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

Brief

N.Y.February 7, 2013

To be argued by KATHLEEN E. WHOOLEY (15 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ELBERT 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 Kathleen E. Whooley Of Counsel May 11, 2012 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Appellant’s Background and the Instant Case . . . . . . . . . . . . . . . . . . . . 7 Appellant’s Institutional Record and Prospects on Release . . . . . . . . . . 8 The DLRA 3 Motion and Resentencing . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Appellate Division’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 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 HAD ORIGINALLY ORDERED THAT THE VACATED SENTENCES BE SERVED CONSECUTIVELY, SINCE EACH COUNT WAS A DLRA-ELIGIBLE OFFENSE, AND PRECLUDING CONCURRENT SENTENCING WOULD FRUSTRATE THE AMELIORATIVE PURPOSE OF THE DRUG LAW REFORM ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 i INDEX TO APPENDIX (Bound Separately) Order Granting Leave to Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. 1 Appellate Division Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. 2 Brief for Defendant-Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. 4 Brief for Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. 22 Order for Proposed Resentence Purusuant to C.P.L. § 440.46 . . . . . . . . . A. 44 Transcript of March 1, 2011, Resentencing Hearing . . . . . . . . . . . . . . . . . . A. 50 Notice of Motion for DLRA Resentencing and accompanying Affirmation in Support and Memorandum of Law (with exhibits) . . . . . . . . . . . . . . . . . . . . . . . . . . A. 58 Affirmation in Response to Motion for Resentencing (with exhibits) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. 152 Affirmation in Reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. 174 TABLE OF AUTHORITIES CASES Matter of Murray v. Goord, 1 N.Y.3d 29 (2003) . . . . . . . . . . . . . . . . . . . . . . . 20 Mlodozeniec v. Worthington Corp., 9 A.D.2d 21 (3d Dept. 1959) . . . . . . . . 23 People v. Acevedo, 14 N.Y.3d 828 (2010) . . . . . . . . . . 4, 6, 9, 13, 18, 19, 20, 21 People v. Carpenter, 19 A.D.3d 730 (3d Dept. 2005) . . . . . . . . . . . . . . . . . . . 21 People v. Khan, 60 A.D.3d 967 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . 9, 19 People v. Lexington Sixty-First Assoc., 38 N.Y.2d 307 (1976) . . . . . . . . . . . . 23 People v. Mills, 11 N.Y.3d 527 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21, 23 People v. Norris, 34 A.D.3d 501 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . 2, 8 ii CASES (con’d) People v. Oliver, 1 N.Y.152 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 23 People v. Paulin, 17 N.Y.3d 238 (2011) . . . . . . . . . . . . . . . . . . . . . . 3, 13, 14, 26 People v. Ramirez, 89 N.Y.2d 444, 450 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Sosa, 18 N.Y.3d 436 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 22 People v. Utsey, 7 N.Y.3d 398, 402 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Vaughan, 62 A.D.3d 122 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . 9, 19 People v. Yannicelli, 40 N.Y.2d 598 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 STATUTES 2004 N.Y. Laws, ch. 738, § 23 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17 2004, N.Y. Laws, ch. 738, § 41a(d–1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 N.Y. Criminal Procedure Law § 440.46 . . . . . . . . . . . . . . 1, 6, 12, 14, 15, 17, 26 N.Y. Penal Law § 70.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 25 N.Y. Penal Law § 70.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 N.Y. Penal Law § 70.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 N.Y. Penal Law § 70.06 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 25 N.Y. Penal Law § 70.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 N.Y. Penal Law § 70.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 N.Y. Penal Law § 70.70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 24, 25 N.Y. Penal Law § 70.71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 N.Y. Penal Law § 70.80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 iii STATUTES (con’d) N.Y. Statutes, § 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 N.Y. Statutes § 321 (McKinney 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 23 OTHER AUTHORITIES McKinney, Practice Commentary, P.L. § 60.04, p. 109 (2009) . . . . . . . . . . . . 17 McKinney, Practice Commentaries, N.Y. Statutes § 321 (2012) . . . . . . . . . . 23 New York State Assembly Memorandum in Support of Legislation, p. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 iv COURT OF APPEALS STATE OF NEW YORK ________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ELBERT NORRIS, Defendant-Appellant. ________________________________________ PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, granted February 29, 2012 (A. 1),1 appellant Elbert Norris appeals from an order of the Appellate Division, Second Department, entered on December 20, 2011. On March 1, 2011, Justice Alan D. Marrus, Supreme Court, Kings County, offered to resentence appellant under the 2009 Drug Law Reform Act (C.P.L. § 440.46) to four determinate prison terms of 6 years, to be followed by 3 years of post-release supervision, on his 2003 conviction of four counts of criminal sale of a controlled substance in the third degree (A. 48). Since appellant’s sentence had originally been run consecutively, the court concluded that it was constrained 1 Numbers preceded by “A.” refer to the appendix to this brief. 1 to continue running the terms consecutively (A. 47-48). Appellant declined to accept the new aggregate 24-year sentence (A. 53). On December 20, 2011, the Appellate Division, Second Department affirmed the proposed order of resentencing. People v. Norris, 90 A.D.3d 955 (2d Dept. 2011)(A. 2-3).2 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 and appellant is currently incarcerated pursuant to his conviction. This Court has jurisdiction pursuant to C.P.L. § 450.90(1) to entertain this appeal and review appellant’s claim that the court had the authority to run his new determinate prison terms concurrently. The issue was preserved in defense counsel’s reply affirmation in the resentencing court (A. 174-176), by counsel’s oral argument before that court (A. 52-55), and by the court’s written decision issued in connection with appellant’s resentencing (A. 44-49). 2 Appellant’s original conviction, on December 15, 2003, had previously been modified on direct appeal to vacate one count of criminal sale of a controlled substance in the third degree; the conviction was otherwise affirmed. People v. Norris, 34 A.D.3d 500 (2d Dept. 2006), lv. denied 8 N.Y.3d 848 (2007). 2 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 vacated sentences be served consecutively, since each count was a DLRA-eligible offense, and precluding concurrent sentencing would frustrate the ameliorative purpose of the Drug Law Reform Acts. 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 3 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. 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, 4 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 Division’ decision and remand the case to Supreme Court for resentencing unencumbered by Acevedo. STATEMENT OF FACTS Introduction Appellant was convicted, after a jury trial, of five counts of criminal sale of a controlled substance in the third degree. On December 15, 2003, he was sentenced as a second felony offender to consecutive indeterminate prison terms of 5 to 10 years on each count. On appeal, his conviction of one of the five counts was vacated. By operation of law, his sentence on the remaining four counts was deemed to be 15 to 30 years. P.L. § 70.30(1)(e)(i). Effective October 7, 2009, the New York State Legislature enacted the 2009 Drug Law Reform Act (“DLRA 3”), the third such reform bill passed in recent years to mitigate the harsh penalties of the Rockefeller program, and the 5 first to afford a resentencing opportunity to inmates convicted of Class B drug felonies. In a DLRA 3 motion filed in November of 2010, appellant argued that he was eligible for resentencing and that, in light of his significant efforts at rehabilitation over the ensuing 8 years, he should be resentenced to concurrent terms at the low end of the newly available sentencing range. In response to the People’s argument that the court was without power to run the sentences concurrently, appellant noted that People v. Acevedo, 14 N.Y.3d 828 (2010), and People v. Vaughn, 62 A.D.3d 122 (2d Dept. 2009), held only that resentencing courts could not alter the relationship of the resentenced counts to other non- drug counts not subject to resentencing. Appellant argued that extending that rule to prevent a court from revisiting the relationship that counts subject to resentencing have to one another would frustrate the ameliorative purpose of the DLRA laws, which is to reduce harsh sentences. In a decision dated March 1, 2011, the court offered to vacate appellant’s existing sentence and impose four new determinate prison terms of 6 years, but concluded that it was constrained to continue running the terms consecutively. Appellant declined to accept the new aggregate 24-year sentence. On appeal, the Appellate Division affirmed, holding that the resentencing court lacked the authority under C.P.L. § 440.46 to order that the new determinate 6 terms be run concurrently when the original indeterminate terms were ordered to run consecutively. Appellant’s Background and the Instant Case Prior to the instant case, appellant had one felony conviction and two misdemeanor convictions. On June 14, 2000, he pled guilty to criminal possession of a weapon in the third degree (subsection 4), a Class D violent felony, and criminal possession of a weapon in the fourth degree, a Class A misdemeanor. On November 21, 2000, he pled guilty to criminal possession of a controlled substance in the seventh degree, a Class A misdemeanor. (A. 60-61, 89-101). Appellant was arrested in the instant case on September 18, 2002, in connection with a drug selling enterprise operating in and around Brooklyn’s Cypress Hill Housing Development. He was convicted, after a jury trial, of five counts of criminal sale of a controlled substance in the third degree and one count of conspiracy in the third degree. On December 15, 2003, he was sentenced as a second felony offender to consecutive indeterminate prison terms of 5 to 10 7 years on each drug count, and a concurrent indeterminate term of 3 1/2 to 7 years on the conspiracy count.3 (A. 61, 73, 75-76, 106, 122). On appeal, appellant’s conviction of one of the five drug counts was vacated. The conviction was otherwise affirmed. People v. Norris, 34 A.D.3d 500 (2d Dept. 2006); lv. denied 8 N.Y.3d 848 (2007). Appellant’s Institutional Record and Prospects on Release Appellant has been in the custody of the Department of Corrections and Community Supervision (“DOCCS”) since December 2003. During that time, he has received only four disciplinary citations, all at the relatively minor Tier II level. Moreover, he has not received a single citation since December 2008. (A. 62, 131). While incarcerated, appellant has taken significant steps to improve himself. In October 2008, he successfully completed the Alcohol and Substance Abuse Treatment program (“ASAT”) offered by DOCCS. In addition, he enrolled in the Pre-GED and GED courses offered by DOCCS, and obtained his High School Equivalency Diploma in May 2005. (A. 62-63, 132-137). Appellant also received vocational training in masonry and later worked as a Teacher’s Aide in that program. As a result of this training, he is now qualified 3 Appellant did not seek resentencing on his conspiracy conviction. 8 to seek employment as a Concrete Block Mason or a Bricklayer Helper. (A. 132- 134, 141-142). Appellant has been given a standing offer of employment by Ken Shaw, the Vice President of ACS Telecommunications and a friend of appellant’s uncle. His duties with ACS would include data entry, copying and filing documents, stocking and inventorying equipment, and light janitorial duties. (A. 151). The DLRA 3 Motion and Resentencing By motion dated November 24, 2010, appellant sought resentencing under DLRA 3 (A. 58-151). In papers dated January 28, 2011, the People opposed appellant’s motion. Alternatively, the People argued that, should the court decide to resentence appellant, the new prison terms must be run consecutively, citing People v. Acevedo, 14 N.Y.3d 828 (2010), People v. Vaughan, 62 A.D.3d 122 (2d Dept. 2009), and People v. Khan, 60 A.D.3d 967 (2d Dept. 2009). (A. 152- 173). Appellant filed a reply on February 3, 2011, arguing, inter alia, that the cases cited by the People stood only for the proposition that a resentencing court could not alter the relationship of resentenced drug counts to other non-drug counts not subject to resentencing, and that nothing in those cases prevented a resentencing court from revisiting the relationship resentenced drug counts have 9 to one another. Appellant further argued that adopting the People’s position would frustrate the ameliorative purpose of the DLRA laws, which is to reduce harsh sentences. (A. 174-178). On March 1, 2011, when the parties appeared in court, Justice Marrus handed down a written order for proposed resentencing, in which he agreed to grant appellant’s motion, but concluded that “the Drug Law Reform Acts do not authorize a resentencing court to modify a consecutive sentence to concurrent.” Accordingly, the court proposed consecutive 6-year prison terms on each drug count, for an aggregate sentence of 24-years’ imprisonment, followed by 3 years’ post-release supervision. (A. 44–49). Upon being informed of the court’s proposed resentence, defense counsel reiterated that “it’s our position that [Acevedo, Khan, and Vaughan] are not on point because they say nothing about running the drug counts consecutive with respect to each other” (A. 55). Counsel also noted that the proposed 24-year sentence, while slightly reducing appellant’s maximum sentence, would nevertheless likely result in appellant serving significantly more time in prison: 10 Were he to accept your Honor’s proposed resentence, he would lose his opportunity for supplemental merit release and merit release and parole. His earliest release date would then be his [new] conditional release date in April of 2023. So it could potentially be almost eleven years of additional time depending on when Mr. Norris is released under his current sentence (A. 52-53). Finding the “possible benefit of taking a few years off [his] maximum” not worth the loss of “the potential for earlier release,” appellant declined the proposed offer and indicated his intention to appeal (A. 53). The Appellate Division’s Decision Before the Appellate Division, Second Department appellant renewed his contention that the resentencing court had the authority to run his new determinate prison terms concurrently because the only sentences at issue were for Class B felony drug offenses, and that Acevedo and Vaughn stood only for the proposition that courts cannot alter the consecutive versus concurrent nature of sentences that are not subject to DLRA resentencing (A. 17–19). The People argued that Acevedo and Vaughn were controlling because nothing in the language of either decision implied “a distinction between consecutive to another drug sentence and consecutive to a non-drug sentence” (A. 38). 11 The Appellate Division held that the resentencing court lacked the authority under C.P.L. § 440.46 to order, upon resentence, that determinate terms run concurrently when the original indeterminate terms were ordered to run consecutively (A. 2-3). On February 29, 2012, Hon. Victoria A. Graffeo granted appellant permission to appeal to this Court (A. 1). 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 VACATED SENTENCES BE SERVED CONSECUTIVELY, SINCE 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 12 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 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. 13 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. 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.4 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 4 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). 14 .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.” L. 2004, ch. 738, § 23, 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). 15 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: (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 16 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 an order vacating the sentence originally imposed and imposing a determinate sentence of imprisonment authorized to be imposed under the new law. L. 2004, 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. 17 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 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 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 appellant’s motion and informed him that, upon vacating his sentence, it would impose four 6-year determinate prison terms, but ruled that it was constrained to order that those terms be served consecutively, citing Acevedo, supra, 14 N.Y.3d at 828, People 18 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 24-year sentence – which would have resulted in a much later earliest release date – was clearly antithetical to the purpose of resentencing. 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 19 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. On appeal to this Court, Acevedo cited to 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 20 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”). 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 21 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. 38), 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 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 22 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”). 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 People v. Mills, 11 N.Y.3d at 535-536 (Legislature intended that 23 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 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. 24 §§ 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, 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 25 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. 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 L. 2004, 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 26 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. Yet 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, 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 27 now with the dramatic change in philosophy 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. Under Mr. Norris’s four consecutive indeterminate sentences, his current conditional release date is September 16, 2022 (20 years in prison). In contrast, the court’s proposal of four consecutive 6-year terms would result in a later conditional release date, pushing it back to April of 2023, while also eliminating his opportunities for supplemental merit release in May of 2012 and parole in September of 2017 (A. 52-53). Apart from decreasing the maximum expiration date from 2032 to 2026,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.5 This effective increase 5 In essence, under the court’s proposal, Mr. Norris would be giving up a possible 2012 supplemental merit release, a possible 2017 release on parole, as well as his 2022 conditional release date, which would be approximately 10 ½ (continued...) 28 in the length of incarceration 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: Kathleen E. Whooley Of Counsel May 11, 2012 5(...continued) years, 5 ½ years, and 7 months earlier than the “new” 2023 conditional release date, respectively, in exchange for a guarantee of release upon serving his maximum term in 2026 rather than 2032. But given that three years of post- release supervision would follow a 2026 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. 29