The People, Respondent,v.Tyrell Norris, Appellant.BriefN.Y.February 7, 2013To be argued by: CAROLINE R. DONHAUSER (15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, Kings County Indictment Number 8695/2002-against- TYRELL NORRIS, Defendant-Appellant. BRIEF FOR RESPONDENT LEONARD JOB LOVE VI CTOR BARALL CAROLINE R. DONHAUSER Assistant District Attorneys of Counsel August 17, 2012 Telephone: Facsimile: (718) 250-2487 (718) 250-2314 CHARLESJ. HYNES DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (718) 250-2000 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i v PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Trial, Sentence, and Direct Appeal ................. 6 The Motion for Resentencing............................ 10 Defendant's Motion................................ 10 The People's Response............................. 10 Defendant's Reply................................. 11 The Court's Decision.............................. 12 The Appeal to the Appellate Division................... 14 POINT I - BECAUSE THE SUPREME COURT EMPHASIZED THAT IT HAD NO INTENTION OF RESENTENCING DEFENDANT TO AN AGGREGATE PRI SON SENTENCE LOWER THAN THE ONE PROPOSED BY THE PEOPLE OF THREE CONSECUTIVE DETERMINATE PRISON TERMS OF SEVEN YEARS, THE ISSUE OF WHETHER THE COURT HAD THE AUTHORITY TO ALTER THE ORIGINALLY-ORDERED CONSECUTIVE RELATIONSHIP BETWEEN THE SENTENCES IS ACADEMIC IN THIS CASE.................................. 17 POINT II - SECTION 440.46 OF THE CRIMINAL PROCEDURE LAW DOES NOT GRANT A RESENTENCING COURT THE AUTHORITY TO CHANGE THE CONSECUTIVE OR CONCURRENT RELATIONSHIP BETWEEN SENTENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 A. Section 440.46 of the Criminal Procedure Law very specifically defines the scope of a court's resentencing authori ty, and such authori ty does not include altering the consecuti ve or concurrent relationship between sentences. Accordingly, the valid and legally imposed consecutive relationship between defendant's sentences cannot now be changed....... 22 TABLE OF CONTENTS (cont' d) PAGE B. Limi ting a court's resentencing authority so as to exclude the power to redetermine the relationship between sentences comports with the purpose of the 2009 DLRA and C.P.L. § 440.46.. ........................................35 CONCLUSION - DEFENDANT'S APPEAL SHOULD BE DISMISSED, OR, IN THE ALTERNATIVE, THE ORDER OF THE APPELLATE DIVISION, AFFIRMING THE ORDER OF PROPOSED RESENTENCE, SHOULD BE AFFIRMED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 TABLE OF AUTHORITIES Pages CASES People v. People v. People v. People v. People v. Acevedo, 14 N.Y.3d 828 (2010) ............... 4, passim Bautista, 7 N.Y.3d 838 (2006) ....................... 33 Boothe, 16 N.Y.3d 195 (2011) ........................ 35 Da is, 19 N. Y . 3d 335 ( 2 0 12 ) ..................... 31, 32 Davis, 12 A.D.3d 237 (1st Dep't 2004) ..............25 People v. Diaz, 68 A.D.3d 497 (1st Dep't 2009) ............... 29 People v. Discala, 45 N.Y.2d 38 (1978) ....................... 19 People v. Finnegan, 85 N.Y.2d 53, cert. denied, 516 U.S. 919 (1995) ....................... 34 People v. Gonzalez, 90 A.D.3d 781 (2d Dep't 2011) ............ 29 People v. Hernandez, 98 N.Y.2d 8 (2002) ...................... 34 People v. Highsmith, 79 A.D.3d 1741 (4th Dep't 2010) ......... 33 People v. Kadry, 63 A.D.3d 856 (2d Dep't), 1 v. granted, 13 N. Y. 3d 797, appeal dismissed, 13 N.Y.3d 903 (2009)..................................... 24 People v. Khan, 60 A.D.3d 967 (2d Dep't 2009) ................ 11 People v. Laing, 79 N.Y.2d 166 (1992) .................... 21, 34 People v. Lingle, 16 N.Y.3d 621 (2011) ....................... 25 People v. Machado, 90 N.Y.2d 187 (1997) ...................... 34 People v. Miles, 61 N.Y.2d 635 (1983) ........................18 People v. Elbert Norris, 90 A.D.3d 955 (2d Dep't 2011), lv. granted, 18 N.Y.3d 926 (2012) ........................ 3 People v. Tyrell Norris, 34 A.D.3d 501 (2d Dep't 2006), Iv. denied, 8 N.Y.3d 848 (2007) ................... 2, 9, 23 TABLE OF AUTHORITIES (cont'd) Pages People v. Tyrell Norris, 90 A.D.3d 788 (2d Dep't 2011), iv. granted, 18 N.Y.3d 926 (2012) ................ 1, 16, 18 People v. Santiago, 17 N. Y.3d 246 (2011) .. . .. .. . .. .. .. . . .. .. . .. .. .. .. .. . .. . 28 People v. Thompson, 60 N. Y. 2d 513 (1983) . .. .. .. .. .. .. . .. .. . .. .. .. .. . . . .. . .. 18 People v. Vaughan, 62 A. D. 3d 122 (2d Dep't 2009) .. .. . .. . .. 4, passim People v. Yannicelli, 40 N. Y. 2d 598 (1976) . .. .. . .. . .. . .. .. .. .. . . .. .. . .. . 25 STATUTES AND SESSION LAWS 2004 Drug Law Reform Act ("DLRA"), ch. 738, 2004 N.Y. Laws 1462.............................. 21, passim 2005 Drug Law Reform Act ("DLRA"), ch. 643, 2005 N.Y. Laws 1581 .................................37, 41 2009 Drug Law Reform Act ("DLRA"), ch. 56, Pt. AA, 2009 N.Y. Laws 160 .............................. 10, passim Act of Mar. 31, 2011, ch. 62, pt. C, subpt. B, § 79, 2011 N.Y. Laws 590 .................................. 28, 33 Correct. L. § 803.............................................40 C.P.L. § 400.21 ............................................... 32 C.P.L. § 430.10 ............................................... 23 C.P.L. § 440.10 ............................................... 34 C.P.L. § 440.20 . . .. .. .. . . .. .. .. .. . . .. .. . .. .. .. .. . . .. .. . .. .. . .. .. .. . .. .. .. . .. .. . .. . .. .. 23, 24 C.P.L. § 440.46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. iv, passim C.P.L. former § 440.46 ........................................ 28 C.P.L. § 450.10 ............................................... 34 ii TABLE OF AUTHORITIES (cont' d) Pages C.P.L. § 450.15 ............................................... 34 C.P.L. § 450.90 ............................................... 34 C.P.L. § 470.15 ............................................... 23 P.L. § 60.04........................................... 4, 10, 30 P.L. § 70.00.................................................. 39 P. L . forme r § 70. 06 ( 2 0 0 2) ............................... 22 , 39 P.L. § 70.25.......................................... 20, passim P.L. § 70.30.................................................. 43 P. L. § 70. 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12, 1 7 P.L. § 70.70........................................... 4, passim P . L . forme r § 70. 70 ( 2 005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 36 P. L. § P. L. § P. L. § P. L. § P. L. § P. L. § 70.71.............................................. 24,36 105.13..................................................2 105.15..................................................3 105.17.................................................. 3 220.39........................................... 1, 3, 22 220.44.................................................. 3 OTHER AUTHORITIES N. Y. State Comm' n on Sentencing Reform, The Future of Sentencing in New York State: Recommendations for Reform (2009) ....................... 36 iii QUESTIONS PRESENTED 1. Whether, in a case where the court emphasized that it had no intention of resentencing a defendant to an aggregate prison sentence lower than the one proposed by the People of three consecutive determinate prison terms of seven years, the issue of whether the court had the authority to alter the originally- ordered consecuti ve relationship between the sentences is academic. 2. Whether a court, having granted a defendant's motion, pursuant to section 440. 46 of the Criminal Procedure Law, for resentencing on his class B felony drug convictions, has the authority not only to replace the original lawfully-imposed indeterminate sentences with determinate sentences of imprisonment, but also to change the consecutive relationship between the original sentences to a concurrent relationship, even though no such authority to redetermine the consecuti vel concurrent relationship between sentences is provided for in the resentencing statute. iv COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Kings CountyIndictment Number 8695/2002TYRELL NORRIS, Defendant-Appellant. ;t BRIEF FOR RESPONDENT PRELIMINARY STATEMENT Defendant, Tyrell Norris, appeals by permission of a judge of this Court from an order of the Appellate Division, Second Department, dated December 13, 2011. See People v. Tyrell Norris, 90 A.D.3d 788 (2d Dep't 2011), lv. granted, 18 N.Y.3d 926 (2012) (Graffeo, J.). By that order, the Appellate Division affirmed a September 24, 2010 order of the Supreme Court, Kings County, which granted defendant's motion, pursuant to section 440.46 of the Criminal Procedure Law, for resentencing on his class B felony drug convictions and specified that, if defendant wished to be resentenced, the court would impose on each of defendant's three convictions of Criminal Sale of a Controlled Substance in the Third Degree (P.L. § 220.39(1)) a determinate sentence of seven years' imprisonment followed by three years' post-release supervision, with the three sentences to run consecuti vely to each other and concurrently with defendant's indeterminate sentence of three and one-half to seven years' imprisonment for his conviction of Conspiracy in the Third Degree (P.L. § 105.13). The resentencing motion pertained to a judgment, entered on December 17, 2003, wherein defendant had been convicted, after a jury trial, of three counts of Criminal Sale of Controlled Substance in the Third Degree and one count of Conspiracy in the Third Degree, and had been sentenced, as a second felony offender, to an indeterminate prison term of five to ten years on each drug sale count, with those terms ordered to run consecuti vely to each other and to run concurrently with an indeterminate prison term of three and one-half to seven years on the conspiracy count (Marrus, J., at trial and sentence) . i Defendant is incarcerated pursuant to this judgment of conviction. i Defendant had originally been convicted of four drug sale counts. On defendant's direct appeal, the Appellate Division, Second Department, dismissed one of the counts on the ground that the verdict was against the weight of the evidence, and the Appellate Division vacated the sentence on that count. People v. Norris, 34 A.D.3d 501 (2d Dep't 2006), Iv. denied, 8 N.Y.3d 848 (2007). 2 STATEMENT OF FACTS Introduction Between March 14, 1998, and September 20, 2002, defendant, Tyrell Norris, participated in a conspiracy to sell narcotics in the Cypress Hills Houses, a public housing development in Brooklyn. He was second-in-command of the "Ruffryders," a gang that controlled the narcotics trade in one sector of the development. In April and May of 2002, defendant was involved in three sales of crack cocaine to undercover police officers. For these acts, defendant was charged, along with scores of other individuals, under Kings County Indictment Number 8695/2002, with one count each of Conspiracy in the First Degree (P. L. § 105.17) and Conspiracy in the Second Degree (P. L. § 105.15), and four counts each of Criminal Sale of a Controlled Substance in the Third Degree (P. L. § 220.39 (1)) and Criminal Sale of a Controlled Substance in or near School Grounds (P. L. § 220.44 (2)).2 In 2003, defendant was convicted after a jury trial of one count of third-degree conspiracy and four counts of third-degree criminal sale of a controlled substance. The court sentenced defendant, as a second felony offender, to five to ten years' 2 One of the codefendants on the indictment was Elbert Norris. See People v. Elbert Norris, 90 A. D. 3d 955 (2d Dep't 2011), lv. granted, 18 N.Y.3d 926 (2012). Elbert Norris is not related to defendant, Tyrell Norris. 3 imprisonment on each drug sale count, and ordered those sentences to run consecutively to each other and concurrently with a sentence of three and one-half to seven years' imprisonment on the conspiracy count (Marrus, J., at trial and sentence) . One of the drug sale counts was later dismissed on appeal and the sentence vacated, so that defendant was left serving an aggregate prison sentence of fifteen to thirty years. In 2010, defendant moved, pursuant to section 440.46 of the Criminal Procedure Law (hereinafter "C.P.L. § 440.46"), for an order vacating the indeterminate sentences on his three drug felony convictions and resentencing him on those convictions to determinate sentences in accordance with sections 60.04 and 70.70 of the Penal Law. The People did not oppose the motion, but did recommend that defendant be resentenced on each count to no less than seven years' imprisonment followed by three years' post-release supervision. Relying on People v. Acevedo, 14 N. Y. 3d 828 (2010), and People v. Vaughan, 62 A. D. 3d 122 (2d Dep't 2009), the People argued that, if the court did resentence defendant, the court would have to run all the new determinate sentences consecutively to each other, because C.P.L. § 440.46 did not gi ve the court the authority to change the consecutive relationship of those sentences to a concurrent relationship. The People also argued, that, in any event, consecuti ve 4 sentences were fully warranted in this case. In reply papers, defendant claimed that Acevedo and Vaughan were distinguishable from his own case, because his own case involved only drug felony convictions. Defendant also argued that the People's resentencing recommendation was not beneficial for him. Following a hearing on the motion, the court (Marrus, J.), by decision and order dated September 24, 2010, granted defendant's motion for resentencing and proposed a new sentence of seven years' imprisonment and three years' post-release supervision on each class B felony drug conviction, with all of the terms to run consecutively to each other. The court noted that, but for the People's decision to consent to the motion, the court would not have granted defendant any relief at all, and that, in any event, it saw no reason to propose a lesser sentence than the one that the People were recommending. The court also concluded that c. P. L. § 440.46 did not give it the authori ty to change the original consecutive relationship of the sentences to a concurrent relationship. Defendant rej ected the proposed resentence and appealed from the order to the Appellate Division, Second Department. In a decision and order dated December 13, 2011, the Appellate Division, relying on Acevedo and Vaughan among other cases, affirmed the lower court's order. Defendant now appeals from that Appellate Division order. 5 The Trial, Sentence, and Direct Appeal The evidence at trial established that four gangs controlled the sale of narcotics in the Cypress Hills Houses, a public housing development in Brooklyn. The gangs made an agreement that each would sell narcotics only within its designated terri tory. The consequences for a gang for selling outside of its designated territory ranged from a verbal warning for a first or minor offense to extreme violent attacks for persistent or egregious offenses (A. 32-33, 126-27).3 Defendant belonged to the "Ruffryders" gang, which was headed by his brother, Arthur Tutten. The Ruffryders had control of the narcotics acti vi ties in the "middle section" of Cypress Hills Houses, an area encompassing several buildings, including 385 Fountain Avenue, a location within 1000 feet of a school. Defendant was the second-in-command of the Ruffryders and was responsible for supervising the acti vi ties of the workers, ensuring that each worker had an adequate supply of narcotics, and ensuring that each worker was at his or her designated position (A. 33, 127). Defendant participated in or facilitated four charged narcotics sales. On April 23, 2002, at 3:50 p.m., in the lobby of 385 Fountain Avenue, an undercover officer gave defendant 3 Parenthetical numbers preceded by "A." refer to pages of the Appendix for Defendant-Appellant. 6 some money in exchange for crack cocaine. Defendant then instructed Nicole Williams, an unapprehended individual who was standing nearby, to give the undercover officer more crack cocaine, and Williams did so (A. 33, 127). Ten minutes later, another undercover officer was walking by the building at 385 Fountain defendant. The undercover officer Avenue, and encountered told defendant that she "could use one." Defendant instructed the undercover officer to go to the lobby of 385 Fountain Avenue and defendant told Williams to "bless (the undercover officer) with one." Williams gave the undercover officer one ziplock bag of crack cocaine in exchange for cash (A. 33-34, 127-28). On April 24, 2002, inside of 385 Fountain Avenue, defendant gave crack cocaine to an undercover detective in exchange for cash (A. 34, 128). On May 17, 2002, defendant was in front of a grocery store at the corner of Logan Street and Blake Avenue, in Brooklyn, wi th four other individuals, when the undercover officer from the first April 23rd sale walked by. Defendant told the undercover officer that if he needed drugs, he should see one of the four individuals, whom defendant referred to as his "sons" (A. 34, 128). Shortly thereafter, in front of the building at 365 Fountain Avenue, the undercover officer was approaching one of 7 these four "sons," when co-defendant Kelvin Santos said, "I got this." Upon hearing that statement, defendant's "son" said that he would sell to the undercover officer another time. Co- defendant Santos gave the undercover officer crack cocaine in exchange for money (A. 34, 129). When the long-term investigation into the Cypress Hills Houses narcotics trade concluded, defendant was already incarcerated, having been sentenced on September 6, 2002, on another drug case (A. 35, 129). The earlier conviction stemmed from defendant's January 25, 2002 arrest, following the execution of a search warrant for his apartment at 385 Fountain Avenue (A. 35, 134-35). 4 Defendant had committed the instant crimes while free in the community during the pendency of that earlier case (A. 35, 134-35). On November 21, 2003, after a jury trial, defendant was found guilty of one count of Conspiracy in the Third Degree and four counts of Criminal Sale of a Controlled Substance in the Third Degree. Defendant was acquitted of first-degree and second-degree conspiracy (A. 34, 130). 4 In addition to his 2002 conviction for fifth-degree criminal possession of a controlled substance, defendant also had a 2001 conviction for attempted third-degree criminal possession of a controlled substance, stemming from the execution of a search warrant for his apartment, pursuant to which the police had recovered quanti ties of heroin, crack cocaine, and marij uana, as well as ammunition for three different types of firearms, a bullet proof vest, and $347 in cash (A. 133-35). 8 On December 17, 2003, defendant appeared before the court for sentencing. The court adj udicated defendant a second felony offender, sentenced him to an indeterminate prison term of five to ten years on each of the four drug sale counts, and ordered all of those terms to run consecutively to each other and concurrently with an indeterminate prison term of three and one- half to seven years on the conspiracy count (A. 35, 130). Defendant appealed from his judgment of conviction. By a decision and order dated November 8, 2006, the Appellate Division, Second Department, modified the judgment of conviction by dismissing the May 17, 2002 drug sale count and vacating the sentence relating to that count, after holding that the verdict for that drug sale was against the weight of the evidence. People v. Norris, 34 A.D.3d 501 (2d Dep't 2006). The Appellate Division unanimously affirmed the judgment of conviction in all other respects, and found all of the other claims to be without merit, including those that had not been preserved for appellate review. Id. On January 12, 2007, defendant's application for leave to appeal to this Court was denied. N.Y.3d848 (2007) (Graffeo, J.). People v. Norris, 8 9 The Motion for Resentencing Defendant's Motion By papers dated June 11, 2010, defendant, represented by counsel, moved the Supreme Court, Kings County, pursuant to the resentencing provision of the Drug Law Reform Act ("DLRA") of 2009 (ch. 56, Pt. AA, § 9, 2009 N.Y. Laws 160, 168 (codified at Criminal Procedure Law section 440.46)), for an order vacating his indeterminate sentences of five to ten years' imprisonment on the three drug-sale counts and resentencing him on those counts to determinate sentences in accordance with Penal Law sections 60.04 and 70.70 (A. 73-74). In the motion, defendant argued that he should be resentenced because he had committed only low-level drug sales, had had a difficult life in his youth, and had a posi ti ve institutional record with regard to educat~on, work, and vocational training (A. 75-78, 82-84). The People's Response By papers dated August 6, 2010, the People consented to defendant's motion to be resentenced, but recommended that defendant be resentenced to three consecutive prison terms of no less than seven years on each count to be followed by three years' post-release supervision, with all of the terms to run concurrently with defendant's indeterminate sentence for his conspiracy conviction (A. 141). The People also sought a 10 judicial recommendation that defendant participate in ComALERT, a re-entry program run by the Kings County District Attorney's Office in conj unction with other social service agencies (A. 139, 142). The People argued that the court could not change the consecuti ve relationship between the original sentences and cited People v. People v. People v. Vaughan, 62 A.D.3d Khan, 60 A. D. 3d 967 Acevedo, 14 N.Y.3d 828 (2010); 122, 129 (2d Dep't 2009); and (2d Dep't 2009), as authority (A. 140-41). The People argued that defendant's leadership role in the conspiracy, his criminal history of two prior felony convictions, and his prison disciplinary record of twenty-two infractions, together justified a significant prison term on resentence (A. 133-38, 141). Defendant's Reply By papers dated September 10, 2010, defendant claimed that the court could resentence defendant to concurrent sentences. Defendant argued that the cases cited by the People applied only to si tuations involving the relationship between a sentence on a drug offense and a sentence on a non-drug offense and that there was no prohibi tion against a court altering the concurrentlconsecutive relationship between sentences on drug offenses when resentencing a defendant (A. 253-55). Defendant also argued that the People's re commenda t i on of three 11 consecuti ve terms of seven years' imprisonment, while reducing his maximum release date from the year 2032 to 2025, did not otherwise provide him with any benefit over his original sentence (A. 255-59). The Court's Decision On September 24, 2010, defendant, represented by counsel, appeared before Justice Alan Marrus in Supreme Court, Kings County, for a DLRA resentencing hearing. At that hearing, the court stated that it was very familiar with the facts of the case because it had presided over the trial (A. 66). The court ruled that given the substantial charges against defendant and defendant's maj or role in a serious conspiracy that had had a "devastating impact" on a housing complex in Brooklyn, the People's recommendation was appropriate, and the court proposed resentencing defendant to consecutive prison terms of seven years on each of the drug sale convictions, followed by three years of post-release supervision (A. 66-67).5 The court held that this Court's decision in Acevedo precluded any change in the consecutive relationship between the sentences on the drug felony convictions (A. 67). Defendant argued that although the proposed resentence 5 Al though each determinate sentence would carry a separate period of post-release supervision ("PRS"), would merge by operation of law once the imposed. See P.L. § 70.45 (5) (c). these PRS periods sentences had been 12 advanced the maximum release date from the year 2032 to 2025, the three years of post-release supervision made that reduction less significant (A. 67-68). Also, according to defendant, the proposed resentence would adversely affect him because he would no longer indeterminate be eligible sentence, he for parole, eligible whereas, under his was for parole release in the year 2017 (A. 68). Defendant asked the court to consider sentencing him to six years on each count, with the terms to run consecutively (A. 68). The court stated that, based on defendant's participation in the conspiracy and his prison record, defendant should not be resentenced, and the only reason the court was proposing to resentence him was because the People had recommended it (A. 68- 69) . The court recognized that, although the proposed sentence would not benefit defendant as far as early release was concerned, it would benefit him because the proposed resentence would reduce the maximum prison time to which defendant was exposed (A. 69, 70). The court remarked that it had resentenced other defendants to prison terms shorter than those recommended by the People, but that this would not be one of those cases (A. 69). The court noted that this was not just a drug sale case, but was also a significant drug conspiracy case, one of the most significant that the court had seen, and defendant had been a major operator (A. 69). The court concluded that there 13 was "no reason for (it) to do any better than what the DA is consenting to ." and it reminded defendant that he had the option of not accepting the court's proposed resentence (A. 70). Defendant rej ected the court's proposed resentence and indicated his intent to appeal (A. 70). The court set out its proposed resentence in a written order, dated September 24, 2010 (A. 56-62). The Appeal to the Appellate Division Defendant appealed to the Appellate Division, Second Department, from the September 24, 2010 order for proposed resentence pursuant to C.P.L. § 440.46 (A. 4-25).6 Defendant raised two claims. First, defendant argued that the court had been incorrect in concluding that it was without authority to order that any new sentences on the drug convictions run concurrently and, therefore, its order for proposed resentence should be reversed (A. 15-18). Defendant argued that Acevedo and Vaughan, upon which the lower court had relied, stood only for the proposition that resentencing courts did not have the authority to alter the consecutive versus concurrent nature of 6 A defendant's right to appeal from an order of proposed resentence pursuant to C.P.L. § 440.46 is contained in subdivision three of C.P.L. § 440.46, which incorporates by reference section 23 of chapter 738 of the 2004 Laws of New York, as governing the proceedings on a resentencing motion. The only ground that may be raised on such an appeal is that "the term of the proposed sentence is harsh and excessive." 2004 DLRA, ch. 738, § 23, 2004 N.Y. Laws 1462, 1474-75. 14 sentences that were not subject to DLRA resentencing (A. 16-18). Second, defendant argued that the court had abused its discretion in proposing consecuti ve seven-year determinate prison sentences for the drug convictions, because such a resentence would not truly ameliorate defendant's current sentence and therefore was inconsistent with the Legislature's intent (A. 18-24). In response to defendant's first claim, the People, relying on the principle articulated in Acevedo and Vaughan, argued that a resentencing court did not have the authority under the 2009 DLRA to alter the consecutive relationship of a defendant's sentences (A. 41-43). The People argued that the resentencing court's inability to change the consecutive relationship between sentences in no way frustrated the general ameliorative purpose of the 2009 DLRA, because the court, even without revisiting the consecuti ve relationship of the sentences, could have proposed sentence as low as two years' imprisonment on each count, for an aggregate resentence of six years' imprisonment; the court, in its discretion, had simply concluded not to propose such a short prison term in this case (A. 42-43). In response to defendant's second claim, the People argued that, in light of defendant's leadership role in the drug conspiracy, his criminal background, and his disturbing prison disciplinary history of twenty-two violations, the proposed 15 resentence of three consecutive sentences of seven years' imprisonment and three years' post-release supervision, reflected a proper exercise of the court's discretion and was neither harsh nor excessive (A. 44-52). By decision and order dated December 13, 2011, the Appellate Division affirmed the September 24, proposed resentence (A. 2-3). People v. Norris, 2010 order for 90 A.D.3d 788 (2d Dep't 2011). The Appellate Division, citing Acevedo and Vaughan, held that the lower court had properly determined that it lacked authority under C.P.L. § 440.46 to order, upon resentence, that the determinate prison terms run concurrently wi th each other, when the original indeterminate prison terms had been ordered to run consecutively to each other (A. 2). Id. at 789. The Appellate Division also held that the proposed resentence was not excessive and that no further reduction was warranted (A. 3). Id. By certificate dated February 29, 2012, a judge of this Court granted defendant leave to appeal from the Appellate Division's order (A. 1). (Graffeo, J.). People v. Norris, 18 N.Y.3d 926 (2012) 16 POINT I BECAUSE THE SUPREME COURT EMPHASIZED THAT IT HAD NO INTENTION OF RESENTENCING DEFENDANT TO AN AGGREGATE PRI SON SENTENCE LOWER THAN THE ONE PROPOSED BY THE PEOPLE OF THREE CONSECUTIVE DETERMINATE PRISON TERMS OF SEVEN YEARS, THE ISSUE OF WHETHER THE COURT HAD THE AUTHORITY TO ALTER THE ORIGINALLY- ORDERED CONSECUTIVE RELATIONSHIP BETWEEN THE SENTENCES IS ACADEMIC IN THIS CASE. When considering defendant's resentence application, the Supreme Court, made clear two points: first, that the court would not have proposed a resentence at all but for the People's decision to consent to resentencing, and second, that it saw no reason to offer a lower sentence ("do any better") than the one proposed by the People (A. 7 0) , which was seven years' imprisonment, followed by three years' post-release supervision, for each class B felony drug conviction, with the three sentences to run consecutively to each other and concurrently wi th the indeterminate sentence for the conspiracy conviction (A. 59, 60-61). The Supreme Court's proposed resentence for each drug sale conviction was well above the minimum determinate sentence of two years' imprisonment and one and one-half years' post-release supervision that the court could have offered to defendant as a second felony drug offender. See P.L. §§ 70.45(2) (d), 70.70 (3) (b) (i). In light of the court's unequi vocal 17 pronouncements disavowing any inclination to go any lower than a proposed aggregate prison term of twenty-one years, the issue of whether the court was correct in concluding that it did not have the authority to alter the originally-imposed consecuti ve relationship between the sentences for the drug convictions becomes a purely academic question and should not be reached by this Court. The true crux of defendant's obj ection to the proposed resentence is not that the determinate terms would run consecutively to each other, but rather that each term was well above the minimum that the court could have offered and thus, the proposed sentence as a whole did not provide him with the "more lenient treatment" that the Legislature allegedly had in mind (Brief for Defendant-Appellant at 27-28). Defendant's present claim is, in reality, no more than a claim that the court's proposed resentence was harsh and excessive a claim already reviewed and rej ected by the Appellate Division (A. 3). Norris, 90 A.D.3d at 789. The Appellate Division's decision in this regard is beyond the authority of this Court to review. See People v. Miles, 61 N. Y. 2d 635, 637 (1983) (Appellate Division's decision not to grant the defendant any discretionary relief with respect to his sentence was not subj ect to further review by Court of Appeals); People v. Thompson, 60 N. Y.2d 513, 521 (1983) (" (i)t is well 18 settled that any question as to whether an otherwise lawful sentence is harsh or severe in a particular case involves a type of discretion not reviewable by the Court of Appeals"); People v. Discala, 45 N.Y.2d 38, 44 (1978) (Court of Appeals is not authorized to reduce a sentence in the exercise of its discretion and in the interest of justice; if the sentence is not unlawful and is wi thin the legal limits, the defendant cannot obtain relief from the Court of Appeals) . Accordingly, because the only issue raised on defendant's appeal is an academic question relating to a discretionary determination regarding the harshness of his sentence, defendant's appeal should be dismissed. 19 POINT II SECTION 440.46 OF THE CRIMINAL PROCEDURE LAW DOES NOT GRANT A RESENTENCING COURT THE AUTHORITY TO CHANGE THE CONSECUTIVE OR CONCURRENT RELATIONSHIP BETWEEN SENTENCES. The Appellate Division correctly ruled that when a court resentences a defendant under the 2009 Drug Law Reform Act ("2009 DLRA") on his class B felony drug convictions, the court may not change the original relationship between the sentences on those convictions from consecutive to concurrent. Section 440.46 of the Criminal Procedure Law ("C. P. L. § 440.46"), enacted as part of the 2009 DLRA, grants a court the authority, in certain cases, to replace a class B felony drug offender's indeterminate sentences with determinate sentences of imprisonment. However, the statute does not also grant the court the power to run any new determinate terms concurrently, when the original indeterminate terms had been ordered to run consecutively. See People v. Acevedo, 14 N.Y.3d 828, 831 (2010) (" 'a court that resentences a defendant pursuant to the 2004 DLRA does not possess the authority, conferred by Penal Law § 70.25 (1), to determine whether the sentence is to be served concurrently or consecutively with respect to other sentences'" (quoting People v. Vaughan, 62 A.D.3d 122, 128 (2d Dep't 2009))). With the 2009 DLRA, the Legislature, building on the 2004 20 Drug Law Reform Act ("2004 DLRA"), enacted a comprehensive and highly structured law that included both substantive changes to the prior sentencing scheme as well as detailed rules of procedure governing applications for resentencing. In enacting such a highly structured law, the Legislature quite obviously considered, and made its own determinations concerning, the parts of the previous sentencing scheme that needed to be ameliorated and the parts that should be left undisturbed. See People v. Laing, 79 N.Y.2d 166, 171 (1992). Thus, the authority conferred upon a DLRA resentencing court by the Legislature is specific and precisely delineated; and, contrary to defendant's contention (Brief for. Defendant- Appellant at 16-17), the fact that the resentencing court, prior to imposing resentence, is directed to enter an order "vacating" the originally-imposed sentence (see 2004 DLRA, ch. 738, § 23, 2004 N.Y. Laws at 1475; C.P.L. § 440.46(3)), does not mean that the court may change originally-imposed consecutive sentences to concurrent sentences. That authority was withheld by the Legislature, and only the Legislature, if it so chooses, may modify the clear resentencing scheme that it so carefully constructed. See Laing, 79 N.Y.2d at 170-71. Accordingly, the Appellate Division's order affirming the Supreme Court's order should be affirmed. 21 A. Section 440.46 of the Criminal Procedure Law very specifically defines the scope of a court's resentencing authority, and such authority does not include al tering the consecuti ve or concurrent relationship between sentences. Accordingly, the valid and legally imposed consecuti ve relationship between defendant's sentences cannot now be changed. When the Supreme Court originally sentenced defendant on December 17, 2003, following a jury trial, on his three drug sale convictions, the court imposed on each count a fi ve-to-ten- year prison term a lawful term wi thin the indeterminate sentencing range applicable at that time to a second felony offender convicted of a class B drug felony committed in 2002. See P.L. former § 70.06(3) (b), (4) (b) (2002) (maximum term of indeterminate sentence for class B second felony offender must be at least nine years' imprisonment and not more than twenty- five years' imprisonment, and minimum term of sentence must be half the maximum); P.L. § 220.39(1) (criminal sale of a controlled substance in the third degree is a class B felony). In addition, gi ven that each sale count pertained to an independent narcotics transaction, the court lawfully ordered that the sentences on the drug sale convictions run consecutively to each other. 7 See P. L. § 70.25 (1) (when imposing multiple sentences of imprisonment, court may order that the 7 The court also ordered that the sentences on defendant's drug sale convictions run concurrently with his sentence on his conspiracy conviction. 22 sentences run consecutively to each other, unless the court is barred from doing so under P. L. § 70.25 (2) ) . The Supreme Court could have exercised its discretion to run the sentences concurrently with each other, but chose instead to run the sentences consecutively to each other. Once defendant began serving his sentence in this case, the court was divested of the authority to change the sentence in any way, because the sentence was valid, legal, and lawfully imposed. 8 See C.P.L. § 430.10 (prohibiting court from altering a commenced incarceration sentence, except where "specifically authorized by law"); cf. C.P.L. § 440.20 (permitting vacatur of a sentence, even when incarceration has begun, where the original sentence was illegal, unlawfully imposed, or otherwise invalid as a matter of law). The only way that the court could have been empowered to modify the sentence that it had imposed on defendant was if that authori ty were "specifically authorized by law." See C. P.L. § 430.10. Such authority was granted to the court to some degree by the Drug Law Reform Act of 2009, but that authority, 8 Although a trial-level court does not have interest of justice jurisdiction to modify an already-begun prison sentence on the ground that the sentence is unduly harsh or excessive, an intermediate appellate court does have that jurisdiction pursuant to section 470.15(6) (b) of the Criminal Procedure Law. In the case at bar, the Appellate Division, on defendant's direct appeal, did not exercise its authority to reduce defendant's sentence. Norris, 34 A.D.3d at 503. 23 as set out in C.P.L. § 440.46, is quite specific and its extent is circumscribed. Contrary to defendant's present claim, the 2009 DLRA does not give a court plenary authority to impose a new sentence "from scratch" (Brief for Defendant-Appellant at 3), but rather permits a court only to replace an indeterminate sentence of imprisonment wi th a determinate sentence of imprisonment. See C.P.L. § 440.46(1). A court's authority to determine the consecuti ve or concurrent relationship between sentences for felony drug convictions resides in section 70.25 (1) of the Penal Law (hereinafter "P.L. § 70.25"), and that authority is logically and legally distinct from a court's authority to determine the length of the terms of imprisonment of those sentences. Compare P.L. § 70.25 with P.L. §§ 70.70 and 70.71. Thus, a court's resentencing authority with regard to the length of a prison term does not entail an equal authority with regard to the concurrentlconsecutive relationship between sentences, or vice- à-versa. See 2009) ( court, People v. which had Kadry, 63 A.D.3d 856, 857 granted defendant's C. P. L. (2d Dep't § 440.20 motion to set aside consecutive sentences as violative of P. L. § 70.25, could resentence defendant only to the extent of making sentences run concurrently, and could not also modify the already-commenced legal sentence by increasing the prison terms on each count), 1 v. granted, 13 N. Y . 3d 797, appeal dismissed, 13 24 N.Y.3d 903 (2009); People v. Davis, 12 A.D.3d 237, 238 (1st Dep't 2004) (defect was in consecutive relationship between sentences, and only that relationship could be changed; length of each sentence could not be changed). Indeed, it is a well-established rule, as defendant himself acknowledges (Brief for Defendant-Appellant at 19), that a court's discrete authority to change one aspect of a sentence, upon vacatur of the sentence, to remedy a defect that was rendering the sentence illegal does not give the court plenary authori ty to alter other aspects of the sentence. See People v. Lingle, 16 N. Y. 3d 621, 635 (2011) (at a resentencing to correct a Sparber error by pronouncing a period of post-release supervision, the trial court lacks discretion to also reconsider the incarceratory component of the defendant's determinate sentence); People v. Yannicelli, 40 N. Y. 2d 598, 601- 02 (1976) (where there was a defect in the original sentence regarding the fines to be imposed, resentencing court was not empowered also to change the terms of imprisonment originally imposed, as there was no defect in those terms). In a case, such as this one, in which no aspect of the sentence is, in fact, invalid or defective in any legal sense, the rule that a court may not alter any part of a sentence other than that aspect explicitly permitted by statute should be even more strictly construed. 25 Because there is no language in C.P.L. § 440.46 that either explici tly empowers a court to alter the consecuti vel concurrent relationship between sentences when imposing new determinate terms, or even implicitly refers to P.L. § 70.25 -- the statute conferring on courts the authority to decide whether to impose consecutive or concurrent sentences the resentencing statute does not authorize a court to modify the original, lawfully imposed relationship. Indeed, in People v. Acevedo, 14 N. Y. 3d 828 (2010), this Court explicitly rejected the contention that a court resentencing a class A-I felony drug offender under the 2004 DLRA also has the authority conferred by P.L. § 70.25 (1) to decide whether sentences should run consecuti vely or concurrently: Defendant's reliance on Penal Law § 70.25 (1) . is misplaced. The purpose of the DLRA is to ameliorate the harsh sentences required by the original Rockefeller Drug Law. When a court imposes a reduced sentence under the amended statute it does not impose an "additional term of imprisonment" as contemplated by Penal Law § 70.25 (1) . The DLRA proceeding is meant to effect an alteration of the existing sentence as authorized by law. As such, "a court that resentences a defendant pursuant to the 2004 DLRA does not possess the authori ty, conferred by Penal Law § 70.25 ( 1) , to determine whether the sentence is to be served concurrently or consecuti vely wi th respect to other sentences" (People v Vaughan, 62 AD3d 122, 128 (2d Dept 2009)). 26 Id. at 831 (emphasis added) (holding, in a 2004 DLRA case, that the resentencing court, while having the authority to replace the indeterminate sentence with a determinate sentence on the class A-I authority felony drug to modify conviction, did not also the originally imposed possess the consecuti ve relationship between the sentences for the drug felony conviction and weapon possession convictions). The "authority, conferred by Penal Law § 70.25(1), to determine whether the sentence is to be served concurrently or consecuti vely with respect to other sentences" (id.) is no more possessed by a court resentencing a defendant under the 2009 DLRA, than under the 2004 DLRA. Section 440.46 of the Criminal Procedure Law, when compared to the corresponding section of the 2004 DLRA (ch. 738, § 23, 2004 N.Y. Laws at 1474- 75), does not contain any additional text suggesting that a court resentencing a class B felony drug offender has any broader powers with regard to determining a consecutive or concurrent relationship than does a court resentencing a class A-I felony drug offender. Defendant nonetheless claims that the 2009 DLRA resentencing scheme is "comprehensive," and he invites this Court, therefore, to read into C.P.L. § 440.46 the authority for a resentencing court to redetermine the relationship between sentences (Brief for Defendant-Appellant at 17). However, as 27 noted above (see, supra, at 22-27), C.P.L. § 440.46 does not confer sweeping resentencing powers on a court, and instead, as discussed below, is quite precise in delineating the scope of the court's resentencing jurisdiction, including the types of offenders who may seek resentencing, the types of offenses subj ect to resentencing, and the extent to which a court may modify the original indeterminate sentence. First, C.P.L. § 440.46(1), prior to a 2011 technical amendment to reflect the merger of the old Department of Correctional Services and Division of Parole into the new Department of Corrections and Community Supervision (see Act of Mar. 31, 2011, ch. 62, pt. C, subpt. B, § 79, 2011 N.Y. Laws 477, 590), expressly required that the person be "in the custody of the department of correctional services" when applying for relief (see C.P.L. former § 440.46(1) (2010)), and this Court noted that the Legislature had apparently decided to permit only those in prison (and not those under parole supervision) to apply for relief, because incarcerated defendants suffer the greatest hardship from sentences under the old sentencing scheme. See People v. Santiago, 17 N.Y.3d 246, 248 (2011).9 9 This Court noted that it did not have to decide, in Santiago, whether the 2011 amendment changing "department of correctional services" to "department of corrections and community supervision" had altered the scope of the 2009 DLRA. 17 N. Y. 3d at 248 n. *. Nor does the Court have to decide that issue in this case. 28 Second, the statute also specifically provides that, to be eligible for resentencing, a person must have been "convicted of a class B felony offense defined in article two hundred twenty of the penal law," and, therefore, it does not encompass those convicted of any non-drug offense, such as conspiracy, even if the offense was drug-related. See C.P.L. § 440.46(1); People v. Gonzalez, 90 A. D. 3d 781 (2d Dep't 2011) (under 2009 DLRA, defendant was eligible for resentencing on class B felony drug conviction but was ineligible for resentencing on conspiracy conviction); People v. Diaz, 68 A.D.3d 497 (1st Dep't 2009) (defendant was entitled to 2004 DLRA resentencing hearing on class A-I felony drug conviction, but not on conspiracy conviction) . Third, even though C.P.L. § 440.46 provides that an offender who is eligible to apply for resentencing on his class B felony conviction may also move for resentencing on lesser controlled substance or marij uana felony convictions, the statute specifically limits those additional lesser felony convictions to those for which sentences were imposed at the same time as the class B drug felony or for which sentences were included on the same order of commitment as the class B drug felony. See C.P.L. § 440.46(2). Thus, for example, a re- incarcerated class B felony drug offender, applying for resentencing, may not also apply for resentencing regarding a 29 class C, D, or E felony drug crime that he committed while on parole for the class B felony, for the simple reason that the sentence on the lesser felony drug conviction was neither imposed at the same time as, nor included on the same order of commi tment as, the sentence for the class B drug felony conviction. Fourth, section 440.46 (1) specifically provides that an eligible offender may apply to be resentenced only to "a determinate sentence in accordance with sections 60.04 and 70. 70 of the penal law" (emphasis added). Thus, even though both of these Penal Law sections set out various other types of sentences that, thanks to the reforms of the 2004 DLRA and 2009 DLRA, a court may impose as original sentences upon qualified class B felony drug offenders (such as probation, a definite sentence, and a sentence of parole supervision (see P. L. § 60.04(3), (4), (5); P.L. § 70.70(2) (b), (c), (d); P.L. § 70. 70 (3) (c), (d))), none of those other sentencing options are available to a court imposing a resentence pursuant to C. P. L. § 440.46. Indeed, the procedure outlined in section 23 of chapter 738 of the Laws of 2004 which is incorporated by reference into C. P. L. § 440.46 (3) as governing the proceedings on and the determination of a 2009 DLRA resentencing motion unambiguously provides that if the court grants a resentencing 30 motion, "the court will enter an order vacating the sentence originally imposed and imposing a determinate sentence of imprisonment authorized to be imposed upon such conviction by section 70. (70) ." 2004 N. Y. Laws at 1475 (emphasis added). Thus, just as C.P.L. § 440.46 precisely states both the types of offenders who are eligible to apply for resentencing and the offenses upon which they may seek resentencing, and thereby excludes from resentencing relief those types of offenders and offenses not mentioned in the statute, so, too, does the statute exactly state the extent to which a court may modify, on resentencing, an indeterminate sentence, and the statute thereby excludes any other ways in which a sentence may be modified. See People v. Dais, 19 N.Y.3d 335, 346 (2012) (holding, in companion case Stanley, that because there is no language in the 2009 DLRA allowing a defendant, upon resentencing under C.P.L. § 440.46, to relitigate predicate status that was established at the original sentencing, a resentencing court, while it may impose a determinate sentence following the vacatur of the indeterminate sentence, may not also revisit the defendant's prior adj udication as a predicate felon) . Notably, neither C.P.L. § 440.46, nor section 23 of the 2004 DLRA, nor any other section of the Penal Law referenced in those statutes (for example, P.L. § 70.70) makes any mention at 31 all of P.L. § 70.25 (which is entitled, "Concurrent and consecutive terms of imprisonment"). Therefore, there is simply no basis for imputing to the Legislature the intent to include in a court's otherwise carefully limited resentencing power the authority to alter the concurrentlconsecutive relationship between sentences. Cf. Dais, 19 N. Y. 3d at 342-44 (holding that upon a defendant's C. P. L. § 440.46 motion for resentencing, the People may file a new predicate felony statement, alleging that a defendant has a prior violent felony conviction, and observing that P.L. § 70.70, cited references C. P. L. § 400.21 in C.P.L. § 440.46, specifically (which is entitled, "Procedure for determining whether defendant is a second felony offender or a second felony drug offender")) . Furthermore, had the Legislature not meant to exclude from a resentencing court's jurisdiction the authority to redetermine the relationship between sentences, the Legislature could have easily clarified its intent in 2011, when it amended C.P.L. § 440.46. In 2010, when confronted with the same issue as is presented in this case, the Appellate Division, Fourth Department, relying on People v. Acevedo, 14 N.Y.3d 828 (2010), had ruled that even when resentencing a defendant solely on mul tiple drug convictions, the resentencing court still did not have authority to redetermine whether the new sentences should run consecutively to or concurrently with each other. People v. 32 Highsmith, 79 A.D.3d 1741, 1742 (4th Dep't 2010), Iv. denied, 16 N. Y. 3d 831 (Mar. 14, 2011). The Legislature was presumably aware of the Fourth Department's decision in that case when it amended C.P.L. § 440.46(1), in 2011, to substitute "department of corrections and community supervision" for "department of correctional services. " See Act of Mar. 31, 2011, ch. 62, pt. C, subpt. B, § 79, 2011 N.Y. Laws 477, 590. The Legislature apparently approved of the Fourth Department's interpretation of the statute, because the Legislature did not in any way change or amend the statute to contradict that interpretation. In sum, the extent of a court's authority to impose a new sentence pursuant to C.P.L. § 440.46 is quite clearly set out in the statute, and is strictly limited to replacing the original indeterminate sentence of imprisonment with a new determinate sentence of imprisonment selected from the appropriate range now applicable to eligible felony drug offenders. Although defendant seeks to expand the resentencing authority of a court pursuant to C.P.L. § 440.46, to encompass the power to alter the legally imposed consecutive relationship of sentences, the unambiguous text of the statute simply does not contain any language that would support such an expansion, and the omission of such language from the otherwise highly structured and particularized C.P.L. § 440.46 can only be viewed as deliberate. See People v. Bautista, 7 N.Y.3d 838, 839 (2006) (dismissing 33 appeal to this Court in 2005 DLRA case, because although the 2005 DLRA did expressly permit a defendant to take an appeal from an order denying resentencing, the 2005 DLRA did not expressly mention C. P. L. § 450.90 and the Legislature did not otherwise amend the language of C.P.L. §§ 450.10 or 450.15, so as to permit an appeal to the Court of Appeals). See generally People v. Hernandez, 98 N.Y.2d 8, 10 (2002) ("(w)here a statute delineates the particular situations in which it is to apply, an 'irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded'" (quoting Laing, 79 N.Y.2d at 171)); People v. Finnegan, 85 N.Y.2d 53, 58 (Legislature's failure to include a substantive prescription in a statute is a strong indication that its exclusion was intended), cert. denied, 516 U.S. 919 (1995). This Court is bound to read the Legislature's precisely crafted, unambiguous statute as written, and cannot on its own broaden the scope of a resentencing court's authority. See People v. Machado, 90 N.Y.2d 187, 192 (1997) ("(c)ourts, of course, cannot broaden the scope of the remedy afforded by CPL 440.10 beyond what the Legislature unambiguously specified" (ci ting, inter alia, McKinney's Cons. Laws of N. Y. , Book 1, Statutes § 73 (1971))); Laing, 79 N.Y.2d at 170-71 ("(c)ourts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope 34 and application of statutes"). Accordingly, this Court should interpret C.P.L. § 440.46 as it is written, and leave it to the Legislature to amend the statute if the Legislature deems it advisable to do so. See generally People v. Boothe, 16 N. Y. 3d 195, 198 (2011) ("It is well settled that courts are not to legislate under the guise of interpretation" (citation and internal quotation marks omitted). B. Limi ting a court's resentencing authority so as to excl ude the power to redetermine the relationship between sentences comports with the purpose of the 2009 DLRA and C.P.L. § 440.46. Moreover, and contrary to defendant's claim (Brief for Defendant-Appellant at 22-26), the Appellate Division's reading of the plain text of C. P. L. § 440.46 as not encompassing the power to alter the consecutive relationship between sentences is entirely consistent with the legislative goal of the Drug Law Reform Acts and the purpose of C.P.L. § 440.46. The Drug Law Reform Acts of 2004 and 2009, taken together, represent an extended legislative effort to reform the criminal justice system's response to drug-related crime in New York State. A particular goal of the DLRAs was to improve the lot of non-violent offenders, especially addicted offenders, who had been drawn into the use or sale of narcotic drugs. The 2004 DLRA and 2009 DLRA substantially reduced the minimum and maximum prison terms applicable to most (but not all) felony drug 35 offenders, thereby broadening a court's discretion to show leniency when sentencing non-violent drug offenders. 10 The 2004 DLRA also modestly increased minimum sentences for some drug offenders with prior violent felony convictions (see 2004 DLRA, ch. 738, §§ 20, 36, 2004 N.Y. Laws at 1473, 1479), and the Legislature, thereby, for the first time made a distinction between second felony drug offenders whose prior felony conviction was for a non-violent felony and second felony drug offenders whose prior felony conviction was for a violent felony. See P.L. former § 70.70 (3), (4) (2005); P.L. § 70.71 (3) and (4). Under the 2009 DLRA, the minimum determinate terms for class B and class C second felony drug offenders were further reduced (2009 DLRA, ch. 56, Pt. AA, § 23, 2009 N. Y. Laws at 174 (amending P.L. § 70.70(3))), while the minimum terms for class B and class C second felony drug offenders with a prior violent felony conviction remained undisturbed (see P.L. § 70.70 (4)). 10 The 2004 DLRA also transformed the sentencing structure for drug felony offenses from one of indeterminate sentences to one of determinate sentences that latter structure being considered by many to promote greater uniformity, fairness, and "truth-in-sentencing." See N. Y. State Comm' n on Sentencing Reform, The Future of Sentencing in New York State: Recommendations for Reform 26-27 (2009) (endorsing the trend to determinate sentencing) . Generally speaking, determinate sentences, compared to indeterminate sentences, ensure that the sentencing court, rather than the parole board, has a greater say in how long a defendant will have to serve in prison. Id. at 27, 39. 36 The resentencing provisions of the 2004 DLRA and 2005 DLRA extended the possibility of remedial relief to many incarcerated offenders serving the harshest of the Rockefeller Drug Law sentences -- i. e., lifetime prison terms for class A felony drug offenses. The purpose of the resentencing provision of the 2009 DLRA (i.e., C.P.L. § 440.46), was to afford remedial relief to most low-level, non-violent drug offenders who were serving terms under the old indeterminate sentencing scheme, which had often mandated inordinately severe sentences. Section 440.46 allows a court to exercise substantial discretion in crafting an appropriate determinate resentence to offer to eligible and deserving offenders. In a case where the court is resentencing a defendant as a first felony drug offender under section 70.70 (2) of the Penal Law or as second felony drug offender under section 70. 70 (3) of the Penal Law (i. e., as a drug offender with no prior violent felony conviction), such as defendant in this case, the court may exercise its discretion to reduce significantly the even without any change indefendant's aggregate prison term, the consecutive relationship between the sentences, by simply replacing each indeterminate prison sentence with the minimum possible determinate sentence. Defendant claims that " (p) reventing a resentencing court from reconsidering the consecuti vel concurrent relationship between drug sentences could 37 absurdly result in offers of determinate sentences that would require longer periods of mandatory incarceration than the indeterminate sentences they replace " Defendant-Appellant at 25) (emphasis in original). (Brief for However, in the context of resentencing a first felony offender or a second felony drug offender, such as defendant in this case, the resentencing court's inability to alter the consecuti ve relationship between determinate sentences would never result in that court being constrained to offer a longer period of mandatory incarceration than the offender was serving pursuant to the indeterminate sentences. For example, a defendant originally sentenced as a first felony offender to two consecutive indeterminate prison terms of two to six years, for an aggregate sentence of four to twelve years' imprisonment, could now be resentenced to two consecutive determinate prison terms of one year (the minimum for a class B felony drug offender under the new scheme (P. L. § 70.70(2) (b) (i))), for an aggregate sentence of two years' 38 imprisonment. 11 Likewise, a defendant originally sentenced to two consecutive indeterminate prison terms of four and one-half to nine years (the minimum sentence for a class B non-violent second felony offender under the old scheme (P. L. former § 70.06(3)(b), (4)(b)) (2002) ), for an aggregate sentence of nine to eighteen years' imprisonment, could now be resentenced to two consecutive determinate prison terms of two years (the minimum term for a class B second felony drug offender under the new scheme (P.L. § 70.70 (3) (b) (i))), for an aggregate sentence of just four years' imprisonment. 12 Thus, contrary to defendant's claim (Brief for Defendant- Appellant at 25), a resentencing court does have "great leeway" in i ts ability to extend considerable leniency to an eligible 11 Under the old indeterminate pre-DLRAs sentencing scheme, the minimum indeterminate prison term that could be imposed on a first felony offender convicted of a class B drug felony was one to three years' imprisonment (P.L. § 70.00 (2) (b), (3) (b)). However, to be eligible to apply for resentencing under C. P. L. § 440.46, the defendant must be serving an indeterminate sentence "with a maximum term of more than three years" (C. P. L. § 440.46 (1) (emphasis added)), thus rendering first felony offenders who were originally sentenced to the minimum term ineligible to apply for resentencing. 12 Moreover, non-violent second felony offenders who originally received consecutive sentences even greater than the minimum indeterminate terms (e. g. , two terms of seven to fourteen years' imprisonment, for an aggregate of fourteen to twenty-eight years' imprisonment), could upon resentencing, if deemed eligible and deserving, receive the minimum determinate terms, and thus, get an even more dramatic reduction in their aggregate sentence again, without the court ever having disturbed the consecutive relationship between the sentences. 39 and deserving drug offender without a history of violence, not wi thstanding the resentencing court's inability to also alter the consecutive relationship of the sentences. Indeed, in defendant's own case, the resentencing court, had it deemed it appropriate to do so, could have exercised its discretion to resentence defendant, as a second felony drug offender, to three consecutive determinate sentences of two years' imprisonment and one and one-half years' of post-release supervision, for an aggregate prison term of just six years clearly, a substantially lower sentence than the fifteen-to-thirty-year sentence defendant is currently serving. Al though the court declined to provide defendant with such an extreme benefit, the court would have been essentially unhampered in its ability to extend to defendant ample remedial relief if it had felt such relief was warranted. 13 While it is true that in a case in which the court is resentencing a defendant as a second felony drug offender with a prior violent felony conviction under section 70.70 (4) of the 13 In setting out the dates of his possible release under both his current sentence and the court's proposed resentence (Brief for Defendant-Appellant at 27 n. 3), defendant fails to mention that, under the court's proposed resentence, he would be enti tled to release even before the conditional release date. Defendant would be entitled to earn one-seventh "merit time" off his aggregate determinate sentence (see Correct. L. § 803 (2- a) (d) ), in addition to one-seventh "good time" off of the aggregate determinate sentence (see Correct. L. § 803 (2) (d) ) , so that he would be eligible for release after serving fi ve- sevenths of the proposed 21-year aggregate prison term. 40 Penal Law, the court's ability to reduce the defendant's aggregate sentence, wi thout any change to the consecutive relationship between the individual prison terms, is not as great, this disparate treatment between felony drug offenders with prior violent convictions and those without such convictions comports completely with the purpose of the DLRAs, to ameliorate the harsh sentences being served by low-level drug offenders, while reasonably drawing a distinction between those with violent pasts and those without (see, supra, at 36).14 Indeed, the very fact that the resentencing provisions of the 2004 DLRA, 2005 DLRA, and 2009 DLRA (see 2004 DLRA, ch. 738, § 23, 2004 N.Y. Laws at 1474; 2005 DLRA, ch. 643, § 1, 2005 N.Y. Laws at 1581; C.P.L. § 440.46(3) (incorporating section 23 of chapter 738 of the Laws of 2004)) all allow a defendant both to take an appeal from a proposed resentence and to rej ect a 14 For example, if a defendant with a prior violent felony conviction had originally been sentenced to consecutive terms of four and one-half to nine years' imprisonment, a resentencing court, which upon resentencing imposes the minimum determinate prison term of six years (P.L. § 70.70(4)(b)(i)), would be able to reduce the maximum amount of time that the defendant could be held in prison from eighteen years to twelve years, but would not be able to reduce the minimum amount of time. If the defendant with a prior violent conviction had originally recei ved a much harsher penalty than two consecutive terms of four and one-half to nine years' imprisonment (~, two consecuti ve terms of seven to fourteen years' imprisonment), a court could even effectuate a reduction in the minimum, as well as the maximum, amount of time that the defendant would have to serve in prison, by resentencing the defendant to two consecutive terms of six years' imprisonment. 41 proposed resentence before its final imposition establishes that the Legislature contemplated that there would be instances where a defendant would conclude (as defendant did here) that the proposed resentence was not beneficial and did not sufficiently ameliorate his current sentence such that he would want it to be imposed. * * * In 2003, when sentencing defendant, the court reasonably decided to impose consecutive sentences of five to ten years' imprisonment on his drug sale convictions. The evidence at trial had shown that defendant, far from being a hapless addict who sold small amounts of drugs to support his habit, was a mid- level manager of a lucrative narcotics business. Furthermore, defendant had two prior felony convictions, both involving the execution of search warrants that resulted in the recovery of narcotics from his apartment, and one additionally involving the recovery of ammunition and a bullet proof vest. The lenient sentence on his first felony conviction had done little to deter defendant's criminal conduct. Moreover, defendant, when interviewed by the Department of Probation prior to sentencing, had denied his guilt in the instant case and failed to take responsibility for his actions (A. 96). 42 At the hearing on the resentencing motion, the court ruled that given the substantial charges of which defendant had been convicted and defendant's maj or role in a serious conspiracy that had had a "devastating impact" on a housing complex in Brooklyn, the People's recommendation was appropriate, albeit more generous than the court itself would have been inclined to offer. Accordingly, the court proposed resentencing defendant to consecutive prison terms of seven years on each of the drug sale convictions, followed by three years of post-release supervision (A. 66-67). The court could have proposed a much lower aggregate prison term, even while maintaining the consecuti ve relationship between the sentences, but the court simply concluded that more substantial remedial relief was not warranted in this case. Nothing in any of the DLRAs or in C. P. L. § 440.46 indicates that the Legislature believed that, in the context of the drug laws, courts might have been, or might be, subj ecting drug offenders to excessively harsh sentences simply by running sentences consecutively. Indeed, the "cap" provisions of P. L. § 70.30 (1), which, with periodic modification, have been in place for decades, are the means chosen by the Legislature to mi tigate any excessively harsh sentence that might result from 43 consecuti ve sentences for all types of offenses. 15 Section 440.46 allows the court, if it resentences defendant, only to vacate the sentences on the drug convictions and to replace the indeterminate prison terms with determinate prison terms, not to redetermine a previously imposed consecuti ve relationship which is entirely valid and without defect, and which has never been the focus of the Legislature in reforming the Rockefeller Drug Laws. In sum, the Supreme Court correctly concluded that C. P. L. § 440.46 did not grant it the authority to alter the consecutive relationship between the sentences on defendant's drug sale convictions. Accordingly, the Appellate Division's order, affirming the Supreme Court's order for proposed resentence, should be affirmed. 15 Of course, and as previously noted (see, supra, at 23 n. 8) , an intermediate appellate court may also reduce any excessive harshness in an aggregate sentence by exercising its discretion to run terms concurrently, unless concurrent sentences are otherwise specifically prohibited by statute. 44 CONCLUSION DEFENDANT'S APPEAL SHOULD BE DISMISSED, OR, IN THE ALTERNATIVE, THE ORDER OF THE APPELLATE DIVISION, AFFIRMING THE ORDER OF PROPOSED RESENTENCE, SHOULD BE AFFIRMED. Dated: Brooklyn, New York August 17, 2012 Respectfully submitted, CHARLES J. HYNES District Attorney, Kings County LEONARD JOBLOVE VICTOR BARALL CAROLINE R. DONHAUSER Assistant District Attorneys of Counsel 45