The People, Respondent,v.Elbert Norris, Appellant.

Brief

N.Y.Feb 7, 2013

To 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 CountyIndictment Number 8695/2002-against- ELBERT NORRI S, Defendant-Appellant. BRIEF FOR RESPONDENT LEONARD JOB LOVE VICTOR BARALL CAROLINE R. DONHAUSER Assistant District Attorneys of Counsel August 17, 2012 Telephone: Facsimile: (718) 250-2487 (718) 250-2314 CHARLES J. 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 QUESTION 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............................. 11 Defendant's Reply................................. 11 The Court's Decision.............................. 12 The Appeal to the Appellate Division................... 13 ARGUMENT - 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 ..................................... 16 A. Section 440.46 of the Criminal Procedure Law very specifically defines the scope of a court's resentencing authori ty, and such authority does not include altering the consecutive or concurrent relationship between sentences. Accordingly, the valid and legally imposed consecuti ve relationship between defendant's sentences cannot now be changed....... 18 B. Limiting 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 ..........................................31 CONCLUSION - THE ORDER OF THE APPELLATE DIVISION, AFFIRMING THE ORDER OF PROPOSED RESENTENCE, SHOULD BE AFFIRMED. . . . . . . 44 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) ........................30 Boothe, 16 N.Y.3d 195 (2011) .........................31 Da is, 19 N. Y . 3d 335 ( 2 0 12 ) .................. 27, 28 , 34 Davis, 12 A.D.3d 237 (1st Dep't 2004) ...............21 People v. Diaz, 68 A.D.3d 497 (1st Dep't 2009) ................25 People v. Finnegan, 85 N.Y.2d 53, cert. denied, 516 U.S. 919 (1995) ........................ 30 People v. Gonzalez, 90 A.D.3d 781 (2d Dep't 2011) .............25 People v. Hernandez, 98 N.Y.2d 8 (2002) .......................30 People v. Highsmith, 79 A.D.3d 1741 (4th Dep't 2010), lv. denied, 16 N. Y. 3d 831 (2011)................. 14, 15, 29 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)......................................21 People v. Khan, 60 A.D.3d 967 (2d Dep't 2009) .................11 People v. Laing, 79 N.Y.2d 166 (1992) .................17, 30, 31 People v. Lingle, 16 N.Y.3d 621 (2011) ........................21 People v. Machado, 90 N.Y.2d 187 (1997) .......................31 People v. Elbert Norris, 90 A.D.3d 955 (2d Dep't 2011), lv. granted, 18 N.Y.3d 926 (2012) .................1, 14, 15 People v. Elbert Norris, 34 A.D.3d 500 (2d Dep't 2006), lv. denied, 8 N.Y.3d 848 (2007) ....................2,9,19 People v. Tyrell Norris, 90 A.D.3d 788 (2d Dep't 2011), lv. granted, 18 N.Y.3d 926 (2012) ......................... 3 TABLE OF AUTHORITIES (cont' d) Pages People v. Santiago, 17 N.Y.3d 246 (2011) ...................... 25 People v. Vaughan, 62 A.D.3d 122 (2d Dep't 2009) .......5, passim People v. Yannicelli, 40 N.Y.2d 598 (1976) ....................21 People v. Yusuf, 19 N.Y.3d 314 (2012) .........................33 STATUTES AND SESSION LAWS 2004 Drug Law Reform Act ("DLRA"), ch. 738, 2004 N.Y. Laws 1462...............................17, passim 2005 Drug Law Reform Act ("DLRA"), ch. 643, 2005 N.Y. Laws 1581 ..........................32, 33, 35, 40 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 ...................................24,29 Correct. L. § 803.......................................... 36, 40 C.P.L. § 400.21 ................................................28 C.P.L. § 430.10 ............................................19, 20 C.P.L. § 440.10 ................................................31 C.P.L. § 440.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21 C.P.L. § 440.46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. iv, passim C . P . L . forme r § 440. 4 6 ( 2 0 1 0 ) ................................. 24 C.P.L. § 450.10 ................................................30 C.P.L. § 450.15 ................................................30 C.P.L. § 450.90 ................................................30 ii TABLE OF AUTHORITIES (cont' d) Pages C.P.L. § 470.15 ................................................19 P.L. § 60.04............................................ 4, 10, 26 P.L. § 70.00................................................... 37 P.L. former § 70.06 (2002) .................................18, 37 P.L. § 70.25...........................................16, passim P.L. § 70.30........................................4, 39, 40, 42 P.L. § 70.45................................................... 12 P.L. § 70.70............................................ 4, passim P. L. forme r § 70. 70 ( 2 005 ) ................................... 34 P. L. § P.L. § P. L. § P. L. § P. L. § P. L. § 70.71............................................... 20, 34 105.13...................................................2 105.15...................................................3 105.17................................................... 3 220.39............................................ 1, 3, 18 220.44...................................................3 OTHER AUTHORITIES N. Y. State Comm' n on Sentencing Reform, The Future of Sentencing in New York State: Recommendations for Reform (2009) ........................ 33 iii QUESTION PRESENTED 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 consecutive/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 County Indictment Number 8695/2002 ELBERT NORRI S, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT Defendant, Elbert Norris, appeals by permission of a judge of this Court from an order of the Appellate Division, Second Department, dated December 20, 2011. See People v. Elbert Norris, 90 A.D.3d 955 (2d Dep't 2011), lv. granted, 18 N.Y.3d 926 (2012) (Graffeo, J.). By that order, the Appellate Division affirmed a March 1, 2011 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 four convictions of Criminal Sale of a Controlled Substance in the Third Degree (P.L. § 220.39(1)) a determinate sentence of six years' imprisonment followed by three years' post-release supervision, wi th the four 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 four 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 sale count, with those terms ordered to run consecutively 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 currently incarcerated pursuant to the judgment of conviction, but is scheduled to be released on parole in September of this year. i Defendant had originally been convicted of five drug sale counts. On defendant's direct appeal, the Appellate Division, Second Department, dismissed one of those counts on the ground that the evidence was legally insufficient, and it vacated the sentence on that count. People v. Norris, 34 A.D.3d 500 (2d Dep't 2006), lv. denied, 8 N.Y.3d 848 (2007). 2 STATEMENT OF FACTS Introduction Between March 14, 1998 and September 20, 2002, defendant, Elbert 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 "A-Team," a gang that controlled the narcotics trade in one sector of the development. In May and June of 2002, while on probation for a prior violent felony conviction for weapon possession, defendant was involved in four sales of narcotics 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 five 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 five counts of third-degree criminal sale of a controlled substance. Noting defendant's 2 One of the codefendants on the indictment was Tyrell Norris. See People v. Tyrell Norris, 90 A.D.3d 788 (2d Dep't 2011), lv. granted, 18 N.Y.3d 926 (2012) (Graffeo, J.). Tyrell Norris is not related to defendant, Elbert Norris (A. 80). 3 leadership position in the A-Team and his prior violent felony conviction for weapon possession, the court (Marrus, J. ) sentenced defendant, as a second felony offender, to five to ten years' 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. 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 twenty to forty years, which, by operation of law, was reduced to an aggregate sentence of fifteen to thirty years' imprisonment. See P.L. § 70.30(1) (e) (i). 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 four 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 opposed the motion ground thaton the of resentencing.substantial justice dictated the denial 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 also argued that, if the court did resentence defendant, the court to run all the new determinate sentenceswould have 4 consecutively to each other, because C.P.L. § 440.46, did not give the court the authority to change the consecutive relationship of those sentences to a concurrent relationship. In reply papers, defendant argued that those two cases were distinguishable from his own case, because his own case involved only drug felony convictions. Following a hearing on the motion, the court (Marrus, J.), by decision and order dated March 1, 2011, granted defendant's motion for resentencing and proposed a new sentence of six years' imprisonment and three years' post-release supervision on each class B felony drug conviction. The court concluded that C.P.L. § 440.46 did not give it the authority to change the original consecuti ve relationship of the sentences to a concurrent relationship, and thus, upon resentence, it would run those determinate six-year terms consecutively to each other. Defendant rej ected the proposed resentence and appealed from the order to the Appellate Division, Second Department. In a decision and order dated December 20, 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. The Trial, Sentence, and Direct Appeal The evidence at trial showed that four gangs controlled the 5 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 wi thin its designated terri tory. The consequences for a gang selling outside of its designated terri tory ranged from a verbal warning for a first or minor offense to extreme violent attacks for persistent or egregious offenses (A. 28-29, 153).3 Defendant belonged to the "A-Team" gang, which was headed by his cousin, Charles Jones. The A-Team had control of the narcotics acti vi ties in the northwest area of the Cypress Hills Houses, an area encompassing the building at 315 . Fountain Avenue. Defendant was the second-in-command of the A-Team, and was responsible for supervising the activities of the workers, ensuring that each worker had an adequate supply of narcotics, and storing the narcotics (A. 29, 153-54). Defendant participated in or facili tated five charged narcotics sales. On May 24, 2002, at 12:30 p.m., an undercover officer walked into the lobby of 315 Fountain Avenue, a location within 1000 feet of a school. There, defendant gave the undercover officer three ziplock bags of crack cocaine in exchange for cash (A. 29, 154). On June 17, 2002, a different undercover officer walked to 3 Parenthetical numbers preceded by "A." refer to pages of the Appendix for Defendant-Appellant. 6 the front of the building at 315 Fountain Avenue. Defendant approached her and told her that co-defendant Charles Jones was upstairs. Defendant summoned Jones, who came downstairs and agreed to give the undercover officer twenty glassines of heroin for $150. Because Jones did not have that much heroin at the time, he gave the undercover officer just seven glassines of heroin in exchange for $70, and said that he would have more drugs at a later time (A. 29-30, 154). Three hours later, the same female undercover officer returned to 315 Fountain Avenue. She spoke to defendant. Eventually, defendant called the undercover officer into the building, and they went into Apartment 2D. Defendant handed ten glassines of heroin to the undercover officer, who was going to pay for the drugs at a later time (A. 30, 155). On June 25, 2002, the same female undercover officer called the A-Team. Defendant answered and directed her to come to the front of 315 Fountain Avenue. Once there, the undercover officer approached defendant and Jones and asked them about purchasing a few bundles of heroin, each bundle consisting of ten glassines of heroin. After checking his drug supply, defendant said that they had only three bundles, and he gave the undercover officer thirty glassines of heroin. The undercover officer gave Jones $160 and agreed to give an additional $80 at a later time (A. 30-31, 155-56). 7 The next day, the female undercover officer and defendant entered 315 Fountain Avenue. The undercover officer gave defendant the $80 that she owed him from the previous day. Defendant took the money and told her to wait because he had something for her. He went upstairs and returned with ten glassines of heroin, which he gave to the undercover officer. She promised to pay for them the next day (A. 31, 156). On July 30, 2002, at 8: 10 p.m., the same undercover officer was near 315 Fountain Avenue, talking to defendant and Jones, when defendant said that he was going to Connecticut to sell drugs. Jones said that during defendant's absence, the undercover officer could buy drugs from him (A. 31-32, 156-57). On September 18, 2002, defendant was arrested at 315 Fountain Avenue (A. 157). On November 21, 2003, after a jury trial, defendant was found guilty of one count of Conspiracy in the Third Degree and fi ve counts of Criminal Sale of a Controlled Substance in the Third Degree. Defendant was acquitted of first-degree and second-degree conspiracy (A. 32, 157-58). On December 17, 2003, for sentencing. Based on defendant appeared before the court defendant's prior violent felony conviction for third-degree criminal possession of a weapon, the court adj udicated defendant a second felony offender, sentenced him to an indeterminate prison term of five to ten years on each 8 of the five drug sale counts, and ordered all those terms to run consecuti vely to each other and concurrently with an indeterminate prison term of three and one-half to seven years on the conspiracy count (A. 32, 106-07, 122). When imposing sentence, the court noted that: (1) the drug-selling acti vi ty in the Cypress Hills Houses had been a nightmare for the residents of that development and had brought violence to the community; (2) defendant had had a leadership position in the drug operation, and he had not been just a "hand-to-hand seller," but rather, had been going out of state to get supplies for the drug selling; (3) defendant had a prior gun conviction for which he had received a lenient sentence of probation, only to have absconded from probation; and (4) defendant was unwilling to take responsibility for his criminal activity (A. 119-22). Defendant appealed from his judgment of conviction. By a decision and order dated November 8, 2006, the Appellate Di vision, Second Department, held that the evidence was legally insufficient to support the verdict for the drug sale count relating to the June 17, 2002 sale of heroin by Charles Jones, and modified the judgment by dismissing that count and vacating the sentence thereon. People v. Norris, 34 A.D.3d 500 (2d Dep't 2006) . The Appellate Division unanimously affirmed the judgment in all other respects, and, inter alia, explicitly ruled that defendant's sentence was not excessive. Id. at 500-01. On 9 January 12, 2007, defendant's application for leave to appeal to this Court was denied. (Graffeo, J.). People v. Norris, 8 N.Y.3d 845 (2007) The Motion for Resentencing Defendant's Motion By papers dated November 24, 2010, defendant, represented by counsel, moved the Supreme Court, Kings County, pursuant to the resentencing provision of the 2009 2009 Drug N. Y. Laws 160, Law Reform Act 168("DLRA" ) (ch. 56, Pt. AA, § 9, (codified at Criminal Procedure Law section 440.46)), for an order vacating his indeterminate sentences of five to ten years' imprisonment on the four drug-sale convictions and resentencing him to determinate sentences in accordance with Penal Law sections 60.04 and 70.70 (A. 58). In the motion, defendant argued that he should be resentenced because his institutional record was positive (A. 61-62, 69-71). Defendant noted that the new determinate sentencing range applicable to him would be the range for a second felony drug offender with a prior violent felony conviction -- i. e., six to fifteen years' imprisonment, followed by one and one-half to three years' post-release supervision (A. 66, 70). Defendant argued that, although the court had originally sentenced him to consecutive prison terms, in light of his efforts at rehabilitation, the court should 10 resentence him to "concurrent terms at the low end of the available sentencing range" (A. 70-71). The People's Response By papers dated January 28, 2011, the People opposed defendant's motion to be resentenced (A. 152, 163). The People argued that, in light of defendant's violent criminal history -- which included a prior violent felony conviction for third- degree criminal possession of a weapon -- and his leadership role in the A-Team, substantial justice dictated that defendant's motion be denied. The People also argued that, if the court did decide to resentence defendant, the court could not change the consecuti ve relationship of the original sentences, and cited People v. Acevedo, 14 N.Y.3d 828 (2010); People v. Vaughan, 62 A.D.3d 122, 129 (2d Dep't 2009); and People v. Khan, 60 A.D.3d 967 (2d Dep't 2009), as authority for that position (A. 153-62, 168-72). Defendant's Reply By papers dated February 3, 2011, defendant argued that the court could resentence defendant to concurrent sentences because the cases that the People had cited applied only to the relationship between a sentence on a drug offense and a sentence on a non-drug offense (A. 174-76). According to defendant, those cases did not prohibita court from changing the 11 concurrent/consecutive relationship between sentences on drug offenses when resentencing a defendant (A. 175-76). Defendant also reiterated that resentencing was warranted in light of his participation in rehabili tati ve and vocational programs while incarcerated, his lack of prior violent felony convictions other than his conviction for third-degree weapon possession, and the fact that no one was inj ured during defendant's commission of the prior weapon offense (A. 176-78). The Court's Decision On March 1, 2011, defendant, represented by counsel, appeared before Justice Alan Marrus in Supreme Court, Kings County, for a DLRA resentencing hearing (A. 51-57). By decision and order dated March 1, 2011, the court granted defendant's motion, and proposed to resentence him, as a second felony drug offender with a prior violent felony conviction, to the minimum possible prison term of six years on each of the drug sale counts followed by three years of post-release supervision, for an aggregate sentence of twenty-four years' imprisonment (A. 44-49).4 The court concluded that because the Drug Law Reform Acts did not authorize a resentencing court to change the original consecuti ve relationship between sentences, defendant's new 4 Although 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 sentences on the four drug sale counts would still run consecutively to each other (A. 47, 53-54). Defendant argued that although the proposed resentence would advance his maximum release date from September 2032 to April 2023, it would subject him to a possibly longer term of imprisonment, because the proposed resentence would render defendant ineligible for supplemental merit release in May 2012, ineligible for parole in September 2017, and ineligible for conditional release in September 2022 (A. 52-53). Defendant rej ected the court's proposed resentence and expressed his intent to file an appeal (A. 56). The Appeal to the Appellate Division Defendant appealed to the Appellate Division, Second Department, from the March 1, 2011 order for proposed resentence (A. 4-21). Defendant argued that since the originally-imposed drug sentences would be vacated when the court imposed new sentences under C.P.L. § 440.46, there was no reason that the court could not also revisit the relationship of those sentences to one another during that process, and that the ameliorative purpose of the 2009 DLRA would be frustrated in defendant's case if the resentencing court were not permitted to run the new determinate sentences concurrently (A. 19-20). Defendant distinguished Acevedo and Vaughan, upon which the lower court 13 had relied, on the ground that those cases stood only for the proposition that resentencing courts did not have the authority to alter the consecutive relationship between a sentence that was subj ect to DLRA resentencing and a sentence that was not subject to DLRA resentencing (A. 17-18). In response, the People, relying on 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. 37-38). In support of their position, the People also cited People v. Highsmith, 79 A. D. 3d 1741 (4th Dep't 2010), which held that even when resentencing a defendant pursuant to the DLRA on multiple drug convictions, the resentencing court did not have authority to redetermine the issue of whether the sentences on those drug counts should run consecutively to, or concurrently with, each other (A. 38). The People noted that, even without revisiting the consecutive relationship of the sentences, the court's proposed resentences, al though they did not offer defendant the precise benefit that he might have wished, would still provide defendant with some benefit, in that they would reduce his maximum aggregate prison term (A . 3 9) . By decision and order dated December 20, 2011, the Appellate Division affirmed the March 1, 2011 order of proposed resentence (A. 2-3). People v. Norris, 90 A. D. 3d 955 (2d Dep't 14 2011) . The Appellate Division, citing Acevedo, Vaughan, and Highsmi th, among other cases, 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 terms run concurrently, when the original indeterminate terms had been ordered to run consecutively (A. 2-3). 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) 15 ARGUMENT 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 J, 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)J). With the 2009 DLRA, the Legislature, building on the 2004 16 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 17-18), 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 1462,1474-75; 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. 17 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 four 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 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, given 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.5 See P.L. § 70.25(1) (when imposing mul tiple sentences of imprisonment, court may order that the 5 The court also ordered that the sentences on defendant's drug sale convictions run concurrently with his sentence on his conspiracy conviction. 18 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. The court based its sentencing decision on several factors, including: the negative impact that defendant's drug selling acti vi ty had had on the community, his leadership position in the drug-selling operation, his failure to take responsibility for his conduct, and the fact that he had previously been convicted of gun possession and had violated his lenient sentence of probation on that conviction. 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. 6 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 6 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, concluded that defendant's sentence of consecutive prison terms was not excessive, and it declined to exercise its authority to reduce defendant's sentence. Norris, 34 A.D.3d at 501. 19 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 2009 Drug Law Reform Act, but that authority, 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 sentence of imprisonment only with to replace an indeterminate sentence ofa determinate imprisonment. See C.P.L. § 440.46(1). A court's authority to determine the consecutive 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. 2 5 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 20 concurrent/ consecuti ve 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), lv. granted, 13 N.Y.3d 797, appeal dismissed, 13 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 20), 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 authority 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 21 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. 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 consecuti ve 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 22 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 al teration 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 authority, 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)). 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 felony drug conviction, did not also possess the authority to modify the originally imposed 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 consecutively 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 23 broader powers with regard to determining a consecuti ve 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 18). However, as noted above (see supra at 18-23), 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 24 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).7 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 7 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. 25 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 resentencing, class B felony drug may not also apply for offender, applying for resentencing regarding a 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. 26 § 70.70 (3) (c), (d) J), 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 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.(70J." 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 27 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 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 authori ty to alter the concurrent/ consecuti ve 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" J ) . 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 28 easily clarified its intent in 2011, when it amended C.P.L. § 440.46. In 2010, when confronted with the same issue as 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. Highsmith, 79 A.D.3d 1741, 1742 (4th Dep't 2010), lv. 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 29 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 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 30 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" (citing, 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 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 exclude 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 23-28), 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. 31 The Drug Law Reform Acts of 2004, 2005, 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. Collectively, the DLRAs drew a sharp distinction between, on the one hand, drug offenders with no felony criminal records or only non-violent criminal records, and, on the other hand, drug offenders with records of violent felony convictions. One consequence of this legislatively-drawn distinction is that a resentencing court, without changing any originally imposed consecutive sentences to concurrent sentences, may dramatically reduce the sentence of an offender with a non-violent criminal record, but may provide only more moderate relief to an eligible offender with a violent criminal record. This disparity in treatment is entirely in keeping with the purpose of the DLRAs, and thus, furnishes no basis for this Court to disturb the Legislature's carefully calibrated resentencing scheme. The 2004 DLRA and 2009 DLRA substantially reduced the minimum and maximum prison terms applicable to most (but not all) felony drug offenders, thereby broadening a court's discretion to show leniency when sentencing non-violent drug 32 offenders.8 However, the 2004, 2005, and 2009 DLRAs all treated drug offenders with a prior history of violence, such as defendant in this case, differently. Although the 2004 DLRA's general purpose was to reduce sentences for drug offenders, the 2004 Act 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 in this regard, '''the Act clearly distinguish (ed) "non-violent" drug offenders from offenders with a violent felony history.'" People v. Yusuf, 19 N.Y.3d 314, 320 (2012) (quoting People v. Yusuf, 2009 N.Y. Slip Op. 50311U (Sup. Ct. N.Y. Cty., Feb. 26, 2009), the Supreme Court's decision in that case). With the enactment of the 2004 DLRA, the Legislature 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 8 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. 33 felony, plainly conveying the Legislature's intent that drug offenders with a non-violent history should be afforded greater leniency. Dais, 19 N.Y.3d at 344; see P.L. former § 70.70(3), (4) (2005); P.L. § 70.71 (3), (4). The 2009 DLRA reinforced the 2004 Legislature's determination that drug offenders with non-violent criminal histories not only should be exposed to reduced sentences, but also should be treated less harshly than drug offenders with violent histories, such as defendant in this case. Under the 2009 DLRA, the minimum determinate prison terms for class Band class C second felony drug offenders were lowered (2009 DLRA, ch. 56, pt. AA, § 23, 2009 N.Y. Laws at 174 (amending P.L. § 70. 70 (3) J ), while the minimum determinate prison terms for class B and class C second felony drug offenders with a prior violent felony conviction remained undisturbed (see P.L. § 70.70(4J). See Dais, 19 N.Y.3d at 345 (the ameliorative purpose of the 2009 DLRA is "to ensure that second felony drug offenders with prior non-violent felonies receive potentially more lenient sentences than those who have a history of violent felonies") . The Legislature's decision to treat offenders with prior violent histories differently from those without such histories, as reflected in the 2004 DLRA and the 2009 DLRA changes to the determinate sentencing terms, is further evident in the 34 provisions of C.P.L. § 440.46 itself. 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 prison terms under the old indeterminate sentencing scheme, which had often mandated inordinately harsh sentences. However, that ameliorative goal did not encompass many drug offenders with violent pasts. Section 440.46 specifically excludes from resentencing eligibility those offenders who have ever been adjudicated second violent felony offenders (see C. P. L. § 440.46 (5 J (b J) and those who are serving a sentence on a conviction, or have a predicate felony conviction, for a violent felony offense if that conviction was obtained wi thin ten years of the application for resentencing relief (see C.P.L. § 440.46(5J (aJ). Section 440.46' s exclusion of offenders with violent criminal histories is even broader than the eligibili ty exclusion in the 2005 DLRA. Under the 2005 DLRA, only class A- II felony drug offenders who were currently serving a sentence for a violent felony offense resentencing relief. See 2005 were ineligible to ch. 643, § 1, apply for 2005 N.Y.DLRA, 35 Laws 1581 (to apply for relief, defendant must meet eligibility requirements of section 803 (1 J (dJ of the Correction Law) .9 It is against this backdrop that one must consider the Legislature's decision not to permit a court to alter the consecutive relationship between sentences, which, as a matter of discretion, the original sentencing court had previously ordered. 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), that court may exercise its discretion to reduce significantly the defendant's aggregate prison term, even wi thout any change in the consecutive relationship between the sentences, by simply replacing each indeterminate prison sentence with the minimum possible determinate sentence. 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 9 Section 803 (1) (d) of the Correction Law excludes from meri t time allowance eligibility any person who, inter alia, is serving a sentence imposed for a violent felony offense. 36 felony drug offender under the new scheme (P. L. § 70.70(2) (b) (i)J), for an aggregate sentence of two years' imprisonment. 10 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)J (2002J), 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) J), for an aggregate sentence of just four years' imprisonment. 11 10 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 (2J (bJ, (3J (bJ). 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 J (emphasis addedJ), thus rendering first felony offenders who were originally sentenced to the minimum term ineligible to apply for resentencing. 11 Non-violent second felony offenders who originally recei ved 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 consecuti ve relationship between the sentences. 37 Thus, the resentencing court has the ability to extend very great leniency to an eligible and deserving drug offender wi thout a history of violence, notwithstanding the resentencing court's inability to also alter the consecutive relationship of the sentences. By contrast, in a case where 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 Penal Law, the court's ability to reduce the defendant's aggregate sentence, wi thout any change to the consecutive relationship between the indi vidual prison terms, is not as great. For example, assume the original sentencing court had imposed on such a defendant two consecutive sentences of four and one-half to nine years' imprisonment, for an aggregate sentence of nine to eighteen years' imprisonment. By imposing two consecutive sentences of six years' imprisonment, which, under the new sentencing scheme, is the lowest permissible prison term for a second felony drug offender with a prior violent felony conviction (P. L. § 70.70(4) (b) (i)), the resentencing court 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. However, if the defendant with a prior violent conviction had originally recei ved a much harsher penalty than two consecutive terms of 38 four and one-half to nine years' imprisonment (e.g. , two consecutive terms of seven to fourteen years' imprisonment) and the aggregate indeterminate sentence was not otherwise reduced by the "cap" provisions of P.L. § 70.30(1), 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. In short, a resentencing court may still extend some benefit and sometimes a substantial benefit to a predicate felon with a violent history, but that benefit is less than that which a resentencing court may afford to a predicate felon wi thout a violent history. This disparate treatment between felony drug offenders with prior violent convictions and those wi thout 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. In this case, the court proposed to resentence defendant to four consecutive determinate prison terms of six years, for an aggregate prison sentence of twenty-four years. This sentence was far less than the aggregate maximum prison sentence of forty years originally imposed by the court (as modified by the Appellate Division). By operation of law, that original forty- 39 year term had already been reduced to thirty years by the "cap" provision of section 70.30(1) (e) (i) of the Penal Law. The proposed twenty-four years was still less than this "cap"- adj usted thirty-year term. While defendant is correct in stating that the proposed resentence is higher than the minimum term of the indeterminate sentence that he is now serving and therefore would not afford him the possibility of earlier merit or conditional release (Brief for Defendant-Appellant at 28-29), that result in this case does not compel the conclusion that the Legislative goals of the 2009 DLRA and C.P.L. § 440.46 have been frustrated. As explained above, the Legislature never intended that drug offenders wi th prior violent histories, like defendant, benefit from the amelioration of the sentencing structure in the same way or to the same extent as drug offenders without such pasts. 12 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 1474-75; 2005 DLRA, ch. 643, § 1,2005 12 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 28 n. 5), 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 one-seventh "merit time" off his aggregate determinate sentence (see Correct. L. § 803 (2-a) (dJ), in addition to one-seventh "good time" off of the aggregate determinate sentence (see Correct. L. § 803 (2) (dJ ), so that he would be eligible for release after serving five-sevenths of the proposed 24-year aggregate prison term. 40 N.Y. Laws at 1581-82; 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 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 told him the reasons that it had decided to impose consecutive sentences of fi ve to ten years' imprisonment on his drug sale convictions: First, the narcotics conspiracy in which defendant participated had brought violence to the Cypress Hills Houses and forced the residents to "endure the nightmare of drug selling going on all around them" (A. 119). Second, defendant, who sold drugs on numerous occasions, was not just a "hand-to-hand" seller; rather, defendant had had a "leadership position" and gone out of state to get supplies (A. 120). Third, defendant had a prior conviction on a gun charge for which he had received a "break" and been given probation, only never to report to probation and, instead, to engage in drug selling (A. 120-21). Fourth, when 41 interviewed by the Department of Probation for the pre- sentencing report, defendant had essentially denied involvement in the case and had refused to hold himself accountable for his actions (A. 120-21). The court summarized: "I have to give you a sentence now that's appropriate for someone in your category, gi ven your record and involvement that you had in this case and your attitude" (A. 121-22). All of the reasons articulated by the court carry as much weight today as they did when defendant was sentenced in 2003. 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 mitigate any excessively harsh result from consecutive sentences for all types of offenses. Defendant in this case substantially benefi tted from the cap provision in that his aggregate indeterminate prison sentence of twenty to forty years was 42 reduced to fifteen to thirty years. 13 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. 13 Of course, and as previously noted (see supra at 19 n. 6), 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. 43 CONCLUSION THE ORDER OF THE APPELLATE DIVISION, AFFIRMING THE ORDER OF PROPOSED RESENTENCE, SHOULD BE AFFIRMED. Dated: Brooklyn, New York August 17, 2012 LEONARD JOBLOVE VICTOR BARALL CAROLINE R. DONHAUSER Assistant District Attorneys of Counsel Respectfully submitted, CHARLES J. HYNES District Attorney Kings County 44