘time spent’ in named institutions.” 72 NY2d at 162. It also cited legislative history to the new statute, which referred to “jail time” and gave examples such as “in a police station or state police barracks.” Id. From this, Hawkins concluded: “It is apparent…that the legislature intended the provision to apply only to time spent in some type of ‘actual’ custody [citations omitted],” not time spent on parole. Id at 163. If custody had the single fixed meaning ascribed to it by the People, there would have been no need for Hawkins to review the history of the 22 statute or its structure and intent. This approach is consistent with the approach of the federal courts in defining “custody” for purposes of habeas corpus relief to state sentences under 28 USC § 2254. The United States Supreme Court has long interpreted the custody requirement of the habeas corpus statute to include parolees. Jones v. Cunningham, 371 US 236 (1963). While New York’s writ of habeas corpus under CPLR §§7001 and 7002 is only available to prisoners, see People ex rel. Romano v. Warden, 28 NY2d 928 (1971), New York’s writ is much more limited and is based on a statute that requires a showing of “detention” and requires that the writ, if granted, result in “deliverance.” These different definitions simply confirm that there is no single meaning to the term “custody” and that its definition must be determined by reference to the statute’s structure and purpose. As the Appellate Division found, the term “custody” is not consistently used throughout New York law to denote only “actual custody.” See, e.g., Correction Law § 275 (referring to both “custody” and “legal custody” with respect to persons who have been granted conditional release); CPL § 410.50 (probationer is in “legal custody” of the court while serving sentence; probation officer may “take the probationer into custody without a warrant and search his person”). 23 In particular, there are many examples of statutes that use narrower phrases than “custody” when referring to incarceration. Prior to the 2011 Law, the division between persons in the jurisdiction of DOCS and persons in the jurisdiction of the Division of Parole was addressed by Executive Law section 259-i(2)(b): Persons presumptively released, paroled, conditionally released or released to post-release supervision from an institution under the jurisdiction of the department of correctional services or the department of mental hygiene shall, while on presumptive release, parole, conditional release or post-release supervision, be in the legal custody of the division of parole until 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 the custody of the department of correctional services, as the case may be. This is the basis for the People’s argument that parolees are customarily designated as being in “legal custody,” while incarcerated persons are designated as being in “custody.” However, the 2011 Law amendments to this provision show that when the legislature needed to draw a distinction between incarcerated and non-incarcerated persons, it was capable of doing so. Persons presumptively released, paroled, conditionally released or released to post-release supervision from an institution under the jurisdiction of the department, the department of mental hygiene or the office of children and family services shall, while on presumptive release, parole, conditional release or post-release supervision, be in the legal custody of the department until expiration of the maximum term or period of 24 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 the case may be. Exec. Law 259i(2)(b) [Subpart A, §38-f-1] (emphasis added). Other provisions of Exec. Law §259-i also use the phrase “imprisonment in the custody of the department” or “inmate in the custody of the department” to clarify that they refer only to incarcerated persons. See Exec. Law §259-i(2)(c)(A)(iv) (“any deportation order issued by the federal government against the inmate while in the custody of the department”); §259-i(2)(d)(i) (“release of the inmate from the custody of the department”); §259-i(d)(ii) (“return to imprisonment in the custody of the department”); §259-i(3)(a)(i) (medical parolee taken into temporary detention may be placed into “imprisonment in the custody of the department” if parole is to be revoked); see also Exec. Law § 259-r(9) (commissioner must report on number of offenders granted medical parole but “returned to imprisonment in the custody of the department”). There is no doubt that in many sections of the Penal and Correction Law, the phrase “custody of the department” is plainly limited to inmates. State sentences commence with commitment to the custody of the department, which means imprisonment. PL §70.30(1), (2). See also Correction Law § 71(1) (“persons committed to the custody of the 25 department under an indeterminate or determinate sentence of imprisonment shall be delivered to correctional facilities….”); Correction Law §71(2) (“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”); Correction Law § 72(1) (“all persons … placed in the care or custody of the department shall be confined in institutions maintained by the department until paroled, conditionally released, transferred to the care of another agency or discharged in accordance with the law”). However, in each of these cases, as in Hawkins, the structure and language of the statute make the meaning plain in context. It does not follow that in statutes where the same meaning is not plain in context or in purpose, that it is to be given the same limited definition. In CPL §440.46, there is nothing in the structure or language of the statute that makes it plain, as in some other statutory provisions, that custody refers only to incarceration. Given that the 2011 Law amendments to the Executive Law made frequent use of phrases narrower than “custody of the department” to denote prisoners, it is at least ambiguous whether the decision not to amend CPL §440.46 along similar lines suggests an intent to treat inmates and parolees equally when it came to resentencing. The Court should thus be guided both by the presumption in favor of a more liberal 26 reading, as explained in Section D above, and by the structure and intent of both statutes. The intent of the DLRA’s ameliorative provisions was to reduce the ongoing effects of New York’s harsh drug laws from the Rockefeller era. While the People cite references from the DLRA-3’s legislative history referring to incarcerated persons as being the intended beneficiaries of resentencing, see App. Br. at 32-34, that is because at the time of enactment, resentencing was limited to incarcerated persons. These pronouncements do not evince an intent to continue to limit eligibility after the merger of DOCCS and Parole in 2011. The intent of the merger statute is to produce a more unified approach to persons serving state sentences, whether incarcerated or in the community. Logically, therefore, it makes sense to treat the two groups equally unless the language or purpose of the statute requires otherwise, which CPL §440.46 does not. The People describe the 2011 Law as primarily a budget bill, designed to save money. However, as the Appellate Division found, the law is unquestionably substantive as well as budgetary in nature. The stated basis for its enactment is to take account of “the evolution of the sentencing structure” and to “provide for a seamless network for the care, custody, treatment and supervision of a person, from 27 the day a sentence of state imprisonment commences, until the day such person is discharged from supervision in the community.” While the Law also aims to reduce duplication and save money, it does by creating “a single continuing, non-transferrable relationship with [that] agency,’ People v. Pomales, 35 Misc.3d 444, 448, until termination of sentence. Overall responsibility for all persons under state sentence is placed in the Commissioner of the department. New Correction Law §71-A requires DOCCS to develop a transitional accountability plan (TAP) when an individual is first committed to custody, on which the formerly separate correctional services and parole personnel must collaborate. While some of the independent functions of the old Division of Parole are preserved, such as the Parole Board, other functions that formerly resided with Parole have been transferred to overall DOCCS responsibility, such as decisions over early termination of parole. Corr. Law §205(4). In short, there is no doubt that the 2011 Law is specifically crafted to enact substantive change as well financial economies, and that it does so by unifying functions that were formerly divided among separate departments and divisions. The People also describe the changes wrought by the 2011 Law as “conforming,” “technical” or merely “computer-generated” changes, not meant to effect any substantive change in the law. See App. Br. Question 28 Presented (referring to “The 2011 Conforming Amendment”); 17, 18, 19-23, 28-32, 37. However, as shown above, the 2011 Law is not a simple “find and replace” word processing order; the Executive and Correction Laws are amended to make clear the allocation of responsibilities inside the newly- created DOCCS, and the 2011 Law specifies the difference between incarcerated and non-incarcerated persons where it is necessary to do so. F. The Merger Cures The Anomaly in Prior Law That Allowed Resentencing for Parole Violators but Not for Parolees Prior to the merger, parolees who complied with the terms of supervision, or who violated parole but went into community treatment, were ineligible for resentencing, but those who violated parole and went back into state custody, even for a brief time assessment, were eligible. In Paulin, the People cited this very anomaly in opposing parole violator eligibility. Allowing parole violators to be resentenced but not parolees, they maintained, was unfair and would lead to anomalous outcomes and perverse incentives.15 As the Appellate Division noted, the 2011 Law effectively addresses this anomaly. There is simply no good reason to allow parole violators to be resentenced, as well as those who have been released back onto parole after 29 completing a parole violation, while disallowing resentencing for those on parole. Parolees with good records of rehabilitation can now be considered for resentencing on an equal footing with those whose records are arguably worse. And this result is completely harmonious with the structure of the merger law itself, which breaks down the formerly sharp division between the two populations. Under the circumstances, it is unfortunate that the People now argue in favor of preserving the anomaly that they themselves opposed back in 2011. At issue here is not simply a matter of technical statutory construction. There is still a substantial group of offenders still serving lengthy pre-2005 sentences who have not been (un)fortunate enough to be sent back to state prison so that they can apply for resentencing under Paulin. They find themselves still serving their sentences long after their peers with worse records have been discharged. As this Court noted in Sosa, judges will always retain discretion over resentencing in individual cases. There is simply no reason to deny these individuals a chance at some measure of relief under the DLRA. 15 In their brief in Paulin, the People repeatedly criticized the idea of resentencing parole returnees but not “law-abiding” parolees as “absurd,” “illogical, if not absurd,” and “curious.” See Respondent’s Brief in People v. Paulin, 2011 WL 5007851 at 11, 15, 16. 30 Conclusion In the end, by trying to restrict the resentencing process to the smallest possible class of individuals, the People are fighting a losing battle. The resentencing process has played a significant role in New York’s turn to alternatives to incarceration for non-violent drug offenders, which has led to one of the nation’s sharpest drops in prison population and correctional control. In 2011, the People fought to prevent parole violators from being resentenced, asking this court to discern an intent by the legislature to limit resentencing to persons who were serving the original portion of their sentence. Paulin rejected that argument and instead looked to the language of the statute itself. Here, too, the People ask the Court to discern an intent by the legislature to limit resentencing to incarcerated persons. However, the language of the statute does not support such a limit. Instead, it should be given its natural reading, which is consistent with the underlying policy objectives of the DLRA-3 and the merger statute, and with common sense. The decision of the Appellate Division should be upheld. 31 CONCLUSION THE DECISION OF THE APPELLATE DIVISION SHOULD BE AFFIRMED. Dated: New York, New York October 14, 2014 Respectfully submitted, _________________________________ SEYMOUR W. JAMES, JR. DAVID CROW The Legal Aid Society Criminal Appeals Bureau 199 Water Street – 5th Floor New York, New York 10038 (212) 577-3282 dcrow@legal-aid.org