Criminal Appeals Victory for Parolees; Reforms of Drug Sentences to be Applied to Parolees
THURSDAY, MAY 14, 2015

The Criminal Appeals Bureau achieved a major victory for parolees when the New York Court of Appeals today ruled that reforms of drug sentences should be applied to parolees.

“It’s a victory for common sense,” David Crow, Staff Attorney, told Capital. “Parolees have been something of an invisible class.”

Chief Judge Jonathan Lippman said that the 2011 reorganization that merged two agencies to form the Department of Corrections and Community Supervision (DOCCS) signaled the adoption of a singular approach to drug sentences for both incarcerated and paroled offenders.




Court of Appeals extends drug sentencing reforms to parolees
Capital New York
By Luca Marzorati
May. 14, 2015

The New York Court of Appeals ruled that reforms of drug sentences should be applied to parolees in a split decision issued Thursday.

Writing for a 5-2 majority, Chief Judge Jonathan Lippman said that the 2011 reorganization that merged two agencies to form the Department of Corrections and Community Supervision (DOCCS) signaled the adoption of a singular approach to drug sentences for both incarcerated and paroled offenders.

“The 2011 amendments were not purely budgetary or technical changes,” Lippman wrote. “The 2011 law emphasized ‘the evolution of the sentencing structure’ toward a ‘focus on reentry,’ and the ‘commonality of purpose governing the fundamental missions of both agencies.’”

Although the court’s decision was largely based on the finding that parole constitutes “custody,” the outcome dovetails with Lippman’s push for criminal justice reforms, as hundreds of parolees will now get the chance to apply for reduced sentences.

“It’s a victory for common sense,” Legal Aid appellate lawyer David Crow told Capital. “Parolees have been something of an invisible class.”

The case was brought by Jarrod Brown, a Queens man who pleaded guilty to selling drugs to an undercover officer in 2002. After Brown was released onto parole in February 2010, he challenged his original 12-year sentence in light of the 2009 partial repeal of the Rockefeller drug laws.

A state Supreme Court judge reduced Brown’s sentence in 2012, ending his post-release supervision. In 2014, an appellate court affirmed the reduction.

Judge Susan Read dissented from the majority opinion, and called the organizational restructuring “routine.”

“Text derives meaning within a context,” wrote Read, who was joined by Judge Sheila Abdus-Salaam. “It is up to the Legislature, not the courts, to decide whether to expand this provision's ameliorative sweep, and I cannot agree that the Legislature has done so.”

The decision ends a dispute between judges in city trial courts. In three boroughs—Brooklyn, Queens, and the Bronx—parolees could not apply to reduce their sentences, while some Manhattan trial courts reduced parolee’s sentences even before the state’s highest court decided People v. Brown.




New York Law Journal
Parolees Found Eligible for Drug Law Resentencing
By Joel Stashenko
May 15, 2015

ALBANY - Former prison inmates who are on parole for drug offenses are eligible for resentencing under reforms to the harsh Rockefeller-era drug laws made in 2009, a divided state Court of Appeals ruled Thursday.

The 5-2 majority said the reorganization of state corrections agencies in 2011 effectively extended eligibility for sentencing changes under the Drug Law Reform Act to parolees under state supervision.

Chief Judge Jonathan Lippman wrote for the majority that the court had left open the question in its 2011 rulings in People v. Paulin, 17 NY3d 238, and People v. Santiago, 17 NY3d 246. Both were made as the state introduced a consolidation of the state prison and parole apparatuses into the new Department of Corrections and Community Supervision (DOCCS).

Lippman said amendments to the state budget for 2011-2012 effected the structural changes extending the meaning of "custody" to those inmates under the parole supervision of the new agency. Thus, those offenders are eligible for readjustments of the sentences they may have received under the overly harsh drug laws.

The resentencing provisions are provided for in CPL §440.46.

The chief judge wrote that the majority's interpretation of the 2011 reorganization keeps with the stated public policy goals of the creation of DOCCS, which included a "focus on re-entry" and creation of a "seamless network for the care, custody, treatment and supervision" of an offender. Those goals, in turn, are in line with the aims of the drug law reforms, Lippman said.

"Remedial statutes such as the [Drug Law Reform Act] should be interpreted broadly to accomplish their goals—in this case the reform of unduly harsh sentencing imposed under pre-2005 law," Lippman wrote in People v. Brown

Writing in dissent, Judge Susan Phillips Read said Thursday's ruling directly contradicts language in the court's Santiago ruling in June 2011. At that time, the court said in a footnote that the legislation creating DOCCS represented a mere "name change" that was "of no consequence" to the consideration of either Santiago or Paulin, Read noted.

"The majority highlights, and obviously agrees with, policy considerations that favor allowing non-incarcerated parolees to apply for the sentencing relief made available by section 440.46," Read wrote in a dissent joined by Judge Sheila Abdus-Salaam. "But it is up to the Legislature, not the courts, to decide whether to expand this provision's ameliorative sweep, and I cannot agree that the Legislature has done so."

Read said she worried about the consequences of using what she called a "run-of-the-mill" name change amendment to justify altering "substantive" law.

Judges Jenny Rivera, Eugene Pigott Jr., Eugene Fahey and Leslie Stein joined in the majority ruling.

Their decision affirmed a 2014 finding by the Appellate Division, Second Department, that parolees under DOCCS supervision are in "custody" and eligible for drug law reform resentencing consideration (NYLJ, Jan. 30, 2014.

The underlying case involved Jarrod Brown, who was paroled in 2011 after serving nine years of a 6- to 12-year sentence for a 2002 conviction for criminal sale of a controlled substance in Queens. Brown moved for resentencing under the drug reform act about two weeks after the DOCCS was created.

David Crow of the Legal Aid Society represented Brown.

Crow said the indeterminate sentences under the drug statutes provide the potential for parolees to return to prison for long periods of time for violating parole or committing other minor offenses. For instance, offenders facing a 4 1/2- to 9-year sentence who are released from prison after serving the minimum sentence still face return to prison for as long as the other 4 1/2 years of their sentence for such violations unless resentenced under the drug reform law, he said.

"Obviously, this is a case that has implications for the whole class of folks who are currently in good standing on parole," Crow said in an interview Thursday. "It is just the first step in the review process, but it allows parolees to bring their case before a judge and have an individualized determination."

Crow estimated that 50 to 100 parolees in New York City alone could be affected by Thursday's ruling, plus others in the future.

Assistant Queens District Attorney Danielle Fenn argued for the prosecution.