The People, Respondent,v.Tyrell Norris, Appellant.BriefN.Y.February 7, 2013To be argued by PAUL SKIP LAISURE (15 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - TYRELL NORRIS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY Attorney for Defendant-Appellant 2 Rector St., 10th Floor New York, N.Y. 10006 (212) 693-0085 Paul Skip Laisure Of Counsel May 11, 2012 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Mr. Norris’s Background and His Conviction in This Case . . . . . . . . . . 6 Mr. Norris’s Institutional Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Mr. Norris’s Resentencing Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Appellate Division’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT UPON VACATING APPELLANT’S ORIGINAL SENTENCE, THE COURT HAD THE AUTHOR- ITY TO ORDER THAT HIS NEW DETERMI- NATE PRISON TERMS BE SERVED CONCUR- RENTLY, EVEN THOUGH IT ORIGINALLY HAD ORDERED THAT THE VACATED SEN- TENCES BE SERVED CONSECUTIVELY, SINCE EACH COUNT WAS A DLRA-ELIGIBLE OF- FENSE AND PRECLUDING CONCURRENT SENTENCING WOULD FRUSTRATE THE AMELIORATIVE PURPOSE OF THE DRUG LAW REFORM ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 i APPENDIX (Bound Separately) Order Granting Leave to Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . A 1 The Decision & Order of the Appellate Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 2 Brief for Defendant-Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 4 Brief for Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 26 Order for Proposed Resentence Pursuant to C.P.L. § 440.46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 56 Transcript of September 24, 2010, Resentencing Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 63 Notice of Motion for DLRA Resentencing and accompanying Affirmation in Support and Memorandum of Law (with Exhibits) . . . . . . . . . . . . . . . . . . . . . A 73 Affirmation in Response to Motion for Resentencing (with Exhibits) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 125 Reply Affirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 253 Certification ii TABLE OF AUTHORITIES CASES Matter of Murray v. Goord, 1 N.Y.3d 29 (2003) . . . . . . . . . . . . . . . . . . . . . 18, 19 Mlodozeniec v. Worthington Corp., 9 A.D.2d 21 (3d Dept. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Acevedo, 14 N.Y.3d 828 (2010) . . . . . . . . . . . . . 3, 8, 11, 12, 17, 18, 19 People v. Carpenter, 19 A.D.3d 730 (3d Dept. 2005) . . . . . . . . . . . . . . . . . . . . 19 People v. Khan, 60 A.D.3d 967 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . 8, 17 People v. Lexington Sixty-First Assoc., 38 N.Y.2d 307 (1976) . . . . . . . . . . . . 21 People v. Mills, 11 N.Y.3d 527 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22 People v. Norris, 34 A.D.3d 501 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Oliver, 1 N.Y.152 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21 People v. Paulin, 17 N.Y.3d 238 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12 People v. Ramirez, 89 N.Y.2d 444, 450 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Sosa, 18 N.Y.3d 436 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21 People v. Utsey, 7 N.Y.3d 398, 402 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Vaughan, 62 A.D.3d 122 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . 8, 17 People v. Yannicelli, 40 N.Y.2d 598 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 STATUTES 2004 N.Y. Laws, ch. 738, § 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15 2004, N.Y. Laws, ch. 738, § 41a(d–1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 iii STATUTES (con’d) N.Y. Criminal Procedure Law § 440.46 . . . . . . . . . . . . . . . 8, 9, 12, 13, 14, 15, 24 N.Y. Penal Law § 70.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 23 N.Y. Penal Law § 70.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 N.Y. Penal Law § 70.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 N.Y. Penal Law § 70.06 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 23 N.Y. Penal Law § 70.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 N.Y. Penal Law § 70.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 N.Y. Penal Law § 70.70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16, 23 N.Y. Penal Law § 70.71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 N.Y. Penal Law § 70.80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 N.Y. Statutes, § 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 N.Y. Statutes § 321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 OTHER AUTHORITIES McKinney, Practice Commentary, P.L. § 60.04, p. 109 (2009) . . . . . . . . . . . . 16 McKinney, Practice Commentaries, N.Y. Statutes § 321 (2012) . . . . . . . . . 4, 21 A06085 Memo (New York State Assembly Memorandum in Support of DLRA 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 24 iv COURT OF APPEALS STATE OF NEW YORK ________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TYRELL NORRIS, Defendant-Appellant. ________________________________________ PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, granted February 29, 2012, appellant Tyrell Norris appeals from an order of the Appellate Division, Second Department, entered December 13, 2011, affirming an order of the Supreme Court, Kings County, rendered on September 24, 2010, offering to resentence him, under P.L. § 70.70 and C.P.L. § 440.46, to consecutive prison terms of 7 years on each of three convictions of criminal sale of a controlled substance in the third degree (P.L. § 220.30), followed by a period of 3 years of post-release supervision, to run concurrently with appellant’s sentence on his conspiracy conviction (Marrus, J.). Appellant declined the offer and appealed. 1 On April 26, 2012, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel on this appeal. No stay has been sought. Appellant is currently incarcerated pursuant to the judgment. This Court has jurisdiction pursuant to C.P.L. § 450.90(1) to entertain this appeal and review the issues raised. The issue raised was preserved by defense counsel’s timely argument, in his September 10, 2010, Reply Affirmation before the resentencing court, that the court had the authority under the Drug Law Reform Act of 2009 to vacate appellant’s indeterminate controlled substance sentences and order that newly-imposed determinate controlled substance sentences run concurrently with one another notwithstanding that the court had previously ordered that the indeterminate sentences run consecutively. This issue was also preserved by the court’s September 24, 2010, Order for Proposed Resentence Pursuant to C.P.L. § 440.46, ruling that it was without authority to impose concurrent terms upon resentencing. QUESTION PRESENTED Whether, upon vacating appellant’s original sentence, the court had the authority to order that his new determinate prison terms be served concurrently, even though it originally had ordered that the indeterminate sentences be served consecutively, where each count was a DLRA-eligible offense and precluding concurrent sentencing would frustrate the ameliorative purpose of the Drug Law Reform Acts. 2 SUMMARY OF ARGUMENT The 2009 Drug Law Reform Act (“DLRA 3”) is the third in a series of legislative initiatives that have revolutionized New York’s response to drug crime. People v. Paulin, 17 N.Y.3d 238, 244 (2011). Under DLRA 3, resentencing relief is available to Class B drug felony offenders, like appellant. That statute, which enacted comprehensive reform of all aspects of sentencing in drug cases, provides for the elimination of unduly harsh indeterminate sentences whenever resentencing would not offend “substantial justice.” It also directs that resentencing courts impose new determinate terms in place of the indeterminate terms that are vacated, according to a comprehensive scheme that erases all vestiges of the harsh sentences they replace. Because these directives indicate Legislative intent that the resentencing court impose a new sentence “from scratch,” the resentencing court in this case had full authority to order that the new sentences it would impose be served concurrently even though it had previously ordered that the sentences that would be vacated be served consecutively. Nevertheless, although the resentencing court in this case agreed to grant appellant’s motion for resentencing, it ruled that under People v. Acevedo, 14 N.Y.3d 828 (2010), it was without authority to alter its previous order that the sentences under the drug counts subject to resentencing be served consecutively. 3 In Acevedo, however, this Court only considered the question of whether a resentencing court could alter a previous order that DLRA-eligible drug sentences run consecutively to non-drug sentences not subject to DLRA relief; the decision was silent with respect to whether a resentencing court can order the very drug sentences that are being vacated to run concurrently with each other. Applying Acevedo to the situation at hand would directly contradict the sweeping structural and philosophical changes the Legislature has enacted in DLRA 3 and seriously impede the ameliorative relief it intended in reforming New York’s draconian drug laws. DLRA 3, like the two acts before it, is a “remedial enactment,” People v. Sosa, 18 N.Y.3d 436, 441 (2012), that should be “liberally construed . . . to promote justice.” N.Y. Statutes § 321 (McKinney 2012). The liberal construction accorded ameliorative statutes creates a presumption of broad application that governs in the absence of express legislative will to the contrary. People v. Oliver, 1 N.Y.152, 158 (1956). Nothing in DLRA 3 indicates that the Legislature intended to limit a resentencing judge’s discretion with respect to concurrent vs. consecutive sentencing such that this presumption was rebutted. Given the ameliorative nature of the DLRA 3 reforms, resentencing courts should be permitted great leeway in their ability to modify and re-craft appropriate sentences for drug offenses. Accordingly, the Court should reverse the Appellate 4 Division’ decision and remand the case to Supreme Court for resentencing unencumbered by Acevedo. STATEMENT OF FACTS Introduction Appellant Tyrell Norris was arrested on October 18, 2002, for selling crack to undercover police officers and for participating in a drug-selling conspiracy. A jury convicted Mr. Norris, on November 21, 2003, of four counts of criminal sale of a controlled substance in the third degree and one count of conspiracy in the third degree. On December 17, 2003, the court imposed consecutive sentences of 5 to 10 years in prison on each of the sale counts, and 3 ½ to 7 years on the conspiracy count to run concurrently with the sentences on the sale counts. On direct appeal, the Court dismissed one of the four counts of criminal sale of a controlled substance in the third degree because the conviction was against the weight of the evidence. People v. Norris, 34 A.D.3d 501 (2d Dept. 2006). By motion dated June 15, 2010, Mr. Norris sought resentencing under the 2009 Drug Law Reform Act (DLRA 3). Mr. Norris was incarcerated when he filed his motion for resentencing and he remains incarcerated. On September 24, 2010, Justice Marrus offered to resentence Mr. Norris to consecutive prison terms of 7 5 years on each of his three sale convictions with 3 years of post-release supervision. Mr. Norris declined the resentencing offer and filed a timely notice of appeal. Mr. Norris’s Background and His Conviction in This Case Mr. Norris was 19 years old when he, his mother, his brother, and numerous other co-defendants, were arrested in this case (A 88). He grew up in Brooklyn, in a “drug and violence infested NYC housing project” (A 96). Mr. Norris, who never knew his father, was raised by his mother in a “less than desirable home environment, which was reportedly plagued by drugs and violence (A 97). Mr. Norris was a longstanding heavy user of marijuana and also drank alcohol (A 96). Mr. Norris was nevertheless able to complete the tenth grade at August Martin High School (A 96). He also worked as a gardener through the city’s Summer Youth Employment Program for two years (A 96). Mr. Norris had two children (A 96). Mr. Norris had twice been adjudicated a youthful offender: once on a third- degree criminal sale of a controlled substance charge, and once for unauthorized use of a motor vehicle (A 89). He had also been convicted of two prior felonies, third-degree criminal sale of a controlled substance, and fifth-degree criminal sale of a controlled substance (A 90) . He was sentenced to 1 year in the third-degree case and 2 to 4 years in the fifth degree case (A 90). 6 Mr. Norris was arrested in this case on October 18, 2002, while on parole in the 2002 case, for selling drugs and for participating in a conspiracy to sell drugs (A 88, 91). On November 21, 2003, after trial, he was convicted of four counts of criminal sale of a controlled substance in the third degree and one count of conspiracy in the third degree, one of which was dismissed on appeal, and one count of conspiracy in the third degree (A 95; see A 58).1 On December 17, 2003, the court imposed consecutive prison terms of 5 to 10 years on each of the sale counts, and 3 ½ to 7 years on the conspiracy count, to run concurrently with the consecutive sentences on the sale counts (A 58). Mr. Norris’s Institutional Record Although Mr. Norris was placed in Special Education courses during his incarceration, he progressed through the pre-GED program and was highly motivated to overcome his reading struggles and obtain a GED (A 113). He also completed vocational training programs in the soap shop, as a porter, and as a maintenance laborer and received training in custodial work and the electrical trades (A 115-20). Of the 22 disciplinary infractions Mr. Norris committed while incarcerated, only two of them were for Tier III offenses, one in 2006 involving fighting and the other involving a weapon, fighting, and creating a disturbance (A 121-23). 1 The jury acquitted Mr. Norris of conspiracy in the first and second degrees. 7 Mr. Norris’s Resentencing Motion By motion dated June 15, 2010, Mr. Norris sought resentencing under DLRA 3 (C.P.L. § 440.46). He was incarcerated at the time he filed the motion. In papers dated August 6, 2010, the People consented to a resentencing to three consecutive prison terms of 7 years on the criminal sale counts, but opposed running those sentences concurrently on the ground that, under People v. Acevedo, 14 N.Y.3d 828 (2010) and People v. Vaughan, 62 A.D.3d 122 (2d Dept. 2009), People v. Khan, 60 A.D.3d 967 (2d Dept. 2009), the court was without authority to alter its previous order that sentences on those convictions be served consecutively (A 140-41). In reply, Mr. Norris argued that Acevedo and Vaughan merely recognized that a DLRA resentencing court was not authorized to revisit its previous order that non-drug sentences untouched by a DLRA resentencing be served consecutively (A 253-55). The rule of Acevedo and Vaughan, therefore, was not so broad as to prevent the resentencing court from ordering that new determinate sentences run concurrently even though the indeterminate sentences that would be vacated had been ordered to run consecutively (A 254). “Since it is the drug sentences themselves that are being vacated when this court imposes new sentences, there is no reason it cannot revisit the relationship of those sentences to one another during the process” (A 254). 8 On September 24, 2010, Justice Marrus offered to resentence Mr. Norris pursuant to C.P.L. § 440.46, as a second felony drug offender, on his class B felony drug sale convictions to determinate prison terms of 7 years on the criminal sale counts, followed by three years post-release supervision, the terms to run consecutively to each other, and concurrently with defendant’s indeterminate sentence on his conspiracy conviction, for an aggregate sentence of twenty-one years in prison (A 60). The court refused to consider ordering the sentences on the sale counts to run concurrently: I also agree with the district attorney that those sentences have to run consecutively. I read the New York Court of Appeals decision in Acevedo and I don’t see there is any meaningful [distinction] between drug counts and non-drug counts that was talked about in the decision (A 67). Because his earliest release date on his current sentence could have been significantly later than the earliest release date of his current indeterminate sentence, Mr. Norris declined resentencing (A 67-69). The Appellate Division’s Decision On appeal, Mr. Norris again argued that the rule of Acevedo and Vaughan was limited to non-drug sentences and that nothing in those cases or in DLRA 3 prevented the resentencing court from ordering that new determinate sentences on drug counts be served concurrently, notwithstanding that the indeterminate 9 sentences that would be vacated were being served consecutively (A 10-13). The People argued that Acevedo and Vaughan prevented a resentencing court from revisiting its prior order concerning the relationships of all counts — drug counts and non-drug counts alike — when vacating some of those counts and imposing new determinate terms (A 41-43). The Appellate Division upheld the resentencing court’s ruling on the ground that “CPL 440.46 does not authorize the Supreme Court to alter the sentences for multiple felony drug convictions, originally imposed to run consecutively to each other, such that they run concurrently with each other (see People v. Acevedo, 14 N.Y.3d 828, 830-31; People v. Vaughan, 62 A.D.3d 122, 128-29)” (A 2). Judge Graffeo granted Mr. Norris permission to appeal to this Court (A 1). 10 ARGUMENT UPON VACATING APPELLANT’S ORIGINAL SENTENCE, THE COURT HAD THE AUTHORITY TO ORDER THAT HIS NEW DETERMINATE PRISON TERMS BE SERVED CONCURRENTLY, EVEN THOUGH IT ORIGINALLY HAD ORDERED THAT THE INDETERMINATE SENTENCES BE SERVED CONSECUTIVELY, BECAUSE EACH COUNT WAS A DLRA-ELIGIBLE OFFENSE AND PRECLUDING CONCURRENT SENTENCING WOULD FRUSTRATE THE AMELIORATIVE PURPOSE OF THE DRUG LAW REFORM ACTS. Mr. Norris was entitled to the full benefit of the ameliorative provisions of DLRA 3 when he applied to be resentenced. That statute provides for a complete recalculation of sentences for eligible drug offenders once the resentencing court determines that substantial justice does not dictate denial of resentencing. Nothing in that statute prohibits a resentencing court from ordering that determinate sentences on multiple drug counts be served concurrently notwithstanding that the court had initially ordered that the indeterminate sentences that would be replaced be served consecutively. In People v. Acevedo, 14 N.Y.3d 828 (2010), this Court held that a DLRA resentencing court was not permitted to change the relationship of resentenced counts to other counts not subject to resentencing from consecutive to concurrent. Even though DLRA 3 is an ameliorative statute which must be read 11 broadly to permit wide application of its benefits, the resentencing court found that the Acevedo rule deprived it of authority to alter its previous order that the sentences under the drug counts subject to resentencing be served consecutively. Because of the comprehensive nature of DLRA 3 and the Legislature’s purpose in enacting it, the Acevedo rule should be limited to its own terms and applied only to counts not subject to resentencing. Accordingly, this Court should reverse the Appellate Division’s order affirming the resentencing offer and remand the case to Supreme Court for resentencing. (A) In 2004, the Legislature began to reform the Rockefeller drug laws that had generated controversy for many years. As this Court recently explained in People v. Paulin, 17 N.Y.3d 238, 244 (2011), the Legislature and Governor had concluded that the Rockefeller scheme provided inordinately harsh punishment in many cases. See also Acevedo, 14 N.Y.3d at 831. The 2004 reform act (“DLRA 1”), and a second one the next year (“DLRA 2”), permitted the resentencing of Class A-I and Class A-II drug offenders who were sentenced under the old indeterminate sentencing scheme. In DLRA 3, the Legislature added a new resentencing provision, C.P.L. § 440.46, which extended the opportunity for resentencing relief to class B drug offenders like appellant. 12 DLRA 3 also took the significant step of permitting Class B drug offenders to seek reduction of their sentences on associated lower-level drug crimes (Classes C, D and E) in addition to the Class B offense itself, see C.P.L. § 440.46(2), a provision not contained in the prior acts. This new provision conveyed the Legislature’s intention not to impede a defendant’s ability to obtain meaningful relief, or impede judges’ authority to revamp drug sentences.2 Indeed, the Legislature made plain in its statement of “Purpose or General Idea of Bill” that DLRA 3 was intended to “significantly reduce drug-related crime” by “returning discretion to judges to tailor the penalties of the penal law to the facts and circumstances of each drug offense.” A06085 Memo at 2 (New York State Assembly Memorandum in Support of DLRA 3), available at http://assembly .state.ny.us/leg. That purpose is inconsistent with a reading of the statutory scheme that limits judicial discretion. Under all three of the acts, a court entertaining a resentencing motion is directed to consider “any facts or circumstances relevant to the imposition of a new sentence which are submitted by” the defendant and the People and the defendant’s “institutional record of confinement.” 2004 N.Y. Laws, ch. 738, § 23; 2 In comparison with the first two Acts, DLRA 3 also applies to a broader class of defendants by allowing inmates in custody on the basis of parole violations to seek resentencing. Compare, Paulin, 17 N.Y.3d 238, with People v. Mills, 11 N.Y.3d 527 (2008). 13 C.P.L. § 440.46(3). DLRA 3 elaborates that this includes, but is not limited to, a defendant’s “participation or willingness to participate in treatment and other programming while incarcerated and such person’s disciplinary history.” C.P.L. § 440.46(3). Section 440.46(3), nonetheless, specifically cautions the court not to penalize a defendant who was willing, but unable, to participate in rehabilitative programming. As in DLRA 1, upon receipt of the motion papers, the Court “shall offer an opportunity for a hearing,” and bring the defendant before it. The Court may also hold a hearing to determine the defendant’s eligibility for resentencing or any controverted issue of fact. After reviewing the motion papers submitted by both sides, holding any necessary hearing, and making findings of fact, the court, unless it denies the application, “shall . . . specify and inform [the defendant] of the term of determinate sentence of imprisonment it would impose.” C.P.L § 440.46(1). Under the new law, the sentences imposed on defendants convicted of Class B (as well as Class C, D and E) drug felonies are governed by P.L. § 70.70, which contains three new sentencing categories specific to drug crimes, all dependent on the nature of the defendant’s prior record, and all enacted at as part of the 2004 Drug Law Reform Act: 14 (1) first felony drug offenders (P.L. § 70.70[1][a],[2]) - defendants convicted of a drug felony and not previously convicted of any predicate felony. A defendant convicted of a Class B drug felony and sentenced in this category can received a determinate prison term of between 1 and 9 years. P.L. §70.70(2)(a)(i); (2) second felony drug offenders (P.L. § 70.70[1][b]),[3] - second felony offenders, as defined in P.L. § 70.06(1), presently convicted of a drug felony, i.e., those with only qualifying non-violent predicate felony convictions. A Class B drug felon sentenced in this category can receive a determinate prison term of between 2 and 12 years. P.L. § 70.70(3)(b)(i); and (3) second felony drug offenders previously convicted of a violent felony (P.L. §§ 70.70[4]) - a new category that, for the first time, uses a drug defendant’s record of committing a prior violent felony as a determinative sentencing criterion. A Class B drug felon in this category can receive a determinate term of between 6 and 15 years. P.L. § 70.70(4)(b)(i). Once the court has specified a sentence within the applicable P.L. § 70.70 sentencing range, the defendant then has various options: (1) appeal from the order specifying and informing the defendant of the term of the determinate sentence the court would impose; (2) proceed with resentencing (with the right to appeal); or (3) withdraw the resentencing motion. He may also appeal from any order denying resentencing. If the defendant accepts the proposed sentence, the court is specifically directed to issue 15 an order vacating the sentence originally imposed and imposing a determinate sentence of imprisonment authorized to be imposed under the new law. 2004 N.Y. Laws, ch. 738, § 23 (emphasis added); C.P.L. § 440.46(3). The sentencing scheme created by the new law constituted a marked change in New York’s approach to drug-crime sentencing. Under the old Rockefeller scheme, there were no special sentencing categories for drug crimes whereas there are now three. Compare P.L. §§ 70.00, 70.06, with P.L. § 70.70. Under the old law, for example, a defendant’s prior conviction of a violent felony had no bearing on his sentencing classification after a drug-crime conviction. McKinney, Practice Commentary, P.L. § 60.04, p. 109 (2009). In enacting the new law, however, the Legislature adopted a comprehensive approach which addressed every aspect of sentencing in felony drug conviction cases, including second felony offender sentencing which had previously been governed by other sections of the Penal Law. By specifying that the court select an appropriate sentence within the ranges provided in P.L. § 70.70, which was not in existence when the defendant was originally sentenced, the Legislature plainly intended that the resentencing court would be imposing a wholly new sentence to replace the previously imposed, but inordinately harsh, indeterminate sentence. This conclusion is borne out by the 16 further directive that the resentencing court vacate the original sentence before imposing the new determinate sentence. And by enacting a comprehensive scheme that addressed all aspects of sentencing, the Legislature clearly intended to give the resentencing court the tools to craft an entirely new sentence from scratch. Everything about that scheme indicates that discredited indeterminate sentences be fully eliminated. Nothing in it indicates that the Legislature intended that any vestige of those inordinately harsh sentences survive the resentencing procedure. In short, the Appellate Division’s holding that the court was constrained to impose consecutive sentences unnecessarily handcuffs the resentencing judge in a way the Legislature never intended. (B) In this case, the resentencing court agreed to grant Mr. Norris’s motion and informed him that, upon vacating his sentence, it would impose three 7-year determinate prison terms, but ruled that it was constrained to order that those terms be served consecutively, citing Acevedo, 14 N.Y.3d at 828, People v. Vaughan, 62 A.D.3d 122 (2d Dept. 2009), and People v. Khan, 60 A.D.3d 967 (2d Dept. 2009). But nothing in the language or reasoning of Acevedo dictated this finding, and the resulting aggregate 21-year sentence – which would have resulted in a much later earliest release date than he had under his current sentence – was clearly antithetical to the purpose of resentencing. 17 In Acevedo, this Court only considered the question whether a resentencing court could alter the relationship between DLRA-eligible drug sentences running consecutively to non-drug sentences not subject to DLRA relief. Whether a court can order the very drug sentences that are being vacated to run concurrently with each other upon resentencing is an entirely different question. To simply apply Acevedo to the situation at hand would represent a major expansion of the Avevedo rule, and would create an unnecessary impediment to providing the ameliorative relief contemplated by the DLRA reforms. In 1997, defendant Acevedo was convicted of, among other drug offenses, criminal possession of a controlled substance in the first degree, an A-I drug felony, and two counts of criminal possession of a weapon in the third degree. Acevedo, 14 N.Y.3d at 829-830. The sentences for the weapon possession convictions were ordered to run concurrently with each other, but consecutively to the sentences on the drug convictions. Id. at 830. In 2005, Acevedo sought resentencing under DRLA 1 on his A-I drug felony, arguing that (1) he was entitled to a reduction of his sentence for the A-I drug felony, and (2) the resentencing court should direct that the sentences imposed for the weapon possession convictions run concurrently with the A-I offense, rather than consecutively to it. Id. at 830. 18 On appeal to this Court, Acevedo cited P.L. § 70.25(1) and Matter of Murray v. Goord, 1 N.Y.3d 29 (2003), for the proposition that the resentencing court, as the last judge in the sentencing chain, had the unfettered authority to modify the conditions of a sentence by changing its terms from consecutive to concurrent. Id. at 830-831. This Court rejected that argument, and held that DLRA 1 did not “authorize[]” a resentencing court to alter the consecutive relationship between Acevedo’s A-I drug count and his weapon possession counts. Id. at 831. The decision in Acevedo is fully consistent with the long standing rule that a resentencing court can only modify an existing sentence to the extent necessary to correct a particular “defect,” and may not alter those parts of the sentence that are not “infect[ed]” by the defect. People v. Yannicelli, 40 N.Y.2d 598 (1976). Accordingly, “[w]here there are severable parts of an aggregate sentence, only those parts of the sentence that are invalid may be modified, and the valid parts of the sentence must be allowed to stand.” People v. Carpenter, 19 A.D.3d 730, 731 (3d Dept. 2005) (citing Yannicelli, 40 N.Y.2d at 601-602). In the context of the DLRA reforms, the “defect” that the resentencing court was authorized to correct was Acevedo’s inordinately harsh A-I drug sentence. See Acevedo, 14 N.Y.3d at 831 (“The purpose of the DLRA is to ameliorate the harsh sentences required by the original Rockefeller Drug Law”). 19 But because the sentence on his drug count did not infect Acevedo’s weapon possession sentences, which were not vacated and were otherwise valid and “severable,” the resentencing court’s authority to alter the relationship between those sentences and the A-I drug sentence was constrained. Indeed, to hold otherwise would grant DLRA-eligible defendants with additional non-drug-related felonies a windfall at resentencing which the Legislature cannot have intended. See, e.g., People v. Mills, 11 N.Y.3d 527, 537 (2008), (eligibility for resentencing cannot be triggered by a non-DLRA-eligible offense). In Mr. Norris’s case, however, the only sentences at issue are for Class B felony drug offenses, all of which are encompassed by the DLRA 3 reforms, and all of which would have been vacated at resentencing. Thus, unlike in Acevedo, Mr. Norris did not seek to modify any part of his sentence that was not “defect[ive].” Since the resentencing court had the authority, pursuant to DLRA 3, to alter all of the sentences that Mr. Norris sought to have run concurrently, Acevedo is inapposite. Respondent in this case argued in the Appellate Division that nothing in the language of Acevedo implied a “distinction between consecutive to another drug sentence and consecutive to a non-drug sentence” (A 41), but the distinction is evident on its face. Non-drug sentences are not eligible for resentencing under the DLRA reforms, while drug sentences are eligible. Thus, non-drug sentences must 20 be allowed to stand, while drug sentences – all of which suffer from the “defect” of being inordinately harsh – can be modified. Given the sweeping structural and philosophical reforms enacted in the several Drug Law Reform Acts, the only sensible conclusion is that the resentencing can include a rearranging of the relationship between drug counts, from consecutive to concurrent, if a resentencing court sees fit to do so. (C) The remedial nature of DLRA 3 is still another reason not to limit a resentencing court’s discretion in the way the People sought and the Appellate Division held. Like the two acts before it, DLRA3 came into effect with “broad objectives,” the purpose of which are to bring “presumptively harsh sentences into line with current norms.” People v. Sosa, 18 N.Y.3d 436, 441 (2012). “Remedial statutes are liberally construed to carry out the reforms intended and to promote justice.” N.Y. Statutes § 321 (McKinney 2012). According to the Practice Commentaries, the intent of a liberal construction of remedial statutes is “to spread their beneficial result as widely as possible” Practice Commentaries, N.Y. Statutes § 321 (McKinney 2012) (quoting Mlodozeniec v. Worthington Corp., 9 A.D.2d 21 (3d Dept. 1959), aff’d, 8 N.Y.2d 918 (1960)); see People v. Lexington Sixty-First Assoc., 38 N.Y.2d 307, 311 (1976) (remedial statute “should be liberally construed so that its beneficent purpose may, so far as possible, be attained”). 21 The liberal construction accorded ameliorative statutes creates a presumption of broad application that governs in the absence of express legislative will to the contrary. Oliver, 1 N.Y. at 158. For example, when a statue enacts a reduction in punishment, it applies retroactively to any defendant not yet sentenced, whether or not his crime was committed prior to the enactment of that statute, so as to give the ameliorative statute its broadest effect. Id. at 161. Only when the ameliorative statute expressly prohibits retroactive application is the presumption rebutted. People v. Utsey, 7 N.Y.3d 398, 402 (2006) (Since Legislature specifically intended that DLRA 1 relief be prospective only, the presumption of liberal construction was rebutted and retroactive application was prohibited); See Mills, 11 N.Y.3d at 535-36 (Legislature intended that defendants who were paroled, or were within three years of parole eligibility, are not eligible for resentencing under DLRA 2). Nothing in DLRA 3 indicates that the Legislature intended to limit a resentencing judge’s discretion with respect to concurrent vs. consecutive sentencing. In fact, particular aspects of DLRA 3 strongly suggest that the Legislature intended to grant restentencing courts broad power to reconsider the entire sentencing package. First, the fact that the Legislature extended a resentencing court’s authority to craft a new sentencing package that includes Class C, D, and E counts is a powerful indication that it similarly intended that a 22 resentencing court have the discretion to reconsider the overall level of punishment imposed for a given drug crime. Constraining a court by precluding it from reevaluating the relationship between drug counts is inconsistent with that purpose. Second, the Legislature’s handling of persistent felony drug offenders indicates that it did not consider conviction of multiple drug offenses cause for continued draconian sentences. In the past, drug offenders were subject to sentencing as discretionary persistent felony offenders under P.L. § 70.10. New Penal Law § 70.70, however, which regulates the imposition of sentences for all felony drug offenders other than Class A felony offenders, authorizes determinate sentences for “felony drug offenders” and “second felony drug offenders.” P.L. §§ 70.70(1)(a), (b). It does not purport to create a separate sentencing scheme for persistent felony drug offenders. P.L. §70.10, which regulates the imposition of life sentences for discretionary persistent felony offenders, only permits a court to substitute a life sentence for such offenders “in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04, 70.06, or by subdivision five of section 70.80, which was enacted in 2007, before DLRA 3. Conspicuously absent from that list are sections 70.70 and 70.71, the new drug law sentencing statutes. By amending P.L. § 70.10 to include § 70.80 without including §§ 70.70 and 70.71, 23 and by authorizing “lifetime probation” under P.L. § 70.71, the Legislature clearly intended that those sections be excluded from persistent felony offender sentencing. See N.Y. Statutes, § 240. Thus, while a third-time felony drug offender may otherwise meet the definition of “persistent felony offender” set forth in P.L. § 70.10(1), the sentencing court is not authorized to impose a Class A-1 life sentence under P.L. § 70.10(2). The Legislature’s determination that life sentences are not appropriate for repeat drug felony offenders comports with its overall recognition that “the Rockefeller Drug Laws have failed to deter drug use or drug-related crime” and that “harsh mandatory sentences required by [those] laws” resulted in warehousing “thousands of low-level drug offenders [in] state prison at great fiscal cost to New York while offering little or no public safety benefit.” A06085 Memo at 7 (New York State Assembly Memorandum in Support of DLRA 3), available at http://assembly.state.ny.us/leg. That determination does not square with an inference that the Legislature intended to require the resentencing court to order that a defendant who committed three felony drug offenses at the same time serve those sentences consecutively just because that is how the court originally ordered that the indeterminate sentences on those same counts be served. It also flies in the face of the whole purpose of the statute, which recognizes that the original sentences were too harsh. 24 Third, as noted above, DLRA 3 actually has the broadest application of the three Acts. Not only does it permit resentencing on lesser Class C, D, and E counts, it has no retroactivity limitation like DLRA 1 had initially, see 2004, N.Y. Laws, ch. 738, § 41a(d–1), and no parole eligibility limitation like DLRA 2. See Paulin, 17 N.Y.3d 238. Instead, all defendants convicted of Class B drug offenses committed before January 13, 2005, are “eligible” for resentencing if they are in DOCCS custody serving an indeterminate prison term with a maximum term exceeding three years, with only two narrow exceptions: C.P.L. §440.46(5) precludes resentencing (a) for inmates who have convictions of violent or merit- time-ineligible offenses within 10 years of the filing of the resentencing motion, and (b) for inmates who were previously adjudicated second violent felony offenders. Such broad application does not permit an inference that the Legislature intended to limit resentencing in any way that is not expressly provided in the statute. Rather, given the ameliorative nature of the DLRA 3 reforms, resentencing courts should be permitted great leeway in their ability to modify and re-craft appropriate sentences for drug offenses. Preventing a resentencing court from reconsidering the consecutive/concurrent relationship between drug sentences could absurdly result in offers of determinate sentences that would require longer periods of mandatory incarceration than the indeterminate sentences they replace, 25 even though the court had determined that the defendant was entitled to sentencing relief. Nor can this consecutive/concurrent relationship be isolated from the court’s determination of what would constitute a “proportionate and fair punishment.” See People v. Ramirez, 89 N.Y.2d 444, 450 (1996). “In choosing to exercise its discretion [to impose consecutive sentences], Supreme Court may properly consider a variety of factors including the number and seriousness of the offenses involved.” Id. (emphasis added). That a Rockefeller-era sentencing court might have considered drug crimes worthy of lengthy consecutive sentences is not surprising, given the then-pervasive attitude that drug abuse was a scourge upon society that required harsh punishment for maximum deterrent effect. But with the dramatic change in philosophy now adopted in New York, a resentencing court today would be required to reevaluate the “seriousness” of the drug crimes involved, as well as the other factors it must consider, under prevailing attitudes and knowledge. It cannot adequately do so without also being permitted to reconsider imposing concurrent sentences; only then will the new sentence truly reflect a “proportionate and fair punishment” by today’s standards. The practical effect of the resentencing court’s proposed sentence in this case illustrates the problem with constraining the court’s ability to revisit a consecutive sentencing order. Mr. Norris was initially given sentences only 6 26 months greater than the minimum sentences available at the time: he received indeterminate prison terms of 5 to 10 years at a time when the minimum was 4 ½ to 9 years and the maximum was 12 ½ to 25 years. The Legislature has determined that the applicable range for Mr. Norris’s crimes should have been, and now is, 2 to 12 years in prison — a range that is approximately 50% lower than the original range. A comparably low sentence within the new sentencing range would be in the 3-year neighborhood, nowhere near the 7-year sentence (aggregating to 21 years if run consecutively) the court offered. Under Mr. Norris’s three consecutive indeterminate sentences, plus his consecutive sentence of 2 to 4 years under indictment 586/02 for which he owed time, his current conditional release date is September 2, 2022 (19 years in prison). The court’s proposal of three consecutive 7-year terms would result in exactly the same conditional release date he has now, but far beyond his current parole eligibility date of 2017 (A 257, citing September 9, 2010, Telephone Conversation with Diane Holford, DOCS Counsel’s Office). Apart from decreasing the maximum expiration date from 2032 to 2025,which, due to good time, he would have been unlikely to exceed even without the new sentence, the court’s proposal actually offered a much worse sentence than the one he now has.3 3 In essence, under the court’s proposal, Mr. Norris would be giving up a possible 2017 release on parole, which would be 5 years earlier than his 2022 (continued...) 27 Given the Legislature’s determination that sentences should be approximately half what they once were, the court’s proposed sentence, which would have resulted in the same conditional release date he has now, was simply not what the Legislature had in mind when it reduced Class B drug felony sentences and permitted defendants incarcerated under the old laws to petition for more lenient treatment. CONCLUSION FOR THE REASONS STATED ABOVE, THIS COURT MUST REVERSE THE RESENTENCING OFFER AND REMAND THE CASE TO THE SUPREME COURT FOR RESENTENCING. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant- Appellant _______________________ By: Paul Skip Laisure Of Counsel May 11, 2012 3(...continued) conditional release date, in exchange for a guarantee of release upon serving his maximum term in 2025 rather than 2032. But given that three years of post- release supervision would follow a 2025 release, even that difference is not as great as it appears. Besides, Mr. Norris’s prison record does not indicate that he will irrevocably lose so much good time that he would ever actually remain in prison until 2032. Thus, the reduction in maximum term would be largely academic compared to the very real loss of a potential for early release to parole. 28