New York Criminal Lawyer Blog
The Defendant in this case was arrested for a drug possession crime which involves selling and possessing prohibited substance in the third degree on two different occasions. He was convicted on both instances but was given parole thereafter.
While on parole, defendant was once again arrested for selling prohibited drugs which is also a direct infraction covered under criminal law. This time he pleaded guilty to Attempted Criminal Sale of a Controlled Substance in the third degree, a class C felony. He apparently failed to appear in court for sentencing. Hence, a bench warrant for his appearance was issued. Due to his prolonged absence, his warrant was served more than two (2) years later. Upon service of warrant, the court convicted the defendant and sentenced him to be imprisoned for three (3) to seven (7) years.
On his own, the defendant moved for resentencing which is an action, given the requirements of law, granted under the Drug Law Reform Act (DLRA). Defendant’s motion was subsequently denied and the court held that the 2009 DLRA did not authorize the resentencing of Class C felony drug offenders.
Apart from various drug crimes abovementioned, the defendant was also convicted of Criminal Possession of Controlled Substance in the Fifth Degree in 1990 and Attempted Criminal Sale of Controlled Substance in Third Degree 1991.In addition, the defendant has several misdemeanor convictions which involve Possession of Burglar’s Tools and Possession of Stolen Property.
As a defense, defendant’s counsel asserts that his client has not been involved to any disciplinary infractions in the last nine years in which he has been incarcerated. The Defendant has been a “model inmate” who has engaged in vocational training; earned the right to work outside the facility and taken advantage of every programmatic opportunity he has been provided. Mr. Nieves has become a “Group Leader” in a number of vocational work assignments. Defendant’s counsel, the Office of the Appellate Defender, indicates that it will assist Mr. Nieves through its social work unit if he were to be released.
The people reiterate their opposition to defendant’s motion. For them, defendant’s behavior while not incarcerated has been significantly more problematic than his behavior in prison: He has been involved on different crimes; He’s been arrested yearly; five (5) times involvement in narcotic felony and during his last conviction for sale of narcotics, he filed a motion for resentencing, a day after such, he was arrested for petit larceny.
The Court held that the Defendant is not statutorily eligible for resentencing. The Court holds that Defendant’s instant Class B felony sentence has already been completed and that his subsequent sentence for a Class C felony drug offense not covered by the 2009 DLRA did not serve to extend the period of his instant Class B felony sentence beyond its term. Defendant’s motion is therefore denied.
However, the court also holds that the Defendant is statutorily ineligible for resentencing for a related reason. The Defendant’s sentence for his instant crime, which was committed in 1994, expired in 2008, prior to the enactment of the 2009 DLRA. The only argument that the Defendant continues to be eligible for resentencing arises because the sentence he received for his narcotics felony conviction in 2000, when added to the sentence for the instant crime, has extended his aggregate sentence until 2015. The question here is whether the enlargement of Defendant’s initial sentence which arose from his new sentence means that the Defendant continues to be eligible for resentencing even though he would no longer be subject to any sentence had he not committed a new crime and received a new sentence in 2003. In the Court’s view, the Defendant’s 2000 conviction cannot serve to extend the period of his sentence for his 1997 conviction and thereby make him eligible for resentencing.
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