The People, Appellant,v.Jarrod Brown, Respondent.BriefN.Y.March 24, 2015To 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 REPLY 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, 5 Floorth New York, New York 10038 November 12, 2014 Queens County Indictment Number QN11196/2001 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT CONTRARY TO DEFENDANT’S CONTENTION, THERE IS NO EVIDENCE THAT, IN PASSING THE 2011 MERGER LEGISLATION, THE LEGISLATURE INTENDED TO EXPAND THE ELIGIBILITY REQUIREMENTS FOR DRUG RE-SENTENCING OR TO RECTIFY ANY PURPORTED ANOMALY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. The Ameliorative Intent of the 2009 DLRA Did Not Extend to Authorize Re-Sentencing for Parolees.. . . . . . . . . . . 6 B. There is No Evidence that the 2011 Act Had Any Ameliorative Intent With Regard to Eligibility for Re- sentencing or That It Was Intended to Address Any Purported Anomaly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 C. The Legislature Has Rationally Distinguished Between Parolees and Incarcerated Defendants, Providing Differing Relief to Each. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 TABLE OF AUTHORITIES Cases Bright Homes v. Wright, 8 N.Y.2d 157 (1960). . . . . . . . . . . . . . . . . . . . . . . 21 People v. Allen, 118 A.D.3d 1048 (3d Dept. 2014). . . . . . . . . . . . . . . . . . . 20 People v. Boothe, 16 N.Y.3d 195 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Brown, 115 A.D.3d 155 (2d Dept. 2014). . . . . . . . . . . . . . . . . . . . 2 People v. Coleman, __ N.Y.3d __, 2014 N.Y. Lexis 2821 (October 16, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15n.2 People v. Darwin, 102 A.D.3d 807 (2d Dept. 2013). . . . . . . . . . . . . . . . . . 21 People v. Finnegan, 85 N.Y.2d 53 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Paulin, 17 N.Y.3d 238 (2011).. . . . . . . . . . . . . . . . . 7, 9, 14, 15n.2 People v. Santiago, 17 N.Y.3d 246 (2011). . . . . . . . . . . . . . . . . . . . 14, 15n.2 People v. Smith, 79 N.Y.2d 309 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Sosa, 18 N.Y.3d 436 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 21 Other Authorities C.P.L. § 440.46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Ch. 62, L. 2011, Part C, Section 1.. . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 16 Ch. 62, L. 2011, Title; Part C, Subpart B, Section 79.. . . . . . . . . . . . . . . . . 11 Corr. Law § 205.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 ii L. 2004, Ch. 738 (“DLRA 2004”).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 L. 2005, Ch. 634 (“DLRA 2005”).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Other Authorities Assembly Sponsor’s Mem., 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 November 12, 2014); Senate, Governor and Assembly Announce Three-Way Agreement to Reform Rockefeller Drug Laws, available at http://www.nysenate.gov/print/17136 (accessed November 12, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 iii COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : JARROD BROWN, : Defendant-Respondent. : -------------------------------------------------------------------- x REPLY BRIEF FOR APPELLANT PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief, filed by defendant on October 14, 2014. The facts and procedural history of this case are discussed in Appellant’s main brief and will not be repeated here, except to the extent necessary to clarify a legal point. INTRODUCTION In their main brief, the People argued that the 2011 legislation merging the Department of Corrections and the Division of Parole made merely a technical, conforming amendment to the language of section 440.46 to reflect the new name of the Department of Corrections and Community Supervision, and that the Legislature did not intend to expand the eligibility requirements for relief under that section. As a result, the Appellate Division’s decision expanding eligibility under the statute to every class “B” felony drug parolee in the state was erroneous. In response, defendant argues that the language of section 440.46 as it reads now is ambiguous because the term custody may be used in various ways and that, as a result of the ambiguity, the statute should be given an expansive reading. That reading is necessary, according to defendant, both because the original intent of section 440.46 was remedial or ameliorative and because the Legislature, in passing amendments in 2011, intended to correct a purported anomaly in the treatment of incarcerated defendants and parolees, who, he maintains, must be treated alike. Defendant’s brief, however, provides no basis sufficient to sustain the actions of the court below. As an initial matter, defendant appears to have abandoned the primary argument upon which the Appellate Division relied, that the “plain language” in section 440.46 compels the conclusion that parolees are within the scope of the statute. See People v. Brown, 115 A.D.3d 155, 158-59 (2d Dept. 2014). Instead, he argues at great length that there is ambiguity in the statutory term “custody,” it having been used in various ways by the Legislature, thus, necessitating an examination of the underlying intent of the statute (Defendant’s Brief: 9, 20- 25). Moreover, conspicuously absent 2 from the brief is any discussion of the fact or importance of the plain meaning doctrine. Thus, as defendant appears to concede, the plain language of the statute is not sufficient to support the Appellate Division’s conclusion below. Moreover, the ameliorative or remedial purpose argument cannot prevail, because the ameliorative purpose of the original 2009 DLRA did not extend to parolees and there is no reason to believe the Legislature had a remedial purpose with regard to drug re-sentencing in 2011, much less an intent to expand eligibility under the statute, when it simply changed the name of the relevant agency in section 440.46. First, despite the ameliorative intent of the 2009 DLRA, which created section 440.46, the Legislature unquestionably limited eligibility for re-sentencing under that statute to incarcerated defendants. The ameliorative or remedial intent of the re-sentencing provision, then, did not extend to parolees. Second, there is absolutely no evidence that, when the Legislature passed the 2011 merger of the Department of Corrections and the Division of Parole, it intended to provide any ameliorative effect or additional benefit to drug defendants in general or with regard to section 440.46 re-sentencings in particular. To the contrary, there is no reason to believe that the simple change 3 in the name of the government agency listed in the statute was anything other than a “technical conforming” amendment, as the legislative history itself describes it. Third, absolutely nothing suggests that the Legislature intended to address defendant’s purported anomaly. Not a single line of the legislative history could be interpreted to address that issue, much less the conforming change in the statutory language. Moreover, there is ample evidence that the Legislature did not consider parolees and incarcerated defendants the same. Indeed, the Legislature provided for differing benefits to the two categories of defendants, allowing parolees absolute early release from parole for good behavior and inmates the possibility of re-sentencing, where substantial justice did not preclude it. There is simply no reason to assume, and certainly no legislative history to support, that the Legislature changed its mind and wished to give parolees the additional benefit authorized by the Appellate Division here. Because defendant, and the Appellate Division below, read far too much into the 2011 Amendments, including an ameliorative intent with regard to drug defendants sufficient to afford them a benefit the Legislature previously specifically denied to them, the decision below should be reversed. 4 ARGUMENT C O N T R A R Y T O D E F E N D A N T ’ S CONTENTION, THERE IS NO EVIDENCE THAT, IN PASSING THE 2011 MERGER LEGISLATION, THE LEGISLATURE INTENDED TO EXPAND THE ELIGIBILITY R E Q U I R E M E N T S F O R D R U G RE-SENTENCING OR TO RECTIFY ANY PURPORTED ANOMALY. Defendant raises two primary claims in response to the People’s main brief. First, defendant argues that the statute, as it now reads, is ambiguous, and that because the original intent of the 2009 DLRA was ameliorative or remedial in nature, the section must be given an expansive interpretation. Second, defendant maintains that the Legislature, in passing the merger legislation, intended to address a purported anomaly between incarcerated defendants and parolees, who must be treated the same, according to defendant. Defendant’s argument fails for several reasons. The ameliorative or remedial purpose of the original 2009 DLRA did not extend to offering re- sentencing to parolees, and even defendant does not maintain that it did. Moreover, there is no reason whatsoever to believe that the 2011 legislation merging the state agencies was intended to provide a re-sentencing benefit to 5 parolees or had any ameliorative intent for drug defendants covered by section 440.46 beyond that provided in the 2009 legislation. Nor is there any reason to believe the Legislature sought to address defendant’s purported anomaly. Indeed, the Legislature treated incarcerated defendants and parolees differently in the 2009 legislation, providing different benefits to each, and did not expand or limit those benefits in the 2011 legislation when it changed the name of the relevant agency in section 440.46. Accordingly, the Appellate Division’s decision providing new benefits to parolees across the state as a result of the 2011 amendments should be reversed. A. The Ameliorative Intent of the 2009 DLRA Did Not Extend to Re-Sentencing for Parolees. Under the 2009 DLRA, and the express terms of section 440.46 as passed under that legislation, the benefits of re-sentencing did not extend to parolees. The section expressly provided the benefit of re-sentencing only to defendants who were in custody, not those merely on parole, and even defendant does not maintain that the act covered parolees. C.P.L. § 440.46(1). Moreover, the legislative history of the 2009 DLRA fully supports this conclusion. The 2009 Drug Law Reform Act, like its predecessors, sought to reduce the harsh effects of lengthy prison sentences, not to preclude 6 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 People v. Paulin, 17 N.Y.3d 238, 244 (2011) (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”). Accordingly, the Legislature1 chose to offer relief to those who remained incarcerated, but not those who had been released on parole. Id. (citing Press Release, Senate, Governor and Assembly 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]). Indeed, incarcerated defendants were the most immediately and directly harmed by harsh drug laws, not defendants For this conclusion, the Court cited the following sources: Assembly Sponsor’s Mem.,1 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 November 12, 2014); Senate, Governor and Assembly Announce Three-Way Agreement to Reform Rockefeller Drug Laws, available at http://www.nysenate.gov/print/17136 (accessed November 12, 2014). 7 on parole. For this reason, the Legislature did not include paroled defendants in 2009 DLRA re-sentencing structure. Thus, while the DLRA expressed a general ameliorative intent, that intent did not extend to the point of providing the substantial benefit of re- sentencing to parolees. Nothing in that Act or its legislative history, then, suggests that it can be interpreted to reflect an intent to provide such a benefit. Defendant nevertheless cites this Court’s decision in People v. Sosa, 18 N.Y.3d 436 (2012), to argue that section 440.46 must be given an ameliorative interpretation (Defendant’s Brief: 17-18). But Sosa does not support defendant’s claim. First, Sosa deals only with the terms of the originally enacted DLRA, which it found unclear on the issue then before the Court. Here, by contrast, the 2009 DLRA’s terms are clear – indeed, undisputed – with regard to the eligibility of parolees. Moreover, Sosa in no way suggested that the legislative intent of the 2009 Act should or could be imputed to a subsequent statute passed for a purpose wholly unrelated to drug reform. For the same reasons, Sosa’s language about limitations having to be “clearly expressed,” cited by defendant, does not support defendant’s claim (Defendant’s Brief: 18-19). The restriction in Criminal Procedure Law 8 section 440.46, as originally written, limiting re-sentencing to incarcerated defendants was clearly expressed. See Paulin, 17 N.Y.3d at 243-44. And nothing in the amended statute expresses an intent to broaden the class of eligible defendants simply by changing the words “Department of Correctional Services” to “Department of Correctional Services and Community Supervision.” Thus, Sosa does not support defendant’s claim. Thus, even though the 2009 DLRA was remedial in nature, the Legislature limited its ameliorative effect. If the Legislature wanted to make the statute wholly ameliorative, it could have stated that any defendant convicted of a class “B” drug felony was eligible for re-sentencing, and then relied on trial courts to perform a substantial justice inquiry to decide whether to grant a re-sentencing motion. But the Legislature did not do this. Instead, it devised rules of eligibility and then allowed trial courts to exercise its discretion only after determining that a defendant was eligible for re- sentencing. The Legislature’s eligibility requirements cannot be ignored or diluted merely by noting the ameliorative nature of the statute. In short, despite its ameliorative nature, the 2009 DLRA contained a sharp division between incarcerated defendants and parolees – incarcerated defendants, subject to some exceptions, were eligible for re-sentencing and 9 parolees were not. Thus, the original statute’s remedial nature by itself did not extend to re-sentencing for parolees. Accordingly, defendant’s claim that the 2009 DLRA’s ameliorative nature compels a more expansive view of eligibility in interpreting the later, unrelated amendment should be rejected. B. There is No Evidence that the 2011 Act Had an Ameliorative Intent With Regard to Eligibility for Re-sentencing or That It Was Intended to Address Any Purported Anomaly. Because neither the language nor the legislative history of the 2009 DLRA evinces an ameliorative intent sufficient to include re-sentencing for parolees, defendant’s ameliorative intent argument depends on an analysis of the intent of the 2011 amendments merging the Department of Corrections with the Division of Parole. Moreover, nothing in the legislative history suggests that the revision was intended to effect drug reform, much less that the Legislature had changed its mind and decided to provide to parolees benefits it has previously denied. 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 10 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 legislative history itself, no more than a “conforming technical” change, there is absolutely no reason to believe that the Legislature intended to change the eligibility requirements of the section or fix any kind of anomaly in the re- sentencing statute. Moreover, there is nothing in the statute to suggest that the Legislature intended to abridge parole supervision – the practical effect of re- sentencing paroled defendants. Indeed, if anything, the legislative history of the 2011 law shows the importance of supervision in reintegration and the need for support through programs and other resources that DOCCS provides. Specifically, the legislative intent section of the statute notes, in part, that now 11 transitional services programs have become mandatory for all inmates, showing the these programs are vital for a defendant’s hope of achieving successful reintegration and reducing the likelihood of re-incarceration. Moreover, each inmate must have a transitional accountability plan, which starts when the inmate enters general confinement and ends when they successfully re-integrate into the community. See Ch. 62, L. 2011, Part C, Subpart A, Section 1. Indeed, in combining the two agencies, the Legislature sought to create a seamless network for these programs, not to eliminate them or in any way abridge supervision of released inmates. If anything, this stated focus on re-entry, starting when a defendant enters prison and ending with re- integration after a defendant’s release to post-release supervision or parole, shows that supervision is a pre-requisite of successful re-entry. Thus, re- sentencing paroled defendants and effectively ending their supervision in the community is at odds with the stated intent to provide seamless reintegration, transitional programs and focus on re-entry. Because there was no ameliorative intent or remedial purpose to the amendment to section 440.46, and no dispute that the original statute’s ameliorative intent did not extend to provide the benefit of re-sentencing to 12 parolees, the ameliorative/remedial rationale cannot be used to create a broad eligibility change in the statute where the Legislature did not. C. The Legislature Rationally Distinguished Between Parolees and Incarcerated Defendants, Providing Differing Relief to Each. Nevertheless, defendant claims that there is no reason to treat parolees and re-incarcerated parole violators differently because they are “basically the same group of people” (Defendant’s Brief: 15). Moreover, defendant argues that treating parolees and inmates differently in the 2009 statute produced an anomaly that this Court should correct. But the Legislature deliberately distinguished between inmates and parolees in 2009 and there is no reason to believe it changed its mind in 2011. Moreover, the distinction the Legislature made is a rationale one, both because inmates and parolees are not similarly situated in many respects and because, while denying certain re- sentencing to parolees, the Legislature provided other relief to them, not available to inmates. This Court should not upset the legislative distinction. As an initial matter, defendant’s argument is essentially that parolees are being treated unfairly, a complaint that should be made to the Legislature rather than the courts, as it presents a policy issue for that body to resolve. See generally People v. Boothe, 16 N.Y.3d 195, 198 (2011)(stating 13 that courts are not to “legislate under the guise of interpretation” and that any deficiencies in statute must be corrected through legislative action). There is no reason to believe that the Legislature, in enacting the 2011 legislation, wished to change the determination made in 2009 denying this relief to parolees, and to the extent defendant believes that this is unfair or produces an anomalous result, he must return to that body rather than to this Court. Moreover, defendant’s argument is fundamentally mistaken. Inmates, whether serving their original sentence or a parole assessment, are different from parolees – one group is incarcerated and the other is at liberty, albeit under the supervision of parole officers – a distinction that is unlikely to be lost on those who remain incarcerated. Indeed, this difference underpinned the original 2009 DLRA and the holdings of this Court in People v. Paulin, 17 N.Y.3d 238, 244 (2011), and People v. Santiago, 17 N.Y.3d 246 (2011). In Paulin, this Court noted that the burden of “inordinately harsh punishment” fell most heavily on incarcerated defendants. Paulin, 17 N.Y.3d at 244. And, while People v. Santiago, 17 N.Y.3d 246 (2011), permitted re-sentencing of parole violators who had been released during the pendency of their motions, that decision was based on the plain reading of the statute – which indicated 14 that the defendants were eligible to apply for re-sentencing when incarcerated. Santiago, 17 N.Y.3d at 248-49.2 Moreover, in deciding to allow re-sentencing for incarcerated defendants and not providing for re-sentencing for paroled defendants, the Legislature rationally differentiated between the two groups. Simply because the Legislature decided that it was unnecessary to continue punishment by means of incarceration for certain drug offenders serving long sentences, and, thus, providing re-sentencing opportunities for them, it does not follow that it was appropriate to end supervision for those on parole – the main effect of re- sentencing paroled defendants. Indeed, there are a number of reasons why Defendant reads too much into Santiago by arguing that this Court has suggested that the2 2011 amendments to Criminal Procedure Law section 440.46 provide for re-sentencing of parolees. In noting that the decision begins with the sentence, “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,” defendant argues that this Court has suggested that it would view the amendments as opening the re-sentencing process to paroled defendants (Defendant’s Brief: 14); Santiago, 17 N.Y.3d at 247. But both Paulin and Santiago clearly stated that the Court was not ruling on the issue of the re-sentencing eligibility of paroled defendant and defendant’s attempt to predict the Court’s ruling in the instant case or divine a deeper meaning in that sentence is misplaced. Paulin, 17 N.Y.3d at 243 fn. 1; Santiago, 17 N.Y.3d at 248, fn. 1. Moreover, this Court’s recent decision in People v. Coleman, __ N.Y.3d __, 2014 N.Y. Lexis 2821 (October 16, 2014), is distinguishable. There, the defendant was incarcerated when he filed his re-sentencing motion so that case did not present the same issue that is raised here – whether a defendant who is not incarcerated when he filed his motion is eligible for re-sentencing. Further, that case dealt with the entirely different issue of exclusion offenses and did not address the merger legislation that is at issue here. Thus, Coleman is distinguishable. 15 paroled defendants need continuing supervision. For instance, whatever issue motivated a person to sell drugs while in the community – either a financial motivation or an addiction – is likely to re-occur if a defendant is not supervised after being released from prison. Indeed, to the extent that the Legislature sought to provide a seamless transition for inmates to transition to parole in merging DOCS and the Division of Parole, see Ch. 62, L. 2011, Part C, Subpart A, it recognized the importance of supervision in reintegration into society and the perils of an abrupt release into the community without support and oversight. Supervising a defendant’s reintegration lowers the risk of re- offending and protects the community from those defendants who are unwilling to live a law abiding life. Also, budgetary concerns could further explain the difference in treatment between incarcerated and paroled defendants. In addition to providing relief to defendants serving long prison terms, the 2009 DLRA sought to provide relief to taxpayers by saving millions of dollars that are spent incarcerating drug felons. See Press Release, Governor Paterson and Legislative Leaders Announce Three-Way Agreement to Reform New York State’s Rockefeller Drug Laws (Senate Majority Leader stating that drug reform would “reverse years of ineffective criminal laws, protect communities 16 and save taxpayers millions of dollars that were wasted on the current policy.”). Indeed, it is incarceration that places the heaviest financial burden on the state, not diversion programs or parole or community supervision. Thus, the Legislature could have also been motivated by a desire to replace costly incarceration with much cheaper community supervision. This too could explain the difference in treatment of incarcerated defendants and parolees. Furthermore, the example defendant uses to support his claim – that of a defendant cycling between parole and periods of incarceration after parole violations (Defendant’s Brief: 16-17) – does not show that parolees and incarcerated defendants are the same group, but only shows that some defendants may have trouble re-adjusting to life in the community or will commit new crimes and, thus, will be re-incarcerated. Further, stating that a specific defendant may cycle through periods of parole supervision and incarceration on parole violations does not mean that parolees as a group are the same as incarcerated defendants. There are, as demonstrated above, different concerns for each, both in terms of reintegration into society and in providing the most cost effective means of achieving the ultimate goals of 17 sentencing. Thus, contrary to defendant’s contention, the Legislature could, and did, rationally distinguish between parolees and incarcerated defendants. Defendant also claims that this Court should allow re-sentencing for paroled defendants in order to fix an anomaly that resulted from the 2009 DLRA – that re-incarcerated parole violators were eligible for re-sentencing, but parolees who abided by the conditions of their release were not eligible. Specifically, defendant claims that the statute is unfair to parolees who had not violated their parole and those who had violated but were given the option to go to treatment on a “revoke and restore” basis, where they would not be eligible for re-sentencing, instead of taking a prison time assessment (Defendant’s Brief: 10, 15-16). But this claim should be rejected for several reasons. First, as noted above, there is nothing in the 2011 amendments or its legislative history to suggest that the Legislature intended to amend the eligibility requirements for drug re-sentencing in order to fix this anomaly. And, if the Legislature sought to correct this situation, it could have easily amended Criminal Procedure Law section 440.46 to read that defendants in the legal custody of DOCCS or defendants on parole release were eligible for re- sentencing. Yet, the Legislature did not act, showing that it did not intend to 18 change the eligibility requirements for drug re-sentencing and merely sought to conform the language in the statute to reflect the new agency name. Second, defendant’s claim rests on the faulty assumption that if a person does not need prison time, i.e. parole is appropriate, then he does not need supervision. Indeed, unlike the re-sentencing of incarcerated defendants, which shortens or terminates their prison sentences, the re-sentencing of parolees only affects the length of their supervision or the amount of time they would owe on a parole violation. And there is nothing in the 2011 law that would indicate that the Legislature sought to shorten the period of supervision of released defendants. Moreover, defendant places too much reliance in the Bronx County District Attorney’s Office’s brief in Paulin (Defendant’s Brief: 29, fn 15). See Respondent’s Brief, 2011 N.Y. App. Ct. Briefs 39938 (February 1, 2011). While the People there argued that it would be illogical to reward parole violators with re-sentencing eligibility while denying re-sentencing to parolees, that argument was made in a different context – arguing that incarcerated parole violators should not be eligible for re-sentencing, not arguing that parolees should be eligible. Moreover, while the People in Paulin noted the anomaly in their brief, it was the responsibility of the Legislature, if 19 it chose, to cure any possible defect by amending the statute to specifically include paroled defendants. Yet the Legislature chose not to act and there is nothing in the legislative history to suggest that the Legislature intended to change the eligibility requirements in making conforming changes to Criminal Procedure Law section 440.46 in 2011. Thus, this claim should be rejected. Further, in focusing on the denial of re-sentencing to defendants abiding by the conditions of their parole and arguing that they are being treated unfairly in comparison to parole violators (Defendant’s Brief: 10, 17), defendant discounts the ameliorative action that the Legislature took on behalf of these defendants – requiring that their parole be discharged after two years of unrevoked parole. See Corr. Law § 205(4). Thus, if paroled defendants abide by the conditions of their release, their parole must be discharged, providing a substantial benefit, even in relation to defendants who are re- sentenced pursuant to Criminal Procedure Law section 440.46 and must still serve a term of post-release supervision following the completion of their new determinate sentence. Moreover, while re-incarcerated parole violators might be eligible for re-sentencing, their parole violations will be evaluated in the substantial justice inquiry, so that they may well be denied re-sentencing as a result of the violation. See e.g., People v. Allen, 118 A.D.3d 1048 (3d Dept. 20 2014)(considering parole violation in denying motion on substantial justice grounds); People v. Darwin, 102 A.D.3d 807 (2d Dept. 2013)(same). As this Court stated in Sosa, “[t]o the extent that the Legislature’s definition of the eligible class in the individual case proves over inclusive, the proper corrective” action is for the motion court to examine the substantial justice prong. Sosa, 18 N.Y.3d at 443. Thus, while paroled defendants are being treated differently than incarcerated parole violators in the sense that they are ineligible for drug re- sentencing, they are not being treated unfairly, and certainly not to the point where the only possible inference is that the Legislature must have intended to correct any unfairness in 2011 legislation that was otherwise wholly unrelated to drug reform. Moreover, paroled defendants can receive the benefit of early discharge through Correction Law section 205(4), one not available to incarcerated defendants. Thus, defendant’s claim that the 2011 law should be read more expansively in order to ensure equal treatment between paroled and incarcerated parole violators should be rejected. Indeed, making the change defendant seeks would upset the carefully balanced legislative scheme, something the Court cannot do. See People v. Finnegan, 85 N.Y.2d 53, 58 (1995), citing Bright Homes v. Wright, 8 N.Y.2d 157, 161 (1960)(stating that 21 courts should not legislate under the guise of interpretation and should “leave it to the Legislature to correct evils if any exist”); People v. Smith, 79 N.Y.2d 309, 311 (1992). 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, which merely reflected the name of the new state agency, 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 statute at issue – Chapter 62 of the Laws of 2011 – was not, and 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 Appellate Division incorrectly decided that defendant was eligible for re-sentencing, and its order should be reversed. 22 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 JOHN M. CASTELLANO DANIELLE S. FENN Assistant District Attorneys Of Counsel November 12, 2014 23