New York Criminal Lawyer Blog
In 1997, officers assigned to the New York City Police Department’s Narcotics Division were conducting a short-term undercover operation for the purchase of heroin. A New York Criminal Lawyer said that at midnight in the area of Bronx County, the accused, while acting with two other male individuals, sold a quantity of heroin to an undercover police officer. The accused was arrested and charged by indictment with criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree. More than a year after the undercover operation, a jury convicted the accused of both offenses.
The court adjudicated the accused, a second felony offender and entered judgment against him, imposing two indeterminate concurrent terms of twenty-two years imprisonment with a mandatory minimum period of eleven years. The basis of the adjudication was a judgment of conviction for attempted robbery, a class D violent felony offense.
The Appellate Division affirmed the accused man’s conviction, but modified his sentence to an indeterminate term of twelve years imprisonment with a mandatory minimum period of six years. The Court of Appeals denied the accused man’s application for leave to appeal.
Subsequently, the accused obtained several additional felony convictions. He was convicted of two counts of bail jumping and sentenced to two indeterminate concurrent terms of six years imprisonment with a mandatory minimum period of three years.
Another judgment of conviction was entered against the accused for robbery, a class C violent felony offense, and criminal sale of a controlled substance. The court imposed two concurrent determinate terms of imprisonment, five years and four years respectively. While incarcerated, the accused obtained yet another felony conviction for promoting prison contraband. A sentence of three years imprisonment with a mandatory minimum period of eighteen months was imposed.
The Drug Law Reform Act was enacted in response to the sentencing policies under New York’s Rockefeller Drug Laws. A Queens Criminal Lawyer said such reform was intended to ameliorate the sentences imposed on individuals who had committed Class A–I and Class A–II drug offenses. The Legislature enacted the Drug Law Reform Act, which extended sentencing relief to those convicted of Class B, C, and D drug crime offenses. Under the Drug Law Reform Act, a qualified applicant convicted of a Class B drug crime offense is entitled to a reduced determinate sentence if he is in the custody of the Department of Correctional services; if he has been convicted of a class B felony offense as defined in the article of the Penal Law; if he committed the crime prior to January 13, 2005; if he is serving an indeterminate sentence with a maximum term of more than three years; and if he has not been convicted of an exclusion offense as defined in the Criminal Procedure Law.
The accused is currently in the custody of the New York State Department of Correctional Services and was convicted of criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance, both class B felonies. He committed crimes and is currently serving an indeterminate term of imprisonment with a maximum period of six years. The court finds, however, that the accused has been convicted of an exclusion offense as defined in the Criminal Procedure Law, thus rendering him ineligible for resentencing.
Initially, the court notes that the look-back period language, a crime for which the person was previously convicted within the preceding ten years, is far from clear and unambiguous. When considering the meaning of a statute that is less than clear and unambiguous, a court would ordinarily examine its legislative history.
As part of a series of statutory reforms designed to ameliorate the overly harsh punishments handed out to low level drug crime offenders under New York’s Rockefeller Drug Laws, the New York Legislature enacted the Drug Law Reform Act. The Legislature enacted the reforms because of the belief that low level drug crime offenders punishments outweighed their crimes and that research suggested better, more humane, less costly alternatives to incarceration existed. Considering the Drug Law Reform Act in its entirety, it is clear that its very spirit is to reduce the sentences of low level, nonviolent felony drug crime offenders. Therefore, it is appropriate to resolve any ambiguity in the language in favor of the more ameliorative, rather than the more punitive, construction.
The courts have generally not accepted an alternative interpretation of the Criminal Procedure Law. As such, the court finds no basis to depart from the reasoning and agrees that the natural reading of the Criminal Procedure Law requires the court to measure the look-back period from the date on which the resentencing application is filed. The accused does not have an exclusion offense.
The law defines a second violent felony offender as a person who stands convicted of a violent felony offense after having previously been subjected to a predicate violent felony conviction. A predicate violent felony conviction must have been a violent felony offense as, for which the sentence must have been imposed before commission of the present felony and not more than ten years before commission of the felony, subject to the tolling provision that exempts any period of time during which the accused was incarcerated.
The accused claims his past robbery conviction is not an exclusion offense because it did not precede his conviction on the instant drug crime offenses. Relying on the language contained in the Criminal Procedure Law that an exclusion offense is a crime for which the person was previously convicted within the preceding ten years, he argues that since the robbery occurred after the commission, conviction, and sentence on drug crime offense, it is not within the ten-year look-back period and, therefore, does not constitute an exclusion offense.
Notwithstanding that the District Attorney neither opposed nor addressed the accused man’s claim, the court disagrees.
Since the past judgment of conviction was obtained within ten years of the attempted robbery, the accused is a second violent felony offender. As such, the court finds that the past conviction is indeed an exclusion offense, thus rendering the accused ineligible for the Criminal Procedure Law relief.
The accused has an extensive criminal law violation history. Since his conviction for the drug crime offenses that are the subject of the application, the accused has obtained seven convictions, five of which are felonies. In addition to the past robbery conviction that rendered him a second violent felony offender, the accused was convicted of two counts of bail jumping, criminal sale of a controlled substance, and, while incarcerated, promoting prison contraband.
While in prison, the accused has accrued forty-eight disciplinary incidents, including several violations for fighting, assaults on staff personnel, drug use, harassment and possession of contraband. In fact, during his period of incarceration, the accused has spent 2,197 days, or more than six years, in the Special Housing Unit for disciplinary infractions. Even when enrolled in or attending institutional programs such as the GED and Alcohol and Substance Abuse Treatment, he was repeatedly removed for disciplinary reasons.
Although it is commendable that the accused eventually earned his GED and has improved his reading level, his continued course of criminal conduct, even while incarcerated, and obstreperous institutional behavior hardly demonstrates an attempt to distance himself from past misbehavior or progress in rehabilitation. Accordingly, substantial justice dictates that the accused man’s application would nevertheless have been denied, even if it had been considered.
Changes in the Law provide two things to convicted offenders, either hope or more severe punishment but it is generally intended to protect every individual’s rights. If you believe that you should pursue a criminal or drug crime lawsuit, or are involved in a sex crimes charge, contact a Bronx County Drug Lawyer or a Bronx County Criminal Attorney from Stephen Bilkis and Associates. The team of lawyers will make sure that you get what you deserve.